author: Donald L. Corbin, Justice. Glaze, J.,

text:
    Ricky Lee SCOTT v. STATE of Arkansas
    CR 98-1167
    989 S.W.2d 891
    Supreme Court of Arkansas
    Opinion delivered April 22, 1999

      Ray Hartenstein, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Ricky Lee Scott appeals the judgment of the Cross County Circuit Court convicting him of first-degree murder and sentencing him to a term of fife imprisonment. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). For reversal, Appellant argues that the trial court erred in denying his motion to dismiss for violation of his right to a speedy trial. We find no error and affirm.

Because Appellant does not challenge the sufficiency of the evidence used to convict him, we need not recite the facts of this case in great detail. Suffice it to say that Appellant was arrested on March 5, 1996, for the murder of fifteen-year-old Robert Smith, which had occurred the previous day at Smith’s aunt’s house. The evidence showed that Smith and four other persons were in the driveway, changing a tire on his aunt’s car, when Appellant came around the side of the house and began firing a gun. Several eyewitnesses identified Appellant as the person who shot the boy. Appellant was tried on March 11, 1998, more than two years after his arrest. He contends that the trial court thus erred in denying his motion to dismiss the charge due to the State’s failure to bring him to trial within twelve months from the date of his arrest.

Rules 28.1(c) and 28.2(a) of the Arkansas Rules of Criminal Procedure require the State to bring a defendant to trial within twelve months from the date the charge is filed in circuit court or from the date of arrest, if the defendant has been lawfully set at liberty pending trial. Once it is shown by the defendant that a trial is or will be held outside the applicable speedy-trial period, the State has the burden of showing that the delay was the result of the defendant’s conduct or was otherwise justified. Eubanks v. Humphrey, 334 Ark. 21, 972 S.W.2d 234 (1998). Delays resulting from continuances given at the request of the defendant are excluded from the period for a speedy trial. Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998); Eubanks, 334 Ark. 21, 972 S.W.2d 234.

The record reflects that Appellant was tried 736 days after he was arrested, 371 days in excess of the twelve-month speedy-trial period. Appellant does not contest the following three periods of time excluded from the twelve-month period for continuances granted at his request: (1) September 13, 1996, to January 21, 1997, a total of 130 days; (2) June 27, 1997, to October 14, 1997, a total of 109 days; and (3) January 26, 1998, to Appellant’s trial on March 11, 1998, a total of 44 days. Thus, Appellant does not contest that 283 days are excludable due to his requested continuances. That leaves 88 days that must be excluded to affirm the trial court’s denial of Appellant’s speedy-trial motion. The State contends that the period from January 21, 1997, to May 5, 1997, a total of 104 days, should be excluded due to Appellant’s request for a mental examination.

The record reveals that Appellant requested a mental examination pursuant to Ark. Code Ann. § 5-2-305 (Repl. 1997). The trial court granted the request in an order filed on January 21, 1997. The order reflected that Appellant was to undergo examination at the Arkansas State Hospital or other suitable facility, and that all further proceedings in the prosecution were immediately suspended. Appellant was examined on April 21, 1997, and the state hospital’s report, which did not reflect any finding of mental disease or defect, was filed on May 5, 1997. Appellant contends that the order for examination was not received by the state hospital until April 1997. He argues that the delay in obtaining his mental examination was caused by the State’s failure to promptly forward the order to the state hospital, and, therefore, that the time should not be excluded from the speedy-trial period. We disagree.

Section 5-2-305 (a) provides in pertinent part that whenever a defendant charged in circuit court files notice that he will rely upon the defense of mental disease or defect or that he will put in issue his fitness to proceed, the trial court “shall immediately suspend all further proceedings in the prosecution” subject to the provisions of Ark. Code Ann. §§ 5-2-304 and 5-2-311 (Repl. 1997). Similarly, Arkansas Rule of Criminal Procedure 28.3(a) provides in part that “[t]he period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant” is excluded in computing the time for trial. This court has consistently held that the time necessary to complete a mental examination requested by a defendant is excluded from the twelve-month period under the speedy-trial rule. See, e.g., Hulsey v. Smitherman, 328 Ark. 234, 943 S.W.2d 568 (1997); Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995); Hufford v. State, 314 Ark. 181, 861 S.W.2d 108 (1993); Brawley v. State, 306 Ark. 609, 816 S.W.2d 598 (1991); Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991); Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988). The excludable period resulting from a defendant’s request for mental examination runs from the date the exam is ordered to the date the report is filed. Morgan, 333 Ark. 294, 971 S.W.2d 219.

In Brawley, 306 Ark. 609, 816 S.W.2d 598, upon which the State relies, we rejected an argument similar to the one made in the instant case. There, the defendant filed a motion on September 27, 1988, requesting a psychiatric evaluation. He was not able to make bail and had been held in custody since his arrest. The trial court granted the request, and an appointment was made for an examination on October 5, 1988. Brawley was not taken to the appointment. A second appointment was made for October 28, 1988. Again, Brawley was not taken to the appointment. In fact, Brawley was not taken for an examination until May 9, 1989, some seven months after the request for evaluation had been granted. The report was received by the trial court on July 24, 1989. On appeal, Brawley argued that the period of time from the granting of the request to receipt of the report was not excludable because he was not responsible for missing his appointments. He argued that the burden of justifying the delay beyond the date of his first appointment shifted back to the State, as he was incarcerated at that time and had no control over keeping his appointment. He relied on the fact that there was no explanation offered for the State’s failure to ensure that he arrived at his appointment. This court rejected Brawley’s argument, reasoning:

Brawley’s argument continues that once he presented proof that the appellant missed the scheduled appointments, and the Trial Court found that the delay was not attributable to him personally, the burden shifted back to the State to come forward with an explanation. The literal language of Rule 28.3(a) states simply that the period required by a competency examination is excluded. Brawley cites no authority for his assertion that the burden should shift back to the State, and we are not persuaded by his argument.

Id. at 613, 816 S.W.2d at 600-01 (emphasis added).

We thus find no merit to Appellant’s argument that the delay resulting from his mental examination should not be excluded from the twelve-month speedy-trial period. As indicated above, this court has repeatedly held that the time necessary to complete a mental examination is excluded from the calculation of the period for speedy trial. Appellant has not given us any reason or authority to depart from our prior holdings, and we decline to do so. Thus, the period of time from the date the order for evaluation was entered, January 21, 1997, to the date the state hospital’s report was filed, May 5, 1997, a total of 104 days, is excluded from the twelve-month period pursuant to section 5-2-305(a) and Rule 28.3(a).

Additionally, we affirm on the basis that Appellant failed to include the trial court’s docket sheet in the record on appeal. Without the benefit of being able to examine the entries and notations on the docket sheet, we are at a disadvantage to determine whether the trial court erred in ruling that certain periods of time were excludable under Rule 28.3. It is well settled that the appellant bears the burden of producing a record that demonstrates error, and thus we do not consider on appeal matters outside of the record. Burkhalter v. State, 330 Ark. 684, 956 S.W.2d 171 (1997). See also Davis v. State, 319 Ark. 171, 889 S.W.2d 769 (1994) (denying a writ of prohibition requested for an alleged violation of the right to a speedy trial because the docket entries, although included in the record, were ambiguous).

In sum, our review of the record in this case supports the trial court’s denial of Appellant’s motion to dismiss for want of a speedy trial. By our calculations, Appellant was brought to trial 736 days after his arrest, 371 days in excess of the twelve-month period for speedy trial under Rule 28.1. Under Rule 28.3, however, there were 387 days excludable from the calculation of speedy trial due to Appellant’s requested continuances and mental examination. Accordingly, we affirm the trial court’s ruling that Appellant was given a speedy trial.

Rule 4-3(h)

In accordance with Rule 4-3(h) of the Arkansas Supreme Court Rules, the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no such reversible errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.

Glaze, J.,

concurs but affirms based on the appellant’s failure to include the trial court’s docket sheet in the record on appeal. See also Brawley v. State, 306 Ark. 609, 614-A, 819 S.W.2d 704 (1991) (supplemental opinion denying rehearing) (Glaze, J., concurring).


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Garry DOTY, Patricia Doty, Pearl Marie Roden, and James W. Roden, Appellants v. Junaway PAYNE, et al., Appellees; Joan Cash, James Pagan, Vance McDaniel, Donna Pippinger, and Carol Ann White, Intervenors
    98-1231
    989 S.W.2d 159
    Supreme Court of Arkansas
    Opinion delivered April 22, 1999

      Watlington Law Firm, by: Garland L. Watlington, for appellants.

      Brent Davis, Prosecuting Att’y, Second Dist., by: Clayton K. Hodges, for appellees.

      Bill W. Bristow, for intervenors.
   Robert L. Brown, Justice.

This is the second appeal we have had relating to the 1996 wet-dry election in Willis Township, Precinct 41, Poinsett County. This township currently allows the sale of intoxicating liquors. In the first litigation, appellants Garry Doty, who operates a liquor store in the township, and Patricia Doty, his wife, sued to stop the placement of an initiative petition on the ballot to prohibit the sale or manufacture of intoxicating liquors. The Poinsett County Court Judge rejected the arguments raised, and the circuit judge affirmed. The matter was appealed to this court, and we affirmed without reaching the merits because the Dotys had failed to furnish us with the results of the 1996 wet-dry election and, furthermore, had failed to demonstrate how the election would have been different absent the alleged procedural irregularities. See Doty v. Bettis, 329 Ark. 120, 947 S.W.2d 743 (1997).

In the instant appeal, the record and abstract inform us that the wet-dry election was held on November 5, 1996, and the vote was 113 for the sale of intoxicating liquors and 266 against such sales. On November 8, 1996, the Poinsett County Election Commission certified the results of the election. On November 15, 1996, the Dotys and other residents and legal voters of the township filed a complaint against the Poinsett County election commissioners, the county judge, and the county clerk, all of whom comprise the appellees in this matter. In their complaint, the plaintiffs-appellants contested the election and requested either a declaration that a majority of the voters voted against the petition to prevent the sale of intoxicating liquors, which would allow the township to remain wet, or, alternatively, a declaration that the election was invalid. At the heart of the complaint was an allegation that the ballot on the wet-dry issue for the November 5, 1996 election was misleading. That ballot read as follows:

PETITION TO PREVENT THE MANUFACTURE OR SALE OF INTOXICATING LIQUORS IN PRECINCT 41, WILLIS TOWNSHIP
FOR the manufacture or sale [ ] of intoxicating liquors
AGAINST the manufacture or sale [ ] of intoxicating liquors

On December 2, 1996, Joan Cash and others moved to intervene in the litigation, and their motion was granted. In their response to the complaint, the intervenors claimed that the election should be upheld and that the issues raised in the complaint were barred by res judicata due to the first lawsuit.

The circuit judge conducted a hearing on the election contest, and no witnesses were called. On April 18, 1998, the circuit judge dismissed the complaint with prejudice and ruled that with respect to the allegation that the ballot was misleading, the ballot was in accord with Ark. Code Ann. § 3-8-206 (Repl. 1996). This statute requires that the issue be placed on the ballot as FOR [ ] or AGAINST [ ] the manufacture or sale of intoxicating liquors and that the voters be instructed to put an “X” in the appropriate box. The circuit judge also concluded that there had been no attack on the constitutionality of the statute.

The appellants now raise the same issue on appeal, urging again that the ballot was misleading. Specifically, they argue that the voters may have been confused and voted for or against the petition which would have had the opposite effect of voting for or against the sale of intoxicating liquors. If a majority of the voters voted against the petition, they contend, the result would be that the county remained wet.

At the hearing, the appellants presented no witnesses or other proof to the circuit judge to prove their case that the ballot was misleading and that except for the misleading tendencies the outcome of the election would have been different. This failure of proof is fatal to their case. See Reichenbach v. Serio, 309 Ark. 274, 830 S.W.2d 847 (1992); Henard v. St. Francis Election Comm., 301 Ark. 459, 784 S.W.2d 598 (1990). Once the votes have been cast, this court will not set aside an election unless procedural errors rendered the result doubtful or prevented the voters from voting freely or intelligently. See Doty v. Bettis, supra. This requires proof, and the appellants presented none. Furthermore, the circuit judge correctly concluded that the ballot complied with the format of § 3-8-206.

There is an additional reason for affirmance, though the issue was not argued to the circuit judge. The propriety of the ballot was a matter that should have been contested before the election, and the appellants failed to do that. Had it been done, the circuit judge would have been entirely correct to dismiss the complaint for lack of timeliness. The appellants argue that they could not have contested the misleading tendencies of the ballot itself because they did not know how the ballot would read until election day, November 5, 1996. We question this assertion. It is clear under our statutes that all local-option elections are held in accordance with the provisions of the general election laws of the state. See Ark. Code Ann. § 3-8-304(d) (Repl. 1996). The ballots for a general election are prepared well in advance of the election date and delivered to the county clerk for mailing to absentee voters. See Ark. Code Ann. § 7-5-407 (Repl. 1993); see also Ark. Code Ann. § 7-5-209 (Repl. 1993); McFarlin v. Kelly, 246 Ark. 1237, 442 S.W.2d 183 (1969); cf. State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). Moreover, all questions required by law to be submitted to the voter are listed and posted ten days before an election, and sample ballots are available to the public and press. See Ark. Code Ann. § 7-5-206 (Repl. 1993). We deem it incumbent upon parties vitally interested in an initiative petition, as the appellants were, to familiarize themselves with the ballot before the election. They had ample time to do this. By waiting as they did until after the election to raise the issue, they were simply too late.

Affirmed.


author: Annabelle Clinton Imber, Justice.

text:
    Joshua SUTTER v. Mary Lou Sutter PAYNE and Cora Sue Sutter West
    98-1023
    989 S.W.2d 887
    Supreme Court of Arkansas
    Opinion delivered April 22, 1999

      James F. Lane, P.A., for appellant.

      Comer Boyett, Jr., for appellee.
   Annabelle Clinton Imber, Justice.

This case involves a novel issue of civil procedure regarding the common-defense doctrine. The trial court ruled that the appellant, Joshua Sutter, could not benefit from the answer timely filed by his co-defendant, Luther O’Neal Sutter, because Luther voluntarily withdrew his pleadings. We reverse and remand.

Luther S. Sutter died testate leaving the appellees, Mary Lou Sutter Payne and Cora Sue Sutter West, as the co-executors of his estate. On December 26, 1996, Ms. Payne and Ms. West filed a declaratory-judgment action asking the court to determine the validity of an inter vivos trust created during the decedent’s lifetime. The defendants listed on the complaint were William Howard Payne, Joshua Sutter, De’ Shawn Robinson, Luther Sutter, and Clayla Hicks.

On January 16, 1997, separate defendant Luther Sutter filed a pro se motion to dismiss and a motion to make more definite and certain. In this pleading, Luther Sutter alleged, among other things, that the petition for declaratory judgment should be dismissed because the court did not have jurisdiction, venue was improper, and the plaintiffs failed to state a claim upon which relief could be granted. Five days later, separate defendant Clayla Hicks filed an answer, which included a general denial of each and every material allegation set forth in the petition. The remaining co-defendants did not answer the petition.

On June 20, 1997, Ms. Payne and Ms. West filed an amended petition for declaratory judgment. Luther Sutter responded by filing an answer on June 26, 1997. In addition to several substantive defenses, Luther Sutter’s answer included a general denial of each and every material allegation set forth in the petition for declaratory judgment. Neither Clayla Hicks nor the remaining co-defendants filed an answer to the amended petition. Sometime thereafter, Luther Sutter allegedly settled his claim against Ms. Payne and Ms. West for $20,000.

On December 22, 1997, separate defendant Joshua Sutter, a Georgia resident, filed an answer to the original and amended petitions for declaratory judgment. Several days later, on December 27, Luther Sutter filed a motion to withdraw his answer and all other pleadings filed on his behalf. The court granted the motion on the same day.

On January 27, 1998, Clayla Hicks filed a motion to strike Joshua Sutter’s answer as untimely. In her motion, Clayla Hicks asserted that Joshua was served with the petition on January 4, 1997, and the amended petition on June 23, 1997, but he did not answer either petition until December 22, 1997, which was well beyond the thirty-day limitation for out-of-state residents found in Ark. R. Civ. P. 12. In his response to the motion to strike, Joshua asserted the common-defense doctrine by claiming that he could benefit from Luther Sutter’s timely filed responses.

After a hearing, the trial court ruled on May 13, 1998, that Joshua Sutter could not benefit from Luther Sutter’s timely filed responses because they had been withdrawn. Accordingly, the court struck Joshua Sutter’s answer as untimely. On the same day, the court entered a ruling on the amended petition for declaratory judgment. The court determined that the inter vivos trust was valid and then distributed the real property held by the trust to Ms. Payne, Ms. West, William Payne, and Clayla Hicks. Notably, the remaining three defendants, Luther Sutter, Joshua Sutter, and De’ Shawn Robinson, were not awarded any interest in the real property by virtue of the trust.

On appeal, Joshua Sutter contends that the trial court erred when it struck his answer as untimely because the timely answers of his co-defendants, Luther Sutter and Clayla Hicks, inured to his benefit under the common-defense doctrine. We agree in part.

I. Clayla Hicks’s Answer

At the outset, we recognize that in his arguments lodged before the trial court, Joshua Sutter solely relied upon the pleadings filed by Luther Sutter. Significantly, Joshua did not rely upon, as he does on appeal, the answer filed by Clayla Hicks. As we have said on numerous occasions, we will not consider an issue raised for the first time on appeal. Burns v. First Nat’l Bank, 336 Ark. 406, 985 S.W.2d 747 (1999); Evans v. Harry Robinson Pontiac-Buick, Inc., 336 Ark. 155, 983 S.W.2d 946 (1999). In response, Joshua claims that this holding applies only when the appellant raises new legal issues on appeal, and not, as in this case, where the legal argument is the same but is based upon different facts. Joshua, however, fails to cite a single authority in support of this distinction. Furthermore, in Evans, we said that we would not consider “issues” for the first time on appeal, which could mean either factual or legal issues. Evans, supra. Accordingly, we cannot consider for the first time on appeal whether Joshua Sutter can assert the common-defense doctrine based upon Clayla Hicks’s answer.

II. Luther Sutter’s Responses

Pursuant to Ark. R. Civ. P. 12(a) a “non-resident of the state” has thirty days after service of the summons and complaint to file an answer. It is undisputed that Joshua Sutter, a Georgia resident, filed his answer well beyond this time period. In reply, Joshua Sutter contends that he can benefit from Luther Sutter’s timely filed response under the common-defense doctrine. We agree.

Arkansas has long recognized the common-defense doctrine, which provides that an answer that is timely filed by a co-defendant inures to the benefit of a defaulting co-defendant. Richardson v. Rodgers, 334 Ark. 606, 976 S.W.2d 941 (1998); Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991); Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 561 S.W.2d 280 (1978). The test for determining whether the common-defense doctrine applies is whether the answer of the nondefaulting defendant states a defense that is common to both defendants, because then “a successful plea . . . operates as a discharge to all the defendants, but it is otherwise where the plea goes to the personal discharge of the party interposing it.” Richardson, supra; Southland Mobile Home Corp., supra. In this respect, we have held that a general denial of “each and every material allegation contained in the complaint” is the assertion of a common defense. See Southland Mobile Home Corp., supra. Likewise, we have held that a defense on the merits that equally applies to the other defendant is the assertion of a common defense. See Richardson, supra (containing a general denial of all material allegations in the complaint, and an assertion that the plaintiffs suffered no damages). Finally, in Richardson, we recently held that a defaulting defendant does not have to demonstrate the criteria listed in Ark. R. Civ. P. 55(c) for setting aside a default judgment if the defaulting defendant was entitled to the benefit of a timely filed answer under the common-defense doctrine. Id.

In the case before us today, Joshua Sutter does not clarify whether he is relying upon Luther Sutter’s January 16, 1997 motion to dismiss, or his June 26, 1997 answer to the amended petition. Both pleadings, however, include defenses such as the lack of jurisdiction, failure to state a claim, and other defenses that are equally applicable to both co-defendants and are not peculiar to Luther Sutter. Furthermore, Luther Sutter included in his answer a general denial of each and every material allegation contained in the original and amended petition. Hence, it appears that the common-defense doctrine applies, and thus Joshua Sutter can benefit from Luther Sutter’s timely filed answer.

This case, however, raises the novel issue of whether Joshua Sutter can continue to rely upon Luther Sutter’s timely filed responses after they have been voluntarily withdrawn. Although we have never dealt with this precise issue, we have held in several cases that the common-defense doctrine applies even if the defaulting defendant makes his or her first appearance after the answering defendant is no longer in the case because the plaintiff has nonsuited or dismissed its complaint against the answering defendant. See, e.g., Richardson, supra; Schueck Steel, Inc. v. McCarthy Bros. Co., 289 Ark. 436, 717 S.W.2d 816 (1986) (supplemental opinion granting rehearing); Rogers v. Watkins, 258 Ark. 394, 525 S.W.2d 665 (1975).

In Schueck Steel, for example, Schueck Steel filed a complaint against Missouri Pacific Railroad Company and McCarthy Brothers Company. Schueck Steel, Inc., supra. Missouri Pacific timely filed an answer that included a general denial of the material allegations of the complaint. Id. In contrast, McCarthy Brothers failed to answer the complaint. Schueck Steel nonsuited its complaint against Missouri Pacific and then obtained a $91,000 default judgment against McCarthy Brothers. Id. In a supplemental opinion, we held that pursuant to the common-defense doctrine Missouri Pacific’s timely filed answer inured to the benefit of McCarthy Brothers even after the plaintiff had voluntarily non-suited its claim against Missouri Pacific. Id. In particular, we said that the answer of the common defendant, Missouri Pacific, was not “erased” by the later dismissal. Id.

Relying upon our holding in Schueck Steel, Inc., supra, the Court of Appeals held in National Sec. Fire & Cas. v. Barnes, 65 Ark. App. 13, 984 S.W.2d 80 (1999), that even when an answering defendant is no longer in the case at the time a default judgment is requested, its answer continues to inure to the benefit of the party against whom the default judgment is sought. In reaching this conclusion, the Court of Appeals declared that:

Once an answer inures to a defendant’s benefit, it would be illogical to retract that benefit upon dismissal of the answering defendant. If such a retraction were allowed, plaintiffs could subvert the rule by nonsuiting or settling with an answering defendant.

Id.

From these cases, it is clear that the common-defense doctrine applies even if the defaulting defendant makes his or her first appearance after the answering defendant is no longer in the case. In other words, a defaulting defendant can rely upon the answer of a co-defendant who is no longer in the case, and the subsequent dismissal does not “erase” the answer. This holding is consistent with the well-settled precedent that default judgments are not favorites of the law and should be avoided when possible. See Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998); B&F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992).

Granted, the case before us today is somewhat different from the above-cited authorities because Luther Sutter, the answering defendant, withdrew his answer instead of the plaintiffs nonsuiting or dismissing their claims against him. In support of this distinction, Luther Sutter cites several cases that he claims stand for the proposition that a defendant cannot rely upon an answer that has been withdrawn. See Tri-State Transit Co., Inc. v. Miller, 188 Ark. 149, 65 S.W.2d 9 (1933); Little Rock & Ft. Smith Ry. Co. v. Clark, 58 Ark. 490, 25 S.W. 504 (1894). In these cases, however, we merely held that a withdrawn answer could not be introduced at trial as a party admission. We did not render any holding as to whether a withdrawn answer could inure to the benefit of a defaulting defendant under the common-defense doctrine. Tri-State Transit Co., Inc., supra; Little Rock & Ft. Smith Ry. Co., supra.

Likewise, the cases Luther Sutter cites from other jurisdictions are inapposite because they do not deal with the common-defense doctrine. See Blazina v. Blazina, 356 N.E.2d 164 (Ill. App. 1976); Mathis v. Clary, 231 N.E.2d 157 (Ind. App. 1967); Heeter v. Fleming, 67 N.E.2d 317 (Ind. App. 1946); Conduitt v. Trenton Gas & Elec. Co., 31 S.W.2d 21 (Mo. 1930); Bongardt v. Frink, 143 S.E.2d 286 (N.C. 1965).

Finally, as to withdrawn pleadings, 61A Am. Jur. 2d, Pleadings, § 354 (1981), provides that:

While an answer is subject to withdrawal, the fact that it has been once filed, and that it may have been held insufficient on a demurrer, remains a matter of record, and is within the judicial notice of the court, acting on a motion in reference to the same pleading. The withdrawal does not eradicate the fact that the litigant did file the pleading, assuming, of course, that it was filed by him or under his authority. In some cases, however, it is held that an answer, after it is withdrawn, ceases to be part of the record. This is true where an answer is filed for a particular purpose and contains an admission merely to serve that purpose.

Thus, we find no support for Luther Sutter’s contention that a defendant may never rely upon a withdrawn answer.

In light of our displeasure with default judgments and our holdings in Richardson, Schueck Steel, Inc., and McCarthy Bros., Co., we question whether a party may defeat the common-defense doctrine by voluntarily withdrawing his or her answer at any point in the litigation. We, however, do not decide that issue today because it is clear that Joshua Sutter answered the petition on December 22, 1997, which was several days before Luther Sutter withdrew his answer. Because Luther Sutter’s answer was still viable at the time that Joshua Sutter answered the petition, we hold that the trial court erred when it ruled that the common-defense doctrine did not apply in this case. Accordingly, we reverse the trial court’s order striking Joshua Sutter’s answer, and its order of declaratory judgment, and remand for further proceedings consistent with this opinion.

Reversed and remanded.

       This name appears a variety of ways in the pleadings: Luther O’Neal, II; Luther O’Neal Sutter; L. Oneal Sutter, II. We will refer to him as “Luther Sutter” in the remainder of this opinion.


author: Ray Thornton, Justice. Lavenski R. Smith, Justice,

text:
    Boyce McQUAY v. ARKANSAS STATE BOARD OF ARCHITECTS
    98-995
    989 S.W.2d 499
    Supreme Court of Arkansas
    Opinion delivered April 22, 1999

      Conner & Winters, P.L.L.C., by: John R. Elrod and Vicki Bronson, for appellant.

      Winston Bryant, Att’y Gen., by: Warren T. Readnour, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant, Boyce McQuay, appeals from the assessment of a penalty of $48,000 for practicing architecture without a license. The Arkansas State Board of Architects (the Board) imposed the penalty following a hearing before the Board on April 18, 1995, and the Benton County Circuit Court affirmed the Board’s order. Appellant raises four points on appeal, and we find that one of the points has merit. Accordingly, we reverse and remand with instructions to return the case to the Board for further actions consistent with this opinion.

Appellant was not registered or licensed as an architect; however, in September 1992, appellant prepared construction documents for Woodland Manor Nursing Home. In January 1993, appellant prepared construction documents for Cobb/Vantress Laboratory Facility, and in August 1993 and in 1994, appellant designed and prepared construction documents in two phases for Atkinson Internal Medical Clinic. The statutes that frame the issues before us are codified at Ark. Code Ann. §§ 17-14-102, 17-14-203, and 17-14-301 (Supp. 1993).

Standard of Review

The standard of review in this area of the law is well-developed. Review of administrative decisions is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992). The appellate court’s review is directed, not toward the circuit court, but toward the decision of the agency. That is so because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Id.

The standard is consistent with the provisions of the Administrative Procedure Act, which requires that the scope of appellate review under the act be limited. The Administrative Procedure Act states:

(g) The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony may be taken before the court. The court shall, upon request, hear oral argument and receive written briefs.
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.

Ark. Code Ann. § 25-15-212 (Repl. 1996). Appellant alleges that: (1) the enabling statute of Ark. Code Ann. § 17-14-203 is itself unconstitutional; (2) the Board’s order was not based on substantial evidence; (3) the Board’s order was arbitrary, capricious, and an abuse of discretion; and (4) the circuit court violated Ark. Code Ann. § 25-15-212(g) because it did not allow oral arguments to be held in this matter. We will consider these arguments in the sequence in which they are raised.

Constitutionality of Ark. Code Ann. § 17-14-203

In appellant’s first point on appeal he argues that Ark. Code Ann. § 17-14-203(d) is unconstitutional. Specifically, appellant claims this statute is unconstitutional because it gives the Board unbridled discretion in imposing penalties. The pertinent language of the statute states:

The board may, after providing notice and a hearing, levy civil penalties, in an amount not to exceed one thousand dollars ($1,000) for each violation, against those individuals or entities found to be in violation of this chapter or rules and regulations promulgated thereunder, with each day of violation to constitute a distinct and separate offense.

Ark. Code Ann. § 17-14-203(d).

We have held that discretionary power may be delegated by the legislature to the licensing authority, but it is essential that reasonable guidelines be provided. Patton v. Ragland, Com’r & Charles v. Gordon, Com’r, 282 Ark. 231, 668 S.W.2d 3 (1984). This guidance must include appropriate standards by which the administrative body is to exercise this power. Arkansas State Bd. of Pharmacy v. Hall, 243 Ark. 741, 421 S.W.2d 888 (1967). We have further noted that a statute or ordinance which in effect reposes an absolute, unregulated, and undefined discretion in an administrative agency bestows arbitrary powers and is an unlawful delegation of legislative powers. Alcoholic Beverage Control v. R. C. Edwards Dist. Co., 284 Ark. 336, 681 S.W.2d 356 (1984) (citing 1 Am.Jur.2d Administrative Law § 108 (1962)). However, it is essential that challenges to the constitutionality of the statute must be raised before the agency itself.

We recendy pointed out that we will not set aside an administrative determination upon a ground not presented to the agency because to do so would deprive the agency of the opportunity to consider the matter, make its ruling, and state the reasons for its action. Arkansas Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 941 (1998). The same applies to constitutional arguments not raised at the agency level. See Arkansas Health Servs. Agency v. Desiderata, Inc., 331 Ark. 144, 958 S.W.2d 7 (1998) (approving the rule adopted by the court of appeals in Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982) that even though the Workers’ Compensation Commission may not have authority to declare statutes unconstitutional, such constitutional issues should first be raised at the Administrative Law Judge or Commission level, because such issues often require an exhaustive analysis that is best accomplished by an adversary proceeding, which can only be done at the hearing level). Because the issue was not properly developed before the Board, we do not review the question of whether the statute is unconstitutionally broad in giving the Board unbridled discretion.

Substantial Evidence

In point two, appellant contends that the Board’s decision was not supported by substantial evidence. We review the evidence to determine if there is substantial evidence to support the agency’s decision. Mid-South Rd. Builders, Inc. v. Arkansas Contractors Lic. Bd., 328 Ark. 630, 946 S.W.649 (1997). Substantial evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture. Bohannon v. Arkansas Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995). The appellant has the burden of proving an absence of substantial evidence. Mid-South, supra. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. Bohannon, supra.

Substantial evidence was presented that appellant acted as an architect without a license. With regard to appellant’s defense that he was working under the direction of an architect, J.H.E. Johnson, a licensed architect hired by the Board to investigate appellant’s actions testified that Steve Saunders, a partner in Polk, Stanley, Saunders, and Associates (PSSA), an architectural firm with whom appellant claimed to have formed a joint venture, sent appellant a letter regarding Woodland Manor Nursing Home which stated PSSA could not “put their name on any architectural project which we have not designed.” Johnson further testified that on the building permit for the Woodland Manor Nursing Home project appellant’s name was listed as architect or designer of the project. Additionally, Johnson offered copies of numerous canceled checks from Woodland Manor Nursing Home paid to appellant. Of the estimated $450,000 for the total cost of the Woodland Manor Nursing Home project, PSSA received $4,800 and appellant received $24,000 for his services.

Johnson testified further as to appellant’s activities in regard to the Cobb/Vantress project. Johnson testified that in a letter from appellant to Steve Saunders, appellant stated that “the red fines you indicated on the preliminaries are reflected in these drawings” and expressed a view that “I’m still not sure you’re comfortable with how we are handling their job.” He further stated that according to a letter received by Joe Stanley, PSSA received only 20% of the fees collected from the project.

Saunders testified at the hearing about PSSA involvement with the two projects. Saunders explained that he had “red-lined” preliminary drawings given to him by appellant for both projects. He further stated that he “played no role” in the drafting of the plans for the two projects, nor did he think anyone in his firm drafted the plans. Finally, Saunders stated that he was not aware that Cobb/Vantress had been built or that PSSA was listed as the architect of record on that project.

Joe Stanley, a partner in PSSA, testified regarding PSSA and appellant’s involvement in the projects. He testified that it was his understanding that PSSA was to act strictly as a consultant to appellant and was not to be listed as the architect on the projects.

Testimony was also presented that would support a finding that the work performed by appellant on Atkinson Internal Medical Clinic was in violation of the statute. Johnson testified that the plans for the original project, which was later scaled down, were drawn by appellant. He further stated that these plans would be for a facility that would be in excess of the $75,000 cost-threshold required by the statute. Finally, a letter from appellant to the Contractor’s Licensing Board, which had investigated appellant’s activities on the Atkinson project, was introduced. In this letter, appellant states that his office, “designs, produces construction documents, and does construction administration for all types of buildings.”

After reviewing all the testimony, we hold that the Board’s decision that appellant was engaged in the practice of architecture without a license was supported by substantial evidence. Specifically, we hold that valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion and force the mind to pass beyond conjecture is present in this case.

Arbitrary and Capricious

For appellant’s third point on appeal, he argues that the penalty set by the Board was arbitrary and capricious. Administrative action may be regarded as arbitrary and capricious where it is not supportable on any rational basis. Partlow v. Ark. State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980). To have administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was “willful and unreasoning action,” without consideration and with a disregard of the facts or circumstances of the case. Id. We have also noted that an action is not arbitrary simply because the reviewing court would act differendy. Harding Glass Co. v. Arkansas Public Service Comm., 229 Ark. 153, 313 S.W.2d 812 (1958).

The Board fined appellant $48,000 for violation of the Arkansas Architectural Act. Specifically, on May 30, 1995, the Board stated:

It is therefore ordered that respondent is in violation of item 2 of the Findings of Fact since September 3, 1992, for a total of 32 months [Woodland Manor Nursing Home]; in violation of item 3 of the Findings of Fact since January 7, 1993, for a total of 28 months [Cobb/Vantress Laboratory Facility]; in violation of item 4 of the Findings of Fact since August 24, 1993, for a total of 20 months, [Atkinson Internal Medical Clinic] for a combined total of 2400 days.
It is therefore ordered that respondent be fined $20.00 per day for violations for a total fine of $48,000.00.

We note that this calculation does not specify a date for the completion of any of the projects but counts all days from the start of each project until the hearing date and cumulates the penalties imposed.

The statute prohibiting the unauthorized practice of architecture defines the practice of architecture as “the provision of services in connection with the design and construction of buildings which are designed for human occupancy or habitation,” and states: “The services referred to include planning, providing preliminary studies, drawings, specifications, and other technical submissions, and administration of construction contract.” Ark. Code. Ann. § 17-14-102. There is no statutory authority to suggest that there is a continuing violation of the statute after the project has been completed or when further architectural services are no longer provided to the project.

The severity of the punishment for violation of the statute may range as high as $1,000 for each violation, with each day of violation constituting a distinct and separate offense. There is no statutory authority to impose multiple penalties for each day in which a person violates the statute. The criteria for imposition of penalties suggest that the purpose of the penalty is to safeguard public health. Arkansas Code Annotated section 17-14-301 states: “in order to safeguard life, health, and property, no unlicensed person shall practice architecture in this state. ...” In the case before us, there were indications that plans and drawings were reviewed by registered and licensed architects, and there were no findings that public health and safety were threatened. Under these circumstances, we defer to the expertise of the Board, and find that the imposition of a penalty of twenty dollars for each violation, with each day of violation being subject to such a penalty, was not arbitrary or capricious.

However, we find nothing in the Board’s order, or in the record before us, to enlighten the Board, or this court on review, as to how many days there were actual violations of the statute for the purpose of imposing a penalty. Certainly it appears obvious that no violation could occur after the completion of the particular job, and as we have already indicated, only one violation per actual day of violation may be assessed. We hold that it was arbitrary and capricious for the Board to assess a twenty-dollar per day penalty for each calendar day from the date each project was commenced up until the date of the hearing, and that this constituted an abuse of discretion. On this point, appellant is correct that the Board’s decision must be reversed and remanded for additional findings consistent with this opinion.

Oral Argument

We turn now to the final point on appeal. Appellant argues that the trial court erred by refusing to allow oral arguments pursuant to Ark. Code Ann. § 25-15-212(g) (Repl. 1996). The statute in question is part of the Administrative Procedures Act. The statute states that the court shall, “upon request, hear oral argument and receive written briefs.” Ark. Code Ann § 25-15-212.

Appellant requested oral arguments in the conclusion of his brief in support of his petition for review of the Board’s decision. The trial court did not make a ruling as to whether oral arguments should be held. The trial court allowed both parties to submit briefs detailing all the issues in the case and from these briefs made its final decision.

The actions by the trial court do not require reversal on this point. In Bank of Glenwood v. Arkansas State Banking Bd., 260 Ark. 677, 543 S.W.2d 761 (1976), we refused to remand a case on the basis that the trial court made his ruling without allowing written briefs to be filed or oral arguments to be heard. In that case, as in the present case, the petitioner had included a request for “the court to hear additional evidence, to hear oral arguments, and receive written briefs” within the prayer for relief in his notice of appeal and petition for judicial review. Id. We held that in some instances we would remand a case to the circuit court upon the ground now argued, but that action was not appropriate under the facts currently before the court. Id. Here, we have determined that the case must be remanded on other grounds and therefore need not decide whether the failure to allow oral arguments in the circuit court would require reversal if that were the only error.

Affirmed in part; reversed and remanded in part.

Smith, J., concurring in part and dissenting in part.

Lavenski R. Smith, Justice,

concurring in part; dissenting in part. I concur in the Court’s decision reversing and remanding this case. However, I must write separately to address the constitutional issue raised by appellant. The majority refused to hear appellant’s constitutional arguments because they were first raised before the circuit court and not before the administrative agency. The court cites Arkansas Health Services Agency v. Desiderata, Inc., 331 Ark. 144, 958 S.W.2d 7 (1998), wherein this court adopts the “Hamilton” rule. The Hamilton rule requires even constitutional issues to be raised at the Administrative Law Judge or Commission level because such issues often require an exhaustive analysis that is best accomplished by an adversary proceeding, which can only be done at the hearing level. Hamilton v. Jeffry Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982).

This rationale is sound with respect to agencies and commissions such as the Workers’ Compensation Commission that have extensive legal expertise and conduct numerous legal proceedings. However, it is much less persuasive when applied to professional and trade regulatory bodies, which, as in this case, consist entirely of members of that trade or profession.

Appellant wished to question the constitutionality of a state law as it is written. The State Board of Architects before which he appeared lacked the authority to determine such an issue. Administrative hearings before such bodies should not be presumptively analogous to trial court proceedings that follow our rules of civil procedure and evidence in respect to purely legal issues such as constitutionality. Appellant attempted to raise his constitutional objections to the circuit court. It unquestionably has the legal authority to hear and decide constitutional matters. Prior to Arkansas Health Services, this court on at least one occasion, heard an appeal from a circuit court decision where apparendy the constitutionality of an agency rule was addressed for the first time on appeal to the circuit court. Johnson v. Arkansas Board of Examiners in Psychology, 305 Ark. 451, 808 S.W.2d 766, (1991). I find the following analysis of the Ninth Circuit Court of Appeals to be persuasive and a better rule than Hamilton for cases like the one at bar:

Reid raises several constitutional issues which implicate the power and jurisdiction of the NTSB. First, she argues that the suspension process unconstitutionally infringed her right to pursue her chosen profession. Second, she contends that the “public interest” standard of 49 U.S.C. § 1429(a) is too indefinite to satisfy due process. Third, she asserts that the Administrator’s ex parte sanction procedure violated her procedural due process rights. These arguments present general challenges to the constitutionality of section 1429(a) and its enforcement scheme, which are beyond the jurisdiction of the NTSB to determine. See Salfi, 422 U.S. at 765, 95 S.Ct. at 2466. As the Supreme Court has explained, “[c]onstitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions. . . . [W]hen constitutional questions are in issue, the availability of judicial review is presumed.” Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). Thus, we conclude that we must address the merits of proper constitutional arguments although they were not raised in the administrative proceeding.

Reid v. Engen, 765 F.2d 1457, 1461 (9th Cir. 1985). Unlike the majority, I would reach the constitutional issue in this case, and I therefore respectfully dissent.

        Reporter’s note: Prior to the publication of the Arkansas Code Annotated 1995 replacement volume, the chapter comprising the Arkansas Architectural Act was codified at Ark. Code Ann. § 17-14-101 et seq. The language in question in the opinion appeared in Ark. Code Ann. § 17-14-203, found in the 1993 pocket-part supplement.


author: Per Curiam.

text:
      ARKANSAS DEPARTMANT of HUMAN SERVICES, et al. v. ARKANSAS HEALTH CARE ASSOCIATION, et al.

    98-1342
    987 S.W.2d 733
    Supreme Court of Arkansas
    Opinion delivered April 22, 1999

      Breck G. Hopkins, for appellants.

      Meeks &Jernigan P.A., by: W. Russell Meeks III, for appellees.
   Per Curiam.

Appellant, Arkansas Department of Human Services, filed a motion to strike in the above-styled case. Appellant has filed the entire record but failed to abstract a supplemental order and declaratory judgement entered by the trial court on September 24, 1998. Appellee referenced the two documents in their supplemental abstract, and appellant now moves this court to strike any reference to the papers, claiming that the trial court was without jurisdiction to enter further orders upon its entry of an order filed June 17, 1998. It appears that there is a question of whether the order entered by circuit court on June 17, 1998, was a final order from which an appeal could be taken, and which would deprive the circuit court of authority to enter the supplemental order and declaratory judgement on September 24, 1998.

In accordance with Ark. R. App. P.—Civ. 6(b), we remand the matter to the trial court for the purpose of settling the record to include all materials needed to address the issue of whether the trial court’s order entered June 17, 1998, was a final order, or if the trial court had retained jurisdiction to later enter the September 24, 1998 order. Upon settling the record, the parties are directed to brief the issue and submit the issue with the case.


author: W. H.“Dub” Arnold, Chief Justice.

text:
    Larica WADE v. ARKANSAS DEPARTMENT OF HUMAN SERVICES
    98-538
    990 S.W.2d 509
    Supreme Court of Arkansas
    Opinion delivered April 29, 1999

      Ben Seay, for appellant.

      Tami Harlan, Office of Chief Counsel, Arkansas Department of Human Services, for appellee.
   W. H.“Dub” Arnold, Chief Justice.

Larica Wade, appellant, is the natural mother of three children. In January of 1995, the Arkansas Department of Human Services (ADHS) filed a petition to have her three children adjudicated dependent-neglected children under Arkansas law. At the hearing held on the petition, appellant’s three children were removed from her. The children have remained outside her care since that date.

On August 26, 1997, ADHS filed a petition for termination of appellant’s parental rights. On September 22, 1997, a hearing was held on the petition. The court granted the petition on that same date. On January 20, 1998, approximately four months after the hearing was held, an order was entered terminating appellant’s parental rights, which stated, in closing, “[i]t is so ordered effective September, 1997, on this 13th day of January, 1998.” It is from this order that appellant now appeals.

Subsequent to appellant filing her abstract and brief, appellee filed a motion to supplement the record in the appellate court to include documents and statements presented to the trial court in the dependency-neglect case concerning appellant and her three children. Appellant contends, in addition to her other arguments on appeal, that this Court should not consider any part of the record from any hearings held in the dependency-neglect case.

Appellant asserts three points on appeal:

(1) The trial court’s decision that the Arkansas Department of Human Services proved its grounds to terminate appellant’s parental rights was clearly erroneous;
(2) The order terminating parental rights should be vacated because it was entered and filed by the court after thirty (30) days from the date of the termination hearing;
(3) The appellate court should not consider any part of the record from any hearings held in the dependency-neglect case.

We disagree with appellant and affirm the trial court for the following reasons.

I. Whether the trials court’s decision that the Arkansas Department of Human Services proved its grounds to terminate appellant’s parental rights was clearly erroneous.

It is well settled that chancery cases are reviewed de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.; AD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986).

Our case law has established that termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Crawford v. Dep’t. of Human Services, 330 Ark. 152, 951 S.W.2d 310 (1997); Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Parental rights, however, will not be enforced to the detriment or destruction of the health and well being of the child. Burdette v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986).

The facts warranting termination of parental rights must be proved by clear and convincing evidence. In reviewing the trial court’s evaluation of the evidence, this Court will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Ark. R. Civ. P. 52(a); Crawford v. Dep’t. of Human Services, 330 Ark. 152, 951 S.W.2d 310 (1997); Anderson v. Douglas, 310 Ark. 633, 637, 839 S.W.2d 196, 198 (1992). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding the allegation sought to be established. Id.; see also Cobbins v. State, 306 Ark. 447, 816 S.W.2d 161 (1991). Furthermore, this Court will defer to the trial court’s evaluation of the credibility of the witnesses. Ark. R. Civ. P. 52(a); Crawford v. Dep’t. of Human Services, supra.

Appellant asserts that because appellee’s petition for termination of parental rights only asserted the ground of failure to rehabilitate the home as its ground for termination of parental rights and the record was insufficient with evidence of that ground, that the trial court’s granting of the petition on a different ground — failure to maintain contact and provide support — amounts to clear error on the trial court’s part. We disagree.

Appellant’s argument fails for two reasons. First, the trial court actually granted the petition on both grounds, and the record was replete with evidence in support of both grounds. The record reflects that ADHS became involved with appellant’s family in June of 1994. At that time, it was discovered that Michael Wade, then six years old, had numerous switch marks on his back and in some places the skin had been broken. These marks were among other, older scars. SCAN, then a contractor for ADHS, began offering services to the family. The children and appellant then resided with Allie Wade, the eighty-nine-year-old mother of appellant.

In October of 1994, ADHS again substantiated a neglect case involving three-year-old Matthew Wade. He was found four blocks from his home in the cold wearing no shoes. His caretakers, the appellant and her mother, were unaware that he was missing. The record is clear that from the moment ADHS and SCAN became involved in the life of appellant, services were offered, appointments were made, and staffmgs were set, yet appellant faded to participate.

A petition to have appellant’s children adjudicated dependent-neglected children under Arkansas law, which resulted in the removal of the children from appellant’s care, was an attempt to force the appellant to become involved in the lives of her children. From the time these children were placed in foster care, in March of 1995, until the time appellant’s parental rights were terminated, in January of 1998, it is clear from the record that reasonable, meaningful efforts were made by the appellee to attempt to rehabilitate appellant’s home; appellee continually offered services to the appellant to encourage and enable her to become a mother to her children, yet she failed to participate. Appellant rarely visited them and offered virtually no support. Verbally, appellant expressed a desire to have her children with her; however,, according to testimony offered before the trial court, her actions (or lack thereof) spoke louder than her words. Again, this Court will defer to the trial court’s evaluation of the credibility of the witnesses. Ark. R. Civ. P. 52(a); Crawford v. Dep’t. of Human Services, supra.

Second, the relevant statute, Ark. Code Ann. § 9-27-341 (Supp. 1995), provides in part:

(b) . . . An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:
(1) That it is in the best interest of the juvenile;
(2) Of one or more of the following grounds:
(A) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months, and, despite a meaningful effort by the Department of Human Services to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent. . . .
(B) The juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent’s means or to maintain meaningful contact with the juvenile. To find willful failure to maintain meaningful contact, it must be shown that the parent was not prevented from visiting or having contact with the juvenile by the juvenile’s custodian or any other person, taking into consideration the distance of the juvenile’s placement from the parent’s home. Material support consists of either financial contributions or food, shelter, clothing, or other necessities where such contribution has been requested by the juvenile’s custodian or ordered by a court of competent jurisdiction.

Ark. Code Ann. § 9-27-341(b)(2) (Supp. 1995) (emphasis added).

Therefore, while appellee may have only alleged grounds under § 9-27-341(b)(2)(A), referring to the rehabilitation of the home, there is a second ground for termination of parental rights under § 9-27-341 (b)(2)(B). Rights may be terminated if the juvenile has lived outside the home of the parent for twelve months and the parent has willfully failed to provide significant material support to his children as ordered by the chancery court and to have meaningful contact with them. See Crawford v. Dep’t. of Human Services, supra.

The trial court found that the appellee had proven its case by clear and convincing evidence under both of the grounds acknowledged by the statute. Still, as the statute only requires that one of any of the enumerated grounds be proven, and the trial court found clear and convincing evidence of the one ground alleged by appellee, appellant was not prejudiced by the court’s riding on the second ground, as the outcome would have been the same if evidence of only one ground had been heard.

Therefore, because clear and convincing evidence existed to support the ground alleged by appellee in its original petition, coupled with the fact that the controlling statute required proof of only one ground, we find no error on the part of the trial court.

II. Whether the order terminating parental rights should be vacated because it was entered and filed by the court after thirty days from the date of the termination hearing.

On August 26, 1997, ADHS filed a petition for termination of appellant’s parental rights. On September 22, 1997, a hearing was held on the petition. The court granted the petition on that same date. On January 20, 1998, approximately four months after the hearing was held, an order was entered terminating appellant’s parental rights, which stated, in closing, “[i]t is so ordered effective September, 1997, on this 13th day of January, 1998.”

Ark. Code Ann. § 9-27-341(d) states as follows:

A written order shall be filed by the court or by a party or party’s counsel as designated by the court within thirty (30) days of the date of the termination hearing or before the next hearing, whichever is sooner.

Appellant asserts that because the written order was not filed until four months after the termination hearing, the written order is null and void and should, therefore, be vacated. Appellant asserts that the January 20, 1998, filing date was untimely and that the trial court had, by that time, lost jurisdiction to enter the order after thirty days had passed from the date of the hearing. We disagree.

Although we acknowledge that Ark. Code Ann. § 9-27-341(d) speaks in mandatory terms, a loss of jurisdiction would not follow because the General Assembly did not provide a sanction for an untimely filing and because there is no evidence that such a result was intended. See, e.g., Daniels v. State, 333 Ark. 620, 970 S.W.2d 278 (1998); Hattison v. State, 324 Ark. 317, 920 S.W.2d 849 (1996); Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981).

Further, the order entered by the trial court was simply a written judgment of what the court had announced in open court or otherwise actually rendered. Therefore, appellant suffered no real prejudice, as the order was entered simply to show that which actually occurred. See, e.g., Busby v. Busby, 39 Ark. App. 108, 840 S.W.2d 195 (1992); O’Dell v. O’Dell, 247 Ark. 635, 447 S.W.2d 330 (1969).

Therefore, we find that the order terminating parental rights should not be vacated.

III. Whether the appellate court should not consider any part of the record from any hearings held in the dependency-neglect case.

Subsequent to appellant filing her abstract and brief, appellee filed a motion to supplement the record in the appellate court to include documents and statements presented to the trial court in the dependency-neglect case concerning appellant and her three children. Appellant contends, in addition to her other arguments on appeal, that this Court should not consider any part of the record from any hearings held in the dependency-neglect case.

First, this Court allowed the record to be supplemented by its order dated October 1, 1998, finding that the material sought by appellee to be supplemented was relevant to the instant appeal in that the proceedings and orders pertaining to the termination of parental rights were in fact a continuation of the original dependency-neglect case. Therefore, this issue has already been decided by this Court.

Further, we find that sufficient evidence existed to affirm the trial court even without the supplemental record. Therefore, finding no error on the part of the trial court and for all of the foregoing reasons, we hereby affirm the trial court’s termination of appellant’s parental rights.

Affirmed.


author: Tom Glaze, Justice.

text:
    Alvin M. ASHLEY v. Kayoko ASHLEY
    98-604
    990 S.W.2d 507
    Supreme Court of Arkansas
    Opinion delivered April 29, 1999

      Bill E. Ross, for appellant.

      Gardner Law Firm, by: Charles J. Gardner, for appellee.
   Tom Glaze, Justice.

This case involves the Uniformed Services Former Spouses Protection Act [10 U.S.C. § 1408 (1982 ed. and Supp. V)] (hereafter USFSPA or Act) as discussed and interpreted by the Supreme Court in Mansell v. Mansell, 490 U.S. 581 (1989). After the USFSPA’s enactment, Alvin M. and Kayoko Ashley were divorced on February 25, 1994. binder the court’s decree, Kayoko was awarded, among other things, $90.00 per month in alimony, and as her share of marital property, one-half of Alvin’s disposable retirement pay he received under the Act as a result of his retirement from the United States Air Force. The chancellor set Kayoka’s one-half share at $428.95, to be paid twice monthly. At the time of the parties’ divorce, Alvin was rated 30% disabled and received veterans’ disability benefits accordingly. Alvin disagreed with the disability rating and appealed, seeking an increase. The veteran’s administration eventually increased Alvin’s rating to 100%. As a result of this new rating, Alvin chose to waive his retirement pay so he could receive full disability benefits. Because Alvin’s waiver reduced his disposable retirement pay to $30.00, the government stopped sending Kayoka the originally calculated one-half amount mandated in the parties’ divorce decree.

Kayoko subsequently filed her complaint in the Mississippi County Chancery Court and requested reinstatement of the $428.25 disposable retirement previously ordered and for any arrearages found due her. Additionally, she asked for a cost of living adjustment (COLA) which she claimed had never been credited to her portion of Alvin’s retirement pay. Alternatively, Kayoko pled that, if such relief was denied, her original alimony award should be increased. At the hearing on Kayoko’s complaint, Alvin argued that the USFSPA and the Mansell decision precluded the court from enforcing the equitable division of his retirement pension, since he had waived those payments in order to receive veterans’ disability payments. Relying on the court of appeals’ decision in Hapney v. Hapney, 37 Ark. App. 100, 824 S.W.2d 408 (1992), the chancellor rejected Alvin’s argument. Accordingly, he reinstated Kayoko’s $428.25 payments, awarded her a judgment of $5,396.65 in arrears in such payments, and found she was entitled to COLA amounts totaling $257.25. Because the chancellor determined Kayoko was entitled to have her payments reinstated, the chancellor did not address her alternate request for an increase in alimony. Instead, the chancellor reduced Kayoko’s monthly alimony payments to $60.00 until Alvin paid in full a debt he was found to owe the United States government. We hold the chancellor erred in enforcing Kayoko’s originally assigned share of Alvin’s disposable retirement pay.

In Mansell, the Court held that the USFSPA does not grant state courts the power to treat, as property divisible upon divorce, military retirement pay that has been waived to receive veterans’ disability benefits. 490 U.S. at 595; see also Murphy v. Murphy, 302 Ark. 157, 158-159, 787 S.W.2d 684, 685, (1990); Womack v. Womack, 307 Ark. 269, 818 S.W.2d 958 (1991). As pointed out by the Mansell court, the USFSPA defines the term “disposable retired or retainer pay” to exclude, inter alia, military retirement pay waived in order to receive veterans’ disability payments. See Mansell, 490 U.S. at 589, footnote 9 (emphasis added); 10 U.S.C. § 1408(a)(4)(B). The Court further spelled out that the Act’s legislative history does not indicate the reason for Congress’ decision to shelter from community property law that portion of military retirement pay waived to receive veterans’ disability payments, but it found the absence of such history is immaterial, considering the precise language of the statute. Id. at 592.

In the present case, the chancellor, in his original February 25, 1994 decree, cited § 1408(a)(4) in determining that Kayoko was entitled to her one-half share of Alvin’s disposable retired pay, which then was $428.25 per pay period. However, as discussed above, under the Act, Kayoko is no longer entitled to the amount earlier awarded because Alvin’s disposable retired pay was reduced when he waived his military retirement pay in order to receive veterans’ disability payments.

Furthermore, we find the Hapney decision of the court of appeals (relied on by the chancellor) to be distinguishable from the instant case. There, the chancery court’s original order awarded the wife an agreed monthly amount of $300.00, which was less than the amount to which she was ordinarily entitled when calculating her husband’s disposable retired pay. The trial court continued the $300.00 amount after the husband’s disability benefits were increased. The court of appeals upheld the chancellor’s holding because the record failed to demonstrate the $300.00 award constituted a division of his veterans’ disability benefits. Hapney, 37 Ark. App. at 103, 824 S.W.2d at 409-410. The Hapney court further stated that, because the parties’ original agreement, as submitted to the chancellor and incorporated into his decree, had not been included in the abstract, it was therefore unable to determine the percentages of the $300.00 award which was based on military retirement benefits, as opposed to other considerations. Id.

In conclusion, having decided that the chancellor’s decision must be reversed pursuant to the USFSPA and Mansell, such decision does not preclude the chancellor from considering on remand Kayoko’s request for an increase in alimony. See Womack, 307 Ark. at 271, 818 S.W.2d at 959; Murphy, 302 Ark. at 159-160, 787 S.W.2d at 685-686; see also Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987) (court found trial court erred in the award of certain property interests, and in reversing, directed the trial court to consider the alimony issue since any adjustment of the property might also affect the trial court’s earlier decision on alimony). Also on remand, the chancellor should determine if Kayoko had received all of her share of retirement benefits and COLA to which she was entitled between the dates of the parties’ divorce decree of February 24, 1994, and October 1, 1995, when Alvin’s waiver of military retirement for disability benefits became effective.

For the above reasons, we reverse and remand.

       In order to prevent double dipping, a military retiree may receive disability benefits only to the extent that he waives a corresponding amount of his military retirement pay. Mansell, 490 U.S. at 585 (citing 38 U.S.C. § 3105).


author: Lavenski R. Smith, Justice.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY et al. v. A & A MASONRY, INC., et al.

    97-1388
    991 S.W.2d 111
    Supreme Court of Arkansas
    Opinion delivered April 29, 1999

      Wright, Lindsey & Jennings, LLP, by: David M. Powell; David A. Grace; and Faegre & Benson, LLP, by: Patrick J. O’Connor, Jr., and James J. Hartnett, IV, for appellants.

      Francis Morris Finley; and Rose Law Firm, by: James H. Druff, for appellee Umphers Construction Company, Inc.

      Jones, Jackson & Moll, PLC, by: Mark A. Moll; and Rose Law Firm, by: James H. Druff, for appellee Northwest Fire Protection, Inc.

      Laser, Wilson Bufford & Watts, P.A., by: Sam Laser and Brian A. Brown, for appellees Ray & Sons Masonry Contractors and Franklin & Son, Inc.

      Matthews, Sanders & Sayes, by: Margaret M. Newton and Gail O. Matthews, for appellee John Smith, Jr.
   Lavenski R. Smith, Justice.

This is a case of first impression. It involves a trial court’s application of a legal concept described by appellees as “jurisdictional unavailability.” Appellants, United States Fidelity & Guaranty Company (“USF&G”) and Northern Insurance Company of New York (“Northern”), contend that this “doctrine” should not bar their indemnification actions against appellees in Arkansas state courts. We agree and reverse.

Crane Construction Company (“Crane”) built eleven WalMart stores and Sam’s Clubs as general contractor for Wal-Mart, Inc., in 1992 and 1993. Crane constructed these stores in several states. After not receiving full payment, Crane sued Wal-Mart in federal district court in Memphis, Tennessee. Crane alleged that Wal-Mart violated federal RICO law by certain of its postconstruction conduct. They also sought damages based on breach of contract. Wal-Mart answered and counterclaimed, alleging defective construction. The federal district court dismissed the RICO claims leaving only the contract actions. The parties chose to continue the action in federal court even though the federal question had ceased. Wal-Mart added appellant USF&G to the suit by third-party complaint. Crane attempted to bring in its subcontractors, appellees herein, but subsequently dismissed them due to the Tennessee court’s lack of personal jurisdiction.

Crane initiated the instant action in the Pulaski County Circuit Court on February 22, 1996, against the appellees. Appellees consist of twelve of Crane’s subcontractors and one of the subcontractor’s bonding companies. Wal-Mart and Crane settled, for the most part, the federal action, with appellants USF&G and Northern agreeing to pay a substantial sum to Wal-Mart. The details of that settlement have not been disclosed. Crane alleged it was entitled to indemnification of all amounts, costs, and fees in the Memphis action, and for breach of contract and negligence. Initial responses filed by the appellees included answers and a number of motions under Rule 12(b) of the Arkansas Rules of Civil Procedure. USF&G and Northern have since been substituted as plaintiffs.

On September 6, 1996, separate appellee, Umphers Construction Company, Inc. (“Umphers”), filed a supplemental motion to dismiss alleging statute of limitations, full payment by Crane, and “jurisdictional unavailability” as bases for the court to dismiss the action under Ark. R. Civ. P. 12(b)(6). Other appellees filed similar motions. The parties filed briefs and affidavits in support of their motions and response. The substituted plaintiffs, appellants, filed an amended complaint on January 7, 1997. Appellees responded with pleadings in the same vein as those to the original complaint. Following a hearing on February 3, 1997, the trial court entered a dismissal and final judgment order on April 25, 1997. In granting appellee’s motion to dismiss, the circuit court framed the issue on which its decision was based as follows:

[W]hether Umphers can be held responsible under the indemnification provision of the subcontract, the performance provisions of the subcontract, and standard principles of subrogation, indemnification and contribution for a settlement and legal fees incurred in an action in which it was legally unavailable because the court lacked personal jurisdiction over it.

The circuit court found the lack of jurisdiction over the subcontractors in the federal court to be dispositive. The court concluded that “[i]t (Umphers) cannot now be required to indemnify plaintiffs for a settlement it could not be, and was not, a part of.” Its decision (1) barred appellant’s negligence claim against Umphers based upon the statute of limitation; (2) dismissed appellant’s indemnification, subrogation, and breach of contract claims because Umphers was legally unavailable in the Memphis action; and (3) granted similar relief to all other appellees who filed for dismissal. Appellant’s principal contention on appeal is that the trial court erred in its use of “legal unavailability” to bar their claims. Appellant is correct.

Standard of Review

Separate appellee, Umphers, filed its supplemental motion to dismiss under Ark. R. Civ. P. 12(b)(6) with matters outside the pleadings appended. Pursuant to Rule 12(b)(6), such a motion to dismiss shall be treated as one for summary judgment and disposed of as provided in Ark. R. Civ. P. 56. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). The standard of review for summary judgment motions is axiomatic. We recently restated the considerations in the case of Wallace v. Broyles, 331 Ark. 58, 66, 961 S.W.2d 712 (1998), quoting Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997): “[I]t is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Pugh v. Griggs, 327 Ark. 577, 824 S.W.2d 387 (1992). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties.”

The crucial issue for this appeal is the circuit court’s decision that, as a matter of law, the subcontractors could not be sued for indemnification in an Arkansas state court where a Tennessee federal court in which they had previously been sued by the indemnitee lacked personal jurisdiction over them. The circuit court used the term “legal unavailability,” whereas the parties’ briefs discuss “jurisdictional unavailability.” The idea is the same using either phrase, and both are equally unavailing. The trial court cites no controlling authority for its decision. It instead cites cases for the general proposition that an indemnitee must prove actual or potential liability to an original plaintiff when seeking recovery from an indemnitor based on an indemnification clause. The trial court then notes that in its cited cases the indemnitor was subject to the jurisdiction of. the court in the underlying action. The court then errs by attempting to logically extend these specific cases to create a general rule that would forbid subsequent suit by an indemnitee where the court in the initial suit lacked personal jurisdiction over the indemnitee. The court’s reasoning and appellee’s arguments in support on appeal are unpersuasive. We are unwilling to adopt “jurisdictional unavailability” as a defense to an action for indemnification. Our precedent clearly indicates that indemnification claims can be brought in actions separate from the action creating the liability. Baldwin Co. v. Ceco, 280 Ark. 519, 659 S.W.2d 941 (1983).

We hold that the Tennessee federal court’s lack of personal jurisdiction over the appellees does not bar their being sued in circuit court on claims of indemnification, subrogation, and breach of contract. Whatever rights USF&G and Northern had or may presently have arise from a contractual relationship, not from any act of the federal court in Tennessee. “Jurisdiction is the power or authority of the court to act.” West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 293, 871 S.W.2d 368 (1994). Lack of jurisdiction may preclude litigation of that relationship in federal court in Tennessee, but the lack of jurisdiction cannot extinguish the contract, the contractual relationship, or the rights and obligations that may arise thereunder. Thus, a lack of jurisdiction means only that a particular trial court may not act. It does not prevent any other court with jurisdiction from subsequently acting.

Statute of Limitations

The trial court also found that appellee Umphers was entitled to dismissal of the negligence claims against it based upon Arkansas’s three-year statute of limitations. We affirm the Court’s decision on this issue with respect to Umphers and Franklin & Son, Inc. However, the Court also granted the same relief to the other defendants who adopted Umphers’s statute-of-limitations argument but, unlike Umphers and Franklin, did not offer proof of its application to their claims. We, therefore, reverse the court’s grant of summary judgment to those appellees who did not offer evidence by affidavit showing their entitlement thereto and remand for further proceedings consistent with this opinion.

Affirmed in part; reversed and remanded in part.

       Ark. Code Ann. § 16-56-105.


text:
    Virginia Sue PRICE v. Charles Raymond PRICE
    98-368
    990 S.W.2d 514
    Supreme Court of Arkansas
    Opinion delivered April 29, 1999

      Arnold, Arnold & Potter, by: Clarke D. Arnold, for appellant.
    No response.
   Per Curiam.

Appellant Virginia Sue Price moves for a rule on the clerk and shows the court the following facts. On June 17, 1997, a divorce decree involving the appellant and her husband, Charles Raymond Price, was signed by the trial court. On August 8, 1997, Charles Raymond Price died. On June 19, 1998, the divorce decree was entered of record, and on December 11, 1998, a notice of appeal was filed by the appellant.

The notice of appeal was clearly not filed within thirty days of the final decree as required by Ark. R. App. P.—Civil 4(a). The appellant, however, cites this court to the case of Childress v. McManus, 282 Ark. 255, 668 S.W.2d 9 (1984), for the proposition that the death of a party nullifies the validity of a subsequent divorce decree. We agree that that is the holding of the Childress case. In Childress, however, we also said: “It is not necessary to appeal from a void order because it never became effective. A void order is subject to collateral attack.” (Citing authority.) Childress, 282 Ark. at 258, 668 S.W.2d at 11.

The motion for rule on the clerk is denied. The appellant’s remedy, as stated in Childress, is to attack the void divorce decree collaterally.


text:
    Kevin WILLIAMS v. STATE of Arkansas
    CR 99-399
    990 S.W.2d 507
    Supreme Court of Arkansas
    Opinion delivered April 28, 1999

      G.B. “Bing” Colvin III, for appellant.
    No response.
   Per Curiam.

Appellant, Kevin Williams, by his attorney, G. B. “Bing” Colvin, III, 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, 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.


text:
    Dennis Dale SUBLETT v. STATE of Arkansas
    CR 97-49
    989 S.W.2d 910
    Supreme Court of Arkansas
    Opinion delivered May 6, 1999

      Kenneth G. Fuchs and Robert W. Bush, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   W. H.“Dub” Arnold, Chief Justice.

Pursuant to Ark. Code Ann. section 5-14-103(a)(1), the State charged appellant, Dennis Sublett, with two counts of rape by forcible compulsion of his daughters, D.S. and A.S. The trials were severed, and the trial involving D.S. proceeded first and is the subject of the instant appeal. Appellant was convicted of the rape of D.S. and sentenced to life imprisonment in the Arkansas Department of Correction. From that conviction comes the instant appeal, challenging the sufficiency of the evidence. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 1-2(a)(2) (1998). We find no merit in appellant’s argument, and we affirm.

I. Standard of review

We note that appellant fails to offer any authority or convincing argument in support of his position that the evidence is insufficient to support his rape conviction. As a general rule, where it is not apparent without further research that the argument is well-taken, we do not consider such arguments on appeal. Matthews v. State, 327 Ark. 70, 74, 938 S.W.2d 545, 547 (1997). However, given that the appeal involves a sentence of life imprisonment, we wall address the merits of appellant’s argument.

When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. See Freeman v. State, 331 Ark. 130, 131-32, 959 S.W.2d 400, 401 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Id. Notably, the evidence may be either direct or circumstantial. See Gillie v. State, 305 Ark. 296, 301, 808 S.W.2d 320, 322 (1991). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Gillie, 305 Ark. at 301, 808 S.W.2d at 322 (citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986)).

II. Sufficiency of the evidence

For his sole point on appeal, appellant argues that the State failed to present sufficient evidence to prove the element of “forcible compulsion” as required by Ark. Code Ann. § 5-14-103 (Repl. 1997). Section 5-14-101(2) defines forcible compulsion as “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” “Physical force” has been defined to mean “any bodily impact, restraint or confinement, or the threat thereof.” Freeman v. State, 331 Ark. 130, 132, 959 S.W.2d 400, 401 (1998) (citing Strawhacker v. State, 304 Ark. 726, 731, 804 S.W.2d 720, 723 (1991)). The test that we have used to determine whether there was physical force is “whether, the act was against the will of the party upon whom the act was committed.” Freeman, 331 Ark. at 133, 959 S.W.2d at 401 (citing Mosley v. State, 323 Ark. 244, 249, 914 S.W.2d 731, 734 (1996)).

In light of D.S.’s own testimony, the State presented sufficient evidence for the jury to conclude that appellant threatened her with death or physical injury and that appellant’s actions were against her will. Specifically, D.S. testified that her father had intercourse with her on a regular basis from the time that she was twelve until she was eighteen years old. She stated that when she was twelve years old, the appellant forced her to have sex with him, and that it was not something that she wanted to do, but that she did it because she was afraid of him. She also reported that appellant had hurt her and other members of her family. In that regard, D.S. described an incident when appellant gathered the six family members in a room, lined up six bullets, and shot himself to prove a point to the family.

Moreover, a victim’s age and relationship to the assailant are key factors in weighing the sufficiency of the evidence to prove forcible compulsion. Caldwell v. State, 319 Ark. 243, 247, 891 S.W.2d 42, 45 (1995) (citing Keifer v. State, 297 Ark. 464, 762 S.W.2d 800 (1989)); Griswold v. State, 290 Ark. 79, 85, 716 S.W.2d 767, 769 (1986). Age is also an important factor in determining whether the victim consented to intercourse out of fear of harm. Griswold, 290 Ark. at 85, 716 S.W.2d at 769. Additionally, when the assailant stands in loco parentis to a victim, the law regarding force is satisfied with less than a showing of the utmost physical resistance of which the victim is capable. Caldwell, 319 Ark. at 247, 891 S.W.2d at 45 (citing Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986)). Here, given that D.S. is appellant’s daughter and that she testified that the intercourse began when she was about twelve, we may conclude that the State presented sufficient evidence to prove rape by forcible compulsion.

Although a rape victim’s testimony need not be corroborated to support a conviction, Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990), the State also presented testimony from D.S.’s younger sister, A.S., and their mother, Marion Sublett. A.S. testified that appellant began having intercourse with her when she was twelve or thirteen years old and continued until she was eighteen years old. The State also introduced physical evidence relating to A.S.’s claims that she had intercourse with the appellant.

A.S. also reported that appellant hit her mother and brothers and threatened to kill her and to hurt other family members. She explained that she believed appellant’s threats because he had shot himself once. Like D.S., she described the scene when appellant gathered the family, fined up six bullets, loaded a gun, pointed it at his head, and then shot himself in his side. According to A.S., appellant told the family that they “weren’t listening to him and paying attention to him.” A.S. stated that she believed that if he could do that, he could also shoot someone else. She also testified that she was afraid of the appellant. After telling her aunt about what was happening between her and her father, her aunt took her to the Department of Human Services.

Marion Sublett, appellant’s wife, also testified for the State. Following a discussion with the mother of one of A.S.’s friends, Marion learned that A.S. had told her friend that her father was having intercourse with his daughters. At that time, Marion explains that she advised the girls not to discuss the matter with appellant because she was afraid that he would hurt them. Like her daughters, Marion also testified about the incident involving the six bullets and appellant’s shooting himself to make a point. She also related that when she came home one day, she saw through a window her daughter A.S., lying on a bed with her pants down, her legs raised, and appellant undoing his pants. She questioned appellant, but he responded that he was not doing anything. Significantly, Marion stated that appellant admitted to having intercourse with A.S. for about three years but denied that he had done anything with D.S.

We have stated that the trier of fact is free to believe all or part of a witness’s testimony. Freeman, 331 Ark. at 134, 959 S.W.2d at 402 (citing Mosley v. State, 323 Ark. at 250, 914 S.W.2d at 734)). Here, the jury apparently chose to believe the testimony of the victim, her sister, and her mother, and chose to disbelieve the appellant’s alleged denial to his wife. In light of the foregoing, we conclude that the State presented sufficient evidence to prove the element of forcible compulsion. Accordingly, viewed in the light most favorable to the State, there is substantial evidence to support appellant’s conviction.

III Rule 4-3(h)

In accordance with Ark. Sup. Ct. R. 4-3(h) (1998), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal, and no reversible errors were found. We affirm appellant’s judgment of conviction.