author: Frank Holt, Justice.

text:
    Timothy Paul DARVILLE v. STATE of Arkansas
    CR 80-98
    609 S.W. 2d 50
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      E. Alvin Schay, State Appellate Defender, by: Deborah R. Sailings, Deputy State Appellate Defender, for appellant.

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

The sole issue on appeal is the sufficiency of the evidence to support appellant’s conviction for manslaughter resulting in a 7 year sentence. The appellant argues that the evidence of his guilt is circumstantial in nature and insubstantial because it is impossible to determine whether the victim’s death from a gunshot wound was the result of his reckless conduct or whether it was an accident. Ark. Star. Ann. § 41-1504 (1) (c) (Repl. 1977) defines manslaughter in pertinent part:

A person commits manslaughter if ... he recklessly causes the death of another person.

Ark. Stat. Ann. § 41-203 (3) (Repl. 1977) defines recklessly:

A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

We have often stated the rules in regard to circumstantial evidence that where circumstantial evidence alone is relied upon, it must exclude every other reasonable hypothesis but the guilt of the accused. Hurst v. State, 251 Ark. 40, 470 S.W. 2d 815 (1971); Ayers v. State, 247 Ark. 174, 444 S.W. 2d 695 (1969). The question whether circumstantial evidence excludes every reasonable hypothesis other than the guilt of the accused is usually one for the jury. Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733 (1974); Smith v. State, 264 Ark. 874, 575 S.W. 2d 677 (1979). The jury is permitted to draw any reasonable inference from circumstantial evidence to the same extent it can from direct evidence. It is only when circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter of law and the test is whether there was substantial evidence to support the verdict when viewing the evidence in the light most favorable to the state. Upton v. State, 257 Ark. 424, 516 S.W. 2d 904 (1974); and Abbott v. State, supra.

Appellant and Gary Fuller, a friend, went to the home of the victim, who had a son by the appellant. Fuller testified that while he was talking to a woman on the phone, an argument broke out between the victim and the appellant; they began to “tussle” near a couch, “like a wrestling match;” he heard a sound like a blow from a fist; a gun was on the coffee table when they came in the house; appellant and the victim both were holding the gun while they were “tussling;” when he heard a shot, he turned around and saw the victim lying on the floor, the gun beside her; appellant became hysterical, running around the room; he dressed his infant son, wrapped the victim in a blanket, and with this witness’ assistance, drove the victim to the hospital. The woman, who was talking on the phone with Fuller, testified that during their telephone conversation, she heard voices in the background and a woman’s voice saying, “Don’t hit me anymore”, a man calling her foul names, the sound of glass breaking, and a baby crying. The victim died during surgery as a result of a “contact wound” from a gunshot; i.e., one that occurs when there is contact of the entire muzzle of the gun with the skin. Besides the fatal wound, there was a mild superficial contusion of the inner surface of the upper lip. The blood alcohol test was negative.

The state also introduced evidence that when appellant returned from the hospital to the scene with a detective, the gun was not there and was never found. On the way home, appellant remarked he hoped the gun had not been stolen during his absence, which appears to have been 1 to 2 hours. Once inside the locked house, appellant stated the television was also missing. The house was in disarray — broken glass scattered about and the arm of the couch was broken. The officers found a bullet hole in the couch and a pawn ticket for a television set dated a few days prior.

The appellant’s version of the incident was that he went by the victim’s house with Fuller to see the victim and their 17 month old son. He had loaned her a gun to protect herself; she had it out when they arrived; when he went into the bathroom, he warned her to put the gun away because “somebody’s going to get hurt”; a few seconds later, as he was coming from the bathroom, he heard the gun discharge; he saw the weapon on the floor; the victim was slumped on the couch, and she fell to the floor; the disarray of the room was a result of his panic in trying to get her to the hospital; he admitted that the previous day the victim had sworn out a warrant against him for stealing her car; however, she told him the night of the shooting she had withdrawn it. He denied there was any ill feeling between them and neither had he subjected her to any physical violence.

The evidence is not based alone on circumstantial evidence. In fact all of the evidence is of a direct nature except as to whether the fatal gunshot resulted from a struggle over the gun or, according to appellant’s theory, the victim accidentally shot herself. Appellant went to the victim’s home the day after she had sworn out a warrant for his arrest. There was testimony of a tussle, his calling her foul names, a blow being struck, her saying “don’t hit me anymore”, and a contusion being found on her inner lip. The house showed signs of a struggle. The gun was never found and appellant’s theory, that it was stolen along with a television during his short absence from the scene, was discredited by an officer who found the pawn receipt for the television. Appellant’s version and the state’s version of the alleged offense were in conflict, which presented a fact issue for the jury to resolve. We are of the view that the jury could reasonably infer from the direct and circumstantial evidence, when viewed most favorably to the state, that the state’s version of appellant’s guilt sufficiently excluded any other reasonable hypothesis and is amply substantial.

Affirmed.

Purtle, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Gary L. AVERY v. STATE of Arkansas
    CR 80-195
    609 S.W. 2d 52
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      E. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy State Appellate Defender, for appellant.

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

Appellant was convicted of second degree murder for the death of his 80 year old father and sentenced to 20 years imprisonment. He interposed the defense of not guilty by reason of insanity.

Appellant first asserts that the trial court erred in excluding the testimony of Dr. Charles Avery, appellant’s first cousin, as to appellant’s mental condition. Dr. Avery, a general practitioner, was presented as a nonexpert witness. See Ark. Stat. Ann. § 28-1001, Rule 701 (Repl. 1979). Appellant’s counsel asked him what his opinion was of the appellant’s mental condition on different occasions. To each question the state objected and the objections were sustained by the trial court. Appellant contends it was reversible error to exclude this testimony because it was relevant evidence and an important link in the chain of evidence establishing his insanity defense since Dr. Avery had contacts with appellant at crucial times when the other experts called to testify did not.

It is well established that a nonexpert witness may testify as to the sanity of a defendant if a proper foundation is laid; however, the trial court should exclude the opinion testimony of a nonexpert witness whose association with the accused and opportunities for observation for a sufficient length of time are not adequately shown. Little v. State, 261 Ark. 859, 554 S.W. 2d 312 (1977); Raprich v. State, 192 Ark. 1130, 97 S.W. 2d 429 (1936); and Davis v. State, 182 Ark. 123, 30 S.W. 2d 830 (1930). The trial judge will be reversed only if he has abused his discretion in passing upon the preliminary question of competency. Raprich v. State, supra. See also Rule 701, supra.

Here, Dr. Avery observed the appellant one time, the night of November 7, 1978, when appellant was committed to the state hospital. The next time he saw appellant was a year later or on the date of the alleged offense when he was examining appellant’s father in the hospital. While appellant was in jail, he talked to him by phone and prescribed medication for his nerves. Dr. Avery did not consider the telephone call or the brief contact at the hospital to be examinations. We cannot say that the trial court abused its discretion in excluding the opinion of the nonexpert witness.

The appellant also questions the sufficiency of the evidence. He argued that the state failed to prove the elements of second degree murder. Ark. Stat. Ann. § 41-1503 (Repl. 1977). He insists that his acts did not constitute murder but a bizarre and irrational act on the part of an emotionally unstable person. In essence, appellant is rearguing his insanity defense, urging that if he killed his father, he did not do so with the degree of rationality inherent in the term “purposeful” or “knowing” conduct, citing Ark. Stat. Ann. § 41-203 (Repl. 1977). Appellant recognizes that this court, upon reviewing the evidence as to a defense of insanity, will not attempt to determine where the preponderance of the evidence lies, but will affirm the judgment if there is substantial evidence to support the verdict. Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979).

Here, appellant, 36 years old, was living with his elderly parents. His mother testified that upon arriving home in the early morning hours, about 3 a.m., December 23, 1979, appellant began arguing with them about not having had a door repaired. The appellant began beating his father with his fists, then hit his mother over the head with a mop handle. He then pulled the mattress on top of his father and jumped up and down on it. He tore his father’s underwear off and again jumped on the mattress. His mother interceded and shortly after her husband “fell over to one side.” Appellant them attempted to revive his father with mouth-to-mouth resuscitation, but he was pronounced dead on arrival at the hospital. The medical evidence was that the deceased had suffered multiple bruises and contusions of the chest and hands and a brain contusion and hemorrhage. Cause of death was asphyxia due to compression of the chest and obstruction of the respiratory passages. There was other testimony that appellant had physically abused his parents for about two months. Appellant testified his father had fallen, pulling the mattress off the bed onto himself, and appellant accidently stepped on it while trying to remove it from his father.

Appellant’s estranged wife, his father-in-law, mother-in-law, and his mother testified to appellant’s strange and aberrant behavior on different occasions expressing the opinion there was something wrong with him. A psychiatrist testified that he diagnosed appellant as suffering from paranoia schizophrenia. Appellant testified that sometimes he did not know the difference between right and wrong. Other than this testimony, there was no testimony that appellant lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct, the elements of legal insanity. Ark. Stat. Ann. § 41-601 (Repl. 1977). A clinical psychologist called by appellant testified he suspected appellant was a latent schizophrenic, that he was highly disturbed and potentially dangerous, but this witness had not made a determination of legal insanity because he had not been consulted for that. A state hospital psychiatrist considered appellant to be without psychosis and to possess the capacity to conform his actions to the requirements of the law and to have an adequate appreciation of the criminality of his conduct at the time he examined appellant. He agreed appellant needed treatment for a personality disorder.

The issue of insanity and culpability was a fact question for the jury to resolve. There is amply substantial evidence to uphold the jury’s verdict that appellant knowingly caused his father’s death under circumstances manifesting extreme indifference to the value of human life.

Affirmed.

Purtle, J., not participating.


author: Darrell Hickman, Justice. George Rose Smith, Justice,

text:
    Gary E. JOHNSON et al v. FEDERAL NATIONAL MORTGAGE ASSOCIATION et al
    80-153
    609 S.W. 2d 60
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980
    Appellants, pro se.

      Spears, Sloan & Johnson and Wright, Lindsey & Jennings, for appellees.
   Darrell Hickman, Justice.

This is an appeal from the Chancery Court of Craighead County and involves the issue of usury. The case presents no unusual problems because a routine FHA loan is involved. The chancellor found that all of the loan closing charges were legitimate and that the interest charged did not exceed 10%. We agree with this judgment and affirm the decree.

Gary Johnson purchased a house in 1974 from George and Marie Baldwin. Originally the parties agreed that the sale price would be $43,500.00. For some reason, apparently because Johnson could not get a conventional loan, a new offer and acceptance was signed reflecting a sales price of $40,000.00. It was agreed that the sale would be secured by an FHA mortgage. Boyle Mortgage Company made a $35,-500.00 loan to Johnson, and the Baldwins, who were the sellers, paid a 7% discount to Boyle Mortgage Company. Boyle later sold the mortgage to Federal National Mortgage Association, the appellee. Johnson’s main argument is that the 7% discount, which amounted to over $2,000.00, made his 8-%% loan usurious. In addition, he alleges that virtually all the charges made by Boyle should have been considered interest, increasing the already usurious interest charge.

In no way is this situation similar to that in Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W. 2d 973 (1952), where we issued a caveat regarding discounts. In this case the sellers did not increase the sales price to accommodate the discount points; it was purely an arms-length transaction.

Furthermore, the sellers paid the discount points. The additional amount was, therefore, not interest.

There was no evidence at all that any of the other charges made by Boyle Mortgage Company, which the chancellor found legitimate, could be considered a cloak for usury. The fees included charges for photographs, appraisals, title insurance, credit reports, abstract and attorney fees. In every instance the evidence was that the money charged for these services was paid to a third party and was legitimate.

Boyle Mortgage Company did collect interest that was due on the note before the first payment would be due, which is a standard practice. Also, Boyle Mortgage Company did collect a one percent origination fee. The court considered both charges interest but this did not affect the legality of the loan. The burden of proof is upon the one asserting the defense of usury and he must prove it by clear and convincing evidence. Moore, d/b/a Pulpwood Suppliers, Inc. v. Owens, 268 Ark. 324, 597 S.W. 2d 65 (1980). Not only did Johnson fail to prove usury, but the evidence is overwhelmingly to the contrary.

Affirmed.

George Rose Smith, J., concurring.

Purtle, J., not participating.

George Rose Smith, Justice,

concurring. I agree that the “discount points,” amounting to $2,130, did not constitute “interest,” because that amount was paid by the sellers to the lender at a time when the purchaser as yet owed nothing. The discount points were therefore a deduction from principal, like the 1% origination fee. If, however, the majority imply that the discount points are not even to be considered in testing the transaction for usury, then I doubt if the lender itself seriously makes that contention.

What happened is essentially undisputed. The buyers and sellers first signed an offer-and-acceptance form reciting a purchase of $43,500, with a provision that the sellers agreed to pay a 7% discount point on the loan value of the land. It turned out that the loan value was not sufficient to enable the buyers to obtain the necessary loan with the discount point and with the agreed down payment of $4,500. Consequently, 78 days later the parties signed an identical substituted offer and acceptance in which the purchase price was reduced to $40,000, with the same 7% discount point on the loan value and the same $4,500 down payment. In consummating the loan the lender provided the buyers with a Truth-In-Lending disclosure statement reciting the amount of the loan and the prepaid finance charges as follows:

Amount of Loan $35,500.00
Prepaid Finance Charge Loan fee, discount of similar
charges 2,130.00
1% origination fee 355.00
Photos and schedule 8.50
Interest adjustment 129.45
Total prepaid finance charge 2,622,95
Amount financed 32,877.05

Thus the lender admitted in the disclosure statement that the discount point of $2,130 was a prepaid finance charge to be deducted from the amount of the loan. No other conclusion is really possible, because all this was done by prearrangement. The net result is exactly the same as if on the closing date the buyers, the sellers, and the lender had all sat down together to close the transaction. The lender would then have advanced the net loan, including the $2,130 discount, to the buyers; the buyers would have handed the money to the sellers; and the sellers would have paid the discount of $2,130 back to the lender. The testimony does not show that the $2,130 was actually passed from hand to hand, but the result is the same either way, because the discount was a paper transaction understood and agreed to by all concerned.

Even so, the loan was not usurious. The payments upon a loan of $32,877.05, payable at 10% interest in 360 monthly installments, would be $288.48 a month. Lake’s Monthly Installment and Interest Tables, p. 448 (6th ed., 1970). Here the contract payments, as set forth in the disclosure statement, in the promissory note to the lender, and in the mortgage, were only $279-39 a month. Hence the interest rate was less than 10% per annum and not usurious under Arkansas law.


author: Darrell Hickman, Justice.

text:
    William J. DUNCAN v. Roger M. FOSTER & UNITED STATES FIRE INSURANCE COMPANY
    80-259
    609 S.W. 2d 62
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      Richard J. Orintas, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, for appellees.
   Darrell Hickman, Justice.

This is an appeal of a personal injury lawsuit from Pulaski County Circuit Court. William J. Duncan sued Roger M. Foster and United States Fire Insurance Company for injuries which Duncan suffered as a result of an automobile accident July 1, 1977. The accident occurred on Geyer Springs Road in Little Rock, Arkansas. This case was tried before the trial court sitting without a jury. At the time of the accident, Foster was an employee of the State of Arkansas which is the reason that United States Fire Insurance Company is a joined defendant. After hearing the evidence, the court entered specific findings of monetary damages of $20,000.00. The damages were reduced by 30% when the court found that Foster was 70% at fault and Duncan was 30%.

On appeal five arguments are raised. All arguments concern the court’s discretion and the weight of the evidence. On appeal of such a case, this court looks to see whether the findings were clearly erroneous. Rules of Civil Procedure, Rule 52. After reviewing the record in this case we cannot say that the trial court was clearly erroneous in any of its findings. We affirm the judgment.

First, it is argued that the court should have found damages because Duncan had to hire an employee in his business. Duncan was in the business of cutting and removing trees. He began operating his own company in March of 1977, and he testified as to his gross and net income in 1977 and his gross and net income for 1978. The percentage between gross and net income for those years was about the same. However, in 1978 his net income increased by $14,-000.00. He offered no evidence of what his past earnings were. He said that the employee cost him $12,900.00 from July, 1977, until, March, 1979. The court was unconvinced that the employee was necessary. It was not clear whether the addition of the employee was related to the injury, or whether Duncan would have employed the extra help anyway. Duncan had suffered a knee injury which bothered him before the accident in question. In fact, he had complained that he was having difficulty climbing trees and this was an integral part of his job. Duncan conceded that age made the job more difficult. There was some medical testimony that Duncan could have, in fact, perhaps done more after the accident than he did. In view of this evidence, we cannot say the trial court was clearly wrong.

The second argument is that the court was wrong in apportioning the negligence. Duncan was proceeding south on Geyer Springs Road which has four lanes of traffic and Foster cut across in front of him. The trial court observed in its detailed findings, “Mr. Duncan had the right of way but the mere fact you have the right of way on a street or highway doesn’t give you the right to just be blind to everything that is going on around you.” He indicated that Mr. Duncan may not have been keeping a proper lookout. Furthermore, there was a question of speed. Certainly we could not substitute our judgment for that of the trial court in view of the testimony we could not say the court was clearly wrong.

The third argument is that the court should have compensated Duncan for loss of earning capacity for future income. This would have required speculation on the part of the court. Duncan’s orthopedic surgeon testified that some people in Duncan’s position could work and some could not. It was a question of tolerance of pain. There was no evidence at all that Duncan’s earning capacity would be diminished. The only evidence offered was the amount of income and expenses for 1977 and 1978; those figures showed an increase not decrease in earnings. Consequently, we cannot say the trial court was clearly wrong.

The fourth argument is that the court did not compensate Duncan for past, present, and future pain and suffering. The court made a finding that pain and suffering would be $7,500.00 of the $20,000.00 award. The court observed that there was evidence of a pre-existing degenerative disc and that Mr. Duncan obviously had a mental problem in relation to the accident. Furthermore, there was the question of a previous knee injury. We cannot say the award was clearly wrong.

Finally, Duncan argues that there was no award for future medical expenses. The orthopedic surgeon was convinced that part of the problem was mental, which is not unusual in such cases. In fact, Duncan sought the services of a psychologist in connection with his recovery. The orthopedic surgeon flatly testified that he could not determine the amount of medical care and expense that Duncan would have to incur in the future. An award for damages cannot be made on the basis of speculation. Christmas v. Raley, 260 Ark. 150, 539 S.W. 2d 405 (1976). Consequently, this argument has no merit.

Affirmed.

Purtle, J., not participating.


text:
    Arnold Lee PERKINS v. STATE of Arkansas
    CR 80-197
    609 S.W. 2d 59
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

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

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Arnold Lee Perkins was convicted in Pope County Circuit Court of rape and on appeal raises only one argument.

The argument is made that the trial court unduly limited Perkins’ counsel from inquiring of prospective jurors concerning their understanding of the State’s burden of proof. It may be that the court was wrong in observing that a prospective juror could not be questioned concerning the juror’s understanding of the question of reasonable doubt. The court remarked that the question should be limited to whether the prospective juror would follow the law. Fauna v. State, 265 Ark. 934, 582 S.W. 2d 18 (1979); Griffin v. State, 239 Ark. 431, 389 S.W. 2d 900 (1965).

The difficulty we have with appellant’s argument is that there was no objection or protest at all made to the trial court’s remarks and, consequently, we cannot deal with it on appeal. Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977); Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975); Nash v. State, 248 Ark. 323, 451 S.W. 2d 869 (1970).

Affirmed.

Purtle, J., not participating.


author: John F. Stroud, Justice. John A. Fogleman, Chief Justice,

text:
    CUMMINGS, INC. v. Conrad BEARDSLEY and Lillemore BEARDSLEY, d/b/a CHECK INN and CHECK INN
    80-132
    609 S.W. 2d 66
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      Barber. McCaskill, Amsler. Jones & Hale, by: Guy AmslerJr., for appellant.

      Tompkins, McKenzie, McRae & Vasser, for appellees.
   John F. Stroud, Justice.

This is a suit filed in chancery court to foreclose the lien securing the balance of the purchase price and installation charge for two large illimunated motel and restaurant signs. Appellees filed a Motion for Summary Judgment which was granted by the trial court. We affirm the Chancellor as we agree that he properly granted the motion resulting in a dismissal of appellant’s complaint.

In 1973, appellant contracted with Erect-O-Therm Structures, Inc., to fabricate and install two large signs on certain premises owned by Erect-O-Therm in Prescott, Arkansas. The signs were to advertise the location of the Stockholm Restaurant and Check Inn Motel. To secure the unpaid balance of the purchase price, Erect-O-Therm granted appellant a security interest in the signs by the execution of a security agreement describing them. A financing statement was filed with the Secretary of State of Arkansas in 1974. The Security Agreement between appellant and Erect-O-Therm also provided that the signs were not to be so affixed or related to realty as to become a part of the realty. The larger of the two signs was hung some 80 feet from the ground on steel poles anchored in a concrete foundation four feet deep by 16 feet wide by 20 feet long. The smaller sign is supported by steel poles which rise 12 feet from their concrete foundation.

Subsequently, Erect-O-Therm experienced financial difficulties and apparently lost the motel and restaurant property, including the two signs, to Union Planters Bank of Memphis by virtue of the bank’s foreclosure of a mortgage on that realty. Appellees Conrad and Lillemore Beardsley then acquired the property from Union Planters. On January 31, 1979, appellant brought this foreclosure suit against appellees for the unpaid balance of the purchase price in the amount of $20,355.35, plus 10% of that amount as attorney’s fees, possession of the signs and a deficiency judgment against appellees for any deficit remaining after the proceeds of a resale of the signs are applied to the indebtedness. Appellees denied the material allegations of appellant’s complaint by specifically alleging that they had not purchased the signs from appellant nor entered into any agreement with appellant, that they had no knowledge of any indebtedness for the signs nor had they assumed any such debt, and that the financing statement was filed in the wrong place. Appellees also filed a third party complaint against Union Planters, not involved in this appeal, where they allege that they should have judgment over against the bank for . any damages they suffer in this suit inasmuch as the bank represented to them that the property was free of liens and encumbrances. Some nine months thereafter, appellees filed a motion for summary judgment which was submitted on the pleadings, deposition of an officer of the appellant company, deposition of appellee Conrad Beardsley, and briefs. From a granting of the motion appellants bring this appeal, urging that the court erred in granting the motion for summary judgment.

It is well-settled that summary judgment should be granted only when a review of the pleadings, depositions and other filings reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56, Arkansas Rules of Civil Procedure. In the present case, in its order of January 24, 1980, the trial court found as follows:

1. The Defendants, Conrad Beardsley and Lillemore Beardsley, did not purchase the signs and related property referred to in the complaint from the Plaintiff, and there is no genuine issue as to this fact.
2. The Defendants, Conrad Beardsley and Lillemore Beardsley, are not personally liable to the plaintiff under the security agreement referred to in the complaint since these Defendants were not a party thereto and have not assumed the indebtedness referred to in said security agreement, and there is no genuine issue as to this fact.
3. As between the Plaintiff and Erect-O-Therm Structures, Inc., those parties agreed that the signs in question were not, and would not become fixtures, and so as between them and the signs are not fixtures, but as between the Plaintiff and Defendants, the signs, which include the supporting pipes, are fixtures. The Defendants were entitled to rely on the filings in the Nevada County Circuit Clerk’s office at the time they purchased property on which the signs are located on September 28, 1976. Ark. Stat. Ann. § 85-9-401 (addendum 1961) is the applicable statutory section since the filings involved in this case were made prior to the effective date of the 1973 amendment to Article 9 of the Uniform Commercial Code, and thereunder the proper place to file a security instrument in order to perfect securing interest was in the office where a mortgage on the real estate concerned would be filed or recorded. The Plaintiff filed its financing statement with the Secretary of State and not in the office of the Circuit Clerk of Nevada County, Arkansas, being the County where the real estate is located, and thus did not properly perfect its security interest in the signs as between it and the Defendants.
4. There are no genuine issues as to any material fact as between the Plaintiff and the Defendants, Conrad Beardsley and Lillemore Beardsley, d/d/a Check Inn and Check Inn; consequently, these Defendants are entitled to a judgment as a matter of law.

As to the trial court’s first and second rulings, we agree there clearly is no genuine issue as to those matters. The copy of the Security Agreement attached to appellant’s complaint reflects that the signs were purchased by Erect-O-Therm, not appellees, and that appellees were not a party to the agreement. There is nothing in the record to indicate, not even as an allegation, that appellees knew of or assumed the indebtedness when they purchased the motel and restaurant. The third ruling of the trial court, pertaining to the characterization of the signs as fixtures, is the only holding which appellant disputes. The trial court ruled that as between appellant and Erect-O-Therm the signs were not fixtures because of the provision in the security agreement which stated the signs would not be considered part of the realty. However, the trial court further held that, inasmuch as it was undisputed that appellees were not parties to the security agreement and were without knowledge of the aforementioned provision, the signs were fixtures as between appellant and appellees and there is no genuine issue as to that fact. These large signs anchored deep in concrete were so clearly fixtures, appellees had the right to rely on the records in the office of the Circuit Clerk of Nevada County, where filing covering fixtures are to be made, to determine if a lien was in existence at the time of their purchase. A good faith filing made in the wrong place (in this case the office of the Secretary of State) was not constructive notice to appellees as it is notice only to “any person who has knowledge of the contents of such financing statement.” Ark. Stat. Ann. § 85-9-401 (2) (addendum 1961).

While is is true that upon motion for summary judgment the trial court should review the record in the light most favorable to the party resisting the motion and resolve any doubts or inferences against the movant, where the movant makes a prima facie showing of entitlement to summary judgment, the respondent must discard the shielding cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact. Hughes Western World, Inc. v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W. 2d 826 (1980); Coffelt v. Ark. Power & Light Co., 248 Ark. 313, 451 S.W. 2d 881 (1970). Here, appellant made the bare allegation that there was a genuine issue of fact as to whether the signs were fixtures but offered only the Security Agreement as proof of that contention. This did not meet appellant’s burden of going forward with the proof. As noted previously, it was undisputed in the record that appellees were not in any way involved with the purchase of the signs from appellant; that they had not assumed the indebtedness referred to in the Security Agreement; that they had no knowledge of the agreement between appellant and Erect-O-Therm; and that appellant had not filed the financing statement in the Nevada County Circuit Clerk’s office prior to appellees’ purchase. As appellant failed to file the financing statement in Nevada County, as the Security Agreement was not determinative of the rights of obligations of appellees, and as the Security Agreement was the only proof offered by appellant to support his contention that summary judgment should not lie, we cannot say that there was a genuine issue as to any material fact or that the trial court erred in granting appellees’ Motion for Summary Judgment.

Affirmed.

Purtle, J., not participating.

Fogieman, C.J., dissents.

John A. Fogleman, Chief Justice,

dissenting. I respectfully dissent. If this case had been submitted to the chancery court for a fact-finding decision on a record stipulating exactly what was disclosed in connection with the motion for summary judgment or on exactly the same evidence submitted at trial, I would be unable to say that the finding of the chancellor was clearly against the preponderance of the evidence. I strongly feel, however, that the court has declared that the signs in question were fixtures as a matter of law. The agreement of the purchaser that they were not to be considered as fixtures was, standing alone, enough to create an issue of fact. It is clear that the party who installed the signs had no intention that they become permanent accessions to the freehold. The appropriate test in this state was set out in Choate v. Kimball, 56 Ark. 55, 19 S.W. 108. We said:

*** The rule for the determination of the question varies according to the relation of the parties between whom it arises, and it is less liberal in permitting a removal, as between mortgagor and mortgagee, than as between landlord and tenant. The term “fixtures” has reference to articles which in and of themselves, and irrespective of annexation to land, are of a chattel nature, but by reason of such annexation have become a part of the land. The point of difficulty arises in determining when there has been such annexation of chattels as to make them a part of the land or irremovable fixtures. It is said that the true criterion, established by the authorities, consists in a united application of several tests, as follows: “(1) Real or constructive annexation of the article in question to the realty. (2) Appropriation of adaptation to the use or purpose of that part of the realty with which it is connected. (3) The intention of the party making the annexation to make the article as permanent accession to the freehold; this intention being inferred from the nature of the article affixed, the relation and situation of the parties making the annexation, and the policy of the law in relation thereto, the structure and mode of the annexation, and the purpose and use for which the annexation has been made.” Mr. Ewell says that, “of these three tests, the clear tendency of modern authority seems to be to give preeminence to the question of intention to make the articles a permanent accession to the freehold, and the others seem to derive their chief value as evidence of such intention.”

A summary judgment is improper if any genuine fact issue exists. Hughes Western World, Inc. v. Westmoor Manufacturing Co., 269 Ark. 300, 601 S.W. 2d 826; Wells v. Heath, 269 Ark. 473, 602 S.W. 2d 665; MBPXL Corp. v. First National Bank, 266 Ark. 195, 583 S.W. 2d 18; BWH Inc. v. Metrpolitan National Bank, 261 Ark. 182, 590 S.W. 2d 247. To make its determination the court must look at all the pleadings, depositions, answers to interrogatories, affidavits filed and admissions. Purser v. Corpus Christi State National Bank, 258 Ark. 54, 522 S.W. 2d 187. All doubts and inferences must be resolved against the moving party. Russ v. Life Insurance Co., 264 Ark. 783, 574 S.W. 2d 253.

I submit that when the Choate test is properly applied and all doubts and inferences are tested against appellees, the parties moving for summary judgment, it cannot be said that there was no genuine issue of material fact. Granting and affirming this summary judgment is an abortive application of the summary judgment rules and a troublesome precedent.


author: John F. Stroud, Justice.

text:
    DES ARC BAYOU WATERSHED IMPROVEMENT DISTRICT v. Richard M. FINCH
    80-240
    609 S.W. 2d 70
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      Lightle, Beebe & Raney, for appellant.

      Boyett & Morgan, by: Comer Boyett, Jr., and Rose, Nash, Williamson, Carroll, Clay & Giroir, P.A., by: W. Dane Clay, for appellee.
   John F. Stroud, Justice.

The issue in this case is whether the landowner may recover attorneys’ fees, court costs and other expenses incurred by him in the defense of a condemnation action, when the condemnor elects to abandon the condemnation after the jury has determined damages. We esentially agree with the landowner that such a recovery is possible; however, there must be a finding of lack of good faith in such a situation and because the trial court made no such finding, the matter is remanded for further proceedings.

The Des Arc Bayou Watershed Improvement District was formally established in 1966 for the purpose of constructing and operating a flood control project on Des Arc Bayou in White County. The District was later persuaded by the Soil Conservation Service to expand the project to include construction of a lake for recreational purposes, larger than the reservoir originally planned. While the land of Richard Finch would have been unaffected by the original flood control design, the expansion of the project for the recreational lake brought 57 acres of Finch’s land within the boundaries of the area to be affected by the resultant flooding. The District then determined it was “necessary” to condemn a floodage easement upon those 57 acres, and the condemnation suit was filed. The White County Circuit Court appointed three appraisers as required by Ark. Stat. Ann. § 35-1102 (Repl. 1962) to assess the damages which would be caused to Finch’s land by the project, and they filed their written report that there would be no damage to the land. After Finch filed his exception to the appraisers’ report, a jury was impaneled by the Circuit Court to decide the question of damage to his land. The jury found that just compensation for the taking of the floodage easement was $30,000.

The District then decided it could not afford to pay the amount of the judgment, and filed in the same cause a Petition to Abandon Comdemnation of Floodage Easement. Finch responded to that petition by seeking recovery of his expenses, arguing that the District should be required to pay all expenses incurred by him in the defense of his property interests, including attorneys’ fees and court costs. The trial court agreed and, on October 23, 1979, judgment was entered in favor of Finch for his expenses in the amount of $10,682.23. The District filed its notice of appeal, but before the appeal was carried out the trial court, on March 21, 1980, set aside the judgment of October 23 and dismissed Finch’s petition for costs and attorneys’ fees. The appeals from both judgments have been combined and both parties have appealed, the District contending that the trial court erred in the entry of its judgment on October 23, 1979, while Finch asserts that the trial court erred in setting aside the October 23 judgment. He urges that the court was without jurisdiction to set aside the prior judgment as more than 90 days had elapsed and no grounds existed, and he also urges that the court was wrong in its determination that it was precluded from granting him a judgment for his attorneys’ fees. The style of the case is confusing as it shows the District to be the appellant (which it was from the judgment of October 23), while the true appellant (from the second order of the court) is Finch.

The District submits that the statutes regulating the organization and operation of levee and drainage districts Ark. Stat. Ann. § 21-901 et seq (Repl. 1968), do not authorize the granting of attorneys’ fees to a landowner who goes into court to contest the report of the appraisers as to the amount of damage to be inflicted upon his land, and we agree. Ark. Stat. Ann. § 35-1105 (Repl. 1962), the statute authorizing the abandonment of a condemnation action after an award is made, allows the landowner to recover his “costs,” but we have held many times that attorneys’ fees are normally not recoverable unless specifically authorized by statute. Williams v. Little Rock Civil Service Commission et al, 266 Ark. 599, 585 S.W. 2d 42 (1979). However, Finch points out the exception to the general rule and contends that this case is most similar to Housing Authority of the City of Little Rock v. Amsler, Judge, 239 Ark. 592, 393 S.W. 2d 268 (1965), wherein we held that a landowner may recover a reasonable attorney’s fee, as well as other expenses, when a condemning agency fails to act in good faith in instituting and, later, abandoning condemnation proceedings.

The landowner argues in this case that there is sufficient evidence in the record to demonstrate a lack of good faith on the part of the condemning authority which, of course, the District disputes. Finch points out that had the District limited the project to its original scope, there would have been no need for the floodage easement upon his property. Only when the Soil Conservation Service persuaded the District to furnish the right-of-way for the recreational reservoir did Finch’s land become “necessary.” He further contends that the District knew of its limited funds when it opted for the expanded project, so it can hardly be said that it was unfairly surprised by its financial limitations. From the facts before this court it seems at least to have been very poor judgment for the District to have filed the condemnation action in this case with insufficient funds to pay a $30,000 judgment, and at least poor planning for the District to have allowed $3,400,000 to be spent by others for the construction of a dam that cannot be closed due to the District’s inability to pay for the right-of-way on Finch’s land.

In view of this factual dispute upon which the trial court made no specific finding, we remand this matter for a hearing to determine if the condemning authority acted in good faith. If the court finds the District did not act in good faith, it would be proper for the trial court to reinstate its order of October 23, 1979- However, if the finding should be to the contrary, the court’s order of March 21, 1980, should remain in effect. Of course, either party disagreeing with the decision of the trial court may specifically address the issue of good faith and other pertinent issues on a subsequent appeal based on the record made on those issues. Due to our method of disposition of this case, we intentionally have not addressed Finch’s contention that the trial court lacked jurisdiction to set aside its order of October 23, 1979.

Remanded.

Purtle, J., not participating.


text:
    STATE of Arkansas v. Herbert HARDIN, Otis URSERY & David TURLEY
    CR 80-141
    609 S.W. 2d 64
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellant.

      James E. Phillips, Deputy Public Defender, for appellee Ursery.

      Thomas M. Carpenter and Langston & Moore, by: John M. Langston, for appellee Hardin.

      Howard & Hicks, by: Charles R. Hicks, for appellee Turley.
   John F. Stroud, Justice.

The state brings this interlocutory appeal from the trial court’s granting of appellees’ motion to suppress from evidence a certain automobile and its contents. As we find that the trial court erred, we reverse the ruling.

Appellees were arrested on the 1-430 bridge over the Arkansas River on August 11, 1979, approximately six minutes after the early morning robbery of a convenience store in western Little Rock. Officer Farris Henslee of the Little Rock police stopped appellees’ vehicle, a two-tone Ford Torino (one of the colors was yellow), in response to a radio call describing the robbery suspects’ car as “possibly a yellow Ford Torino.” Officer Henslee testified that as he was removing appellees from the vehicle, he observed a .45 caliber pistol wedged between the back cushion and the seat cushion of the rear seat. He said he removed the pistol from the seat, and, while doing so, observed a red shirt protruding from underneath the right side of the front seat, which he also seized. He also found a set of keys on the floor of the vehicle. Another officer who arrived at the scene while Officer Henslee was taking appelees into custody assisted in an inventory of the car and summoned a wrecker to tow appellees’ vehicle to storage. The clerk of the store which had been robbed was summoned to the police station that same morning to view a lineup, at which time he identified appellees Hardin and Turley as the men who had committed the robbery.

A hearing was held on March 11, 1980, on appellees’ motions to suppress their identification by the store clerk and to suppress from evidence those items seized during their arrest. After hearing the testimony of the store clerk identifying two of the assailants and pointing out that one of them had on a red shirt, and the testimony of several officers of the Little Rock Police Department, the trial court denied the motions. A few days before trial, the attorneys for appellees learned that the impounded vehicle had been inadvertently sold. Subsequently, on March 19, two days before the scheduled trial, appellees filed a new motion requesting that the trial court order the State to produce appellees’ impounded vehicle for their inspection, which the trial court granted. On the day of trial several motions in limine were presented by appellees, the most significant of which was their request that the State’s witnesses be prevented from mentioning the description of the car in which appelees were riding at the time of their arrest since the State had not complied with the Court’s order to produce the vehicle. Unbeknownst to the State, the wrecker service storing the automobile had sold it, presumably to a salvage yard. After a lengthy, and rather disjointed, discussion of the loss of the vehicle and its effect upon the trial, the trial court ruled that the vehicle and any description of it would be suppressed from evidence, as well as the pistol, shirt and any other items seized from the car. From the ruling of the trial court suppressing the pistol and shirt from evidence, the State brings this interlocutory appeal.

The State contends that the trial court’s ruling that the pistol and red shirt could not be used as evidence at trial due to the sale of the automobile was much too severe a sanction against it, for nowhere in the record is there any evidence of connivance or bad faith on the part of the State in the loss of the vehicle. Appellees, on the other hand, argue that the ruling was proper and that it was the State’s responsibility to maintain possession of the automobile until final disposition of the case, and that the loss of it prevented appelees from effectively cross-examining the police officers who made the arrests and seized the evidence. Appellees attack the credibility of Officer Henslee, and contend that the pistol could not ahve been stuck in the back seat as he testified at the supression hearing. They argue that if the vehicle had been available, an examination of the construction of the seat might have supported their position. Appellant pointed out, however, that although the vehicle had been available for inspection for six months, appellees made no effort to examine it until a few days before trial when they learned it was unavailable. Appellant also argues that apellees were not prejudiced inasmuch as an identical make and model vehicle could be examined, and if any modifications are asserted they could be testified to by appellees or appellee Hardin’s mother, who actually owned the vehicle. While we agree that the State has the responsibility of storing and maintaining property which may be useful as evidence in a criminal proceeding, we do not think that the facts and circumstances of the present case, when viewed in their totality, require suppression of all testimony concerning the missing vehicle and suppression of all items removed from the vehicle subsequent to the arrests.

We agree with the well-reasoned opinion of the Supreme Court of Arizona in State Ex Rel. Hyder v. Hughes, 119 Ariz. 261, 580 P. 2d 722 (1978), which although factually distinguishable, resolved an issue quite similar to that involved in the present case. That case involved a defendant who had previously entered a plea of guilty to rape and later successfully collaterally challenged the plea. On the day of retrial, the defendant informed the trial court that most of the evidence against him, including a knife and bedspread, had been inadvertently disposed of by the State since his plea of guilty. He moved the court to suppress any references to the lost evidence, and the motion was granted. In reversing, the appellate court held, Hyder v. Hughes, supra at 725, the following:

We therefore hold that where, as here, a defendant has had the opportunity to inspect the evidence, there is no bad faith or connivance on the part of the State and it does not appear that a defendant has been prejudiced by the loss of evidence, there is no compelling reason to either dismiss the charge or charges against him or to suppress any reference to otherwise competent evidence. If prejudice is claimed after a trial and conviction, it will then become the court’s duty to look at the circumstances of the case, [citation omitted], and determine the fairness thereof.

Our acceptance of the holding in Hyder v. Hughes, supra, does not constitute a significant deviation from our decisions in like cases, for we have often held it not to be error for the trial court to admit testimony concerning property seized from a defendant even though the property itself is not produced or is inadmissible. Harris v. State, 260 Ark. 420, 540 S.W. 2d 859 (1976); cert. den. 430 U.S. 932 (1977); Maynard v. State, 252 Ark. 657, 480 S.W. 2d 353 (1972).

As we are reversing the ruling of the trial court and remanding this cause, we take this opportunity to point out that at trial both sides should be permitted to put on testimony concerning any characteristic of the missing automobile. We also hold that the pistol and red shirt should not be suppressed from evidence because of the inadvertent disposal of the auotmobile.

Reversed and remanded.

Fogleman, C.J., concurs.

Purtle, J., not participating.


author: Richard L. Mays, Justice. John A. Fogleman, Chief Justice,

text:
    John Wayne McGEE v. STATE of Arkansas
    CR 80-152
    609 S.W. 2d 73
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980.

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   Richard L. Mays, Justice.

In January 1980, after appellant allegedly committed the offense of theft of property on December 16, 1979 and the offenses of felon in possession of a firearm, rape, and burglary approximately one week later on December 22, the prosecuting attorney filed a petition to revoke a probation and a suspended sentence which he had received in 1976 and 1979, respectively. The 1976 probation grew out of a plea of nolo contendere to a charge of theft of property in which the court postponed the pronouncement of sentence and placed appellant under supervision for a period of four years. The suspended sentence stems from a revocation on October 26, 1979 of another probation which the court had granted for three years in connection with a guilty plea on June 6, 1979 to a charge of felon in possession of a firearm. The suspended sentence resulted when the court revoked the 1979 probation and imposed a sentence of five years, suspending all but 119 days, which had already been served, for burglary and theft of property allegedly committed by appellant on June 19, 1979.

After several hearings on the prosecutor’s revocation petition, the court eventually revoked appellant’s probation and suspended sentence, imposing a total prison term of nine years, five years for violating the terms of his 1976 probation and four years for violating the terms of his 1979 suspended sentence. Now on appeal appellant’s sole contention is that the trial court erred in sentencing him on the two revocations to more than 7 years, the combined terms of his 1976 and 1979 probations.

We do not reach appellant’s argument in regard to the revocation of the three year 1979 probation since no objection to the revocation and imposition of a five year suspended sentence was raised in the trial court. Having accepted the sentence, appellant now has no legal standing to complain. See Gregory v. Gordon, 243 Ark. 635, 420 S.W. 2nd 825 (1967). However, appellant’s objection in regard to the revocation of his 1976 probation was timely raised and, therefore, must be considered on its merits.

The appellant’s sentence challenge grows out of our decision in Culpepper v. State, 268 Ark. 263, 595 S.W. 2d 220 (1980). In Culpepper the trial court revoked a five year suspended sentence with three years probation and imposed a 15 year prison term because the defendant violated the conditions of his suspeiided and probated sentence. Recognizing that the defendant not only did not appreciate the extent of his jeopardy at the time he received his suspended and probated sentence, but that the 1976 Criminal Code no longer allowed the suspension of execution of a sentence, or a combined suspended and probated sentence, we limited the trial court on revocation to the sentence actually pronounced, five years. We also emphasized that a trial court could only release a defendant by postponing pronouncement of sentence for a specified period of suspension or probation. Although the trial court here postponed pronouncement of sentence for a specified period of probation, four years, appellant contends that the specified period of probation represents a “sentence imposed” which limits the trial court on any revocation.

Appellant’s argument is grounded in a 1979 Amendment to Ark. Stat. Ann. § 43-2332 (Repl. 1977), which provides in part:

As speedily as possible, the probationer shall be taken before the court having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence which might have been originally imposed. (Emphasis supplied)

The appellant seizes upon the words, “sentence imposed,” arguing that they mean the period of probation, and seeks to limit the trial court upon any probation revocation to the term of the probation. In essence, appellant employs this language to sanction reinvesting the trial court with the authority to release a defendant on probation by pronouncing sentence and suspending execution. This view was obviously rejected in Jefferson v. State, 270 Ark. 909, 606 S.W. 2d 592 (1980), where we recently recognized that specifying a period of probation in no way limited a trial court on revocation when no sentence had been imposed or pronounced. Nothing that we said in Culpepper v. State, supra, was meant to suggest otherwise. Under the 1976 Criminal Code, a sentence is not imposed until the court pronounces a fixed term of imprisonment as opposd to simply specifying a definite period of time of probation. See Ark. Ann. § 41-801(2) and 41-1208(6) (Repl. 1977. The 1979 Amendment to Ark. Stat. Ann. § 43-2332 (Repl. 1977) was obviously intended to merely effect a change in the salary administration of probation officers, although there was another variance in language between the original and amended version which is not material to this case. The amended statute, therefore, must be construed along side other relevant provisions of the Criminal Code and reconciled to effect the legislative intent of the combined whole. See City of Fort Smith v. Brewer, 255 Ark. 813, 502 S.W. 2nd 643 (1973); Cook v. Bevill, 246 Ark. 805, 440 S.W. 2nd 570 (1969); Bond v. Kennedy, 213 Ark. 758, 212 S.W. 2nd 336 (1948). Unquestionably, the legislature did not intend Ark. Stat. Ann. § 43-2332 (Supp. 1979) to effect a basic change in probation procedures or prohibit a court from releasing a defendant on probation for a prescribed period of time without pronouncing sentence. The words, “sentence imposed,” therefore, presume that a sentence has been pronounced. In the appellant’s case, none was pronounced until his four year probation was revoked. Therefore, since no sentence was imposed at the time appellant was placed on probation, the language in Ark. Stat. Ann. § 43-2332 (Supp. 1979) has no application and provides him no relief.

Affirmed.

Fogleman, C.J., concurs.

Purtle, J., not participating.

John A. Fogleman, Chief Justice,

concurring. I concur. Whatever may have been the effect of the Criminal Code upon Ark. Stat. Ann. §§ 43-2326, 43-2324 or 41-1208(6) (Repl. 1977), no legislation has in any way impaired or abolished court probation in which the circuit court’s probation postpones acceptance of a guilty plea, retaining jurisdiction, but giving the accused an opportunity to rehabilitate himself. This type of probation was recognized in Cantrell v. State, 258 Ark. 833, 529 S.W. 2d 136, and Maddox v. State, 247 Ark. 553, 446 S.W. 2d 210. As we said in Maddox, we perceived no language in the statutes then in force which limited the power and discretion of the circuit court to delay the acceptance of a guilty plea. The same circuit court whose action was questioned in Maddox and Cantrell is the court from which this appeal is taken. Obviously, that court thinks that subsequent legislation has not affected its powers and discretion in imposing “court probation.” I perceive no language in the statutes adopted after Cantrell was decided that limits that power and discretion. There is no doubt in my mind that the General Assembly could expressly limit or abolish the court probation by postponing a decision whether or not to accept a guilty plea. I insist that it has not.

The fact that the imposition of a fine seems inconsistent with the court’s declination to accept appellant’s guilty pleas is immaterial because the court made it clear that if probation was revoked, the guilty pleas would be accepted and he would then be sentenced.

The mere fact that appellant’s plea statements indicated that the prosecuting attorney’s recommendation of probation depended upon the payment of a fine in both cases is immaterial. No mention of the fine is included in the statement of the court respecting probation in one of the cases (No. 76-83). Even if there were an apparent inconsistency, the fact would still remain that the pleas of appellants had not been accepted in either case.

I have referred to appellant’s pleas as pleas of guilty. The fact that the plea in one case (No. 76-83) was actually nolo contendere is immaterial.

       The trial court actually improperly sentenced appellant since it suspended execution of a pronounced sentence, a method of sentencing which the 1976 Criminal Code no longer sanctions. See Ark. Stat. Ann. § 41-801(1) (Repl. 1977).


author: Richard L. Mays, Justice.

text:
    James LEGGINS v. STATE of Arkansas
    CR 80-158
    609 S.W. 2d 76
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

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

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   Richard L. Mays, Justice.

This is the second appeal of this case. See Leggins v. State, 267 Ark. 293, 590 S.W. 2nd 22 (Dec. 3, 1979). On the first appeal, James LEGGINS, appellant herein, sought reversal of his conviction of two counts of aggravated robbery because the trial court permitted evidence of a prior conviction of James LIGION to be submitted to the jury as evidence that he, James LEGGINS, was an habitual offender. Finding insufficient evidence to establish that James LIGION and James LEGGINS were the same person, we granted the appellant a new trial unless the Attorney General agreed to a reduction of his sentence from 30 years to 10 years. When the Attorney General refused to accept the reduction, the appellant was retried and again convicted of two counts of aggravated robbery and sentefced to two consecutive terms of life imprisonment. Again on appeal appellant renews his argument concerning the admission of the evidence of the prior conviction of James LIGION, which was also introduced in the second trial, and additionally asserts that he was unfairly denied his right to select an attorney of his choice. Finding no merit in either contention, we affirm.

This court answered in the first appeal appellant’s argument that there is insufficient evidence to support the jury’s finding that appellant, James LEGGINS, is the same person convicted of a felony in Crittenden County Circuit Court as James LIGION. See Leggins v. State, supra. There, recognizing the doctrine of idem sonans, a rule of criminal practice which ignores spelling differences in names if the pronunciation is practically the same, the Court emphasized that it would have reached a different result had the state also introduced appellant’s affidavit of indigency form, which he signed as LIGGION, since the similarity in sound between LIGGION and LIGION provides substantial evidence of appellant’s connection with the prior conviction. When the indigency affidavit was introduced along with the prior conviction in the second trial, the evidentiary deficiency which caused the reversal in the first trial was cured.

Appellant also contends that his convictions should be reversed because he was unfairly denied his right to select an attorney of his choice. The factual predicate for this contention stems from a letter written by appellant to the court more than seven weeks after his trial had been set and only two weeks before it was to occur, asserting that he was financially able to hire his own attorney and requesting that he be relieved of his court appointed attorney. No further reason for desiring to discharge his court appointed attorney was provided. Responding within four days of receipt of appellant’s letter the court wrote:

Your request for a change of counsel has not been timely made due to the fact that a new attorney would not have time to properly prepare your case for trial. I will not continue the case at the last minute for a change of attorney.

Although appellant did not specifically request a postponement of his trial, the trial court appropriately treated his request as a motion for continuance since a change of attorneys so close to trial would have required the granting of one.

We have consistently held that a motion for a continuance is addressed to the sound discretion of the trial judge and his judgment will not be reversed on appeal in the absence of clear abuse. Golden v. State, 265 Ark. 99, 576 S.W. 2nd 955 (1975). The burden of establishing such abuse rests squarely on the shoulders of the appellant. Freeman v. State, 258 Ark. 496, 527 S.W. 2nd 623 (1975). We have also recognized that the right to counsel of one’s choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient and effective administration of justice. Tyler v. State, 265 Ark. 822, 581 S.W. 2nd 328 (1979). Although a defendant must be offered a reasonable opportunity to obtain competent counsel, once competent counsel is obtained, any request for a change must be considered in the context of the public’s interest in a reasonably prompt and competent dispensation of justice. If such a change would require the postponement of trial because of inadequate time for a new attorney to properly prepare a defendant’s case, in denying or granting the change, the court may consider such factors as the reasons for the change, whether other counsel has already been identified, whether the defendant has acted diligently in seeking the change, and whether the denial is likely to result in any prejudice to defendant. Thorne v. State, 269 Ark. 556, 601 S.W. 2nd 886 (1980).

In the instant case, the appellant neither provided a material reason for his requested change of attorneys, nor identified an attorney who would proceed to trial with him. He was dilatory in making the motion and identified no prejudice to his case from a failure of the trial court to grant the motion. His court appointed counsel were not only prepared and willing to represent him at trial, but, as far as we can discern from the record, ably did so. Under these circumstances, we must sustain the judgment of the trial court.

Affirmed.

Purtle, J., not participating.


text:
    STATE of Arkansas v. Lloyd HOLCOMB
    CR 80-206
    609 S.W. 2d 78
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      Steve Clark, Atty. Gen., by. Jack W. Dickerson, Asst. Atty. Gen., for appellant.

      R. A. Schneider, for appellee.
   Richard L. Mays, Justice.

On August 21, 1980 three Garland County Deputy Sheriffs went to the home of Lloyd Holcomb, without an arrest warrant, and arrested him for the rape of his neighbor, Mrs. Carolyn Magby. A jury subsequently found him guilty and sentenced him to 5 years imprisonment. On appeal, this court reversed his conviction, finding that certain polygraph evidence had been improperly admitted at trial. Holcomb v. State, 268 Ark. 138, 594 S.W. 2d 22 (1980).

On remand, Holcomb filed a pretrial motion to dismiss, claiming that he could not be prosecuted because his warrantless arrest violated his Fourth and Fourteenth Amendment rights. After a hearing, the court agreed with Holcomb and dismissed all charges against him. On appeal, the state argues that an illegal arrest of a defendant does not, per se, preclude his prosecution. We agree and have recently so held in State v. Block, 270 Ark. 671, 606 S.W. 2d 362 (1980).

In State v. Block, the trial court dismissed the criminal charges against Charles Block because a police officer entered his home without an arrest warrant and arrested him. In reversing the trial court, we stated:

It is unthinkable that a person who has committed murder, for example, should go scot free just because an officer enters his home without an invitation and arrests him without a warrant.

We perceive no justification for deviating from that holding today.

Reversed and remanded.

Purtle, J., not participating.


author: Guy Amsler, Jr., Special Justice.

text:
    Sue G. JAMESON v. ETHYL CORPORATION
    80-108
    609 S.W. 2d 346
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      Woodward & Kinard, Ltd., by: Joe D. Woodward, Mike Kinard, and Michael G. Epley, for appellant.

      Baker & Botts, Houston, Texas, and Anderson, Grumpier & Bell, P.A., for appellee.

      William J. Wynne and James E. Baine, amici curiae.
   Guy Amsler, Jr., Special Justice.

The question before this Court concerns certain subterranean mineral rights with respect to a 95-acre tract located in Columbia County, Arkansas. The Appellant, Sue G. Jameson (“Appellant” or “Jameson”), owns these lands in fee. The Appellee, Ethyl Corporation (“Ethyl”) holds leases and other operating interests to remove brine (salt water) from approximately 15,-000 acres located in the Kerlin Brine Field (“Field”). The Jameson tract is located within the Field but is not leased to Ethyl. The Field is located in the Smackover Formation approximately 8,000 feet subsurface and contains a relatively large pool of brine containing bromide ions which have been commercially extracted by the Appellee since 1969- The parties negotiated for a number of years as to a proposed lease or other extraction rights as to the Jameson tract but were unable to agree as to terms. The basic issue involves a construction of the rule of capture to determine whether it should permit Ethyl to follow a process whereby the brine below the Jameson property has been and is currently being caused to flow into production wells operated by Ethyl pursuant to a recycling process which replaces it substantially diluted of valuable bromine.

After threatened litigation by Jameson, Ethyl filed suit for a declaratory adjudication seeking to establish the legality of its extraction process pursuant to the rule of capture. Jameson counterclaimed for damages and requested injunctive restraint of Ethyl’s extraction processes. The issues were bifurcated and the matter was submitted to the Chancellor for a determination of liability only, although much of the evidence also related to the question of damages, provided a right of recovery existed. The Chancellor concluded that this Court’s decision in Budd v. Ethyl Corporation, 251 Ark. 639, 474 S.W. 2d 411 (1972) expressed the controlling law of the case; determined that the rule of capture announced by this Court in the Budd case and in Osborn v. Arkansas Territorial Oil & Gas Co., 103 Ark. 175, 146 S.W. 122 (1912) was applicable to Ethyl’s extraction process; and accordingly granted declaratory relief to Ethyl and denied Jameson’s counterclaim. Ethyl’s operations in the Field have been the subject of two prior reported cases viz., Budd v. Ethyl Corporation, supra, and Young v. Ethyl Corporation, 521 F. 2d 771 (1975) (and on appeal from remand as to a determination of damages 581 F. 2d 715 [1978]). Although the parties have placed different interpretations upon the evidence presented, there is little significant dispute as to the underlying facts insofar as they relate to the issue of liability. The Appellant asserts that the actions of Ethyl constitute a trespass or a private nuisance. The pertinent facts are as follows:

Some time before 1969, representatives of Ethyl determined that a substantial pool of bromine-enriched brine existed in the Field at the Smackover level which could be commercially extracted and processed into brominated compounds and elemental bromine. The bromide ion content of the brine was estimated to be approximately 5,000 parts per 1,000,000 in the Field. The pool in actuality is contained in porous limestones with estimated varying thickness from zero to 150 feet. Leases or other operating rights to extract oil, gas and brine from the Field were obtained by Ethyl for a large part (approximately 90%) of the acreage within the Field, and drilling operations were begun in 1969.

Representatives of Ethyl attempted to obtain leases for the entire block of lands comprising the Field on substantially the same terms from all landowners on an agreed rent, in lieu of royalty basis. The Appellant, through her son Paul Jameson, attempted to negotiate a lease which contained a number of clauses he deemed necessarily proper to protect the Appellant and also made a proposal for participating in Ethyl’s profits over and above its profits being made at the time of leasing Appellant’s properties. Both parties considered their respective proposals to have been reasonable, and conversely the other’s position to be unreasonable. Ethyl owns mineral leases on all sides of Appellant’s 95 acre tract.

The evidence in the trial included expert testimony of two petroleum geologists separately sponsored by the parties, each of whom was recognized as qualified by the other. The substance of their testimony differed primarily with respect to what they had been engaged to do by their respective clients. Ethyl’s expert witness explained the rationale of Ethyl’s drilling and extraction processes, and Jameson’s expert witness expressed added opinions about the process and about the amount of bromine-enriched brine which had flowed into Ethyl’s wells and had been replaced with “tail brine” (i.e., brine from which a substantial part of the bromine had been extracted by Ethyl through a chlorine chemical process) and “Magnolia field brine” (i.e., additional brine added to the recycling process which was obtained by Ethyl from sources outside the Field).

Ethyl’s witnesses explained that soon after its operations began, a substantial amount of brine began to migrate into the Magnolia Oil and Gas Field located northeast of the Kerlin Brine Field which, if not corrected, would soon have made the extraction process commercially impractical. On advice of a consulting firm, Ethyl drilled a number of peripheral “injection wells” designed to raise the differential pressure level of the surrounding area so as to cause the brine to flow toward the center of the pool and into Ethyl’s production wells. This type of secondary recovery effort was not uncommon and resulted in Ethyl being able to achieve an efficient and maximum recovery of brine from the Field. The Jameson property is within the peripheral area of the injection wells of the Ethyl block.

Although Ethyl’s expert witness was not willing to acknowledge any specific amount of depletion of bromine-enriched brine from the Jameson property’s subterranean pool, the testimony is relatively clear that over the course of the recycling process the bromine content thereof has been substantially reduced, if not totally exhausted from a commercial perspective. The Appellant’s expert witness quantified this depletion based upon information related to the Field, Ethyl’s drilling reports and other known information. In addition, Appellant’s witness testified that the maximum normal drainage of bromide from the Jameson property would not have exceeded 2% in the absence of the pressure differential created by Ethyl’s injection wells, but that removal of as much as 89% of the bromide from the Jameson property had occurred due to the added differential pressures which caused the tail brine and Magnolia field brine to mix with the flow toward the low pressure areas of Ethyl’s production wells.

The Appellant attempts to characterize the recycling process as a pushing of tail brine and Magnolia field brine onto the Jameson property in order to force the valuable bromine-enriched brine into Ethyl’s wells, which Appellant labels “pushing” or “sweeping”. Ethyl conversely contends the process simply allows it to drain in that direction, in part because the tail brine is miscible and accordingly mixes with the brine in the area, which Ethyl labels as “pulling.” Although certain steps apparently could have been taken to seal off a substantial portion of the flow of the bromine-enriched brine from the Jameson property and other isolated locations which were not leased to Ethyl, the evidence preponderates that this was not commercially feasible under the circumstances. Likewise, it seems equally clear from the evidence that it would have been impractical for the Appellant to drill production wells unless she was financially prepared and willing to get into the bromine extraction business since the large volume of brine logically could not be transported, processed and recycled over long distances.

The consequence in any event is that: (i) a substantial amount of the bromine which previously lay at the Smackover subterranean level of the 95-acre Jameson property moved into the production wells and then into the asset category of Ethyl’s operations as a direct result of efforts purposely initiated by Ethyl; and (ii) the bromine extraction process has been able to be continued so as to maximize the recovery from some 15,000 to 16,000 acres in the Kerlin Brine Field.

Viewed from a judicial perspective it seems clear that the law as developed with respect to the rule of capture, trespass and nuisance fails to adequately provide a resolution of the issue with respect to bromine-enriched brine where secondary recovery methods are utilized, the results of which materially alter the natural drainage consequences of extracting from encircled properties lying within a common pool. It seems equally clear that the law should not turn upon the issue of whether the activities are characterized as "pushing” or “pulling”, or whether a differential pressure is created by injection or the addition of larger quantities of brine. Similarly, the obviously necessary steps of secondary recovery (which by definition create alterations to the norm) from a common pool area (be it oil, gas, brine or other fluid minerals) should not be subject to the arbitrary control of a limited number of landowners. Nor should the law permit those persons who are in an economically advantaged posture to be able to gain negotiating clout by being allowed to undertake, with impunity, processes that go beyond extracting transient minerals or gasses which have drained or flowed by natural process to their drilling sites.

Unitization laws have for many years helped to resolve these conflicting interests with respect to oil and gas production in many states, including Arkansas. See ARK. ACTS 1939, No. 105 adopted as the Arkansas Oil and Gas Conservation Act, codified as Ark. Stat. Ann. § 53-101 et seq (1971 Repl.) and Dobson v. Oil and Gas Commission, 218 Ark. 160, 235 S.W. 2d 33 (1950.)

In the 1912 case of Osborn v. Arkansas Territorial Oil & Gas Co., supra, this Court adopted the rule of capture as follows:

“Petroleum, gas and oil are substances of a peculiar character. . . . They belong to the owner of the land, and are part of it so long as they are part of it or in it or subject to his control; but when they escape and go into other land or come under another’s control, the title of the former owner is gone. If an adjoining owner drills his own land and taps a deposit of oil or gas extending under his neighbor’s field, so that it comes into his well, it becomes his property. . . .” 103 Ark. 175, 146 S.W. 122, 124.

Osborn, however, did involve a secondary recovery process, nor does the language of the rule adopted envision processes such as those used by Ethyl in the situation now under consideration.

The underlying reason for adoption of the rule of capture by Arkansas and other states was the acknowledged impracticality of tracing ownership of a transient substance which migrated from lands of one owner to lands of someone else. However, as noted in Oil and Gas Laws, Williams and Meyers, Volume I § 204.5, there have been varying reactions of the courts of different states to the question of whether the rule of capture should be applied without qualification to secondary recovery processes. In some of the cases orders from state regulatory agncies have been involved and in some of the cases unleased owners have been offered participation. See Tidewater Associated Oil Co. v. Stott, 159 F. 2d 174 (5th Cir. 1946), cert. denied, 331 U.S. 817 (1947); Railroad Commission v. Manziel, 361 S.W. 2d 560, 93 A. L.R. 2d 432 (Tex. 1962); Baumgartner v. Gulf Oil Corporation, 184 Neb. 384, 168 N.W. 2d 510 (1969); and Greyhound Leasing & Financing Corp. v. Joiner City Unit, 444 F. 2d 439 (10th Cir. 1971). For further discussions in this regard see also Hardwicke, “The Rule of Captured and Its Implication As Applied to Oil and Gas”, 13 Texas L. Rev. 391 (1935); and Kuntz, “Correlative Rights and Oil and Gas”, 30 Miss. Law Journal (1958).

In Budd v. Ethyl Corporation, supra, this Court had occasion to address the issue of whether Ethyl’s operations in the Field which forcibly injected brine into input (injection) wells were entitled to the benefit of the rule of capture. As to a 240-acre tract lying next to but outside of Ethyl’s 15,000 area block, this Court held that the rule of capture applied and that Ethyl was not obligated to account for any minerals which may have flowed as a result thereof into its wells from the 240-acre tract. However, as to a 40-acre tract lying within Ethyl’s peripheral area of input (injection) wells, this Court concluded that a separate analysis was necessary. Because of the limited nature of the lessee’s interest in the 40-acre tract within Ethyl’s peripheral area of input wells and certain equities noted, this Court also rejected Budd’s claim against Ethyl concerning the 40-acre tract. Obviously, this Court would not have treated the encircled 40-acre tract differently if this Court had reached the decision in the Budd case that it was immaterial whether the lands were inside or outside of Ethyl’s peripheral area of input wells. Because of this the 8th Circuit Court of Appeals in the diversity case of Young v. Ethyl Corporation, supra, attempted to construe the Arkansas law in a comparable situation and concluded that the rule of law should not be expanded to permit the so-called “sweeping” process without liability for damages.

While Arkansas’ unitization laws are not, as previously noted, involved in this case, we do believe that the underlying rationale for the adoption of such laws, i.e., to avoid waste and provide for maximizing recovery of mineral resources, may be interpreted as expressing a public policy of this State which is pertinent to the rule of law of this case. Inherent in such laws is the realization that transient minerals such as oil, gas and brine will be wasted if a single landowner is able to thwart secondary recovery processes, while conversely acknowledging a need to protect each landowner’s rights to some equitable portion of pools of such minerals. A determination that a trespass or nuisance occurs through secondary recovery processes within a recovery area would tend to promote waste of such natural resources and extend unwarranted bargaining power to minority landowners. On the other hand, a determination that the rule of capture should be expanded to cover the present situation could unnecessarily extend the license of mineral extraction companies to appropriate minerals which might be induced to be moved from other properties through such processes and, in any event, further extend the bargaining power of such entities to reduce royalty payments to landowners who are financially unable to “go and do likewise” as suggested by Ethyl.

The laws of trespass and nuisance and the rule of capture each evolved out of circumstances designed to balance the relative rights and responsibilities of the parties and the interests of society in general. As noted in the Young case, supra, a great deal of technology and geological understanding has developed since the 1912 Osborn decision. As envisioned in the Young case, which we consider to be persuasive, we are unwilling to extend the rule of capture further. By adopting an interpretation that the rule of capture should not be extended insofar as operations related to lands lying within the peripheral area affected, we, however, are holding that reasonable and necessary secondary recovery processes of pools of transient materials should be permitted, when such operations are carried out in good faith for the purpose of maximizing recovery from a common pool. The permitting of this good faith recovery process is conditioned, however, by imposing an obligation on the extracting party to compensate the owner of the depleted lands for the minerals extracted in excess of natural depletion, if any, at the time of taking and for any special damages which may have been caused to the depleted property. By this holding we believe that the interests of the owners and the public are properly protected and served.

This matter was submitted to the chancellor only on the issue of liability and on a remand the chancellor must determine damages. In this regard we point out the language set forth in the case of Whitaker & Company v. Sewer Improvement District No. 1, 229 Ark. 697, 318 S.W. 2d 831 (1958), where we said:

A court of equity should be as alert to afford redress as the ingenuity of man is to cause situations to develop which call for redress.

In other words, sometimes a court of equity must devise a formula of damages to fit a particular situation.

Accordingly, the decision of the lower court on the issue of liability is reversed and the case is remanded for trial of the damage issues.

Reversed and remanded.

Sepcial Justice Walter Davidson joins in the opinion.

Holt, Purtle and Stroud, JJ., did not participate.

       We note that Act 937 of 1979 (Ark. Stat. § 53-1301 et seq.) authorized the Arkansas Oil & Gas Commission to order the formation of brine production units. Section 1 of the Act states in part:
      “It is hereby declared to be in the public interest to foster . . . the development and production in the State of the natural resource of brine; to authorize and to provide for the operation and development of brine properties in such a manner that the greatest ultimate recovery of brine and the chemical substances contained therein be had and that the correltaive rights of all owners be fully protected
      The Act is permissive, in that the action of the Commission is invoked on an application of a “producer.” A "producer" is defined as the owner of an existing well or wells capable of producing brine as well as any owner or owners who are capable and willing to incur the capital investment required for the purposes of drilling, completing and equipping the proposed well or wells within any existing or proposed brine production unit. While it is not shown in the record apparently Ethyl has not elected to petition for formation of a production unit. In any event, Act 937 was adopted after this cause of action was filed and neither of the parties has aruged its applicability to this case.