author: ROBERT L. Brown, Justice.

text:
    Carl CROCKETT, Monica Crockett, and Michael Crockett v. Stewart ESSEX and Turpin Funeral Home, Inc.
    00-136
    19 S.W.3d 585
    Supreme Court of Arkansas
    Opinion delivered June 8, 2000

      Russell Rogers, Judge;

      Gary Eubanks & Associates, by: James Gerard Schulze and J. Todd Jones, for appellants.

      Kemp, Duckett Spradley, Curry & Arnold, by: James M. Duckett, for appellees.
   ROBERT L. Brown, Justice.

This appeal is from an order ice. summary judgment in favor of the appellees, Stewart Essex and Turpin Funeral Home. The appellants, Carl Crockett, Monica Crockett, and Michael Crockett (“the Crocketts”), who were the plaintiffs before the trial court, contended in their direct appeal that the trial court erred in granting summary judgment in favor of Essex and the funeral home. The court of appeals in a four-to-two decision agreed that the trial court’s summary judgment order should be reversed. Crockett v. Essex, 69 Ark. App. 45, 9 S.W.3d 561 (2000). Essex and the funeral home petitioned this court for review pursuant to Ark. Sup. Ct. R. 2-4(c), and we granted the petition. When we grant a petition for review, we consider the matter as if the appeal had originally been filed in this court. See Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). We affirm the trial court and reverse the court of appeals.

On August 19, 1997, Dorothy Lee Baker Crockett died in Arkansas County. She was the wife of Carl Crockett and the mother of Monica and Michael Crockett. Carl Crockett contracted with Turpin Funeral Home in Stuttgart to provide funeral and burial services. Stewart Essex is the funeral director of Turpin Funeral Home. On August 21, 1997, the funeral service for Dorothy Crockett took place at the funeral home, followed by her burial.

On January 2, 1998, the Crocketts filed a second amended complaint against Essex and the funeral home. In that complaint, they alleged the following conduct by the defendants in connection with Dorothy Crockett’s funeral:

• that Essex had urged participants to hurry and shorten the funeral service at the funeral home;
• that Essex hurried the hearse to the gravesite, leaving some mourners who would have been in the funeral procession behind and driving in excess of sixty-five miles per hour;
• that Essex and the employees and agents of the funeral home acted annoyed and hurried the burial service;
• that Essex, in an attempt to speed up the burial, put a disabled family member in another family member’s car and drove the vehicle over graves and grave stones; and
• that during the burial service, Essex got in his car and talked on his cellular telephone for an extended period of time.

The Crocketts claimed that these were negligent and intentional acts committed by Essex and the funeral home which were extreme and outrageous and resulted in emotional distress. They further claimed that the acts constituted a willful breach of contract. The Crocketts prayed for compensatory and punitive damages. Next, the Crocketts propounded interrogatories to Essex, which he answered under oath. According to the supplemental abstract filed by the appellees in this case, Essex gave the following answers:

INTERROGATORY NO. 22: Were you operating the hearse from Turpin Funeral Home to the Crockett gravesite on 8/21/97? If so, please state:
(a) Your best estimate of the top speed the hearse attained on the way to the Crockett gravesite?
(b) Whether the procession behind the hearse was orderly?
(c) The approximate distance between Turpin Funeral Home and the Crockett gravesite.
ANSWER: Yes.
(a) We try to maintain highway speed so not to interfere with other traffic.
(b) As far as I could tell.
(c) Twenty-Five (25) miles.
INTERROGATORY NO. 23: What is your best estimate of the time that elapsed between the time the Crockett service at Turpin Funeral Home ended and when the hearse departed for the gravesite?
ANSWER: Thirty (30) minutes.

Essex and the funeral home moved for summary judgment on the basis that the Crocketts had failed to establish any of their asserted causes of action, and they asked for dismissal of the complaint. Following arguments by counsel, the trial court entered an order granting the appellees’ motion for summary judgment.

In their appeal, the Crocketts claim that the trial court erred in granting summary judgment because their complaint did state a cause of action for the tort of outrage. We begin by observing that counsel for the Crocketts waived any argument concerning breach of contract at the hearing before the trial court. We further observe that no argument regarding a negligence claim is made in this appeal, and we conclude that the Crocketts have abandoned any claim that summary judgment was erroneously granted for that cause of action as well. We, thus, consider the Crocketts’ contention that their outrage claim should have survived a grant of summary judgment as their sole ground for reversal.

In this connection, the Crocketts maintain that the trial court granted a dismissal in its order because that is what the appellees asked for in their motion. Dismissal, they point out, is generally associated with a motion under Rule 12(b) of the Arkansas Rules of Civil Procedure. We disagree with the Crocketts’ argument. The motion in this matter was styled as one for summary judgment, and the motion asserted that the Crocketts had failed to establish any of their causes of action; not that they had failed to state a claim for relief. In addition, we presume that the trial court considered matters outside the pleadings, such as Essex’s answers to interrogatories, unless the court specifically excluded them. Martin v. Arthur, supra; Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). Consideration of matters outside the pleadings would convert a motion to dismiss into one for summary judgment in any event. Id. We conclude, accordingly, that the motion and subsequent order are for summary judgment, even though the motion sought “dismissal” of the Crocketts’ complaint.

In the case of Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997), this court set forth our standards of review for summary judgment appeals:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.
Renfro v. Adkins, 323 Ark. 288, 295, 914 S.W.2d 306, 309-10 (1996) (internal citations omitted); Cash v. Lim, 322 Ark. 359, 360-62, 908 S.W.2d 655, 656-57 (1995); Oglesby v. Baptist Medical Sys., 319 Ark. 280, 284, 891 S.W.2d 48, 50 (1995). Once a moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must demonstrate a genuine issue of material fact by meeting proof with proof. Renfro v. Adkins, supra.

Milam, 321 Ark. at 261-262, 937 S.W.2d at 656. Furthermore, the moving party may present pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, to support the burden of showing entitlement to summary judgment as a matter of law. See Stockton v. Sentry Ins., 331 Ark. 507, 989 S.W.2d 914 (1999); see also Ark. R. Civ. P. 56 (2000).

We turn then to the merits of this appeal and begin with a discussion of our caselaw relating to the tort of outrage. Two years ago, we described the elements of a tort-of-outrage claim:

To establish an outrage claim, a plaintiff must demonstrate the following elements: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency,” and was “utterly intolerable in a civilized community”; (3) the actions of the defendant were the cause of the plaintiff’s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996). This court gives a narrow view to the tort of outrage, and requires clear-cut proof to establish the elements in outrage cases. Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996). Merely describing the conduct as outrageous does not make it so. Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996). Clear-cut proof, however, does not mean proof greater than a preponderance of the evidence. Croom, 323 Ark. 95, 913 S.W.2d 283.

McQuay v. Guntharp, 331 Ark. 466, 470-471, 963 S.W.2d 583, 585 (1998). We have taken a strict approach in determining the validity of outrage cases, and recognized that “the tort of outrage should not and does not open the doors of the courts to every slight insult or indignity one must endure in life.” Travelers Ins. Co. v. Smith, 338 Ark. 81, 89, 991 S.W.2d 591 (1999), citing Tandy Corp. v. Bone, 283 Ark. 399, 405, 678 S.W.2d 312, 315 (1984).

Three of our outrage cases which deal with death appear especially pertinent to the instant case. They are: Travelers Ins. Co. v. Smith, supra; Neff v. St. Paul Fire and Marine Ins. Co., 304 Ark. 18, 799 S.W.2d 795 (1990); and Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984). In Travelers, the burial of the deceased was delayed by the insurance company’s failure to move with dispatch to have the requested autopsy performed. Due to this delay, the body was not embalmed, and it deteriorated to such an extent that the family could not have an open casket at the funeral. The family members reported that the delay in burial had caused extreme emotional distress, including anxiety over the lost chance to say farewell to their father and nightmares.

In our decision in Travelers, we recognized that a quasi-property right in dead bodies vests in the nearest relatives of the deceased and that the rights to possession, custody, and control of the body for purposes of burial are within the protection of the law. We noted in our decision that courts have recognized that there is a right to a decent burial, corresponding to the common-law right to bury one’s dead in order to maintain public health and human decency. Mindful of the importance in which our society and the common law have held the family’s right to bury their dead, and the civil liability imposed for the wrongful interference with that right, we held that the trial court correcdy denied a directed verdict in favor of the insurance company on the outrage claim.

The second case that bears mention is Growth Properties I v. Cannon, supra, where we affirmed compensatory and punitive damages for the tort of outrage. In that case, the cemetery owners constructed a french drain and in the process drove heavy equipment across several gravesites, which exposed the vaults of the plaintiffs’ deceased relatives. When the family members complained, one employee for the contractor countered that they should not return to the cemetery until the work was completed. We affirmed the damages awarded and emphasized that the construction company had alternative means to accomplish the drainage project which would not have involved desecration of the graves.

Finally, there is the case of Neff v. St. Paul Fire and Marine Ins. Co., supra. In Neff, a mother gave birth at a Fayetteville hospital to a stillborn fetus. The hospital released the fetus to the husband and father, who later that evening was arrested for DWI in Huntsville in the next county. Both the husband and the fetus were placed in the county jail. When the mother complained, a hospital employee told her that she could go to Huntsville to claim the fetus. We held that this activity by the hospital did not constitute the tort of outrage. We stated that the hospital had the right to release the remains to the husband-father, who was more at fault in his conduct than the hospital. We affirmed the grant of summary judgment in favor of the insurance carrier for the hospital.

The allegations in the case before us are that the funeral service and burial orchestrated by Essex and the funeral home were conducted in a hurried manner, that the hearse was driven too fast to the grave, that a disabled family member was taken by car over the graves of unknown persons, and that Essex talked on a cellular phone in his car for a prolonged period of time during the burial. The answers to interrogatories submitted by Essex contain an explanation for the speed maintained by the driver of the hearse. He explained that the funeral home tried to maintain highway speed so as not to interfere with other traffic; that as far as he could tell the procession behind the hearse was orderly; that it was about twenty-five miles from the funeral home to the grave site; and that the hearse did not leave the funeral home until thirty minutes after the service. The Crocketts presented no proof to refute Essex’s answers to interrogatories, which were submitted under oath.

While the conduct of the funeral home and Essex as its director may have been rude and illustrative of a lack of professionalism, we cannot say that the conduct was so extreme and outrageous as to be beyond all possible bounds of decency, and to be utterly intolerable in a civilized society. The body was not mishandled as was the case in Travelers Ins. Co. v. Smith, supra. Nor were the graves of deceased family members desecrated, which occurred in Growth Properties I v. Cannon, supra. We do acknowledge that family members of a deceased person are understandably more sensitive and vulnerable following the death of a close relative, rendering them more susceptible to outrageous conduct. But the facts asserted in this case simply cannot support an action for outrage.

Affirmed.


source: Caselaw Access Project

author: ANNABELLE Clinton Imber, Justice.

license: Public Domain

text:
    Belynda Faye GOFF v. STATE of Arkansas
    CR 99-285
    19 S.W.3d 579
    Supreme Court of Arkansas
    Opinion delivered June 8, 2000

      Jay T. Finch, Judge;

      Vowell & Atchley, P.A., by: Stevan E. Vowell; and Davis & Watson, P.A., by: Charles E. Davis, for appellant.

      Mark Pryor, Att’y Gen., by: Vacia Berger, Ass’t Att’y Gen., for appellee.
   ANNABELLE Clinton Imber, Justice.

Appellant, Belynda Faye sticeby . jury of first-degree murder in the death of her husband and was sentenced by the jury to life in prison. We affirmed her conviction on appeal, but remanded the case for resentencing because the trial judge had improper contact with the jury during deliberations. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997) (Goff I). Following a second sentencing hearing, a new jury again sentenced Mrs. Goff to life in prison. From that decision comes this appeal.

Mrs. Goff raises five points for reversal: (1) the trial court erred by instructing the jury about meritorious good time and in allowing the State to argue the same to the jury; (2) the trial court erred in not allowing the appellant and her witnesses to testify fully and unfettered with regard to appellant’s innocence; (3) the trial court clearly abused its discretion by unduly restricting voir dire by appellant’s attorney; (4) the trial court erred by denying the appellant the right of allocution; and (5) the trial court abused its discretion and commented on the evidence by requiring that the jury look at all of the evidence when they requested to view only one specific piece of evidence. We affirm.

1. Meritorious Good-Time Instruction

For her first point on appeal, Mrs. Goff argues that the meritorious good-time instruction was used improperly by both the trial court and the prosecuting attorney. The trial court instructed the jury about the possibility of parole and meritorious good-time credit using a modified version of AMI Crim. 2d 9402. Mrs. Goff does not object to the form of the instruction; nor did she object to the jury being so instructed at trial. She does argue, however, that the trial court improperly allowed the prosecuting attorney to argue meritorious good time before the jury in closing arguments, thereby prejudicing the minds of the jurors against a term of years.

During closing arguments, the prosecuting attorney attempted to explain the effect of the meritorious good-time provision to the jury. Fie argued that if Mrs. Goff were sentenced to a term of twenty years, she could be eligible for parole in ten years, and with meritorious good time could even be out of prison in just five years. Mrs. Goff objected to this argument and requested an admonition by the trial court. At this request, the following admonishment was given:

Ladies and gentlemen of the jury, with regard to my instruction to you concerning deliberations on the sentence to be imposed, . . . I’m going to give you a copy of that instruction before you go to deliberate, as well as a copy of the other instructions that we have prepared in this case, and . . . if you have questions concerning the applicability of the law, you should refer to that instruction for that. Once again, arguments of counsel in this case are not the law. What I give you is the law.

The prosecuting attorney then summarized the instruction to the jury without further objection.

Mrs. Goff cannot complain on appeal when she received all of the relief she requested. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997). She objected to the prosecuting attorney’s arguments concerning parole and meritorious good time and requested an admonition to the jury. The objection was sustained and the jury was admonished. There is no error for our review. Mrs. Goff did not object to the State’s second discussion of AMI Crim. 2d 9402; nor did she argue that the jury admonition was inadequate. Her failure to preserve this argument by timely objection constitutes a waiver and precludes our appellate review. Hill v. State, 341 Ark. 211, 16 S.W.3d 539 (2000).

Mrs. Goff also argues that the judge erroneously read AMI Crim. 2d 9402 to the jury a second time in response to a question submitted by the jury concerning the effect of a sentence of life. During deliberations, the jury submitted a question to the trial court, asking whether a sentence of life actually meant life, or if a life sentence is actually a term of years. When a jury requests additional instructions during deliberations, the trial court must provide the additional instructions unless “the jury may be adequately informed by directing its attention to some portion of the original instructions.” Ark. R. Crim. P. 33.7. We do not reverse the trial court in this matter absent an abuse of discretion. Wood v. State, 276 Ark. 346, 635 S.W.2d 224 (1982). In the instant case, the jury asked for additional instruction on the meaning of life in prison. We cannot say the trial court abused its discretion in determining that the jury could be adequately informed by directing its attention to AMI Crim. 2d 9402 for clarification of the meaning of fife in prison.

2. Testimony Concerning Mrs. Goff’s Innocence

Anticipating that Mrs. Goff might seek to introduce testimony-asserting her innocence during the second sentencing trial, the State filed a motion in limine to exclude any such testimony. The trial court took the matter under advisement until the trial, at which time it excluded any testimony by witnesses for Mrs. Goff expressing a belief in her innocence. However, the trial court denied the motion in limine with regard to Mrs. Goff’s own testimony. The trial court allowed Mrs. Goff to testify as to her innocence using the same words she used at her first sentencing. The record demonstrates the following testimony by Mrs. Goff at the first sentencing: “I still admit no guilt. I am not guilty of this crime.” Despite the trial court’s favorable ruling, Mrs. Goff did not testify to her innocence at the second sentencing trial in the words that she had used in her previous testimony.

Mrs. Goff now argues on appeal that her right to testify in her own behalf was violated by the trial court’s refusal to allow her and her witnesses to profess her innocence before the jury during the second sentencing proceeding. She proclaims that “the most fundamental right of a criminal defendant is to profess his or her innocence throughout the entirety of the criminal process and continue to do so until the day they die.” Because she was not allowed to testify as to her own innocence, Mrs. Goff contends that she was prejudiced due to the fact that the new jury impaneled at the second sentencing trial would not know that she had ever professed innocence.

We have consistently held that in order to preserve an issue for appellate review, the objection below must be specific enough to apprise the trial court of the particular error about which appellant complains. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991). Even constitutional arguments will not be considered on appeal if a specific objection has not been raised below. Kittler v. State, supra.

Mrs. Goff’s only argument before the trial court regarding the opinion testimony of third-party witnesses was that she should be allowed to put on evidence of innocence if the trial court allowed the State to retry its case. The only argument Mrs. Goff raises on appeal is that the denial of such testimony violated her constitutional rights. At no time did Mrs. Goff argue to the trial court that she was constitutionally entitled to present the opinion testimony of third parties as to her innocence during sentencing; nor does she pursue her initial argument on appeal. Thus, we are foreclosed from addressing the merits of either argument on appeal. Terry v. State, supra; Kittler v. State, supra.

Likewise, we are precluded from addressing whether the trial court unduly restricted Mrs. Goff’s right to testify in her own behalf. Although Mrs. Goff protests that she was precluded from testifying to her own innocence, the trial court did in fact allow her to testify that she was not guilty by using those words which she had used in her previous testimony. Mrs. Goff cannot appeal a favorable ruling. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999). Furthermore, she failed to take advantage of the trial court’s favorable ruling.

Mrs. Goff argues, however, that she should have been allowed to testify unfettered, in her own words, rather than being restricted to her previous testimony. To challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so we can review the decision, unless the substance of the evidence is apparent from the context. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999) (citing Ark. R. Evid. 103(a)(2)); Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). Certainly, as Mrs. Goff argues, it is evident from the context of the various arguments that she wished to testify about her innocence. Flowever, absent a proffer of the testimony she sought to admit, we cannot tell how the testimony she claims she was precluded from giving differs from that which the trial court ruled admissible. Because she failed to proffer the testimony she wished to present, Mrs. Goff cannot now claim that the trial court erred by excluding it. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999) (citing McGehee v. State, 338 Ark. 1532, 175, 992 S.W.2d 110, 124 (1999)).

3. Voir Dire

During voir dire, Mrs. Goff requested permission to question the jury as to its understanding of the limitations on her ability to put on proof. Specifically, she wanted to ask the jury if they understood that the State would be allowed to put on evidence of the nature and circumstances of the crime but that she could not put on any evidence of innocence. Mrs. Goff wished to ask the jury if they understood that the failure to put on any evidence of innocence did not mean she agreed with the State’s theory of the case. The trial court did not permit this line of questioning because it had not yet determined whether evidence of innocence would be excluded. In fact, the trial court eventually granted Mrs. Goff permission to testify as to her own innocence, although she failed to take advantage of the opportunity. She now argues that the trial court erred by restricting the voir dire in this manner.

Rule 32.2 of the Arkansas Rules of Criminal Procedure provides for voir dire examination of potential jurors and specifically grants the trial judge the power to “permit such additional questions by the defendant or his attorney and the prosecuting attorney as the judge deems reasonable and proper.” See also Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). The extent and scope of voir dire is left to the sound discretion of the trial judge, whose ruling will not be disturbed on appeal absent an abuse of discretion. Christopher v. State, 340 Ark. 404, 10 S.W.3d 852 (2000) (citing Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998); Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996)). The purpose of voir dire is to discover if there is any basis for a challenge for cause and to gain knowledge for the intelligent exercise of peremptory challenges. Christopher v. State, supra (citing Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992); Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983)). The proper role of a trial judge in voir dire is to direct the process, and he is given great discretion to ensure that no undue advantage is gained. Christopher v. State, supra.

In Christopher v. State, the defendant’s attorney sought to question potential jurors during voir dire with regard to lesser offenses. The trial court ruled that the proposed fine of questioning was irrelevant because it was unknown at that point whether the trial court would offer an instruction on lesser offenses. After considering the wide latitude allowed trial judges in managing voir dire, we were unable to say that this was an abuse of the trial court’s discretion in Christopher v. State. Similarly, in the case at hand, the trial court had not yet ruled on the issue about which Mrs. Goff’s attorney sought to question the jury during voir dire. We cannot say that it was an abuse of the trial court’s discretion to restrict this line of questioning under those circumstances, particularly in light of the fact that tbe trial court did subsequently grant Mrs. Goff permission to protest her innocence.

4. Allocution

Mrs. Goff also argues that she is entitled to reversal because the trial court denied her the right of allocution. “When the defendant appears for judgment ... he must be asked if he has any legal cause to show why judgment should not be pronounced against him.” Ark. Code Ann. § 16-90-106 (1987). The trial court’s failure to allow a criminal defendant this opportunity for allocution is reversible error. Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1998); Smith v. State, 257 Ark. 781, 520 S.W.2d 301 (1975). However, we do not reverse for failure to allow allocution where there has been no objection to the failure below. Hill v. State, supra; Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981).

In this instance, the record is clear that Mrs. Goff was indeed offered no opportunity for allocution. However, the record is equally clear that she did not object to this omission. We will not reverse based upon an error not objected to below. Heard v. State, supra.

5. Evidence Sent to the Jury

Mrs. Goff’s final point on appeal is that the trial court impermissibly commented on the evidence when it sent all of the evidence to the jury for review following a request by the jury to see one piece of evidence, a hammer.

“Upon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the case.” Ark. Code Ann. § 16-89-125(d)(3) (1987). But the trial court is not required to send the evidence to the jury room with the jury. Nathan v. State, 235 Ark. 704, 361 S.W.2d 637 (1962). It appears from the record in the instant case that the evidence was not sent to the jury room when the jury retired. The jury later requested that they be allowed to see a wooden-handled hammer that the State had introduced into evidence. Certainly, there would have been no abuse of discretion by the trial court if it had sent only the hammer to the jury room. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978); Nathan v. State, supra. In the instant case, however, the trial court sent all of the evidence rather than just the hammer. Mrs. Goff argues that this was an abuse of discretion and an improper comment by the trial court about the weight to be given to the evidence. We disagree.

“Judges shall not charge juries with regard to matters of fact, but shall declare the law.” Ark. Const, art. 7, §. 23. Conduct by the trial court that expresses an opinion on the weight to be given certain evidence violates our constitution. Watkins, Broomfield and Matlock v. State, 222 Ark. 444, 261 S.W.2d 274 (1953) (quoting Williams v. State, 175 Ark. 752, 2 S.W.2d 36(1927)).

The trial court clearly had the option of sending only the requested piece of evidence to the jury. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978); Nathan v. State, supra. We also noted in Gardner v. State, supra, that the trial court has some discretion in permitting exhibits to be taken into the jury room during deliberations. In light of Ark. Code Ann. § 16-89-125 (d)(3), allowing the trial court to send all of the exhibits to the jury room for deliberation when the jury retires, and Gardner v. State, supra, allowing the trial judge discretion in determining which exhibits to send to the jury upon request, we cannot say that the trial court abused its discretion or improperly commented upon the evidence by sending all of the exhibits to the jury instead of sending only the requested piece of evidence.

6. Arkansas Supreme Court Rule 4-3(h)

The transcript of the record in this case has been reviewed in accordance with our Rule 4-3 (h) which requires, in cases in which there is a sentence to life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a). None have been found.

       The facts and circumstances leading to Mrs. Goff’s conviction for the murder of her husband have been set out in depth in Goff I and will not be repeated here.

       Mrs. Goff argues in her brief that the trial court erred in instructing the jury about meritorious good time because meritorious good time was repealed by the legislature in 1993. She withdrew this argument during oral arguments, recognizing that, although Acts 536 and 558 of 1993 repealed a prior version of good time credit, meritorious good time is still available to inmates of the Arkansas Department of Correction. Ark. Code Ann. § 12-29-201 (Repl. 1999); Graham v. Norris, 340 Ark 383, 10 S.W.3d 457 (2000). Because this argument has been withdrawn, we need not address it further.


author: RAY Thornton, Justice. DONALD L. Corbin, Justice, ROBERT L. Brown, Justice,

text:
    Henry FRANK and James Christopher, et al. v. Roger BARKER, et al.

    99-669
    20 S.W.3d 293
    Supreme Court of Arkansas
    Opinion delivered June 8, 2000

      Harold Erwin, Judge;

      Laser, Wilson, Bufford & Watts, P.A. and Nichols & Campbell, P.A., for appellants.
    The Evans Law Firm, P.A., by: Marshall Dale Evans, and Hirsch Law Firm, P.A., by: E. Kent Hirsch, for appellees.

      Farrar, Reis, Rowe, Nicolosi & Williams, by: Bryan J. Reis, for appellants James Christopher et al.

   RAY Thornton, Justice.

Appellants are members of the stice. Lake School District, the County Clerk of Saline County, the County Collector of Saline County, and the County Assessor of Saline County. James Christopher, a taxpayer in the Fountain Lake School District, and a resident of Garland County, is also an appellant seeking intervention for himself and all others similarly situated. Appellees, taxpayers in the Fountain Lake School District, reside in Saline County and in the Fountain Lake School District, which includes part of Saline County and part of Garland County.

On November 28, 1994, appellees filed a complaint against the Fountain Lake School District and Saline County officials alleging that in July 1993, the State Assessment Coordination Division advised the Saline County Judge that the preliminary ratio of the assessed value of real property to actual value of the real property had fallen below eighteen percent and that the state turnback funds to the county were in jeopardy. To cure this problem, reappraisal of land located in Saline County was suggested, and a reappraisal was done. In August 1994, the Saline County Equalization Board received the results of the reappraisal of property in Saline County, which showed that the aggregate value of such taxable real property within the school district for 1994 had increased 28.8 percent over that in 1993.

At the core of appellees’ complaint is their assertion that the collection of the 1994 school district tax constitutes an illegal exaction because the school district stands to receive revenues exceeding by more than ten percent those received in 1993. Appellees assert that the school district must roll back its rate of taxation under Amendment 59 to prevent tax revenues from increasing more than ten percent above the base year and that if such rollback does not occur, the tax is an illegal exaction. Appellees further complain that a number of statutory tasks related to the reassessment of property have not been performed by the school district and by Saline County public officials.

The complaint sought a writ of mandamus (1) to the Saline County Clerk, requiring him to perform his duties, and (2) to the school district to complete the rollback form and roll back its tax rate pursuant to Amendment 59. Appellees further sought a writ of prohibition to prevent the collection of 1994 real property taxes in violation of Amendment 59. Next, appellees prayed for judgment declaring the collection of 1994 real property taxes in the school district without a rollback would constitute an illegal exaction under Amendment 59 in that revenue collected in 1994 would be more than ten percent above revenues collected in 1993. Finally, they sought to enjoin appellees from further violations of Amendment 59.

The school district moved to dismiss appellees’ complaint for lack of subject-matter jurisdiction. The Saline County Clerk and Collector made similar motions, and asserted that the appellees’ claims were required to be brought in county court because they involved county taxes. Appellees replied that the taxes at issue were school district taxes as opposed to county taxes, and that the circuit court was the appropriate forum. They further referred to their prayers for mandamus and prohibition, remedies that typically lie in circuit court.

After a hearing on the motions to dismiss, the trial court found that the school district tax was a county tax, and that under Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809 (1995), supp. op. granting reh’g, 321 Ark. 116-A, 901 S.W.2d 815 (1995), jurisdiction was vested exclusively in county court. The trial court also concluded that the matters more appropriately lie in chancery court as opposed to circuit court because injunctive relief was sought. The trial court finally stated that it would dismiss the case without prejudice so that appellees could file in either chancery or county court, or appeal the matter. An order of dismissal was entered.

The case was appealed to us, and we issued an opinion on March 17, 1997. On appeal, we reversed the trial court and held that school district taxes are not county taxes, and, for that reason, exclusive jurisdiction does not lie in county court. We further held that appellee had asserted a valid claim for an illegal exaction pursuant to Ark. Const, art. 16, § 13. The case was reversed and remanded.

On remand, appellees amended their complaint to include tax years after 1994 and requested that the defined class of taxpayers be restricted to only those taxpayers of the school district who reside in Saline County. The school district appellants contended that the class must include all taxpayers residing-in the school district and on January 6, 1999, a hearing was held on the matter. On February 5, 1999, James Christopher, a taxpayer resident of the Fountain Lake School District who resides in Garland County filed a motion to intervene. Following a hearing, the trial court issued an order certifying a class action and restricting the members of the class to those school district taxpayers with real property in Saline County. This order was entered on February 18, 1999. In an order entered March 3, 1999, James Christopher’s motion to intervene was denied.

On appeal, the trial court’s class-certification order is challenged as well as the denial of appellant James Christopher’s motion to intervene. We reverse and remand.

At the outset, we note that this case involves a class action resulting from Ark. Const, art. 16, § 13, which states:

Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.

Id.

In their point on appeal, appellants contend that the trial court erred when it failed to include within the class the school district taxpayers who reside in Garland County. Appellees respond to this contention by arguing that, because Garland County has not conducted a reappraisal, Amendment 59’s rollback provisions are not triggered and therefore the school district taxpayers who reside in Garland County have not been subjected to an illegal exaction and are not entitled to membership in the class.

We have recognized that our common law makes an illegal-exaction suit under Article 16, section 13, of the Arkansas Constitution a class action as a matter of law. Carson v. Weiss, 333 Ark. 561, 972 S.W.2d 933 (1998). We have also held that Rule 23 of the Arkansas Rules of Civil Procedure does not govern the class action brought into existence by the constitutional illegal-exaction provision; rather, it may serve as a rule of procedure in a class-action case of this nature. Id.

Remaining mindful of this principle, we turn to the case now on review. In this case, the taxpayers in the Fountain Lake School District claim an illegal exaction pursuant to Amendment 59. Amendment 59 in part states:

(a) Whenever a county wide reappraisal or reassessment of property subject to ad valorem taxes made in accordance with procedures established by the General Assembly shall result in an increase in the aggregate value of taxable real and personal property in any taxing unit in this State of ten percent (10%) or more over the previous year the rate of city or town, county, school district, and community college district taxes levied against the taxable real and personal property of each such taxing unit shall, upon completion of such reappraisal or reassessment, be adjusted or rolled back, by the governing body of the taxing unit, for the year for which levied as provided below. . .

Ark. Const, art. 16, § 14 (emphasis added).

To determine whether the trial court erred in excluding school district taxpayers residing in Garland County from the class it is necessary to interpret Amendment 59. As we interpret a provision of the Arkansas Constitution, we have said that when the language of a provision is plain and unambiguous, each word must be given its obvious and common meaning, and neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998).

Looking to the plain language of Amendment 59, it is clear that a “taxing unit,” as it is used in the amendment, and as it applies to this case, refers to the “school district.” We note that long before Amendment 59 was adopted school districts were formed that included parts of more than one county. To facilitate the formation of such school districts, and for other purposes, the people of the State of Arkansas adopted Initiated Act Number 1 of 1948. In light of the existence of districts spanning two or more counties, it is instructive that the drafters of Amendment 59 did not choose to differentiate between a school district located in only one county from a school district spanning two or more counties. The amendment did not provide a different treatment for such “fringe districts,” but without exception it referred to all school districts, including those in more than one county, as “taxing units.”

Based on the plain meaning of the language in Amendment 59, we conclude that the Fountain Lake School District includes all taxpayers in the district, whether they reside in Saline County or Garland County. We note that in order to determine whether a rollback is required in the “taxing unit” it is necessary to include “all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” The phrase “all others interested” certainly includes all taxpayers within the school district which is the “taxing unit.”

Additionally, we note that the plain language of the amendment, when referring to the rollback, which the taxpayers in the taxing unit may be entitled to, refers to “the rate” of school district taxes levied against the taxable real and personal property in the school district being adjusted or rolled back. This language from the amendment does not grant any authority for a single taxing unit to impose various taxing rates. Instead it allows for a rollback when the whole taxing unit has been subjected to a ten percent increase in taxable real and personal property in a single year. Furthermore, the rollback of “the rate” is done by the “governing body of the taxing unit;” that is, by the board of the school district. We also note that any rollback of the rate of taxation must be uniform. The Arkansas Constitution in article 16, § 5 provides in part:

all real and tangible personal property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property for which a tax may be collected shall be taxed higher than another species of property of equal value. ...

Id. Pursuant to this constitutional language, it is clear that one uniform rate of taxation must be applied to property of equal value throughout the school district, which is the taxing unit. Additionally, we note that all members of the class share a common interest in the fair and uniform distribution of any rollback by a uniform reduction in the rate of taxation throughout the taxing unit. The dissent urges that the constitutional requirement of a uniform rate of taxation within a taxing unit has been overturned by the legislative enactment of Act 848 of 1981 partially codified at Ark. Code Ann. § 26-26-408 (Repl. 1997). However, we find no authority to support the proposition that a statutory provision overrides a constitutional principle.

Accordingly, we hold that the trial court’s order, which excluded taxpayers in Fountain Lake School District residing in Garland County from the class action, was erroneous. Therefore, we reverse the trial court’s order and remand the case to allow the trial court to include the Garland County residents of the Fountain Lake School District as members of the class arising as a matter of law from the illegal-exaction suit.

Appellant James Christopher, a taxpayer and resident of Fountain Lake School District, who resides in Garland County, in his separate point on appeal, argues that the trial court erred when it denied his motion to intervene. In response, appellees argue that Mr. Christopher’s motion to intervene was not filed in a timely manner. Because we have concluded that all taxpayers residing in the school district are included in the class arising as a matter of law from the illegal-exaction suit, it appears that Mr. Christopher and others similarly situated are members of the constitutionally established class. Because the attorneys for those taxpayers who reside in Saline County have vigorously argued that the taxpayers of the Fountain Lake School District that reside in Garland County should not be included in the class, we note that it may be appropriate for the trial court to appoint another attorney to ensure that the interests of those taxpayers are adequately protected.

Reversed and remanded.

GLAZE, J., not participating.

Special Associate Justice Kelvin Wyrick joins.

Corbin and Brown, JJ., dissent.

DONALD L. Corbin, Justice,

dissenting. Amendment 59 stice, referred to as the “Godzilla” of constitutional amendments. The confusion created by the passage of this amendment persists still today, and now the majority’s opinion ignores the one element of the amendment that has been interpreted in a consistent manner. Heretofore, this court has consistently held that the rollback provision of Amendment 59 is triggered only when there has been a countywide reappraisal resulting in an increase in the aggregate value of taxable real and personal property in excess of ten percent or more over the previous year. See Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000); Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998); Gazaway v. Greene County Equalization Bd., 314 Ark. 569, 864 S.W.2d 233 (1993); Clark v. Union Pac. R.R. Co., 294 Ark. 586, 745 S.W.2d 600 (1988). Ignoring this well-established rule of law, the majority has determined that the residents of Garland County are entitled to be members of a class, even though they make no allegations that they have been subjected to a countywide reappraisal.

The majority’s holding in this case is contrary to both the provisions of Amendment 59, as well as to this court’s prior case law. It results from a strained interpretation of the language of Amendment 59 and select constitutional provisions. By analyzing certain words and phrases in isolation, instead of in the context in which they are used, the majority reaches a conclusion that undermines the purpose of Amendment 59. The main example of this faulty analysis is found in the majority’s interpretation of the provisions of Amendment 59 itself. The majority opines that Amendment 59 does not provide for differing treatment of fringe school districts, nor does the Amendment provide for a taxing unit, here the school district, to impose varying tax rates. This conclusion wholly ignores a statutory provision enacted by the General Assembly, pursuant to Act 848 of 1981, as part of the implementing legislation for Amendment 59. The procedures governing rollbacks in fringe school districts are codified at Ark. Code Ann. § 26-26-408 (Repl. 1997). This section provides:

(a) For purposes of this section, the term “fringe school districts” means those school districts whose boundaries extend across one (1) or more county lines.
(b) When there is a statewide or countywide reappraisal of property for ad valorem tax purposes pursuant to court order or pursuant to law enacted by the General Assembly, the millage rollback for fringe school districts will be implemented as follows: That part of the school district in a county reappraised first will be rolled back in accordance with procedures prescribed in this subchapter, and taxes will be levied at that millage rate until such time as a similar reappraisal is completed in the other counties in which the school district lies and the millage in those counties is rolled back in accordance with this subchapter at which time the rolled back millage for the first part of the school district that has been reappraised and the rolled back millage for each succeeding part of the school district that has been reappraised shall be averaged, weighted by the percentage of the total assessment of the school district that each part consists of in order to create a weighted average millage, and thereafter the weighted average millage for the school district will be the millage rate levied in the whole school district. [Emphasis added.]

Seemingly oblivious to this provision, the majority states that it is instructive that the drafters of Amendment 59 did not choose to differentiate between school districts located in one county and school districts spanning two counties. It is ludicrous to assume that simply because the text of the Amendment does not specifically address fringe school districts that they must automatically be governed by the same taxing procedures as school districts located wholly in one county. In fact, the emergency clause of Act 848 states in relevant part:

[T]hat Amendment 59 requires enactment of legislation to implement the provisions thereof and that this Act provides such implementation and should be given effect immediately to accomplish the purposes of Amendment 59 in an orderly, effective and efficient manner.

The existence of these fringe school districts obviously creates unique problems with regard to the rollback of taxes, as evidenced by this case. Mindful of this fact, the General Assembly established procedures that would solve the problem caused when only one county completes a reassessment. It is curious, though, that the majority has chosen to ignore section 26-26-408 in light of its obvious applicability to the present situation.

The majority also opines that Amendment 59 allows for a rollback when the whole taxing unit has been subjected to a ten percent increase in taxable real and personal property in a single year. The majority, however, ignores the following additional language found in Amendment 59:

The adjustment or rollback of tax rates or millage for the “base year” as hereinafter defined shall be- designed to assure that each taxing unit will receive an amount of tax revenue from each tax source no greater than ten percent (10%) above the revenues received during the previous year from each such tax source .... [Emphasis added.]

Even though Amendment 59 initially discusses an increase in the value of taxable property in terms of the “taxing unit,” the above-quoted language indicates that the rollback is to occur when a taxing unit receives increased revenue from a particular tax source. Here, the taxing unit, the Fountain Lake School District, received a 28.8% increase in its tax revenue from that tax source made up of district residents residing in Saline County. Under the plain language of Amendment 59, a rollback of taxes was designed to prevent the Fountain Lake School District from receiving the entire 28.8% increase from the Saline County residents. The majority goes a step further, however, and erroneously concludes that members of the taxing unit that have not contributed to the increased revenue, i.e., Garland County residents, must be allowed to share in any rollback of taxes simply by virtue of the fact that they were fortunate enough to reside in that particular taxing unit. Clearly, such a result was not intended by the drafters of Amendment 59.

In another attempt to validate its erroneous conclusion in this matter, the majority relies on Article 16, § 5, of the Arkansas Constitution for the proposition that the school district must apply a uniform rate of taxation throughout the school district. While I do not necessarily agree with the majority that Article 16, § 5, clearly stands for such a proposition, I do not wish to debate the issue because the more pressing problem with the majority’s analysis is the fact that the majority is allowing a group of people with no cause of action against any of the defendants be certified as members of this class.

The majority states that the Garland County residents are interested parties simply because they reside in the taxing unit. In so holding, the majority is effectively undermining the purpose of Article 16, § 13, of the Arkansas Constitution. Section 13 provides that any citizen may file suit on his behalf and all others interested to protect against the enforcement of any illegal exactions. The majority concludes that the residents of Garland County are “interested parties” simply because they reside in the school district, not because they require protection from the enforcement of an illegal tax. On the contrary, the residents of Garland County make no allegations that they have been subjected to any type of illegal exaction. I am mindful of the fact that this court has stated that class actions filed pursuant to Article 16, § 13, arise as a matter of law, but I am certainly unaware of any instance when this court has allowed a party with no cause of action to proceed. Even in light of this court’s liberal interpretation of “interested parties” it is nonsensical to conclude that the Garland County residents have any interest at this stage of the proceedings.

This court has previously distinguished between the two types of illegal-exaction claims that may arise under Article 16, § 13: public-funds cases and illegal-tax cases. Ghegan & Ghegan, Inc. v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999). In a suit involving an illegal tax, as is the situation here, the plaintiff asserts that the tax itself is illegal or contrary to a constitutional or statutory provision. Id. Here, the allegation that the tax is illegal stems from the fact that there was a countywide reappraisal with no subsequent rollback. Clearly, under Article 16, § 13, “interested parties” are those citizens subjected to an illegal exaction. Because the Garland County citizens make no allegation that they have been subjected to any illegal exaction, I believe that they are not interested parties within the meaning of Article 16, § 13. Therefore, they lack standing in the present matter and should not be allowed into this class.

Essentially, the majority is creating a cause of action for the Garland County residents where one does not exist. Acting pursuant to a directive in Amendment 59 that they establish procedures governing the rollback of taxes, the General Assembly provided a method for effectuating a rollback in fringe school districts. In light of this provision, it is clear that the proper course of action in the present matter is to leave the class as it is, made up of those district residents subjected to a countywide reappraisal, and allow them to proceed with their claim for an illegal exaction. If the class prevails, and the school district then rolls back the millage rate for only thos.e district members residing in Saline County, then the Garland County residents may assert their own claim that they are being taxed at a differing rate in violation of Article 16, § 5. As it stands now, the Garland County residents do not have a cause of action and should not be allowed to join this class. Allowing the residents of Garland County to join this suit will result in nothing more than the addition of superfluous parties and confusion of the facts and issues at the trial level.

For the foregoing reasons, I respectfully dissent.

Brown, J., joins.

ROBERT L. Brown, Justice,

dissenting. I agree completely tJustice ice, dissenting opinion that the majority has engaged in a tortured and illogical reading of Amendment 59 (Art. 16 §§ 14, 15, and 16 of the Arkansas Constitution). That amendment, without question, deals with countywide reappraisals and the effect of such reappraisals on taxing units within the county. There is nothing in the amendment to suggest otherwise. A countywide reappraisal has only occurred in Saline County. To read the amendment as embracing residents of a taxing unit who live in a different county runs counter to the clear language of the amendment.

The General Assembly enacted Act 848 of 1981, now codified at Ark. Code Ann. § 26-26-408 (Repl. 1997), to deal with the situation of millage rollbacks in fringe taxing units and how to tax residents of different counties. The majority, without saying so, has effectively ruled that statute unconstitutional by its interpretation of Amendment 59 to mean that a rollback of rates based on a countywide reappraisal in one county applies to residents of a different county who live in the same taxing unit. If a statute which has been on the books for twenty years is to be placed in constitutional limbo, that issue should at least be addressed by this court.

The majority is also wrong in stating that the class representatives amended their complaint following our decision in Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997) (Barker I), and “restricted” the defined class to taxpayers in the school district in Saline County. That language indicates that Garland County residents were originally part of the class of taxpayers. That was not the case, however. According to the style of Barker I, the action was brought on behalf of all citizens, residents, taxpayers, inhabitants, and owners of real property in the school district in Saline County. In the body of the opinion, the “taxpayers” were only persons who owned land in Saline County. And, again, Saline County is where the countywide reappraisal occurred. Prior pleadings in the record never suggested that Garland County taxpayers were involved, for obvious reasons.

Should there be a discrepancy in the taxes paid between Garland County and Saline County residents of the school district, that may be stuff for later litigation. But that is no reason to give a twisted reading to Amendment 59. The majority opinion adds to our woes by reading language into Amendment 59 that is simply not there. I respectfully dissent.

Corbin, ]., joins.

        See Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997)


author: RAY Thornton, Justice.

text:
    Jerry E. SMITH v. Shana Benson Crumley SMITH
    99-889
    19 S.W.3d 590
    Supreme Court of Arkansas
    Opinion delivered June 8, 2000

      Edward P. Jones, Chancellor;

      Compton, Prewett, Thomas & Hickey, P.A., by: William I. Prewett, for appellant.

      Ronald L. Griggs, for appellee.
   RAY Thornton, Justice.

Appellant Jerry E. Smith brings tiappeal ce. judgment of the Union County Chancery Court awarding appellee Shana Benson Crumley Smith child support in the amount of thirteen percent of his net income for the benefit of their daughter. We assumed jurisdiction under Ark. Sup. Ct. R. 1-2 (a) (7), as a second or subsequent appeal following an issue previously considered by this court. See Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999)(appeal dismissed for want of final order). Appellant contends on appeal that the chancellor erred in awarding support as established by the child-support guidelines because this resulted in an unreasonable amount for the provision of the needs of an infant. Because the chancellor correctly followed the guidelines established by this court in In re: Guidelines for Child Support, 314 Ark. 644, 863 S.W.2d 291 (1993) (per curiam) and ordered child support in the presumptively correct sum, and because that presumption was not rebutted by appellant’s evidence, we determine that there was no error and affirm the decision of the trial court.

When the parties married on December 2, 1995, appellant was fifty-nine years old; appellee was a twenty-three year old single mother of two employed by appellant’s company as a receptionist. The couple separated in April 1996 and appellant filed for divorce. Their daughter was born of the marriage on October 30, 1996. Appellee was given full custody of the child and appellant was awarded visitation. At the time the divorce decree was entered, the chancellor set child support at thirteen percent of appellant’s net income of $3,000 per week, or $390 per week for the child’s benefit. On appeal, appellant argues that because his income exceeds the highest bracket set out in the child-support chart, the trial court should not have “blindly” applied the thirteen percent of net income set out in the Child Support Guidelines for use when the bracket did not reach the actual level of net income earned. Appellant contends that child support in such instances should be determined by reference to the child’s reasonable needs. Appellant further contends that it was error for the trial court to have declined to order a trust to be established for the child, with some of the award for child support set aside for the child’s future needs.

The amount of child support lies within the sound discretion of the chancellor, and the chancellor’s finding will not be disturbed on appeal in the absence of a showing of an abuse of that discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). The Legislature has provided that a family-support chart is the appropriate method for determining the amount of support for children by their noncustodial parents. Arkansas Code Annotated § 9-12-312(a) (2) (Supp. 1999) provides:

In determining a reasonable amount of support ... to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.

Id. The Family Support Chart is revised every four years by a committee appointed by the Chief Justice, to ensure that the support amounts are appropriate for child-support awards. The committee also establishes the criteria for deviation from use of the chart amount. In re: Guidelines for Child Support, 314 Ark. 644, 863 S.W.2d 291 (1993)(per curiam).

It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a written finding or specific finding on the record that the amount so calculated, after consideration of all relevant factors, including the best interests of the child, is unjust or inappropriate. Findings that rebut the guidelines shall state the amount of support that would have been required under the guidelines and include a justification of why the order varies from the guidelines.

Id.

The family-support chart is, in essence, a rule promulgated by the Arkansas Supreme Court. We construe court rules using the same means, including canons of construction, that are used to interpret statutes. See Gannett River States Pub. Co. v. Arkansas Judicial Discipline and Disability Comm’n, 304 Ark. 244, 247, 801 S.W.2d 292 (1990). The basic rule of statutory interpretation to which all other interpretative guides must yield is the necessity to give effect to the intent of the General Assembly. See Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996).

The Child Support Guidelines provide that when the payor’s income exceeds that shown on a table included in the chart, the trial court is directed to apply a percentage of the payor’s weekly or monthly income to establish a presumptively reasonable level of support. Based upon the guidelines, appellant was ordered to pay thirteen percent of his weekly income of $3,000, or $390 per week for his daughter. Provision was made to allow payments to be made monthly.

We begin with the presumption that the chart amount is reasonable. Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992). Reference to the chart is required, and the chart establishes a rebuttable presumption of the appropriate amount which can only be modified on the basis of written findings stating why the chart amount is unjust or inappropriate. Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991).

While there is a rebuttable presumption that the amount of support according to the Child Support Guidelines is correct, the presumption may be overcome if the chancellor determines that the chart amount is unjust or inappropriate. See Scroggins, supra. In the case sub judice, appellant sought to persuade the chancellor that the $390 weekly allowance for child support was unjust or inappropriate because that amount exceeded what appellant contended was a reasonable requirement for child support for a very young child. Appellant sought to prove his contention that the weekly allowance was excessive through cross-examination of appellee as to her utility bills, cost of food, and the costs associated with living in her trailer home, as well as those expenses on her affidavit of financial means, which had been prepared before the child was born.

The cross-examination of appellee did not convince the chancellor that the presumptive standard established by the Child Support Guidelines was unjust or inappropriate, and appellant did not seek to introduce or proffer other evidence to support a finding that a variance from the guidelines was required. The chancellor may consider nineteen enumerated factors to support a deviation from the presumptive amount set out in the guidelines, see In re: Guidelines for Child Support Enforcement, supra, but when deviating from the guidelines, the chancellor must explain his or her reasoning by the entry of a written finding or by making a specific finding on the record. See Scroggins, supra; Ark. Code Ann. § 9-12-312(2).

Here, the chancellor considered the limited evidence supporting a variation from the chart and found specifically that “the evidence does not indicate any reason which should cause deviation from the child support chart....” We cannot say that the chancellor abused his discretion in making this finding. In the absence of a finding by the trial court specifically approving a deviation from the chart, the amount established by the guidelines is the reasonable amount to provide for the child’s needs. With regard to appellant’s contention that the trial court erred in failing to consider the age of the child in making its determination as to reasonable support amounts, we note only that neither the statute, nor the Child Support Guidelines, offer any distinction based on the child’s age as a basis for deviation from the guidelines. Therefore, there was no error in the trial court’s failure to rely upon age to reduce the award.

Based on the record before the trial court, we cannot conclude that the chancellor abused his discretion in finding that appellant did not present sufficient evidence to rebut the presumption in favor of the percentage of support called for in the Child Support Guidelines. Accordingly, we hold that the chancellor did not commit error in declining to deviate from the presumptively correct support amount and affirm his decision on that point.

Finally, we consider appellant’s second point on appeal, that the trial court erred in failing to establish a trust for the child with the support funds paid out of the amount established for child support. Our reading of the statute and the guidelines does not convince us that the chancellor had the authority to designate portions of the child-support award for that purpose. Assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606, 609 (1977). As appellant notes in his brief, child support is not to provide for the accumulation of capital by children, but is to provide for their reasonable needs. Heins v. Heins, 783 S.W.2d 481 (Mo. Ct. App. 1990). We affirm the trial court on this point as well.

Affirmed.


author: LAVENSKI R. Smith, Justice.

text:
    James Edward KELLY, III, M.D. v. Michelle Newhause KELLY
    99-1359
    19 S.W.3d 1
    Supreme Court of Arkansas
    Opinion delivered June 8, 2000

      Mark Hewett, Chancellor;

      Warner, Smith & Harris, PLC, by; James M. Dunn, for appellant.

      Annie Powell, for appellee.
   LAVENSKI R. Smith, Justice.

James E. Kelly, III, M.D., appeals . child-support order of the Sebastian County Chancery Court requiring that he pay twenty-five percent of any conditional bonus he receives, in addition to his monthly base-support obligation. Kelly argues that the court’s order is contrary to the provisions of Arkansas Supreme Court Administrative Order 10, because it does not set and establish a sum certain dollar amount. We agree and reverse.

Facts

James Edward Kelly, III, and Michele Newhause Kelly were married on August 8, 1983, in Ontario, Canada. The Kellys lived in Canada for twelve years. While there, James attended medical school and completed his residency. During the course of their marriage, the Kellys had three children. The family moved to Louisville, Kentucky, in 1995 while James obtained additional training in his chosen specialty of plastic surgery By 1998, the Kellys had moved to Ft. Smith, believing the economic and environmental conditions there to be advantageous for their family. On March 16, 1998, Michele filed a complaint for separate maintenance in the Sebastian County Chancery Court, alleging general indignities. In August 1998, James accepted an offer to associate with Sparks Foundation. His promised compensation included a base salary of $522,000 and a bonus. The agreement outlined the calculation of the bonus as follows:

(ii) Bonus. Physician shall be entitled to Bonus Compensation in addition to the Base Compensation based on the following:
The bonus amount shall be fifty percent (50%) of collections above a bonus threshold amount which shall equal physician’s base salary plus Practice Site costs. Bonus compensation shall be pro-rated for any partial year. During the term of the Agreement Hospital and Physician will review the on-going practice site expenses as they relate to the calculation of the Bonus Percentage. Adjustments to the Bonus Percentage and Bonus Threshold will be made in accordance wit the actual practice site experience.

James began work for Sparks Foundation in the fall of 1998. On December 4, 1998, Michele amended her complaint to state a cause of action for absolute divorce. Following discovery, the court set the matter for hearing on August 6, 1999. When the matter was called, the parties announced that they had negotiated and executed a property-settlement agreement resolving all marital property issues. However, the parties agreed to submit to the court the issue of whether James should be ordered to pay an additional amount of child support based upon the bonus he could receive under his contract. James testified that he had not received a bonus, and was unsure when a bonus might be paid or how much it might be. He indicated that the uncertainty came from the nature of the calculation formula, which included the business costs associated with his practice. He believed those costs would include the startup costs for the practice, and that it would take an indefinite amount of time to build a practice. At the conclusion of the hearing, the chancellor granted Michele an absolute divorce and set child support in the amount of $6,000 per month consistent with the parties’ property-settlement agreement. The court also awarded additional child support in the amount of twenty-five percent of the net of any bonus that James receives. The chancellor entered the divorce decree on August 25, 1999. The chancellor also conducted an additional hearing on James’ motion for new trial on September 13, 1999. The court denied the motion.

Standard of Review

We review chancery cases de novo on the record, and we will not reverse a finding of fact by the chancery court unless it is clearly erroneous. Ark. R. Civ. P. 52(a); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). In reviewing a chancery court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Hunt v. Hunt, 340 Ark. 173, 8 S.W.3d 525. As a rule, when the amount of child support is at issue, we will not reverse the chancellor absent an abuse of discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). However, a chancellor’s conclusion of law is given no deference on appeal. City of Lowell v. M & N Mobile Home Park Inc., 325 Ark. 332, 916 S.W.2d 95 (1996).

Administrative Order #10

At the time of a divorce, with respect to child support, the chancellor is obligated to make such orders as are reasonable based upon the circumstances of the parties and the nature of the case. Ark. Code Ann. § 9-12-312. In making its order, the court must make specific reference to the family-support chart. The family-support chart is more accurately identified as Section VII of Supreme Court Administrative Rule 10. First adopted in 1990 in response to federal law, Administrative Order Number 10 sets out the definition of income for child-support purposes, the manner of calculation of support, requires parties to execute an affidavit of financial means, and lists factors the court should consider when determining support at variance to the chart. Although the court must consider the chart, it does not have to use the chart amount if the circumstances of the parties indicate another amount would be appropriate. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992); see also, Ark. Code Ann § 9-14-106 (1998).

At issue in the instant case, is SECTION III (b), which concerns calculation of support payments where the payor’s income exceeds the chart. It provides that in those cases the court should use specific percentages of the payor’s weekly or monthly income “to set and establish a sum certain dollar amount of support.” SECTION III (b) specifies twenty-five percent as the appropriate percentage for two dependents. In setting support for the children, the chancellor below used the twenty-five percent as the factor, and awarded Michele twenty-five percent of James’s bonus income in addition to $6,000 per month from his salary. It is undisputed that the bonus income is income for child-support purposes under the definition of income contained in Administrative Order Number 10. However, James challenges the court’s ability to presently order payments based upon indefinite, conditional income. Specifically, he contends that the court cannot “set and establish a sum certain dollar amount of support” where the receipt of the bonus is contingent upon the profitability of the clinic and the amount, if any, cannot presently be determined. We agree and reverse.

The trial court found SECTION III (b) to be somewhat ambiguous, in that it required an order of a sum certain on bonuses, which by their nature are typically uncertain as to amount until paid. We disagree. We do not consider the language of the section to be ambiguous. Calculating support from bonus income, like other forms of income, should be based upon a proper showing of past earnings and demonstrated future ability. For instance, with regard to self-employed payors, support is calculated based upon the previous year’s federal and state income-tax returns and the quarterly estimates for the current year. Also, the court shall consider the amount the payor is capable of earning, or a net worth approach based upon property, fife-style, etc. Administrative Order Number 10 SECTION III (c). Here, there is no history of bonus income, and the trial court acknowledged the uncertainty of whether James would even qualify for a bonus in the foreseeable future given the business-expense calculation that would be required. We therefore reverse and remand for entry of an order consistent with this opinion.

Reversed and remanded.

        See In Re Administrative Order Number 10, 329 Ark. 668 (1997).


author: TOM Glaze, Justice.

text:
    Samuel GILBERT v. STATE of Arkansas
    CR 99-1059
    19 S.W.3d 595
    Supreme Court of Arkansas
    Opinion delivered June 15, 2000

      John B. Plegge, Judge;

      Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   TOM Glaze, Justice.

Appellant Samuel Gilbert brings this appeal ice. conviction on five drug-related charges: 1) simultaneous possession of a firearm and a controlled substance; 2) possession of a controlled substance (methamphetamine) with intent to deliver; 3) possession of drug paraphernalia; 4) maintaining a drug premises; and 5) possession of a controlled substance (marijuana). For these convictions, Gilbert received a sentence of nine- and-a-half years in prison. Fie now asks us to reverse his convictions because, he argues, the trial court erred in denying his motion to suppress evidence seized pursuant to a stale search warrant, and because there was insufficient evidence to support his conviction for simultaneous possession of drugs and a firearm. The question of whether a search warrant can go stale before it is executed is an issue of first impression; therefore, we take jurisdiction pursuant to Ark. Sup. Ct. R. l-2(b)(l). We affirm.

On February 5 and 6, 1997, North Little Rock police officers used a confidential informant to negotiate two controlled buys out of a house on Batesville Pike in North Little Rock. While inside the house, the informant saw at least two handguns and a shotgun. On February 7, Officer Rick Dunaway obtained a warrant that could be executed at any time or the day or night because the police would be unable to gain safe and speedy access into the house. The warrant further provided that it was to be executed “within a reasonable time not to exceed sixty days.”

Forty-six days later, on March 25, 1997, the warrant was executed while Gilbert was present at the house. During the search, the officers found evidence of methamphetamine. In addition, the officers found an unloaded .41 caliber Smith & Wesson handgun in an open case on the living room floor; thirteen rounds of ammunition were nearby in a paper bag. Ten grams of methamphetamine were found in a plastic bag in Gilbert’s pants pocket.

Gilbert moved to suppress the evidence seized from the house, arguing that the search warrant had become stale by the time it was executed. At the hearing on the suppression motion, Officer Dunaway testified that the reason the police waited forty-six days to execute the warrant was because Gilbert was going and coming to and from the house at all hours of the day and night, and Dunaway never had the five or six hours necessary to assemble a SWAT team to conduct a high-risk search. He stated he wanted to execute the warrant with Gilbert at home to avoid any questions as to whom the drugs belonged. The trial court denied Gilbert’s motion.

At Gilbert’s bench trial, the State introduced the evidence seized pursuant to the warrant. Nick Dawson, a chemist for the State Crime Lab, testified that the residue found included methamphetamine and marijuana. At the close of the State’s case, Gilbert moved to dismiss the charge of simultaneous possession of drugs and a firearm, on the grounds that the firearm was in a case and unloaded. The prosecutor responded that the gun was located in the same room as Gilbert, and that he had more than ten grams of methamphetamine in his pocket. The court denied Gilbert’s motion.

Gilbert then testified in his own behalf, stating that he rented the house on Batesville Pike, but claimed he was not living there between February and March of 1997. He asserted that he only rented the North Little Rock house on the day of the search. On cross-examination, Gilbert averred that he did not know how the methamphetamine got in his pockets. At the close of his case, Gilbert renewed his motion to dismiss the simultaneous possession charge, and he also renewed his motion to suppress. The trial court again denied Gilbert’s motions, and found him guilty.

For his first point on appeal, Gilbert argues that the trial court erred in denying his motion to suppress the evidence seized from his house because the officers’ search warrant was stale. When this court reviews a trial court’s ruling on a motion to suppress, we review the evidence in the fight most favorable to the State and make an independent determination based upon the totality of the circumstances. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). Further, this court will only reverse a trial court’s ruling on a motion to suppress if the ruling was clearly erroneous. Id.

Rule 12.3(c) of the Arkansas Rules of Criminal Procedure provides that a search warrant shall be executed within a reasonable time, not to exceed sixty days. Although the question of whether information in a search warrant can go stale before its execution is an issue this court has not yet addressed, Arkansas case law has decided whether such information can become stale before the warrant is issued. For the most part, these cases hold that a delay in applying for a warrant can diminish probable cause, but that the delay is “not considered separately, [and] the length of the delay' is considered together with the nature of the unlawful activity and in the fight of common sense.” White v. State, 47 Ark. App. 127, 134, 886 S.W.2d 876 (1994). Moreover, the Arkansas Court of Appeals has held that when the criminal activity is “of a continuing nature,” an issuing magistrate may utilize his or her common sense regarding the relative staleness of the information on which the warrant is sought. Cardozo & Paige v. State, 1 Ark. App. 219, 646 S.W.2d 705 (1983). In Cardozo, the court adopted the following rationale:

The ultimate criterion in determining the degree of evaporation of probable cause, however, is not case law but reason. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: The character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc.

Cardozo & Paige, 1 Ark. App. at 222, 646 S.W.2d at 707. We agree with the foregoing reasoning. In short, circumstances surrounding the issuance of a search warrant are interpreted in light of common sense, and this analysis can be extended by analogy to the execution of a warrant.

In addition, while probable cause must exist at the time the warrant is issued, not at an earlier time, a lapse of time is not necessarily the controlling consideration. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992) (citing United States v. Stevens, 525 F.2d 33 (8th Cir. 1975), and United States v. Ellison, 793 F.2d 942 (8th Cir.), cert. denied, 470 U.S. 415 (1986)). Other factors include the nature of the criminal activity and the type of property sought, considered in the light of common sense. Id. A delay is less significant when the search warrant lists items innocent on their face as opposed to per se inculpatory items that probably would remain in a suspect’s residence for a short period of time. Id.

Applying all of these factors to the case at hand, it is clear that the warrant had not become stale before it was executed. Gilbert was suspected of running a meth lab and maintaining a drug premises, which is the kind of activity that would not likely be dismantled quickly. The North Little Rock Police Department had the house under surveillance, as can be inferred from Officer Dunaway’s testimony that Gilbert was coming and going at all hours and was never home for the five or six hours the police needed. In these circumstances, the officers would have known if the activity had ceased. Although the items recited in the warrant were per se inculpatory (the warrant listed controlled substances, related paraphernalia, and any paperwork associated with selling the drugs), that is not the only factor to consider in examining the delay. Viewed in the light of common sense, it cannot be said that the warrant had become stale by the time it was executed; thus, the trial court did not err in denying Gilbert’s motion to suppress.

For his second point, Gilbert argues that the trial court erred in refusing to direct a verdict on the simultaneous possession charge. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the state. Dodson v. State, 341 Ark. 41, 14 S.W.3d 487 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id. Only evidence supporting the verdict will be considered. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000).

Ark. Code Ann. § 5-74-106 (Repl. 1997) provides that no person shall unlawfully commit a felony violation of § 5-64-401 (Repl. 1997) (manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled substance) or unlawfully attempt, solicit, or conspire to commit a felony violation of § 5-64-401 while in possession of a handgun. § 5-74-106(a)(l). Section 5-74-106(d) provides that it is a defense that “the defendant was in his home and the firearm was not readily accessible for use.” Gilbert points out that in order to gain a conviction, the state must prove two elements: 1) he possessed a firearm, Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995); and 2) a connection existed between the firearm and the controlled substance. Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998); see also Manning v. State, 330 Ark. 699, 956 S.W.2d 184 (1997) (some link between the firearm and drugs is required; mere possession of a firearm is not enough).

Gilbert testified that he was asleep on the couch when the officers entered the house to execute the search warrant, although Officer Dunaway testified that Gilbert was standing at the front door. Dunaway found a bag containing ten grams of pure methamphetamine in Gilbert’s pants pocket, and numerous drug-related items were found throughout the house. A .41 caliber Smith & Wesson handgun was found in an open case in the living room, and while the gun was unloaded, thirteen rounds of ammunition were in a nearby paper bag. Gilbert was the only person in the house.

Gilbert initially argues that there was insufficient evidence that he possessed the gun because he claimed he was in a different room than the one where the gun was found. However, in Darrough, the defendant was found in a bedroom, and a gun was located in the living room. Despite this fact, this court held sufficient evidence existed to prove the crime of simultaneous possession of drugs and a firearm. Darrough, 322 Ark. at 253-54, 908 S.W.2d at 327. Likewise, in Manning, the defendant was in the kitchen, and the gun was in a closet in the bedroom. Manning, 330 Ark. at 700-01, 956 S.W.2d at 186. Gilbert concedes that the house was small, and although the physical relationship between Gilbert and the gun is not entirely clear from the trial testimony, Gilbert, who admitted having rented the house, was the only person present in the house when it was searched. Thus, there was ample evidence he possessed the gun.

Next, Gilbert argues that there was no proof that the gun and the drugs were in any way connected. He asserts that though there might have been some drugs somewhat near because the house was small and everything was near to everything else, there was still no connection shown between the drugs and the firearm. However, the testimony of Officer Dunaway indicated that there were drugs and drug paraphernalia located in rooms throughout the house, including the living room, and drugs were also found in Gilbert’s pants. The gun was also in the living room, as were bills and receipts with Gilbert’s name and address on them on the coffee table. Viewing this evidence in the light most favorable to the State, there was sufficient evidence of a connection between the drugs and the firearm.

Finally, Gilbert argues that he can avail himself of the defense set out in § 5-74-106(d) — that he was in his own home, and the gun was unaccessible for use. However, while his attorney asserted at trial that Gilbert was in his own home in order to claim the statutory defense, Gilbert also testified that he lived in Pine Bluff and was absent from the house on Batesville Pike between February and March of 1997. This conflict in testimony is reflected in his brief where he repeats his testimony that he had been living in Pine Bluff in February and March of 1997 and two pages later asserts that he was at the house “rarely,” but then claims that he and the gun were “in his home.” In short, the record is conflicting on whether he was “in his own home,” as the statutory defense requires. However, even if that element of the defense was proved, Gilbert still failed to show the gun was inaccessible for use.

Gilbert argues that the gun was not accessible, because it was unloaded. The State responds that other factors made the gun accessible, namely, that it was in an open case, with ammunition close at hand, such that it could easily have been loaded. If we examine this evidence in the light most favorable to the State, as we are required to do, then it appears that there was sufficient evidence that the gun was accessible for use, and Gilbert cannot avail himself of the defense in § 5-74-106(d).

For the above reasons, we affirm Gilbert’s convictions.

       Gilbert also moved to suppress on the grounds that the confidential informant was not reliable; however, this point is not a part of his appeal.