author: Per Curiam.

text:
    GRANTORS TO THE DIAZ REFINERY PRP COMMITTEE SITE TRUST, et al. v. RANGER INSURANCE COMPANY, et al.
    94-27
    890 S.W.2d 259
    Supreme Court of Arkansas
    Opinion delivered January 9, 1995

      Chisenhal, Nestrud & Julian, P.A., by: Charles R. Nestrud, Jim L. Julian, and Janie W. McFarlin, for appellant.

      Wright, Lindsey & Jennings, by: M. Samuel Jones III; James E. Baine; Robert M. Lyford; Kathleen D. Gardner; Anderson, Kill, Olick & Oshinsky, P.C., by: Tracy E. Makow; Samuel E. Ledbetter, and Gabriel E. Gedvilla, for amici curiae Murphy Oil USA, Inc.; Arkansas Electric Cooperatives, Inc.; The Arkansas Wildlife Federation; Weyerhaeuser Company; and Arkansas Louisiana Gas, a division of Arkla, Inc.

      Hartzog, Conger, Cason & Hargis, by: Kent Frates, for the receiver.

      Dekovan C. Bowler, Assistant General Counsel, for the Oklahoma Insurance Department.
   Per Curiam.

This is an appeal from a summary judgment holding that comprehensive general insurance policies do not cover losses resulting from government agency orders requiring the cleaning of land polluted by toxic waste. The appellants, Grantors to the Diaz Refinery PRP Committee Site Trust, et al. (Grantors), are entities which have been made responsible for such losses resulting from operation of Diaz Refinery, Inc. (Diaz), in Jackson County. The Grantors sought to recover from Diaz, and then directly from Diaz’s insurers who became the appellees.

The appeal was dismissed on May 23, 1994, as the result of settlements, with respect to all of the appellees except Employers National Insurance Corporation (Employers). On May 31, 1994, we denied a motion to stay the appeal. On October 3, 1994, in the course of denying a motion by Insurance Environmental Litigation Association to file an amicus curiae brief on behalf of the position to be espoused by Employers, we noted our awareness that Employers was in a receivership which we erroneously thought to have been imposed by a United States District Court in Oklahoma. We said “No formal action has been taken by the Oklahoma Insurance Commissioner on behalf of Employers National or counsel for Employers National in this court other than to suggest an indefinite stay of the appeal.” We noted “the appeal is proceeding until settlement is reached or dismissal is warranted or some other means of disposing of the appeal is proposed.”

The Grantors and an amicus curiae in favor of the Grantors’ position have filed briefs. No brief has been filed by Employers. In preparation for the appeal, we have reexamined the issue, and we now conclude that the appeal should be stayed. The file contains a certified letter, received July 5, 1994, from a receiver appointed by the District Court for Oklahoma County, Oklahoma, enclosing an Order of Liquidation and Permanent Injunction. The order enjoins all parties who have dealt with Employers from further prosecuting any judicial action against Employers or the receiver until further order of the District Court. The receiver asked that we include that document in our file, and we now conclude that filing sufficiently formal.

The briefs filed thus far will be retained. Upon notification that the parties are free to proceed with the appeal and intend to do so, the Clerk will set a schedule for the filing of additional briefs.

Glaze, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Ivan Floyd PIPKIN v. STATE of Arkansas
    CR 94-515
    892 S.W.2d 240
    Supreme Court of Arkansas
    Opinion delivered January 9, 1995
    A. Wayne Davis, for appellant.
    No response.
   Per Curiam.

Ivan Floyd Pipkin was sentenced to four years imprisonment on a charge of possession of a controlled substance with intent to deliver. His attorney, A. Wayne Davis, failed to file a timely brief. By per curiam order of this Court, dated December 6, 1994, a Master was appointed to conduct a hearing and make findings of fact as to whether Mr. Davis had a meritorious defense to his failure to file a brief on behalf of Pipkin in this matter within the time prescribed in Rule 4-3 of the rules of the Arkansas Supreme Court and Court of Appeals.

The Master conducted a hearing on December 21, 1994. Mr. Davis was present and announced that he was ready to proceed. He admitted that he was attorney of record for Pipkin in the matter and that he was solely responsible for filing a brief on behalf of Pipkin in this Court. Mr. Davis also stated that the brief was due to be filed no later than July 5, 1994, and that he had been out of town on that date but had dictated a petition for an extension of thirty days in which to file the brief with instructions that it be filed on that date. Due to the heavy workload of the staff and the resignation of the staff manager, the petition was not completed in time for filing until the next day, and a copy of the petition bearing the stamp of the Clerk of this Court reflects that a petition was filed at 11:05 a.m. on July 6, 1994. Testimony by Ms. Dianna Lacy convinced the Master that, had she been present, she would confirm the stated reason for failure to file the petition on time.

There was no evidence of any further effort on the part of Mr. Davis to tender or to obtain permission to file an untimely brief as permitted under the Rules of this Court.

Mr. Davis admitted receipt of notice from the Clerk of this Court calling his attention to the fact that no brief had been filed and requesting a response. He testified that he did call the Clerk’s office and Mr. Steen was out, but that he had informed Robin Home, Chief Deputy Clerk, that he would call Mr. Steen later that day, which he did not do. No response to the notice was ever received by the Clerk.

At the time of the Master’s hearing, Mr. Davis announced that he had almost completed a brief on behalf of Pipkin and that it would be tendered to the Clerk on December 27, 1994. As of this date, no brief has been filed by Mr. Davis.

Mr. Davis stated that he accepts full responsibility for failure to file the brief on time or take further steps to tender a belated brief. In mitigation, he stated that his failure was due to the fact that he practiced alone, was frequently out of town, and “simply could not get it prepared.” He denied any contemptuous intent and expressed his remorse for not filing the brief.

From the foregoing, we hold that Mr. Davis is in contempt for failing to comply with this court’s directives. He has demonstrated not only mismanagement of his client’s affairs but also an inability to fulfill his obligations to this Court and his commitment to the Master that he would file his brief no later than December 27, 1994. For these reasons, we fine him $500 and direct that a copy of this opinion be forwarded to the Committee on Professional Conduct. See Fellows v. State, 308 Ark. 258, 823 S.W.2d 893 (1992).

Glaze, J., not participating.


text:
    Jennings and Mitzi OSBORNE v. Arleta POWER, Dick Wallace, Joe H. Smith, Dennis Lucy, Tom Fiser, and Catherine Cockrill
    93-1303
    890 S.W.2d 577
    Supreme Court of Arkansas
    Opinion delivered January 9, 1995

      Samuel A. Perroni and John R. Pagan, for appellants.

      Wilson, Engstrom, Corum & Coulter, by: Gary D. Corum, for appellees.
   Per Curiam.

On December 20,1994, this court issued a per curiam order directing appellant Jennings Osborne to appear at 9:00 a.m. on December 27, 1994 to show cause why he should not be held in contempt for willfully disobeying this court’s orders. On December 21, 1994, Mr. Osborne filed a motion questioning this court’s jurisdiction to conduct a contempt hearing and alternatively seeking appointment by this court of a master to take evidence. Mr. Osborne also filed his petition for rehearing on December 21, raising ten points upon which he claims his rehearing petition should be granted. On December 22, 1994, appellees opposed the appointment of a master, and additionally requested that Osborne not be allowed to relitigate prior issues that already have or could have been litigated.

On December 27, 1994, the parties, represented by respective counsel, appeared at the show cause hearing as directed. On the same date, Mr. Osborne filed (1) a response denying he has ever willfully disobeyed any court order, (2) a motion to dismiss, alleging this court’s orders of December 5 and 16, 1994 are vague and ambiguous and are non-final orders, (3) a motion for a disinterested prosecutor and a request for a jury trial and (4) a notice of withdrawal of Robert “Bob” Lowry as one of Mr. Osborne’s counsel.

Upon consideration of the parties’ motions, affidavits, responses and arguments of counsel, we appoint the Honorable George Cracraft as a master to conduct an evidentiary hearing necessary for this court to decide whether Mr. Osborne, by the lighting of his Christmas display on December 17th, 18th and 19th of 1994, willfully disobeyed this court’s prior December 5 and 12, 1994 orders. The master is empowered to proceed discretionally under ARCP 53 and consistent with this per curiam. The master is also directed to require both appellants and appellees to file a bond, to be approved by the clerk, to secure payment of costs adjudged against them incurred in taking and transcribing the proof including the fee of the master.

The master’s evidentiary hearing is limited to determining (1) whether Mr. Osborne reduced substantially the size and extravagance of the display at or about the Osborne home to a level which would not attract the large crowds that had been drawn to the neighborhood in the past, (2) whether Mr. Osborne continued massive Christmas light displays on and about his home that are calculated to and do attract an unusually large number of visitors to the neighborhood and (3) whether Mr. Osborne reduced the volume of any sound accompanying the display so that it is not audible from within the closest homes of neighbors. Considering the foregoing factual issues, the master is given power to allow parties to produce evidence bearing on those terms set out in this court’s December 5th and 16th orders in light of the specific allegations contained in the appellees’ motion seeking contempt and Mr. Osborne’s response, including, but not limited to, the comparative differences in the size, construction, and electrical energy used in the displays of 1993 and 1994, as well as the comparative foot and vehicular traffic involved.

Regarding Mr. Osborne’s motions and petition for rehearing filed on December 21 and 27, 1994, appellees are given ten days from the date of this per curiam within which to respond. After that ten-day period, the court will take those legal issues under submission for decision. If any decision or ruling the court renders, concerning those motions, petition and responses, affects this per curiam, appointment of a master or the procedure set forth herein, the court will address any required changes upon making those rulings. If no changes are required by the court’s rulings, the master shall proceed in the manner set forth herein-above, and schedule a hearing so he may file a report of his findings no later than 45 days after the date this court decides the pending motions and petition and legal issues contained therein.

Special Justices William S. Arnold and Ernie Wright join.

Newbern and Brown, JJ., not participating.


text:
    Carl STEWART v. STATE of Arkansas
    CR 94-1068
    889 S.W.2d 771
    Supreme Court of Arkansas
    Opinion delivered January 9, 1995

      Hugh Finkelstein, for appellant.
    No response.
   Per Curiam.

Carl Stewart, by his counsel Hugh Finkelstein, asks to file a belated brief in his appeal of a criminal conviction. The brief was due December 12, 1994. It was tendered December 15, 1994. Mr. Finkelstein offers a litany of reasons, all of which amount to nothing more than saying he put off “finalizing” the brief until the last day when his schedule went awry. Although he says the delay was due to circumstances beyond his control, the facts he states show only mismanagement and failure to anticipate possible variances in court scheduling of unrelated matters in which he was involved after waiting until the last day to file the brief.

We will accept a criminal appellant’s belated brief to prevent an appeal being aborted. Hallman v. State, 287 Ark. 391, 698 S.W.2d 803 (1985). Although Mr. Finkelstein apologizes for failing to meet the deadline, he does not admit fault. We will, however, treat his failure to state good cause as an admission of fault and forward a copy of this opinion to the Committee on Professional Conduct. Anderson v. State, 277 Ark. 391, 641 S.W.2d 715 (1982).

Motion granted.


author: Robert H. Dudley, Justice.

text:
    John CALDWELL v. STATE of Arkansas
    CR 94-403
    891 S.W.2d 42
    Supreme Court of Arkansas
    Opinion delivered January 17, 1995

      James Dunham, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of committing two crimes of rape and was sentenced to life imprisonment for each crime. He appeals. There is no reversible error in any of the thirteen points of appeal, and we affirm the judgment of convictions.

Appellant first contends the evidence was not sufficient to sustain either of the convictions. The first conviction was for committing the crime of rape against his stepdaughter when she was less than fourteen years of age. Forcible compulsion is not an element of proof when the victim is less than fourteen. Ark. Code Ann. § 5-14-103(a)(3) (Repl. 1993). The second conviction was for committing the crime of rape by forcible compulsion against his stepdaughter when she was fourteen years old and older.

The victim testified that appellant began fondling her when she was nine, had anal sex with her and forced her to perform oral sex on him beginning at age eleven, and had vaginal sex with her at age thirteen and that these crimes continued against her until she was sixteen years old. The victim testified that she was afraid of her stepfather and that he forced her to submit to the crimes. The victim had a baby when she was fifteen years old, and a geneticist testified that there was a 99.26% probability that appellant was the father of the baby. A younger sister offered testimony tending to corroborate one of the acts.

On the first conviction, appellant states that if the victim “was telling the truth that the rapes, oral sex, and anal sex took place starting at age eleven, then there was sufficient information in the record to sustain the conviction, but if [the victim] was not truthful then there was not sufficient” proof to sustain the conviction. In short, appellant asks this court to reweigh the credibility of the testimony of the victim. The short answer to the argument is appellate courts do not weigh the credibility of witnesses. Mauppin v. State, 314 Ark. 566, 868 S.W.2d 270 (1993). The uncorroborated testimony of a child rape victim is sufficient evidence to sustain a conviction. Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987).

On the second conviction, appellant argues that there was no proof of forcible compulsion after the victim reached the age of fourteen years. The argument is without merit. The victim testified that her stepfather forced her to have sex with him after she turned fourteen and after she had her child at age fifteen. She further testified that she was the victim of the crime of rape by her stepfather over a prolonged period of time, beginning at age eleven. The test for determining whether there was force is whether the act was against the will of the party upon whom the act was committed. Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973). Further, the age of a victim and the relationship of the victim to the assailant are key factors in weighing the sufficiency of evidence to prove forcible compulsion. Keifer v. State, 297 Ark. 464, 762 S.W.2d 800 (1989). When an assailant stands in loco parentis to a victim, the law regarding force is satisfied with less than a showing of the utmost physical resistance of which the victim is capable. Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986). In sum, there was substantial evidence to support both of the convictions.

Appellant’s next point involves the rape shield statute. Appellant sought to introduce evidence that the victim told another child that appellant’s father, the victim’s step-grandfather, had sexually abused her when she was nine years old. The trial court correctly interpreted the plain language of the rape shield statute in refusing to allow such testimony. Ark. Code Ann. § 16-42-101(b) & (c)(2)(C) (Repl. 1994).

The trial court also ruled that, in accordance with the rape shield statute, appellant could not ask one of the State’s witnesses, a geneticist, whether either appellant’s father or his brothers could have produced genetic test results similar to the one introduced. We need not address the matter because, despite the court’s ruling, appellant was allowed to ask the questions, and the responses were unfavorable to him. Under these circumstances, even if the ruling were in error, appellant could not have suffered prejudice, and we will not reverse in the absence of prejudice. Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993).

Appellant’s next assignment of error fails for the same reason. He argues that the trial court erred in ruling that he could not have a copy of a report made by a Suspected Child Abuse and Neglect worker. We summarily affirm the point because appellant used the report to impeach the victim’s credibility. The trial court’s ruling did not result in any prejudice to appellant, and we will not reverse in the absence of prejudice. Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994).

Appellant next argues .that the trial court erred in refusing to order the State to produce the victim for a deposition, and, as authority for the argument, cites Rule 17.4 of the Arkansas Rules of Criminal Procedure. Rule 17.4 does not provide that an accused has a right to take the deposition of a victim. Rather, it confers authority on the trial court to require disclosure of material or information not produced under other provisions of Rule 17. See Commentary to Article V of the Rules of Criminal Procedure. In Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982), we said there might be some case in which a deposition might be required, but we have never been presented with such a case. The trial court did not err in the ruling.

At trial, the victim testified that appellant was the father of her child and that he had said to her, “Thank you for giving me a son.” Appellant objected on the ground that the statement had not been disclosed by the prosecution. The State responded that it did not know of the statement until ten o’clock the previous night. The trial court excused the jury and allowed appellant to voir dire the victim. The trial court granted a recess until the following morning so that appellant would have time to prepare for cross-examination. Appellant assigns the ruling as error.

Under the plain language of Rule 17.l(a)(iii) this evidence should have been provided to appellant because the statement came within the knowledge of the prosecuting attorney after timely discovery requests had been made. However, the State did not learn of the statement until late on the previous night. We have said that the question of the appropriateness of the trial court’s response in such cases is a separate issue. Reed v. State, 312 Ark. 82, 847 S.W.2d 34 (1993). Rule 19.7 provides four options for dealing with disclosure violations. The trial court’s choices are: (1) the evidence may be excluded; (2) discovery may be ordered; (3) a continuance may be granted; or (4) an appropriate order may be entered under the circumstances. Nelson v. State, 274 Ark. 113, 115-16, 622 S.W.2d 188, 189 (1981).

The trial court granted a recess until the following morning in order for appellant to have extra time to prepare for cross-examination of the witness. We cannot say that amounted to an abuse of discretion. Recently, in a similar case, inculpatory statements made by the defendant were not disclosed prior to trial, and we affirmed the trial court’s giving a continuance as an appropriate remedy. Reed, 312 Ark. at 88, 847 S.W.2d at 37.

In the State’s opening statement the prosecutor said, “You will hear Aaron Duvall testify from the Pope County Sheriff’s Department testify that when he tried to interview John Caldwell, John Caldwell was history. He was found some two and one-half months later in Las Vegas, Nevada.” Appellant moved for a mistrial on the basis that the prosecutor had commented on appellant’s refusal to testify. The trial court refused to order a mistrial. Appellant assigns the ruling as error.

Although it is true that the constitutional prohibition against the prosecutor commenting on the right of a defendant to remain silent applies to an opening statement, see Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987), this was not a comment on a refusal to testify, but rather was a reference to appellant’s flight from the State. Such a comment is permissible; therefore, the trial court did not err in refusing to grant a mistrial. See Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994).

Near the end of the prosecutor’s opening statement, the prosecutor additionally stated that appellant would testify that he is sterile. At the conclusion of the opening statement, appellant again moved for a mistrial and argued that the statement could cause the jury to wonder why he did not testify. The court denied the motion as untimely. In Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992), we held that an objection was untimely when the defendant waited until the end of his opening statement to object to something said in the prosecutor’s opening statement. Id. at 467, 839 S.W.2d at 177. The motion in Dixon was more untimely than the one in the instant case. However, even if timeliness were not a factor, the trial court did not err in denying the motion for a mistrial. A mistrial is an extreme remedy and should only be granted when there is no chance that the trial can continue without manifest unfairness to the defendant. Id. Here, another witness, a medical doctor, testified that appellant was sterile. Appellant did not have to take the stand in order to get this information to the jury; therefore, the trial court’s refusal to grant the mistrial could not have resulted in any prejudice to appellant.

Appellant objected to the admission of the three blood samples for insufficient showing of a chain of custody and objected to the paternity test document as hearsay. The trial court overruled both objections, and appellant assigns both as error.

At trial, the State used a geneticist to establish the chain of custody for the blood samples taken from the victim, appellant, and the baby for the paternity test. The geneticist testified that he was the custodian of the records kept in the normal course of business at Roche Biomedical Laboratories. He stated that these procedures were in place when the sample was received.

Appellant does not argue that the blood samples were tampered with, only that the chain of custody was broken because the geneticist did not actually see all of the procedures as they were being conducted. The “chain of custody” requirement does not require every person who came in contact with evidence to account for it at trial. Phills v. State, 301 Ark. 265, 783 S.W.2d 348 (1990). It is only necessary that the trial court be satisfied that the evidence was not tampered with by anyone. Id. at 267, 783 S.W.2d at 350. The geneticist’s testimony provided a sufficient foundation because he was the custodian of records which were kept in the normal course of business activity. See A.R.E. Rule 803(6).

Over appellant’s objection the trial court allowed in evidence a Roche Biomedical Laboratories report stating that appellant could not be excluded as the biological father of the victim’s child. Appellant objected to the evidence as hearsay and assigns the ruling as reversible error. Even if the report were hearsay, the content of it was properly admitted through another source.

Where hearsay evidence is improperly admitted, but the same evidence is properly admitted through another source, there is no reversible error. Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988). The geneticist testified that appellant could not be excluded as the child’s father. This is the same evidence as contained in the document. Thus, there was no reversible error.

Appellant sought to ask the geneticist if his opinion of the probability of appellant being the child’s father would be altered if he thought the victim had sex with his father or his brothers. The trial court refused to allow the testimony.

The trial court ruled correctly. There was nothing to indicate, even remotely, that the victim had sex with any of appellant’s relatives within the time she could have conceived the child. The only indication that the victim had sex with anyone else was her supposed statement to a friend that appellant’s father had sexually abused her, but, even if true and even if admitted into evidence, the event supposedly took place when the victim was nine years old, years before the child was conceived. Therefore, such questions were irrelevant and could only have had the effect of confusing the issues or wasting time. The trial court has discretion to exclude testimony, even if relevant, if it would confuse the issues or waste time. A.R.E. Rule 403; Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852 (1982).

Before trial appellant asked for the address of the victim, and the prosecutor replied that he did not have her address. The prosecutor refused to give appellant the address of the victim’s younger sister’s foster parents and refused to supply the address or phone number of a Suspected Child Abuse and Neglect worker. At trial, appellant argued that the State had maintained an open file policy for some defendants, but not for him. He objected and grounded his objection on the Equal Protection Clause. However, appellant failed to show how he was treated any differently than any other defendants requesting discovery. The record is barren of any proof about how other defendants are treated, and this court has stated that it will not respond to an argument that is lacking entirely in specificity. Burns v. State, 303 Ark. 64, 793 S.W.2d 779 (1990); Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989). When a law or government policy is facially neutral, a party must make a showing of how he is treated differently from others in order to show a violation of the Equal Protection Clause. Burns, 303 Ark. at 66, 793 S.W.2d at 780; see also Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989).

Appellant’s final argument is that the trial court erred in refusing to grant a continuance after the jury was seated. He argues that he was given information by the State at that time and it necessitated further investigation and testing. However, appellant made no showing or offered no proof to show how a continuance would have helped him investigate the information given him that morning, nor that such information would be relevant. Consequently, we cannot say the trial court abused its discretion in denying a continuance. See Ray v. State, 304 Ark. 489, 803 S.W.2d 894, cert. denied, 501 U.S. 1222 (1991).

Pursuant to Rule 4-3 (h) of the Rules of the Supreme Court and Court of Appeals, an examination of the record has been made of all other objections decided adversely to appellant, and there is no reversible error contained in those rulings.

Affirmed.


text:
    CHEQNET SYSTEMS, INC. v. STATE BOARD OF COLLECTION AGENCIES, Winston Bryant, Attorney General for the State of Arkansas, and Mark Stodola, Pulaski County Prosecutor
    94-683
    890 S.W.2d 595
    Supreme Court of Arkansas
    Opinion delivered January 17, 1995
    [Rehearing denied February 20, 1995.]

      Cross & Mills, by: Junius Bracy Cross, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Rick D. Hogan, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Cheqnet Systems, Inc., a collection business, purchases and takes assignments of dishonored checks which are payable to retail merchants. It collects the debt and charges the maker a service charge of $25.00. The State Board of Collection Agencies and the Attorney General made demand on appellant to cease charging in excess of $15.00 per dishonored check. Appellant filed this declaratory judgment suit and asked the circuit court to construe the applicable federal and state statutes to provide that it can lawfully impose a service charge in excess of $15.00. The circuit court ruled that the maximum lawful charge is $15.00. Appellant appeals. The ruling of the trial court was eminently correct.

Appellant first contends that state law does not prohibit it from charging a $25.00 service charge. Its argument is that since the applicable statutes, sections 5-37-303, -304, and -307 of the Arkansas Code Annotated, specifically provide for a $15.00 maximum service charge on checks returned for insufficient funds, they impose no limit on checks returned for any other reason. We summarily reject the argument. The cited statutes provide that the service charge shall not exceed $15.00 per dishonored check. The first rule in interpreting a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994). We have no hesitancy in holding that the General Assembly intended to prohibit the party holding a dishonored check from assessing a collection fee in excess of $15.00 per check.

Appellant also contends that a service charge of $25.00 per check is authorized by a part of the federal Fair Debt Collection Practices Act. Specifically, it contends that 15 U.S.C. § 1692f( 1) (1982) permits the collection of a service fee if the fee is authorized by the agreement of the parties at the time the debt was created or is permitted by. state law. At trial, appellant proved that the merchants who take the checks have signs in their stores expressly calling for a $25.00 service charge on all returned checks. Because of the signs, appellant contends that at the time a debt is created the parties agreed to a service charge of $25.00 and such agreement is expressly authorized by the federal Act. Again, we summarily dispose of the argument. Even if the posting of a sign created a contract, the federal Act does not authorize a service charge that is in excess of that permitted by state law, and it does not validate a contract that is contrary to state public policy. See 15 U.S.C. § 1692f(l) (1982).

Affirmed.


text:
    Shelby and Theresa McADAMS and Bob J. McAdams v. AUTOMOTIVE RENTALS, INC.
    94-207
    891 S.W.2d 52
    Supreme Court of Arkansas
    Opinion delivered January 17, 1995
    [Rehearings denied February 27, 1995.]

      Thomas J. Pendowski and B.J. McAdams, pro se, for appellants.

      Eichenbaum, Scott, Miller, Liles & Heister, P.A., by: James H. Penick, III, for appellee.
   Robert H. Dudley, Justice.

Twin City Bank filed a foreclosure action against B.J. McAdams and other parties that held liens against the encumbered property. The bank asked that its mortgage be decreed first in priority.' Automotive Rentals, Inc. is one of the other named defendants. The chancellor granted a decree of foreclosure and ruled that Twin City Bank was first in priority. The mortgage was assigned to Shelby and Theresa McAdams. A sale was ordered, and Shelby and Theresa McAdams purchased the property. After numerous motions, hearings, and rulings, the chancellor entered an order of confirmation. B.J. McAdams and Shelby and Theresa McAdams filed a notice of appeal within thirty days of the order of confirmation.

The chancellor subsequently ruled that Automotive Rentals, Inc. had the next lien in priority. It applied to excess proceeds, if any, resulting from the sale of the property. However, the chancellor also ruled that B.J. McAdams was entitled to claim a homestead exemption against Automotive Rentals, Inc. Automotive Rentals filed a notice of appeal. The style of the case might be misleading; these are two direct appeals by separate defendants in the action filed by Twin City Bank.

We granted Automotive Rentals’s motion to consolidate the two separate appeals and determine both of them in this opinion. We dismiss the McAdamses’ appeal and affirm Automotive Rentals’s appeal.

We dismiss the appeal of B.J. McAdams and Shelby and Theresa McAdams because the deficiencies in their abstract are so flagrant that a decision is well nigh impossible. See Haynes v. State, 313 Ark. 407, 855 S.W.2d 313 (1993). An abstract is to be a condensation of the material parts of the pleadings, proceedings, and other matters contained in the record so that it will give us an understanding of the points of appeal. Ark. Sup. Ct. R. 4-2(a)(6). The McAdamses’ abstract refers to numerous extraneous matters and compiles them in such a way that it is difficult and, in places, impossible, to separate them from the material parts of the record. Material parts of the record are, in places, cryptically stated and without headings or spaces to distinguish or separate them. One example of our difficulties caused by the deficiencies is as follows. We have long said that a decree granting foreclosure and placing the court’s directive into execution is a final and appealable order. “If it were otherwise, and there were questions about the validity of the sale, prospective bidders might not bid a reasonable amount because there would be a cloud over the matter, and no one wants to buy a lawsuit.” Scherz v. Mundaca Inv. Corp., 318 Ark. 595, 597, 886 S.W.2d 631 (1994) (quoting Alberty v. Wideman, 312 Ark. 434, 437, 850 S.W.2d 314, 314 (1993)). In addition, an appeal taken from the decree granting foreclosure must be taken within thirty days from the date that order is entered. See Scherz at 597, 886 S.W.2d at 631; Ark. R. App. P. 2. The decree confirming the foreclosure sale is a separate, final, and appealable order, and a notice of appeal must be given within thirty days of that decree. In this case, the notice of appeal is abstracted only as “November 29, 1993, joint notice of appeal filed.” The notice of appeal must specify the parties taking the appeal. Ark. R. App. P. 3(e). Even assuming all three McAdamses gave the notice, the abstract does not set out the order from which they intended to appeal. The abstract, however, does reflect that the notice was filed within thirty days of an order abstracted as follows:

November 10, 1993, court issues an order confirming sale, stating it examined the report of sale and “the report is, therefore, in all things approved.” . .. “and the acting commissioner is ordered to make a deed to the purchaser” and present same for the court’s approval. In this same order, the court approved the commissioner’s deed “in all things” and authorized the deed to be admitted to record in the office of the recorder of Pulaski County, Arkansas. This order was filed by the court on November 16, 1993, (R.449,450). This order was not appealed. [Emphasis supplied].

If, as they state, the McAdamses are not intending to appeal from the November 10 order, they apparently are attempting to appeal from an order entered on September 17, 1993. While it is difficult to determine from the abstract whether their notice of appeal regarding this order is timely, the September 17 order is abstracted as follows:

September 17, 1993, the court filed a 10 page order regarding priorities, and based upon the findings in the order directs petitioners Shelby and Theresa McAdams to pay in additional funds (R.239).
1) The chancery court in this order denied CDC’s claim priorities based on the findings in US bankruptcy Case 40-695F, and 90-4207, that the CDC held mortgage was a guaranty, that the proceeds of the promissory note were paid by CDC several months prior to the execution of the guaranty by BJM and no consideration was given (R.240-243).
2) Based upon the foregoing, the court found ARI to have a first priority in surplus proceeds as defined in an order entered herein on August 11, 1992, denied Shelby and Theresa McAdams petition filed August 25, 1992, and directed them pay in additional funds within 14 days (R.247).

None of the points of appeal set out in the argument in this court are related to the trial court’s order of September 17. Some of the points of appeal are for B.J. McAdams, and some are for Shelby and Theresa McAdams, and nearly all of them relate back to the original foreclosure action. If the order of foreclosure is the order from which the notice of appeal is given, the notice of appeal is untimely. However, because of the flagrant deficiencies in abstracting, we are unable to determine even the order from which the appeal is taken.

It would serve no useful purpose to cite further examples of the flagrant deficiencies of the McAdamses’ abstract. We have no choice but to affirm their appeal under Rule 4-2 of the Arkansas Supreme Court Rules.

Automotive Rentals gave its separate notice of appeal on March 10,1994, from an order entered March 1,1994. That order provided that B J. McAdams had a right to claim his homestead exemption in any excess proceeds from the sale of the encumbered property. Automotive Rentals subsequently filed a motion to consolidate its appeal with the McAdamses’ appeal. We granted the motion. Subsequently, Automotive Rentals filed only a supplemental abstract. The supplemental abstract is, in form, compiled in compliance with Rule 4-2, but it does not sufficiently supplement the McAdamses’ deficient abstract for us to reach its first point of appeal.

In its first point of appeal, Automotive Rentals argues that the chancellor’s decision regarding the homestead exemption was contrary to public policy because of B J. McAdams’s fraudulent marriages and that the decision was clearly erroneous. Yet, there is nothing in either the McAdamses’ abstract or Automotive Rentals’s supplemental abstract to show that an argument about public policy and fraudulent marriages was made to the chancellor. The only pleading shown on the issue is contained in the McAdamses’ abstract and is abstracted as follows:

January 28, 1994, ARI files Response and Brief to January 25, 1994, Motion of Shelby and Theresa McAdams for Homestead Rights.

THE MOTION STATES

1) They are not entitled to assert any homestead, they are residents of Florida.
2) The homestead assertion was made subsequent to the execution and order of sale (R.552).
3) A complete schedule, verified by affidavit was not filed (R.553).

The foregoing does not reflect that a public policy argument was made to the trial court. Rather, it appears from the abstract that the argument is being raised for the first time on appeal, and we have often said that an argument cannot be raised for the first time on appeal. Silvey Cos. v. Riley, 318 Ark. 788, 888 S.W.2d 636 (1994). As a result, we affirm this point of appeal.

Automotive Rentals’s second point of appeal is that B.J. McAdams has not complied with the March 1 order, the order from which it appeals. Obviously, this matter has not been ruled on by the trial court, and we therefore do not reach it.

The appeal of B.J. McAdams and Shelby and Theresa McAdams is affirmed. The one point of the appeal of Automotive Rentals that we reach is affirmed.

Affirmed in part and dismissed in part.


text:
    SPRING CREEK LIVING CENTER v. Vivian SARRETT
    94-454
    890 S.W.2d 598
    Supreme Court of Arkansas
    Opinion delivered January 17, 1995

      Anderson & Kilpatrick, by: Overton S. Anderson and Frances E. Scroggins, for appellant.

      David Hodges and Paul Schmidt, for appellee.
   Robert H. Dudley, Justice.

Appellee Vivian Sarrett was a ninety-five-year-old resident of the Spring Creek Living Center, a geriatric care facility, when employees of Spring Creek lost control of her wheel chair and dropped her. Mrs. Sarrett filed suit and alleged ordinary negligence by employees of Spring Creek and Southern Key Investments, Inc. in dropping her. After first denying liability, Spring Creek and Southern admitted that Mrs. Sarrett’s injuries were the proximate result of negligence by the employees of Spring Creek.

Mrs. Sarrett amended her complaint to add a second count for conspiracy by employees and representatives of Spring Creek to withhold appropriate medical treatment from her. Still later, a second amendment added a third count for failure of Spring Creek to provide appropriate medical treatment after the injury.

Spring Creek and Southern moved to sever the allegations of conspiracy and failure to provide medical treatment from the claim for ordinary negligence in dropping the wheel chair. The motion was denied. A motion in limine to bar the introduction of lay testimony about the withholding of medical care was also denied. The trial court ruled that the allegations did not involve medical injuries, but instead involved only ordinary negligence for which lay opinion would suffice.

In the course of the trial the judge directed a verdict for Southern on all counts and directed a verdict for Spring Creek on the conspiracy count. The trial court denied Spring Creek’s motion for a directed verdict for failure to provide medical care to the plaintiff. The trial court reasoned that there was no separate medical malpractice claim apart from the ordinary negligence claim. At this point in the trial Southern was dismissed from all counts, and Spring Creek was dismissed on the conspiracy count. Spring Creek remained in the suit on the ordinary negligence count and the failure to provide medical care count because the trial court had ruled that these two counts were both for ordinary negligence. At the close of the case Spring Creek offered an instruction on medical malpractice, but the trial court refused to give it. The jury returned a verdict of $30,000 on behalf of Mrs. Sarrett. Spring Creek appeals. We reverse and remand.

Appellant argues that allegations raised by the amendments to Mrs. Sarrett’s complaint involved medical injury within the Medical Malpractice Act. See Ark. Code Ann. § 16-114-201(3) (1987). The amended complaint alleged that Spring Creek and Southern “failed and neglected to provide [Mrs. Sarrett] with any medical treatment” and that certain conditions could have been diagnosed earlier but for the “neglect and intentional refusal” of agents and employees of Spring Creek and Southern to provide competent medical care.

Section 16-114-201(3) defines “medical injury” broadly:,

“Medical injury” or “injury” means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.

Ark. Code Ann. § 16-114-201(3) (1987). It follows that claims based on allegations of a failure to provide needed medical care and attention or the timely diagnosis of medical problems come within the ambit of the Medical Malpractice Act and are dependent upon expert testimony. Ark. Code Ann. § 16-114-206(a) (1987); Courteau v. Dodd, 299 Ark. 380, 773 S.W.2d 436 (1989); Sexton v. St. Paul Fire & Marine Ins. Co., 275 Ark. 361, 631 S.W.2d 270 (1982). The trial court erred in permitting the issues raised by the medical malpractice amendment to rest on lay testimony, and it was error to refuse to grant a directed verdict on the medical malpractice count.

Mrs. Sarrett asks us to affirm the judgment on the ground that the trial court reached the right result, albeit for the wrong reason, because it refused to give the malpractice instruction, and, consequently, the jury never considered an award for medical malpractice. We cannot affirm on such a basis.'Richard Tockman, Mrs. Sarrett’s son-in-law, testified on her behalf that the medical care she received from Spring Creek changed dramatically for the worse after her fall. He cited as an example the fact that her pain medication was withheld from her. There was also testimony that Dr. Jerry Chapman, a radiologist and alleged agent of Spring Creek, cancelled necessary x-rays of Mrs. Sarrett. There was further testimony that Mrs. Sarrett stayed in bed for almost a year under the care of Spring Creek while complaining about shoulder, hip, and thigh problems. Yet, no treatment for those conditions was provided. In closing argument, Mrs. Sarrett’s counsel remarked:

Now, what’s it worth to have an injury for almost a —from January until December, laying in bed with all the problems she had? I say it’s over a Hundred Thousand Dollars. Now, if you disagree with me, you think [sic] what you think is fair. I say anything less than a Hundred wouldn’t be fair in this case.

An instruction was given asking the jury to make a determination of whether Dr. Chapman was an agent of Spring Creek in his care of Mrs. Sarrett, and the jury answered in the affirmative. The above evidence, counsel’s argument, and the finding by the jury are not associated with damages resulting from Sarrett’s fall, but rather are connected with the assertions of failure to provide adequate medical care.

In a related argument, Mrs. Sarrett asks us to affirm the erroneous submission of the medical malpractice count because Spring Creek never obtained a ruling to show the prejudicial impact on the jury. We cannot so resolve the issue under the facts of this case. Spring Creek moved in limine to have the negligence claim and the malpractice claim severed and argued that combining the two counts would poison the minds of the jurors. The trial court denied the motion and allowed a continuing objection on the issue. Spring Creek next moved for a directed verdict on the medical malpractice claim, and the trial court also denied this motion. Spring Creek followed by asking for the court to instruct the jury on medical malpractice so as to distinguish the claim from the negligence issue. Again, the trial court refused to do so. In sum, Spring Creek took a number of procedural steps to separate the medical malpractice claim from the ordinary negligence claim, and the trial court denied each. After the jury returned the verdict, appellant could not question the jurors “as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict.” A.R.E. Rule 606(b). There was nothing more Spring Creek could do to show prejudice. Thus, we have no hesitancy in reversing on this point of appeal.

Since appellant admitted liability in its pleadings, the issue becomes whether we should generally remand or remand only for a determination of damages. In McVay v. Cowger, 276 Ark. 385, 386, 635 S.W.2d 249, 250 (1982), we set out our general rule as follows:

“In law cases the verdict is an entity which we cannot divide by affirming the finding of liability and yet remanding the cause upon the issue of damages.” Manzo v. Boulet, 220 Ark. 106, 246 S.W.2d 126 (1952), citing Martin v. Street Improvement District No. 349, 180 Ark. 298, 21 S.W.2d 430 (1929). This has long been our law. Krummen Motor Bus & Taxi Co. v. Mechanics’ Lumber Co., 175 Ark. 750, 300 S.W. 389 (1927); Martin v. Kraemer, 172 Ark. 397, 288 S.W. 903 (1926); Bothe v. Morris, 103 Ark. 370, 146 S.W. 1184 (1912); Carroll v. Texarkana Gas & Electric Co., 102 Ark. 137, 142 S.W. 586 (1912); and Dunbar v. Cowger, 68 Ark. 444, 59 S.W. 951 (1900).

Further, when a case is remanded for a new trial, all of the issues that have not been dismissed are open anew as if there had been no trial, and the parties have a right to amend their pleadings. Overton Constr. Co. v. First State Bank, 285 Ark. 361, 688 S.W.2d 268 (1985). Although it is unlikely, appellant may wish to file new pleadings in which it does not admit liability. Thus, we issue a general remand for retrial of the ordinary negligence count.

We discuss only two of the other points of appeal, and we discuss them only for the guidance of the trial court and counsel on remand. Appellant contends that the proof of expenses was insufficient to submit the issue of out-of-pocket expenses to the jury on the ordinary negligence count. Over the objection of appellant, Mrs. Sarrett’s daughter testified that she received a hospital bill of between $5,000 and $6,000 for her mother’s hospitalization following the injuries and that she received a bill of $300 from a physician. She testified the bills totalled $9,000. No bills were introduced.

The underlying requirement for the recovery of medical expenses is that they are both reasonable and necessary. They must, of course, be attributable to the injuries complained of. Bell v. Stafford, 284 Ark. 196, 680 S.W.2d 700 (1984); Roy v. Atkins, 276 Ark. 586, 637 S.W.2d 598 (1982). Presumably, on retrial the proof will relate more specifically to the necessity and reasonableness of expenses attributable to the injuries.

Last, Spring Creek, as a point of appeal, contends that the trial court erred in failing to rule on its motion for sanctions under Rule 11 of the Arkansas Rules of Civil Procedure. Upon remand, the trial court should rule on the matter.

For the reasons stated, the judgment appealed from is reversed, and the cause is remanded to the trial court on the ordinary negligence count for further proceedings.


text:
    Dorothy STEVENS v. A.C. BILLINGS, Jr., Administrator of the Estate of Ola Maie Pickens, Deceased
    93-1372
    890 S.W.2d 609
    Supreme Court of Arkansas
    Opinion delivered January 17, 1995

      Jerry Ryan and James D. Stoker, for appellant.

      Joe Hardegree, for appellee.
   Robert H. Dudley, Justice.

This is another in the long series of cases in which a bank signature card is used as a substitute for a will. See, e.g., Lovell v. Marianna Fed. Sav. & Loan Ass’n, 264 Ark. 99, 568 S.W.2d 38 (1978). In this case W.C. Pickens and his wife, Ola Maie Pickens, opened a joint checking account in the Union Bank of Mena. The bank titled the account “Mr. or Mrs. W.C. Pickens,” and the signature card reflected the authorized signatures of “W.C. Pickens” and “Mrs. W.C. Pickens.” The account was opened in 1958, and at that time the statute in effect provided in pertinent part:

When a deposit shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or to the survivor of them, such deposit . . . shall become the property of such persons as joint tenants. . . .

Ark. Stat. Ann. § 67-521 (Repl. 1957).

Seven years later the “will substitute” statute, Act 78 of 1965, was enacted. It provided that checking or savings accounts could be opened by a bank “with the names of two (2) or more persons.” It further provided:

If the person opening such account. . . designates in writing to the banking institution that the account... is to be held in . . . “joint tenancy with right of survivorship,” . . . then such account . . . shall be the property of such persons as joint tenants with the right of survivorship. . . .

Ark. Stat. Ann. 67-552 (Repl. 1980) (emphasis added).

On November 1, 1973, eight years after the will substitute statute was enacted, the Pickenses executed a new signature card that reflected the authorized signatures of “W.C. Pickens,” “Mrs. W.C. Pickens,” and “Ola Maie Pickens (Mrs.) Same.” The top line of the signature card provides: “No. of signatures required 1” The back of the card provides that the depositors owned the account as “joint tenants with right of survivorship and not as tenants in common” and that the account was payable to either of the depositors or to the survivor. Underneath that provision there are three signatures: “W.C. Pickens,” “Mrs. W.C. Pickens,” and “Ola Maie Pickens.” With this card and their signatures, the Pickenses created a joint tenancy with right of survivorship in the account.

Another part of Act 78 of 1965 that was in effect when the new card was executed provided that accounts held in joint tenancy “may be paid to . . . any one (1) of such persons [joint tenants] during their lifetime.” Ark. Stat. Ann. 67-552(a) (Repl. 1980). The Act also provided:

If an account is opened ... in the name of two (2) or more persons, ... a banking institution shall pay withdrawal requests, accept pledges of the same, and otherwise deal in any manner with the account. . . upon the direction of any one (1) of the persons named therein . . . unless one (1) of such persons named therein shall by written instructions delivered to the banking institution designate that the signature of more than one (1) person shall be required to deal with such account. . . .

Ark. Stat. Ann. § 67-552(d) (Repl. 1980) (emphasis added). Neither of the Pickenses ever instructed the bank that more than one person was required to deal with the account.

On January 8, 1981, Ola Maie Pickens went to the bank to add the name of Dorothy Stevens to the account. A bank official used a form account agreement and typed the name of “W.C. Pickens or Ola Maie Pickens or Dorothy Stevens” as the title of the account. The account agreement provides that it is a “Joint Account-With Survivorship.” Both Ola Maie Pickens and Dorothy Stevens signed the agreement. W.C. Pickens did not sign the account agreement. There were no subsequent changes in the account agreement.

W.C. Pickens died in 1985, and Ola Maie Pickens died in 1992. Dorothy Stevens survives. The administrator of the estate of Ola Maie Pickens filed this suit against Dorothy Stevens and the bank and asked the chancery court to declare that the estate was the owner of the account. The basis of the estate’s claim is that W.C. Pickens did not sign the 1981 account agreement. Dorothy Stevens answered and asked that she be declared the owner of the deposit. Both sides agreed there were no genuine issues of material fact, and both sides moved for summary judgment. The chancellor declared that the estate of Ola Maie Pick-ens was the owner of the account. We reverse.

In 1973, the Pickenses changed the account to expressly create a joint tenancy with a right of survivorship. The law in effect at the time of the change governs. Harris v. Searcy Fed. Sav. & Loan Ass’n, 241 Ark. 520, 408 S.W.2d 602 (1966). The law in effect at the time of the change provided that a banking institution should pay withdrawal requests, accept pledges of deposit, or otherwise deal in any manner with the account upon the direction of any one of the persons named as a joint tenant unless instructed otherwise in writing. In 1981, Ola Maie Pickens was one of the persons named as a joint tenant, and she directed the bank, in writing, to add the name of Dorothy Stevens to the joint account. W.C. Pickens never directed that more than one signature be required to deal with the account. Thus, under the plain language of the statute, Ola Maie Pickens’s act was valid and is binding on her estate.

In a comparable case we held that where one joint tenant pledged a bank account to secure his note to the bank, such act was a valid pledge and therefore binding on the other tenant who did not sign the note. Dixon v. Arkansas State Bank, 280 Ark. 165, 655 S.W.2d 449 (1983).

The estate of Ola Maie Pickens, in arguing that the act of Ola Maie Pickens was invalid, asks us to extend the holdings of two of our cases, Jones v. Robinson, 297 Ark. 580, 764 S.W.2d 610 (1989) and Hall v. Hall, 276 Ark. 43, 631 S.W.2d 838 (1982). We decline to so do.

In Jones, a husband and wife initially opened a joint account with right of survivorship. The husband died, and the wife became the sole owner of the account. While the wife was the sole owner of the account, a niece signed the authorized signature card. After the wife’s death, the niece contended that she owned the account. The wife, who was the owner of the account, never authorized in writing the niece becoming a joint tenant. She never executed a substitute will. We held that the niece was not a joint tenant with the wife. In the case at bar, one of the established joint tenants authorized in writing the addition of Stevens to the account, and the governing statute expressly authorizes the account to be changed on the direction in writing of any one of the established joint tenants.

In Hall, the bank was instructed in writing to issue a certificate of deposit in the name of two persons. Later, one joint tenant went to the bank and orally requested a bank official to alter the account so that the name of the other joint tenant was removed. We wrote: “The trial court was right in holding that the alteration of the certificate of deposit was contrary to law. Ark. Stat. Ann. § 67-552(g) requires that in order to change the designee of an account there must be written directions accepted by the banking institution.” Id. at 45, 631 S.W.2d at 840. In the case at bar, Ola Maie Pickens authorized in writing the addition of the name of Dorothy Stevens to the account.

In both Jones and Hall, the owner or owners of the accounts did not make a designation in writing. Thus, there was no compliance with the substitute will statute. In the case at bar, one of the established joint tenants authorized in writing the addition of a third joint tenant as authorized by the will substitute statute. Consequently, we will not extend those holdings to the case at bar.

Reversed and remanded for proceedings consistent with this opinion.


author: David Newbern, Justice. Robert L. Brown, Justice,

text:
    Richard GAVIN v. Jody GAVIN
    94-672
    890 S.W.2d 592
    Supreme Court of Arkansas
    Opinion delivered January 17, 1995

      Phil Stratton, for appellant.

      Casey Jones-, for appellee.
   David Newbern, Justice.

Richard Gavin, the appellant, and Jody Gavin, the appellee, were divorced. Ms. Gavin petitioned the Chancellor to award attorney’s fees for services rendered to her by her attorney after the decree was entered. Mr. Gavin contested the petition on the ground that the fees sought were for services rendered with respect to matters other than the obtaining of alimony, maintenance, or support. From the abstract before us, all we know is that the Chancellor entered two orders after the date of the decree, each awarding Ms. Gavin an attorney’s fee of $1500 with interest at 10% per annum.

Mr. Gavin appeals from those orders contending the Chancellor lacked authority to award attorney’s fees other than with respect to the obtaining of alimony, maintenance, or support and that the 10% interest rate was in excess of the amount allowed by Ark. Const, art. 19, § 13. We affirm the orders.

1. The attorney’s fee award

Mr. Gavin’s abstract states that when the Chancellor considered the matter there was “colloquy between the attorneys and the court regarding the propriety of post-decree fees in matters not involving alimony, maintenance, or support.” There is, however, nothing in the abstract from which we can determine that the fees were awarded for other than alimony, maintenance, or support. All we know is that fees were awarded after the decree of divorce was rendered.

That the fees were awarded subsequent to the decree and may have been awarded for services performed by Ms. Gavin’s attorney subsequent to the decree does not require us to reverse. Arkansas Code Ann. § 9-12-309(b) (1987) permits attorney’s fees to be awarded for enforcement of alimony, maintenance, and support provided in the decree. Attorney’s fees may also be awarded for services related to modification of a divorce decree with respect .to a child custody provision, an item not included in the statutory list. Finkbeiner v. Finkbeiner, 226 Ark. 165, 288 S.W.2d 568 (1956). In each of those situations, the fees are awarded for services rendered after the initial decree of divorce.

As a general rule, attorney’s fees are not allowed in the absence of a statute permitting their allowance. Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990); Damron v. University Estates, Phase II, 295 Ark. 533, 750 S.W.2d 402 (1988). We have held, however, that a chancellor has considerable discretion to award attorney’s fees in a divorce case. See, e.g., Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). We and the Court of Appeals have recognized that a chancellor has inherent power and jurisdiction to allow attorney’s fees in matters not specifically covered by statute, including contempt proceedings, for example. Feazell v. Feazell, 225 Ark. 611, 284 S.W.2d 117 (1955); Payne v. White, 1 Ark. App. 271, 614 S.W.2d 684 (1981).

We decline to reverse the fee awards with nothing before us showing the attorney’s services for which the fees were awarded.

2. Interest

Mr. Gavin argues the Chancellor awarded 10% interest on the attorney’s fee orders pursuant to Ark. Code Ann. § 9-12-309(c) (1987). That section states, “All child support which becomes due and remains unpaid shall accrue interest at the rate of ten percent (10%) per annum.” He contends that statute conflicts with Ark. Code Ann. § 16-65-114 (1987) and with Ark. Const, art. 19, § 13.

We assume the reference to § 9-12-309(c) is in error, and we take the argument to. be that the attorney’s fees awarded amounted to judgments and that the interest awarded on the judgments must, in accordance with § 16-65-114(a), be limited to the maximum rate permitted by art. 19, § 13, of the Constitution. Section 16-65-114(a) provides:

Interest on any judgment entered by any court or magistrate on any contract shall bear interest at the rate provided by the contract or ten percent (10%) per annum, whichever is greater, and on any other judgment at ten percent (10%) per annum, but not more than the maximum rate permitted by the Arkansas Constitution, Article 19, § 13.

We pointed out in McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991), that Article 19 has nothing to do with interest on a judgment amount.

Ms. Gavin has not filed a supplemental abstract. In her argument on this point, she “agrees that interest should not exceed the allowable rate of interest at the time of judgment, which was 8%.” She asks us to modify the judgment rather than reverse it.

Article 19, § 13, limits interest on general loans and consumer loans and credit sales. As to general loans, it provides for penalties in the event interest specified in a contract is in excess of 5% above the federal discount rate at the time of the contract. It voids contracts for consumer loans and credit sales when interest is to be at a rate greater than 17%. Even if the “general loans” provision were applicable here, there is nothing before us from which we could determine the federal discount rate to be used in the formula to be applied.

We are reluctant to decline to modify the order in view of Ms. Gavin’s agreement that it should be modified. On the other hand, we are being asked to “fly blind,” and we are more reluctant to modify the Chancellor’s order when we have nothing in the abstract before us and no convincing argument which supports the modification.

When a party makes a concession of a point on appeal, we do not just accept it without discussing the basis for it. See, e.g., Southwestern Distilled Products Inc. v. State, 203 Ark. 524, 160 S.W.2d 208 (1941); Estes v. Estes, 202 Ark. 73, 148 S.W.2d 1075 (1941). Nor is an issue decided simply because both parties to a lawsuit allege the same conclusion of law. See Trace X Chemi cal, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W.2d 89 (1979).

In view of the lack of any basis to establish the 8% interest rate suggested by Ms. Gavin and the lack of any convincing argument that the rate is controlled by Ark. Const, art. 19, § 13, or any basis to establish a proper interest rate should it be applicable, we affirm.

Affirmed.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. I respectfully dissent and would consider the issue of the attorney’s fee award on the merits — not on the basis of a deficient abstract.

The abstract clearly states, as the majority opinion admits, that the trial court and the attorneys debated whether an attorney’s fee was appropriate for work done after the divorce decree for matters not involving alimony, maintenance, or support. Our statutes provide for post-decree attorney’s fees only for enforcement of awards in those limited categories. See Ark. Code Ann. § 9-12-309(b) (Repl. 1993). It is further clear from the briefs that the work done by Mrs. Gavin’s attorney after the decree dealt with enforcement matters unrelated to alimony, maintenance, or support. Indeed, Mrs. Gavin in her Statement of the Case details three areas where she had to incur additional attor-. ney’s fees: (1) a contempt hearing due to Mr. Gavin’s attempt to thwart a real estate sale; (2) an enforcement action dealing with a marital bank account; and (3) an enforcement action to collect attorney’s fees and counseling fees. Neither party contests this. Nor. does counsel for Mrs. Gavin argue that any other statutory basis for the fee award applies. The stated issue is whether Mrs. Gavin’s counsel should be paid for work done to enforce other aspects of the decree which included division of marital property. Where the framed issue is clear and the facts are not in dispute, we should decide the question.

Further, when the parties agree on an interest rate to apply post-decree, I question the existence of a remaining case or controversy. Though the reasoning of the majority opinion about some basis for a concession is logical, the parties did not argue on appeal that the interest rate was in dispute. A ready inference from the briefs is that the eight percent rate was calculated, using the federal discount rate plus five percent. That is sufficient for me. In sum, I question whether we should resurrect an issue and scrutinize it when the parties have laid the dispute to rest and where there is a basis for the appellee’s concession.


author: Tom Glaze, Justice.

text:
    Yvonne CLARDY v. C. H. WILLIAMS
    94-612
    890 S.W.2d 276
    Supreme Court of Arkansas
    Opinion delivered January 17, 1995
    [Rehearing denied February 27, 1995.]

      The Roberts Law Firm, by: Robert L. Thacker, for appellant.

      Helen Rice Grinder, for appellee.

       Appellee’s request for attorney’s fees and costs was denied.

   Tom Glaze, Justice.

This case involves the construction of Willard L. Dobrinski’s last will and testament which contained a specific bequest to appellee C. H. Williams of all amounts and income therefrom which Dobrinski received from his late wife. Under the will, all remaining money and property were bequeathed and devised to appellant Yvonne Clardy, Dobrinski’s daughter. It is uncontested that, on April 24, 1989, Dobrinski’s wife’s estate left Dobrinski $21,151.47, which was transferred to his guardianship account.

Dobrinski had been declared .physically incapacitated in 1978, and Clardy had been appointed as guardian of Dobrinski’s person and estate. However, Clardy was later removed, and in June of 1989, Williams was appointed as guardian of Dobrinski’s person and ultimately Worthen Bank & Trust of Conway was appointed guardian of the estate. Dobrinski died on May 15, 1992, and his will was admitted to probate.

As executor of Dobrinski’s will, Williams submitted a first and final accounting tó close administration of the estate, and among other things, the accounting proposed distribution of $21,151.47 to Williams, as directed by Dobrinski’s will. Clardy objected, seeking all monies be distributed to her because the funds previously received by Dobrinski from his wife’s estate had been adeemed because they had been commingled with his other assets. After conducting a hearing and having the parties submit briefs, the probate court denied Clardy’s objection, and on November 10, 1993, entered an order approving the proposed accounting. Clardy appeals from that order.

It is impossible to reach the merits of this case because the abstract is insufficient. The probate judge’s November 10 order reflects he held a hearing concerning the bequest in issue here because he had concluded Dobrinski’s will was ambiguous. Apparently, the hearing was held and oral testimony was admitted to show the meaning of the words used in Dobrinski’s will, and to interpret the will so as to determine Dobrinski’s meaning in the use of the words employed regarding his intended distribution of his estate. Based upon the evidence taken at that hearing, the probate judge made his findings used to approve Williams’s proposed accounting.

We have searched the record, and cannot find a transcript or abstract of the aforementioned lower court’s hearing. Even though we review appeals from probate court de novo, our review is upon the record as abstracted. Zini v. Perciful, 289 Ark. 343, 711 S.W.2d 477 (1986). Here, Clardy has failed to abstract any of the hearing supporting the probate order appealed. Under Ark. Sup. Ct. R. 4-2, we will affirm the trial court where the appellant has failed to abstract those matters in the record necessary to an understanding of all questions presented on appeal.

Accordingly, we affirm.

       Letter briefs containing references to testimony elicited at the hearing were located in the transcript, but those briefs are not mentioned in the abstract either. We do not suggest such briefs would be a substitute for an abstract of the proceedings below, but mention the fact only to reveal such briefs are the only reference to testimony taken at the hearing.


text:
    Gregory NESDAHL v. STATE of Arkansas
    94-643
    890 S.W.2d 596
    Supreme Court of Arkansas
    Opinion delivered January 17, 1995

      William R. Simpson, Jr., Public Defender, by: Phyllis Edwards, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

The state filed a juvenile petition charging Gregory Nesdahl, then age sixteen years old, with theft by receiving, battery in the third degree and carrying a weapon. This appeal deals only with Nesdahl’s carrying-a-weapon conviction.

Nesdahl was charged and convicted under Ark. Code Ann. § 5-73-120(a) (1987) which in relevant part provides a person commits the offense of carrying a weapon if he possesses a knife on or about his person, in a vehicle occupied by him, or otherwise readily available for use with a purpose to employ it as a weapon against a person. Knife is defined as any bladed hand instrument that is capable of inflicting serious physical injury or death by cutting or stabbing. § 5-73-120(b)(2). Nesdahl’s sole argument is the state’s evidence was insufficient to sustain his conviction. Part of his argument is that the trial judge improperly relied on Ark. Code Ann. § 5-73-121(b), a law enacted prior to § 5-73-120(a), which provides if a person carries a knife with a blade three and one-half inches long or longer, this fact shall be prima facie proof that the knife is carried as a weapon. In sum, Nesdahl contends he was not charged under § 5-73-121 (b), and the trial judge should not have considered it as a “clarifying statute” when convicting Nesdahl under § 5-73-120.

Aside from Nesdahl’s § 5-73-121 argument, we hold that the record contains ample evidence to sustain his conviction under § 5-73-120. On September 26, 1993, at about 1:00 a.m., Officer Robert Rogers saw a vehicle cross the center line, and stopped it, suspecting a DWI violation. During his investigation, Rogers noticed Nesdahl, a passenger in the vehicle, wearing a Jacksonville Police Department shirt, marked with “trustee” on the back. Rogers asked Nesdahl how he had acquired it, and Nesdahl said he got the shirt at the Jacksonville jail. Rogers pat-searched Nesdahl, and found a double-edged knife inside a sheath concealed under his shirt and positioned in the small part of his back. The knife blade was almost five inches long, and Rogers identified the knife as having gang symbols on it and appearing to be a gang-type weapon. Rogers testified that Nesdahl offered no explanation for having the knife.

In his defense, Nesdahl testified the knife was for hunting, but he admitted he had not been hunting prior to his arrest. Nesdahl further averred that the knife was not on his person when he was arrested, but instead was found in the car afterward.

Here, a conflict of testimony existed which was the trial judge’s job to resolve. Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994). And in making that determination, the trial judge is not required to believe any witness’s testimony, especially the testimony of the accused, since he has the most interest in the outcome of the proceedings. Id. Furthermore, the.court on appeal reviews the record in a light most favorable to the state and sustains the conviction if there is any substantial evidence to support it. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993). The court has held that circumstantial evidence may constitute substantial evidence. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). For circumstantial evidence to be sufficient to support a finding of guilt in a criminal case, it must exclude every other reasonable hypothesis consistent with innocence, and whether the evidence excludes every other reasonable hypothesis is for the finder of fact to determine. Id. The factfinder is permitted to draw any reasonable inference from circumstantial evidence to the same extent it can from direct evidence. See Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982).

In viewing the evidence in the state’s favor, the record reflects that, at the time of his arrest, Nesdahl possessed a knife bearing a double-edged, nearly five-inch blade which was concealed under his shirt and in the small part of his back. The knife was described as a gang-type weapon. It was 1:00 a.m. and, when searched, Nesdahl offered no explanation for having the knife concealed on his person. Even when testifying at trial that the knife was for hunting, Nesdahl conceded that he had not been hunting prior to his arrest. Based upon this evidence, we cannot say the trial court could not reasonably infer, and therefore conclude, that Nesdahl possessed the knife concealed on his person readily available for use with a purpose to employ it against someone as a weapon. For the foregoing reasons, we affirm.

       At trial, Nesdahl objected, on relevancy grounds, to the gang-symbol testimony, but does not raise its admissibility as an issue in this appeal. Instead, Nesdahl argues only that no evidence was presented to show his affiliation with a gang or that the knife was more likely to be used as a weapon because it carried the markings.


author: Robert L. Brown, Justice.

text:
    Dixie OGLESBY v. BAPTIST MEDICAL SYSTEM, Ruth Ann Dollar and St. Paul Fire and Marine Insurance Company
    94-547
    891 S.W.2d 48
    Supreme Court of Arkansas
    Opinion delivered January 17, 1995

      Crockett, Brown & Worsham, P.A., by: Richard E. Worsham
      and Cheryl Fisher Anderson, for appellant.

      Friday, Eldredge <& Clark, by: Gregory D. Taylor, for appellees.
   Robert L. Brown, Justice.

The appellant, Dixie Oglesby, appeals from a summary judgment in favor of appellees Baptist Medical System, Ruth Ann Dollar, and St. Paul Fire and Marine Insurance Company. She contends that summary judgment was inappropriately entered because genuine issues of fact remain to be decided. She asserts further that the trial court erred in dismissing her case without disposing of her battery claim. We affirm the trial court’s order.

On May 1, 1992, Dixie Oglesby was admitted to Baptist Medical Center in Little Rock for cardiac monitoring. According to Oglesby’s Second Amended and Substituted Complaint and her affidavit, a nurse at the hospital entered her room on May 4, 1992, and advised her that she was about to administer an injection. Oglesby countered that “she was allergic to everything,” whereupon the nurse responded that she was going to give her a shot of insulin. Oglesby states that she told the nurse that she was not diabetic and directed her not to administer the shot. The nurse then “forcibly” held her down “against her will,” according to Oglesby, and injected her with the insulin. Oglesby adds that she did not receive any medical preparation for the shot.

Following the injection, Oglesby states that she called the nurse on duty by intercom and told her what had happened. The duty nurse contacted one of Oglesby’s physicians, Dr. Duane Velez, who prescribed counteractive measures, which included orange juice and sugar. Oglesby alleges that Dr. Velez told her that the insulin injection “almost got you” and stated that she would have died within 15 minutes without counteractive treatment. She says that fatigue, dizziness, headaches, and a temporary loss of eyesight followed the incident. She contends that most of those symptoms persist and states that she is afraid of hospitals and inoculations as a result of the experience.

On October 7, 1993, Oglesby filed a Second Amended and Substituted Complaint against the appellees for negligence, battery, and the intentional infliction of emotional distress, also known as the tort of outrage. She sought compensatory and punitive damages. With regard to battery, the complaint described the forcible holding against her will and made this claim: “The conduct of Baptist and Ruth Ann Dollar was an unwanted touching of the person of Dixie Oglesby.” The appellants then filed three motions for partial summary judgment: the first motion related to the lack of a basis for punitive damages; the second motion asserted that no genuine issue of material fact existed on the negligence claim and attached the affidavit of Dr. Lawson Glover in support of the motions; and the third motion dealt with lack of sufficient allegations for tort of outrage. That the shot was given in error was admitted by the appellees. None of the motions expressly referred to Oglesby’s battery claim.

The affidavit of Dr. Lawson Glover attached to the second motion for partial summary judgment contained this statement:

I am personally aware of the effect insulin has on the human body. Based upon this and upon my education, training and experience as a physician specializing in the practice of internal medicine and endocrinology, I find no evidence that the immediate symptoms alleged by the plaintiff, persisting symptoms at the present time and any resulting damages were caused by the injection of insulin into her body. The effects of a subcutaneous insulin injection are not immediately noted nor do they persist for more than 12 to 24 hours. In other words, I find no evidence that the insulin injection caused any of the plaintiff’s alleged injuries.

He further averred that Oglesby’s medical records did not show that her condition worsened because of the injection of 20 units of insulin or that she was in a life-threatening situation. No reference was made to the forcible holding or to Oglesby’s direction that the shot not be given.

On January 28, 1994, the trial court entered its order granting summary judgment due to absence of proximate causation. The court relied heavily on Dr. Glover’s affidavit and noted that no countervailing affidavit by an expert was offered by Oglesby to show a genuine issue of material fact. The court cited Dillard v. Resolution Trust Corp., 308 Ark. 357, 824 S.W.2d 387 (1992), for the proposition that Oglesby was required to meet proof with proof. The court then dismissed the case.

I. GLOVER AFFIDAVIT

For her first point, Oglesby attacks Dr. Lawson Glover’s affidavit on several grounds: (1) the amount of insulin administered to Oglesby is in dispute; (2) Dr. Glover relied on Baptist’s answers to interrogatories in formulating his affidavit which included inadmissible hearsay; and (3) Dr. Glover’s affidavit is conclusory.

We have often summarized our standards for summary judgment review:

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. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991) . The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). 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. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992) ; Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). 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. Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Forrest City Machine Works v. Mosbacher, 312 Ark. 578, 583, 851 S.W.2d 443, 446 (1993); see also Birchfield v. Nationwide Insur., 317 Ark. 38, 875 S.W.2d 502 (1994); Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994); Bellanca v. Arkansas Power & Light Co., 316 Ark. 80, 870 S.W.2d 735 (1994); Daniels v. Colonial Insur. Co., 314 Ark. 49, 857 S.W.2d 162 (1993); Mt. Olive Water Assoc. v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993).

Applying these standards to Oglesby’s points relating to the Glover Affidavit, we first examine whether Dr. Glover’s reference to 20 units of insulin as the dosage constituted impermissible reliance on a fact that is in dispute. We think not. The fact that 20 units of insulin were contained in the shot is garnered from Baptist’s answers to interrogatories propounded by Oglesby. We observe that Oglesby offered nothing by way of proof to place the dosage of 20 units at issue. When summary judgment motions are at issue, the court must view the evidence in the light most favorable to the party opposing the motion, but there is nothing before us to suggest that 20 units of insulin is an erroneous fact or even that Oglesby had a theory or proof that a different dosage was administered. Furthermore, Dr. Glover’s affidavit turned on the cause and effect of any amount of insulin and whether insulin in general would have produced Oglesby’s symptoms. His opinion was not wedded to a fixed amount of insulin such as 20 units. We discern no factual issue arising from the Glover Affidavit on this point.

Oglesby’s two remaining arguments pertaining to the Glover Affidavit — that he relied on inadmissible hearsay and that his affidavit was conclusory — were not raised to the trial court. We have long held that we will not consider matters which the party has failed to raise before the trial court. Stricklin v. State, 318 Ark. 36, 883 S.W.2d 465 (1994); Bryant v. Public Service Commission, 46 Ark. App. 88, 877 S.W.2d 594 (1994); Brown v. Seeco, Inc., 316 Ark. 336, 871 S.W.2d 580 (1994); Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994). Accordingly, we will not weigh either argument as a basis for reversal. We hold that there is no basis for a reversal of the trial court’s order of summary judgment based on the alleged deficiencies in Dr. Glover’s affidavit.

II. EMOTIONAL DISTRESS

For her next point, Oglesby urges that a genuine issue of material fact exists over whether the appellees caused her pain and suffering, mental anguish, and emotional distress by their negligence. She contends that Dr. Glover’s expertise did not extend to aspects of emotional distress and that, as a consequence, his affidavit was ineffective to disprove that appellees’ negligence caused her emotional distress. Again, this precise argument was not made to the trial court, and we will not weigh its merits for the first time on appeal. Stricklin v. State, supra. The same holds true of her argument that Dr. Velez’s statement of her possible death caused her to suffer emotionally. She simply did not raise this argument before the trial court.

What she did raise in her complaint is that the shot of insulin itself caused her emotional turmoil and mental distress. She contends on appeal that this presented a legitimate issue of material fact. We do not agree, again for the reason that Dr. Glover in his affidavit concludes that there was no causal connection between the insulin shot and Oglesby’s symptoms:

Based on the medical records of Dixie Oglesby and the other exhibits mentioned in paragraph 2 above, I find no evidence that the insulin injection caused any damages as alleged in paragraphs 15 [pain and suffering] and 16 [emotional distress] of her complaint. The allegations of proximate cause are not supported by the true facts of this case as reflected in Ms. Oglesby’s medical records. Based on the medical records of Dixie Oglesby, I find no evidence that she was in any danger of death. The medical records of Ms. Oglesby show that her condition did not worsen due to the fact she was given an insulin injection. The allegations of a life threatening situation are not supported by the true facts of this case as reflected in Ms. Oglesby’s medical records.

Oglesby failed to contest this expert opinion by a countervailing affidavit from an expert and, thus, was remiss in failing to meet proof with proof. We affirm the trial court on this point.

III. BATTERY CLAIM

Oglesby next contends that the trial court erred in dismissing her battery claim sua sponte for an “unwanted touching” of her person. She emphasizes that none of the appellees’ three motions for partial summary judgment embraced the battery claim and that the trial court’s order which dismissed the entire case amounted to a denial of her right to be heard on this count and to have the matter decided. She concludes that a remand for disposition of the battery issue is appropriate.

The appellees counter that the Medical Malpractice Act, codified at Ark. Code Ann. § 16-114-201, etseq. (1987), subsumes intentional torts such as the battery that allegedly occurred in this case. The appellees argue that they presented proof that Oglesby’s damages were not caused by the insulin shot and that the trial court possessed the “inherent authority” to dismiss all claims whether couched in terms of negligence or battery.

The issue for us to consider is whether we can infer determination of the battery claim from the trial court’s dismissal of the entire case. We readily admit at the outset that inferring an intent to dispose of the battery claim based on the trial court’s dismissal of the whole case is troublesome to us. In this regard, we have held that a trial court must exercise some discretion in deciding an issue in a case. Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980). Here, there is no indication that the trial court independently considered the battery claim and, thus, it appears that the court failed to exercise its discretion.

The issue then becomes whether it was incumbent upon Oglesby to raise this issue to the trial court before bringing it to the appellate level for resolution. We are, of course, mindful of Ark. R. Civ. R 59(f), which states:

A motion for a new trial shall not be necessary to preserve for appeal an error which could be the basis for granting a new trial.

The obvious policy behind this rule was to remove the necessity of a new trial motion as a prerequisite for all appeals.

The situation before us in this case, however, is different. Here, the issue as framed by Oglesby is that the trial court failed to hear and determine the battery issue, and she now asks for a remand so that that court can resolve the matter. We are of the opinion that this issue should have first been brought to the attention of the trial court before our review, especially when the relief requested by Oglesby on appeal is a remand for resolution of the battery issue. Common sense but also judicial economy dictate such a result in light of the fact that this issue could have been readily resolved by timely motion to the trial court.

Because no effort was made by Oglesby to move to obtain a ruling from the trial court based on its seeming failure to hear and determine the battery claim, we consider the issue waived. Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994). Accordingly, we affirm the trial court’s dismissal of the matter.

Affirmed.


text:
    ARKANSAS DEPARTMENT OF HEALTH, Dr. Sandra Nichols, Director, Henry C. Robinson, Jr., Director and State Registrar of Vital Records v. WESTARK CHRISTIAN ACTION COUNCIL, a Nonprofit Corporation William Harrison, M.D., Planned Parenthood of Eastern Oklahoma and Western, Arkansas, Inc., Planned Parenthood of Greater Arkansas, Inc., Curtis Stover, M.D. and Little Rock Planning Services, P.A., Proposed Intervenors
    94-1264
    890 S.W.2d 582
    Supreme Court of Arkansas
    Opinion delivered January 17, 1995

      George Allen Harper, for appellants.

      R. Gunner Delay, for appellee.

      Bettina E. Brownstein, for proposed intervenors.
   Per Curiam.

Appellants Arkansas Department of Health, Dr. Sandra Nichols, and Henry C. Robinson, Jr. are appealing an order granting an FOIA request to appellee Westark Christian Action Council for the release of statistical reports relating to termination of pregnancies, which reports are made pursuant to Ark. Code Ann. § 20-18-603 (Repl. 1994). Proposed intervenors William Harrison, M.D., Planned Parenthood of Eastern Oklahoma and Western Arkansas, Inc., Planned Parenthood of Greater Arkansas, Inc., Curtis Stover, M.D., and Little Rock Planning Services, P.A. have moved to intervene in this appeal pursuant to Ark. R. Civ. P. 24 and assert that they have an interest in the subject matter of the appeal and that their interest in protecting the identity of physicians and patients, especially in rural communities, is not adequately protected by the appellants. Alternatively, proposed intervenors contend that they have defenses involving questions of law and fact in common with the main action. The motion to intervene was not made in the trial court but was filed in this court on November 21, 1994, which was four days after the record was lodged in this appeal.

Appellee Westark Christian Action Council responds that the proposed intervenors have failed to demonstrate that they are entitled to intervene either as a matter of right or by permission under Ark. R. Civ. P. 24 and that in any case they are procedurally barred due to untimeliness because they failed to seek intervention before the trial court.

Though the primary concern of the proposed intervenors which relates to the identity of physicians and patients does indeed appear to also be an issue of concern to the appellants based on the minutes of the Board of the Arkansas Department of Health dated August 25, 1994, we first must address the timeliness of the motion under Ark. R. Civ. P. 24. When there are “unusual and compelling” circumstances, we will permit intervention even after a final judgment has been entered. See, e.g., UHS of Arkansas, Inc. v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988). In the UHS case, however, the motion to intervene was made initially to the trial court and denied.

More recently, we determined to treat a third party’s application filed post-judgment to unseal a sealed settlement agreement as a motion to intervene and further observed that the timeliness of intervention rested within the discretion of the trial court. Arkansas Best Corp. v. General Electric Capital Corp., 317 Ark. 238, 878 S.W.2d 708 (1994). But, again, in that case the application by the third party, which we considered as a motion to intervene, was first filed in the trial court. Even more recently, we declined to address claims made by the Pulaski County Sheriff relating to cost reimbursement because he had no standing to raise the issue and had never moved to intervene. Gravett v. McGowan, 318 Ark. 546, 886 S.W.2d 606 (1994); see also Haberman v. Lisle, 318 Ark. 177, 884 S.W.2d 262 (1994) (unnamed class member could not appeal because of lack of standing and failure to intervene individually at the trial court level). In Gravett, we specifically referred to the sheriff’s failure to intervene “as a party to this probate proceeding.” 318 Ark. at 549, 886 S.W.2d at 605.

Because there was no motion to intervene filed in the trial court before that court lost jurisdiction of the case, we deny proposed intervenors’ motion for lack of timeliness. Though, admittedly, this matter has been on something of a fast track with the complaint being filed on July 28, 1994, and a decision rendered on August 18,1994, there was still ample time for the proposed intervenors to raise their motion to the trial court before the record was filed in this court on November 17, 1994. Furthermore, there are no compelling or unusual circumstances presented to us which would mandate our consideration of a motion to intervene at this stage of the proceedings. We have previously granted interventions in appeals at the behest of the State Attorney General for public policy reasons but only in that limited instance. See, e.g., Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992); Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990); Olmstead v. Logan, 298 Ark. 421, 768 S.W.2d 26 (1989).

We grant proposed intervenors’ leave to file briefs as amici curiae, with the briefs to be due 20 days from date of this opinion.

Holt, C.J., and Newbern, J., not participating.


text:
    Douglas James CLAYTON v. STATE of Arkansas
    CR 94-1446
    890 S.W.2d 602
    Supreme Court of Arkansas
    Opinion delivered January 17, 1995

      Ralph M. Cloar, for appellant.
    No response.
   Per Curiam.

The appellant, Douglas James Clayton,

has filed a motion for rule on the clerk. His attorney, Ralph M. Cloar, Jr., admits that the record was tendered late due to a mistake on his part. We find that such admission of fault by an attorney in a criminal case is good cause to grant the motion. See Tarry v. State, 288 Ark. 172, 702 S.W.2d 904 (1986).

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


text:
    Eric Randall NANCE v. STATE of Arkansas
    CR 94-413
    891 S.W.2d 28
    Supreme Court of Arkansas
    Opinion delivered January 17, 1995

      Larry W. Horton, for appellant.
    No response.
   Per Curiam.

In accordance with our per curiam in this case delivered on November 21, 1994, Nance’s attorneys filed a motion accepting full responsibility for not timely filing a notice of appeal. However, counsel also respectfully pointed out that an amended judgment had been filed on April 11, 1994, even though no written order was ever entered denying his motion for new trial pertaining to the original conviction judgment of March 31, 1994. Counsel further noted that, on April 18, 1994, they filed a notice of appeal from the April 11, 1994 amended judgment. They suggest that notice was a timely appeal of the amended judgment irrespective of having filed an earlier new trial motion concerning Nance’s March 31 conviction judgment. We agree, and in doing so, grant Nance’s motion.