author: Philip Hicky, II, Special Chief Justice. C.C. Gibson, III, Special Justice, Ben Core, Special Justice,

text:
    JOHN CHEESEMAN TRUCKING, INC. and John Hofstetter v. Nancy Catherine PINSON, Administratrix of the Estate of Kenneth Ray Pinson, Deceased, et al.
    92-580
    855 S.W.2d 941
    Supreme Court of Arkansas
    Opinion delivered June 28, 1993

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Bruce Munson, for appellant.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Jacob Allen Sharp, Jr., for appellee Johnny “Bo” Dougan.

      Hardin, Jesson, Dawson & Terry, by: Randall L. Gammill and P. H. Hardin, for appellee William Bevic.
   Philip Hicky, II, Special Chief Justice.

This is a wrongful death case. The issues to be decided in connection with this appeal are:

(A) Whether there was a determination as to the issue of liability as between the appellants and the appellees in a previously decided Pulaski County Circuit Court case involving the same parties and the same accident; and,
(B) If the foregoing issue of liability was determined, is the determination of liability in the previously decided case in the Pulaski County Circuit Court preclusive of the issue of liability in this case appealed from the Lonoke County Circuit Court.

The trial judge held that the issue of liability as between the appellants and appellees had been decided in the Pulaski County Circuit Court case and that the decision on that issue in the Pulaski County Circuit Court precluded a retrial of that issue in the Lonoke County Circuit Court and that the parties were bound by the determination as to the issue of liability in the Pulaski County Circuit Court. We affirm the decision of the lower court.

A multi-vehicle accident occurred about 11:45 p.m., on June 8, 1988, on Interstate 40, east of North Little Rock. Eleven vehicles were involved in the accident. Some of the persons involved in the accident were fatally injured and others received personal injuries. The accident occurred at a time when heavy smoke was blowing across Interstate 40 as a result of a fire burning on land adjacent to the travelled portion of Interstate 40.

On June 15th, 1988, appellee Pinson, filed a wrongful death action in the Lonoke County Circuit Court (the “Lonoke County action”) for the death of her husband, Kenneth Ray Pinson, who was killed in the multi-vehicle accident in issue. Subsequent to the filing of the Lonoke County action by appellee Pinson, David Newman and others filed actions in the Pulaski County Circuit Court for recovery of damages arising from the same accident. The Pulaski County actions were consolidated for purposes of a trial into one cause of action (the “Pulaski County action”).

All parties involved in the accident, including appellee Pinson, eventually were either named as plaintiffs, defendants, or third-party defendants in the Pulaski County action. Appellee Pinson was named as a defendant in the Pulaski County action; however, appellee Pinson’s claim for damages remained in the Lonoke County action. All parties to the Lonoke County action were also parties to the Pulaski County action.

The issues of liability and damages were bifurcated in both the Pulaski County action and the Lonoke County action. The issue of liability in the Pulaski County action proceeded to trial first. At the conclusion of a lengthy trial on the issue of liability in the Pulaski County action, the case was submitted to the jury on special interrogatories.

In the Pulaski County action, interrogatories in the following form, as to each party, were submitted to the jury:

Do you find from a preponderance of the evidence that there was negligence on the part of (name of party) which was a proximate cause of the damage to any party?

The jury found that only John Hofstetter, the driver for Cheese-man Trucking, Inc., (hereinafter “appellants”) and Morgan Clay, the driver for Sunbelt Transport/Mallinckrodt, Inc. (hereinafter “Sunbelt Transportation”) were guilty of negligence that was a proximate cause of the damage to any other party. The jury responded “No” as to the fault of all other parties, including Kenneth Ray Pinson. In subsequent interrogatories, the jury apportioned fault for the occurrence at 50 % for appellants and 50 % for Sunbelt Transportation. A judgment was entered in the Pulaski County action on these verdicts in February of 1990.

The appellants and Sunbelt Transportation appealed the bifurcated judgment as to liability in the Pulaski County action. In 1991, this court dismissed the appeal for the reason that the judgment was not a final appealable judgment because damages had not been adjudicated. John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991). A judgment for damages was subsequently entered in the Pulaski County action. The Pulaski County action was appealed to this court and affirmed. John Cheeseman Trucking, Inc. v. Newman, 313 Ark. 229, 853 S.W.2d 278 (1993).

After the judgment was entered in the Pulaski County action, motions for summary judgment were filed in the Lonoke County action by the appellees on the grounds of res judicata and collateral estoppel. The Lonoke County Circuit Court granted summary judgment against appellants and Sunbelt Transportation as to the issue of liability in connection with appellee Pinson’s claim and dismissed all claims against all other parties. Sunbelt Transportation subsequently settled with all parties and was dismissed from both the Pulaski County action and the Lonoke County action. The appellants consented to $400,000.00 in damages for appellee Pinson in the Lonoke County action and now takes this appeal.

The concept of res judicata has two facets. One being issue preclusion and the other being claim preclusion. Issues in connection with this appeal are governed by the issue preclusion facet of the concept of res judicata. Claim preclusion forecloses further litigation on a cause of action. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985). Issue preclusion precludes further litigation in connection with a certain issue. Issue preclusion is limited to those matters previously at issue, which were directly and necessarily adjudicated. Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985).

The Restatement (Second) of Judgments § 27 (1982) provides:

When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.

When the foregoing general rule of the Restatement (Second) of Judgments on issue preclusion is analyzed and applied to this case, the case must be affirmed.

First, is the issue thought to be precluded the same as the issue involved in the prior litigation? Clearly, it is. The issue of liability as among the parties had to be tried in the Pulaski County action. All parties in the Pulaski County action were also parties in the Lonoke County action. The issue as to liability in connection with each party to the Pulaski County action was submitted to the jury by separate interrogatory.

Second, was the issue of liability actually litigated in the Pulaski County action? The issue of liability was actually litigated in the Pulaski County action and was submitted for determination to the jury and was determined by the jury’s responses to the interrogatories. In the bifurcated trial on the issue of liability in the Pulaski County action, the parties were represented by attorneys in a lengthy trial wherein the issue of liability in connection with the accident in question was heavily contested and actually litigated. All parties prosecuted, or defended, on the issue of liability.

Third, was the issue determined by a valid and final judgment? At the time the Lonoke County Circuit Court granted summary judgment in this case, the Pulaski County action was on appeal to this court; however, the Lonoke County Circuit Court was correct in relying upon the judgment in the Pulaski County action, even though the Pulaski County action was on appeal to this court at the time the Lonoke County Circuit Court granted summary judgment in this cause of action because the pending appeal of the Pulaski County action did not affect the finality of the judgment for purposes of issue preclusion. Arkansas follows the majority rule that a judgment is final for purposes of issue preclusion, despite a pending appeal for a review of the judgment, unless the appeal actually consists of a trial de novo. Boynton v. Chicago Mill and Lumber Co., 84 Ark. 203, 105 S.W. 77 (1907). See also Restatement (Second) of Judgments § 13. In today’s complex litigation involving multiple parties arising from one occurrence, it makes no sense to re-litigate the same issue between the same parties with the possibility of inconsistent results. Once an issue has been litigated in a fair forum, the results should be binding. In addition, this court did on May 17, 1993, affirm the Pulaski County action. John Cheeseman Trucking, Inc. v. Newman, 313 Ark. 229, 853 S.W.2d 278 (1993).

Fourth, was the determination of liability essential to the Pulaski County judgment? The answer to that question is clearly yes. There was no way to reach a decision in the Pulaski County action without making a determination as to the issue of liability among the parties.

The appellants rely upon East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986). That case is distinguishable upon its facts. In the East Texas Motor Freight case, there were parties to the second suit which had not been parties to the first suit. In the case at bar, all parties in the Lonoke County action were also parties in the Pulaski County action. The plaintiffs in the second East Texas Motor Freight case wanted to be included in the first East Texas Motor Freight case, but they were excluded by the federal court. The issue of liability and damages were not bifurcated in the East Texas Motor Freight case. The appellee in this case was the first party to commence litigation in connection with the occurrence in issue. She chose Lonoke County as the venue for her cause of action. Arkansas Rules of Civil Procedure, Rule 13 provides that a pleading shall state as a counterclaim any claim which, at the time of the filing of the pleading, the pleader has against the opposing party, if it arises out of the same transaction and occurrence that is the subject matter of the opposing party’s claim, but the pleader need not state the claim if, at the time the action was commenced, the claim was the subject of another pending action. Appellee Pinson chose not to file a counterclaim in the Pulaski County action, even though she was joined as a party defendant, which did require her to submit to the Pulaski County cause of action for purposes of determining the issue of liability. Appellee Pinson participated in the trial on the issue of liability in the Pulaski County action and won on that issue and she should not under the facts in this case be required to try that issue again. Likewise, had appellee Pinson lost on the issue of liability in the Pulaski County action, she would have been bound by the finding on that issue in the Lonoke County action.

No genuine issues of material fact with respect to the appellants’ liability to appellee Pinson exist as a result of the Pulaski County judgment. Therefore, summary judgment on behalf of the appellee Pinson as to the issue of liability in Lonoke County action was proper.

Affirmed.

Special Justice C.C. Gibson, III, concurs.

Special Justice Ben Core dissents.

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

C.C. Gibson, III, Special Justice,

concurring. I am satisfied that the issue of liability in this case was actually litigated between the parties in the previous Pulaski County action and that the determination of the Pulaski County jury relative thereto was essential to the judgment in that case. In view of the Pulaski County judgment having been affirmed by this court on appeal I agree that the trial court action in this case should be affirmed. I do, however, have serious concerns about the statements in the majority opinion that appear to give blanket approval to the use of lower court rulings and judgments not yet tested on appeal for collateral estoppel purposes.

The Restatement (Second) of Judgments § 27 (1982) states that the issue to be precluded by collateral estoppel must be determined by a “valid and final judgment” before application of the doctrine is appropriate. The terminology of this rule has been adopted by our court, David Newbern, Arkansas Civil Practice and Procedure § 26-13 (2d ed. 1993), and is in accord with our decisions in this area of the law. E.g., Fisher v. Jones, 311 Ark. 450, 455, 844 S.W.2d 954, 957 (1993).

Notwithstanding the “valid and final judgment” requirement, the Restatement as a general proposition supports the use of collateral estoppel even when such is based on a trial court ruling still subject to post-ruling motions and which are not even final enough for an appeal. See Restatement (Second) of Judgments § 13 cmts. f and g, and illus. 3 (1982). It does not take much imagination to see the possibility of inconsistent results between the outcome in the first proceeding and the second, a thing which, if it occurs, subjects our courts and our system of justice to public ridicule, particularly if the inconsistency is egregious.

The Restatement attempts to address this problem by saying such things as “the court should determine that the decision to be carried over was adequately deliberated and firm” and that “preclusion should be refused if the decision was avowedly tentative.” Id. cmt. g. The Restatement seems to be saying that a court should take a look at all the circumstances surrounding the matter of finality before applying the estoppel.

The Restatement also offers relief from the inconsistent result dilemma by opining that a judgment based on the earlier judgment subsequently overturned could be set aside and proper provision made for restitution. See id. § 16. There are, however, situations when such would be very poor solace to an estopped litigant who has involuntarily paid a judgment. What if the recipient of a satisfaction of judgment has spent the money and is incapable of making restitution? In such a situation the Restatement remedy may be likened to the closing of the proverbial barn door after the cow has been loosed.

It is my opinion that in addition to all other existing circumstances a trial court should consider the danger of irreparable harm to the litigants in applying collateral estoppel based on another trial court’s judgment that is still subject to reversal on appeal, particularly in cases like this which involve claims for substantial money damages. A trial court should have the discretion to delay proceedings pending the finality of another trial court’s judgment being tested on appeal. I realize that such a delay could work somewhat to the detriment persons such as appellee Pinson in this case, but it was, after all, she who refused to present her damage claim in the Pulaski County action and insisted on having same heard in her home county. This is a strategy she decided to follow, a strategy which has obvious benefits and which has certain drawbacks such as the possibility of delay.

Ben Core, Special Justice,

dissenting. This appeal from Lonoke Circuit Court raises the question of what effect if any does a trial previously conducted in Pulaski Circuit Court have on the lawsuit pending in Lonoke Circuit Court. Two of the parties in the Lonoke County case who were also parties in the Pulaski County case (John Cheeseman Trucking, Inc. and John Hofstetter) contend that the Pulaski County case did not afford to the parties in the Lonoke County case a trial on the issue as to whether any among the several parties in the Lonoke County case is or are responsible to the Pinson plaintiffs for their damages and if so who and to what degree.

The Pinson plaintiffs specifically withheld their claim for damages from the Pulaski County Circuit Court. The Lonoke County Circuit Court has ruled that nevertheless the issue of liability on the Pinson claims was adjudicated and determined in the Pulaski County proceeding.

I respectfully disagree with the majority. This appeal does not present a question of res judicata. This appeal does not present a question of collateral estoppel.

This appeal presents a question of what issues were tried and adjudicated in the lawsuit in Pulaski County and what issues were specifically reserved from trial and adjudication in the lawsuit in Pulaski County. This will be referred to as the procedural question.

The legal question involved is the power and authority of the Pulaski County Circuit Court to separate the issues into two categories and to designate one category of issues for trial in the lawsuit in Pulaski County and to designate the other category of issues to be reserved and withheld from trial in the Pulaski County lawsuit, and then to proceed to adjudicate those designated for trial in the Pulaski County lawsuit without also adjudicating those reserved from trial in the Pulaski County lawsuit. This will be referred to as the legal question.

The procedural question is initiated by an order of the Pulaski County Circuit Court which it made in ruling upon a motion made by Pinson in the Pulaski County suit. The paragraph numbered one in that order reads:

1. On September 13, 1989, Pinson moved for dismissal of this action pursuant to Arkansas Rule of Civil Procedure 12(b)(8) on the grounds that another action between the same parties arising out of the same transaction or occurrence was pending.

After then reciting some of the procedural history whereby the first lawsuit was filed June 15, 1988, in Lonoke County followed by the filing of the first Pulaski County lawsuit on December 16, 1988, and a second one in Pulaski County on February 14,1989, and still a third one in Pulaski County also on February 14,1989, and an order consolidating the three Pulaski County actions on August 8, 1989, and after naming the 13 individuals and companies who were named party defendants in the Lonoke County action, the order reads:

The Court recognizes that Pinson is entitled to assert her cause of action for damages in a proper venue of her choice. Likewise, the Court recognizes that the other parties hereto are entitled to assert their causes of action for damage in a proper venue of their choice.

The court then proceeded to make a distinction between two types of claims. One type was described as “direct causes of action for damages.” The other type of claim was described as: “claims for contribution and indemnity by alleged joint tortfeasor.”

The court stated that Pinson’s motion asserted the Rule 12(h)(8), ARCP, defense against both types of claims.

The court then cited ARCP Rule 13(a) as applying to all direct claims having the effect of requiring all of the defendants, when sued in the Lonoke County action, to assert all of their direct claims against Pinson in that action. The result was that such defendants could not assert such “direct” claims against Pinson in the Pulaski County action. All direct claims of Pinson against such defendants, and all direct claims of such defendants against Pinson, were excluded from the Pulaski County lawsuit. The order reads in part:

Accordingly, the Court HEREBY ORDERS that these claims for damages against Pinson be, and they hereby are, dismissed without prejudice.

The court then dealt with the “claims for contribution and indemnity by alleged joint tortfeasors.” The court cited the Uniform Contribution Among Tortfeasors Act, Ark. Code Ann. § 16-61-201 (1987) et seq., stating:

This act allows a Defendant to maintain a claim for contribution or indemnity against a joint tortfeasor in the same action in which that Defendant is being sued on a direct claim for damages by another party. Ark. Code Ann. § 16-61-207. Consequently, claims in this action against Pinson for contribution and indemnity relate to claims being asserted by other parties, and are not subject to Rule 12(b)(8).

The court then ruled, in paragraph number 13 of the order as follows:

13. Accordingly, the Court HEREBY ORDERS that all claims against Pinson for contribution and indemnity shall remain in this action [the Pulaski County action].

The procedural question is thus answered. All direct claims for damages by and against Pinson were excluded from the Pulaski County action. All contribution and indemnity claims were retained in the Pulaski County action.

Next, the legal question, does the Pulaski County Circuit Court have the power and authority to do that? To answer that question we look to Arkansas Code Annotated and also to the Rules of the Arkansas Supreme Court.

Arkansas Code Annotated § 16-60-112(a) (1987) provides that the venue for wrongful death actions is in either one of two counties: (1) where the accident occurred or (2) where the person injured or killed resided at the time of injury. Where suits are filed on the same cause in more than one county having venue, the one first acquiring service of summons on the adverse party has the right to continue in that county. Talley v. Morphis, 232 Ark. 91, 334 S.W.2d 652 (1960).

Thus, Pinson, having filed suit first and obtained service of summons, fixed venue of all of her direct claims for her damages in Lonoke County. Subsequent filings by other parties in other counties and their naming of her as a defendant in those lawsuits could not force her out of Lonoke County.

Rule 12(b)(8), Arkansas Rules of Civil Procedure, cited and relied upon by Pulaski Circuit Court, was promulgated by this court. It provides in pertinent part:

(b) Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: ... (8) pendency of another action between the same parties arising out of the same transaction or occurrence.

Thus, by reason of ARCP Rule 12(b), when Pinson fixed venue of her claim against the named parties in Lonoke County she likewise fixed venue in that county of all of the direct claims of those parties against her. Barkley v. Cullum, 252 Ark. 474, 479 S.W.2d 535 (1972).

What has confused the issue in this case has been the distinction made by the Pulaski Circuit Court between direct claims which it ruled were controlled by ARCP Rule 12(b)(8) and contribution and indemnity claims which it ruled were not controlled by ARCP Rule 12(b) (8) but rather that the same were controlled by Ark. Code Ann. § 16-61-207 (1987). But such a distinction overlooks a very significant reality, which is that in order to resolve the relative responsibilities of parties on the questions of contribution and indemnity some of the same questions must be answered as when dealing with direct claims. Many are identical. Who failed to meet the standard of care required? Whose failures contributed to cause the injuries? If more than one party was negligent and the negligence of more than one party caused the injuries, how do they compare?

Obviously one is submitting many of the very same questions to the jury in one of the trials as will have to be submitted in another trial. Thus the real question is whether the Pulaski Circuit Court can proceed to adjudicate any claims at all which are being made by parties in the Pulaski County action who are also parties to the Lonoke County action when the suit in Pulaski County was filed subsequently to the Lonoke County suit.

Looking at Ark. Code Ann. § 16-61-207, which was relied upon by the Pulaski County Circuit Court in excluding from the effect of ARCP Rule 13(a) claims for contribution and indemnity, it is apparent that § 16-61 -207 does not make it mandatory for a defendant to bring in a third party defendant. The language is that such defendant “may” bring in “a person not a party to the action who is or may be liable as a joint tortfeasor to him or to the plaintiff for all or part of the plaintiff’s claim against him.”

Thus, it would appear that the Circuit Court of Pulaski County was in error in proceeding to adjudicate any of the claims, those for contribution and indemnity as well as direct claims for damages. All claims of all parties to the Lonoke County lawsuit should have been dismissed out of Pulaski Circuit Court.

The motion on which the rulings of the Pulaski Circuit Court were made was made by Pinson but once the issue was before the court it should have ruled correctly for all parties. The trial in Pulaski County Circuit Court should be counted as a nullity insofar as this proceeding in Lonoke County is concerned. Since the rulings in the Lonoke County action not only gave effect to the Pulaski County proceeding as far as the claims of contribution and indemnity were concerned, but also as res judicata and controlling on the “direct claims” as well, it follows that such ruling should be reversed and the case set back for trial in Lonoke County on all claims made in the pleadings, whether direct, for contribution or indemnity.


source: Caselaw Access Project

author: Gary D. Corum, Special Justice.

license: Public Domain

text:
    EMPLOYERS NATIONAL INSURANCE CO. and Ranger Insurance Company v. GRANTORS to the Diaz Refinery PRP Committee Site Trust, et al.
    92-494
    855 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered June 28, 1993

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: M. Stephen Bingham, George B. Hall, Jr., Julia A. Deitz, and Phelps Dunbar, for Employers National Insurance Company.

      Laser, Sharp, Mayes, Bufford & Watts, by: Richard Watts and Brian Brown, for Ranger Insurance Company.

      Chisenhall, Nestrud & Julian, P.A., by: Charles R. Nestrud, Jim L. Julian, and James F. Goodhart, for appellees.
   Gary D. Corum, Special Justice.

This appeal is brought by Employers National Insurance Company (“Employers”) and Ranger Insurance Company (“Ranger”) from the chancellor’s denial of their motions to intervene in the chancery court lawsuit between the Grantors to the Diaz Refinery PRP Committee Site Trust (“PRP Committee”) and Diaz Refinery, Inc. (“Diaz”). The chancery court denied intervention on the basis that the motions were not timely. We find no abuse of discretion in this ruling, and thus affirm.

Employers and Ranger are insurance companies which issued liability policies to Diaz for certain periods during the time it conducted business operations in Arkansas. Diaz was sued by the PRP Committee. Both Employers and Ranger denied coverage. Neither of the insurers offered to defend the lawsuit. After a summary judgment for over six million dollars was entered against Diaz, and after the PRP Committee filed a separate direct action lawsuit against Employers and Ranger, both insurers sought to intervene in the lawsuit between the PRP Committee and Diaz for the purpose of challenging the summary judgment which had been entered against Diaz. The trial court ruled the motions were untimely and denied intervention. Both Employers and Ranger seek to overturn that ruling and reopen the issue of the summary judgment against Diaz.

A threshold question in determining whether intervention should be allowed is whether the application to intervene was made in a timely manner. Indeed, the first three words of Rule 24(a) of the Arkansas Rules of Civil Procedure, which deals with this precise issue, are: “Upon timely application.. . .” A decision as to the timeliness of intervention is a matter within the sound discretion of the trial court and is subject to reversal only where that discretion has been abused. Polnac-Hartman & Associates v. First National Bank, 292 Ark. 501, 503-504, 731 S.W.2d 202, 203-204 (1987); Bank of Quitman v. Phillips, 270 Ark. 53, 56-57, 603 S.W.2d 450, 452 (1980).

In Cupples Farms Partnership v. Forrest City Prod. Credit Ass’n., 310 Ark. 597, 839 S.W.2d 187 (1992), wesetforth three factors to be considered in a decision on timeliness. They are: 1) how far the proceedings have progressed; 2) any prejudice to other parties caused by the delay; and 3) the reason for the delay.

In order to overturn the chancellor’s ruling, appellants must demonstrate that the trial court abused its discretion by making a judgment call which was arbitrary or groundless. Looper v. Madison Guaranty Savings & Loan Ass’n., 292 Ark. 225, 228, 729 S.W.2d 156, 157 (1987). The evidence on appeal and all reasonable inferences from that evidence are reviewed in the light most favorable to the appellee, the party which won at the trial level. Id. In this case there is ample evidence in the record to support the chancellor’s finding that the appellants’ motions for intervention were untimely.

From 1974 until June 10, 1988, Diaz operated a solvent recovery, fuel blending and waste brokerage business on a six-acre site located in Diaz, Jackson County, Arkansas. Beginning in 1986 the Arkansas Department of Pollution Control & Ecology (“ADPC&E”) conducted investigations of the site and found substantial problems involving the release of hazardous substances into the environment. ADPC&E issued a Notice of Violation to Diaz on November 20, 1986. Diaz agreed to a Consent Administrative Order which ADPC&E entered on July 31, 1987. This order required Diaz to take action to correct various problems.

On June 7, 1988, ADPC&E filed suit against Diaz in Jackson County Chancellor Court alleging violations of the Arkansas Hazardous Waste Management Act, and for noncompliance with the consent order. ADPC&E obtained a temporary restraining order directing Diaz to comply with the previous consent order. Diaz ceased operations on June 10, 1988.

On March 28, 1989, ADPC&E issued an Administrative Notice of Liability to various entities which were potentially liable for remediation of the Diaz site under the Remedial Action Trust Fund Act (“RATFA”), Ark. Code Ann. § 8-7-501 to 522 (Repl. 1991). Many of the entities which had generated and transported hazardous materials to the site formed an unincorporated association known as the Diaz Refinery PRP Committee. These potentially responsible parties (“PRP’s”) agreed to a Consent Administrative Order which ADPC&E entered on April 27, 1989. This order required the PRP’s to undertake remedial action at the site. The PRP’s made contributions to the Diaz Refinery PRP Committee Site Trust to fund this remedial action.

On September 25, 1989, the PRP Committee filed suit in Jackson County Chancery Court against Diaz and six other defendants who were alleged to have been either owners or operators of Diaz. The PRP Committee brought the action pursuant to the contribution provisions of RATFA. These “Grantors,” who had funded the cleanup efforts, sought to recover the expenses incurred in the remedial action.

Appellant Employers issued policies of general liability insurance to Diaz for the period July 22,1983, to October 9,1986. Appellant Ranger issued excess liability insurance to Diaz for the period June 30,1981, to June 30,1982. By letters dated April 4, 1990, and April 25,1990, the PRP Committee informed Employers and Ranger of the pendency of the lawsuit against Diaz and informed these insurers that, if the PRP Committee was successful in obtaining a judgment against Diaz, it would seek to collect this judgment from these insurers. Employers advised Diaz its policies provided no coverage. Ranger also notified Diaz of various coverage defenses under its excess policy. Neither appellant offered to assume the defense for Diaz, nor did they undertake any other participation in the case.

On December 5,1990, the PRP Committee filed a motion for summary judgment against Diaz. Diaz filed no written response to the motion and presented no argument at the hearing on the motion. On April 2,1991, the chancellor granted the motion and awarded judgment against Diaz in the amount of $6,574,973.05; which was the total cost expended to that date by the PRP Committee for remediation efforts under the consent order with ADPC&E.

On April 17, 1991, the PRP Committee advised appellants that summary judgment had been rendered against Diaz holding it liable for 100 % of the remediation costs expended by the PRP Committee. On May 17, 1991, the PRP Committee advised appellants that the judgment remained unsatisfied and that it would institute a direct action suit against them pursuant to Ark. Code Ann. § 23-89-101(b) (Repl. 1991).

On June 11,1991, there was a meeting between representatives of the PRP Committee and various insurers of Diaz. On July 3, 1991, the PRP Committee filed a separate lawsuit against Employers and Ranger in Jackson County Circuit Court, alleging that the insurance policies provided coverage for the contribution claim against Diaz. The Committee seeks to collect the amount of its chancery court judgment against Diaz from these companies. That case is pending, and both insurers are defending on the basis that they provided no coverage applicable to the claim against Diaz.

It was not until September 3 and September 5, 1991, that appellants filed motions to intervene in the chancery court lawsuit between the PRP Committee and Diaz. In these motions appellants asked the chancery court to reconsider its summary judgment against Diaz, or in the alternative, to allow them to intervene in order to undertake an appeal of that judgment.

The chancellor conducted a hearing on October 16, 1991, and considered the briefs, evidence, and arguments presented in support of the motions to intervene. On October 29, 1991, the chancellor denied the motions for intervention on the basis that they were untimely. The summary judgment against Diaz was declared final on the same date.

It is clear that both appellants had knowledge of the lawsuit against Diaz in April, 1990, some seventeen months before they filed their motions for intervention. They knew the PRP Committee intended to seek recovery under the policies they had issued to Diaz if the Committee was successful in the litigation. Each of the appellants denied coverage to Diaz for the claims asserted. Neither of them offered to defend Diaz nor did they seek any other form of participation in the litigation. Both appellants maintained this position until September of 1991, five months after summary judgment had been granted against Diaz and approximately four and one-half months after they were notified of the summary judgment by the PRP Committee. By that time, the lawsuit against Diaz was two years old and, with respect to Diaz, had been completed.

This appeal challenges the denial of intervention and further challenges the chancery court judgment, which allocated 100% of the liability for remediation cost to Diaz. Appellants contend the judgment is contrary to the provisions of RATFA which authorize contribution claims among potentially responsible parties. Since we find the intervention issue to be dispositive of the case, we do not reach the contribution issue.

In challenging the chancellor’s determination that the effort to intervene was untimely, appellants argue that they could not have intervened in the litigation prior to the time that Diaz “abandoned” its defense on the summary judgment issue. They contend that the timeliness of their efforts should be judged from April 17, 1991 (the date they were notified of the entry of the summary judgment) or from June 11, 1991 (the date of the meeting in which they allege the “abandonment” of the defense by Diaz was “confirmed” to them) to September, 1991, when they filed motions to intervene.

Appellants base much of their argument on the concept of “standing” to intervene in ongoing litigation. They contend they had no interest to justify formal intervention so long as Diaz was actively defending the claim asserted by the PRP Committee. They argue that once Diaz ceased its defense efforts an interest was created which triggered their right to intervene. Appellants’ focus on the issue of whether, and when, they had “standing” to intervene in the lawsuit, however, misses the point which we find dispositive in this case. We do not consider formal intervention to be the only means by which these appellants could safeguard any interest they may have had in this case.

A liability insurer with potential coverage for claims asserted against a defendant often assumes responsibility for the conduct of the defense of those claims. In fact, most liability policies give the insurer the right to conduct and control the defense of claims. An insurance company which questions whether its coverage is applicable may assume the defense under a reservation of rights agreement with its insured. Sometimes an insurer will institute a declaratory judgment action to resolve the issue of coverage; either with or without seeking a stay of the original action. Even if direct participation is not chosen as an option, the progress of litigation can certainly be monitored. In this case the record reveals that appellants simply denied coverage and left Diaz to deal with the claims as best it could.

Appellants concede they had adequate notice of the claims against Diaz and the PRP Committee’s intention to pursue a recovery under their policies. Faced with this knowledge, they denied coverage and determined not to participate in the conduct of the defense in this case. They thereby assumed the risk that Diaz might defend poorly, or not at all. There is no evidence that they took any affirmative steps to monitor the progress of the litigation. Their knowledge of the outcome which was unfavorable to Diaz came from additional notices sent to them by the PRP Committee. We are unwilling to adopt, as a principle of law, the proposition that an insurer may decline to participate in ongoing litigation and ignore the progress of that litigation, yet reserve a right to later challenge the outcome on the ground that the claim was not well defended.

Appellants contended at oral argument that an insurer who denies coverage and declines to defend a claim against an insured nonetheless has a right to depend on the party it refused to assist to protect any contingent interest the company might have in that litigation. No authority is cited for this proposition and we decline to adopt any such rule.

Our view of the case does not require us to determine when formal intervention could first have been sought, or to determine the precise date relied on by the chancellor in ruling that the attempt to intervene was untimely. Whether that period was seventeen months, five months, or four and one-half months, the record supports the chancellor’s ruling that it was not timely.

The key to our decision is found in the principle that, whatever form of participation these appellants desired to have in the litigation, they were required to act in a timely fashion. The objective of our rules of procedure is the orderly and efficient resolution of disputes. Rule 1 of our Arkansas Rules of Civil Procedure provides that the rules shall be construed “to secure the just, speedy and inexpensive determination of every action.” In order to accomplish this mission, trial courts are accorded discretion, within reasonable limits, to require timely action and to deny efforts which would frustrate the achievement of those goals.

It is clear that these appellants wanted nothing to do with this lawsuit until after a result was achieved. Only after a passage of months and the institution of a separate direct action against them did they seek to reopen the original case. They now want to present a defense to claims which have been decided. The chancellor deemed the request untimely. On this record, we find no abuse of discretion. The ruling is affirmed.

Affirmed.

Special Justice Richard L. Mays joins in this opinion.

Dudley, Newbern and Glaze, JJ., not participating.


author: Per Curiam.

text:
    John BURK a/k/a John Burks, a/k/a John Burke v. STATE of Arkansas
    CR 93-146
    856 S.W.2d 14
    Supreme Court of Arkansas
    Opinion delivered June 28, 1993

      Joe O’Bryan, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, John Burk, was convicted of two counts of rape on October 25, 1989, and sentenced to concurrent sentences of ten years imprisonment. The convictions were affirmed by the Arkansas Court of Appeals. Burke v. State, CACR 90-66 (March 20, 1991). On September 25, 1991, the appellant filed a petition for post-conviction relief pursuant to Criminal Procedure Rule 37 in the circuit court claiming that the trial court allowed an alternate juror into the jury room and that his counsel was ineffective in numerous ways. After a hearing, the trial court denied the Rule 37 petition because it was not filed within thirty days after the petitioner was sentenced. It is from that order that the appellant brings this appeal.

When the appellant was convicted, Criminal Procedure Rule 37 was not in effect. See In the Matter of the Abolishment of Rule 37 and the Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark. 573, 770 S.W.2d 148 (1989). During that period of time when Rule 37 was not in effect, Criminal Procedure Rule 36.4 governed post-conviction procedure. See In Re: Post-Conviction Procedure, 303 Ark. 745, 797 S.W.2d 458 (1990). Rule 36.4 allowed thirty days from the date of pronouncement of sentence and entry of judgment for claims of ineffective assistance of counsel to be raised. The rule also required the trial judge to address the defendant personally and advise him or her of the thirty day limitation on such claims. The appellant in this case was so advised by the trial judge.

Criminal Procedure Rule 37 was reinstated on January 1, 1991 .In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990). Those defendants convicted and sentenced while the rule was not in effect, i.e. defendants convicted and sentenced between July 1, 1989, and December 31, 1990, who were advised of the right to proceed under Rule 36.4 were obliged to avail themselves of that remedy. Those defendants who did not do so are procedurally barred from raising claims for relief under Criminal Procedure Rule 37 after its reinstatement. To rule otherwise would permit the defendant convicted while Rule 37 was not in effect two opportunities to avail himself of the right to pursue post-conviction relief provided by the Arkansas Rules of Criminal Procedure. The trial court did not err when it concluded that the petition for post-conviction relief filed in this case was untimely.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Anita DAVIS v. Samuel PEEBLES
    92-1234
    857 S.W.2d 825
    Supreme Court of Arkansas
    Opinion delivered July 5, 1993

      William M. Howard, Jr,, for appellant.

      Friday, Eldredge & Clark, by: C. Tab Turner and Sarah J. Heffley, for appellee.
   Robert H. Dudley, Justice.

Appellant Anita Davis filed suit against Samuel Peebles, Thomas Humphries, and South Park Clinic. The trial court granted summary judgment in favor of both individuals and dismissed the complaint against the clinic because it was only a trade name. Appellant appeals only from the granting of the summary judgment in favor of Samuel Peebles.

Appellant’s abstract is flagrantly deficient. In it, she lists the pleadings and orders and gives citations to the pages in the record where those items might be found. She fails to abstract the complaint, the answer, the motion for summary judgment, the affidavits supporting the motion, or the order granting the summary judgment.

An appellant’s abstract or abridgement of the record should consist of an impartial condensation of the material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the court for decision. Ark. Sup. Ct. R. 4-2 (a) (6). The reason for the rule, as we have often explained, is that there is only one record. and there are seven judges. It is impractical, and often times impossible, for all seven judges to attempt to pass around the one record, and we will not do so. Pennington v. City of Sherwood, 304 Ark. 362, 802 S.W.2d 456 (1991). Accordingly, the order appealed from is affirmed under Rule 4-2 (b) (2).

Affirmed.


author: Steele Hays, Justice.

text:
    Lisa BOGART, et al. v. NEBRASKA STUDENT LOAN PROGRAM, et al.
    93-152
    858 S.W.2d 78
    Supreme Court of Arkansas
    Opinion delivered July 5, 1993

      Everett O. Martindale, for appellants.

      The Rose Law Firm, A Professional Association, by: Sam P. Strange, Jr. for appellee Integra National Bank North.

      Mitchell, Williams, Selig, Gates & Woodyard, by: Susan Gordan Gunter and Phillip A. Pesek\ and Keating & Shure, by: Mark E. Shure, for appellee Higher Education Assistance Foundation.

      Gill, Fleming & Elrod, by: Glenn E. Kelly, for appellee Student Loan Marketing Association.

      Hargis & Wood, by: David M. Hargis, for appellees Nebraska Student Loan Program, Nebraska Higher Education Loan Program, Inc., Unipac Service Corporation, and Union Bank and Trust Company of Lincoln, Nebraska.
   Steele Hays, Justice.

This is a declaratory judgment action. Appellants (plaintiffs below) are twenty-three former students of Stenograph Institute of North Arkansas (SIA). Appellees are Integra National Bank North (formerly Pennbank Student Loan Center), Nebraska Student Loan Program, Nebraska Higher Education Loan Program, Inc., Unipac Service Corporation, Union Bank and Trust Company of Lincoln, Nebraska, Student Loan Marketing Association, d/b/a Sallie Mae, Sallie Mae-LSCKS Western Loan Marketing Association, and other institutions involved in the guaranteed student loan program as lenders, secondary market purchasers and guarantors under the Guaranteed Student Loan Program (GSLP) established pursuant to provisions of Title VI, Part B of the Higher Education Act (HEA), 20 U.S.C. §§ 1070 — 1099 (1989).

Appellants had previously obtained a consent judgment of $200,000 against Educorp International, Inc., d/b/a SIA, based on allegations of fraud and breach of contract in that SIA did not provide them with the education it promised. The judgment was for $100,000 compensatory damages and $100,000 punitive damages.

Unable to collect the judgment, appellants filed this action to declare invalid the student loans that had enabled them to attend SIA. Appellants alleged that appellees were liable for SIA’s fraud and breach of contract because SIA acted as the agent of the appellees in making guaranteed student loans to appellants. Appellees responded with motions to dismiss for failure to state a claim for which relief could be granted, for lack of jurisdiction over the appellees, preemption under federal law and lack of agency as a matter of law.

A hearing was held and the motion to dismiss was granted on the premise that appellants’ claims were preempted by the federal law governing the Guaranteed Student Loan Program and for lack of an agency relationship between SIA and the appellees. Appellants appeal on two points of error. We affirm the order.

I

The Court Erred In Its Finding That The Claims Founded Upon Agency Are Not Available to Plaintiffs Because These Claims Are Preempted By The Federal Law Governing The Guaranteed Student Loan Program

Appellants reason that although it is clear their contracts with SIA were breached and they were the victims of fraud, no remedy is afforded them under federal law. Therefore, they argue, if they have no remedy under state law, they are without a remedy entirely. The only provision for avoidance under federal law is if the borrower becomes totally and permanently disabled, dies or obtains a discharge in bankruptcy. They contend that the denial of state law defenses of fraud and breach of contract constitutes a denial of due process and equal protection.

We first mention that appellants cite neither case law nor other authority and we have often pointed out that we are not bound to consider an argument unsupported by pertinent authority. Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Appellees rely on two cases which address the issue now presented: Graham v. Security Savings & Loan, 125 FRD 687 (N.D. Ind. 1989), affirmed on other grounds sub. nom., Veal v. First American Savings Bank, 914 F.2d 909 (7th Cir. 1990), and Molina v. Crown Business Institute, No. 24322/88 (N.Y. Sup. Ct., Sept. 10, 1990). Both the Graham and Molina courts held that under the HEA a borrower’s liability may be discharged only if the borrower dies, becomes permanently disabled or is discharged in bankruptcy. 20 U.S.C. § 1079(a)(b). Finding the federal law governing guaranteed student loans detailed and extensive, those courts held federal law preempted the plaintiffs’ state law remedy of rescission.

On appeal, the Court of Appeals for the Seventh Circuit affirmed Graham, supra, expressly grounding affirmance on the failure to state a claim for fraud, and not on preemption. The Veal court pointedly observed that “if sued by a lender in state court for collection of one of these loans, each of these plaintiff students would be entitled to assert any defenses available under state law that are applicable to his or her particular loan.” See Veal, supra, at 914, footnote 7.

In the case before use, we believe the trial court ruled correctly on the preemption issue to the extent that HEA generally preempts claims brought in state court. See Tipton v. Secretary of Education of the United States, 768 F. Supp. 540 (S.D.W.Va. 1991). The court in Tipton acknowledged the highly regulated nature of GSLP, but it also recognized the likelihood that Congress did not intend to preempt all borrower defenses available in state actions challenging the underlying obligation:

Like the Veal court [Veal v. First American Savings Bank, 914 F.2d 909 (7th Cir. 1990)], this court is unable to conclude that, by setting forth certain enumerated circumstances in which the GSLP loan obligation may be discharged, Congress intended to infer preemption of any other state based defenses to the validity and enforceability of the underlying obligation. Indeed, given Congress express reference to a binding obligation under the applicable law in 20 U.S.C. § 1077 as a condition precedent to governmental insurability of a GSLP loan, it seems rather apparent that the overall scheme of the HEA presupposes the existence of a validly enforceable loan obligation under state law not withstanding the extensive regulatory framework within which the program functions.

Tipton at 555-556.

However, we need not reach the question of federal preemption for all purposes under HEA because it is clear the remedy sought by appellants rests on a theory which conflicts with federal law and by virtue of that conflict the preemption doctrine still applies. That is, in those areas where Congress has not completely displaced state law, to the extent state and federal laws conflict, preemption applies. Tipton, supra, citing California v. Guerra, 479 U.S. 272 (1987).

Appellant’s claim to declaratory relief is grounded on an agency relationship between the appellees and SIA, that supplying loan application and forms directly to the applicants and having the authority to grant the loan itself, constitutes a sufficient basis in fact for an agency between the school and the appellees. Assuming, without deciding, that these factors are sufficient for a determination that an agency relationship exists, we affirm the holding that appellants’ causes of action are preempted. Both factors cited by appellants are constituent parts of the HEA. The supplying of forms is an integral step in an HEA loan transaction and, obviously, the granting of the loan itself is the basic purpose for which the HEA is created. See 20 U.S.C. 1078(a)(2); Tipton v. Secretary of Education, supra, at 558. In Tipton, the students advanced similar theories to those asserted by these appellants, i.e., the “close connectedness” between the school and the lender, as evidenced by the loan procedures. The Tipton court held that state claims were preempted under the HEA, rationalizing that to uphold state claims would subject a lender to state law by simply complying with federal regulations. The court sustained the federal preemption theory because compliance with both state law and federal regulations would be impossible. Citing Guerra, supra, at 281, the court concluded:

Consequently, plaintiffs cause of action against the bank defendants must fail to the extent that it is predicated on an assertedly close connectedness with [the school], which connection allegedly results from actions taken by the banks, which are expressly dictated by the terms of the federal act and regulations. [Our emphasis.]

That same principle is fully applicable in this case. Appellants’ allegations of conduct on the part of appellees coincide precisely with the conduct outlined in the HEA necessary to put the loans into effect. As it would be an impossibility for appellees to comply with the dictates of HEA and not incur liability under state law, the actions are preempted.

Affirmed.


text:
    MOUNTAIN HOME SCHOOL DISTRICT NO. 9 v. T.M.J. BUILDERS, INC., AND AMERICAN INSURANCE COMPANY
    93-186
    858 S.W.2d 74
    Supreme Court of Arkansas
    Opinion delivered July 5, 1993
    [Rehearing denied September 13, 1993.]

      H. David Blair, for appellant.

      Hardin & Grace, P.A., for appellee.
   Steele Hays, Justice.

This is a second appeal and our jurisdiction attaches pursuant to Ark. Sup. Ct. R. 1-2(a)(11). Additionally a question of the construction of Ark. Stat. Ann. § 14-114 (Repl. 1979) is involved. Ark. Sup. Ct. R. l-2(a)(3).

Mountain Home School District No. 9 (District) brought this suit against T.M.J. Builders, Inc. (T.M.J.), and American Insurance Company (American), appellees, to enforce a bid bond posted by T.M.J. for the construction of a junior high school at Mountain Home. American executed a surety bond accompanying the bid of T.M.J.

Prior to September 12,1985, the District gave notice that it would accept bids for the construction of a new school building. Construction plans were sent to T.M.J. by architects for the District and on September 19, 1985, T.M.J. submitted a sealed bid on the project along with other bidders. The bids were opened at a public meeting and T.M. J.’s bid was the lowest of four bids at $2,053,570.

On the evening of September 19 T.M.J. discovered an error in its computations: in estimating the cost of 804 squares of roofing, T.M.J. had used a multiplier of $ 15 per square instead of an intended multiplier of $115 per square. On the following day T.M.J. informed the District’s architect of the error and asked that its bid be withdrawn or that it be allowed to submit an amended bid. That request was denied and on September 26 the Board met and voted to accept the bid of T.M.J. On October 15 T.M.J. informed the District that it would not proceed on the basis of its original bid and tendered a substituted bid using corrected figures. The District refused the alteration and entered into a negotiated contract with M.C. White Construction Company, the next lowest bidder. T.M.J.’s original bid was $85,728 less than the contract with White.

An action was filed by the District in the Baxter County Circuit Court against T.M.J. and American for damages of $85,728, plus interest, 12% penalty and attorney’s fees. A jury was waived and the case was submitted on a stipulation of facts and while thus pending T.M.J. moved to transfer to equity to enable it to plead for equitable rescission. That motion was denied and judgments for $85,728, with interest, penalty and attorneys fees were awarded. On appeal, this court reversed, holding that it was error not to transfer the case to equity. See American Ins. Co. v. Mountain Home School District No. 9, 300 Ark. 547, 780 S.W.2d 557 (1989).

On remand the case was transferred to the Baxter Chancery Court. Following a trial the chancellor found that T.M.J. was not entitled to equitable rescission but that the District sustained no damages by reason of T.J.J.’s breach. The District has appealed and T.M.J. and American have cross-appealed. We reverse on direct appeal.

The District urges that the chancellor erroneously construed the terms of the bond and the measure of damages mandated by Ark. Code Ann. § 9-11-403 (1987) (formerly Ark. Stat. Ann. § 14-114). Although we review chancery cases de novo, we will not set aside a chancellor’s findings of fact unless clearly erroneous. Nunley v. Orsburn, 312 Ark. 147, 847 S.W.2d 702 (1993). We also recognize the chancellor’s superior position in weighing issues of credibility. Brown v. City of Stuttgart, 312 Ark. 97, 847 S.W.2d 710 (1993).

This case hinges on statutory interpretation. The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Bob Cole Bail Bonds, Inc. v. Howard, 307 Ark. 242, 819 S.W.2d 274 (1991). The basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. American Casualty Co. v. Mason, 312 Ark. 166, 847 S.W.2d 392 (1993). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Roy v. Farmers & Merchants Ins. Co., 307 Ark. 213, 819 S.W.2d 2 (1991).

Because the transaction in this case occurred in 1985 — prior to the adoption of Arkansas Code of 1987 — the controlling statute is Ark. Stat. Ann. § 14-114. That statute, as amended, now appears as Ark. Code Ann. § 19-11 -403 (Supp. 1991). Ark. Stat. Ann. § 14-114 provided as follows:

Every bid shall be absolutely void which is not accompanied by a written bid or proposal bond of a responsible surety. Such bond shall indemnify the public against failure of the contractor to execute and deliver the contract and necessary bonds for faithful performance of the contract. The bond shall be conditioned upon the prompt payment of labor and material furnished in the prosecution of the contract, and shall provide that the contractor or surety must pay the damage, loss, cost, and expense subject to the amount of the bid bond directly arising out of the contractor’s default in failing to execute and deliver the contract and bonds. Liability under this bond shall include, but shall not be limited to the sum by which the amount of the contract, covering the proposal, executed with another third party may exceed the amount bid by the contractor.

The bid bond read as follows:

[T]he principle [T.M.J.] shall pay to the obligee [Appellant] the difference not to exceed the penalty hereof between the amount specified in said bid and such larger amount for which the obligee may in good faith contract with another party to perform the work covered by said bond.

The District contends the language of the statute and the bid bond require the court to determine liability as of the time of the alleged breach instead of at some subsequent time, i.e., prospectively instead of retrospectively. It insists it was error to compare the amount which would have been payable under a contract as bid with the amount ultimately paid under the contract with M.C. White Construction Company.

This issue arises because the amount the District ultimately paid for the construction under its contract with White differed from the amount of the contract due to certain unit price provisions related to payment for rock excavation, the extent of which could not be determined at the time of contracting. By its proposal for a lump sum contract, T.MJ. agreed to perform certain work for the sum of $2,053,570.00. After T.MJ. refused to enter into the contract, the District contracted with White for the same work for a lump sum of $2,139,298.00, which was $85,728.00 greater than that bid by T.M J. Both T.M.J.’s bid and the contract with White provided that there would be additions or deductions as later determined by contingencies encountered during the performance of the work.

One of the contingencies of the contract was for additional payment based on the excavation of rock, defined in the contract documents as “each cubic yard of rock the size of one-half cubic yard or larger,” removal of which was necessitated by the performance of the work. T.M.J.’s bid for rock removal was $300.00 per cubic yard, while White’s contract for rock removal was $100.00 per cubic yard. When the work was performed, it was found that the excavation of 638.97 cubic yards of rock was required. Hence, if the District had contracted with T.MJ. on the basis of its bid, it would have paid the base price of $2,053,570.00 plus $191,691.00 for rock removal, for a total of $2,245,261.00. Instead, the same work was done by White for $2,139,298.00, plus $63,897.00 for rock removal, for a total of $2,203,195.00. Therefore, the District’s outlay was $42,066.00 less under the contract with White.

In resolving whether liability under a bid bond is to be determined prospectively or retrospectively, the District advises us of the purpose for which the bond is given: to preserve the integrity of the sealed bidding procedure and to assure the bidders will honor their bids. The District also reminds us that sealed bids are deemed irrevocable once they are opened. See Bailey v. Carter, 211 Ark. 369, 200 S.W.2d 313 (1947). Therefore, the District insists the defaulting party’s liability should be determined by comparing the amount of the bid and the amount of the contract rather than an after-the-fact reconstruction of what would have been paid had a contract been executed in accordance with the bid. The District maintains the issue to be determined in the present case is the liability for defaulting upon the bid, not the liability for breach of a construction contract.

Appellees contend that Ark. Stat. Ann. § 14-114 is not applicable in this case. Instead, T.M.J. claims that Ark. Code Ann. § 22-9-203 (1987), which concerns public improvements and specifically covers contracts for improvements to school districts, is the applicable statute. In support of its argument, appellees cite Conway Corp. v. Construction Engineers, Inc., 300 Ark. 225, 782 S.W.2d 36 (1989), cert. denied 494 U.S. 1080, 110 S.Ct. 1809, 108 L. Ed. 2d 939 (1990), where we held the bidding process for the construction of a water treatment plant was subject to Ark. Code Ann. § 22-9-203 as opposed to §§ 19-11-401 through 405. However, the applicability of § 22-9-203 was not raised by the appellees before the chancellor. See Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993); Lynch v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993); Moorman v. Lynch, 310 Ark. 525, 837 S.W.2d 886 (1992). In its complaint, the District specifically pleaded Ark. Stat. § 14-114 as the measure of T.M.J.’s liability. T.M.J. did not question the application of § 14-114, not did it plead or argue that Ark. Code Ann. § 22-9-203 [formerly Ark. Stat. §§ 14-611, 14-612 (1947)] controlled.

Even if the applicability of Ark. Code Ann. § 22-9-203 were preserved, the two statutes are not contradictory. Unless the statutes, both relating to the same subject, are contrary and cannot be reconciled, they must be read together, and each is to be given its intended effect. Kansas City So. Ry. Co. v. Pledger, 301 Ark. 564, 785 S.W.2d 462 (1990). Ark. Code Ann. § 22-9-203 sets forth procedures to be followed in advertising, evaluating, and acting upon bids for specified improvements. Although it does not address any requirements pertaining to bid bonds or the liability thereunder, it does inferentially require that a bid bond be posted and that the required notice must specify the amount thereof, expressed in percentage of the penal sum. However, Ark. Stat. Ann. § 14-114 addresses the requirements of bid bonds in connection with bids upon public construction contracts and defines the conditions of the bond, surety requirements, and liability under the bond. The two provisions are consistent and can be read together.

The bond itself specifically provided that T.M.J. would pay the District the difference between the amount specified in the bid and a larger amount which the District may in good faith contract with another party. The statute specifically states that liability under the bond shall include, but not be limited to, the sum by which the amount of the contract executed with a third party may exceed the amount bid by the contractor. In strictly construing the language of the statute and the bid bond, the intent seems clear that T.M.J.’s liability to the District is determined by the difference between the amount bid and the amount of the contract entered into with White.

For its cross-appeal, T.M.J. argues that the chancellor was right for the wrong reason and should be affirmed. It is well settled that we will affirm the trial court if it reached the right result, even though it may have announced the wrong reason. See Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992); Summers Chevrolet, Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992); Urrey Ceramic Tile Co. v. Mosley, 304 Ark. 711, 805 S.W.2d 54 (1991).

T.M.J. notes that its main contention throughout the trial was that it was entitled to equitable rescission because of its unilateral mistake under the principles enunciated in State Ex. Rel., Arkansas State Highway Commission v. Ottinger, 232 Ark. 35, 334 S.W.2d 694 (1960). In Ottinger, the court discussed the essential conditions for obtaining rescission for unilateral mistake. They are as follows:

1. the mistake must be of so great a consequence that to enforce the contract as actually made would be unconscionable;
2. the matter as to which the mistake was made must relate to a material feature of the contract;
3. the mistake must have occurred notwithstanding the exercise of reasonable care by the party making the mistake; and
4. it must be able to get relief by way of rescission without serious prejudice to the other party, except for loss of his bargain.

Under the circumstances, the trial court’s findings that T.M.J. had not proven requirements No. 1 and 3 above was not clearly erroneous. Under requirement No. 1, the mistake was not of such magnitude as to render enforcement of the contract unconscionable. The proof shows that T.M.J. was doing about $5,000,000.00 in business annually at this time and that its net worth was more than $80,000.00. T.M. J.’s president testified that to perform the contract would have put the company out of business. However, the error involved the sum of $80,400.00, or 3.9 % of the total bid. In contrast, the error in Ottinger was 22.7 % of the total bid, amounting to $294,020 in 1960 dollars. We are satisfied the chancellor correctly weighed the evidence and determined that the magnitude of the error did not attain a level of unconscionability.

Under the third element, T.M.J. did not show the mistake occurred notwithstanding the exercise of reasonable care by T.M.J. There was evidence that calls were being made at the last minute relating to the subcontractor’s prices on the bid reflecting hasty preparation of the bid. T.M.J. did not offer any evidence that its mathematical calculations of its bid were checked before the bid was submitted. The apparent flurry of last minute activity and the lack of proof as to precautions in preparing the bid demonstrate that ordinary care was not used.

Based on T.M. J.’s failure to meet its burden of proof on two of the four elements set forth in Ottinger, the chancellor was correct in finding that T.M.J. did not establish grounds for rescission.

For the reasons stated, the decree is reversed on direct appeal and remanded for the entry of a judgment against T.M.J. and American, jointly and severally, in the sum of $85,728, with prejudgment interest, and to determine the District’s entitlement to further relief afforded pursuant to Ark. Code Ann. § 23-79-208 (Repl. 1992).

Reversed and remanded.


text:
    SOUTHEAST ARKANSAS LANDFILL, INC., Arkansas County Waste Services, Inc., and Gray Varnadore v. STATE of Arkansas, Department of Pollution Control and Ecology
    92-1360
    858 S.W.2d 665
    Supreme Court of Arkansas
    Opinion delivered July 5, 1993
    [Rehearing denied September 13, 1993.]

      Gibson Law Office, by: CharelsS. Gibson and C.S. "Chuck” Gibson II, for appellants.

      Winston Bryant, Att’y Gen., by: Charles L. Moulton, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellants Arkansas County Waste, Inc., and Southeast Arkansas Landfill, Inc., (SEAL) are Arkansas corporations owned by Appellant Gray Varnadore and by Lester Pinkus and several family members. Arkansas County Waste is a hauling company operating primarily from a rail spur near Stuttgart. Baled waste was received by rail car from Brooklyn, New York, and was off-loaded onto trucks and transported to SEAL where the bales were broken and landfilled with local trash.

In response to concerns over the environmental integrity of SEAL’S landfill operation, and to numerous complaints regarding odors coming from the rail spur, the Attorney General and the Arkansas Department of Pollution Control and Ecology (ADPC&E)(Appellees) filed suit against SEAL on April 23, 1992. The complaint alleged that the defendant had violated provisions of the Arkansas Solid Waste Management Act, Ark. Code Ann. §§ 8-6-201 — 221 (Supp. 1991), and regulations promulgated thereunder, buy failing to inform the ADPC&E of SEAL’S agreement to sell an existing portion of its outstanding stock to a third party, by failing to inform the ADPC&E that SEAL had substantially increased the volume of waste SEAL was disposing of in its landfill in violation of its permit, by failing to properly characterize its waste stream, by failing to properly monitor and protect the State’s groundwater, and by storing its waste stream in such a manner as to constitute a public nuisance.

On April 28, 1992, the prosecuting attorney for Arkansas County, responding to complaints of noxious odors, filed suit against Arkansas County Waste, Inc., requesting emergency injunctive relief to abate the nuisance caused by Arkansas County Waste, Inc.’s operations. The trial judge temporarily enjoined Arkansas County Waste from operating the rail spur. No notice of the emergency relief was given to appellants, nor was bond required for the injunction.

Appellants answered, generally denying the allegations as to permit, regulatory and statutory violations and affirmatively alleging a denial of equal protection as mandated by the United States Constitution. Appellants pled that other landfills created greater hazards and that appellants were being singled out because they were receiving out-of-state waste.

The two cases were consolidated and heard together on May 13, 1992. After testimony was presented and exhibits were introduced, the trial court found that SEAL was not in compliance with its permit and that the off-loading operation constituted a nuisance and potential health hazard. The trial court enjoined the operation for a period of 110 days so ADPC&E could investigate, test and assess the landfill. The court also ordered Arkansas County Waste’s off-loading facility in Stuttgart closed, all boxcars removed and the site cleaned up by June 1. The injunction was granted without requiring the appellee to post bond. The results of the additional testing showed no contamination, and the test that showed the initial problem was found to contain error.

On appeal, appellants argue four points for reversal, none of which are persuasive.

I

The Trial Court Abused Its Discretion In Finding That The Off-Loading Site Constituted A Nuisance And A Potential Health Hazard

The trial court found “that the off-loading facility, as located and operated, constitutes a nuisance and a potential health hazard.” Appellants argue that the trial court abused its discretion in making such a finding.

It is well settled that this court reviews chancery cases de novo on appeal and will not reverse the chancellor’s findings unless clearly erroneous. Clark v. Bank of Bentonville, 308 Ark. 241, 824 S.W.2d 358 (1992); Dudley v. Little River County, 305 Ark. 102, 805 S.W.2d 645 (1991). Wealso give due regard to the chancellor’s opportunity to judge the credibility of witnesses. Nunley v. Orsburn, 312 Ark. 147, 847 S.W.2d 702 (1993).

The granting or denying of an injunction is a matter falling within the sound discretion of the trial court and its decision will not be reversed on appeal unless it is clearly erroneous. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986); Bassett v. City of Fayetteville, 282 Ark. 395, 669 S.W.2d 1 (1984). Such orders will not be disturbed on appeal unless they are contrary to some rule of equity, or the result of improvident exercise of judicial power. Mills v. Patton, 233 Ark. 755, 346 S.W.2d 689 (1961).

Nuisance is defined as conduct by one landowner which unreasonably interferes with the use and enjoyment of the lands of another and includes conduct on property which disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property. Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987); City of Newport v. Emery Et. Al., 262 Ark. 591, 559 S.W.2d 707 (1977). Equity clearly will enjoin conduct that culminates in a private or public nuisance where the resulting injury to the nearby property and residents is certain, substantial and beyond speculation and conjecture. See Higgs v. Anderson, 14 Ark. App. 113, 685 S.W.2d 521 (1985); Ark. Release Guidance Foundation v. Needler, 252 Ark. 194, All S.W.2d 821 (1972). The general rule is that in order to constitute a nuisance, the intrusion must result in physical harm (as distinguished from unfounded fear of harm) which must be proven to be certain, substantial, and beyond speculation and conjecture. Miller v. Jasinski, 17 Ark. App. 131, 705 S.W.2d 442 (1986).

The central issue is whether the evidence supported the trial court’s finding that the rail spur off-loading constituted a nuisance because of its offensive odors from the site. Appellants claim the testimony does not support the trial court’s finding and that only slight odor and inconvenience were proven. Appellants cite Theil v. Cernin, 224 Ark. 854, 276 S.W.2d 676 (1955) for the proposition that the operation of a business may be a nuisance in one locality and not in another. Appellants argue their activity was consistent with the character of the locale and must be conducted somewhere.

The appellees contend the appellants apply the wrong standard in this case and that they violate Ark. Sup. Ct. R. 9(d) by summarizing the testimony inadequately. Appellees also note that it is well established that objectionable odors can constitute a nuisance and that a permanent decree enjoining the operation of certain facilities because of noxious odors is not too broad a remedy. For example, in Ozark By-Products, Inc. v. Bohannon, 224 Ark. 17, 217 S.W.2d 354 (1954), the trial court enjoined the operation of a rendering plant which processed and disposed of the offal of slaughtered chickens because the residents living near the plant claimed the plant emitted odors, attracted flies and was generally a nuisance. On appeal, this court held that the plan was not a nuisance per se, but was a nuisance because of the manner of operation. In the present case, although the offloading of waste may not constitute a nuisance per se, the evidence indicates the appellants’ method at the off-loading site rose to the level of a nuisance.

In Flippin v. McCabe, 228 Ark. 495, 308 S.W.2d 824 (1958), the chancellor enjoined the operation of four charcoal kilns after plaintiffs filed suit and a hearing was held. In affirming the chancellor’s decision, we noted although the testimony of the numerous witnesses was highly conflicting, we could not say the chancellor’s findings were against the preponderance of the evidence.

As in Flippin, there were conflicts in the testimony. Several witnesses testified regarding the character and classification of the waste and its odor, including nearby residents, appellants’ employees, others who worked in the area, health department and ADPC&E personnel. There was testimony that boxcars of waste were being stored in the open for several days prior to being offloaded at the SEAL landfill. There was evidence that this storage resulted in obnoxious odors at the site which, depending upon the direction of the wind, directly affected the surrounding community, businesses, residences located to the west, a residential subdivision located to the east, and especially a trailer park located approximately 75 feet from the rail spur. Notably, Kenny Burlison, an employee of appellants, testified that on a hot day, the odor at the site was like garbage odor. Also, the Carters, area worker Brown, and area worker Ball, who resided and worked near the off-loading site on a daily basis, all testified to highly noxious odors from the site. In addition, the mayor of Stuttgart testified that he had received numerous complaints about the odor.

Ms. Carter stated that she felt nauseated for five to eight minutes on one occasion because of the odor. There was no testimony of other serious or substantial injury, or that anyone had sought medical treatment and while the evidence regarding the odor was disputed, we defer to the chancellor’s superior position to judge the credibility of the witnesses and weigh their testimony. Under the circumstances, we are not persuaded the chancellor’s finding that the off-loading operation constituted a nuisance and a potential health hazard was clearly erroneous.

II

The Court Abused Its Discretion By Finding That Appellants’ Landfill Posed A Risk of Serious And Irreparable Injury To The Environment

Appellants claim the trial court abused its discretion by temporarily enjoining their landfill operation for 110 days while personnel from the ADPC&E could investigate, test and assess the landfill and thereafter proceed administratively. We need not address this issue because the time has elapsed and we do not ordinarily decide issues which are moot. Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993). There are exceptions to the general rule, See McKinney v. McKinney, 305 Ark. 13, 805 S.W.2d 66 (1991); Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989), but we see no reason to apply them in this case. Arkansas Intercollegiate Conference v. Parnham, 309 Ark. 170, 828 S.W.2d 828 (1992).

Ill

The Trial Court Abused Its Discretion By Refusing to Make Specific Requested Findings

Appellants filed a Request for Findings and Conclusions pursuant to Ark. R. Civ. P. 52 requesting that the court make separate findings and conclusions with regard to eighty-four items of contended facts and issues of law. Appellants argue that the trial court refused to make separate findings and made findings of a vague and general nature.

Ark. R. Civ. P. 52(a) provides in part:

(a) Effect. If requested by a party, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions, the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action.

Appellants contend the rule requires the chancellor to make specific findings as requested by either party, that a litigant is entitled either to a direct answer regarding matters in contention below or a finding of immateriality. The appellees maintain appellants’ argument is actually that the chancellor abused his discretion by failing to adopt appellants’ findings of facts and conclusions of law, and that such a result is not contemplated under Ark. R. Civ. P. 52.

Other than its reference to Rule 52, appellants cite no authority in support of its argument. We have held that we will not consider a point raised on appeal where the appellant fails to cite authority or any convincing argument supporting the point. See Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992). Moreover, appellants do not allege any specific flaws or omissions in the trial court’s order, merely a dissatisfaction with its findings. In Miles v. Southern, 297 Ark. 274, 280-B, 760 S.W.2d 868 (1988), we stated that the trial court is not required to give detailed reasons for its action.

Although the trial court’s findings could have been more detailed, we believe they adequately covered the issues. The court made nine findings and then clearly stated its orders. It would have been repetitive and nonproductive for the court to address all of the eighty-four proposed findings set out in appellants’ request.

IV

The Trial Court Erred By Granting The Injunction And Allowing the State To Proceed Without Posting Bond

As a final point, appellants contend the trial court erred by granting a preliminary injunction and then continuing it for 110 days without requiring the state to post bond. Paragraph 9 of the trial court’s order states:

That no bond will be required of the State of Arkansas in this mater, its full faith and credit being sufficient to pay any damages which may be awarded. (TR. 141).

Appellants argue the apparent full faith and credit of the appellee in no way alleviates the necessity of posting bond. They cite Ark. R. Civ. P. 65(a)(2), which reads in part:

... No such preliminary injunction or restraining order shall be effective until the party obtaining the injunction files his bond with the clerk, together with good and sufficient securities to be approved by the clerk, conditioned that the party enjoined such damages as he may sustain if it is finally decided that the injunction ought not to have been granted.

However, Ark. R. Civ. P. 65(d) specifically exempts the state from posting security (“No such security shall be required of the State of Arkansas or any officer or agency thereof’). This issue, too, is rendered moot by the lapse of time.

We conclude that the finding of the trial court that the offloading site in Stuttgart constituted a nuisance and a potential health hazard was not clearly erroneous. Appellants’ argument regarding the operation of the landfill is without merit because the temporary injunction has expired.

For the reasons stated the order appealed from is affirmed.


text:
    STATE of Arkansas v. William Leonard GADDY
    CR 93-220
    858 S.W.2d 81
    Supreme Court of Arkansas
    Opinion delivered July 5, 1993

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      McArthur & Finkelstein, by: William C. McArthur, for appellee.
   Steele Hays, Justice.

The state brings this appeal from an order dismissing a felony information charging the appellee, William Leonard Gaddy, with criminal attempt to commit capital murder. Gaddy had been charged previously with the same offense in case No. 91-2562 and with possession of cocaine with intent to deliver in case No. 91-1734. While these two cases were pending the deputy prosecuting attorney (Fowler) and defense counsel (Clouette) arrived at a plea agreement by which the attempted murder charge would be dropped, and the cocaine charge reduced to mere possession with a sentence recommendation of three years probation and a fine of $200.

On December 30, 1991, the parties appeared before the circuit judge for the purpose of presenting the plea agreement. Those proceedings, in part were as follows:

THE COURT: I have a plea statement here and there’s a recommendation.
MS. FOWLER: Your Honor, that’s correct. The State would have a couple of preliminary motions as to Mr. Gaddy if you would like for me to take them up now.
THE COURT: Yes, I wish you would please.
MS. FOWLER: The State would move in 91-2562 to nol pros.
THE COURT: All right.
MS. FOWLER: And in 91-1734, State would amend Count 1 to be possession of cocaine rather than possession with intent to deliver.

After Ms. Fowler summarized the facts the following occurred:

THE COURT: All right. And the recommendation is three years probation. I’m just a little surprised by that on these facts? The officers agreed to it?
MS. FOWLER: Yes, Your Honor, they did.
MR. CLOUETTE: Well —
THE COURT: No, you don’t need to approach.
MR. CLOUETTE: Well, I was going to tell you why.
THE COURT: Well I understand that’s not necessary. I’ll accept the plea or the recommendation. Okay. Mr. Gaddy, this is your understanding of the disposition of the case, what you’ve set here, three years probation, two hundred dollar fine and costs and expungment under Act 3467? Do you understand that sir?
MR. GADDY, DEFENDANT: Yes.
THE COURT: And that’s what you agreed to do?
MR. GADDY, DEFENDANT: Uh huh.
THE COURT: Okay. I’m going to grant, carry out your motion to grant the nol pros and I’ve done that and I’m going to grant the motion to reduce this to possession upon acceptance of your plea of guilty. Let me ask you to raise your right hand please, Mr. Gaddy.

After establishing that Gaddy understood his rights and that a factual basis for a guilty plea existed, the trial judge, Judge Lessenberry, accepted the plea, entered judgment in accordance with the agreement and the hearing ended.

On February 6,1992, the state again filed a felony information charging Gaddy with attempted capital murder. Gaddy moved to dismiss or to compel the state to adhere to the plea agreement entered into between Gaddy and the state. After hearing testimony from Ms. Fowler, Mr. Clouette and Judge Lessenberry, the trial court ordered the information dismissed.

The state appeals on two points of error: one, the trial court erred in concluding there was a plea agreement contingent on the state filing a nolle prosequi with regard to the charge of attempted capital murder pending against Gaddy and, two, the trial court erred in dismissing the charge because Gaddy’s sole remedy was the withdrawal of his guilty plea. We are not persuaded by the state’s arguments and, accordingly, we affirm the order appealed from.

I

The state argues that Rules 24.5 and 25.3 (b; d) of the Arkansas Rules of Criminal Procedure mandate that the terms of the agreement be specifically set forth on the record in open court when the guilty plea is entered. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). The purpose of those provisions is to protect the accused from any misunderstanding concerning the law or his rights. Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988). The state submits that the protection applies to the state as well as to the defendant. The state urges that the transcript of the hearing does not establish that Gaddy’s plea of guilty to possession of cocaine was specifically made contingent on the entry of a nolle prosequi of the attempted murder charge.

The state’s contention is debatable at best. It is true the record does not contain an express assertion that the attempted murder charge is being dropped as a condition of the agreement, but it is readily implicit in the record of those proceedings. Indeed, we would be hard pressed to sustain the argument even if we had nothing more than the brief excerpt quoted above, as it seems plain enough that Ms. Fowler was stating the terms of the plea bargain in response to the trial judge’s question concerning the plea statement and recommendation being presented to him. At that point the state moved unequivocally to “nol pros” the attempted murder charge (91-2562) and to reduce the cocaine charge (91-1734) to mere possession. A fair reading of the record permits no inference that these developments were unrelated. Granted, the letter of the rules invoked by the state might be better served by a fuller explanation of the proposed agreement, but we cannot say the record is fatally defective.

Beyond that, the principals all testified to their understanding of the plea agreement: Mrs. O’Kelley (formerly Ms. Fowler) testified that cases 91-1734 and 91-2562 were both assigned to her as deputy prosecutor; that she foresaw problems with the proof in both cases and had little hope of a conviction in the attempted murder case; that she and Mr. Clouette discussed the cases many times and finally entered into an agreement that the attempted murder charge would be dismissed and the drug case reduced to simply possession with a fine and probation. “The agreement was to dispose of both cases ... a final resolution.” Her testimony as to the connection between the nolle prosequi and the guilty plea was categorical. She said she did not anticipate either of the charges ever being refilled or changed after the December 30, 1991, hearing or she would have asked that case No. 91-2562 be dismissed outright, rather than the more customary nolle prosequi.

Mr. Clouette’s testimony was entirely consistent with Mrs. O’Kelley’s: he testified, “The agreement was a package deal. . . a complete understanding.”

Judge Lessenberry testified that he had no specific recollection of the events, but after reviewing the transcript, he said, “I recollect that it was my impression that this was a final disposition of both cases.”

The state submits that this testimony is not sufficient to overcome the mandatory requirement that the record of a guilty plea agreement be made part of the contemporaneous record when the plea is entered. We disagree that the rules dictate that result in the context now posed. Rule 24.5 provides that the plea agreement be stated. That occurred in this case, at least to the extent necessary to a resolution of the arguments advanced by the state. Rule 25.3 (b; d) is even less stringent (again, in the context now before us) by providing that if the plea agreement contemplates that other charges will be reduced or dismissed, “upon request of the parties the trial judge may permit the disclosure” of the agreement and the reasons therefor. In this instance all parties and the trial court fully understood the terms and conditions of the plea agreement and the record of that proceeding is reasonably faithful to that understanding. The problem now extant cannot be attributed to any omission in that proceeding, but to the evident fact that the state later became dissatisfied with the bargain.

II

The state maintains that if there was a valid plea agreement which the state subsequently breached, Gaddy’s only recourse would be the option of withdrawing his guilty plea. That seems paltry relief indeed for the state’s breach of a binding plea agreement, grounded on nothing more than a change of heart.

The state draws an analogy between the trial court’s dismissal of the second attempted murder charge against Gaddy and a contention by the appellant in Vagi v. State, 296 Ark. 377, 757 S.W.2d 533 (1988), that he was entitled to the specific performance of an alleged plea agreement under which he would have to serve only ten years of a life sentence imposed on a guilty plea to first degree murder. A majority in Vagi found no evidence of such an agreement, while two justices rejected Vagi’s argument on a different ground, i.e., even if there were such a provision in the plea agreement, the trial court may not be compelled to impose specific performance of a plea bargain between a prosecutor and the defendant, since the trial court is not bound by the agreement. Thus, relying on language in the concurring opinion, the state presses us to hold that withdrawal of his guilty plea, rather than specific performance of the agreement, is Gaddy’s only remedy.

We are not persuaded by the argument. In the first place, this case is distinguishable from Vagi, where the defendant was seeking to specifically enforce a provision which was not shown to have been part of the agreement and which was dependent upon an indeterminate future event, i.e., the commutation of Vagi’s sentence by the Executive Department. Whereas here, the state is seeking to undo an agreement into which it clearly entered and which the trial court had approved and executed in all respects.

Nor do we see this as a case of specific performance, as the state contends. The trial court ordered nothing performed, nor did it direct that any provision of the agreement be carried out; it merely left intact that which the parties had agreed on and which had been approved and fully executed by a judgment entered accordingly.

For the reasons stated, the order is

Affirmed.

Holt, C.J., not participating.


author: David Newbern, Justice.

text:
    Paul Allen ENOS v. STATE of Arkansas
    CR 93-84
    858 S.W.2d 72
    Supreme Court of Arkansas
    Opinion delivered July 5, 1993
    [Rehearing denied September 13, 1993.]

      G. Keith Watkins, for appellant.

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

The appellant, Paul Allen Enos, was convicted of manufacturing marijuana and sentenced to six years imprisonment and a $15,000 fine. Enos argues the Trial Court erred by (1) refusing to accept a plea bargain which would have suspended imposition of sentence for five years under supervised probation and required him to pay a $2,500 fine, (2) failing to grant a mistrial when a witness referred to a laboratory report which had been excluded through a motion in limine, and (3) not setting aside the judgment because it was inconsistent with the verdict form. We find no error and affirm.

The State argues we are without jurisdiction to hear this appeal because Enos violated Ark. R. App. P. 4(c) by filing his notice of appeal before the order denying the motion to set aside the judgment was entered. Rule 4(c) provides in part “If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion:” (Emphasis added.) The motions listed in section (b) are motion for judgment notwithstanding the verdict, motion for additional findings or to amend judgment, and motion for new trial. Reference is made to Ark. R. Civ. P. 50(b), 52(b), and 59(b), respectively. Section (b) of Ark. R. App. P. 4 does not refer to the motion to set aside the judgment which would be analogous to a motion made pursuant to Ark. R. Civ. P. 60. Cf. Jasper v. Johnny’s Pizza, 305 Ark. 318, 807 S.W.2d 664 (1991), a civil case in which we inadvertently applied Rule 4(c) with respect to a motion to set aside a judgment as if such a motion were one of those listed in Rule 4(b).

We have made it clear that Rule 4(c) applies in criminal cases, and we have applied an earlier version of the Rule in cases where the post-trial motion in question was for a new trial, and thus was analogous to a motion made pursuant to Ark. R. Civ. P. 59. Taylor v. State, 296 Ark. 541, 757 S.W.2d 959 (1988); Terrell v. State, 294 Ark. 583, 745 S.W.2d 135 (1988). As the “motion to set aside the judgment” is not analogous to any of the motions listed in Ark. R. App. P. 4(b), we decline to say we lack jurisdiction of this appeal.

We are very concerned about the confusion caused by this . Court’s application of the Arkansas Rules of Appellate Procedure to criminal cases. The fact that Rule 4(b) refers only to civil procedure rules demonstrates that the drafters of the Arkansas Rules of Appellate Procedure may very well not have intended that they apply to criminal cases, and yet we see great merit in uniformity of rules governing the process by which a case moves from the trial court to the appellate court in civil and criminal cases. We hope the confusion surrounding the application of Rule 4(c) will soon be alleviated as we are presently studying rules changes, proposed by our Committee on Criminal Practice, which are designed to solve the problem.

1. Plea bargain

Enos argues the Trial Court should have considered the State’s offer to suspend imposition of sentence and place him on supervised probation. Act 608 of 1991, as codified at Ark. Code Ann. § 5-4-301 (Supp. 1991), added the following category to a list of crimes for which suspension or probation was not appropriate.

(F) Drug related offenses under the Uniform Controlled Substances Act, § 5-64-101 et seq. except to the extent that probation is otherwise permitted under sub-chapters 1-6 of chapter 64. In other cases, the court may suspend imposition of sentence or place the defendant on probation, except as otherwise specifically prohibited by statute.

Section 5-4-301 (a)(1)(F).

In Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992), we interpreted Section 5-4-301(a)(l)(F) and held a trial court may consider suspending imposition of sentence or placing a defendant on probation for a drug related offense only if the Uniform Controlled Substances Act expressly provides for it. That Act only authorizes probation when there has been a conviction for possession of a controlled substance, except a Schedule I controlled substance. Ark. Code Ann. § 5-64-407 (1987). The Trial Court correctly refused to accept the plea bargain.

2. Mistrial

Enos contends the Trial Court abused its discretion by refusing to grant a mistrial when a police officer testified that according to a laboratory report the manufactured substance was cannabinoid, a type of marijuana. The Trial Court had earlier ruled the report could not be used as evidence. Although the Court sustained the objection to the testimony, there was no ruling on the motion for mistrial.

We will not address an issue with respect to which an appellant has failed to obtain a clear ruling. State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992). A motion for mistrial and an objection to evidence are categorically different. A mistrial motion asserts that the error is beyond repair and cannot be corrected by any curative relief. An objection to evidence does not carry with it the same gravity, and an admonition or instruction to the jury are acknowledged means of ameliorating the situation. Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992).

3. Motion to set aside judgment

Enos asserts the judgment should have been set aside because it was inconsistent with the verdict form which allegedly reflected that the jury imposed six years imprisonment or a fine as opposed to six years imprisonment and a fine. We will not address this issue because the verdict form has not been included in the record. It is well settled that an appellant must bring up a record sufficient to show the trial court was wrong. Sanders v. State, 304 Ark. 109, 798 S.W.2d 926 (1990).

Affirmed.