author: Robert H. Dudley, Justice.

text:
    ARKANSAS GLASS CONTAINER CORPORATION v. James C. PLEDGER, Director of the Arkansas Department of Finance and Administration; Timothy J. Leathers, Commissioner of Revenues; State of Arkansas
    94-1139
    894 S.W.2d 599
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      Bradley & Coleman, by: Jon R. Coleman and Robert J. Gibson, for appellant.

      Brandon L. Clark, Revenue Legal Counsel, for appellees.
   Robert H. Dudley, Justice.

Arkansas Glass Container Corporation, appellant, manufactures clear flint soda lime glass and molds it into thirty-two ounce jars. The Director of the Department of Finance and Administration and the Commissioner of Revenues, appellees, conducted an audit of appellant and assessed additional gross receipts tax, or sales tax, in the amount of $126,637.84, a penalty of $17.92, and interest of $40,507.06 for the period of December 1, 1986, through February 28, 1990. Arkansas Glass objected to the assessment and requested a hearing pursuant to the Arkansas Tax Procedures Act. An administrative law judge affirmed the assessment. Arkansas Glass petitioned the Commissioner to revise the decision of the administrative law judge, but the decision was affirmed. A final assessment was issued, and Arkansas Glass paid $167,162.82 under protest. See Ark. Code Ann. § 26-18-406 (Repl. 1992).

In December 1992, Arkansas Glass filed suit in chancery court in which it alleged that the natural gas it used in the manufacture of glass was exempt from taxation. It sought a refund of the amount paid under protest, plus an additional $159,292.63, which was the amount of sales tax it had paid on natural gas after the audit. The complaint contained other allegations not material to this appeal.

The chancellor ruled that the natural gas used in the manufacture of glass was not exempt from the sales tax. Arkansas Glass appeals. The ruling of the chancellor was correct, and we affirm.

Arkansas Glass seeks an exemption from the sales tax. A taxpayer must establish an entitlement to an exemption from taxation beyond a reasonable doubt. Pledger v. C.B. Form Co., 316 Ark. 22, 25, 871 S.W.2d 333, 334 (1994). Any doubt as to the exemption suggests that it should be denied. Ragland v. General Tire & Rubber Co., 297 Ark. 394, 396, 763 S.W.2d 70, 71 (1989).

Arkansas Glass claims it is entitled to a “sale for resale” exemption under Ark. Code Ann. § 26-52-401(12)(B) (Repl. 1992 & Supp. 1993). Section 26-52-401 provides exemptions from the gross receipts tax, which is imposed by section 26-52-301. At the material time the statute specifically included a tax on the gross receipts derived from sales of natural gas. Ark. Code Ann. § 26-52-301(2) (Repl. 1992 & Supp. 1993). (After this case was filed, the General Assembly passed Act 1140 of 1993, which grants an exemption from the sales and use tax for natural gas used to manufacture glass, but that Act does not affect this case.)

Sale for resale exemptions are enacted by the General Assembly so that the same property will not be twice subject to the same tax. Hervey v. International Paper Co., 252 Ark. 913, 483 S.W.2d 199 (1972). However, there is a reciprocal legislative intent that all property be subjected to the tax at some point in its manufacture and sale to the consumer. Hervey v. Southern Wooden Box, Inc., 253 Ark. 290, 486 S.W.2d 65 (1972).

The test for the sale for resale exemption is whether the property becomes a “recognizable integral part” of the manufactured product. Ark. Code Ann. § 26-52-401 (12)(B) (Supp. 1993); Southern Wooden Box, Inc., 253 Ark. at 291, 486 S.W.2d at 67. We have defined “integral” as necessary to the completeness of the final manufactured product. International Paper Co., 252 Ark. at 916, 483 S.W.2d at 201.

The manufacture of one “batch” of glass consists of placing sand, limestone, feldspar, soda ash, salt cake, carbocite, and selenium into a furnace, which is then heated by natural gas for twenty-four hours. At the end of that time 200 tons of molten glass comes out of the forehearth, or far end of the furnace. The glass drops into a mold cavity, which is either pressed or blown into the final shape of the container. The annealing process then occurs. During the manufacturing process the furnace is, at times, heated to 2750 degrees Fahrenheit. In the process appellant uses approximately 1,800,000 cubic feet of natural gas per day, and approximately seventy percent of that amount comes into contact with the molten glass.

Sulphur is found in natural gas. A witness testified it is added to natural gas so that a gas leak might be smelled. S03, a sulphur compound, is found naturally in salt cake, which is one of the components placed in the furnace. The chancellor made a finding of fact that die manufactured glass product contains .0013 to .003 integral parts S03. It is undisputed that S03 adds to the integrity and life of the finished glass product. Proof did not establish whether the trace amounts of S03 in the finished product came from the natural gas or the salt cake.

Section 26-52-401(12)(B) of the Arkansas Code Annotated (Supp. 1993) provides in pertinent part:

[Property sold for use in manufacturing . . . can be classified as having been sold for the purposes of resale or the subject matter of resale only in the event the . . . property becomes a recognizable integral part of the manufactured .. . products.

Id. (emphasis added).

Arkansas Glass sought exemption for all of the natural gas used in the process of making glass. The facts showed that most of the natural gas used in the process was used for heating the furnace. The bulk of the natural gas used for heating did not become a recognizable and integral part of the product, and, since Arkansas Glass did not attempt to measure that part of the gas that became part of the product, its claim for exemption must fail under the language of the sale for resale provision quoted above.

In addition, we have said that trace amounts of a compound or ingredient found in the finished product do not establish that the compound or ingredient was purchased for resale. In Hervey v. International Paper Co., 252 Ark. 913, 483 S.W.2d 199 (1972), a case in point, we wrote:

With respect to sulphur the appellees did introduce relevant testimony, but it actually refutes their contention. Various chemical compounds containing sulphur are used in the cooking liquor. The appellees’ witness . . . testified that about 75% of the sulphur is recovered for reuse from the black liquor. Yet only minute traces of sulphur are to be found in Kraft paper. It necessarily follows that about 25% of the total sulphur in each batch of white liquor is' consumed in the manufacturing process, presumably being discharged into the atmosphere or lost in some other way. Thus it is certain that the sulphur is not resold. To the contrary, it is consumed in the process of manufacturing Kraft paper.

Id. at 915, 483 S.W.2d at 201 (emphasis added).

The same is true in this case. The natural gas is not resold. To the contrary, it is consumed in the process of manufacturing glass.

The claim for exemption must fail for yet another reason. Appellant did not prove whether the compound contained in the glass product was contributed by the natural gas or by the salt cake, and the taxpayer must establish an exemption from taxation beyond a reasonable doubt. C.B. Form Co., 316 Ark. at 25, 871 S.W.2d at 334.

Since we affirm the chancellor’s ruling that Arkansas Glass is not entitled to an exemption from taxation on the natural gas, any argument about a refund based on an exemption from taxation on natural gas purchased during the post-audit period of March 1990 through July 1993, becomes moot. We need not address the moot issue. Wright v. Keffer, 319 Ark. 201, 890 S.W.2d 271 (1995).

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    FORD MOTOR COMPANY v. Donald NUCKOLLS and Betty Nuckolls
    94-370
    894 S.W.2d 897
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      Davis, Cox & Wright, by: Paul H. Taylor, and McGuire, Woods, Battle & Boothe, by: Grace R. den Hartog and William H. King, Jr., for appellant.

      Daily, West Core, Coffman & Canfield, by: Stanley A. Lea-sure, for appellees.
   Robert H. Dudley, Justice.

After hearing almost three weeks of testimony, the jury returned a verdict in favor of defendant Ford Motor Company in this products liability case. The defendant’s verdict was rendered at the close of the first part of a bifurcated trial, but it ended the trial because there was no need for the jury to hear the second part of the case, which was Ford Motor Company’s cross-claim against other defendants for reimbursement under the Joint Tortfeasors Act. After the judgment was entered, the plaintiffs moved for a new trial. The trial judge granted a new trial on the ground that he made errors of law during the trial. We reverse and order the verdict reinstated because the trial judge did not make errors of law that materially affected plaintiffs’ rights.

Plaintiff Donald Nuckolls, a roofer, was injured in a single-vehicle accident that occurred in 1990 on Highway 10 near Greenwood. He was driving a 1976 F-600 Ford truck, a fourteen-year-old truck, with a vertical lift bed, or scissors-up lift bed, mounted on the chassis. The lift bed was used both to reach roofs and to carry loads like an ordinary dump truck. The accident occurred when he was driving the truck at a speed of forty to forty-five miles per hour and the lift unexpectedly extended to its full height of about fourteen feet. The lift bed was loaded with almost six tons of roofing scrap. The truck became unstable with the large amount of weight lifted so high, and it began to skid. The truck turned over, and, as it came to rest, gasoline ignited. The gasoline came from the gasoline filler pipe that extended out of the side of the truck. Plaintiff escaped through the passenger door, but sustained burn injuries that required extended hospitalization and kept him from working for approximately nine months.

Plaintiffs, Donald Nuckolls and his wife Betty Nuckolls, sued Ford Motor Company, appellant, as the manufacturer of the truck, and also sued the following other defendants: Marion Metal Products Co. (Original Marion) as the manufacturer of the lift; Randall Ford, Inc. as the company that assembled and installed the lift; Truckstell Manufacturing Company, Inc. and A.B. Seimer, Inc. (Successor Marion) as purchasers of and successors to the Original Marion Company; Hansen-Dayton Corp. as a continuation of Original Marion; Sycon Corporation which merged with Successor Marion; and Marion Manufacturing Company which acquired some of the divisions of Sycon. Plaintiffs alleged that both the Ford truck and the vertical lift bed were defective products.

Plaintiffs pleaded that Ford was liable because of (1) negligent design of the fuel system and fuel tank; (2) failure to warn of an inherently dangerous condition in the fuel tank extension; (3) failure to install safety devices for the foreseeable danger to parties such as plaintiff; (4) failure to properly test for safety; and (5) failure to conduct adequate quality control. Plaintiffs did not sue plaintiff Donald Nuckolls’s employer, the Dale Cramp-ton Roofing Company.

Ford filed cross-complaints against the other defendants and alleged that the accident was caused by the unexpected activation of the lift bed and not from any defect in the Ford truck chassis. Ford asked that if it were found jointly and severally liable with any of the other defendants that the respective pro rata share of responsibility be submitted to the jury as under the Joint Tortfeasors Act.

Shortly before the trial began, plaintiffs settled with all of the defendants except Ford. This left the other defendants in the case as cross-defendants to Ford’s claim for reimbursement from joint tortfeasors. The trial court ruled that the trial would be bifurcated. As a result, the other defendants did not actively proceed in the first part of the trial, the part that determined whether Ford was liable for plaintiffs’ damages. Since the verdict from the first part of the trial was in favor of Ford, it was not necessary to hold the second part of the trial, the part that would have decided whether Ford was entitled to reimbursement from joint tortfeasors.

Plaintiffs filed a pretrial motion in which they sought to prevent Ford from introducing testimony that plaintiff Donald Nuckolls’s employer, the Dale Crampton Roofing Company, had installed a locking device on another of its trucks with a similar bed lift soon after the accident. The trial court ruled that the evidence was admissible because it was a subsequent remedial measure by a third party rather than a defendant. At the conclusion of the presentation of evidence, the trial court, over plaintiffs’ objection, instructed the jury to consider the fault of the codefendants when reaching the verdict.

Plaintiffs filed a motion for new trial, asserting that the court had erred in its interpretation of A.R.E. Rule 407, the rule involving subsequent remedial measures. They also argued that the court should not have given instructions about the other defendants, because there was insufficient evidence of their fault. Finally, plaintiffs argued that the court should not have given a comparative fault instruction to the jury, as there was insufficient evidence of the fault of the other defendants.

The trial judge determined that he had made a mistake in ruling that the subsequent remedial measure evidence by a third party was admissible, and, even if his earlier ruling was not erroneous, the evidence was irrelevant and unfairly prejudicial. He also determined that he had made a mistake in instructing the jury about comparative fault because there had not been sufficient evidence of the fault of the other defendants. As a result, the trial judge set aside the verdict and ordered a new trial. The order specified that it was based on ARCP Rule 59(a)(8) because of errors of law. Ford Motor Company appeals.

I.

Standard of Review

The trial court based its decision to grant a new trial on errors of law, not on the fact that the verdict was clearly contrary to the preponderance of the evidence, or on one of the other grounds specified by Rule 59. Under A.R.C.P. Rule 59(a)(8), a new trial may be granted where there is error of law which was objected to by the party making the application, and the error materially affected the substantial rights of the party. Id.; see also Nazarenko v. CTI Trucking Co., 313 Ark. 570, 856 S.W.2d 869 (1993). In Security Insurance Co. v. Owen, 255 Ark. 526, 501 S.W.2d 229 (1973), we wrote that, while a trial judge’s discretion is much broader where the question is whether a jury verdict is supported by a preponderance of the evidence, still, his discretion in granting or denying a new trial based on errors of law should not be disturbed absent manifest abuse. Id. at 529, 501 S.W.2d at 231. Manifest abuse of discretion can be “discretion improvidently exercised.” Id. at 530, 501 S.W.2d at 232. The showing that discretion was abused should be stronger when a new trial has been granted than when it has been denied. Id. at 529, 501 S.W.2d at 231. This court views a party who was the beneficiary of a verdict set aside by the granting of a new trial as having much less basis for a claim of prejudice than an unsuccessful movant for a new trial. Id. However, a clearly erroneous interpretation or a clearly erroneous application of a law or rule can constitute a manifest abuse of discretion. See Crowder v. Flippo, 263 Ark. 433, 565 S.W.2d 138 (1978).

II.

Evidentiary Ruling

The evidentiary ruling came about as follows. After the accident, plaintiff Donald Nuckolls’s employer installed a locking device on the lifting gears of a similar bed on another of its F-600 Ford trucks. Plaintiffs did not sue the employer, and Ford did not file a cross-complaint against the employer. Plaintiffs filed a pretrial motion objecting to the admission of the remedial evidence under A.R.E. Rule 407. Ford responded that, since the employer was a third party and had not been sued, the evidence was not subject to the restrictions of Rule 407. The trial court admitted the evidence.

Plaintiffs’ pretrial motion was based on the grounds of a subsequent remedial measure and relevance. Plaintiffs’ motion for a new trial contended that the introduction of the locking device was a subsequent remedial measure prohibited by Rule 407, and because the evidence was “central to Ford’s defense strategy,” it was substantial and prejudicial. In granting the motion for new trial, the court stated that the evidence fell within the purview of Rule 407, and, even if it did not, it was not relevant and that its prejudicial impact outweighed its probative value. This was the first mention of a weighing of prejudice against probative value.

Ford’s first point of appeal is that the trial judge erred in granting a new trial on the ground that he had erred as a matter of law in admitting evidence of the subsequent remedial measure. The point'is well taken.

Rule 407

Rule 407 of the Arkansas Rules of Evidence provides:

Subsequent remedial measures. — Whenever, after an event, measures are taken which, if taken previously, would make the accident less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of the evidence of subsequent measures if ojfered for another purpose, such as proving ownership, control, or feasibility or precautionary measures, if controverted, or impeachment.

Id. (emphasis added).

In Carton v. Missouri Pacific Railroad, 315 Ark. 5, 865 S.W.2d 635 (1993), we distinguished between the admission of remedial measures taken by a third party and those taken by a defendant. Id. at 16, 865 S.W.2d at 640-41. The former is potentially admissible, see Riggan v. Langley, 238 Ark. 649, 383 S.W.2d 661 (1964), while the latter is excludable. See generally Jack B. Weinstein and Margaret A. Berger, Weinstein’s Evidence ¶ 407 (1993).

It is undisputed that the measure was taken by plaintiff Donald Nuckolls’s employer, who was not a party to the suit. It is generally recognized that “[b]ecause the controlling ground for excluding evidence has been the promotion of a policy of encouraging people to take safety precautions [citation omitted], remedial measures carried out by a person not a party to the suit are not covered [by Rule 407].” Weinstein, supra at 407-09; see also Pau v. Yosemite Park, 928 F.2d 880, 888 (9th Cir. 1991); O’Dell v. Hercules, Inc., 904 F.2d 1194, 1204 (8th Cir. 1990); Dixon v. International Harvester, 754 F.2d 573, 583 (5th Cir. 1985).

In Pau v. Yosemite Park, a federal district court ruled inadmissible the fact that a sign had been erected warning bicyclists to stop at the site where a cyclist had been killed. Id. at 887. The Ninth Circuit Court of Appeals held the ruling was an abuse of discretion, because the sign had been erected by a nondefendant, rather than the party being sued. Id. at 888. The court reasoned that, “A nondefendant will not be inhibited from taking remedial measures if such actions are allowed into evidence against a defendant.” Id.; see also Causey v. Zinke, 871 F.2d 812, 816-17 (9th Cir. 1989).

Rule 403

Plaintiffs’ pretrial motion was based on A.R.E. Rule 407, the subsequent remedial measure rule, and Rules 401 and 402, the relevancy rules. The plaintiffs did not ask the trial court to conduct a Rule 403 weighing of probative value against unfair prejudice.

The trial court erred in granting a new trial based on a Rule 403 weighing of probative value versus prejudice because that objection was not raised either before or during the trial. Rule 59(a)(8) of the Arkansas Rules of Civil Procedure provides that a new trial may be granted for an “error of law occurring at the trial and objected to by the party making the application” for the new trial. A.R.C.P. Rule 59(a)(8) (emphasis added); see also Crowder, 263 Ark. at 434, 565 S.W.2d at 139; Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). Plaintiffs ask that we not follow the language of Rule 59(a)(8) in this case, because it is recognized that when evidence of a subsequent remedial measure is not barred by Rule 407, its probative value should outweigh any dangers associated by its admission. See Carton, 315 Ark. at 16, 865 S.W.2d at 641; Anderson v. Malloy, 700 F.2d 1208, 1213 (8th Cir. 1983). Plaintiffs correctly state the general evidentiary rule, and if they had objected on the basis of a Rule 403 weighing of probative value against prejudice either before or at trial, the trial court could have considered the matter in deciding whether to grant a new trial. However, plaintiffs did not make the objection, and Rule 59(a)(8) is clear. Thus, the trial court erred in holding that it could, for the first time in the motion for a new trial, weigh probative value against prejudice.

Rules 401 and 402

We now turn to the relevancy issue which was raised by plaintiffs, both before and at trial.

Rule 401 of the Arkansas Rules of Evidence provides that “‘[rjelevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402 provides that “[a] 11 relevant evidence is admissible, except as otherwise provided.” There are no other provisions applicable to this case.

To be relevant, it is not required that evidence prove the entire case or even all of a single issue. It requires only proof that has “any tendency” to make any fact that is of consequence to the determination of the action more or less probable. Rich Mountain Elec. Coop. v. Revels, 311 Ark. 1, 841 S.W.2d 151 (1992). When the argument is focused solely on relevance, with no consideration of prejudice because of the lack of a weighing objection, there is no support for the ruling that the subsequent remedial measure was not relevant.

Ford’s primary defense was that the accident was caused, not by a defective truck chassis, but by the unexpected activation of the lift bed that held almost six tons of roofing scrap high above the truck. The lift bed was manufactured and installed by other defendants. Ford cross-examined plaintiff about how the lift activated, and how the accident occurred. It introduced testimony about the availability of safety devices that could have prevented the inadvertent lifting of the bed while the truck was in motion, and it introduced testimony that these devices were available at the time the lift was installed on the truck. It then proved that plaintiff’s employer had installed one of these safety devices after the accident. This proof, taken together, had the tendency to show that the accident was caused by the failure of others to install a safety device, that such devices were available at the time the bed was installed on the truck, that it was feasible to install them at the time the accident occurred, and that a defective truck chassis was not the cause of the accident.

In sum, the trial court did not err at trial in admitting evidence of the subsequent installation of a safety device by a third party. It erred only in ruling that the admission of the evidence was a ground for a new trial.

III.

Instructions

The trial judge, in granting a new trial, concluded that he erred in giving instructions to compare the fault of plaintiff Donald Nuckolls, Ford, and the other defendants because “there was insufficient evidence of liability or fault” by the other defendants. The other defendants named by plaintiffs in their complaint and amended complaints were the Marion Metal Products Company (Original Marion), the manufacturer of the vertical lift bed, and the various successors to that company, including Truckstell; A.B. Seimer, Inc., and A.B. Seimer individually; Marion Metal Products Company (Successor Marion); Sycon Corporation; Marion Manufacturing, Inc.; and Hansen-Dayton, Inc. The complaint also named Randall Ford, Inc., the local dealership that sold the truck, and alleged it supervised the installation of the vertical lift bed. In an amended complaint plaintiffs named Truck Equipment Company as the entity that installed the vertical lift bed. In Ford’s cross-claim against the other defendants, Ford denied negligence or any liability for the accident and asserted claims for contribution and indemnity against these same codefendants. Ford’s cross-complaint also recited that plaintiffs alleged independent allegations of fault on the part of the other defendants.

Randall Ford

Ford Motor Company presented sufficient proof of fault on the part of Randall Ford to entitle it to the instruction. Carl Rose, one of the principals at the Dale Crampton Roofing Company, Donald Nuckolls’s employer, testified that the Dale Crampton Roofing Company purchased the 1976 Ford truck in question from Randall Ford with the vertical lift already installed. An invoice was offered as proof of purchase and indicated that the vertical lift was installed by the Truck Equipment Company. However, the amount for installation was included in the total purchase price paid Randall Ford. Rose testified that Crampton Roofing relied on Randall Ford or Truck Equipment Company to fit the vertical lift bed on the truck.

Original Marion

Plaintiffs do not dispute that the proof showed the lift was a Marion lift, rather they contend that Ford failed to demonstrate which “Marion” company manufactured the lift. Carl Rose testified that the lift installed on the Ford F-600 truck involved in the accident was a 1964 Marion lift VL7272. Defendant’s exhibit fifty-four was offered in support of this statement. The exhibit is a photocopy of the specifications on Marion vertical lifts models VL7272 and VL6246. While it is true that the specifications are undated and do not of themselves identify the lift in question, Carl Rose testified that the vertical lift in question was a 1964 Marion VL7272 vertical lift. His testimony was corroborated by that of Gilbert Herr, a former president and CEO of Marion Metal Products Company. Twice in his testimony he referred to the year 1964 in a way that one can only conclude that the lift in question was manufactured in 1964.

While there were several “Marion” entities involved in the suit, the evidence presented established the existence of only one of those entities in 1964, the Original Marion. Thus, neither the Successor Marion Metal Products Company, which came into existence in 1967, or the Marion Manufacturing Company, which acquired Successor Marion in 1976, could have manufactured a vertical lift in 1964. This was sufficient proof to entitle Ford to the instruction about Original Marion.

Sycon Entities

The Sycon Entities consist of Truckstell, A.B. Seimer, Inc., A.B. Seimer, individually, Marion Metal Products Co. (Successor Marion), and Sycon Corporation. The liability of these parties is derived from that of Original Marion. They could only be liable if the Original Marion was liable. The general rule is that a corporation which purchases the assets of another corporation does not succeed to the liabilities of the selling corporation. Swayze v. A. O. Smith Corp., 694 F. Supp. 619 (E.D. Ark. 1988). We have recognized the general rule. See Fort Smith Refrigeration & Equip. Co. v. Ferguson, 217 Ark. 457, 230 S.W.2d 943 (1950). In Swayze, four exceptions to the general rule were set out: (1) where the transferee assumes the debts and obligations of the transferor by express or implied agreement; (2) where there is a consolidation or merger of the two corporations; (3) where the transaction is fraudulent or lacking in good faith; and (4) where the purchasing corporation is a mere continuation of the selling corporation. Swayze, 694 F. Supp at 622.

James Smith, the attorney who prepared the 1967 sale of assets from Original Marion to Truckstell/A.B. Seimer, Inc., testified that Truckstell was the purchaser and that it assigned its rights under the purchase agreement to A.B. Seimer, Inc. Smith indicated that Truckstell purchased all or substantially all of Marion’s assets, including inventory, receivables, and work in process. Smith also testified that the factory employees and most of the office employees of the Original Marion continued on in their employment. His testimony indicated that the seller required the buyers and A.B. Seimer individually to execute an “indemnity assumption of liability agreement” as part of the consideration for the sale. A 1967 letter from Smith to the attorney for Original Marion verified the sale of assets and referred to the assumption of liability agreement. Smith testified that after the sale the name A.B. Seimer, Inc. was changed to Marion Metal Products Company, Inc.

Gilbert Herr, president and CEO of the Original Marion in the 1960’s, corroborated Smith’s testimony. He indicated that Mr. Seimer was in charge after the purchase, but relied on employees of the Original Marion, including himself, to continue the day-to-day operation of the company. Herr testified that Successor Marion continued to make vertical lifts until he retired in 1976. Other managers and employees testified as to their continued employment and the continuity in production of goods after the Seimer purchase.

Thus, Ford presented sufficient evidence for the jury to consider whether, under either the continuation exception or the express assumption exception, Truckstell, Seimer, Inc., and Seimer individually assumed the liability of the Original Marion.

Plaintiffs, in their original complaint, alleged that Sycon Corporation succeeded to Original Marion’s liabilities “because ... on about October 15,1971 Successor Marion merged into Sycon.” In its answer, Sycon admitted “that on or about October 15, 1971 various corporations merged, including Sycon Corporation and Marion Metal Products Company [Successor Marion], and the resulting company was known as Sycon Corporation.” In the oral argument of this case Ford stated that it relied on plaintiffs’ proof on the matter, which was never contested, as sufficient proof of Sycon’s merger with Successor Marion. However, in addition, Theodore Berger and James Smith both testified that at one time Sycon Corporation succeeded to the business. The general rule is that, after a merger, the resulting corporation is liable for the debts of the other corporation.

Indeed, it has been said that public policy requires that the obligations of the extinguished corporation in a merger survive as obligations of the surviving corporation. Corporations cannot by merger or consolidation escape the obligation to pay debts incurred before the merger or consolidation or defeat the right of their creditors to subject their property to the satisfaction of such debt.

19 Am. Jur. 2d Corporations § 2715 (1986).

In summary, the trial court did not err in instructing the jury to compare the fault of plaintiff Donald Nuckolls, Ford Motor Company, and the other defendants based on insufficient identification of the Original Marion and insufficient proof of successor liability.

However, even if the giving of the instructions were in error, we would still reverse the grant of the new trial. The instructions that plaintiffs objected to were instructions numbers seven, eight, nine, thirteen, and twenty-five. Instructions seven, eight, and nine were modified versions of AMI Civil Instruction 206. Instruction seven stated that Ford contended that Marion Metal Products Co. was chargeable with fault that was a proximate cause of plaintiffs’ damages and that Ford had the burden of proving such. Instruction eight stated the same as to A.B. Seimer, Inc., A.B. Seimer, individually, Successor Marion, and Truckstell Manufacturing. Instruction nine stated the same as to Randall Ford. Instruction thirteen, AMI Civil 306, stated that the word “fault” means “negligence and breach of warranty and supplying a product in a defective condition.” Instruction twenty-five is AMI Civil 2111, concerning comparative fault and joint tortfeasors, and was given as follows:

If you find that Donald Nuckolls was free of any fault which was a proximate cause of his claimed damages, then Donald Nuckolls is entitled to recover the full amount of any damages you may find he has sustained from any fault of Ford Motor Company which you find to have proximately caused these damages.
If you should find that any damages sustained by Donald Nuckolls were caused by fault on the part of Donald Nuckolls and also were proximately caused by fault on the part of Ford Motor Company, then you must compare the percentage of fault to Donald Nuckolls, Ford Motor Company and any other party identified in these instructions contended by Ford Motor Company to be guilty of fault, proximately causing damage to Donald Nuckolls.
If the fault of Donald Nuckolls was of less degree than the total fault of Ford Motor Company and all other parties identified in these instructions whom you find to be chargeable with fault, then Donald Nuckolls and Betty Nuckolls are entitled to recover from Ford Motor Company any damages which you may find they have sustained after you have reduced their damages in proportion to the degree of Donald Nuckolls’s own fault.
On the other hand, if the fault of Donald Nuckolls was equal to or greater than the total fault of Ford Motor Company and all of the parties identified in these instructions whom you find to be chargeable with fault, then Donald Nuckolls and Betty Nuckolls are not entitled to recover any damages.

The court, in instruction number ten, instructed the jury that more than one party could be deemed to have proximately caused plaintiffs’ injuries, and, in instruction number fifteen, instructed the jury that “if you find that the negligence or fault of Ford Motor Company proximately caused damage to Donald and Betty Nuckolls, it is not a defense that some other persons may also have been to blame.”

The jury was given four verdict forms. They were as follows:

(1) We, the jury, find in favor of the Plaintiff, Donald Nuckolls, and fix his damages as follows:
(2) We, the jury, find in favor of Betty Nuckolls and fix her damages as follows:
(3) We, the jury, find in favor of Ford Motor Company on the claims of Donald Nuckolls:
(4) We, the jury, find in favor of Ford Motor Company on the claims of Betty Nuckolls[.]

The jury answered verdict forms (3) and (4) in favor of Ford. In order to have done so the jury could have determined that plaintiffs failed to prove liability on the part of Ford. This finding would not have involved the other defendants. Alternatively, the jury could have determined that Donald Nuckolls was partially at fault and that his fault was equal to or greater than that of Ford and any other parties to whom the jury found that fault should be attributed. This finding would not have been affected by the addition of fault of other parties. If a jury determines the plaintiff is fifty percent or more at fault, it does not matter whether there is one defendant or multiple defendants. Thus, the plaintiffs could not have been harmed by the instructions, even if they had been erroneous.

Plaintiffs contend that the introduction of the fault of the other parties misled the jury and caused the jury to think that the other parties were responsible. However, the addition of fault of other parties and the comparison of the fault of those parties against plaintiff Donald Nuckolls’s fault would not have' affected the verdict. Instruction fifteen instructed the jury that it was not a defense for Ford if some other person may also have been at fault. In addition, considering the options given to the jury in comparing fault under instruction twenty-five, it is obvious that there is no way the addition of fault of the other defendants could have affected the verdict as between Ford and plaintiffs. Thus, even if the instructions had been given in error, they could not have “materially affect[ed] the substantial rights” of appellees. See ARCP Rule 59(a).

We have stated that a moving party under Rule 59(a) must demonstrate that its rights have been materially affected by demonstrating that a “reasonable possibility of prejudice has resulted” from the error. Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993). Diemer involved a granting of a new trial under subsection (2) of section (a) of Rule 59, concerning juror misconduct. However, the standard is equally applicable to Rule 59(a)(8), involving errors of law, because section (a) states at the beginning that all the grounds must materially affect the rights of the moving party. Since a reasonable possibility of prejudice was not demonstrated, the trial court erred in granting a new trial.

We reverse and remand for reinstatement of the jury verdict and entry of orders consistent with this opinion.


author: David Newbern, Justice.

text:
    Ricky Joe HODGE v. STATE of Arkansas
    CR 94-820
    894 S.W.2d 927
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      Clarence Walden Cash, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   David Newbern, Justice.

Ricky Joe Hodge was given concurrent sentences amounting to 40 years after pleading guilty to rape, kidnapping, aggravated robbery, robbery, and theft, all arising from the same incident. The judgment and commitment order was entered, and execution of it commenced March 16, 1994. The prosecution then discovered Mr. Hodge had previously been convicted of two counts of rape, so the sentence should have been to life imprisonment according to Ark. Code Ann. § 16-90-202 (1987). The Trial Court entertained a motion to resentence Mr. Hodge and, on April 12, 1994, entered a sentence of life imprisonment on each count of rape, aggravated robbery, and kidnapping, to run concurrently with 10-year sentences for theft and robbery.

Mr. Hodge contends the second sentencing violated his right not to be placed twice in jeopardy. We do not address his constitutional argument because it was not raised before the Trial Court. Fuller v. State, 316 Ark. 341, 872 S.W.2d 54 (1994). We will address his contention that his plea was not voluntarily made, but only to the extent of pointing out that it raises an issue that is not appealable. We must, however, modify the judgment to reinstate the original sentence because the Trial Court lacked authority to increase Mr. Hodge’s sentence after execution of it had begun.

The charges arose from an incident in which a convenience store clerk was brutally robbed, kidnapped, raped at knife point, and left without her pants and shoes in a remote area south of Alexander Mountain in Pulaski County.

The plea statement, signed by Mr. Hodge, which was before the Trial Court when the guilty plea was accepted in February 1994 contained the following: “You are charged with Rape, Kidnapping, Aggravated Robbery, Robbery and Theft of Property in the Pulaski County Circuit Court. It is necessary that you fully understand the contents of this document. You are charged with a feIony\misdemeanor and with 1 prior conviction.”

Despite the State having informed Mr. Hodge in the plea statement that he was charged with one prior conviction, Wanda Wyeth, the deputy prosecutor handling the case, was unable to present evidence of any prior conviction at the hearing. The victim and her husband gave statements about the impact of the crime upon their lives and asked that Mr. Hodge be sentenced to life imprisonment. Ms. Wyeth concurred in the request for a life sentence. The Trial Court then asked, “What’s his prior record?” Ms. Wyeth responded, “Your Honor, he doesn’t have any priors that we could find proof on. We had some information of a prior in another state but we were not able to get any proof on that. It was for a burglary, I believe it was. We don’t have any in Arkansas or in the ACIC or anything.” She then stated that if Mr. Hodge were sentenced to only 40 years he could “conceivably be out in ten years.”

At that point, the husband of the victim said, “He raped another girl here, two of them.” The Trial Court inquired whether the prosecution had “checked into that,” and Ms. Wyeth replied, “We’ve checked all his history that we could find, your Honor. Unless there may be a pending charge out there somewhere that we don’t have yet. But I have no proof of that.” The Trial Court then pronounced the 40-year sentence.

At the April 12, 1994 hearing on the motion to vacate and resentence, the sentence was changed to the concurrent life and 10-year sentences.

1. Appealability

The State first argues we should not entertain an appeal from a guilty plea. We indeed do not allow appeals from guilty pleas when the appeal alleges an error having to do with an integral part of the plea and its acceptance by a trial court, Ark. Code Ann. § 16-91-101(c) (1987); Henagan v. State, 302 Ark. 599, 791 S.W.2d 371 (1990). That completely answers Mr. Hodge’s argument for reversal on the ground that his plea was not voluntary. When, however, the appeal is from a decision which was neither a part of the guilty plea acceptance nor the sentencing procedure which was an integral part of the guilty plea acceptance, the appeal is allowed. Jones v. State, 301 Ark. 510, 785 S.W.2d 217 (1990)(supp. opn. on denial of reh. 301 Ark. 512-A, 789 S.W.2d 730 (1990)) (appeal from denial of post trial motion to correct illegal sentence); Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988)(appeal from denial of post trial motion to modify sentence to give credit for jail time). See also State v. Sherman, 303 Ark. 284, 796 S.W.2d 339 (1990).

The appeal in this case is from a post trial motion of the sort allowed in the Jones and Brimer cases, and it is thus not barred by the rule prohibiting appeals of guilty plea convictions.

2. Resentencing

As a general rule, a trial court may not revise a valid sentence after execution of the sentence has begun. DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993). It may, however, correct an illegal sentence even after execution of the sentence has begun. Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985). The issue to be addressed here is whether the sentence initially meted out to Mr. Hodge, and which he had begun to serve, was an illegal sentence and thus one the Trial Court had the authority to change.

At the April 12, 1994 hearing on the State’s motion to vacate the sentence and resentence Mr. Hodge, Ms. Wyeth reported having learned, subsequent to the earlier sentencing hearing, that Mr. Hodge had been convicted of two counts of rape in Saline County in 1980. Citing § 16-90-202, she asked that Mr. Hodge be sentenced to life imprisonment. Subsection (a) of the statute provides, in part:

When any person shall be convicted of. . . rape . . . and it shall be shown that the person has been twice previously convicted of... [rape] in this state or any other state, upon the third conviction the person shall be deemed an habitual criminal and shall be sentenced to life imprisonment in the state penitentiary.

Also cited was Ark. Code Ann. § 16-65-119 (1987), subsection (a) of which states that a judgment of a circuit court may be modified by the Supreme Court or the court in which the judgment was rendered.

The Trial Court expressed reservations about changing the sentence, referring to the DeHart case in which we stated, “It is clear that a trial court cannot modify or amend the original sentence once a valid sentence is put into execution,” and noted that the issue is “jurisdictional.”

The general rule prohibiting a trial court from revising a sentence that is not illegal, once execution of it has commenced, entered Arkansas jurisprudence in Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005 (1926). Mr. Boyles was convicted of manufacturing “mash” in Perry County and sentenced to one year in the penitentiary. The Perry Circuit Court later ordered his release, but the Board of Charities and Corrections refused to obey the order. Members of the Board sought certiorari to quash the release order, and they prevailed.

Citing cases from many jurisdictions, we recognized a conflict of authorities but held, over a strongly worded dissent by Justice Frank Smith, that once a sentence had been pronounced and execution of it had begun a trial court could not revisit it. The reason given, without constitutional citation, was that a person accused of a crime should not be subjected to trial more than once even though, as the dissenting opinion pointed out, Mr. Boyles desperately wanted the release order upheld. The rule has been solidly applied ever since. See, e.g., Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983); Williams v. State, 229 Ark. 42, 313 S.W.2d 242 (1968).

In addition to allowing a trial court to correct an illegal sentence, as mentioned above, we have given trial courts authority over imposed and executed sentences which are not illegal in certain instances by institution of Ark. R. Crim. P. 37. See Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979).

In response to the Trial Court’s reference to the rule, and to the DeHart case particularly, Ms. Wyeth cited the Lambert case in which we allowed correction of a sentence which was “illegal.” She argued that the initial 40-year sentence was illegal because of § 16-90-202, and that is the State’s argument on appeal.

In the Lambert case Thomas Lambert and Elmer Smith were charged with escaping from the Wrightsville Unit of the Department of Correction. They were given suspended sentences. The prosecutor subsequently realized there was a statutory prohibition against suspending the sentence of a person previously convicted of two or more felonies. The Trial Court granted a motion to correct the sentences, and we affirmed on the ground that the sentencing court may correct an original sentence, even though partially executed, if it was an illegal sentence.

The Lambert case differs from the one now before us. Mr. Lambert was charged with having more than one prior felony and Mr. Smith with having four or more. The facts making suspended sentences illegal were before the Court. The prosecutor and the Trial Court were, however, apparently unaware of the law disallowing suspension of sentence for those who had been previously convicted of two felonies. In Mr. Hodge’s case, there was nothing illegal about the initial sentence, given the facts which were before the Trial Court. This case, therefore, does not fall within the illegal sentence exception to the general rule that a sentence may not be changed after the execution of it has begun.

In conclusion, we note our appreciation of the State calling our attention to the possibility that § 16-90-202, which formed the basis of its challenge to the legality of the initial sentence, may have been repealed by later legislation. See Ark. Code Ann. § 5-4-104(a) (Repl. 1993) which provides, “No defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.” We have not addressed that issue as Mr. Hodge did not raise it either in the Trial Court or in his brief before us.

Affirmed as modified.


author: David Newbern, Justice. Andree Layton Roaf, Justice,

text:
    Edward G. PARTIN v. BAR of Arkansas
    94-420
    894 S.W.2d 906
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      Appellant, pro se.

      Kaplan, Brewer & Maxey, P.A., for appellee.
   David Newbern, Justice.

Edward G. Partin II seeks admission to the Bar of this Court. He has completed the necessary educational requirements and has passed the Arkansas bar examination. The Board of Law Examiners has, however, refused to recommend his admission on the ground that he is not morally qualified. Mr. Partin contends the Board erred as he has rehabilitated himself since his criminal convictions for drug-related offenses in 1973, 1984, and 1986. He also contends procedures utilized by the Board and the Director of Professional Programs denied his rights to equal protection of the laws and due process of law. We affirm the Board’s decision.

Mr. Partin graduated from the University of Arkansas School of Law in Fayetteville in 1992. He applied for admission to the Bar and to take the bar examination administered in February, 1993. On his application form, he disclosed his criminal convictions. The 1973 conviction occurred in Baton Rouge, Louisiana. At age 18 he pleaded guilty to possession of a Dilaudid, a controlled substance. Mr. Partin was placed on 18 months probation, and after seven months, the charge was dismissed pursuant to Louisiana law.

The 1984 offense occurred in Arkansas. Van Burén County Sheriff and State Police officers obtained a search warrant for Mr. Partin’s rural home based on observation of a large number of marijuana plants growing in the vicinity of Mr. Partin’s property. The search revealed two pounds of marijuana, seeds, peat pots, cigarette rolling papers, and a set of Ohaus weighing scales. Mr. Partin pleaded guilty in Van Burén County to possession of marijuana with intent to deliver. He was sentenced to four years imprisonment, and he forfeited a 1984 four-wheel-drive pickup truck in lieu of a $10,000 fine. The prison sentence was suspended, and Mr. Partin was placed on probation. One of the conditions of probation was that he not violate any local, state, or federal laws.

The final offense occurred in 1986. Sheriff and State Police officers spotted marijuana plots again in the general vicinity of, but not on, Mr. Partin’s land. An affidavit for a search warrant stated there was a clearly defined trail leading from. Mr. Partin’s property to the areas where marijuana plants were found to be growing. This time the search revealed items identified by the State Crime Laboratory as marijuana seeds and various specimens of plant material which tested positive for marijuana and tetrahydrocannabinol, including a bag containing vegetable material which tested positive for marijuana. Mr. Partin was charged with felony manufacture of a controlled substance. He pleaded not guilty and was found guilty by a jury of the lesser included misdemeanor, possession of a controlled substance, which resulted in a one-year sentence. His probation was revoked, and he was sentenced to a term of eight months in prison, which he served concurrently with the one-year sentence. The 1984 felony conviction was expunged in 1991.

At the hearing before the Board panel, Mr. Partin testified he entered Arkansas Tech University in 1987 and completed his bachelor’s degree with high honors in two years and nine months. He discussed entering law school with an advisor at Arkansas Tech and was told his past should not be a problem if he continued his rehabilitation. He was aware, however, that in view of his criminal convictions there would be more to becoming a member of the Bar than graduating and passing the examination.

Two weeks before he was to take the bar examination, Christopher Thomas, this Court’s Director of Professional Programs, informed Mr. Partin, apparently as a precondition to his taking the examination, that he would be required to sign an acknowledgement stating that further proceedings may be necessary concerning his application if he passed the examination. He executed the acknowledgement. Mr. Partin achieved a passing score on the bar examination, and then Mr. Thomas informed him he was deferring the decision on admission to the Chairman of the Board of Law Examiners, apparently following the procedure prescribed by Rule XIII of the Rules Governing Admission to the Bar for determinations of moral character and fitness for reinstatement of lawyers who are disbarred or whose licenses have been suspended.

Although Rule XIII dealt with aspects of initial applications for Bar membership, including the statement that applicants must demonstrate character and fitness, the procedural provisions in the Rule for cases in which there were character and fitness issues mentioned only reinstatement. The Rule has since been amended to make it clear that procedure such as that followed in this case is proper with respect to an initial applicant, and as we discuss below, we find no fault in following that procedure in the case of an initial applicant prior to the amendment. The Chairman was unable to reach a decision and, again following Rule XIII procedure, he referred the matter to a panel of three Board members.

Mr. Partin requested a hearing before the panel. He was informed, in accordance with Rule XIII, of the requirement that he post a bond for costs associated with the hearing. He responded with a request that he be allowed to proceed informa pauperis. His request was denied. Through subsequent correspondence with Mr. Thomas, an arrangement was made for a reduced bond of $250. In connection with that decision, Mr. Thomas informed Mr. Partin he would be allowed to make a brief presentation. Apparently that statement was made out of concern that a long record, together with associated copying and mailing expenses, could amount to considerably more than $250, and indeed that turned out to be the case. The cost to Mr. Partin ultimately exceeded $600. A hearing was held on November 20, 1993.

At the hearing, Mr. Partin testified on his own behalf and responded to questions by the panel members and Mr. Thomas who served as the evidence officer and presented the documentary record. After the record of the hearing was reviewed by eleven members of the Board, they voted eight to three to deny admission.

1. Good moral character

The applicant has the burden of proving eligibility and must do so by a preponderance of the evidence. We review bar admission and reinstatement cases de novo, and we will not reverse the findings of fact of the Board unless they are clearly erroneous. In re Application of Crossley, 310 Ark. 435, 839 S.W.2d 1 (1992). In cases in which we are asked to review a moral character decision of the Board, we are concerned with whether the applicant proved that he or she had sufficient moral character by a preponderance of the evidence. See In re Shannon, 274 Ark. 106, 621 S.W.2d 853 (1981).

The essence of Mr. Partin’s first point of appeal is that the Board erred because it did not give sufficient consideration to his rehabilitation as demonstrated by his academic achievements and numerous letters from friends, teachers, and relatives attesting to his honesty and trustworthiness. We see the issue a little differently. Our first concern is with a factual finding which is determinative of the case if we cannot find the Board to have been clearly erroneous in reaching it.

In its written findings and conclusions, the Board discussed the facts and then set out its conclusions. The first four paragraphs of conclusions had to do with the facts of Mr. Partin’s criminal record. The Board then set out the following:

5. In 1973, the applicant pled guilty to a felony charge in the State of Louisiana. While a majority of the Board tends to discount the significance of this plea, due to the passage of time, and the age of the applicant at the time of the offense, it is, nonetheless, of some probative value when considered in light of the subsequent behavior of the applicant many years later.
6. In connection with the 1984 felony charge in Van Burén County, Arkansas, a search warrant was obtained by local law enforcement personnel. One basis for the issuance of the warrant was observation of “several hundred” marijuana plants being grown near the residence of the applicant.
As a result of the execution of the search warrant, approximately two pounds of marijuana was found on the applicant’s premises, along with other evidence that the applicant was engaged in the manufacture of a controlled substance on a significant scale. This other evidence included commercial fertilizer, “peat pots” and a set of Ohaus scales. There is no evidence in the record to explain any other use for these items or materials. The Board also notes the presence of numerous weapons at the applicant’s residence. Pursuant to evidence obtained in the search, the applicant was arrested and ultimately pled guilty to a felony charge of possession of a controlled substance with intent to deliver. In consequence of the guilty plea, the applicant received a four-year suspended sentence and four years probation.
A majority of the Board finds and concludes that the record shows, beyond a preponderance of the evidence, that the applicant was engaged in growing and possessing more than modest amounts of marijuana in 1984.
* * *
7. Less than two years after pleading guilty and being placed on probation, another search was conducted of Mr. Partin’s residence in Van Burén County. This search was based on aerial observation of a large stand of mature suspected marijuana plants being grown approximately three hundred yards north of Mr. Partin’s residence. By the time the search warrant was executed, the large stand of marijuana had been removed. Nonetheless, the search warrant was pursued and minor amounts of marijuana were discovered in the applicant’s residence.
Although charged with a felony, i.e., manufacture of a controlled substance, the jury found the defendant guilty, in 1986, of misdemeanor possession of a controlled substance.
The applicant’s 1984 suspended sentence was subsequently revoked. The stated reason for revocation was “the defendant has failed to refrain from being in the company of persons who use marijuana.”
A majority of the Board finds and concludes that the applicant manifested a disturbing indifference to the terms of his 1984 probation within a very short period after its entry. Indeed, the applicant, according to the record, was in possession of marijuana, and in the presence of others using marijuana, less than two years after being placed on probation.
The applicant, during his testimony, continues to insist that he has never grown a controlled substance. A majority of the Board finds and concludes that the record, beyond a preponderance of the evidence, establishes otherwise. It is the conclusion of a majority of the Board that the applicant has yet to fully accept the criminality of his behavior, beginning in 1973, but most especially the more recent episodes of 1984 and 1986. [Emphasis added.]
* * *
In particular, the Board majority is compelled to conclude that the applicant engaged in criminal activity and has yet to exhibit remorse or acceptance of the criminality of his actions. The Board majority is persuaded that initial admission of this applicant would not contribute to the public interest, and may very well detract from the integrity of the bar and the Courts. Accordingly, Mr. Partin’s application for initial instatement to the Bar of Arkansas is denied.

It is apparent that the Board concluded that Mr. Partin was not being truthful when he denied having grown marijuana upon being asked by the hearing panel if he had done so. During oral argument before this Court, at which Mr. Partin appeared pro se, as he did at the initial hearing, he stated he had admitted to the panel that he had been charged with growing marijuana. The following colloquy ensued between Mr. Partin and Mr. Michael Mashburn, a member of the panel:

MR. MASHBURN: I don’t know much about growing marijuana but at some point in your life back in 1973 you had some books in your Volkswagen that apparently taught how that was done, is that right?
MR. PARTIN: I’ve had books on it before, never been successful at it.
MR. MASHBURN: When you were growing it, you were successful at growing it, is that right?
MR. PARTIN: No, I said I never have been successful.
MR. MASHBURN: Never have been successful growing it?
MR. PARTIN: Right.
MR. MASHBURN: Do you know enough about that process to tell me whether when you’re starting the plants out and you have peat pots to start them out in, you start one plant per peat pot?
MR. PARTIN: I’ve seen — starting them in peat pots was a joke. Marijuana plants, you know, they get about that tall and then they fall over and die. And that’s all I know about growing marijuana in a peat pot.
MR. MASHBURN: Have you ever successfully in your life, sir, grown a marijuana plant to its full mature height—
MR. PARTIN: No.
MR. MASHBURN: — and harvested one?
MR. PARTIN: No.

In response to further questions, Mr. Partin denied some of the facts stated in the affidavits which resulted in the searches in 1984 and 1986, including, e.g., denying any knowledge of how the stalks which tested positive for marijuana got on his property.

It is clear that the Board members did not believe Mr. Partin’s testimony. The credibility of a witness is a matter of fact, and we have been given no reason to conclude that the Board’s determination of the fact that Mr. Partin was being untruthful was clearly erroneous.

In their concluding remarks, members of the panel commended Mr. Partin for his efforts in obtaining an education and in maintaining a clean record since 1986. Our experience in cases of persons seeking initial admission to the Bar after denial by the Board is limited to a fitness, as opposed to character, case. In re Application of Crossley, 310 Ark. 435, 839 S.W.2d 1 (1992). Character cases have, however, arisen in other jurisdictions, and we have studied cases cited by Mr. Partin such as In re Rowell, 754 P.2d 905 (Or. 1988); Petition of Diez-Arguelles, 401 So.2d 1347 (1981). Mr. Partin is correct that those cases have emphasized the successful rehabilitative efforts of the applicants and have not concentrated on their criminal pasts. One of the items stressed in such cases, however, is candor about the past.

Mr. Partin cites a most interesting case from the California Supreme Court, Martin B. v. Committee of Bar Examiners, 33 Cal. 3d 717, 190 Cal. Rptr. 610, 661 P.2d 160 (1983). While serving as a U.S. Marine, Martin B. was acquitted of rape on a defense of consensual intercourse in 1972. In a later trial involving a separate accusation of rape by a different complaining witness, a jury deadlocked 11 to 1 in his favor, and the court dismissed the charge. Still later, he was convicted of filing a false claim against the government. The California State Bar Court refused to certify him for admission to the Bar. The State Bar Court conducted a “retrial” of the rape charges, calling live witnesses, and ultimately concluded that Martin B. had lied to that Court in maintaining his innocence.

In reversing and remanding the State Bar Court decision, the California Supreme Court concluded the “retrial” was unfair because vital court records no longer existed. The California Supreme Court recognized that, had Martin B. made a “pragmatic” admission to the Court of his guilt in the rape incidents, the State Bar Court probably would have recommended his admission to the Bar on the basis of his rehabilitation. The California Supreme Court was critical of the State Bar Court for thus encouraging applicants who maintain innocence to be untruthful.

We find a difference between the Martin B. case and that of Mr. Partin. True, the one time Mr. Partin was charged with growing marijuana, he received a “favorable outcome” as he was convicted only of the lesser included offense of possession. He did not, however, receive such an outcome in 1984 when he was charged with possession with the intent to deliver and pleaded guilty of that offense after the Trial Court refused to suppress evidence strongly indicative that he was growing marijuana.

Of course we agree that Mr. Partin has a right to maintain that he has never successfully grown a marijuana plant or harvested one. We do not, however, know of any reason the Board should have been precluded from evaluating his truthfulness on the basis of its observations of him as a witness when confronted with the sworn statements used in the process of charging him in 1984 and 1986.

Mr. Partin’s efforts at rehabilitation have apparently been remarkable, but the Board obviously concluded they are not complete in view of what the members perceived as his lack of candor, and we cannot disagree or find that conclusion clearly erroneous.

2. Constitutional arguments

a. Equal protection

Mr. Partin argues the Board violated his right to equal protection of the laws by impermissibly classifying him apart from other applicants with criminal records who have been admitted to the bar.

The basis of the equal protection argument is unclear. His opening brief does not set forth any authority, nor does he specify any impermissible classification was practiced by the State. The argument about impermissible classification first appears in his reply brief. Arguments cannot be made for the first time in an appellant’s reply brief. See John Cheeseman Trucking v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993).

b. Due process

Mr. Partin was afforded notice and a hearing before his application was denied. Nevertheless, he challenges the sufficiency of the procedure on two bases. First, he contends that the requirement that he post a bond before any further action could be taken on his application restricted his access to a hearing and caused undue delay in the disposition of his case. Second, he argues Mr. Thomas did not afford him procedural due process because the procedures used in reinstatement cases were used to resolve the character issue on his initial application to the bar.

An applicant who satisfies the statutory prerequisites for admission to the bar has a “legitimate claim of entitlement” to practice his profession. Those charged with investigating and making decisions upon an applicant’s character and fitness to practice law must afford adequate due process of law. Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232 (1957); see also Board of Regents of State Colleges v. Roth, 408 U.S. 571, 92 S.Ct. 2701 (1972).

In its decisions concerning the constitutionality of filing fees, the Supreme Court has held that when a fundamental right is involved, a fee cannot restrict an indigent person’s access to the courts. Boddie v. Connecticut, 401 U.S. 371 (1971). However, where a fundamental right is not involved, such fees do not violate due process, especially if alternatives are available for the vindication of the indigent’s rights. United States v. Kras, 409 U.S. 437, 93 S.Ct. 631 (1973); Ortwein v. Schwab, 410 U.S. 604, 93 S.Ct. 1172 (1973). We have been cited to no authority for the proposition that one may have a “fundamental right” to practice law.

It is difficult to understand how the bond requirement violated Mr. Partin’s due process rights, as he was ultimately able to have a hearing and present evidence on his own behalf. Nor have we been shown how Mr. Partin may have been prejudiced by application of the procedures of Rule XIII despite the fact that those procedures referred to reinstatement rather than initial instatement when the hearing was arranged and held.

The procedure prescribed by Rule XIII is similar to that described in a concurring opinion in Willner v. Committee on Character and Fitness, 373 U.S. 201, 83 S.Ct. 1175 (1963), in which Mr. Justice Goldberg summarized the constitutional requirements: “The applicant, at some stage of the proceedings prior to such denial, must be adequately informed of the nature of the evidence against him and be accorded an adequate opportunity to rebut this evidence.” The procedure used by Mr. Thomas and the Board afforded that opportunity.

The fact that the officers who gave the information contained in the search warrant affidavits which were part of the evidence were not present for cross-examination gives us some pause, but Mr. Partin has not shown that he objected on that or any other basis at the hearing. He merely disputed some of the significant details contained in those reports. He might have had more success in questioning that evidence had he been represented by counsel, but we have no reason to think that his pro se appearance was other than the result of his own choice, and we cannot say the hearing was other than fair in the circumstances.

Affirmed.

Special Chief Justice Michael R. Mayton joins in this opinion.

Roaf, J., and Special Justice Ralph Washington concur.

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

Andree Layton Roaf, Justice,

concurring. The majority, in affirming the decision of the Board of Law Examiners denying the applicant’s admission to the Bar of Arkansas, has, in effect, upheld the Board’s findings that the applicant presently lacks good moral character. The Board found that Partin was not truthful regarding his involvement with marijuana in 1984 and 1986, and therefore did not demonstrate sufficient remorse or acceptance of the criminality of his actions.

This court has correctly determined that the findings of fact by the Board are not clearly erroneous. It is also clear that the Board did acknowledge appellant’s commendable and apparently very successful efforts to rehabilitate himself since 1986; the consideration given these efforts is less clear.

However, the Board flatly did not believe the applicant’s responses to its inquiries about his past acts in allegedly manufacturing or growing marijuana on a large scale, acts for which he was never convicted, in either 1984 or 1986. The Board, in effect, conducted a trial and convicted the applicant of charges which he did not face in 1984 and was acquitted of in 1986, to reach its conclusion. Unfortunately for the applicant, it was permissible and appropriate for the Board to conduct this inquisition, as even the applicant agreed:

Mr. Mashburn: [D]o you view our job as being ended if we determine that all you had was a series of — one dismissal of a felony conviction and then a series of misdemeanor convictions or do you view that we should look at the pattern of activity particularly after you’re 30 years old and should have known better?
Mr. Partin: I’m sure — yeah, I believe it should be considered.
Mr. Mashburn: The pattern should be considered, shouldn’t it?
Mr. Partin: Yes.

The tenor of the questioning did not bode well for the applicant or for his chances before the Board:

Mr. Mashburn: Let me just ask you this. You have a conviction in 1973 and then you have another conviction in 1984, were you growing dope all that time between 1973 and 1984 or did they just happen to catch you with the first patch you planted? (Emphasis added.)
Mr. Partin: I’ve already told you that I wasn’t growing dope.
Mr. Mashburn: You weren’t growing dope?
Mr. Partin: No, sir.
Mr. Mashburn: You’ve never grown dope —
Mr. Partin: No.

Mr. Partin wanted to be judged by his actions since 1986; the Board would not or could not let him put his past behind him and therein lies his dilemma. Although I cannot say that the Board was clearly erroneous in denying the application, if the decision ultimately turned on the applicant’s perceived lack of candor about alleged past criminal acts, then the issue of his rehabilitation has really not been reached. I find the anaylsis employed by the Supreme Court of California in a similar case to be more equitable while still fulfilling the duty of a Board or Committee to safeguard the integrity of the bar and the courts, and to protect the public against potentially dishonest or unethical practitioners. In Hightower v. State Bar of California, 34 Cal.3d 150, 666 P.2d 10 (1983), the Supreme Court stated the “fundamental question remains whether petitioner is a fit and proper person to be permitted to practice, and that question usually turns upon whether he has committed or is likely to continue to commit acts of moral turpitude.” In Hightower, the Court questioned “the wisdom of denying an applicant admission to the bar if that denial rests on the applicant’s choosing to assert his innocence regarding prior charges rather than acquiesce in a pragmatic confession.” Id.; see also Martin B. v. Comm. of Bar Exrs. of State Bar, 33 Cal.3d 717, 661 P. 2d 160 (1983). In the instant case, the prior charges are over eight years old and should be put to rest.

I concur only because the standard for review is such that it cannot be overcome in this case.

Ralph M. Washington, Special Associate Justice, joins in the concurrence.


author: Tom Glaze, Justice.

text:
    Randy Keith BRISTOW and Razorback Cab of Fort Smith v. Betty FLURRY
    94-1078
    894 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      Skinner Law Firm, P.A., for appellant.

      Hough, Hough & Hughes, P.A., by: R. Paul Hughes, III, for appellee.
   Tom Glaze, Justice.

Randy Bristow was the driver of a Razorback cab in which appellee, Betty Flurry, was a back-seat passenger. The cab was involved in an accident and Flurry filed an action against Bristow and Razorback Cab of Fort Smith, alleging the accident and her resulting personal injuries were due to Bristow’s negligence. The jury trial ended in a unanimous verdict in favor of Bristow and Razorback, but the trial court ruled that the jury’s finding was clearly against the preponderance of the evidence and granted Flurry’s motion for a new trial. Bristow and Razorback Cab appeal the trial court’s ruling. We affirm.

On the night of April 12, 1990, Bristow was driving Flurry eastbound on Garrison Avenue. Bristow’s version of what occurred is that, as he approached the intersection of Garrison and Ninth Street, Flurry reached over the seat to pay her fare and said, “Here.” Bristow claims that, when he last looked, the light in the intersection ahead was green, so he turned to collect the money from Flurry. However, when he turned back, he was in the intersection, at which point he saw a truck a moment before colliding with it. The truck, driven by Timothy S. Moore, was traveling north and struck Bristow’s cab on its right-hand side. Bristow testified that Moore was driving in excess of the speed limit. Flurry testified both that she saw the signal light was red and then that she really was not paying attention to the light. She also said that, when she looked up, the truck was coming very fast.

Alfred Flesher, the officer who had investigated the accident, testified at trial that, at the scene of the accident, Bristow stated that he must have run through the red light, and based upon that statement, Flesher opined that Bristow was at fault. Officer Flesher further testified that, when investigating the accident, Bristow gave no indication that Ms. Flurry had done anything to cause him to run the red light. Flesher stated that Bristow seemed convinced after the collision that he (Bristow) must have run the red light.

Bristow testified that he did not see the light change from green because he was talking to Flurry at the time and was not paying attention. Bristow further stated that, while he admitted he told Officer Flesher that he must have or may have run the red light, Bristow was certain that the light could not have turned from green, to yellow, to red in the amount of time he diverted his attention to receive his fare from Flurry.

The jury heard the above evidence and the instructions by the trial court and found in favor of Razorback Cab and Randy Bristow. The trial court granted a new trial, basing its order on the following assessments: (1) Bristow admitted to Officer Flesher that he ran the red light; (2) the jury could not reasonably have found that Flurry’s action in distracting Bristow would have been more negligent than Bristow’s failure to keep a proper lookout; (3) there was little or no basis in fact upon which the jury could have found Moore’s speeding was the entire cause of the accident; and (4) the jury could not have reasonably found that Flurry did not receive injuries that were related to this accident.

Ark. Rule Civ. R 59(a)(6) provides that a new trial may be granted to all or any of the parties on all or part of the issues on the application of the party aggrieved when the verdict or decision is clearly against the preponderance of the evidence or is contrary to the law. Although the trial court is granted some discretion in the matter, that discretion is limited, and it may not substitute its view of the evidence for the jury’s except when the verdict is clearly against the preponderance of the evidence. Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994). The test we apply in reviewing the trial court’s granting of the motion is whether the judge abused his or her discretion. Id. A showing of abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Id.

In Richardson, this court affirmed the trial court’s granting of a new trial. There, defendant Richardson was driving her car on a feed-on lane, attempting to access Highway 107. Richardson failed to yield, thereby colliding with the Flanerys’ car which was traveling south on the highway. At trial, the jury returned a general verdict in Richardson’s favor, but the trial court set aside the verdict and granted the Flanerys a new trial. This court held that the trial judge did not abuse his discretion in granting the new trial because the overwhelming weight of the evidence was that Richardson’s failure to yield had been the cause of the accident. The only evidence tending to disprove the allegations of negligence against Richardson was her own testimony regarding the cause of the accident.

Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990), is another case where this court affirmed the trial court’s granting of a new trial. This case arose when defendant Turrise was the driver of a van that ran off the road, overturned and injured the plaintiff passengers. The trial court granted a new trial finding that Turrise’s testimony regarding another vehicle causing him to run off the road was at consummate variance with the physical evidence and the testimony of independent witnesses. The only evidence tending to excuse Turrise’s failure to keep the van on the road was his own sudden emergency testimony. On appeal, this court concluded that the physical evidence showed a course of conduct contrary to that which an ordinary person would have undertaken when confronted with such an emergency. This court then upheld the trial court’s finding that the combined physical evidence and testimony by other independent witnesses amounted to a clear preponderance in the plaintiffs’ favor.

We hold that Bristow and Razorback Cab have failed to show that the trial court abused its discretion in granting a new trial. First, we point out that this case was submitted to the jury on an AMI 203 instruction wherein Flurry claimed damages resulting from the negligence of Bristow and Razorback Cab. Second, the trial court also gave AMI 901A and B, which generally spell out a driver’s duty to lookout for other vehicles and to keep his vehicle under control. In addition, the trial court read AMI 910 to the jury, which provides a passenger in an automobile is required to use ordinary care for her own safety. Significantly, the trial court refused to instruct the jury on comparative fault. While the trial court refused Bristow’s and Razorback Cab’s proffer of AMI 2111 on comparative fault, they do not raise that as a point for reversal on appeal.

In considering the evidence in relation to the instructions given, it is uncontroverted that Flurry sustained an injury to her hand and, at the least, lost a day of work as a result of the accident. By his own testimony, Bristow conceded he was not paying attention to the road as he entered the intersection prior to the collision. Although Bristow attempted to blame Flurry for diverting his attention by offering payment of her fare, Flurry never agreed she did anything to distract Bristow. And as previously stated, Bristow never mentioned to Officer Flesher that Flurry bore any blame for the accident.

The only significant evidence, favoring Bristow and Razorback Cab, came as a result of Bristow’s own testimony. However, as discussed earlier, while Bristow testified that the signal light was green when he last saw it, his statements to Officer Flesher at the accident scene contradicted his own trial statements. To reiterate, Flesher testified that, after the accident, Bristow said that he was not paying attention before the collision and that he must have run through a red light. Once again, Bristow made no mention to Flesher of Flurry having done anything to cause the accident, nor did he suggest Flurry was at fault until trial.

In sum, the record reflects that Bristow, by his own testimony and that of Officer Flesher, very clearly failed to maintain a proper lookout and maintain control of his vehicle at the time of the accident. By the same token, even if Bristow’s testimony is accepted as true that Flurry said, “Here” when offering her fare, we cannot say the trial court abused its discretion in finding such remark did not constitute negligence in the circumstances. Because we cannot say the trial judge abused his discretion in finding the jury verdict was clearly against the preponderance of the evidence, we affirm.

       Flurry also presented considerable other proof, albeit disputed, bearing on injuries she sustained.

      At this point, we note that, while Bristow also argued Moore was at fault, no comparative fault instruction was given on this issue. We also note that Officer Flesher testified that Moore was not at fault, and while Bristow objected to Flesher’s testimony, stating it called for a conclusion as to who was at fault in the accident, Bristow and Razorback Cab do not present their objection as a point for reversal on appeal.