author: DONALD L. Corbin, Justice.

text:
    FARM BUREAU MUTUAL INSURANCE COMPANY of Arkansas, Inc., and Southern Farm Bureau Casualty Insurance Company v. Gaylon FOOTE and Tammy Foote
    99-1365
    14 S.W.3d 512
    Supreme Court of Arkansas
    Opinion delivered April 20, 2000

      James Robert Marschewski, Judge;

      Hardin, Jesson & Terry, by: Rex M. Terry, J. Rodney Mills, and Kirkman T. Dougherty, for appellants.

      Nolan, Caddell & Reynolds, by: Bennett S. Nolan, for appellees.
   DONALD L. Corbin, Justice.

This appeal raises issues of first impression regarding (1) alleged premature jury deliberations, and (2) the applicability of Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to the Arkansas Rules of Evidence. Appellants Farm Bureau Mutual Insurance Company of Arkansas, Inc., and Southern Farm Bureau Casualty Insurance Company (collectively, “Farm Bureau”) appeal the judgment of the Sebastian County Circuit Court in favor of Appellees Gaylon and Tammy Foote for their claim to recover insurance proceeds, after a fire destroyed their residence. Farm Bureau raises seven points for reversal. Our jurisdiction of this matter is pursuant to Ark. Sup. Ct. R. l-2(b)(l). We affirm.

The record reflects that in the early morning hours of September 29, 1997, while the Footes were out of town, their residence in Greenwood was destroyed by fire. Their Chevrolet Blazer and two Polaris watercrafts, which were parked in the garage at the time, were also destroyed. It was not disputed that the homeowners policy and the motor-vehicle policy issued by Farm Bureau were in effect at the time of the fire. It was not disputed that the Footes were the named insureds, and that the fire resulted in a total loss. Farm Bureau paid off the mortgage interest in the home held by Farmers Bank, as well as the lien on the Blazer held by First Resource Credit Union. Farm Bureau denied payment to the Footes, however, because its investigation revealed that (1) the fire was intentionally set by the Footes or at their direction, and (2) the Footes intentionally concealed or misrepresented material facts or circumstances relating to their loss and coverage.

The Footes subsequently filed suit against Farm Bureau in the Sebastian County Circuit Court. The jury returned a verdict in favor of the Footes, finding that (1) the Footes had an insurable interest in the residence; (2) the Footes had not committed fraudulent acts or made material false statements in their procurement of the policies or in the damage claims; and (3) the fire was not intentionally set by the Footes or by anyone else at their direction. Following the jury’s verdict, the trial court awarded the Footes $117,297.62, plus interest; a statutory penalty of $14,075.71; costs of $323.63; and attorney’s fees of $47,574.45. This appeal followed.

I. Substantial Evidence

For its first point for reversal, Farm Bureau argues that the trial court erred in denying its motion for directed verdict. Farm Bureau also argues for its sixth point that the jury’s verdict is not based on substantial evidence. Because these points are merely different ways of stating the same argument, we review them together. Specifically, Farm Bureau argues that (1) the Footes failed to establish an insurable interest in the property; (2) the homeowners policy was voided by the Footes’ fraudulent acts and false statements made before and after the fire; and (3) the fire was intentionally set by the Footes. When reviewing a denial of a motion for a directed verdict, we determine whether the jury’s verdict is supported by substantial evidence. State Auto Property & Cas. Ins. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond mere suspicion or conjecture. Id. We review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id.

A. Insurable Interest

Farm Bureau argues that there was not substantial evidence showing that the Footes had an insurable interest in the property. This argument is based on the claim that the Footes lacked ownership because their names were not on the title to the home.

According to the evidence, the Footes had lived at the residence in Greenwood for several years prior to the fire and had made improvements to the home by constructing a garage and a two-story addition. The Footes admitted that title to the property was in the names of Gaylon’s parents, Garlan and Judy Foote. Both Gaylon and Tammy testified that at the time the home was purchased, they were divorced, but attempting to reconcile. They indicated that because they were not certain of a reconciliation, title to the home was put in Gaylon’s parents’ names. They also admitted that the mortgage was in Gaylon’s parents’ names, and that payments were made out of a joint bank account shared by Gaylon and his mother. Nevertheless, the Footes maintained that they actually paid all the mortgage payments, insurance, and taxes on the home, and that they also paid for the improvements to the property.

Garlan Foote confirmed their testimony regarding the ownership and payment of the home. He stated that when Tammy and Gaylon split up, Gaylon thought it would be best to put the house in his parents’ names in case there was any confusion later. He stated that Gaylon has paid for the house, and that Gaylon and Tammy paid for the improvements to the home. He stated that he and his wife have never made any mortgage payments or exercised any control over the house. He stated further that although his wife actually writes out the payment checks, she has no interest in the joint bank account.

Arkansas Code Annotated § 23-79-104 (Repl. 1999) provides:

(a) No contract of insurance of property or of any interest in property or arising from property shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured at the time of the effectuation of the insurance and at the time of the loss.
(b) “Insurable interest” as used in this section means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.

“[A]n insurable interest is not dependent upon ownership.” Beatty v. USAA Cas. Ins. Co., 330 Ark. 354, 361, 954 S.W.2d 250, 253 (1997) (quoting Hinkle v. Perry, 296 Ark. 114, 119, 752 S.W.2d 267, 269 (1988)).

Generally speaking, a person has an insurable interest in property whenever he would profit by or gain some advantage by its continued existence and suffer some loss or disadvantage by its destruction. If he would sustain such loss, it is immaterial whether he has, or has not, any title in, or hen upon, or possession of, the property itself.

Id. at 361-62, 954 S.W.2d at 253-54 (quoting Hartford Fire Ins. Co. v. Stanley, 1 Ark. App. 94, 96, 644 S.W.2d 628, 629 (1983) (citing, 3 Couch on Insurance § 24:13 (2d ed. I960))). The foregoing testimony is substantial evidence that the Footes had a substantial economic interest in preserving the property and stood to suffer some loss or disadvantage by its destruction. Accordingly, the Footes had an insurable interest in the residence and the property therein, regardless of the fact that they were not the titled owners of the residence.

B. Fraudulent Acts and False Statements

Farm Bureau next argues that the Footes were not entitled to any recovery under the terms of the homeowners policy, due to the allegedly uncontroverted evidence that the Footes committed fraudulent acts and made false statements. Specifically, Farm Bureau contends that the Footes made false statements about (1) their status as owners of the house and their interest in the two watercrafts burned in the fire, and (2) their additional living expenses. Farm Bureau also contends that Gaylon committed a fraudulent act by submitting false receipts as documentation for their claimed additional living expenses.

Regarding the first of these points, Farm Bureau introduced the insurance application, signed by Gaylon, reflecting that the Footes had indicated the land was not owned by someone other than the applicants and that there were no occupants on the premises other than the owner. Gaylon testified that when he applied for the insurance policy, he explained the ownership situation to Farm Bureau’s agent, Brad Walker, and that Walker then completed the application for insurance. Gaylon testified that he also told this information to Farm Bureau’s adjuster, Kent Bard, after the fire.

Farm Bureau presented the property inventory completed by the Footes, wherein they claimed a loss of $12,500.00 for the value of the two Polaris watercrafts. It also presented the titles to the watercrafts, showing them to be owned by Charles Hamilton. Gaylon admitted that when he signed the inventory, he understood that he was representing that the items listed were his property. He maintained, however, that he held more than a majority of the ownership interest in the watercrafts. He explained that Hamilton was his partner and that Hamilton’s ownership interest was approximately $3,500.00, while the remaining interest was his.

Farm Bureau also presented evidence showing that the Footes misrepresented the nature of their interest in the trailer in which they were living after the fire. Farm Bureau questioned Gaylon about a letter that he had written to the insurance company stating that he and Tammy had rented the trailer for $750.00 per month. Gaylon admitted that the information in the letter was wrong, because he and Tammy had actually purchased, not rented, the trailer. Gaylon also admitted that he had a friend write fictitious receipts as proof of the rental fees for the trailer. On rebuttal, Gaylon explained that he presented the false receipts as a result of conversations with Bard, wherein Bard agreed to pay the Footes $700.00 a month for additional living expenses. Gaylon stated that Bard told him that they could five with their parents and still receive $700.00 per month, but that they would still have to furnish receipts for their expenses so that he would have something to put in his file. According to Gaylon, Bard told him: “It’s your money and we’ll pay it to you[.]”

Bard confirmed the substance of these conversations, testifying that he told the Footes that Farm Bureau would pay additional living expenses even if they were living with their parents and not paying any money. Bard also stated that he told the Footes that they had to have some documentation to justify payment of those living expenses.

Whether these actions were fraudulent or the statements were materially false was a question for the jury. This court has recognized that once the insured establishes a prima facie case for recovery under the insurance policies, the burden shifts to the insurer to prove that the damages claimed were not covered under the policy. See Reynolds v. Shelter Mut. Ins. Co., 313 Ark. 145, 852 S.W.2d 799 (1993). The jury was instructed on this issue as follows:

Farm Bureau contends that the insurance contract is void because of certain actions and representations of the Plaintiffs.
If you find by a preponderance of the evidence, either before or after the loss, there have been fraudulent acts or material false statements made or material facts or circumstances concealed or misrepresented in regard to the insured property, the insured coverage, or the loss by the Plaintiffs, then your verdict must be for the Defendants and against the Plaintiffs.

The jury apparently believed the explanations offered by the Footes and concluded that Farm Bureau had not met its burden on this issue. We find no error with this conclusion. The jury is free to believe or disbelieve the testimony of any witness. Bearden v. J.R. Grobmyer Lumber Co., 331 Ark. 378, 961 S.W.2d 760 (1998). This is true even if the testimony is uncontradicted or unimpeached. See Anderson v. Graham, 332 Ark. 503, 966 S.W.2d 223 (1998).

C. Suspicious Origin of the Fire

Lastly, Farm Bureau contends that the evidence supports a finding that the Footes intentionally set fire to the property. While we agree that the evidence indisputably showed that the fire had suspicious origins, we affirm the jury’s verdict.

During the trial, testimony was presented from several expert witnesses showing that the fire started in the area of the kitchen and utility room, near the entrance to the garage. The presence of accelerants was detected in the living room floor and near the kitchen door. No accidental cause for the fire was discovered, and it was the conclusion of Farm Bureau’s fire investigation experts that the fire was intentionally set. No direct proof, however, was offered by Farm Bureau connecting the Footes to the suspicious cause of the fire. Although it attempted to show that only the Footes had the opportunity to commit the fire, based on their admissions that the home was locked and no one else had keys, Farm Bureau’s fire specialist, Rodger Smith, conceded that someone else could have broken into the home and started the fire. He stated that a break in could have been possible, as the back door was completely missing from the home.

Perhaps more significant is the fact that Farm Bureau presented no convincing evidence demonstrating a motive for the fire. Although Smith opined that the motive of financial gain was usually present in fires of this nature, Farm Bureau produced no specific evidence that such was the case here. Smith merely surmised that the financial gain was derived from the Footes having their mortgage paid in full and thus owning the house free and clear. Smith’s theory was not supported by the evidence, however, which demonstrated that the Footes suffered a tremendous loss as a result of the fire. Gaylon testified that everything that they had worked for over the course of many years was gone. Tammy testified about the personal items destroyed that were of sentimental value to them, such as a collection of the children’s school photographs, a painting done by a family friend that had been given to them as a wedding present, Tammy’s angel collection, and approximately twenty sound tracks for music that Tammy performed at church. Viewing the evidence in the light most favorable to the Footes, as we are required to do, we conclude that the jury’s verdict on this point is supported by substantial evidence.

II. Scientific Expert Testimony

For its second point for reversal, Farm Bureau argues that the trial court erred in refusing to allow Trooper Doug Estes, an investigator with the Arkansas State Police, to testify regarding the alleged superior ability of his canine partner, Benjamin, to detect the presence of accelerants after a fire. Estes testified that as a result of his training, Benjamin has the ability to discriminate between different types of chemicals, so that when the dog alerts on a particular spot at a fire scene, it signifies the presence of accelerants. Estes stated that Benjamin has been trained extensively in this area and was required to test at an accuracy rate of 100 percent in order to receive his certification. Estes stated further that it has been proven in numerous cases that a dog’s nose is more sensitive than the laboratory equipment used by forensic chemists. He stated that a dog’s nose can detect 300 parts per billion, while the laboratory tests detect 100 parts per million. The source of his information was a master’s thesis written by Kevin Lockridge, the purported director of the Florida State Crime Laboratory. Farm Bureau offered this testimony to explain why the dog made five “hits,” while the chemist only detected measurable amounts of accelerants in two samples. The trial court denied admission of the proffered testimony based on the holding in Daubert, 509 U.S. 579. This court has not previously adopted the holding in Daubert. We do so now.

In Daubert, 509 U.S. 579, the petitioners urged the Court to dispose of the test established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which provided that “expert opinion based on a scientific technique is inadmissible unless the technique is ‘generally accepted’ as reliable in the relevant scientific community.” 509 U.S. at 584. They contended that the Frye test had been superseded by the adoption of the Federal Rules of Evidence. The Court agreed and established the following inquiry to be conducted by the trial court:

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

Id. at 592-93 (footnotes omitted). The Court concluded that a key consideration is whether the scientific theory or technique can be or has been tested. Other considerations include whether the theory or technique has been subjected to peer review and publication, the potential rate of error, and the existence and maintenance of standards controlling the techniques operation. Additionally, the Court recognized that general acceptance in the scientific community can have a bearing on the inquiry. The Court emphasized that the inquiry envisioned by Federal Rule of Evidence 702, which is identical to our Rule 702, is a flexible one:

Its overarching subject is the scientific validity •— and thus the evidentiary relevance and reliability — of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.

Id. at 594-95 (footnote omitted).

Two years before the Court’s decision in Daubert, this court adopted a strikingly similar approach to the admission of novel scientific expert testimony in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). This approach, based on Arkansas Rules of Evidence 401, 402, and 702, requires the trial court to conduct a preliminary inquiry focusing on (1) the reliability of the novel process used to generate the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse, or mislead the jury, and (3) the connection between the evidence to be offered and the disputed factual issues in the particular case. Under this approach, reliability is the critical element. There are a number of factors that bear upon reliability, including “the novelty of the new technique, its relationship to more established modes of scientific analysis, the existence of specialized literature dealing with the technique, the qualifications and professional stature of expert witnesses, and the non-judicial uses to which the scientific techniques are put.” Id. at 186, 820 S.W.2d at 431 (citing Andrews v. State, 533 So. 2d 841 (Fla. Dist. Ct. App. 1988) (citing United States v. Downing, 753 F.2d at 1238-39, and Weinstein & Berger, Weinstein’s Evidence ¶ 702[03] (1991))).

In the present case, we conclude that the proffered testimony concerning the dog’s alleged superior ability to detect the presence of accelerants does not pass muster using either the Daubert or Prater analysis. Farm Bureau simply did not make any showing regarding the scientific validity of the evidence. For instance, Estes did not produce the study allegedly conducted by Lockridge, so there was no way of ascertaining the techniques used or the potential rate of error. There was no evidence that this scientific theory had ever been tested or subjected to peer review, or that it had been otherwise embraced by the particular scientific community. In short, Farm Bureau, as the proponent of the novel scientific evidence, failed to carry its burden of proof on the issue of reliability. See Houston v. State, 321 Ark. 598, 906 S.W.2d 286 (1995). We thus affirm the trial court’s ruling.

III. Mistrial

For its third point for reversal, Farm Bureau argues that the trial court erred in denying its motion for mistrial as a result of four questions submitted to the court by the jury during a recess. The record reflects that during Farm Bureau’s presentation of its defense, the trial court was given a note from the jury asking four questions: (1) “Who first discovered the fire?”; (2) “Who were the firemen/ department on call?”; (3) “What emotions were observed on the Footes on arriving on the scene?”; and (4) “Why did the insurance company take the payments on the policy if the house ownership was in question?”

After reading the questions to the parties, the trial judge proposed telling the jurors that he could not answer the questions and then admonishing them that all the evidence had not yet been presented. In response, counsel for Farm Bureau proposed that the jurors be told that at the conclusion of the case, the court will instruct them and they will decide the case based on the law given and the evidence heard. Counsel for the Footes then expressed his concern that the jurors were prematurely talking about these issues before all the evidence had been presented. Counsel for Farm Bureau then agreed with that concern and moved for a mistrial. Alternatively, Farm Bureau asked the court to voir dire the jurors to determine the extent, if any, of their deliberations on the issues in the case.

The trial court denied the motion for mistrial, finding that Farm Bureau’s concern would be cured by admonishing the jurors that they are to base their decision on the evidence presented and the instructions given at the conclusion of the trial. The trial court found further that conducting voir dire of the jurors individually would only complicate the situation, rather than cure it.

It is well settled that a mistrial is a drastic and extreme remedy that should be granted only when there has been error so prejudicial that justice cannot be served by continuing the trial or when fundamental fairness of the trial itself has been manifestly affected. See Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). The trial court has wide discretion in granting or denying a motion for a mistrial, and we will not disturb the court’s decision absent an abuse of discretion or manifest prejudice to the movant. Id. A mistrial will only be granted where any possible prejudice could not have been removed by an admonition to the jury. Id. Regarding allegations of juror misconduct, the moving party bears the burden of proving that a reasonable possibility of prejudice resulted. Sunrise Enters., Inc. v. Mid-South Rd. Builders, Inc., 337 Ark. 6, 987 S.W.2d 674 (1999); Berry v. St. Paul Fire & Marine Ins. Co., 328 Ark. 553, 944 S.W.2d 838 (1997).

Farm Bureau relies primarily on the case of United States v. Resko, 3 F.3d 684 (3rd Cir. 1993), for the holding that “[i]t is a generally accepted principle of trial administration that jurors must not engage in discussions of a case before they have heard both the evidence and the court’s legal instructions and have begun formally deliberating as a collective body.” Id. at 688. The facts in Resko establish that seven days into a nine-day trial, a juror approached a court officer and reported that the members of the jury had been discussing the case during the recesses and while waiting in the jury room. The trial court then summoned the jurors, informed them of the problem, and gave each of them a questionnaire to complete. The two questions asked of the jurors were (1) whether they had discussed the facts of the case amongst themselves during the trial, and (2) if so, whether they had formed an opinion about the guilt or innocence of the defendants. All twelve jurors answered “yes” to the first question and “no” to the second question. The trial court made no further inquiries of the jurors, and the defendants were eventually convicted. The court of appeals vacated the convictions on the ground that the trial court should have conducted individual inquiry of the jurors. The court held:

Although ordinarily a defendant must establish prejudice before a new trial will be ordered, in the circumstances here, in which there is unequivocal proof of jury misconduct discovered mid-trial coupled with the failure by the district court to evaluate the nature of the jury misconduct or the existence of prejudice, we conclude that a new trial is warranted. Given the importance of the Sixth Amendment rights at stake and the relative ease with which the district court here could have properly assessed the impact of the jury misconduct, it would be unfair to penalize the defendants for lack of evidence of prejudice. We are thus willing, in these limited circumstances, to carve out an exception to the rule that a defendant must demonstrate prejudice before a new trial is warranted.

Id. at 694 (emphasis added). It is clear from this ruling that the court placed great emphasis on the fact that it was a criminal trial implicating the protections of the Sixth Amendment, and that it was uncontroverted that the jurors had engaged in premature deliberations. The present case is thus distinguishable from Resko.

Under the facts presented here, we think the better case is United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998), cert. denied, 526 U.S. 1007 (1999). There, an alternate juror reported to the court clerk the substance of a discussion that had taken place in the jury room, during the course of the trial. The jurors had been conversing about who might be the alternates, and one juror said, “I hope I’m not the hold-out juror.” Id. at 1185. In response, another juror stated, “It wouldn’t be very hard. I think we all know what the verdict should be.” Id. (footnote omitted). The trial judge did not conduct an individual inquiry with the jurors; rather, he admonished them about the importance of maintaining an open mind with respect to all aspects of the case. He also reminded them of the oath they had taken to decide the case based on all the evidence presented. The court of appeals held that the district court’s refusal to conduct a hearing on the issue was not an abuse of discretion. The court distinguished between intrajury misconduct and extraneous influences on the jury, such as jurors becoming privy to prejudicial information not introduced into evidence or having improper contacts with parties or witnesses. The court explained:

Although premature discussions among jurors may prejudice the defendant, intrajury misconduct generally has been regarded as less serious than extraneous influences on the jury. Consequently, an allegation of intrajury misconduct may or may not warrant a hearing. . . .
. . . Ultimately, the court must weigh the benefits of having a hearing, including the ability perhaps to ascertain more fully the extent and gravity of the possible prejudice, against the risks inherent in interrupting the trial and possibly placing undue emphasis on the challenged conduct.

Id. at 1186-87 (citations omitted). The court concluded that although a hearing may have been preferable under the circumstances, the trial court had not abused its discretion.

Here, as in the foregoing federal cases, the misconduct alleged was of the intrajury type; however, unlike those cases, there was no actual evidence that any jurors had engaged in premature discussions of the case. Rather, as the trial court pointed out, the four questions could very well have come from one juror mulling over issues in his or her mind. There was simply no affirmative proof that the jurors had been discussing the case. Moreover, the trial court’s admonition was precisely the relief initially requested by Farm Bureau. Under these circumstances, we conclude that the trial court did not abuse its discretion in refusing to grant the mistrial or to conduct an individualized inquiry of the jurors. As indicated in McVeigh, such an inquiry may have only served to place undue emphasis on the challenged conduct. We thus affirm on this issue.

IVJury Instructions

For its fourth point for reversal, Farm Bureau argues that the trial court erred in instructing the jurors that for the homeowners policy to be voided, they must find by a preponderance of the evidence that “there have been fraudulent acts or material false statements made or material facts or circumstances concealed or misrepresented in regard to the insured property, the insurance coverage, or the loss[.]” Particularly, Farm Bureau argues that the word “material” should not have been used to modify the term “false statements,” because no such modification is reflected in the policy itself. Farm Bureau relies on this court’s decisions holding that an insurer may contract with its insured on whatever terms the parties may agree, so long as it is not contrary to statute or public policy. See Western World Ins. Co. v. Branch, 332 Ark. 427, 965 S.W.2d 760 (1998); Shelter Gen. Ins. Co. v. Williams, 315 Ark. 409, 867 S.W.2d 457 (1993). Thus, Farm Bureau argues that the trial court erred in refusing to instruct the jury with the exact language of the policy. We disagree.

The trial court concluded that the law requires false statements to be material before an insurance policy may be voided by the insurer. The trial court explained:

In looking at this and trying to analyze the law in regards to this, I believe that the statements, at least false statements, must have some degree of materiality to them.... That if it were otherwise, if it were any false statement, whether it be innocent or not, you could void the policy and that would be against the public pohcy, and obviously the company is looking at material false statements.

We find no error with this ruling, particularly in light of the fact that Farm Bureau’s proffered instruction provided: “If you find from the evidence that any policyholder concealed or misrepresented any material fact relating to the insurance coverage, either before or after the fire, then your verdict must be for the Defendants on that issue and against the Plaintiffs.” (Emphasis added.) Moreover, Farm Bureau’s letter to the Footes specifically reflected that their claim was being denied because they “intentionally concealed or misrepresented material facts or circumstances relating to your loss and/or coverage.” (Emphasis added.)

Furthermore, the language of the policy itself raises the inference that mere false statements are not sufficient to void the policy. The policy reflects that it becomes void when there have been “fraudulent acts or false statements made or material facts or circumstances concealed or misrepresented in regard to the insured property, the insured coverage or the loss.” From this context, it appears that the term “false statements” does not apply to statements that are merely incorrect or are without consequence to the loss or the policy itself. Although there is no specific statutory provision on this issue, our construction of this policy language is consistent with the statutory law regarding false information contained in applications for life or disability insurance. Arkansas Code Annotated § 23-79-107 (Repl. 1999) provides in pertinent part that misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent recovery under the policy unless either: (1) fraudulent; (2) material to the acceptance of the risk or to the hazard assumed by the insurer; or (3) the insurer in good faith would not have issued the policy, or at least not in as large an amount or at the same premium rate, if the true facts had been known to it. In any event, the policy language is, at best, ambiguous, and we must resolve the ambiguity in favor of the insureds. See, e.g., Phelps v. U.S. Life Credit Life Ins. Co., 336 Ark. 257, 984 S.W.2d 425 (1999); State Farm Mut. Auto Ins. Co. v. Traylor, 263 Ark. 92, 562 S.W.2d 595 (1978). Accordingly, the trial court did not abuse its discretion is refusing to give the proffered instruction. See Edwards, 335 Ark. 470, 984 S.W.2d 366.

V. Rebuttal Evidence

For its fifth point for reversal, Farm Bureau argues that the trial court abused its discretion in allowing the Footes to present rebuttal evidence regarding their emotional states after the fire and the substance of conversations between Gaylon Foote and Farm Bureau’s adjuster pertaining to the issue of receipts for additional living expenses. Admissibility of rebuttal evidence lies within the sound discretion of the trial court, and we will not reverse absent a showing of abuse of that discretion. Edwards, 335 Ark. 470, 984 S.W.2d 366; Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). Genuine rebuttal is evidence that is offered in reply to new matters; however, the fact that the evidence could have been presented in the plaintiff’s case-in-chief does not preclude its introduction on rebuttal if it serves to refute evidence raised by the defense. Id.

The record reflects that the first rebuttal witness, Larry Hill, testified that he had contact with Gaylon about a week after the fire. Hill stated that he and Gaylon went to the house and looked around the burned structure. Hill stated that Gaylon was very sad and depressed about his house. No objection was made to this testimony. The next witness, Tammy Foote’s mother, was asked to describe the Footes’ emotions in response to the fire. Farm Bureau objected and argued that such evidence should have been presented in the Footes’ case-in-chief. The trial court overruled the objection. Thereafter, three additional witnesses testified about the Footes’ emotions. The trial court did not abuse its discretion in allowing the testimony, as it was particularly relevant to refute Farm Bureau’s defense, i.e., that the Footes set fire to their own home to collect the insurance proceeds. Moreover, Farm Bureau failed to object to the evidence at the first opportunity, during Hill’s testimony. It is well settled that to preserve a point for appeal, a proper objection must be asserted at the first opportunity. Edwards, 335 Ark. 470, 984 S.W.2d 366.

As for Gaylon Foote’s testimony about conversations he had with the insurance adjuster, Kent Bard, we likewise find no abuse of discretion. During Farm Bureau’s defense, Rodger Smith testified that Gaylon had asked Bard for additional living expenses and that Bard had called Smith for authorization. Smith stated that he then sent a letter to Gaylon, advising him that Farm Bureau had not received enough receipts and documentation to support the payment of living expenses. Smith then testified that he was aware that Bard had also requested appropriate documentation of rental expenses from the Footes. On rebuttal, Gaylon described the substance of his conversations with Bard regarding Farm Bureau’s requests for the documentation. Accordingly, the trial court did not abuse its discretion by permitting Gaylon’s rebuttal testimony.

VI. Attorney’s Fees and Statutory Penalty

For its last point, Farm Bureau argues that the trial court erred in awarding attorney’s fees and a twelve-percent penalty to the Footes, pursuant to Ark. Code Ann. § 23-79-208 (Repl. 1999). Subsection (a)(1) provides that in all cases where loss occurs, and the insurance company fails to pay the losses within the time specified in the policy after demand has been made, the insurance company “shall be liable to pay the holder of the policy or his assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorney’s fees for the prosecution and collection of the loss.” Subsection (d) provides that the right to recover the twelve-percent penalty is conditioned upon the amount recovered for the loss being within twenty percent of the amount demanded or sought in the suit.

Farm Bureau asserts that because the Footes sought their policy limits in their complaint and because the judgment recovered by them was set off by the monies paid to the banks for the mortgage and the lien on the vehicle, the Footes did not recover within twenty percent of the amount demanded. This assertion is erroneous under this court’s decision in Farmers Mut. Ins. Co. v. Lane, 278 Ark. 53, 643 S.W.2d 544 (1982). There, this court held that “[i]t does not matter whether the actual payment under the policy is made to the insured or to the loss payee in order for the insureds to be entitled to the statutory penalty and attorneys’ fees when payment by the [insurance] Company is late.” Id. at 56, 643 S.W.2d at 546 (citing Farm Bureau Mut. Ins. Co. v. Shaw, 269 Ark. 757, 600 S.W.2d 432 (Ark. App. 1980)). Likewise, in Shaw, 269 Ark. at 758, 600 S.W.2d at 433, the court of appeals held that the statutory penalty and attorney’s fees “applies regardless whether the late payment is made to the insured or insured’s mortgagee.” Accordingly, we find no merit to Farm Bureau’s argument on this point, and we affirm.

THORNTON, J., not participating.


source: Caselaw Access Project

author: DONALD L. Corbin, Justice. Annabelle Clinton IMBER, Justice,

license: Public Domain

text:
    Floyd G. VILLINES III et al v. PULASKI COUNTY BOARD of EDUCATION et al.

    99-1405
    14 S.W.3d 510
    Supreme Court of Arkansas
    Opinion delivered April 20, 2000

      David B. Bogará, Chancellor;

      Pulaski County Attorney’s Office, by; Amanda Mankin, Karla M. Burnett, and Keith L. Chrestman, for appellants.

      W. Paul Blume, for appellees.
   DONALD L. Corbin, Justice.

Appellants Floyd G. “Buddy” stice. official capacity as Pulaski County Judge, and Pat Tedford, in her official capacity as Pulaski County Treasurer, appeal the judgment of the Pulaski County Circuit Court finding that Appellants were estopped from removing $109,332.51 from the Pulaski County Common School Fund and requiring a return of the money to that fund. Appellees Pulaski County Board of Education and its individual members cross-appeal the trial court’s finding that Act 213 of 1997 is constitutional. We have jurisdiction of this case pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (b)(1) & (6). Appellants argue that the trial court lacked subject-matter jurisdiction to hear this claim. We agree, and we reverse.

The record reflects that for a period of approximately forty years prior to 1997, the Pulaski County Treasurer divided penalty payments from delinquent taxes equally between the common school fund and the Pulaski County General Fund. The parties agree that until February 19, 1997, there was no statutory authority for such division and disbursement. On that date, however, Governor Mike Huckabee signed Act 213, now codified at Ark. Code Ann. § 26-36-209 (Supp. 1999), which provided that all such penalties are to be divided equally between the common school fund and the county general fund if such division was the practice at the time of the statute’s enactment.

On March 27, 1997, Appellant Villines signed an executive order removing all funds placed in the common school fund for the months of January, February, and March 1997. Those funds totaled $109,332.51, and were subsequently transferred to the county general fund. Appellees filed suit in circuit court alleging that the order removing the funds violated section 26-36-209. Specifically, Appellees contended that Appellants were estopped from removing such funds because of their prior practice of placing those monies in the common school fund.

Appellees sought a declaratory judgment that the removal was illegal and further requested that Appellants be required to return the money to the common school fund. Appellants filed a motion to dismiss pursuant to Ark. R. Civ. P. 12(b)(1) and (6) alleging lack of subject-matter jurisdiction and failure to state a claim upon which relief could be granted. In an order dated May 20, 1998, the circuit court found that it had jurisdiction over the subject matter of the claim. The court went on to find that Act 213 was constitutional because its provisions did not conflict with Article 16, § 11, of the Arkansas Constitution. The court further found that the Act was “enacted” for purposes of the statutory language on February 19, 1997, the date the governor signed the act. Finally, the court reserved ruling on the issue of whether the State was estopped from discontinuing payments or withdrawing payments already made. A hearing was held on February 1, 1999, to decide the estoppel issue. The circuit court ultimately entered an order finding that Appellants were estopped from removing the $109,332.51 and required Appellants to return the money to the common school fund. This appeal followed.

Appellants’ initial argument on appeal is that the circuit court lacked subject-matter jurisdiction to hear this claim because county courts have jurisdiction over cases involving county funds. Appellees respond by arguing that school taxes are the subject of this lawsuit, not county taxes; thus, county court does not have jurisdiction. We agree with Appellants that the circuit court lacked subject-matter jurisdiction.

Article 7, § 28, of the Arkansas Constitution provides that county courts shall have exclusive original jurisdiction over all matters relating to county taxes. This jurisdictional rule is also set out in Ark. Code Ann, § 14-14-1105(b)(1) (Repl. 1998). It provides in relevant part:

Jurisdiction shall include all real and personal ad valorem taxes collected by a county government, including all related administrative processes, assessment of property, equalization of assessments on appeal, tax levies, tax collection, and distribution of tax proceeds.

Moreover, this court has repeatedly held that county courts have exclusive jurisdiction in all matters relating to county taxes. Pockrus v. Bella Vista Village Property Owners Ass’n, 316 Ark. 468, 872 S.W.2d 416 (1994); McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990). Even though the present matter does not involve a county tax, it certainly involves a matter relating to a county tax, namely, the assessment of a penalty resulting from the delinquent payment of county taxes.

Appellees attempt to argue that this matter involves an illegal exaction because a tax levied for schools was being used for another purpose in contravention of Article 16, § 11. This argument fails for two reasons. First, this matter does not involve any tax, but rather a penalty assessed because of late payment of all ad valorem taxes, not just school taxes. Second, the issue here is one involving a procedural matter, namely, how to distribute collected penalties. This is more analogous to those procedural matters involving erroneous assessments or collections. In Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809, reh’g granted on other grounds, 321 Ark. 116-A, 901 S.W.2d 809 (1995), this court pointed out the distinction between a suit alleging that a tax is illegal and one alleging that a lawful tax is being erroneously assessed or collected. With regard to the latter, we stated that subject-matter jurisdiction belonged exclusively in county court. Likewise, subject-matter jurisdiction over this matter belongs exclusively in county court. Because we hold that the circuit court lacked subject-matter jurisdiction to hear this claim, it not necessary to address Appellants’ other points on appeal or Appellees’ point on cross-appeal. We thus reverse and dismiss this matter.

Glaze and Imber, JJ., concur.

Annabelle Clinton IMBER, Justice,

concurring. I concur stmajority ice, further expand on the majority’s analysis regarding whether the penalty payments from delinquent ad valorem taxes involve “monies arising from a tax levied for one purpose” under Article 16, § 11, of the Arkansas Constitution. Although a penalty certainly is a sum of money, the assessment of a penalty occurs only when there is a late payment of the tax. Thus, the money derived from a penalty arises from the late payment of the tax and not directly from the tax itself. Moreover, because the penalty is an amount certain (ten percent of the delinquent tax), it does not represent an interest charge for the use of the tax money over time. For these reasons, it is reasonable to conclude that the assessment of a penalty on delinquent ad valorem taxes is a punishment for late payment of those taxes. Consequently, the monies collected as a result of those penalties arise from the late payment of ad valorem taxes and not from the taxes themselves.

Glaze, J., joins in this concurrence.


author: ROBERT L. Brown, Justice.

text:
    Sue BURKE v. Kenneth ELMORE, Vicki Strange, Craig Cotner, Arnold Elmore, and the City of Huntington
    99-1376
    14 S.W.3d 872
    Supreme Court of Arkansas
    Opinion delivered April 20, 2000
    [Petition for rehearing denied May 25, 2000.]

      J. Michael Fitzhugh, Judge;

      Oscar Stilley, for appellant.

      Orville C. Clift, P.A., by: Orville C. Clift, for appellees.
   ROBERT L. Brown, Justice.

Appellant Sue Burke is a sticeCity . Huntington, a city of the second class located in Sebastian County. She brought suit on behalf of herself and other adversely affected taxpayers against the appellees who are various city officials as well as the City itself for the refund of funds which, she contended, were illegally paid and, therefore, constituted an illegal exaction. The circuit court denied her relief. She now appeals that order and contends that (1) there is no statutory authority permitting the mayor of the City to authorize purchases and to contract for labor and materials up to $5,000, and (2) health insurance premiums were illegally paid on behalf of the City’s waste water operator, and he should be required to refund that money to the City. We agree on both points and reverse the circuit court’s order.

On June 22, 1998, Burke filed suit, alleging that certain actions taken by the City amounted to an illegal exaction. One of her allegations concerned an ordinance passed by the city council on June 9, 1986. According to the complaint, this ordinance was based on Ark. Code Ann. § 14-58-303 (Repl. 1998), which provides that cities of the first class may enact an ordinance delegating to the mayor the authority to make purchases and contract for labor and materials when the amount involved is less than $10,000 without prior consultation with the city council. Burke asserted in her complaint that because Huntington is a city of the second class, the delegation of authority to the mayor pursuant to § 14-58-303 was unauthorized and illegal.

A second allegation in the complaint concerned the payment of health insurance premiums for Arnold Elmore, the waste water operator. On December 11, 1990, the city council approved the payment of this insurance for the mayor, -the recorder, and the public works director. At the time of this approval, the public works director was Kennith Elmore, who was also the waste water operator. When Kennith Elmore assumed the position of mayor, Craig Cotner was hired as the public works director, and Arnold Elmore was hired as the waster water operator. However, the city council never approved payment of health insurance benefits for the waste water operator, Arnold Elmore. In light of this, Burke alleged in her complaint that Arnold Elmore should repay the health insurance premiums. She also alleged wrongful payment of continuing education expenses and cellular phone bills, but these matters are not issues in this appeal.

Burke prayed for a declaratory judgment finding that City Ordinance 86-6 violated § 14-58-303 in that that statute did not include cities of the second class and, further, that the health insurance premiums were wrongfully paid. The circuit court, following a bench trial, found in its order that because the ordinance was passed to enable the City to perform essential and indispensable functions incidental to the operation of the municipality and the administration of local affairs, it did not violate Arkansas law. The circuit court also found that the City wrongfully paid insurance premiums for the benefit of Arnold Elmore in the amount of $5,280, but because Elmore was not guilty of fraud or misrepresentation, it would be inequitable to require him to repay the amount when he had rendered services to the City in good faith. Accordingly, the circuit court declined to order Elmore to refund the premiums paid on his behalf to the City.

I. Mayor’s Authority to Purchase and to Contract

Burke first contends on appeal that there is no statutory authority that allows cities of the second class to pass an ordinance authorizing their mayors to make purchases up to $5,000 or to contract for labor and materials up to the same amount. She points out that while this court has held on occasion that cities of the second class are by implication deemed to be included in statutes made specifically applicable to the cities of the first class, this implied authority is not applicable here where the power involved is merely for convenience and is not indispensable. The appellees counter that this authority for the mayor is essential for the efficient operation of the City and that constant consultation with the city council would impede day-to-day purchases and contracts made on the City’s behalf.

The pivotal issue in this case is whether the City had the authority to enact Ordinance 86-6. As already noted, the circuit court found that Ordinance 86-6 was passed to enable the City to perform essential and indispensable functions incidental to the operation of the City. Our standard of review of a circuit court’s finding following a bench trial is whether that finding was clearly erroneous. City of Pocahontas v. Huddleston, 309 Ark. 353, 831 S.W.2d 138 (1992).

This court has often stated that municipalities are creatures of the legislature and as such have only the power bestowed upon them by statute or by the Arkansas Constitution. Jones v. American Home Life Ins. Co., 293 Ark. 330, 738 S.W.2d 387 (1987). See also City of Ft. Smith v. O.K. Foods, Inc., 293 Ark. 379, 738 S.W.2d 96 (1987); City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982). Additionally, this court has held that any substantial doubt concerning the existence of a power in a municipal corporation must be resolved against the City. City of Little Rock v. Cash, supra. Recently, this court summarized what powers can be exercised by a municipality:

Cities have no inherent powers and can exercise only (1) those expressly given them by the state through the constitution or by legislative grant, (2) those necessarily implied for the purposes of, or incident to, these express powers and (3) those indispensable (not merely convenient) to their objects and purposes.

Cosgrove v. City of West Memphis, 327 Ark. 324, 326, 938 S.W.2d 827, 828 (1997).

The statute from which the City purports to get its power is § 14-58-303. The relevant portions of that statute read:

(a) In a city of the first class, the mayor or his duly authorized representative shall have exclusive power and responsibility to make purchases of all supplies, apparatus, equipment, materials, and other things requisite for public purposes in and for the city and to make all necessary contracts for work or labor to be done or material or other necessary things to be furnished for the benefit of the city, or in carrying out any work or undertaking of a public nature therein.
(b) (1) The municipal governing body shall provide, by ordinance, the procedure for making all purchases which do not exceed the sum of ten thousand dollars ($10,000).

Ark. Code Ann. § 14-58-303(a) & (b)(l)(Repl. 1998) (emphasis added).

By the clear terms of the statute, it only applies to cities of the first class. Thus, the first category for establishing a municipality’s power under Cosgrove v. City of West Memphis, supra, that is, an express grant of the authority, is inapposite to the instant case. We further conclude that the second and third categories for establishing a city’s authority under Cosgrove have not been met.

The circuit court based its finding that the mayor’s power was either incidental to an express power or indispensable on two cases and cited Conner v. Burnett, 216 Ark. 559, 226 S.W.2d 984 (1950), and Weeks v. Texarkana, 50 Ark. 81, 6 S.W. 504 (1887). Neither of these cases, however, is controlling. In Weeks v. Texarkana, supra, this court held that even though the statute at issue did not expressly authorize the council of an incorporated town to compensate its recorder, because “onerous duties are devolved upon him, requiring time and labor for their performance, such power may be fairly inferred as essential to the purposes of the incorporation. Otherwise the efficiency of the municipal government might be crippled and the best interests of the town suffer, from the impossibility of procuring a competent man, who would give his services gratuitously” Id. at 83, 6 S.W. at 505. We held, in essence, that compensation of a recorder was indispensable to the efficient administration of city government.

In Conner v. Burnett, supra, the plaintiff filed suit, claiming that a city of the second class was not authorized to vary or increase the compensation for a marshal fixed by statute. The statute at issue stated that the marshal of a city of the second class “shall receive like fees as sheriffs and constables in similar cases.” Id. at 560, 226 S.W.2d at 984 (citing Ark. Stat. Ann. § 19-1104). This court held that the General Assembly intended to and did authorize cities of the second class to pay their marshals a salary and cited the statute that gave cities of the first class power to fix salaries for their municipal officers. We noted that though this same power was not expressly given to cities of the second class, this court had held that “the statute does by implication delegate that power to these smaller municipalities.” Id. (citing Weeks v. Texarkana, supra.) Moreover, we note that the increased salary for increased duties was ancillary to the statutory authority setting the marshal’s compensation in the same range as that of sheriffs and constables for like cases.

We turn then to the case at hand. We observe initially that there is a problem in this court’s simply expanding the scope of § 14-58-303 to second-class cities. If the General Assembly had intended to include cities of the second class, it easily could have done so. There are many instances in the code where the General Assembly has made statutes specifically applicable to both cities of the first and second classes. See generally Ark. Code Ann. §§ 14-234-302 (Repl. 1998) (power to create commission to operate waterworks); 14-262-105 (Repl. 1998) (power to make expenditures for public health); 14-269-201 (Repl. 1998) (power to create recreation commission); 14-301-109 (1987) (power to compel railroad to provide public foot-walk over railroad tracks). Thus, unless Ordinance 86-6 falls within the parameters of the remaining two categories of Cosgrove, the clear language of § 14-58-303 should control.

We find no basis for concluding that the purchasing and contracting power in the City’s mayor under Ordinance 86-6 is authority that is incidental to an express power. The remaining issue then is whether the mayor’s purchasing authority can be deemed to be essential or indispensable as opposed to merely convenient. The trial court relied on the testimony of appellee Vicki Strange, the recorder/treasurer for the city, in determining that it would be inefficient and unnecessary to go through the city council for insignificant matters. Ms. Strange testified at one point: “We have, say for example, a generator or whatever breakdown at the waste water plant and it is going to cost $3300.00, and we have this waste water running all over town. Yeah, we need something like this so we can immediately repair that and not endanger the citizens.”

This was the only testimony regarding the necessity for Ordinance 86-6. There was nothing in the record about how often the city council meets in Huntington or how cumbersome it would be to call city council meetings. Simply because a witness testifies that it is inefficient and unnecessary to go through the city council for purchasing matters does not mean the purchasing and contracting power in the mayor is essential to the operation of the City. Moreover, it is difficult for us to see why the city council should not be summoned into session for emergency situations such as those described by Ms. Strange. It sta to reason that, as a practical matter, the mayor’s purchasing and contracting authority at issue in this case is used more for mundane matters and as a matter of convenience than for purchasing equipment or contracting for labor and materials in times of crisis. Powers assumed by a city merely for convenience do not qualify as indispensable or implied powers. See Arkansas Utilities Co. v. City of Paragould, 200 Ark. 1051, 143 S.W.2d 11 (1940). As such, it does not meet the criteria for an essential or indispensable power.

We reverse the circuit court on this point.

II. Health Insurance Benefits

For her second point, Burke urges that the circuit court erred in finding that because Arnold Elmore acted in good faith, he should not be required to refund the amounts paid on his behalf by the mayor for his health insurance premiums. Burke directs this court’s attention to Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999), where we held that even though the quorum court had acted in good faith in using county funds to pay their own health insurance premiums, those amounts paid had to be refunded to the county because they were not authorized by then existing state law. The appellees respond that the circuit court did not err in its finding on this point, because Elmore had indeed rendered services to the City in good faith. They further point out that like the other City officials who received health insurance benefits as part of their compensation packages pursuant to city council approval, Elmore, as the waste water operator, provided essential and similar services to the City. The City distinguishes the Massongill case by emphasizing that here the mayor authorized Elmore to receive insurance benefits and Elmore was not a part of that decision, whereas in Massongill the quorum court members voted to provide themselves with health insurance benefits.

The circuit court did find in the instant case that the insurance premiums paid on behalf of Arnold Elmore were unauthorized by city ordinance and thus were illegal. However, the circuit court specifically found that Elmore did not need to refund the sums because he “was not guilty of fraud or misrepresentation, but was the beneficiary of what the City thought was a justified payment.” The court added that it would be unjust and inequitable to require repayment when Elmore had rendered services to the City in good faith.

In Massongill v. County of Scott, supra, this court did deal with a similar issue. The quorum court had enacted an ordinance providing for payment of their insurance premiums, and we held that the quorum court members were recipients of benefits that were unlawfully paid, and as such, the members were required to refund the money unlawfully paid. We said:

This case is not about the good faith of the quorum members. We do not question whether they acted in good faith in passing the ordinance at issue or in accepting the benefits received by the county. The simple fact is that monies were paid for insurance premiums to their benefit in accordance with City Ordinances 96-3 and 95-3 which were not authorized by the then existing state law. Our Constitution gives the people the right to seek recovery of such monies. . . . Recovery is permitted from the quorum court members not as a result of their legislative actions but because they were the recipients of benefits found to be unlawfully paid. No action would be against them personally had they received no personal benefit from expenditure of county funds.

Id. at 286, 991 S.W.2d at 108.

The City is right that the facts here are different in that Elmore, unlike the quorum court, had no role in the decision to provide him health insurance benefits as part of his compensation package. However, the fact remains that those benefits were not authorized by ordinance and were therefore improper and illegal. Additionally, in Massongill, this court required repayment of the funds received by the quorum court members, not because they enacted the ordinance granting the benefits, but because they were recipients of benefits found to be unauthorized. We were absolutely clear that good faith does not matter in such an instance. What matters is whether the benefits were unlawfully paid.

We conclude that the insurance premiums paid on behalf of Arnold Elmore were unlawfully paid by the mayor without city council approval. As was the case in Massongill, the premium amounts must be refunded to the City.

We reverse the circuit court and remand the matter for further proceedings as required by this opinion.

       At the time the Huntington ordinance was enacted, § 14-58-303 had a $5,000 limitation. The limit was raised to $10,000 by Act 812 of 1995.

       At various times, the name of the appellee, Kennith Elmore, appears as Kenneth Elmore in the record.

       This situation is different from that in Biedenharn v. Hogue, 338 Ark. 660, 1 S.W.3d 424 (1999), where the compensation received by Hogue was authorized by law and, hence, was not illegal.


author: Annabelle Clinton Imber, Justice.

text:
    William Martin O’FALLON, Administrator of the Estate of Barney Laron “Ronnie” O’Fallon, Deceased v. Ronnie O’FALLON, By and Through His Next Friend, Linda Ngar
    99-806
    14 S.W.3d 506
    Supreme Court of Arkansas
    Opinion delivered April 20, 2000

      Robert C. Vittitow, Chancellor;

      Gibson & Hashem, P.L.C., by: Paul W. Keith, for appellant.

      Ball, Barton & Hoffman, A Prof’l Ass’n, by: David Hoffman, for appellee.
   Annabelle Clinton Imber, Justice.

Barney Laron “Ronustice. May 3, 1997, and was survived by three children. His oldest son, appellant William Martin O’Fallon, was appointed administrator of the estate by the Desha County Probate Court and, pursuant to the probate court’s order, proceeded to collect the assets of the estate. One of those assets was a 1996 Chevrolet Camaro automobile that had been purchased by the decedent two weeks prior to his death and delivered to his seventeen-year-old son, appellee Ronnie O’Fallon. After the administrator of the estate took possession of the vehicle, Ronnie O’Fallon filed a motion in the probate court for return of the property. He alleged that the “vehicle was intended to be a gift to [him] and from and after the purchase of the vehicle the Decedent never had possession of same.” He also sought to have the vehicle returned to him because it was necessary for his transportation to and from school and work. Ronnie O’Fallon later amended the motion to request that the administrator be required to pay the fees and costs of registration and sales tax on the vehicle in fulfillment of the gift from his father. The administrator denied that the decedent made a gift of the 1996 Chevrolet Camaro to Ronnie O’Fallon, and requested that any costs of registration or sales tax on the vehicle be assessed to the party ultimately found to be the rightful owner. After a hearing, the probate court found “by clear and convincing evidence” that the vehicle was a gift from the decedent to Ronnie O’Fallon and ordered the estate to pay the sales tax, registration fees, and all charges necessary for proper licensing and registration of the vehicle. From that decision, the administrator appealed to the Arkansas Court of Appeals, which certified the case to this court. We reversed and remanded because the probate court was without jurisdiction to adjudicate Ronnie O’Fallon’s claim to the car as an alleged donee of a gift made prior to the decedent’s death. O’Fallon v. O’Fallon, 335 Ark. 229, 980 S.W.2d 246 (1998). We further held that the appropriate jurisdiction for the matter was chancery court. Id.

Pursuant to our decision, the matter was transferred to the Desha County Chancery Court. Ronnie O’Fallon then filed a motion for judgment on the record and asked the chancery court to enter judgment based upon the record of the probate court, where the matter had been fully tried before the same judge. The chancellor granted the motion, finding that the 1996 Chevrolet Camaro purchased by the decedent prior to his death was a gift to Ronnie O’Fallon and ordering the estate to pay the sales tax, registration fees, and all other charges necessary for proper licensing and registration of the vehicle. From that order, the administrator again appealed to the Arkansas Court of Appeals, which certified the case to this court as a second appeal pursuant to Ark. Sup. Ct. R. 1-2(a)(7).

For his first point on appeal, the administrator challenges the chancellor’s finding that the decedent made an inter vivos gift of the vehicle to Ronnie O’Fallon. Our law determining a valid inter vivos gift is-clear and well established. We have stated that a valid inter vivos gift is effective when the following requirements are proven by clear and convincing evidence: (1) the donor was of sound mind; (2) an actual delivery of the property took place; (3) the donor clearly intended to make an immediate, present, and final gift; (4) the donor unconditionally released all future dominion and control over the property; and (5) the donee accepted the gift. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 827 (1992) (citing Wright v. Union Nat’l Bank, 307 Ark. 301, 304, 819 S.W.2d 698, 700-01 (1991)).

In the case at hand, it is undisputed on appeal that the donor, Barney O’Fallon, was of sound mind, that there was actual delivery, and that the donee, Ronnie O’Fallon, accepted the car. The administrator’s argument focuses instead on the evidence that pertains to the other two requirements for a valid inter vivos gift; that is, whether Barney O’Fallon intended to make the automobile a gift and whether he relinquished dominion and control over the automobile. In making his argument, the administrator misstates our standard of review in chancery cases when he contends that the chancellor’s finding of a valid inter vivos gift is not supported by competent or substantial evidence.

We review chancery cases de novo on the record, but we will not reverse a finding by the chancellor unless it is clearly erroneous. Ark. R. Civ. P. 52(a); Ross Explorations, Inc. v. Freedom Energy, Inc., 340 Ark. 74, 8 S.W.3d 511 (2000). 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. Saforo & Assocs., Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999); RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). We have held many times that 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, 330 Ark. 152, 951 S.W.2d 310 (1997).

The administrator first points out that Barney O’Fallon retained title to the automobile. We have held, however, that the intent of the donor can negate the fact that actual title was not transferred. Beatty v. USAA Cas. Ins. Co., 330 Ark. 354, 954 S.W.2d 250 (1997). Here, Ronnie O’Fallon’s mother, Linda Ngar, testified that Barney O’Fallon told her he “was going to buy” the car for Ronnie O’Fallon. Later, he told her that he “had bought” the car for Ronnie. Similar testimony was elicited from Mike Gorman, a loan officer with the Potlatch Credit Union where Barney O’Fallon applied for a loan to purchase the automobile. According to Mr. Gorman, Mr. O’Fallon told him that he was buying the car for his son who was getting ready to go to college. It should be noted that Ronnie O’Fallon was a minor at the time of the alleged gift and, therefore, could not acquire title to the automobile. Ark. Code Ann. § 9-26-103 (Repl. 1998). With regard to the fact that Barney O’Fallon insured the vehicle in his name and listed himself as the only driver, Mr. O’Fallon’s insurance agent, Sammy Mullís, testified that the children of a named insured may be covered as occasional drivers. Mr. Mullís further confirmed that parents do not always list their children as drivers on the family’s car insurance policy because the premium would be significantly higher.

The record reflects additional evidence regarding Mr. O’Fallon’s intent to make a gift and to relinquish all dominion and control over the automobile. Ms. Ngar testified that she drove Barney O’Fallon to Warren, where he picked up the 1996 Chevrolet Camaro from the dealership. He then drove it to Gillett, where Ronnie lived with his mother. After Ronnie got home from school, Mr. O’Faflon delivered the car and one set of car keys to Ronnie and gave the other set of keys to Ms. Ngar. According to Ms. Ngar, Mr. O’Fallon did not retain a set of keys to the car. Ronnie then drove his father back to his home in Arkansas City and returned to Gillett that same day in the 1996 Chevrolet Camaro. Ronnie testified that the keys and paperwork on the car were given to him by his father and that the car stayed with him in Gillett. Furthermore, Ronnie stated that his father may have driven the car one other time prior to his death “because of his truck [being] in a bad position, like blocking the driveway or something, to go to the store.” Finally, Ms. Ngar testified that Mr. O’Faflon told her on the Wednesday before his death that he planned to pay the sales tax on the vehicle the following Monday. His untimely death occurred on the intervening Saturday. Based on this record, we cannot say that the chancellor clearly erred when he found that the decedent made a valid inter vivos gift of the 1996 Chevrolet Camaro to his son, Ronnie O’Faflon.

For his second point on appeal, the administrator asserts that the trial court erroneously admitted several hearsay statements. Specifically, he contends that the testimony by Ms. Ngar and Mr. Gorman concerning Mr. O’Faflon’s statements to them that he was buying the car for Ronnie O’Fallon should have been excluded under the hearsay rule, which provides that hearsay is not admissible except as provided by law or by the Arkansas Rules of Evidence. Ark. R. Evid. 802. On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion. In re Estate of O’Donnell, 304 Ark. 460, 803 S.W.2d 530 (1991).

Arkansas Rule of Evidence 804(b)(3) allows a hearsay statement to be admitted if the declarant is unavailable and if the statement, at the time of its making, was so far contrary to the declarant’s pecuniary or proprietary interest that a reasonable person in the declarant’s position would not have made the statement unless he or she believed it to be true. Furthermore, we have held that such declarations against interest are admissible against all who succeed to the declarant’s interest or who claim under him. Smith v. Clark, 219 Ark. 751, 244 S.W.2d 776 (1952). See also Easterling v. Weedman, 54 Ark. App. 22, 922 S.W.2d 357 (1996) (holding that testimony concerning the decedent’s statement that he did not want his son to be a beneficiary or payee of certain annuities was admissible because the statement was against the interest of his estate). Here, Mr. O’Fallon was unavailable because he was deceased. Ark. R. Evid. 804(a)(4). Moreover, Mr. O’Fallon’s statements that he “was buying” or “had bought” the 1996 Chevrolet Camaro for his son were admissible because such statements were declarations against the pecuniary interest of his estate. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the decedent’s statements concerning his intent to make a gift of a 1996 Chevrolet Camaro to his son, Ronnie O’Fallon.

Affirmed.

       In his second point on appeal, the administrator asserts that this testimony by Ms. Ngar and Mr. Gorman should be excluded as hearsay, and, when so excluded, there is no substantial evidence upon which to find a valid inter vivos gift of the automobile to Ronnie O’Fallon. It is well settled, however, that in determining the sufficiency of the evidence, we review all of the evidence that was introduced at trial, whether correctly or erroneously admitted. Eichelberger v. State, 323 Ark. 551, 916 S.W.2d 109 (1996).


author: RAY THORNTON, Justice.

text:
    STATE of Arkansas v. Jimmie Don MONTAGUE
    CR 99-1461
    14 S.W.3d 867
    Supreme Court of Arkansas
    Opinion delivered April 20, 2000

      Don Langston, Judge; affirmed;

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellant.

      Smith, Maurras, Cohen, Redd, & Horan, PLC, by: Matthew Horan, for appellee.
   RAY THORNTON, Justice.

The State brings this appeal tpetition ice. of the decision of the Arkansas Court of Appeals in Montague v. State, 68 Ark. App. 145, 5 S.W.3d 101 (1999), in which the conviction and sentence of appellee Jimmie Don Montague for driving while intoxicated was set aside on the grounds that his conviction for both negligent homicide and DWI violated the double-jeopardy provisions of the Arkansas and United States Constitutions. The court of appeals reached this issue notwithstanding Montague’s failure to raise this argument to the trial court below, and the State sought review of this decision on the grounds that it conflicts with our prior decisions that double-jeopardy claims are not preserved for appeal if they are not raised below. We granted appellant’s petition to review. When we review a decision of the Court of Appeals we review the case as though it had been originally filed in this court. Maloy v. Stuttgart Memorial Hosp., 316 Ark. 447, 8723 S.W.2d 401 (1994), Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979). We agree with the State’s contention and affirm the conviction and sentence below

On the night of July 17, 1997, Montague went to a bar in Fort Smith, where he consumed a number of beers. He was returning home at 5:35 a.m. when he fell asleep at the wheel and crossed the center line, striking Nick Elliott’s car head-on. Elliott was killed. Police investigators took the defendant to the hospital, where an hour after the accident his blood-alcohol level was .12%. manslaughter and DWI, and a jury convicted him of the lesser-A breath test taken an hour following that test showed a blood-alcohol content of .10%. The State charged the defendant with included offense of negligent homicide, as well as the DWI. The jury set the sentence for DWI at twelve months in jail and assessed a $1000 fine and court costs. The jury set the sentence for negligent homicide at six years but recommended that the sentence be suspended, and also assessed a $5000 fine and court costs for that offense. The trial judge sentenced him accordingly and ordered that the sentences run consecutively. It is uncontested that the defendant did not challenge his sentence on the grounds of double jeopardy below.

The defendant appealed his sentence to the court of appeals on the grounds that in Tallant v. State, 42 Ark. App. 150, 856 S.W.2d 24 (1993), the court had held that a driver could not be convicted of both negligent homicide and DWI because the commission of one offense could not be established without the proving of the other. The State responded that the error was not preserved for appellate review because Montague had not raised the issue to the trial court. As pointed out by the State, we note that the defendant’s counsel had specifically sought to dissuade the jury from recommending a term of incarceration in the Department of Correction for negligent homicide by arguing for a term in the county jail for driving while intoxicated.

Notwithstanding the defendant’s failure to argue a violation of the double-jeopardy provision, the court of appeals reached the merits of this case, basing its opinion upon our decision in Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992), where we held that allegations of void or illegal sentences would be treated similarly to problems of subject-matter jurisdiction: by reviewing such allegations whether or not an objection was made in the trial court. Id. Treating the sentence as void or illegal on double-jeopardy grounds fails to consider a series of our cases in which we have declined to address on direct appeal an appellant’s arguments that a conviction violated double jeopardy where no objection was made to the trial court to set aside the conviction nor any argument made raising the issue of double jeopardy. Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982); Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993); Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994). Had the issue been raised to the trial court, the court could have considered the question whether the defendant’s conduct supported charges for two different offenses, and whether conviction of both crimes might be appropriate without violating the prohibition against double jeopardy. When the jury returned verdicts convicting Montague of both a lesser-included offense of the manslaughter charge, namely negligent homicide, and DWI, the defense counsel did not challenge the sentences, but argued for imposition of jailing on the DWI sentence.

The burden of obtaining a ruling is upon the movant, and unresolved questions and objections are waived and may not be relied upon on appeal. Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995). The circumstances of this case are similar to those in Leavy, supra, and Robinson, supra, where defense counsel sought leniency in the sentence, not to prevent any conviction or sentence at all for one of the offenses charged. Here, there was no motion to set aside the convictions nor any argument relating to double jeopardy. A timely and appropriate objection must be made to preserve an objection on appeal. We have not adopted the doctrine of plain error and we are not persuaded to do so in this case. Robinson v. State, 278 Ark. 516, 648 S.W.2d 444 (1983)(citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980)). The State argues that Montague is confusing the requirements of a direct appeal with those of a proceeding under Rule 37 of the Arkansas Rules of Criminal Procedure. See e.g. Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996); Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989); Watson v. State, 295 Ark. 616, 752 S.W.2d 240 (1988). Under Rule 37 proceedings, we have made an exception for some issues not raised below and preserved on appeal where the error is so fundamental as to render the judgment of conviction void and subject to collateral attack. Collins, supra. But cf. Rowbottom v. State, 341 Ark. 33, S.W.3d (April 13, 2000) (intention of the legislature to create two separate offenses arising from the same conduct can overcome an appellant’s assertion of violation of double-jeopardy provision in Rule 37 proceeding). We make no determination in this case whether a Rule 37 proceeding might be appropriate, but conclude that when the argument of double jeopardy was not raised below, we cannot consider that argument on direct appeal. Accordingly, we affirm the defendant’s conviction and sentence.

Affirmed.

       Defense counsel’s argument to the jury at sentencing was:
      Here’s another alternative. He can be sentenced to the county jail for up to a year. And let me tell you they don’t give you good time over there. You go for a year you serve for a year. So if you want to give my client time to serve let me suggest I think it would be a much safer environment in the county jail.


author: PER CURIAM.

text:
    Kevin Douglas CASEY v. STATE of Arkansas
    CR 00-388
    14 S.W.3d 525
    Supreme Court of Arkansas
    Opinion delivered April 20, 2000

      Joe Kelly Hardin, for appellant.
    No response.
   PER CURIAM.

Kevin Douglas Case, by his attorney, Joe Kelly Hardin, has filed a motion for rule on the clerk. The motion admits that the record was not timely filed.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part, but instead implies fault on the part of some unnamed third party. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

The present motion for rule on the clerk is denied.


text:
    Albert Allen DIRICKSON v. STATE of Arkansas
    CR 99-795
    14 S.W.3d 524
    Supreme Court of Arkansas
    Opinion delivered April 20, 2000

      Norman G. Cox, Sevier County Pub. Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Milton O. Fine, II, Ass’t Att’y Gen., for appellee.
   PER CURIAM.

Appellant Albert Allen Dirickson, by and through AM. attorney, has filed a motion for belated appeal. His attorney, Norman G. Cox, admits by motion that the appeal was not timely filed due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: W.H. “DUB” ARNOLD, Chief Justice. ANNABELLE Clinton Imber, Justice, TOM GLAZE, Justice,

text:
    Jim PARSONS v. STATE of Arkansas
    99-1176
    15 S.W.3d 339
    Supreme Court of Arkansas
    Opinion delivered April 27, 2000

      David S. Clinger, Judge;

      Stephen Lee Wood, P.A., by: Stephen Lee Wood, for appellant.

      Mark Pryor, Att’y Gen., by: Dermis R. Hansen, Ass’t Att’y Gen., for appellee.
   W.H. “DUB” ARNOLD, Chief Justice.

Appellant Jim Parsappeals tice. granting of summary judgment ousting him from his position on the Board of Trustees of Northwest Arkansas Community College. We reverse and remand the case.

Appellant was elected in the 1996 general election to position 3 on the Board of Trustees of Northwest Arkansas Community College (hereinafter referred to as the “Board”) for a six-year term. Parsons was elected “at large” by the combined electorate of the College’s district, that being the voters of the Bentonville school district and of the Rogers school district. Parsons lived within the Rogers school district at the time of his election.

Act 1258 of 1997, now codified at Ark. Code Ann. § 6-61-530 (Supp. 1999), was enacted subsequent to the 1996 general election. This Act authorized the Board to apportion its positions within the Bentonville and Rogers school districts according to population, “[beginning with the 1998 election ... so long as all board members are residents and qualified electors of the community college district and the school district....” (Emphasis added.)

On May 26, 1998, the Board approved a motion to apportion six of the nine Board positions to the Rogers school district and three positions to the Bentonville school district. Two of the then current Board members lived in Bentonville; the remaining seven members lived in Rogers. Three of the Rogers positions were up for election in 1998. Parsons voted in favor of the apportionment.

On June 23, 1998, it was reported that the member who occupied position 5 and who lived in Rogers would give up his seat so that it could be filled by someone from the Bentonville district in the upcoming election. On August 25, 1998, the Board approved a motion which apportioned positions 1, 5, and 9 to Bentonville and positions 2, 3, 4, 6, 7, and 8 to Rogers. Parsons, who held position 3, voted against this motion.

Parsons had moved to Bella Vista, which is within the Benton-ville school district, on or about August 9, 1998, although the date of the actual change of residency is unclear from the record. At any rate, Parsons did not inform the Board of his new address prior to August 25, 1998. After Parsons refused to resign from his position on the Board, the State brought an action for declaratory judgment and petition for ouster pursuant to Ark. Code Ann. § 16-118-104 (1987) or for a writ of quo warranto.

After a hearing on the State’s motion for summary judgment, the relief requested by the State was granted. The trial court found that Parsons had “disenfranchised” himself by moving his residence from Rogers to Bella Vista (Bentonville district) and was no longer qualified to serve under Ark. Code Ann. § 6-61-530. Rather than interpreting the Act as requiring any apportionment to fit the residency scheme of the presently seated Board members, as the “so long as” language clearly required, the trial court found the Act to be ambiguous, but nevertheless interpreted the Act as requiring Parsons to be a resident of the school district to which his position had been apportioned in the newly created apportionment scheme, even though he was elected to a six-year term prior to the effective date of the Act. Parsons had argued that Act 771 of 1999 amended Ark. Code Ann. § 6-61-530 to make the apportionment process inapplicable to members elected prior to the 1998 election. The trial court found that Act 771 of 1999 did not apply to appellant.

For his appeal, appellant contends that the trial court erred in granting summary judgment in favor of the State and seeks reversal as a result; he asserts the following in support of his position:

1) That Act 1258 of 1997 does not apply to a member of the Board of Trustees of Northwest Arkansas Community College who was elected on an “at large” basis in 1996 to a six-year term of office.
2) That Act 771 of 1999 amends Ark. Code Ann. § 6-61-530 to exclude members of the Board of Trustees of Northwest Arkansas Community College who were elected to their positions prior to the 1998 general election from the operation of Act 1258 of 1997.

We agree with appellant that the trial court erred in granting summary judgment in favor of the State and hereby reverse the trial court’s ruling.

I. Standard of Review

This court recently stated its standard of review for orders of summary judgment:

The law 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 entided to judgment as a matter of law. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189 (1998). 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 appellate 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 hght 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. Id.

Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000).

II. Propriety of Summary Judgment

The trial court found that no genuine dispute as to any material fact existed. Inconsistent with this finding, however, the court noted in Footnote 1 of its order granting summary judgment, that the date of the actual change of appellant’s residence was “unclear from the record.” We hold that the effective date of appellant’s residency change is a central issue in this case; as such, if that date is “unclear from the record,” then a genuine issue of material fact obviously existed at the time the trial court considered the State’s motion for summary judgment.

Although appellant did not raise this issue on appeal, we conclude that it must not be overlooked, as the trial court’s inconsistent finding amounts to error as a matter of law. Accordingly, we must hold that the trial court’s ruling granting said motion was in error and must be reversed. Because we have determined that the trial court’s order granting summary judgment must be reversed due to the existence of an unanswered material fact, it is unnecessary for us to reach the appellant’s other points on appeal.

Reversed and remanded.

Glaze and Brown, JJ., dissent.

ÍMBER, J„ concurs.

ANNABELLE Clinton Imber, Justice,

concurring. I concur sticeby , majority because the arguments made by both parties in this appeal clearly reflect the existence of a material issue of fact regarding the effective date of appellant’s residence change. According to appellant, he was living within the Bentonville school district when the board officially apportioned his position, which “goes to the heart of the trial court’s decision.” In contrast, the State asserts that appellant resided in the Rogers school district at the time the board apportioned position 5 to the Bentonville school district.

TOM GLAZE, Justice,

dissenting. The majority opinion departs ice, well-settled and governing standard of review that this court will not reverse the trial court on a point not raised below or argued on appeal. For this reason alone, this case should be affirmed. However, I would affirm the case on its merits.

In November of 1996, Jim Parsons was elected as an at-large member to position three of the nine-person Board of Trustees of the Northwest Arkansas Community College District, comprised of the Rogers and Bentonville School Districts. Parsons, as well as each other member, was elected to a six-year term. At that time, Parsons resided in the Rogers School District.

In March of 1997, the General Assembly enacted Act 1258 which provided the following:

Beginning with the 1998 election, if the members of the local board of a community college are elected at large and the community college district is composed of more than one school district, ... the board may apportion a certain number of positions on the board for each school district according to the most recent census information, so long as all board members are residents and qualified electors of the community college district and the school district.

Because the Northwest Community College District met Act 1258’s requirements that (1) its district be comprised of the two school districts and (2) it had members elected at large, Northwest’s Board held a meeting on May 26, 1998, and apportioned its nine board member positions between the Rogers and Bentonville School Districts, designating six positions for Rogers and three positions to Bentonville. Parsons’ position was one of the six apportioned to Rogers District, where Parsons resided. Incumbent board member Craig Young, position five, held the only position that was apportioned to a school district (Bentonville) where he did not reside; however, on June 23, 1998, Young agreed not to run for reelection to his position at the November 1998 election. To better define which positions were designated to the Rogers and Benton-ville Districts, the Board met on August 25, 1998, and clarified that positions 1, 5, and 9 were to be apportioned to Bentonville, and the remaining positions were assigned to Rogers. In sum, based on the information it had, the Board apportioned all positions, so the eight incumbent members (including Parsons) resided in the school district to which they were apportioned. The one incumbent member, who would no longer reside in the school district to which he was apportioned, had agreed to give up his position, thus permitting a person residing in the Bentonville District to fill Young’s vacancy. In these circumstances, the Board’s May 26 and August 25 meetings apportioning all nine positions met the requirements of Act 1258.

In conferencing this case, the suggestion was advanced that by the August 25 meeting, Parsons had already moved to the Benton-ville District and no longer resided in Rogers where the board continued to assign Parsons’s position. While Parsons averred that he had executed a contract on August 5, 1998, to buy a house in the Bentonville District and asserted that he had spent his first night on August 9, Parsons also said that the sale was not closed until September 24, and that he did not turn off the utilities to his Rogers home until September 24. He further said that he kept his move to the Bentonville District a secret until he knew the sale would close. In short, Parsons’s own statements reflect that he had not moved from his Rogers residence and domicile until September 24. Because Parsons chose not to remove his Rogers voting domicile and residence until September 24, he was well aware that his position had been assigned to Rogers and he knowingly vacated it.

The General Assembly enacted Act 1258 in order to have the seats on the Board apportioned in accordance with the census, and, at the same time, to prevent the disfranchisement of members who were then on the Board. Both of those objectives were met. Act 1258 was unambiguous in its requirements, and the Board’s actions complied with those requirements completely. It was Parsons who failed to abide by the Act’s dictates, and it is because of his secretive decision to move out of the district to which his seat was apportioned that he should be unable to continue serving in that position. Because Parsons faded to show the trial court erred in holding he disfranchised himself by moving his domicile to Beda Vista, we should affirm.

BROWN, J., joins this dissent.