author: Robert L. Brown, Justice. Tom Glaze, Justice,

text:
    Brad COTTEN v. Boyd FOOKS, Mark Jackson, Tim Findley, Jimmy Henshaw, Jeff King, Sherry Perry, and Flail Baker, All in Their Official Capacities as Aldermen of the City of Fiaskell, Arkansas; and Jeff Arey, in His Official Capacity as Mayor of the City of Haskell, Arkansas
    01-82
    55 S.W.3d 290
    Supreme Court of Arkansas
    Opinion delivered September 27, 2001

      Baxter, Jensen, Young & Houston, by: Ray Baxter, for appellant.

      Robert L. Herzfeld, Jr., for appellees.
   Robert L. Brown, Justice.

Appellant Brad Cotten appeals the dismissal of his complaint and asserts two grounds for reversal: (1) the trial court clearly erred in dismissing his illegal-exaction lawsuit and denying the injunction on grounds of mootness, and (2) attorney fees should be allowed under these circumstances, where the City of Flaskell rescinded its policy of renting its equipment to individuals as a result of this litigation. We conclude that neither point warrants reversal, and we affirm.

At the time of the events that give rise to this appeal, Brad Cotten (Cotten) was an alderman of the City of Haskell (City) in Saline County. Appellees Boyd Fooks, Mark Jackson, Tim Findley, Jimmy Henshaw, Jeff King, Sherry Perry, and Hal Baker were also aldermen of the City. The City’s mayor was appellee Jeff Arey. On April 19, 1999, Cotten had his attorney send a letter to the City’s attorney, asserting that the appellees had allowed private citizens to borrow and use City equipment for private purposes. The letter requested that the practice cease and informed the City’s attorney of the existence of photographs Cotten had taken proving his allegations. On September 1, 2000, as a result of Cotten’s complaints, the mayor implemented a new policy by memorandum regarding City equipment. The new policy permitted backhoes, dump trucks, and other heavy equipment to be rented from the City, at the mayor’s discretion, at a rate of $40 per hour. On October 19, 2000, Cotten filed a complaint against the appellees in which he alleged that the City was engaged in an illegal exaction with its rental policy which allowed private citizens to rent City equipment to improve their residences and farms. He sought an injunction prohibiting the City from allowing private use of the equipment under the new rental policy or otherwise.

On October 23, 2000, the City answered the complaint and denied the allegations. That same day, Mayor Arey adopted a new policy for the City in which he rescinded the September 1, 2000 policy and expressly prohibited any private use of City equipment. The new policy stated: “No person shall use any City equipment for anything other than the benefit of the City.” In light of the new policy, the City moved to dismiss Cotten’s complaint on the basis of mootness one week later. After a hearing on the motion, the trial court agreed with the City and dismissed the case as moot.

We first address Cotten’s contention that the trial court clearly erred in finding his cause of action to be moot and in dismissing his complaint. According to Cotten’s theory, the City is still free to go back to its old ways and adopt the rental policy. Hence, Cotten urges that this matter is not moot and that the trial court should enter an injunction specifically halting the conduct which forms the basis of his complaint.

When reviewing a decision by the trial court on a motion to dismiss, this court treats the facts alleged in the complaint as true and views them in the light most favorable to the plaintiff. Hames v. Cravens, 332 Ark. 437, 966 S.W.2d 244 (1998); Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). In addition, this court reviews equity cases de novo on the record, and we will not reverse a finding by the trial court unless it is clearly erroneous. O’Fallon v. O’Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000).

As a general rule, the appellate courts of this state will not review issues that are moot. See Forrest Constr. Inc. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001); Dillon v. Twin City Bank, 325 Ark. 309, 924 S.W.2d 802 (1996). To do so would be to render advisory opinions, which this court will not do. McCuen v. McGee, 315 Ark. 561, 868 S.W.2d 503 (1994). We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. See Forrest Constr. Inc. v. Milam, supra; Quinn v. Webb Wheel Products, 334 Ark. 573, 976 S.W.2d 386 (1998); Dillon v. Twin City Bank, supra.

This court has recognized two exceptions to the mootness doctrine, one of which involves issues that are capable of repetition, yet evade review. See, e.g., Quinn v. Webb Wheel Products, supra.; Robinson v. Arkansas State Game & Fish Comm’n, 263 Ark. 462, 565 S.W.2d 433 (1978) (authority of courts to enter temporary orders despite expiration of the particular orders being litigated); Cummings v. Washington County Election Comm’n, 291 Ark. 354, 724 S.W.2d 486 (1987) (addressing question of candidate’s eligibility to run for office despite completion of election cycle).

The other mootness exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. This exception arose early in our caselaw and continues today. See, e.g., Forrest Constr. Inc. v. Milam, supra (holding that an issue is a matter of substantial public importance where it involves the use of property in a large subdivision and involves the rights of a large number of people); Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990) (holding that the question of the constitutionality of Arkansas’s judgment enforcement statutes was a substantial question that merited review despite mootness of actual controversy); Owens v. Taylor, 299 Ark. 373, 772 S.W.2d 596 (1989) (holding a substantial issue remained, despite mootness, as to whether conditions could be imposed on a defendant’s release from State Hospital when he was scheduled to stand trial); Cain v. Carl-Lee, 171 Ark. 155, 283 S.W. 365 (1926) (following the rule in Wilson); Wilson v. Thompson, 56 Ark. 110, 19 S.W. 321 (1892) (addressing issues despite mootness because “the cause was of practical importance”).

There is no doubt that the City’s adoption of its new policy on October 23, 2000, rendered this lawsuit moot. Cotten sought in his complaint only prospective relief in the form of an injunction against future rental of heavy equipment by the City for private purposes. When the City changed its policy to prohibit the practice which Cotten complained of, this eviscerated Cotten’s cause of action. Under the new policy, City equipment cannot be used at all unless it is for the benefit of the City. In short, Cotten appears to have obtained precisely the result he requested from the court. The case is moot, and the trial court was correct in dismissing it as such.

Cotten urges, in effect, that the City could well reinstate its rental policy and thus the matter is not moot but capable of repetition. Cotten’s fears, however, are speculative, and this court will not speculate on future eventualities or give advisory opinions regarding such. Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997); Stair v. Phillips, 315 Ark. 429, 867 S.W.2d 453 (1993). Moreover, this court presumes that public officials will act lawfully and sincerely in good faith in carrying out their duties and will not engage in any subterfuge that would give rise to Cotten’s fears. Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977); French v. State, 256 Ark. 298, 506 S.W.2d 820 (1974). Accordingly, we do not view this case as one falling within the exception of capable of repetition, yet evading review. Nor do we consider this case to be one of substantial public interest which would cause us to invoke the second exception to our mootness doctrine. This court has previously spoken on the issue of using government equipment for private purposes and concluded that such conduct constitutes an illegal exaction under Ark. Const, art. 16, § 13. See Needham v. Garner, 233 Ark. 1006, 350 S.W.2d 194 (1961).

We turn then to the issue of whether Cotten is entitled to attorney’s fees. We hold that he is not. Arkansas follows the American Rule that attorney’s fees are not chargeable as costs in litigation unless permitted by statute. See Love v. Smackover Sch. Dist., 329 Ark. 4, 946 S.W.2d 676 (1997); City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986). Our Tax Code does allow recovery of attorney’s fees in illegal-exaction cases when a refund or return of taxpayer moneys is ordered by the court. See Ark. Code Ann. § 26-35-902(a) (Repl. 1997). Yet, there is no similar provision for a suit in which strictly injunctive relief is sought, and this court has specifically held on several occasions that attorney’s fees are not allowed in illegal-exaction cases where no refund is sought. See Hamilton v. Villines, 323 Ark. 492, 915 S.W.2d 271 (1996) (citing Munson v. Abbott, 269 Ark. 441, 602 S.W.2d 649 (1980)); City of Hot Springs v. Creviston, supra. Indeed, in Hamilton v. Villines, supra, we alerted the General Assembly to the fact that it might wish to extend the language in § 26-35-902(a). As of this writing, it has not done so.

As a final point, we note that the trial court dismissed this case without reference to whether it was with or without prejudice. We have held that ordinarily such dismissals are without prejudice. Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993); Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). However, should a plaintiff elect to appeal rather than plead further, the option to plead further is waived in the event of affirmance by the appellate court. Hunt v. Riley, 322 Ark. 353, 909 S.W.2d 329 (1995); Hollingsworth v. First Nat’l Bank & Trust Co., supra. Because we affirm, the dismissal is with prejudice.

Affirmed.

Glaze and Hannah, JJ., concur.

Tom Glaze, Justice,

concurring. I concur. This case is easily summarized. The City of Haskell was illegally utilizing its equipment on privately owned property for other than city purposes. Brad Cotten lodged an objection to this practice, which led the Mayor of Haskell to modify its practice by adopting a written policy to allow private individuals to use the city’s equipment for private purposes but at specified hourly rates. Cotten continued his objection to these practices, but to no avail. As a consequence, he filed this lawsuit against the city officials, alleging the described private use of city equipment was an illegal exaction which should be enjoined. He further requested attorney’s fees for having to bring this litigation. The city answered, denying Cotten’s assertion that an illegal exaction existed or that Cotten was entitled to attorney’s fees.

Twelve days after Cotten filed his suit, the city filed a motion to dismiss, stating it had rescinded its policies allowing city equipment to be used on private property; the city affirmatively claimed such equipment would no longer be used for anything other than for the benefit of the city. The city also asserted Cotten’s suit was now moot and no statutory authority existed that would allow Cotten to be awarded attorney’s fees. The chancellor agreed with the city on both issues, and our court agrees on appeal.

I agree with the majority opinion on the mootness issue; however, the majority opinion brushes aside the attorney’s fee issue too easily, especially since at oral argument, Cotten’s counsel was asked whether the decision in Lake View Sch. Dist. No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000), would allow attorney’s fees in a case like the one now before us.

Until the Lake View holding, this court allowed attorney’s fees only in two situations: (1) when attorney’s fees are authorized by statute (commonly labeled the American Rule), and (2) in illegal-exaction cases where a class action is sought and a common fund is established. In the present case, neither situation exists. However, Cotten argues he did not seek a common fund because no illegal fees or taxes would be refunded. Instead, taxpayers merely benefit-ted because Cotten’s action was the reason the city terminated its illegal use of city equipment. In fact, the city eventually conceded the practice was illegal, and for that reason, Cotten submits he should not have to bear the sole cost of the litigation which stopped this illegal practice.

In the Lake View decision, this court upheld the award of attorney’s fees in yet a third situation, and in doing so, relied on Millsap v. Lane, 288 Ark. 439, 706 S.W.2d 378 (1986). In Millsap, the court allowed attorney’s fees when no statute authorized such fees; nor was an illegal-exaction action against a governmental entity at issue. Rather, the Millsap court allowed attorney’s fees to the plaintiffs in an action involving private shareholders and their business corporation which had received some economic benefit as a result of the litigation. Our court in Lake View employed the “economic benefit” concept announced in Millsap and held attorney’s fees should be allowed the Lake View School District No. 25 because there was no question but that a substantial economic benefit had accrued to the poorer school districts as a direct result of Lake View’s efforts. Lake View Sch. Dist. No. 25, 340 Ark at 495. I dissented, being unconvinced that Millsap should be extended to illegal-exaction cases where no class action and common fond had been established. Id. at 501-504.

It is my continued opinion that an act of the General Assembly (or constitutional provision) must be enacted in order for attorney’s fees to be authorized or awarded in cases like the one before us. We said as much in Hamilton v. Villines, 323 Ark. 492, 915 S.W.2d 271 (1996) (the General Assembly may wish to extend the language of Ark. Code Ann. § 26-35-902 (Supp. 1995)). Certainly, a case can be made for allowing attorney’s fees where a citizen’s action has been brought to terminate illegal practices by governmental officials; however, there are opposing considerations as well. For example, in a case like the one before us, authorizing such fees undoubtedly will be monetarily detrimental to the taxpayers, since any payment of attorney’s fees will necessarily be paid by the taxpayers, who purportedly are said to benefit by the citizen’s (here Cotten’s) action.

For the reasons discussed, I agree there is no legal basis upon which attorney’s fees can be awarded Cotten. Cotten will have to be content with the unremunerated satisfaction that he was responsible for ending the city’s illegal use of its equipment.

HANNAH, J., joins this concurring opinion.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Debra WILBURN v. STATE of Arkansas
    CR 01-357
    56 S.W.3d 365
    Supreme Court of Arkansas
    Opinion delivered September 27, 2001

      John W. Yeargan, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Debra Wilburn advances one point in her appeal from a judgment of conviction for solicitation to commit capital murder and from her sentence of fifteen years. She contends that the circuit court erred in denying her motion for substitution of counsel. We hold that her appeal has no merit, and we affirm.

In June 1999, Roy Lamproe and Eddie Sterling contacted the Van Burén Police Department and reported that Debra Wilburn had solicited them to kill a man who was the victim of an aggravated robbery allegedly committed by Wilburn’s daughter, Angel Wilburn, for $1,500. After being wired with surveillance equipment, Lamproe and Sterling met with Wilburn at her place of employment, The Branding Iron in Van Burén, where she worked as a bartender. Wilburn told them she wanted to meet at the Shamrock Liquor Store in Fort Smith after she got off work. At that meeting which occurred around 1:00 a.m., Wilburn gave Lamproe and Sterling a guitar as “good faith money.” They then drove back to the Van Burén Travel Center, where Wilburn gave the two men a list of names of other witnesses in her daughter’s case and requested that they write threatening letters to them. She also told them that there was only a week to commit the murder and that they should make it look like a “dope deal.” She further directed them to wear wigs and to use shoe polish on their skin to make them look black. Later that day at a meeting at The Branding Iron, she gave them a bag containing a wig and $5.00 for bullets. She also gave them her telephone number and told them to call her when the job was done. At the direction of the Van Burén police officers, the two men called Wilburn at 11:20 p.m. and told her that the murder had been committed. She told Lamproe that after he left town, she would wire him the $1,500 pursuant to their agreement. After that telephone conversation, Van Burén police officers arrested Wilburn at The Branding Iron.

On June 8, 1999, Wilburn was charged with conspiracy to commit capital murder. The State later filed an amended information, charging Wilburn with solicitation to commit capital murder. Prior to trial, her attorney, John Van Winkle, moved to withdraw as counsel because Wilburn had refused to stay in contact and to cooperate with counsel. The motion was granted, and public defender Robert C. Marquette was appointed as Wilburn’s attorney.

On September 1, 2000, Marquette moved for appointment of substitute counsel. In that motion, he claimed that Wilburn and Lamproe, the State’s key prospective witness, were Public Defender clients “who have exchanged confidential information -with this attorney.” That same day, Marquette wrote to the circuit court and advised the court that Lamproe was a client who had revealed certain information to him which could be used against Lamproe at Wilburn’s trial. He added that he had spoken with the prosecutors in the case and they agreed that Marquette had a conflict of interest. Hence, they did not oppose the motion.

On September 11, 2000, the circuit court held a hearing on the motion to substitute and questioned Lamproe, whom Marquette had represented in two previous cases. The court determined that Marquette had not discussed Wilburn’s case with Lamproe and further observed that, in any event, Marquette could only question Lamproe on cross-examination regarding matters that were of public record. The circuit court then denied the motion to substitute. Marquette renewed the motion at the conclusion of the state’s case, the conclusion of the defendant’s case, and at the close of all the evidence. The motions were denied.

The gravamen of Wilburn’s appeal is that Marquette was limited in cross-examining Lamproe because he could not delve into certain confidential information learned in his earlier representation of Lamproe. This information, according to Wilburn, could have been used to attack Lamproe’s credibility. Thus, she contends, she was denied the right to confront the State’s key witness against her and was denied due process.

There is no previous Arkansas case directly on point where a defense attorney seeks to disqualify himself from representing a criminal defendant due to a conflict of interest caused by the prior representation of a state witness. We do have authority, however, for the situation where a party, opposing counsel, or the circuit court seeks to disqualify an attorney because of a conflict of interest. In Craig v. Carrigo, 340 Ark. 624, 633, 12 S.W.3d 229, 235 (2000), we set out the standard of review for the disqualification of trial counsel:

We review a trial court’s decision to disqualify an attorney under the abuse-of-discretion standard. Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1993); Berry v. Saline Memorial Hosp., 322 Ark. 182, 907 S.W.2d 736 (1995). An abuse of discretion may be manifested by an erroneous interpretation of the law. Seeco, supra. We have held that the Model Rules of Professional Conduct are applicable in disqualification proceedings. Berry, supra; See also, Saline Memorial Hosp. v. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995); Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998).

Although it is true that the cases enunciating this standard are civil, we see no reason why the same standard should not apply in the criminal context.

The United States Supreme Court has held that where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest. See Wood v. Georgia, 450 U.S. 261 (1981). In United States v. Agosto, 675 F.2d 965 (8th Cir. 1982) (abrogated on other grounds by Flanagan v. United States, 465 U.S. 259 (1984)), the Eighth Circuit Court of Appeals reviewed an interlocutory appeal from a pretrial order disqualifying several defense attorneys due to a . conflict of interest. In its analysis, the Eighth Circuit defined “successive representation” as a situation “where an attorney representing a defendant has previously represented codefendants or trial witnesses.” Id. at 970. According to the court, there are two types of conflicts that may arise in these cases: (1) an attorney may be tempted to use confidential information to impeach a former client, or he may fail to conduct a rigorous cross-examination for fear of misusing confidential information, where privileged information is obtained that might be relevant to cross-examination; and (2) an attorney’s pecuniary interest in possible future business may cause him to make trial decisions with a goal of avoiding prejudice to the client he formerly represented. See id. at 971. Wilburn does not cite us to United States v. Agosto, supra, but the problem of successive representation appears to be the issue in the case at hand.

At the pretrial hearing on Marquette’s motion to substitute, this colloquy transpired between Marquette and the court:

MARQUETTE: Judge, the reason for the letter was I had represented Roy [Lamproe] before. Roy, I don’t even know if you understand what all is going on here, but I’d represented Roy before and during the process of my representing Roy, he and I have talked and discussed different things . . .
THE COURT: . . . you haven’t talked about this case, though?
MARQUETTE: No, sir, not about this case, but the problem would be and one of my concerns would be if there was something Roy had told me in confidence expecting an attorney/client privilege that I would . . .
The COURT: . . . well, you wouldn’t have anything, Bob, if you haven’t talked to him about this case. What would you have in confidence with him about this case?
MARQUETTE: If I learned things that he had done in his fife, or things regarding his character. And I use that to attack his credibility as a witness, that’s what I’m concerned with. But, no, as far as discussing this case . . .
THE Court: ... I think you can only ask him things that are public record, felonies — conviction of felonies, you’d be permitted to do that, that wouldn’t be in confidence. The Court’s going to deny your motion, you need to get ready to try this case.

Although Marquette properly brought the possibility of a conflict of interest to the circuit court’s attention, no real or concrete conflict of interest was ever demonstrated to that court; nor was any real impediment to his representation of Wilburn. In his motion to substitute, Marquette merely stated that both Wilburn and Lamproe were public defender clients who had exchanged confidential information with him. In his letter to the circuit court, Marquette again stated that the “problem is that the individual in question [Lamproe] is a client and has revealed certain information to me which could be used against him at trial[.]” Finally, at the hearing on the motion, Marquette stated that “the problem would be and one of my concerns would be if there was something Roy had told me in confidence expecting an attorney/client privilege that I would. . . .” (Emphasis added.) When questioned by the court as to specifics, Marquette merely replied, “If I learned things that he had done in his fife, or things regarding his character. And I use that to attack his credibility as a witness, that’s what I’m concerned with.”

The cornerstone principle in all conflict cases is whether prejudice will result to the client as a result of the conflict of interest. See Sheridan v. State, 331 Ark. 1, 959 S.W.2d 29 (1998). That prejudice must be real and have some demonstrable detrimental effect on the client and not merely be abstract or theoretical. See Simmons v. Lockhart, 915 F.2d 372 (8th Cir. 1990); Sheridan v. State, supra. In the case before us there is no demonstrable detrimental effect shown. Rather, we are left to rank speculation about whether Wilburn’s counsel was hampered or impaired in any respect by the prior representation of Lamproe. Certainly, he never stopped the trial to advise the circuit court that his cross-examination of Lamproe was impeded. And a review of the record of Marquette’s cross-examination of Lamproe shows that he did a thorough and exact job.

As a final point, we are not convinced that Model Rules of Professional Conduct 1.7 and 1.9 require Marquette’s disqualification as Wilburn contends. The court determined that Lamproe had told Marquette nothing about the Wilburn matter and that Marquette, as would be the case with any other defense counsel, could cross-examine Lamproe on matters of public record. We have held that the Model Rules of Professional Conduct are applicable to the issue of whether counsel should be disqualified. See Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998). However, we are at a loss to see the pertinence of the Model Rules or the Norman case, where Marquette’s representation of Lamproe, and the character information allegedly obtained, had nothing to do with Wilburn’s case. In short, Wilburn is simply not convincing as to why this alleged confidential information should equate to automatic disqualification.

We are cognizant of the fact that Wilburn was not privy to what bothered her counsel about his prior representation of Lampree because the information was confidential. Nonetheless, we are convinced that Marquette had to show more to the circuit court to support disqualification. That was not done, and this court will not presume that Wilburn was prejudiced as a result. See Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995) (stating that the court does not presume prejudice when error is alleged). We cannot say that under these facts the circuit court abused its discretion in failing to disqualify Marquette.

Affirmed.


author: Annabelle Clinton Imber, Justice.

text:
    Isaac COLBERT v. STATE of Arkansas
    CR 01-420
    55 S.W.3d 268
    Supreme Court of Arkansas
    Opinion delivered September 27, 2001
    [Petition for rehearing denied October 25, 2001.]

      Law Offices of Charles M. Kester, PLC, by: Charles M. Kester, for appellant.

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

In 1999, Isaac A. Colbert was found guilty of possession of a controlled substance with intent to deliver and simultaneous possession of drugs and a firearm. He was sentenced to two consecutive terms of life imprisonment in the Arkansas Department of Correction. In a previous appeal, Mr. Colbert challenged the intent-to-deliver conviction alleging that the search of his car had been unconstitutional, and the evidence from that search should have been suppressed. We agreed and reversed and remanded. Colbert v. State, 340 Ark. 657, 13 S.W.3d 162 (2000) (Colbert I). On remand, the trial court ruled that a new trial was not required on the simultaneous-possession conviction because it had not been challenged on appeal; and, therefore, the conviction on that count had not been reversed. Mr. Colbert now appeals that ruling by the trial court and argues that when this court reversed and remanded in Colbert I, we reversed the simultaneous-possession conviction as well as the intent-to-deliver conviction. We disagree and affirm.

The facts in Mr. Colbert’s original trial were set out in detail in the first appeal and need not be repeated in their entirety here. Colbert I, 340 Ark. 657, 12 S.W.3d 162. On March 18, 1999, a search warrant was issued to search Mr. Colbert’s house based on information from a confidential informant who had purchased crack cocaine at Mr. Colbert’s house in Prescott, Arkansas. Law enforcement officers went to his house to execute the warrant. However, when they drove up to his house, they saw that his car was not there, so they decided to drive around Prescott and look for Mr. Colbert’s car. Eventually, the officers spotted his car, pulled him over, and placed him under arrest after finding cocaine and a crack pipe in his car. The officers then executed the search warrant at his house and recovered $110.00, a .22 pistol, a .22 rifle with scope, a 12-gauge shotgun, approximately 45 rounds of .22 ammunition, and a paper towel containing two rocks of cocaine totaling .576 grams in the butter tray of the refrigerator. Mr. Colbert was charged with possession of a controlled substance with intent to deliver and with simultaneous possession of drugs and a firearm. After the trial court denied Mr. Colbert’s motion to suppress the evidence seized from his car, the case proceeded to trial. Mr. Colbert was convicted and sentenced to fife in prison on each of the two counts.

In Colbert I, Mr. Colbert appealed his conviction arguing that the trial court erred in denying his motion to suppress the evidence seized from his vehicle. 340 Ark. 657, 13 S.W.3d 162. We reversed and remanded because the initial stop of his car was constitutionally invalid and because the trial court’s admission of the cocaine seized from his car was not harmless error. Id. We also noted in Colbert I that Mr. Colbert did not “challenge the execution of the search warrant at his home or his conviction on the simultaneous possession charge.” 340 Ark. at 660, 13 S.W.3d at 164. In fact, he would have been barred from raising a challenge to the search warrant on appeal because he failed to raise that issue before the trial court. If an issue is not raised at trial, it will be waived on appeal even if it involves a constitutional argument. Friar v. State, 313 Ark. 253, 854 S.W.2d 64 (1993).

On remand, the trial court scheduled the case for a new trial. During pretrial hearings, however, the State moved to nolle prosequi the charge of possession of a controlled substance with intent to deliver. The trial court granted the State’s motion and then ruled that a new trial was not necessary on the simultaneous-possession charge because Mr. Colbert had not challenged his conviction on that charge in the first appeal. Furthermore, the trial court ruled that the life sentence imposed for simultaneous possession of drugs and a firearm was a valid sentence.

In the instant appeal, Mr. Colbert contends that the trial court’s ruling that a new trial was not necessary violated his constitutional right to an impartial trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 2, section 10, of the Arkansas Constitution. Furthermore, he suggests that when this court “reverses and remands” without further instructions, the reversal applies to the entire case. In support of this argüment, he cites a long line of civil cases for the proposition that “[w]hen a judgment is reversed and remanded for a new trial, the case stands as if no action at all had been taken by the trial court.” Palmer v. Carden, 239 Ark. 336, 338-39, 389 S.W.2d 428, 430 (1965). See also, Lowe v. Morrison, 270 Ark. 668, 606 S.W.2d 659 (1980); Clark v. Arkansas Democrat Co., 242 Ark. 479, 413 S.W.2d 629 (1967); Holt v. Gregory, 222 Ark. 610, 260 S.W.2d 459 (1953). Mr. Colbert, however, fails to recognize that such a proposition is clearly inapposite in a criminal case where the defendant does not object to the admission of evidence before the trial court, and, as a result, the defendant is procedurally barred from arguing on appeal for the reversal of the conviction supported by that evidence.

In his trial, Mr. Colbert did not object to the validity of the search of his home or to the admission of evidence seized from that search. The evidence seized from the search of his home supported his conviction for simultaneous possession of drugs and a firearm. Without an objection to that evidence below, he did not preserve for appeal a challenge to the admissibility of the drugs and guns seized at his home and his resulting conviction for simultaneous possession. Because Mr. Colbert could not raise a challenge to his simultaneous-possession conviction on appeal, the reversal in Colbert I applied only to the conviction for possession of a controlled substance with intent to deliver.

Rule 4-3 (h) Compliance

The transcript of the record in this case has been reviewed in accordance with Ark. Sup. Ct. R. 4-3 (h) which requires, in cases in which there is a sentence to life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a) (1987). None has been found.

Affirmed.

       The State asserts in its brief that the law-of-the-case doctrine should govern this appeal. We disagree. The doctrine precludes the trial court on remand from considering and deciding questions that were explicitly or implicitly determined on appeal. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999); Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). As previously mentioned, Mr. Colbert was procedurally barred in his first appeal from challenging the admission of evidence that supported his simultaneous-possession conviction. Thus, because that issue was not before this court in the first appeal, it was not expressly or implicitly determined in Colbert I.


author: Jim Hannah, Justice.

text:
    Richard Allen DUCK v. STATE of Arkansas
    CR 01-458
    61 S.W.3d 135
    Supreme Court of Arkansas
    [Substituted opinion delivered November 8, 2001]

      Paul Petty and Wilson & Associates, P.L.L.C., for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Jim Hannah, Justice.

Appellant Richard Allen Duck appeals his conviction on drug charges from the Prairie County Southern District Circuit Court. Duck entered a conditional guilty plea pursuant to Ark. R. Crim. P. 24.3(b), and was sentenced to ten years of imprisonment, with four years suspended. Duck challenges the denial of his motion to suppress evidence on the grounds that subjecting a package to a “canine sniff” on the bumper of a UPS truck violated the Fourth Amendment of the United States Constitution and the Arkansas Constitution. We do not reach this issue because Duck has failed to show he had a legitimate expectation of privacy in the package at the time of the complained of search and seizure. The decision of the trial court is affirmed.

Facts

In March 1999, Prairie County Sheriff Randy Raper received a tip by a phone call that Duck was engaged in illegal drug activities. Sheriff Raper never identified the caller, but testified he knew who it was. The caller told the sheriff that he knew Duck was receiving drugs through UPS delivery and further stated that the packages containing drugs were being addressed to one of several names. The caller identified the names under which the shipments were received, including that of “Ricky Dutch,” noting all would be addressed to Duck’s home address and have a California return address. The sheriff then called Mark Hagee, the security representative at UPS, who checked with the driver and then confirmed that “several” packages showing a California return address had indeed been delivered to Duck’s home. Through testimony, it was established that “several,” in this case, meant at least two. Hagee further told the sheriff that the packages had been sent as overnight deliveries. The sheriff then confirmed this same information with the UPS truck driver. On July 1, 1999, Hagee called the sheriff and notified him that a package meeting the above-noted description would be delivered to Duck that day. It was addressed to “Ricky Dutch.”

Sheriff Raper asked UPS for permission to examine the package but was refused. He also asked to put a dog on the truck to do a “canine sniff” for drugs. This request was denied. Hagee told Sheriff Raper that he could either let the package be delivered or come and seize it. Nonetheless, at the sheriff’s direction, Deputy Randy Munnerlyn intercepted the UPS truck at the police department in Hazen and spoke to the driver. Raper testified he only wanted to be sure the package was on the truck. He further testified that it was Deputy Munnerlyn’s idea to take the next step of asking the driver to take the package out of the truck. Deputy Munnerlyn asked the driver to examine the package.

The driver of the UPS truck was unsure of what he should do. He had had multiple conversations with Hagee about what he should do, but agreed, at Deputy Munnerlyn’s request, to drive to an isolated location south of Hazen where he would place the package on the truck bumper. This was done. The driver and Deputy Munnerlyn had to wait for another officer to arrive with the dog. Upon arrival, the dog “alerted” on the package. The package was then placed back in the truck by the driver and taken to its delivery at Duck’s address. As a consequence of the stop and “canine sniff” the package was delivered an hour and twenty minutes later than that required under the one-day delivery guarantee. Deputy Munnerlyn followed. Sheriff Raper was not present at this time. He was obtaining a search warrant for Duck’s home. He later arrived, and he and Deputy Munnerlyn waited. Duck pulled in his driveway, got out of his vehicle, and picked up the package. Deputy Munnerlyn and the sheriff moved in and arrested Duck. The house was searched, but no contraband was found.

Duck made a conditional plea of guilty under Ark. R. Crim. P. 24.3(b), and a suppression hearing was held to determine if the package would be suppressed. Sheriff Raper testified at the hearing that he recognized the voice of the caller but declined to identify the person. He admitted he had not used this person as an informant before, and thus, the person had no history of reliability. Deputy Munnerlyn testified, as did the officer handling the dog. Mr. Hagee also testified. The motion to suppress was denied, the court finding there was no basis for the search warrant on the house, but that the detention and canine sniff were not illegal. Duck appealed.

Standing

The issue we must first address in a Fourth Amendment analysis is whether Duck had a legitimate expectation of privacy in the subject package. Rakas v. Illinois, 439 U.S. 128 (1978). Duck was not present when the package was subjected to the canine sniff. To that point, the package had never been in his possession. Further, it was addressed to ‘Ricky Dutch’ rather than Richard Duck. He has failed to show he was the addressee. Duck nonetheless asserts his Fourth Amendment rights were violated when the package was subjected to a canine sniff while still in the possession of UPS.

Before we may consider the legality of the search and seizure at the UPS truck, we must determine if Duck has Fourth Amendment rights that will allow him to challenge the search and seizure. Fourth Amendment rights are personal in nature and may not be asserted vicariously. Rakas, supra. A person who is aggrieved by an illegal search and seizure only through introduction of evidence secured by the search of a third person’s premises or property has not had any of his Fourth Amendment rights violated. Alderman v. United States, 394 U.S. 165 (1969). To assert Fourth .Amendment rights, one must have a legitimate expectation of privacy at stake. Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999).

Appellant was arrested upon picking up the package off the porch. Under current law, mere possession of the package does not confer “automatic standing” upon Appellant to raise a Fourth Amendment challenge. United States v. Lewis, 738 F.2d 916, 919 (8th Cir. 1984) (citing United States v. Salvucci, 448 U.S. 83, 92-93 (1980)). He must, therefore, otherwise have a legitimate expectation of privacy in the package at the time of the search and seizure at the UPS truck.

Duck bore the burden of showing he had a legitimate expectation of privacy in the package because he moved to suppress the evidence from the search and seizure. The proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights have been violated. McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996). The right to invoke the Fourth Amendment exclusionary rule depends on the existence of the defendant’s substantive Fourth Amendment rights. Mazepink v State, 336 Ark. 171, 987 S.W.2d 648 (1999); State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986) (citing Rakas v. Illinois, 439 U.S. 128 (1978)). Thus, we must determine:

Whether the challenged search and seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.

Rakas, 439 U.S. at 140. In Mazepink, supra, this court stated that evidence under the Fourth Amendment should not be excluded unless the court finds that an unlawful search or seizure violated the defendant’s own constitutional rights; his rights are violated only if the challenged conduct invaded his legitimate expectation of privacy, rather than that of a third party. Hamzy, supra (citing United States v. Payner, 447 U.S. 727 (1980); Rakas, supra.))

At issue is a UPS package. The law is clear that under the Constitution of the United States, the Fourth Amendment provides protection of letters and other sealed packages because they are in the general class of effects in which the public at large has a legitimate expectation of privacy, and that warrantless searches of such items are presumptively unreasonable. United States v. Jacobsen, 466 U.S. 109 (1984). This is so even when letters and sealed packages are sent by private carrier. Id.

[6~9] However, although letters and sealed packages enjoy such protection in relation to the sender and the addressed receiver while in the possession of a carrier, this does not mean that just any ultimate recipient necessarily enjoys such protection. United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992). The affidavit for warrant of arrest states that the package intercepted and subjected to a “canine sniff’ was addressed to Ricky Dutch. That is not the Appellant’s name. The anonymous caller told Sheriff Raper that packages of drugs had been sent to, among other names, Ricky Dutch. The only evidence in the record is the noted affidavit and testimony of Sheriff Raper, Deputy Munnerlyn, and Mr. Hagee. Neither the package at issue nor a photograph of the package was submitted for consideration and proof. Although Appellant asserts in his brief that the package was addressed to him, he offered no such proof. He has failed to show the required personal expectation of privacy necessary to assert the claim of illegal search and seizure occurring prior to delivery to his home. Where the package is addressed to someone other than the person challenging the search and seizure, there cannot be the required expectation of privacy. United States v. Daniel, 982 F.2d 146, (5th Cir. 1993). We also note that, at best, the name on the package was an alias involved in a criminal scheme. A defendant does not have a legitimate expectation of privacy in a package addressed to an alias name where that alias name is part of a criminal scheme. Daniels, supra; People v. Lombardo, 549 N.W.2d 596 (Mich. App. 1996).

“A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Rakas, 439 U.S. at 133. We hold that because Appellant has failed to provide proof that he was the addressee on the subject package, he lacked the expectation of privacy required in the package to assert a Fourth Amendment challenge to the actions of the Prairie County Sheriff s Department. Therefore, the trial court’s decision declining to suppress the package is hereby affirmed. Because Duck had no legitimate expectation of privacy in the package, we need not address the issue of whether examination of the package while in the possession of UPS violated the Fourth Amendment.

Affirmed.


author: Per Curiam.

text:
    Vera ARNOLD v. STATE of Arkansas
    CR 01-277
    55 S.W.3d 755
    Supreme Court of Arkansas
    Opinion delivered September 27, 2001

      Wilson & Associates, P.L.L.C., by: Patrick J. Benca, for appellant.
    No response.
   Per Curiam.

Petitioner Vera Arnold retained Attorney Patrick J. Benca on July 31, 2001, to represent her in a hearing in Pulaski County Circuit Court, Fifth Division. The trial court held this evidentiary hearing on July 31, 2001, and the court entered Findings of Fact and Conclusions of Law on August 3, 2001.

On August 16, 2001, Attorney Benca filed with this court a motion to supplement the record, and on that same day, the trial court granted Benca’s motion to be relieved as counsel as he had fulfilled the duties for which he had contracted with Arnold. However, because Arnold’s motion to supplement the record was pending in this court, the Arkansas Supreme Court Clerk contacted Benca on August 21, 2001, advising him the he must enter his appearance here in order for the court to entertain Arnold’s motion to supplement the record. On August 27, 2001, Benca filed a motion to enter his appearance for the limited purpose of handling Arnold’s motion to supplement the record.

We hereby grant Attorney Benca’s motion to enter his appearance while this court considers Arnold’s motion to supplement the record and until the court has been provided the status of this appeal and the name of who, if anyone, will represent Arnold in this continuing matter.

Motion granted.


text:
    Donna CRUMP v. The Honorable Gayle K. FORD, Judge

    CR 01-924
    55 S.W.3d 295
    Supreme Court of Arkansas
    Opinion delivered September 27, 2001

      Orvin W Foster, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Per Curiam.

Petitioner Donna Crump seeks a writ of prohibition directed to the Honorable Gayle K. Ford of the Polk County Circuit Court to prevent a trial on a charge of driving while intoxicated (“DWI”) because of a speedy-trial violation. This court previously granted Crump’s motion to stay the circuit court proceedings, and we now grant her petition for a writ of prohibition.

The record reflects that Crump was convicted in the Polk County Municipal Court of DWI on March 24, 2000. She subsequently lodged the transcript of the municipal court proceedings with the circuit court of Polk County on April 5, 2000. Crump also filed a notice of appeal on March 30, 2000, but the certificate of service reflected that it was only sent to the municipal court, and not to the prosecuting attorney. No trial date was ever set, and on August 9, 2001, Crump filed a motion to dismiss based upon the State’s failure to conduct a speedy trial.

A hearing on the issue of speedy trial was held on August 15, 2001, wherein Crump contended that the State had violated Ark. R. Crim. P. 28.1 and 28.2, by failing to try her within twelve months from the date of the filing of her appeal. Crump also alleged that the State would be unable to show that any of the time that had lapsed was excludable, and thus, could no longer try her. The State argued that Crump’s failure to provide it with notice of her appeal tolled the running of time for speedy trial. The trial court denied Crump’s motion, finding that the intent of the lower court rule regarding appeals is not to allow a defendant to file an appeal without telling anyone and then request a dismissal under the speedy-trial rule.

Crump now seeks a writ of prohibition to prevent her prosecution in circuit court on the DWI charge. In response to Crump’s petition, the State argues that Crump has failed to show that a writ is clearly warranted in this matter by failing to bring forth a record showing that the circuit court proceeding is wholly in excess of its jurisdiction. Specifically, the State asserts that the record submitted by Crump contains only the partial testimony of one of the two witnesses who testified at the hearing and does not include a record of the trial court’s oral ruling on the motion to dismiss. Our review of the record before us, however, reveals that there is a transcript of testimony from two witnesses, as well as a transcript of the circuit judge’s ruling from the bench.

Turning now to the merits of Crump’s claim, we first note that she has established a prima facie case of a speedy-trial violation by showing that over fifteen months passed between the filing of her appeal and the hearing on her motion to dismiss. The issue now is whether Crump’s failure to send the State notice of her appeal tolls the running of time under the speedy-trial rule.

The filing of an appeal to circuit court is governed by Arkansas Inferior Court Rule 9. See McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989). Under Rule 9, an appeal to the circuit court is taken by filing a record of the municipal court proceedings within thirty days of the entry of judgment. The filing of a notice of appeal is not required to perfect a municipal appeal. Id. The time for speedy trial begins to run from the day an appeal is filed in circuit court. Moreover, this court has held that the primary burden is on the court and the prosecutor to assure that a case is brought to trial in a timely fashion. Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991). A defendant has no duty to bring himself to trial, and the time for trial begins running without demand by the defendant. Id. Accordingly, in the instant matter, the time for speedy trial began to run on April 5, 2000, the day that Crump properly filed her appeal in circuit court. Because the State has failed to establish that there were any excludable periods, it is clear that Crump’s right to a speedy trial has been violated.

The writ of prohibition is granted.

       Prohibition lies to the circuit court and not to the individual judge. Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997). Accordingly, we will treat the petition as one against the circuit court. Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000).


text:
    Benjamin C. DUKE v. STATE of Arkansas
    CR 01-967
    55 S.W.3d 756
    Supreme Court of Arkansas
    Opinion delivered September 27, 2001

      Bryan B Christian, for appellant.
    No response.
   Per Curiam.

Appellant, Benjamin C. Duke, by and through his attorney, Bryan Christian, has filed a motion to file a belated appeal. His attorney accepts responsibility for the untimeliness in filing a notice of appeal and states in his motion that the notice of appeal was tendered late due to a mistake on his part. We find that such error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam); Jacks v. State, 344 Ark. 405, 39 S.W.3d 798 (2001).

Appellant’s motion is granted. A copy of this per curiam will be forwarded to the Committee on Professional Conduct.


text:
    Elizabeth STROM v. STATE of Arkansas
    CR 01-933
    55 S.W.3d 297
    Supreme Court of Arkansas
    Opinion delivered September 27, 2001

      Wilson & Associates, P.L.L.C., by: Patrick J. Benca, for appellant.
    No response.
   Per Curiam.

Elizabeth Strom seeks permission to file a belated appeal with this court. Strom was convicted of manufacturing a controlled substance and possession of drug paraphernalia on February 15, 2000; the judgment and conviction order was entered on February 28, 2000. On May 10, 2000, Strom filed a pro se petition for postconviction relief under Ark. R. Crim. P. 37. The trial court denied that petition on July 20, 2000.

On April 12, 2001, Strom filed a pro se motion to vacate or set aside her convictions, alleging that her trial attorney, Stuart Vess, had failed to file a direct appeal despite her request that he do so. The partial record that accompanied the present motion does not reflect that any further action was taken on that motion. On August 28, 2001, within the eighteen months provided by Ark. R. App. P. — Crim. 2(e), Strom filed her motion for belated appeal, in which she argues that she should be entitled to an appeal now because Vess did not file a notice of appeal after her conviction in February of 2000. Under Ark. R. App. P. — Crim. 16, trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the supreme court, unless permitted by the trial court or the supreme court to withdraw in the interest of justice or for other sufficient cause. See also Green v. State, 276 Ark. 313, 634 S.W.2d 140 (1982). In an affidavit attached to her motion, Strom contends that Vess refused to file a notice of appeal because he believed it to be futile and because she could not afford his fee for such representation. To date, Vess has not filed any kind of response to these allegations.

We remand this matter to the trial court for a hearing to settle the record in order to determine whether Strom had requested Vess to file a notice of appeal and whether Rule 16 has been complied with. The parties have thirty days from the date of this per curiam to settle these issues.


author: Tom Glaze, Justice.

text:
    Todd D. GAMMILL, M.D. v. PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY
    00-1354
    55 S.W.3d 763
    Supreme Court of Arkansas
    Opinion delivered October 4, 2001
    [Petition for rehearing denied November 15, 2001.]

      Law Office of Warren P. Gammill, by; Warren P. Gammill; Ralph C. Ohm; and Quattlebaum, Grooms, Tull & Burrow, PLLC, by: Leon Holmes, for appellant.

      Friday, Eldredge & Clark, by: John Dewey Watson and Robert S. Shafer, for appellee.

       Imber, J., not participating.

   Tom Glaze, Justice.

This case presents us with the opportunity to clarify the law as it pertains to “total disability” clauses in insurance policies. At issue is whether or not a cardiologist was totally disabled following an accident which left him unable to perform many of the duties of his occupation.

In 1994, Dr. Todd Gammill purchased two disability insurance policies — an individual disability income policy and business overhead expense policy — with Provident Life and Accident Insurance Company, listing his occupation on the application as “invasive cardiologist.” Under the terms of the policies, Provident was to make monthly benefit payments in the event Dr. Gammill should sustain total disability as defined in the policies. Prior to December of 1995, Dr. Gammill operated as a solo practitioner in the field of cardiology in Hot Springs. On December 22, 1995, he was severely injured in an automobile accident; within hours of that accident, he suffered a cerebral stroke as a result of the dissection of the left carotid artery in his neck. Following his stroke, he experienced significant impairment in motor skills and a marked loss of sensitivity in his right hand. He also aggravated an earlier back injury. As a result of his injuries, Dr. Gammill was forced to cease his practice of invasive cardiology, although, with the assistance of other doctors and medical personnel, he was able to maintain part of his noninvasive cardiology practice upon joining a cardiology clinic in Little Rock as a salaried employee.

After his accident, Dr. Gammill filed a claim with Provident, and beginning April 1, 1996, the insurance company began making payments under the total-disability provisions in the policy. However, in February of 1997, Provident requested that an independent neurologist examine Dr. Gammill. That doctor subsequently opined that Dr. GammilTs disability prevented him from performing any invasive cardiac procedures, and that his motor and sensory losses would be permanent. Despite this evaluation, Provident concluded that Dr! Gammill was continuing to work in his profession, and thus suspended payments of monthly total-disability benefits in April of 1997. However, after Dr. Gammill and his attorney contacted the insurer, total-disability payments were restored after about seven months, with Provident making payments under a reservation of rights.

In December of 1997, Provident filed a complaint for declaratory judgment, asserting that Dr. Gammill continued to perform the substantial and material duties of a cardiologist, and was thus not totally disabled under the terms of the policy. Dr. Gammill answered, and also filed a counterclaim against Provident, alleging breach of contract and bad faith and seeking payment of additional benefits, to which he alleged he was entitled under his policy. The parties filed cross-motions for summary judgment, and after a hearing, the trial court denied Dr. GammilTs motion, but granted Provident’s, ruling that Dr. Gammill was still capable of performing the “majority” of the duties as a cardiologist and was, in fact, working as a cardiologist.

On appeal, we must construe the phrase “total disability.” First, however, we must deal with the procedural issues raised by Provident. Citing Liberty Mutual Ins. Co. v. Thomas, 333 Ark. 655, 971 S.W.2d 244 (1998), the insurer asserts that we cannot review the denial of Dr. Gammill's motion for summary judgment. While ordinarily an order denying a motion for summary judgment is not an appealable order, such an order is appealable when it is combined with a dismissal on the merits that effectively terminates the proceeding below. See Ark. R. App. P. 2(a)(2); Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987); Karnes v. Trumbo, 28 Ark. App. 34, 770 S.W.2d 199 (1989). Here, the trial court granted Provident’s summary judgment, and at the same time, denied Dr. GammilTs, dismissing his claims with prejudice. In these circumstances, Dr. Gammill may properly appeal the trial court’s denial of his summary-judgment motion.

Provident also contends that Dr. GammilTs arguments regarding the ambiguity of the policy were not preserved because the trial court did not rule on them. We dismiss this suggestion as well, because the trial court, in ruling in favor of the insurer, concluded that the relevant policy terms were unambiguous. Had the court determined that the terms were ambiguous, it would have been required, as a matter of law, to rule in favor of the insured, Dr. Gammill, because there was no disputed extrinsic evidence offered in connection with the summary-judgment motions on the meaning of “total disability.” See, e.g., Farm Bureau Mutual Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000); Smith v. Prudential Prop. & Cas. Ins. Co., 340 Ark. 335, 10 S.W.3d 846 (2000). Therefore, we now turn to the issue presented on appeal: was Dr. Gammill totally disabled within the meaning of the policy issued by Provident?

Arkansas has grappled with the issue of what constitutes “total disability” since at least 1910. In that year, this court decided the case of Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S.W. 451 (1910), wherein it affirmed the trial court’s refusal to give the insurer’s requested instruction, which would have required the jury to find that, in order to be totally disabled, the insured would have to be “preventfed] . . . from the prosecution of any and every kind of business.” The court in Hawkins noted authorities that instructed that “[t]otal disability exists, although the insured is able to perform occasional acts, if he is unable to perform any substantial portion of the work connected with his occupation,” id. at 420, and concluded that to use the instruction proffered by the insurer would have meant that an insured could not recover “unless he sustained an injury that rendered him absolutely helpless both mentally and physically.” Id. at 421. Because such an interpretation of “total disability” would make it virtually impossible for an insured ever to recover, the court held in favor of the insured.

In the years since the Hawkins decision, this court has had numerous occasions to consider similar questions. In each case, the outcome has depended on the policy definition of “total disability,” but nevertheless, the general consensus of most of these cases was that an insurance policy requiring the insured to be “totally disabled” “[does] not require that he shall be absolutely helpless, but such a disability is meant which renders him unable to perform all the substantial and material acts of his business or the execution of them in the usual and customary way.” Aetna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 3S.W.2d 10 (1930); see also Mutual Lfe Ins. Co. of New York v. Dowdle, 189 Ark. 296, 71 S.W.2d 691 (1934) (disability is total if it prevents a party from performing acts necessary to the prosecution of his business in substantially the usual and customary manner).

A handful of cases from the 1940s appeared to take a more literal or restrictive approach to construing disability policies, holding that where an insured was unable to work at his occupation but could still perform “some work,” he would be precluded from recovering under the policy. See Metropolitan Lfe Ins. Co. v. Guinn, 199 Ark. 994, 136 S.W.2d 681 (1940); General American Lfe Ins. Co. v. Chatwell, 201 Ark. 1155, 148 S.W.2d 333 (1941). However, in Alexander v. Mutual Benefit Health & Accident Ass’n, 232 Ark. 336 S.W.2d 64 (1960), this court rejected the rationale of cases like Guinn and Chatwell, concluding that such reasoning was inconsistent with other cases that utilized a more liberal construction of disability policies. The Alexander court suggested the court’s decisions defining total disability were inconsistent and attempted to clarify them, stating that it was “unwilling to follow” those cases that strictly interpreted total disability clauses. Justice George Rose Smith, writing for the court, noted that the court has more “consistently refused to construe such clauses literally, for in that event the insured could recover only if he were continuously and helplessly confined to his bed.” Id. The court in Alexander held that the issue of total disability was a question of fact for the jury, and that substantial evidence existed to support the jury’s findings in that case.

Subsequent cases have consistently applied this liberal construction. For example, in Avemco Life Ins. Co. v. Luebker, 240 Ark. 349, 399 S.W.2d 265 (1966), this court rejected the insurance company’s contention that a jury instruction on total disability “should contemplate such a state of disability as to prevent the insured from performing all (rather than any) of the substantial and material acts necessary to the prosecution of his business.” Avemco, 240 Ark. at 351-51 (emphasis in original). Rather, in affirming the jury’s finding of total disability, the court noted that in more recent cases, it had approved jury instructions using the word “any” as appropriate under the more liberal rule to which the court adhered.

Similarly, in Continental Cas. Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971), the insured had a policy that was to pay him total-disability benefits “[w]hen, as a result of an injury . . . the insured is wholly and continuously disabled and prevented from performing each and every duty pertaining to his occupation.” Davidson, 250 Ark. at 37. The insurer had requested an instruction which would have had the jury find against the insured if it believed he was unable to perform “all the substantial and material acts necessary to the prosecution, in a customary manner, of any occupation or business for which [he was] reasonably qualified . . .” This court rejected Continental Casualty’s argument, stating as follows:

[I]t can be said that [the instruction is] ambiguous in that [it] would require [the insured] to be unable to perform all the substantial and material acts necessary to the prosecution, in a customary manner, of ány occupation or business for which the insured is reasonably qualified by reason of his education, training and experience. It is only necessary that he be unable to perform any of such acts in order to qualify for benefits. [Citing Avemco and Alexander.] We clearly expressed a preference for an instruction using the word “any” in Avemco. If the words “any of’ had been substituted for “all” in the offered instructions, appellant would have clearly been entitled to have one of them given.

Id. at 42-43.

The most recent discussion of the total-disability issue is found in Colonial Life & Accident Ins. Co. v. Whitley, 10 Ark. App. 304, 664 S.W.2d 488 (1984), in which the court of appeals summarized seventy years of cases on the subject. The Whitley court stated the controlling rule in these cases as follows:

[I]t is only necessary that it be shown that he is unable to perform any one or more of the substantial or material acts of his occupation in his usual and customary manner. Nor does the mere fact that one continues to work at his regular job establish a lack of disability. It is only a factor to be considered, and where an insured is able to continue his employment with the aid of his fellow employees or in some manner other than his usual and customary one, he may still be “disabled. ”

Whitley, 10 Ark. App. at 307-08 (citations omitted; emphasis added).

We agree that Whitley sets out the correct statement of the law, and the only question left to be decided is whether or not Dr. Gammill falls within Provident’s definition of “total disability.” “Total disability” was defined in Provident’s insurance policy to mean that “due to injuries or sickness you are not able to perform the substantial and material duties of your occupation.” Dr. Gammill’s occupation under the policy was listed as being a cardiologist.

We note at this point that the present case is before us in a different procedural posture than any of the other cases cited. In each of those instances, this court was reviewing a jury’s verdict to determine if the facts were sufficient to support a finding of total disability. Here, however, the appeal is from an order granting summary judgment, and the parties have agreed that the facts are undisputed.

As discussed above, we agree with Dr. Gammill that the controlling law here is whether he can perform any of the substantial and material acts of his occupation in his usual and customary manner. In this respect, Provident concedes that Dr. Gammill can no longer perform at least three substantial and material duties of his occupation as a cardiologist. First, Dr. Gammill cannot perform invasive procedures at all. Second, because of the injuries to his back, he cannot conduct hospital rounds on his patients. Finally, due to the loss of sensitivity in the fingers of his right hand, he cannot complete cardiovascular exams on his patients in his usual manner, because he cannot feel cardiac impulses in the patients’ chests. More specifically, Dr. Gammill’s injuries compelled him to close his solo practice in Hot Springs and to join a clinic in Little Rock so that other doctors can help him with his duties. He works one-half of the weekly hours he used to work, and he has fifty percent fewer patients. Provident does not controvert these factual matters, and indeed, in oral arguments before the trial court, agreed that it was “appropriate ... to accept the facts as recited” by Dr. Gammill in three affidavits. Thus, the facts contained in the record are sufficient to decide the case, and our task is simply to decide whether the trial court correcdy interpreted the law as applied to these undisputed facts. We conclude that it did not.

As noted above, the policy Provident issued to Dr. Gammill provided that he would be considered totally disabled if he were to become unable to perform “the substantial and material duties of [his] occupation.” This definition does not speak in terms of “any,” “all,” “some,” or “a majority” of the insured’s duties, and since different reasonable interpretations can be given this policy’s definition of total disability, the policy must be construed in favor of the insured, Dr. Gammill. See Smith, 340 Ark. 335, 10 S.W.3d 846. Even though Provident’s policy definition fails to specify or quantify what total disability means, the trial court attempted to do so by inserting the statement that Dr. Gammill could still perform “the majority” of his duties and was therefore not totally disabled. However, none of Arkansas’ cases lend themselves to such an interpretation. Simply stated, whether an insured can perform “the majority” of his duties is not the correct standard. Once again, the relevant inquiry is whether the insured is prevented from performing any of the substantial and material duties of his occupation, and as already stated above, Provident concedes that Dr. Gammill is prevented from performing three of the substantial and material duties necessary to being a cardiologist. Applying the correct standard, we conclude that the trial court erred in granting summary judgment in Provident’s favor. As the facts are settled and undisputed by either party, it is unnecessary for this court to remand this issue for further development.

We do, however, need to address Provident’s argument that Insurance Department Rule and Regulation 18 supplants this court’s caselaw and that it, rather than our holdings, controls the outcome of this case. Provident asserts that Regulation 18 provides that total disability may be defined by insurers as the inability to perform all of the substantial and material duties of one’s regular occupation. During oral arguments, Provident also argued that Regulation 18 states that “total disability” cannot mean one material and substantial duty. We disagree. That regulation, governing the kinds of policies that insurance companies may issue, provides merely that “[a] general definition of total disability shall not be more restrictive than one requiring the individual to be totally disabled from engaging in any employment or occupation for which he is or becomes qualified by reason of education, training or experience and not in fact engaged in any employment or occupation for wage or profit.” This language is not made a part of the contract between the insurer and the insured, and it merely sets a floor or a minimum standard for total-disability policies. It certainly does not supplant or replace this court’s holdings on the construction of insurance policies, and we reject Provident’s argument to the contrary.

Because we reverse and remand for entry of judgment with respect to Dr. Gammill’s first point on appeal, we find it unnecessary to address his second and third points regarding waiver and estoppel. However, Dr. Gammill also raises an argument regarding certain additional benefits under his policy. The so-called “UPDATE” provision in his policy provided that he would be able to receive automatic increases in the monthly benefit paid for total disability. The clause at issue stated as follows:

This provision provides automatic increases in the Monthly Benefit for Total Disability shown on Page 3. . . . An UPDATE increase will apply to a Period of Disability which starts after the effective date of the increase. It must qualify as a separate Period of Disability. If the premium for the policy is being waived on the effective date of the increase, the premium for the increase will also be waived. When you resume paying premiums for the policy, you must also start paying the premium for the increases.

The emphasized language is the portion to which both sides point in support of their argument. Dr. Gammill contends that he was entitled to UPDATE benefits because he was within a period of disability that started after the effective date of the increase. His period of disability started on December 22, 1995, and the effective date of the “First UPDATE Increase” was, according to the policy, July 18, 1995. Provident, on the other hand, contends that an UPDATE increase does not apply to an existing period of disability, and that upon disability, benefits begin to be paid — and stay — at the level of the most recent UPDATE increase because additional premiums for the higher UPDATE benefits have not been paid.

Thus, there is an ambiguity inherent in the UPDATE provision concerning the effective date of the increase and the question of whether an increase applies during a “period of disability.” Our general rule has been stated many times: “If. . . the policy language is ambiguous, and thus susceptible to more than one reasonable interpretation, we will construe the policy liberally in favor of the insured and strictly against the insurer.” Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). The exception to this general rule is where disputed extrinsic evidence is offered to establish what the ambiguous language means. See Smith, 340 Ark. 335, 10 S.W.3d 846. No disputed extrinsic evidence was offered in connection with the motions for summary judgment on the UPDATE provision. Applying the general rule, and construing the ambiguous term regarding the UPDATE benefits in Dr. Gammill’s favor, we conclude that he was entitled to those benefits under the terms of the policy.

The order of the trial court is reversed, and the matter remanded for entry of judgment in favor of Dr. Gammill.

       Invasive cardiology involves procedures whereby the cardiologist physically invades the patient’s body, either by breaking the skin or entering through the mouth; common invasive procedures include things such as catheterizations, angiograms, pacemaker insertions, angioplasty, coronary stinting, and other such procedures.

       All cases cited have dealt with the proper definition or use of total disability in the context of whether properjury instructions were given or whether a directed verdict should have been granted.

       Dr. Gammill cannot perform this latter task with his left hand, either, as he lost the tips of the first two fingers on that hand in an unrelated accident years ago.

       Provident asserts that Dr. Gammill did not preserve this point because the trial court did not rule on the issue. We disagree. When the trial court found that Dr. Gammill was not entitled to any benefits, it impHcidy found that he was not entitled to the UPDATE benefits.


author: Donald L. Corbin, Justice.

text:
    Joseph ROTHBAUM v. ARKANSAS LOCAL POLICE and FIRE RETIREMENT SYSTEM; and Arkansas Fire and Police Pension Review Board
    00-1256
    55 S.W.3d 760
    Supreme Court of Arkansas
    Opinion delivered October 4, 2001

      Robert A. Newcomb, for appellant.

      Richard L. Ramsay, for appellee.
   Donald L. Corbin, Justice.

Appellant Joseph Rothbaum appeals the order of the Pulaski County Circuit Court dismissing his complaint against Appellees Arkansas Local Police and Fire Retirement System (“LOPFI”) and Arkansas Fire and Police Pension Review Board. We accepted certification of this appeal from the Arkansas Court of Appeals; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(d)(1). We affirm.

Rothbaum is an employee of the Blytheville Police Department and, by virtue of his employment, is a member of LOPFI. LOPFI is administered by a Board of Trustees, appointed pursuant to Ark. Code Ann. § 24-10-201 (Repl. 1996). Pursuant to Ark. Code Ann. § 24-10-203(c) (Repl. 1996), the Board is granted the authority to formulate and adopt rules governing its proceedings. Under the Board’s rules for disability hearings, once a claim has been denied, a member has six months from the date of notice of the initial determination to request the Board to conduct a reconsideration hearing. Rothbaum filed a claim for disability benefits with the Board, but his claim was denied. He then requested a reconsideration hearing, but it was also denied on the basis that he failed to request a hearing within the six-month time period.

On March 28, 2000, Rothbaum filed a complaint in circuit court stating that the Board’s refusal to review his appeal was arbitrary, capricious, and an abuse of discretion. He sought a writ of mandamus compelling the Board to consider his appeal. In response, the Board filed a motion to dismiss pursuant to Ark. R. Civ. P. 12(b)(6), asserting that Rothbaum had failed to state a claim upon which relief could be granted. A hearing was held on June 13, 2000, in which the circuit court dismissed Rothbaum’s claim for lack of jurisdiction. Rothbaum filed a notice of appeal on June 20, 2000, designating the record of the June 13 hearing as the record on appeal.

For his sole point on appeal, Rothbaum argues that the circuit court erred in dismissing his complaint and asserts that this case should be remanded with instructions requiring a review of his application for disability benefits. Strictly adhering to the mandates of our rules governing preparation of the record and briefs filed with this court, we note that the record before us is insufficient to support a review of the merits of Rothbaum’s argument.

We have repeatedly emphasized that it is the appellant’s burden to bring up a record sufficient to demonstrate error for appellate review. Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000); Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999). Moreover, any issue outside the record will not be considered on appeal. Id. Here, the record contains neither the order of the Board denying Rothbaum’s request for a hearing, nor the final order of the circuit court dismissing his cause of action. The entire basis for this appeal is that the decision of the Board denying Rothbaum’s request for an appeal was arbitrary and capricious, and thus the trial court erred in refusing to grant the writ of mandamus. Without either of these orders in the record, there is nothing before us on which to rule.

Even if we were to ignore this critical defect and review those pleadings found in the record and properly abstracted, it is clear that the circuit court’s dismissal of Rothbaum’s claim was appropriate. We review a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff. Goff v. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000); Arkansas Tech Univ. v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Id.

With this standard in mind, we review Rothbaum’s complaint and conclude that he failed to state a claim entitling him to the relief of mandamus. This court has often held that mandamus is an appropriate remedy when a public officer is called upon to do a plain and specific duty, which is required by law and which requires no exercise of discretion or official judgment. Sargent v. Foster, 332 Ark. 608, 966 S.W.2d 263 (1998); Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995). This court has held that a writ of mandamus is a discretionary remedy that will be issued only when the petitioner has shown a clear and certain legal right to the relief sought and there is no other adequate remedy available. Id. Moreover, a mandamus action enforces the performance of a legal right after it has been established; its purpose is not to establish a right. Hicks v. Gravett, 312 Ark. 407, 849 S.W.2d 946 (1993); Springdale Bd. of Educ. v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987).

Here, Rothbaum seeks a writ of mandamus compelling the Board to review his claim for disability benefits, even though he admits that it was not filed within the time limits required under the Board’s rules. Thus, the very action that Rothbaum seeks to compel is a discretionary one. Because the time for requesting a hearing has passed, any decision by the Board to accept review of Rothbaum’s claim would be at the Board’s discretion. In other words, there is no legal requirement that the Board review any claim filed outside of the six-month period. Moreover, Rothbaum has not shown that he has a clear and certain legal right to a belated appeal, regardless of who was at fault. Accordingly, mandamus was not appropriate, and the trial court properly dismissed this action.

Affirmed.

GLAZE, J., concurs solely because appellant failed to make his record and also omitted the Board’s decision from the abstract of record.

       While the addendum to Rothbaum’s brief contains a photocopy of the circuit court’s order, the order does not appear in the record. According to the record’s index, the order granting the motion to dismiss appears at page 9, but the record inexplicably skips from page 8 to page 11.


text:
    Curtis Ray HOLLIS v. STATE of Arkansas
    CR 00-1276
    55 S.W.3d 756
    Supreme Court of Arkansas
    Opinion delivered October 4, 2001

      William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Curtis Ray Hollis appeals from his judgments of conviction for capital felony murder and aggravated robbery and his sentences of life without parole and thirty years, respectively. His sole issue on appeal is that he was illegally seized by police officers. He contends that this is so because his consent to be seized was involuntary due to the fact that he was not sufficiently informed to allow him to give an intelligent consent. This point is meritless, and we affirm.

At approximately four o’clock a.m. on July 13, 1998, the Exxon service station at the intersection of Roosevelt Road and Interstate 30 in Little Rock was robbed and the clerk on duty, Robert Strawn, was killed. The following facts concerning the events of the robbery and' murder are taken from Hollis’s statement to Little Rock police officers, which was admitted into evidence, and the trial testimony of his accomplice, Brian Morris. In the early morning hours of July 13, 1998’ Hollis, a black man, and Morris, a white man, were across the street from the Exxon station. Morris was talking on a public phone. Both men had been drinking a fruit punch mixed with tequila. During this time, they were seen by a Democrat-Gazette newspaper delivery man. Morris had a Buder .22 caliber derringer in his possession, and Morris and Hollis decided to rob the Exxon station. The two men were let into the station by Strawn, and Morris purchased candy, chips, and a soda. Hollis next began to buy certain items. During this transaction, Morris pulled his derringer pistol on Strawn. Morris, believing that Strawn was reaching for a weapon, shot Strawn once in the chest.

After Strawn fell to the ground, Hollis and Morris went behind the counter to the cash register. As they took money from the register, Strawn got up and began struggling with Morris. Hollis took Strawn’s .38 caliber revolver from him and shot Strawn twice in the left thigh. Morris shouted for Hollis to kill Strawn, but Hollis did not. Morris eventually took the .38 caliber revolver from Hollis and shot Strawn in the back of the head, killing him.

After a futile search for more money, Hollis and Morris took cigars and a case of lighters from the station. They also took the .38 caliber revolver with them and left the scene in Strawn’s own vehicle. They first stopped for gas and then proceeded to travel north on Interstate 30 to Prothro Junction. There, they exited, and Morris dropped Hollis off at the Masters Inn. Morris hid Strawn’s vehicle two blocks down the street at the Days Inn. The two men checked into a room at the Masters Inn at about five o’clock a.m.

Shortly after the shooting, Litde Rock police units were called to the scene of the robbery and murder. Police officers investigating the crime scene received a tip from the Democrat-Gazette worker that a white man and a black man were in the vicinity about the time the crime was committed.

Police officers located Strawn’s car roughly twenty-four hours later at the Days Inn in Prothro Junction after receiving a call that a suspicious car seemed to be abandoned. Police officers canvassed the immediate area where the car was found. Across the street from where the car was found, Little Rock Detectives Eric Knowles and Charles Weaver located a hotel clerk at the Masters Inn who told them that a white man and a black man had checked into a room in her hotel around five o’clock a.m. on July 13, 1998, which, was an hour after the crime was committed. While the detectives were talking to the clerk, Hollis entered the lobby and then left. The motel clerk identified Hollis as one of the men in question and gave the detectives his room number. After Hollis left the hotel lobby, he went back to his room. A few minutes later, he left his room and proceeded to walk across the street to a Burger King restaurant. After Hollis left the Burger King, he crossed the street to come back to the Masters Inn, and the detectives made contact with him.

Detectives Knowles and Weaver testified at the,omnibus hearing about what transpired next. Dressed in suits and ties, the detectives initially identified themselves as homicide investigators. Detective Weaver advised him that they were investigating a homicide. They asked Hollis his name and date of birth, which he supplied. They also asked him to come down to the police station to be questioned but told him that he was under no obligation to do so and that he was not under arrest. Hollis agreed to go with them and was described by one of the detectives as “very cooperative.” Hollis was not handcuffed or otherwise restrained and was placed in the detectives’ unmarked police car for several minutes. During that time the detectives ran a warrant check on him, which revealed he had several felony warrants in Ptdaski County outstanding for failure to appear in court. After the warrants were found, the detectives arrested and handcuffed Hollis. At about the same time the arrest occurred, Detectives Knowles and Weaver received information from other police officers that they had done a preliminary search of Hollis’s and Morris’s room at the Masters Inn. They found two guns in the room, a Rossi .38 caliber revolver and a Butler .22 caliber derringer. They also found items that were suspected to be stolen from the Exxon station. Hollis was placed in a marked patrol car and taken to the police station. A few hours later, Hollis was Mirandized at the police station. He signed a Miranda waiver form and then gave a taped statement in which he admitted his involvement in the robbery and homicide. Subsequently, Hollis was charged with capital murder, aggravated robbery, and theft.

After hearing testimony at the omnibus hearing from Detectives Knowles and Weaver, the circuit court denied Hollis’s motion to suppress his statement. The State waived the death penalty for Hollis and proceeded to trial. At his trial, Hollis’s statement to police officers was introduced into evidence and the medical examiner, Dr. Frank Joseph Peretti, testified that Strawn died of multiple gunshot wounds. He concluded that both the chest wound and the head wound inflicted by Morris were fatal wounds, but that Strawn could have survived the thigh wounds inflicted by Hollis. Brian Morris testified for the defense that it was he who killed Strawn. After the one-day trial, the jury convicted Hollis of capital felony murder, aggravated robbery, and theft of property. Hollis was sentenced to fife without parole for the capital felony murder and thirty years for the aggravated assault, to run concurrently. The circuit court merged the theft conviction with the other two.

Hollis’s single point on appeal is that he was illegally seized by the Little Rock detectives because his consent to be questioned was not made knowingly and intelligently. He contends that his consent was invalid because the officers who obtained the consent from him failed to disclose certain facts about their investigation. This is a novel argument. From his motion to suppress, we glean that Hollis did specifically allude to Rule 3.2, which reads:

A law enforcement officer who has detained a person under Rule 3.1 shall immediately advise that person of his official identity and the reason for the detention.

Ark. R. Crim. P. 3.2 (emphasis added). Hollis is now apparently using this rule on appeal as a springboard for his uninformed consent argument. However, he never argued uninformed consent to the circuit court. And the sole legal authority he cites in support of his argument is an inapposite civil case, Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983).

Ordinarily, our standard of review of a circuit court’s decision on suppression of a statement is that this court makes an independent determination based on the totality of the circumstances and will only reverse if the circuit court’s decision is against the preponderance of the evidence. Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001) (quoting Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998)); Lacy v. State, 345 Ark. 63, 44 S.W.3d 296 (2001). In the instant case, however, Hollis mounts an argument on appeal that he did not specifically make to the circuit court, even though he did cite Ark. R. Crim. P. 3.2 in his motion to suppress. This he cannot do. See Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996) (even in a case in which a sentence of fife without parole has been imposed, the appellant is bound by the scope of the argument he made at the trial level); see also Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Moreover, he makes a new and untested argument and fails to cite convincing authority to support it. We have made it exceedingly clear that we will not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996); Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

We recognize that in this case Hollis received a sentence of life without parole. In such cases, we are required by our own Supreme Court Rules to review all adverse rulings to Hollis made on motions, objections, and other requests. Ark. Sup. Ct. R. 4-3(h). Rule 4-3 (h), however, does not require this court to review an argument not specifically made to the circuit court or to research a novel argument for an appellant who cites no apposite authority.

For the foregoing reasons, the judgment of convictions and sentences are affirmed. The record has been reviewed for other reversible error, as required by Supreme Court Rule 4-3 (h), and none has been found.

Affirmed.