author: P. A. Hollingsworth, Justice.

text:
    Dale R. GORDON, Personal Rep. of The Estate of Martha Ellen GORDON v. CROWN CENTRAL PETROLEUM CO.
    84-137
    679 S.W.2d 192
    Supreme Court of Arkansas
    Opinion delivered November 13, 1984

      Michael C. Carter and Roy Whitehead, Jr., for appellant.

      Warner it Smith, by: Gerald L. DeLung, for appellee.
   P. A. Hollingsworth, Justice.

The appellant is the owner of land in Sebastian County, Arkansas, Section 30, Township 6 North, Range 31 West. The appellee is the lessee of a mineral lease on the land owned by the appellant. Appellant, the plaintiff in the trial court, seeks the remedy of cancellation of the lease and an accounting of all proceeds arising from the production of natural gas on the property in question. The cause of action is based on the pooling clause of the lease limiting the lessee to pooling lands up to a maximum of 660 acres. The appellee admits that the total acreage pooled comprised 726.92 acres but asserts that this was done pursuant to an order of the Arkansas Oil & Gas Commission and that compliance with the order is not a breach of the lease. Both parties moved for a summary judgment and the trial court granted the appellee’s motion. This appeal is from that order and is before us under Sup. Ct. R. 29 (1) (n). We affirm.

This case presents a question of first impression in Arkansas. The principal issue is a question of precedence in a case of conflict between an express provision in an oil and gas lease and regulations of the Arkansas Oil & Gas Commission.

The trial judge made the following findings of fact. The appellant owned about 38.86 acres in Section 29 and about 91 acres in Section 30 for a total of 129.86 acres, all of which was leased together. In 1970, Ferguson Oil Company acquired the leasehold interest and drilled and completed a producing gas well in Section 29 but not appellant’s land. This production resulted in the Excelsior field being established by the Commission in an area that included Section 29 and Section 30. The Commission also issued Field Rules, Units, and Production Allocations pertaining to the Excelsior field. In 1979, Westland Exploration Co. applied to the Commission for integration of appellee’s leasehold interest in a drilling unit in Section 30. The integration resulted in the drilling unit of 726.92 acres.

The trial court held that the parties by their lease instrument contemplated and provided for such conflicts by having a “governmental regulations” or “force majeure” clause in the lease and that the pooling clause applies to voluntary pooling only. The Commission’s order created a drilling unit which exceeded the acreage limitation for voluntary pooling and created a conflict with the lease’s pooling clause. This conflict was resolved by the governmental regulations clause in favor of the commission order. The court found that the lease is therefore valid and there is no breach.

The two paragraphs of the lease which are the center of this dispute read as follows:

[THE POOLING CLAUSE:]
Lessee, at its option, is hereby given the right and power to pool or combine the acreage covered by this lease or any portion thereof with other land, lease or leases in the immediate vicinity thereof, when in Lessee’s judgment it is necessary or advisable to do so in order to properly develop and operate said lease premises so as to promote the conservation of oil, gas or other minerals in and under and that may be produced from said premises, such pooling to be of tracts contiguous to one another and, to be into a unit or units not exceeding 45 acres each in the event of an oil well, or into a unit or units not exceeding 660 acres each in the event of a gas well; or Lessee may, at its option and without Lessor’s joinder, pool or combine the acreage covered hereby, or any portion thereof, with other land, lease or leases so as to establish a cooperative or unit plan, or plans of development which would include land owned by the United States, regardless of size of such unit, following certification of such plan or plans by the Secretary of the Interior. . .
[THE GOVERNMENTAL REGULATIONS (FORCE MAJEURE) CLAUSE]
... All express or implied covenants of this lease shall be subject to all Federal and State Laws, Executive Orders, Rules or Regulations, and this lease shall not be terminated, in whole or in part, nor lessee held liable in damages, for a failure to comply therewith, if compliance is prevented by, or if such failure is the result of, any such Law, Order, Rule or Regulation, (emphasis added).

A covenant has been defined as an agreement calling “for the performace or nonperformance of some specified duty” which “may constitute an agreement to do or not to do a particular act.” 20 Am Jur 2d Covenants, Conditions, Etc., § 1 (1965). Under this definition, the Oil & Gas Commission’s regulations are the equivalent of covenants since they call for the performance of a specified duty — pooling the lessee’s interest in the drilling unit with other lands. In the force majeure clause the parties provided that covenants in the lease were subject to all state and federal laws and regulations. The clause is therefore applicable to the Commission’s regulations as well.

The appellant’s second argument is that there is no conflict between the commission order and the pooling clause. Rather he maintains the issue is who had the right to commit the acreage owned by appellant after reaching the 660 acre limitation in the pooling clause. He argues that this question and the question of who owns the right to the production from the remaining 66.92 acres is between the lessor and the lessee. We disagree. The Commission, through its regulations, ordered the land in question pooled, and the force majeure clause protected the appellee’s compliance with that order. The responsibility for the size of the unit rests with the Commission rather than with the lessee. The trial court properly held under the Arkansas Conservation Act (Act 105 of 1939) the creation of the 726.92 acre drilling unit was a valid exercise of the State’s police power.

The appellant’s third argument is that the trial court erred in finding the pooling clause only applicable to voluntary pooling. The appellant maintains that the appellee’s actions were voluntary in that he joined the integrated unit of his own accord, and that the trial court erred in finding the pooling to be compulsory.

The integration order was not obtained by the appellee; rather it was sought by a third party — Westland Exploration Co. In its order granting the integration, the Commission held that they had the “authority to grant said Petition and. force pool and integrate the unleased mineral interests of said named parties,” and that “therefore, it is ordered that . . . [a]ll of the oil and gas leasehold interests in the above described unit be and are hereby integrated into one unit. . . ” (emphasis added).

In Bibler Bros. Timber Corp. v. Tojac Minerals, 281 Ark. 431, 664 S.W.2d 472 (1984), the Oil & Gas Commission granted a compulsory pooling order requested by a third party. The court found that there was no voluntary pooling by the lessee in those circumstances. The court quoted a Louisiana case to the effect that:

voluntary pooling by the lessee would be within the contemplation of the parties, being expressly provided for in the lease. Conversely, a forced unitization and pooling order by the Commissioner would not be within the ambit of the intention of the parties. . . because no provision for such action existed in the lease.

Here, too, the Commission’s order made the pooling compulsory.

There is no doubt that when a pooling or unitization agreement is imposed by compulsory process, the provisions of the agreement prevail over any inconsistent lease provision. 4 Williamn, Oil & Gas Law § 670.3 (1981); 4 Kuntz, Oil & Gas, § 48.3(k) p. 223 (1972): Annotation, 37 ALR2d § 2[f] (1954).

The appellee’s actions therefore did not constitute a breach of the lease.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Noel BACHLER v. STATE of Arkansas
    CR 84-116
    680 S.W.2d 688
    Supreme Court of Arkansas
    Opinion delivered November 13, 1984

      Jeff Duty, for appellant.

      Steve Clark, Att’y Gen., by: Leslie M. Powell, Asst. Att’y Gen., for appellee.
   Per Curiam.

This case is similar to and controlled by the opinion in Rodney Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). The judgment is affirmed.


text:
    Debra RUSHER v. STATE of Arkansas
    CR 84-118
    677 S.W.2d 855
    Supreme Court of Arkansas
    Opinion delivered November 13, 1984

      Jeff Duty, for appellant.

      Steve Clark, Att’y Gen., by: Marci L. Talbot, Asst. Att’y Gen., for appellee.
   Per Curiam.

This case is similar to and controlled by the opinion in Terry Lovell, et al v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). The judgment is accordingly affirmed.


author: Webb Hubbell, Chief Justice. George Rose Smith, Justice,

text:
    Connie WILSON v. Thomas J. EVANS
    84-170
    679 S.W.2d 205
    Supreme Court of Arkansas
    Opinion delivered November 19, 1984

      Butler, Hicky b- Routon, Ltd., by: Preston G. Hicky, for appellant.

      B. Michael Easley, by: James Smedley, for appellee.
   Webb Hubbell, Chief Justice.

This personal injury case involves two automobile accidents. On October 2, 1979, appellant, Connie Wilson, struck the rear of the vehicle of Thomas J. Evans, appellee. Over five months later, appellee ran into the back of a third party’s vehicle. Appellee contends that the second accident was a result of a black out spell caused by his first accident. This is the second appeal in this case which was reversed and remanded on different issues. Evans v. Wilson, 279 Ark. 224, 650 S.W.2d 569 (1983). After reversal, a verdict and judgment of $35,000.00 was awarded Mr. Evans. On appeal, appellant argues that the second accident was not proximately caused by appellant’s acts and that proof of damages sustained in the second accident should not have been presented. We agree and reverse and remand for a new trial.

Proximate cause is defined in terms of direct causadon. Kubik v. Iglehart, 280 Ark. 310, 657 S.W.2d 545 (1983). Proximate cause is that cause which “in a natural and continuous sequence, produces damage.” AMI 501; Bull v. Manning, 245 Ark. 552, 433 S.W.2d 145 (1968); Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 351 S.W.2d 451 (1961).

In this case, over five months had elapsed between the first accident and Mr. Evans’ second accident. Less than a month before the second accident, Mr. Evans had consulted a physician for vertigo and blacking out, yet he continued to drive his automobile knowing he was subject to spells of dizziness and blacking out.

There was no issue for the jury presented since appellant’s acts did not lead in natural sequence without an intervening cause to appellee’s injuries suffered in the second accident. Although proximate causation is usually a question for the jury, where reasonable minds cannot differ a question of law is presented for determination by the court. Cragar v. Jones, 280 Ark. 549, 660 S.W.2d 168; Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d2 (1983).

Reversed and remanded.

Smith, J., concurs.

George Rose Smith, Justice,

concurring. I agree that testimony about the second accident was not admissible, the element of proximate cause being absent. According to the plaintiff’s proof, the first accident caused him to have spells of blacking out. That susceptibility was an injury for which he was entitled to be compensated according to its “nature, extent, and duration.” AMI Civil 2d, 2202 (1974). He could prove to what extent the injury affected him, including any impaired ability to drive a car with safety, but specific instances such as the occurrence of the second accident should have been excluded.


author: George Rose Smith, Justice.

text:
    William Bruce TAYLOR v. STATE of Arkansas
    CR 84-145
    679 S.W.2d 797
    Supreme Court of Arkansas
    Opinion delivered November 19, 1984

      John F. Gibson, Jr., and Gary M. Draper, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant was convicted of aggravated assault, unauthorized use of a vehicle, terroristic threatening, and attempted second-degree murder and was sentenced to a $1,000 fine and to consecutive prison terms totaling eight years. His only argument for reversal is that the trial judge was wrong in granting the State’s request that the voir dire examination of the jury be conducted in chambers, with the public (including the defendant’s father) being excluded. Our jurisdiction is under Rule 29 (1) (a).

In principle the case is governed by our holding in Commercial Printing Co. v. Lee, Judge, 262 Ark. 87, 553 S.W.2d 270 (1977), noted in 31 Ark. L. Rev. 543. There the defendant himself made the request that the voir dire be private. The news media, however, alertly and properly objected to their exclusion and brought the matter to this court for a declaratory decision. We concluded that the voir dire is an essential step in the trial and relied upon an early statute stating that “[t]he sittings of every court shall be public.” Ark. Stat. Ann. § 22-109 (Repl. 1962). Chief Justice Harris’s summation left no doubt about the court’s position:

As stated previously, we have only one question before us, viz., was the court’s order excluding the public and press from the voir dire valid? It is clear by what has been said that we have answered with an emphatic “No!”

The State, in seeking to defend the action of the court below, suggests that although the public and the press may be entitled to insist that criminal trials be open to everyone, the accused himself is not entitled to assert such a First Amendment right. The quick answer is that both the federal and state constitutions guarantee that “the accused shall enjoy the right to a speedy and public trial.” U.S. Const., Sixth Amendment; Ark. Const., Art. 2 § 10 (1874). The accused is obviously entitled to assert a constitutional right that is unmistakably for his protection. Prejudice resulting from the exclusion need not be shown. Sirratt v. State, 240 Ark. 47, 398 S.W.2d 63 (1966).

Reversed and remanded.


author: John I. Purtle, Justice.

text:
    Bill POGUE, Individually and as County Judge for Sevier County, Arkansas v. Calvin COOPER, Ray WILLIAMS and Wilma WILLIAMS
    84-110
    679 S.W.2d 207
    Supreme Court of Arkansas
    Opinion delivered November 19, 1984
    [Rehearing denied December 21, 1984.]

      James F. Lane and John B. Hainen, for appellant.

      Smith, Stroud, McClerkin, Dunn and Nutter, by: Winford L. Dunn, Jr. and R. Bruce Lorenzen, for appellees.
   John I. Purtle, Justice.

Appellant, the County Judge of Sevier County, appeals from a chancery court order enjoining him from leasing county property to private interests and from contracting to use county property and employees to perform services for and supply materials to private interests. Appellant contends that the chancellor erred in finding his activities in violation of the Arkansas Constitution and in failing to find that his activities were authorized by Act 183 of 1983. We agree with the chancellor’s findings and affirm.

The undisputed evidence at the trial showed that appellant made it a practice both to lease county equipment to private persons and to contract with private persons to provide county equipment, supplies and personnel to perform services in the private sector. The evidence also showed, and the chancellor found, that appellant had charged and received adequate compensation for the use of county property and for the labor of county personnel. The injunction was based on the chancellor’s conclusions that appellant’s activities were in violation of Ark. Const, art. 16, § 13 and art. 12, § 5.

Arkansas Const, art. 16, § 13 reads as follows:

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

We considered this question in Needham v. Garner, County Judge, 233 Ark. 1006, 350 S.W.2d (1961). On essentially identical facts, we held that the actions of the county judge were “unlawful official acts which could logically result in illegal exactions.” We reasoned that illegal exactions were likely to occur because such use of county property “could result in the need for more tax money to repair and replace the road machinery.” This was true even though the county judge’s activities were producing a profit. Arkansas Const, art. 16, § 13 protects the public interest against such potential illegal exactions to the same degree as against actual and ongoing illegal exactions. We held that the county judge did not have the power to perform private jobs because the Constitution gave the county courts, and not the county judges, exclusive jurisdiction in all matters relating to internal improvements and local concerns of the counties. We specificaly declined to decide whether this grant of jurisdiction to the county courts gave them the power to do the sort of acts in issue in that case and this one.

We reached similar results in Maroney v. Universal Leasing Corp., 263 Ark. 8, 562 S.W.2d 77 (1978) and Cunningham v. Stockton, County Judge, 235 Ark. 345, 359 S.W.2d 808 (1962).

Appellant concedes that Needham, supra, controls this case and requires affirmance if the law on the subj ect has not been changed. Appellant contends that the adoption of Ark. Const, amend. 55, § 3, after the decision in Needham and the other cases cited, changed the relevant law.

Amendment 55, § 3 gives the county judge, among other powers and duties, custody of county property. Before the adoption of Amendment 55, the county court had custody of county property. Ark. Const, art. 7, § 28; former Ark. Stat. Ann. § 22-601 (Repl. 1962); Needham. Appellant argues that “custody” of the county property includes the power to lease it and contract for its use on private projects.

Amendment 55 did not change the law on this subject. We recognize that the county court, prior to the adoption of Amendment 55, had the power to lease real county property to private interests. Chamber of Commerce v. Pulaski County, 113 Ark. 439, 168 S.W. 848(1914); State v. Baxter, 50 Ark. 447, 8 S.W. 188 (1887). However, the letting of the county’s personal property is a qualitatively different matter. Personal property is much more likely to be depleted or destroyed than real property, and thus an illegal exaction is much more likely to occur.

Appellant also argues that Act 183 of 1983 authorizes his actions. We cannot agree. Act 183 was enacted in implementation of Amendment 55. The Act, section one of which is codified at Ark. Stat. Ann. § 17-3901 (Supp. 1983), states that the county judge has “the right to assign or not assign use of [county] property . . .’’The chancellor held the Act does not purport to amend the Constitution or remove its prohibition against appellant’s actions. This ruling was correct. Statutes are presumed to be constitutional. A clear incompatibility between a statute and the Constitution must be shown before the statute will be held unconstitutional. Gay v. Rabón, 280 Ark. 5, 652 S.W.2d 836 (1983). The chancellor was correct in finding that the Act does not purport to legitimize the actions in question here.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    DAVID TERRELL FAITH PROPHET MINISTRIES v. The ESTATE of Vivian VARNUM, Deceased
    84-156
    681 S.W.2d 310
    Supreme Court of Arkansas
    Opinion delivered November 19, 1984

      Robert D. Ridgeway, Jr., for appellant.

      Hobbs, Longinotti ér Bosson, for appellee.
   Robert H. Dudley, Justice.

Vivian Varnum died on July 5, 1982, leaving an estate valued at over $400,000. Three different handwritten instruments, each with a different principal beneficiary, were offered for probate and each was denied admission. The trial court labeled the instruments the Lingo Will, the Family Will and the Terrell Will, with the label representing the principal named beneficiary in each instrument. This appeal is by the David Terrell Faith Prophet Ministries from the denial of admission of the Terrell will. We affirm the denial. This appeal is before this court pursuant to our Rule 29(1 )(p) as it presents questions concerning the construction of wills.

The probate court first reviewed the Lingo will which was purported to have been signed on June 29, 1982, although internal evidence indicates that the second page of the document, at least, was written prior to October 17, 1978. The judge held that some person had taken an unfinished draft of a will and fraudulently completed it by filling in the names of the executor and the beneficiary. Probate of the Lingo will was denied and there was no appeal from that decision. However, the Lingo will is evidence not only that the decedent wrote a draft of a will, as distinguished from a final instrument written with testamentary capacity, but also that the sentence “I Vivian Varnum, being of sound mind, declare this to be my Last Will and Testament,” in the first paragraph of that draft was not written with testamentary intent.

The next instrument the Family Will, was entirely handwritten by the decedent and, at the end, contained the signature and date “Vivian Varnum, October 22, 1968.” The trial court held that the decedent revoked the dispositive clauses of the family will be marking ou.t those clauses. No family member contests that ruling.

Based upon the testimony of experts in the field of handwritdng, and upon internal evidence contained in the language of the instrument, the trial judge held that the third instrument, the Terrell will, was written entirely by the decedent with the use of three different pens, one for the body of the document, the second for the words “My Last and Only Will” and for her signature and the third, for the date, October 22, 1968. The trial court held that internal evidence indicated the body of the purported will was written between October 17, 1978 and October 27, 1979 and the written words “My last and only will. Vivian Varnum. October 22, 1968” were written ten years earlier as they were written for, and upon, the sheet of paper which was the cover sheet or fronting page of the Family will. The body of the proposed will is on both sides of this one sheet of paper. These facts left the trial court faced with the question of whether the necessary testamentary intent existed when the signature and date were written as the cover sheet for one will and then, ten years later the body of a second will is written around that signature and date. The side of the sheet of paper containing the signature is photocopied for clarity.

Will contest cases come before this court for a trial de novo but we will affirm the order of the probate judge unless it is clearly against the preponderance of the evidence. Greenwood, Guardian v. Wilson, Adm’x, 267 Ark. 68, 588 S.W.2d 701 (1979). The existence of testamentary intent is not a matter of inference, but must be expressed so that no mistake be made as to the existence of that intention. McDonald, Ex’x v. Petty, 262 Ark. 517, 519, 559 S.W.2d 1, 2 (1977). Inquiry may be made into all relevant circumstances where the existence of testamentary intent is in doubt. Chambers v. Younes, Adm’r, 240 Ark. 428, 399 S.W.2d 655 (1966), citing 94C.J.S. Wills, § 203. However, use of extrinsix evidence is appropriate only when the instrument expresses an intent, it is inappropriate when the instrument expresses no intent, as in McDonald, Ex’x, supra.

The evidence is undisputed that decedent was an educated woman who kept careful records of her business affairs. It was evident to the trial court from the Lingo will that decedent has previously made, at the least, one draft instrument. The trial court concluded that the Terrell will was also a draft and was without testamentary intent.

In addition, the trial court held that the language in the body of the instrument “I — Vivian Varnum being of sound, mind, — declare this to be my last will and testament” was only a draft sentence, just as the same sentence was in the draft of the Lingo will. The trial court held this sentence was not intended to constitute a signature on a holographic will as was intended in Smith v. MacDonald, 252 Ark. 931, 481 S.W.2d 741 (1972). In that case, the decedent had prepared his handwritten will on a form provided by his attorney but his signature appeared nowhere other than “I, Julian Leland Rutherford, of Monroe County, Arkansas, being over the age of twenty-one and of sound and disposing mind ...” etc. The decedent delivered the will to his attorney, told him that this was his will, and asked him to safely keep it. The envelope containing the document provided “Bill Rutherford-Will.” We allowed probate in that case because extrinsic evidence removed any doubt about testamentary intent. The accumulation of extrinsic evidence was the key factor in removing any doubt about the testator’s intent. No such authenticating circumstances appear in the case at bar, and without them, or ones of equal validity, we cannot say that the probate judge was clearly erroneous in his ruling..

The decedent wrote the word “Good” at the top of the first page of the Terrell will. The appellant contends that this word indicates testamentary intent but it just as well means that it was a good draft. We cannot say the trial judge was clearly erroneous in holding that the word “Good” is not extrinsic evidence of testamentary intent.

The appellant next contends that the Terrell will is a codicil, or republication of the partially revoked Family will and that both can be probated as one testamentary entity. Although the general rule is that a will should be, if possible, construed so as to avoid intestacy, this court will not speculate on a testator’s intent. Appellant cites Bradshaw v. Pennington, 225 Ark. 410, 283 S.W.2d 351 (1955) as authority for admitting these two documents to probate as one unit. However, Bradshaw, as many will construction cases are, is distinguishable on its facts from the case at bar. In Bradshaw, six sheets of holographic writings were filed with the probate court. Five sheets were identical in writing except that each named a different beneficiary and property list. The sixth sheet left nephews and nieces specific property. All were dated the same date and signed at the end by decedent. All six sheets were found pinned together. None of these circumstances are present in the case at bar. The findings of the probate judge in refusing to construe the Terrell will and the Family will together were not clearly erroneous.

Affirmed.


text:
    Steven Wayne BRAMLETT v. STATE of Arkansas
    CR 84-112
    679 S.W.2d 209
    Supreme Court of Arkansas
    Opinion delivered November 19, 1984

      Witt Law Firm, by: Ernie Witt, for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.
   P. A. Hollingsworth, Justice.

The appellant, who was 17 at the time, was charged with attempted capital murder in September 1978 for robbing a convenience store and kidnapping, raping, and shooting the clerk. He pled guilty and was sentenced to life imprisonment by the trial court on October 30, 1979. Nearly four years later, on May 31, 1983, the appellant filed a petition seeking post-conviction relief. After an evidentiary hearing, the trial court denied the requested relief.

Ark. R. Crim. P. Rule 37.2(c) provides that all petitions filed under Rule 37 “must be filed in circuit court. . .or in the Supreme Court within three (3) years of the date of commitment, unless the groúnd for relief would render the judgment of conviction absolutely void.” These rules were promulgated on December 18, 1978, before the appellant’s conviction on this charge.

We dealt with this question in Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979) where we stated:

More than five years have passed since petitioner’s commitment,. . .If a grave injustice was committed, why did petitioner wait so long to file his petition? Petitioner is not claiming relief under some new law that has been applied retroactively but his allegations could easily have been raised five years ago in a motion for new trial. He could have filed his petition for post-conviction relief as soon as the mandate affirming the judgment was issued by this Court.

In Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981), we found a petition filed more than three years after rehearing was denied by the U.S. Supreme Court to be clearly untimely. We held that it was to be denied unless the grounds asserted would render the judgment void.

We addressed the substance of the petitioner’s allegations in Rogers supra., because they could be determined from the record and by applying existing state law. Here the record, which was not abstraced, reveals that at the time of sentencing, the trial judge carefully explained what a waiver of jury trial meant, and the appellant clearly stated he understood.

When a guilty plea is challenged, the issues are whether the plea was intelligently and voluntarily entered and whether the accused entered the plea with advice of competent counsel. Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). The appellant has the heavy burden of establishing that counsel’s advice was not competent. U.S. v. Cronic, 104 S.Ct. 2039 (1984); Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984).

From a review of the record and briefs before this Court, we find the petition for post-conviction relief was filed beyond the time allowed and was without merit.

Affirmed.


author: Webb Hubbell, Chief Justice.

text:
    Bobbie June CASH v CITIZENS BANK OF TILLAR
    84-149
    680 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered November 26, 1984

      John L. Kearney, for appellant.

      L. David Stubbs, for appellee.
   Webb Hubbell, Chief Justice.

This is the second appeal involving an ejectment suit initiated by appellee, Citizens Bank of Tillar, against J. C. Cash. In the first appeal we affirmed the ejectment of Mr. Cash from property owned by appellee. J. C. Cash v. Citizens Bank of Tillar, 277 Ark. 449, 642 S.W.2d 318 (1982). Mr. Cash, however, continued to go on the property, and after a hearing on May 13, 1984, the trial court prohibited Mr. Cash and his wife, Bobbie June Cash, appellant, from going on the property. Appellant argues reversible error because she was not served notice of the hearing. The appeal is affirmed under Rule 9 (e) (2) of the Rules of the Supreme Court of Arkansas for appellant’s failure to abstract any of the record.

Rule 9 requires the abstract of the record to be an impartial condensation of the pleadings, proceedings, facts, and documents in the record. Appellant totally failed to comply with the rule and in place of an abstract provided only the following:

Writ of Assistance: (T.3) Issued April 25, 1984. Order: (T.4) Motion by J. C. Cash to permanently enforce the Writ of Assistance issued April 25, 1984. Order dated May 24, 1984. Notice of Appeal: (T.6) Entry date May 3, 1984.

The Order from which appellant seeks relief is not even abstracted. We affirm. Fair v. Fair, 272 Ark. 114, 612 S.W.2d 123 (1981); Manes v. M.O.V.E., Inc. et al, 261 Ark. 793, 552 S.W.2d 211 (1977).

Affirmed.


author: Darrell Hickman, Justice.

text:
    John Charles ZOLLER v. STATE of Arkansas
    CR 83-104
    680 S.W.2d 87
    Supreme Court of Arkansas
    Opinion delivered November 26, 1984

      John Wesley Hall, Jr., for petitioner.

      Steve Clark, Att’y Gen., by; Michael E. Wheeler, Asst. Att’y Gen., for respondent.
   Darrell Hickman, Justice.

A writ of certiorari is granted in this case to correct a mistake of law by the trial court. The appellant, John Charles Zoller, originally entered a plea of nolo contendere to a charge of possession of a controlled substance. He later sought to withdraw that plea and enter a plea of not guilty. The trial court refused the request and sentenced Zoller to imprisonment for ten years with five years suspended and a $20,000 fine. Zoller surrendered himself to the Department of Corrections to serve his sentence. At the same time he appealed to us the denial of his motion to withdraw his original plea. In Zoller v. State, 282 Ark. 380, 669 S.W.2d 434 (1984), we reversed the trial court’s decision.

On remand Zoller entered a plea of not guilty. The state requested a new bond arguing that the original appearance bond for $150,000 had been discharged by operation of law, because our opinion in Zoller v. State, supra, simply said the matter was “reversed” and not “reversed and remanded.” The law is clear that an appearance bond once approved remains in effect through appeal, and this includes any appearances on remand. This is stated in A.R.Cr.P. rule 9.2 (e), which reads:

An appearance bond and any security deposit required as a condition of release pursuant to subsection (b) of this rule shall serve to guarantee all subsequent appearances of a defendant on the same charge or on other charges arising out of the same conduct before any court, including appearances relating to appeals and remand. If the defendant is required to appear before a court other than the one ordering release, the order of release together with the appearance bond and any security or deposit shall be transmitted to the court before which the defendant is required to appear.

While our opinion simply stated the matter was “reversed,” the mandate we issued stated the matter was “reversed and remanded.” In Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979), we said:

Where a j udgment (or decree) is reversed for error in the proceedings in the court below and remanded for proceedings according to law and not inconsistent with the opinion of the court, it is always understood that the proceedings in the court below, prior to the fault or error which is ascertained by this court to exist, are in no wise reversed or vacated by the adjudication of the appellate court, but the faultor error adjudicated is the point from which the cause is to progress anew. Nelson v. Hubbard, 13 Ark. 253 (1853).

The trial court gave no reason why Zoller should not have been allowed to remain free on the original appearance bond except that our opinion used only the word “reversed.” Assuming that premise, the original bond was still valid. Any statutes or rules which relate to a bail bond are implicity read into the bail bond contract. Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977). We have held “that when a bond is required by statute, the bond will be construed as if the terms of the statute had been written into the contract.” Empire Life v. Armorel Planting, 247 Ark. 994, 449 S.W.2d 200 (1970). When a bail bondsman executes a bail bond, he does so with knowledge of and pusuant to the statutes and rules regulating bail bonds.

Since the matter was clearly remanded for a new trial, the trial court erred in requiring a new bond. This in no way implies that a new bond cannot be required or that a bond cannot be raised in an appropriate situation. A.R.Cr.P. Rule 9.2(e) (ii); Perry v. State, 275 Ark. 170, 628 S.W.2d 304 (1982). Furthermore, our decision is limited to the narrow issue presented, which concerns this one pretrial decision.

Writ granted.

       The state alleged that Zoller piloted an airplane loaded with 1,800 pounds of marijuana and six gallons of hashish oil.


text:
    Emily Ann T. BRANSFORD, Executrix, et al. v. William Byrd JONES, et al.
    84-139
    679 S.W.2d 798
    Supreme Court of Arkansas
    Opinion delivered November 26, 1984

      Rose Law Firm, by: Dane W. Clay, for appellant.

      George N. Plastiras, and Davidson, Horne, Hollingsworth, Arnold ¿r Grobmyer, for appellee.
   John I. Purtle, Justice.

The Arkansas Court of Appeals modified the original order in this case [Jones v. Bransford, 270 Ark. 664, 606 S.W.2d 118 (Ark. App. 1980)] and remanded it to the Faulkner County Probate Court for additional proceedings. The trial court ordered the estate to be distributed in accordance with what the court thought was the mandate of the Court of Appeals. The estate and three heirs appeal. Other heirs cross appeal. Both sides argue the trial court applied the wrong formula in ordering distribution. In view of the rule that the law of the case is established by the first appeal (in the Court of Appeals in this case) we disagree with both arguments and affirm the order of the trial court.

Lyde Allinder Robins died in Faulkner County, Arkansas, in 1964. Her will was admitted to probate along with a codicil which made a major change in the will. The original will basically provided: (1) payment of debts and expenses; (2) payment of specific bequests; and (3) distribution of the balance of the estate into four equal shares. The codicil revoked one of these four shares and replaced it with a bequest of 12% of the net value of the estate after payment of costs, taxes, and expenses. The appellees (four grandsons) were to share equally in this codicil bequest. The codicil resulted in that portion of the estate between 12% of the net estate and 25% of the residue not being disposed of in the will or the codicil.

On the first appeal the Court of Appeals held that appellees (four grandsons) were entitled to receive their specific bequests (12% of the net estate, after expenses, etc.) before the three daughters received their 25% each of the residue. The grandsons (sons of the deceased daughter of testator) had originally been designated to share the other fourth of the residue after expenses and specific bequests were paid.

On remand the probate court distributed the estate as follows: 1) costs, expenses and debts; 2) 12% payment of the net estate to the appellees; 3) payment of other specific legacies; 4) 25% of the residue to each of the three daughters or their estate; and 5) the balance of the 25% residue which was originally bequeathed to the appellees passed intestate to the heirs at law.

We hold that the 12% bequest to appellees is a specific bequest in accordance with the law of the case. Griffin v. State, 276 Ark. 266, 633 S.W.2d 708 (1982). Therefore, it was proper for the trial court to take the specific bequest in the codicil from the entire estate after payment of the expenses, costs and taxes.

Generally speaking, specific legacies do not bear interest other than the increase which develops from the thing given. Atkinson, Law of Wills (2nd. ed. 1953). Arkansas Stat. Ann. § 62-2907 (b) (Repl. 1971) states: “[u]nless otherwise provided in the will, a specific devise of property shall be construed to include income or increment accruing to such property while in the hands of the personal representative.” Income or increment growth while the property was in the hands of the personal representative was a question of fact to be decided by the trial court. The court below found there was no such growth or interest. The court further found that the executrix started making disbursements to the appellees in 1965 and that the entire 12% of the estate had been distributed. Appellees were awarded 6% interest on their intestate share commencing on October 5, 1980, which was the date of the Court of Appeals’ decision holding that the 12% bequest was specific rather than residuary and that they took part of the residue as heirs at law. Arkansas Stat. Ann. § 62-2907 (a) (Supp. 1983) provides for interest on general legacies; however, until 1975 this statute expressly provided that general legacies “shall not bear interest.” Appellees were not general legatees. They were specific legatees and also heirs at law receiving by the lapse of part of the estate into intestacy. Neither were the appellees residuary legatees. They were heirs to the intestate part of the residual portion of the estate and specific legatees to the 12% bequest in the codicil. In addition to the decision being the law of the case, we think the Court of Appeals was correct in holding that the 25% of the original residue was effectively revoked by the codicil and was otherwise not disposed of by the will or the codicil.

All fact findings by the trial court must be sustained because no record of any factual testimony has been abstracted and briefed by either party. Apparently no stenographic report of any hearing after remand was made.

Affirmed on direct and cross appeal.

Hubbell, W., C.J., not participating.


author: Webb Hubbell, Chief Justice. P. A. Hollingsworth, Justice,

text:
    MILLER’S MUTUAL INSURANCE CO. OF ILLINOIS v. KEITH SMITH CO., INC.
    84-155
    680 S.W.2d 102
    Supreme Court of Arkansas
    Opinion delivered December 3, 1984

      R. Eugene Bailey, and Rick Sellers, for appellant.

      Gale Stewart, for appellee.
   Webb Hubbell, Chief Justice.

On March 20, 1980, appellee, Keith Smith Co., Inc., filed a complaint for $95,000.00 against appellant, Miller Mutual Insurance Company, for damages to its chicken houses. The case was set for trial but was twice continued pending the outcome of a test case Southall v. Farm Bureau Mutual Ins. Co., 276 Ark. 58, 632 S.W.2d 420 (1982).

Following our decision in Southall, the complaint was amended to ask for $130,000.00; a few weeks later the complaint was again amended to ask for $112,500.00. Appellant then confessed judgment but denied liability for penalty and attorneys’ fees. The trial court awarded a penalty in the sum of $13,500.00 and attorneys’ fees in the sum of $38,000.00. Appellant appeals alleging that appellee is not entitled to recover the statutory penalty or attorneys’ fees. Appellant also asserts that the attorneys’ fees in this case were excessive and unreasonble. We affirm in part and reverse in part.

Where an insured loss occurs and an insurance company fails to pay the loss within the time specified in the policy, then the insurance company is required to pay, in addition to the loss, a 12% penalty plus reasonable attorneys’ fees. Ark. Stat. Ann. § 66-3238 (Repl. 1980). Since this statute is penal in nature, we strictly construe it. Callum v. Farmers Union Mutual Ins. Co., 256 Ark. 376, 508 S.W.2d 316 (1974). The plaintiff must recover the exact amount claimed in order to collect the penalty and attorneys’ fees. Farm Bureau Ins. Co. v. Paladino, 264 Ark. 311, 571 S.W.2d 86 (1978); Southwestern Ins. Co. v. Camp, 253 Ark. 886, 489 S. W.2d 498 (1973). We have also held that where a plaintiff reduced its claim against an insurance company to the correct amount and the company promptly confessed judgment for that amount, the trial court correctly refused to assess the penalty and attorneys’ fees. Armco Steel Corp. v. Ford Construction Co., 237 Ark. 272, 372 S.W.2d 630 (1963).

In the case at bar, appellee initially sued for $95,000.00. After our decision in Southall v. Farm Bureau, supra, appellee first amended its complaint to $130,000.00, then amended a few weeks later to ask for the correct amount, $112,500.00. Relying on Armco Steel Corp. v. Ford Construction Co., supra, appellant asserts that since appellee reduced its claim to the correct amount, appellant should be able to confess judgment and avoid penalty and attorneys’ fees.

However, appellee had initially sued for $95,000.00, and appellant had two years to pay the claim for less than the correct amount. If the insurer has previously refused to pay the correct amount claimed, the penalty and attorneys’ fees are correctly assessed even though the insurer later confesses judgment. Federal Life & Casualty Co. v. Weyer, 239 Ark. 663, 391 S.W.2d 22 (1965); Continental Casualty Co. v. Vardaman, 232 Ark. 773, 340 S.W.2d 277 (1960); Equitable Life Assurance Society of the U.S. v. Gordy, 228 Ark. 643, 309 S.W.2d 330 (1958). When an insurance company has had a reasonable opportunity to pay a claim for an amount less than or equal to the correct amount due under the policy and the company fails to pay the claim, then the penalty and fees are properly allowed even though the insurer later confesses, judgment. Our holding in Armco Steel is not applicable to the facts in this case because appellant did have a reasonable opportunity to pay an amount less than what was due under the policy.

Appellant also asserts that the attorneys’s fees in this case were excessive and unreasonable. The question of attorneys’ fees was submitted to the trial court, and, after a hearing in which expert testimony and other evidence were presented, the court allowed fees in the amount of $38,000.00. An award of attorneys’ fees is a matter within the sound discretion of the trial court, and, in the absence of abuse, its judgment will be sustained on appeal. Southall v. Farm Bureau Mutual Ins. Co. of Ark., 283 Ark. 335, 676 S.W.2d 228 (1984); Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974).

The computation of allowable attorneys’ fees under the statute is governed by familiar principles: 1) experience and ability of the attorney; 2) time and work required of the attorney; 3) the amount involved in the case and the results obtained; and 4) the fee charged in the locality for similar service. Southall v. Farm Bureau Mutual Ins. Co. of Ark., 283 Ark. 335, 676 S.W.2d 228 (1984). Appellant asserts that the number of hours spent by appellee’s attorneys were excessive and that there was nothing unique about this case. Those arguments were raised at the trial court, and the court made certain specific findings: 1) attorney Jackson spent 52 hours, and the Miller firm spent 110 hours (the court disallowed 30.3 hours); 2) the difficulty and novelty of the question were unique; and 3) the time spent by the attorneys precluded representation of other clients. The trial court also found:

The fee customarily charged in this community for cases of this type is a contingent fee of 1/3. However, the Rummell Rule, 257 Ark. 90 requires that the Court determine an amount that a well prepared attorney would charge to devote sufficient time to prepare the cause. The court finds that $80.00 per hour is a reasonable charge without considering the other factors. . . .

These specific findings of the trial court do not represent an abuse of discretion.

However, the court awarded a fee of $38,000.00. This amount represents an hourly rate of almost $240.00 per hour or three times the customary and reasonable charge in the area. While other factors must certainly be considered by a court in determining what constitutes a reasonable fee, the actual time spent and the customary reasonable charge in the area must play an important role. Franklin Life Insurance Company v. Burgess, 219 Ark. 834, 245 S. W.2d 210 (1952). In light of the trial court’s finding, a premium over and above the customary hourly rate is appropriate, but tripling the hourly rate is excessive. We reverse the attorneys’ fees award of $38,000.00 and approve a fee allowance of $14,904.00, $80.00 per hour plus a 15% premium. We also allow $1,500.00 additional attorney’s fee to appellee’s counsel for services rendered on appeal.

Affirmed in part; reversed in part.

Hollingsworth, J., dissents.

P. A. Hollingsworth, Justice,

dissenting. The Court decides today to reduce attorney’s fees in this case by almost $23,000 but does not discuss how the trial court abused its discretion. The trial court found that $80.00 an hour was a reasonable charge but obviously gave the attorneys involved a premium following the principles which we have previously stated control these cases. The trial court’s award should be sustained. There was an extensive hearing on this issue and I can see no abuse of the trial court’s discretion. The Court today merely substitutes their judgment for that of the trial judge. We should not reverse matters within the sound discretion of the trial judge because of our different persuasion about an issue. The decision today discourages attorneys from accepting difficult and unusual cases. The purpose of the Act is to discourage insurance companies from acting arbitrarily in recognizing claims. The provision for the award is a punitive measure against the undesirable acts of the insurance industry but is also an incentive to encourage attorneys to represent litigants in the position of the appellee. We should not punish the attorneys for accepting difficult cases as this decision does today. I would sustain the award.


text:
    Mary Ellen JACKSON, Jerry D. JEWELL and Ometa M. JEWELL v. FARM AND COMMERCIAL PROPERTIES
    84-186
    680 S.W.2d 105
    Supreme Court of Arkansas
    Opinion delivered December 3, 1984

      Acchione & King, by: Harold King; and Lazar M. Palnick, for appellant.

      Plegge &r Church, by: Beresford L. Church, Jr., for appellee.
   Webb Hubbell, Chief Justice.

This is an appeal from a decree of the Pulaski County Chancery Court ordering appellants, Mary Ellen Jackson, Jerry Jewell, and Ometa Jewell to specifically perform a contract to sell real property. Jerry Jewell borrowed money from Barney Mays and deeded property to Dorothy Mays as security for the loan. Dr. Jewell and Barney Mays had an understanding that the property would be reconveyed upon repayment of the loan. Barney Mays, who was president of Mays Realty, listed the property for sale. One of his agents found a buyer, appellee, who made an offer to purchase the property on January 9, 1979. During that same month, Dr. Jewell repaid the loan, and at Dr. Jewell’s request, Mrs. Mays deeded the property to Dr. Jewell’s secretary, Mary Ellen Jackson. Appellee made another offer; the offer and acceptance was signed; and $200.00 earnest money was accepted by the agent of Mays Realty. On April 23, 1981, appellee sued for specific performance of this land sale contract. The chancellor ruled that the contract was valid and that appellee was entitled toa decree of specific performance. Appellants urge error in the chancellor’s finding that Mary Ellen Jackson had authority to sign the land sale contract and error in actions by the chancellor at trial. We affirm.

The chancellor made the following findings of fact: 1) Mary Ellen Jackson held record title to the real property; 2) Mary Ellen Jackson entered into the written land sale contract with appellee as buyer; 3) Mary Ellen Jackson signed the contract at the direction of Jerry Jewell and as agent of Jerry Jewell and Ometa Jewell, and her signature on the contract is not a forgery. Findings of fact by the chancellor shall not be set aside unless clearly erroneous or clearly against the preponderance of the evidence. ARCP Rule 52. Ivey v. Bray, 278 Ark. 475, 647 S.W.2d 430 (1983). Since the question of preponderance turns heavily on the credibility of the witnesses, we defer to the superior position of the chancellor in this regard. Hackworth v. First National Bank of Crossett, 265 Ark. 668, 580 S.W.2d 465 (1979). Mary Ellen Jackson held record title to the property. Her signature appeared on a valid contract for the sale of land for which consideration in the amount of $200.00 was paid. One of the partners of Farm and Commercial Property testified that although he had numerous conversations with Dr. Jewell about the price of the property, “there was never anything said that it [the signature] was a forgery or even anything improper about it.” An agent for Mays Realty testified that Dr. Jewell set up an appointment with him to meet with Mary Ellen Jackson for her to sign the offer and acceptance. He further testified that he took the offer to her apartment where, stating she was authorized to sign by Dr. Jewell, she signed it in his presence. We conclude the chancellor did not err in finding that Mary Ellen Jackson, as Dr. Jewell’s agent, had authority to sign the offer and acceptance nor in awarding appellee specific performance of the land sale contract.

Appellants also contend the chancellor erred in prematurely ruling that Mary Ellen Jackson’s signature was not a forgery and in calling a witness to the stand after he had been excused. In the direct examination of Jerry Jewell concerning Mary Ellen Jackson’s signature, he stated “I think it’s a forgery.” The chancellor then stated “The Court made a Ruling on that, or if it didn’t, the Court is going to make a Ruling after taking extensive evidence that that is not a forgery. That that is Ms. Jackson’s signature, and let’s move on from that question.” Although the trial court may have erred in refusing to accept appellants’ evidence that the signature on the offer and acceptance was a forgery, appellants’ counsel did not attempt to proffer any evidence. An exclusion of evidence cannot be reviewed in the absence of a proffer showing what the evidence would have been. Malcolm v. Thompson, 280 Ark. 275, 658 S.W.2d 357 (1983).

At the beginning of the proceedings, appellants’ counsel had requested “the rule” to be invoked, and the chancellor so ordered. During the questioning of appellee’s second witness, the first witness, who had been excused, re-entered the courtroom. The chancellor recognized his presence, asked him a question, and allowed appellant’s counsel to question him. Although the chancellor’s action may have constituted error, counsel for appellee failed to object. The absence of a timely objection precludes a consideration of the matter on appeal. Hopper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983).

Affirmed.

Hays, J., not participating.


text:
    IN RE PROPOSED LOCAL RULES FOR FIRST DIVISION PULASKI COUNTY PROBATE COURT IN THE MATTER OF ALL OUT OF STATE ADOPTIONS
    84-37
    682 S.W.2d 452
    Supreme Court of Arkansas
    Opinion delivered December 3, 1984

      Ray Hartenstein and Kaye S. Oberlag, for petitioners.

      Steve Clark, Att’y Gen., by: Elizabeth Dowling, Asst. Att’y Gen., for respondents.
   John I. Purtle, Justice.

Petitioners are practicing attorneys with offices in Pulaski County, Arkansas. They have asked this court to stay enforcement of a local rule adopted by the First and Third Divisions of the Pulaski Probate Court dealing with adoptions. The Judges of the Second and Fourth Divisions of the Pulaski Probate Court declined to join in the enactment of the rule. We granted a temporary stay in order that the arguments could be briefed.

The local rule, adopted pursuant to ARCP Rule 83, was filed with this court and contains the following provisions: 1) the Arkansas Department of Social Services must be informed of the presence of the pregnant mother in this state; 2) in all out of state adoptions, the adopting parents must furnish a home evaluation report from their home state from a state agency charged with the responsibility of placement of children in that state; 3) the local courts will apply the adoption criteria of the adoptive parents’ home states; 4) the natural mother must appear before the local court in a separate hearing before any hearing involving the adoptive parents; 5) if the mother of the child to be adopted is less than 18 years of age her guardian must appear for the purpose of giving consent; 6) all expenses of the adoption must be presented at the time of the initial hearing, and only reasonable expenses will be approved; 7) when the mother and adoptive parents have entered into an adoptive agreement, the adoption proceedings should be commenced when the pregnant mother becomes domiciled in this state, a copy of such agreement to be filed of record and notice to be given to the Arkansas Department of Social Services; and 8) the natural mother and prospective parents must file an agreement that if the child is born with defects he will not become a ward of the State of Arkansas and that they are mutually responsible for the care and welfare of the child’s future.

Petitioners argue the rule is in conflict with Ark. Stat. Ann. § 56-201 through § 56-221 (1983 Supp.), our Revised Uniform Adoption Act, being Act 735 of 1977, and constitutes judicial legislating in violation of Article 4, Section 2, of the Constitution of Arkansas. The brief of the Attorney General refutes those arguments.

In some respects the provisions of the rule in question do appear to run counter to the Revised Uniform Adoption Act, but in many respects we think the Probate Judge has the inherent power to order the identical steps set out in the rule as a matter of judicial discretion. However, we need not take up the provisions piecemeal, or on their merit, as we have the matter of all local rules under consideration and whether local rules should be retained. For that reason alone we ought to decline at this time to approve a local rule of doubtful necessity, particularly in light of the fact that two of the four divisions involved would be governed by the rule, whereas the remaining two would not, with obvious problems for the practitioner and the litigant. Accordingly the petition for a stay of enforcement of the order is granted.

      These rules may from time to time be supplemented by local chancery and circuit courts provided such supplemental rules do not conflict herewith and further provided that such supplemental rules shall not become effective until a copy thereof shall have been filed with the Clerk of the Supreme Court of Arkansas. In all cases not provided by rule, each chancery and circuit court may regulate its practice in any manner not inconsistent with these rules.


text:
    BLISSARD MANAGEMENT AND REALTY, INC. and Dwight BLISSARD, Jr., v. Bettye KREMER
    84-158
    680 S.W.2d 694
    Supreme Court of Arkansas
    Opinion delivered December 3, 1984
    [Rehearing denied December 21, 1984.]

      Huckabay, Munson, Rowlett if Tilley, P.A., for appellants.

      Davidson Law Firm, Ltd., for appellee.
   John I. Purtle, Justice.

The trial court declared a mistrial when it apparently decided the verdict returned by the jury did not express their true intent. Both plaintiffs and defendant appeal, each arguing that the court should reform the verdict to conform with their own conclusions. We hold that under the circumstances of this case the trial court properly exercised its discretion in declaring a mistrial and placing the matter back on the trial docket.

Appellee sued the appellants and a third party as a result of injuries she received from a fall on allegedly unlighted common ground of the condominiums where she resided. The third party made a separate settlement and was released from the lawsuit prior to the trial. By amended complaint appellee alleged negligence and breach of contract of repair and maintenance by Dwight Blissard, Jr. and Blissard Management and Realty, Inc. (appellants) who managed the condominium which appellee rented. The answer and counterclaim alleged contributory negligence and assumption of risk. The trial court permitted appellee to argue damages based upon breach of an. oral contract between her and appellants. At least one instruction was given on a negligence theory (AMI 301). Instructions on ordinary care and assumption of risk were also given.

The verdict returned by the jury was as follows:

We, the Jury, find for the Defendant, Dwight Blissard, Jr. and Blissard Management & Realty, Inc. on the Complaint of the Plaintiff, Bettye Kremer, and for Bettye Kremer, the Plaintiff, on the complaint of the Defendant, Dwight Blissard, Jr. and Blissard Management & Realty, Inc. . _ , .

It is readily apparent that the verdict is subject to more than one interpretation. The writing on the left hand side was not noticed until after the jury was dismissed. Immediately thereafter three members of the jury panel went into the court chambers and informed the judge that they were confused by the verdict form but wanted to make the award as it was written on the side. Both parties requested that the verdict be reformed by the court but they did not agree on the proper manner of reformation. Eventually the court entered the mistrial and both parties appeal.

Appellants contend the verdict should be amended to reflect the figures written in on the left side of the verdict and that they should be given credit for the amount paid by the third party. This amount being greater than $5,000, the appellants would owe appellee nothing. In the alternative, appellants argue that the notations on the verdict form should be disregarded as meaningless surplus. The appellee wants the verdict reformed but wants the $500 deducted from the $5,000, thereby leaving a verdict in favor of the appellee in the amount of $4,500.

It is the practice of this court to accept as correct the decisions of the trial court which the appealing parties do not show to be wrong. Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977). Neither party has really argued that the trial court did not have discretion to declare the verdict invalid. They have each argued instead that the court did have discretion to reform the verdict in their favor. Perhaps this could be treated as arguing that the court abused its discretion. The parties each claim the case was tried under different theories. There is reason to believe AMI 301 was inadvertently given because the court restricted appellee’s argument to breach of contract. However, we do not reach these issues because we decide the matter on the issue of the discretion of the court.

For a very long time we have held that a court retains control over its j udgments during the term at which they are made. When a judgment is set aside during the term, the parties are put back in the position they were in before the judgment was entered. Underwood v. Sledge, 27 Ark. 295 (1871). During the term a judgment remains subject to the plenary control of the court and may be vacated, set aside, modified or annulled upon application or upon the court’s own initiative. Stinson v. Stinson, 203 Ark. 888, 159 S.W.2d 446 (1942). The power of the courts to modify or set aside a judgment during the term it was entered [now 90 days: ARCP Rule 60 (b)] exists as an inherent power and outside of any rule or statute. Massengale v. Johnson, 269 Ark. 269, 599 S.W.2d 743 (1980).

Neither party having shown the trial court abused its' discretion in declaring a mistrial and returning the case to the trial docket, we uphold the trial court’s action.

Affirmed on direct and cross appeal.


text:
    D. A. LANGSTON d/b/a D. A. LANGSTON ENTERPRISES v. Wilbur and Peggy HILEMAN
    84-167
    680 S.W.2d 89
    Supreme Court of Arkansas
    Opinion delivered December 3, 1984

      Herby Branscum, Jr. for appellant.

      E. Winton Mclnnis, for appellees.
   John I. Purtle, Justice.

Appellant, one of two defendants, was on the losing side of a jury trial. His motion for a new trial, based upon juror misconduct, was denied by the trial court. Appellant argues on appeal that the trial court erred in failing to grant a new trial. We agree with the appellant.

The facts of this case reveal that Wilbur and Peggy Hileman purchased a double wide mobile home from Big Three Mobile Homes, Inc. The home was manufactured by D.A. Langston, d/b/a D.A. Langston Enterprises (appellant). The Hilemans paid $32,904.38 for the structure. Shortly after the building was assembled the roof commenced to leak and the floors buckled. The appellant made several attempts to correct the defects but was unable to satisfy the appellees who sued Big Three who in turn brought in the appellant as a co-defendant. During the trial Big Three was let out on a motion for directed verdict. The jury verdict in favor of appellees was $35,000 to which the court added $7,082 for attorney’s fees and court costs.

After the trial the appellant learned that the president of Big Three had been seen talking with the jury foreman during the trial. Appellant alleged the jury foreman was also observed during the recess, showing other jurors pictures, and pointing out things to them which had been introduced as exhibits during the trial. Allegedly the foreman had been seen talking to a witness for the plaintiff during every recess during the two day trial. Based upon this evidence the motion for a new trial was made and overruled by the trial court. After entry of judgment the motion was renewed and after a hearing was again denied.

At the first recess during the trial the court instructed the jury not to discuss the case with each other or anyone else. The court also instructed the jury: “Please have no conversation with the attorneys, with anyone who is a party in the case or with anyone who is believed by you to be a witness in the case.” He specifically told the jurors they could “smile” or “greet” each other but no other conversation would be allowed. Further conversation, he said, would result in correction by the court. The same type of instruction was given at the end of the first day. There seems to be no dispute that the trial court properly and correctly admonished the jury and that the foreman more or less openly disregarged the admonition of the court.

At the hearing on appellant’s motion for a new trial the foreman denied he was discussing the case while talking to the witness and he denied discussing the case with other jurors or with the owner of Big Three. However, any conversation with a witness violated the court’s admonition.

The single issue before this court is whether the trial court erred in refusing to grant a new trial. The standard in making this decision is whether the trial court abused his discretion in overruling the motion. We hold that he did. Moody Equipment & Supply Co. v. Union National Bank, Adm’r, 273 Ark. 319, 619 S.W.2d 637 (1981). In Moody we upheld the granting of a new trial by the trial court on account of a witness anda juror flirting during the trial. We stated that the latitude of the trial court’s discretion increased proportionately as the situation presented to him a question that could not be as well presented to us by the printed record. In the present case we have it all in the printed record. The admonition was for the jurors not to discuss the case with anyone. They were also specifically told not to talk to the lawyers, parties or witnesses. Even though the foreman and the witness may not have talked about the case the conversation was in open and direct contradiction of the instruction by the court. The conversation between the juror and the witness in Moody concerned the juror’s remarks about the witness’s “pretty blue eyes” and the witness asking the juror if he could come by to see her sometime. The conversation in no manner concerned the issues of the trial. Nevertheless the trial court felt there was the appearance of impropriety and granted a new trial. This court affirmed the order granting a new trial.

After the hearing on the motion for a new trial the court very reluctantly turned down the motion for a new trial. In doing so the court stated: “I’ll tell you once again, and for the record, I myself am suspicious of what occurred. It was in direct conflict with the court’s instructions to the jury. . .on numerous occasions.” The trial court contemplated contempt proceedings involving the juror but instead considered the fairness and reasonableness of the verdict and decided to deny the motion for a new trial.

It is a well established principle that “justice ought not only to be fair, but appear to be fair.” Arkansas State Hwy. Comm. v. A.L. Young, 241 Ark. 765, 410 S.W.2d 120 (1967). When we consider the conduct of the jury foreman and the two witnesses we must conclude that in the present case there was at least the appearance of unfairness. Under the special circumstances of this case we are of the opinion and can say with confidence that the trial court markedly abused his discretion. By this decision we do not imply that we are departing from the established principle that we will uphold the trial judge unless there is an abuse of discretion. Moody, supra. A jury verdict is not to be set aside arbitrarily and without reasonable cause. Big Rock Stone & Material Co. v. Hoffman, 233 Ark. 342, 344 S.W.2d 585 (1961).

Reversed and remanded.

Hickman, J., dissents.


text:
    John David COSTON v. STATE of Arkansas
    CR 84-52
    680 S.W.2d 107
    Supreme Court of Arkansas
    Opinion delivered December 3, 1984

      Boswell, Smith if Clardy, by: Ted Boswell, for appellant.

      Steve Clark, Att’y Gen., by: Velda West Vanderbilt, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The trial court denied appellant’s request for Rule 37 relief on a claim of ineffective assistance of trial counsel. Four specific and one catchall grounds are argued on appeal. None of them amount to prejudicial grounds requiring reversal of the decision of trial court.

The first argument is that the trial counsel was ineffective by failing to object to certain hearsay evidence thereby preventing argument on appeal' that the evidence was erroneously received. The evidence was a statement made by an accomplice who did not testify at appellant’s trial. Defense trial counsel asked an officer to read a part of the accomplice’s statement which read: “I did shoot Britt Coleman with a .16 gauge shotgun.” The state, on cross-examination, had the officer read additional parts of the statement which revealed the shotgun was owned by appellant. Defense counsel then objected but did not get a ruling from the trial court. The state’s witness continued to read from the statement without objection. There was no redirect examination by defense counsel. Appellant points to the opinion of the Court of Appeals which held that the evidence was invited or objection was waived. Coston v. State, 10 Ark. App. 242, 663 S.W.2d 187 (1984).

The trial court, at the request of appellant’s present counsel, made detailed findings of fact and conclusions of law. The trial court concluded at the Rule 37 hearing that defense counsel’s strategy was to show conclusively by the hearsay evidence that it was not appellant who shot Britt Coleman. The court found that counsel’s failure to vigorously oppose the reading of additional parts of the hearsay statement was a calculated risk as part of his strategy. The court was aware of trial counsel’s experience both as defense counsel and as the elected prosecuting attorney for that district. A claim of ineffective assistance of counsel cannot be based upon improvident strategy. Mitchell v. State, 271 Ark. 512, 609 S.W. 2d 333 (1980). We cannot say that the finding by the trial court was clearly against the preponderance of the evidence. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982); Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980).

The second argument is that the trial counsel erred in introducing and allowing the state to explore a past misdemeanor conviction for possession of marijuana. No doubt defense counsel was at all times aware that the state had a full and complete confessional statement voluntarily made by appellant before counsel was employed. One part of that statement reads: “Told him I had — I had been through this, this kind of stuff before.” Counsel testified the statement had already been read to the jury and he wanted to let his client explain it. This type of strategy is used often by able and experienced defense attorneys. The trial defense counsel had 34 years trial experience. It is true the prior conviction could not have been introduced for the purpose of showing other crimes or wrongs. Unif. R. Evid. 404. Neither was it admissible under Unif. R. Evid. 609. However, the appellant had told his attorney he had a prior marijuana conviction thereby leading counsel to believe it was a felony. He could have been questioned about a prior felony conviction when he took the stand, as he did. Striking first in the case when it is known that damaging evidence is forthcoming is a frequent trial strategy by able and experienced attorneys. The trial court made lengthy findings on this issue and concluded that trial counsel acted within acceptable standards and we cannot say that the decision of the trial court was clearly erroneous.

The third argument is that trial counsel erroneously failed to request AMCIs 201 and 403. The first instruction explains to the jury the proof and requirements relating to co-conspirators and the second relates to accomplice status when the issue is in dispute. In view of the appellant’s written confession it is understandable how strategy might differ in the defense as compared to a defense where the accused had not confessed. Hindsight might actually calase defense counsel to think he should have gone about the defense in a different manner. However, the same may be said about any trial strategy. The trial attorney testified that he did not request AMCI 403 because he felt the state could use it as fuel to advance the impact of its closing argument. The attorney stated that the appellant’s statement contained sufficient evidence to corroborate the accomplice testimony. The trial court found that defense counsel had the discretion as a matter of trial tactics not to ask that these two instructions be given. The decision to ask for specific instructions must be made after completion of the trial and the circumstances may not be the same in any two cases. Defense counsel no doubt made his decision based upon the entire proceedings including his observation of the witnesses and the expected impact upon the jury. From the record and the findings of fact and conclusions of law made by the trial court we conclude that it was not prejudicial error not to request these two instructions.

The fourth and final argument for reversal is that other errors not previously argued, when combined with those argued, prove not only that the trial counsel’s efforts were insufficient but also that appellant did not receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981); Strickland v. Washington, _U.S. _ 104 S. Ct. 2052 (1984). One of the errors argued concerns the failure of trial counsel to request severance of the battery charge and the marijuana charge. Counsel explained that he knew he would be entitled to severance of the two different unrelated charges but felt trying them together might cause the jury to impose a lesser penalty than if they were tried separately. Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979). Also, he wanted to try the battery case before the accomplice was tried in order to take advantage of the accomplice’s expected invocation of his fifth amendment right to refuse to testify. The accomplice in the battery case did not testify. At least it is known that one part of the strategy worked. We would have to speculate to state that the other part did not.

An inflammatory article appeared in the Arkansas Democrat, a newsnaper with statewide circulation, the day before the trial commenced. The story gave a vivid account of how the victim of the battery survived after being shot several times with a shotgun and left to die in the countryside. Appellant argues a change of venue or continuance should have been sought. Defense counsel again considered the necessity of beating the accomplice to trial. He also considered the likelihood of a more severe penalty after a trial in an adjacent county. Having been a prosecutor in the district, he was well acquainted with the general feeling, in both counties, of how to deal with a marijuana peddler. He chose Clark County. Like the trial court we are not able to state that his decision was even improvident, let alone ineffective.

We have considered arguments relating to voir dire of the jury, peremptory challenges, waiver of the right to remain silent, challenges for cause, improper questions about a police scanner, a stipulation that a substance was marijuana, conflict of interest of the prosecutor, absence of appellant during selection of jury instructions, and absence of appellant when the jury returned to the courtroom. The trial court found that the jury did not return to the courtroom during deliberations. The jury , as seated all agreed to hold the state to the “beyond reasonable doubt” burden and to forget anything they may have read or heard about the case and to try the case strictly in accordance with the instructions of the court. The court made specific and detailed findings on each and every one of these arguments and we are unable to hold that the opinion of the trial court was clearly against the preponderance of the evidence. Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981).

It would unduly lengthein this opinion to respond in detail to every single argument presented in appellant’s excellent brief. We have considered all of them and carefully scrutinized the trial court’s findings of facts and conclusions of law. The appellant himself supplied most of the compelling evidence against himself when he voluntarily gave a confession. The trial counsel was at a distinct disadvantage because of that confession. Trial counsel made decisions which may have been different had the confession not existed. Considering all of the circumstances we find any error by defense counsel was not prejudicial and did not result in denying appellant a fair trial. Blackmon v. State, supra; Strickland v. Washington, supra.

Affirmed.


author:
Robert H. Dudley, Justice. Webb Hubbell, Chief Justice, John I. Purtle, Justice,
      P.A. Hollingsworth, Justice,

text:
    William GAULDEN v. EMERSON ELECTRIC COMPANY
    84-187
    680 S.W.2d 92
    Supreme Court of Arkansas
    Opinion delivered December 3, 1984

      Law Office of Jim Lyons, by: Scott Emerson, for appellant.

      Cathey, Goodwin, Hamilton ir Moore, for appellee.
   Robert H. Dudley, Justice.

The plaintiff, William Gaulden, contends that the trial court erred by dismissing his amended complaint for failure to state facts upon which relief could be granted. Jurisdiction is in this court to construe the Arkansas Rules of Civil Procedure. Rule 29(1 )(c). We affirm the trial court.

In the amended complaint, plaintiff alleged that he was employed by defendant, Emerson Electric Company, as a truck driver and in September, 1982, “was laid off for lack of work”; that on December 15, 1982, defendant’s personnel manager requested that he return to work by 7:00 a.m. the next morning; and that he told the personnel manager that he had an illness which might prevent his return to work. Additionally, the amended complaint recited that on December 15th, he was taking the prescription drug Compazine, which caused him to experience dizziness. Additional averments were that he did not report for work at the designated time and place but, two hours later, telephoned defendant’s personnel manager to tell him that he would be a few hours late; that he was then told he was discharged for failure to “make the run on time and failure to notify the defendant of his illness.”

On appeal, plaintiff first contends that portion of the three count complaint, set out above, states a cause of action both in contract and in tort for wrongful discharge. See Comment: Wrongful Discharge of Employees Terminable At Will - A New Theory of Liability in Arkansas, 34 Ark.L.Rev. 729 (1980).

Almost a century ago we began to follow the common law rule that when a contract of employment does not bind the employee to serve for a specified time, the contract may be terminated at will by either party, even though the contract provides that the employee can be discharged only for cause. See St. Louis, I.M. & S. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897); Petty v. Missouri & Arkansas Ry. Co., 205 Ark. 990; 167 S.W.2d 895, cert. den. 320 U.S. 738 (1943). The harshness of this common law rule is being softened in many jurisdictions. See Annotation, 12 ALR4th 544 (1981). Twice, we have recognized the new trend without finding it necessary to explore this issue. Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982); Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984).

That part of the complaint set out above does not allege any facts which bring the plaintiff within any of the proposed exceptions to the employment at will doctrine. Rule 12(b)(6), which tests the sufficiency of the pleadings, provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted” while Rule 8, which deals with the content of the pleadings, provides:

A pleading which sets forth a claim for relief, whether a complaint, counterclaim, cross-claim, or third party claim, shall contain... (2) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief . . . (emphasis supplied).

The sole allegation is that plaintiff told defendant that an illness might prevent him from making the trip the next day. The complaint does not aver that defendant was informed that plaintiff was taking prescription medication or was suffering from dizziness. Moreover, the complaint reflects that plaintiff failed to notify appellee that he would not be at work the next day. Since no facts were alleged which would have brought the plaintiff within any of the proposed exceptions to the employment at will doctrine, there is no need for us to further explore the exception issue, and we affirm for failure to state facts upon which relief can be granted. See Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981).

Plaintiff’s second point of appeal is that he was not a mere at will employee but had completed a probationary period and could be fired only for good cause. In this portion of the amended complaint plaintiff alleged that he contracted with defendant for probationary employment to be followed by employment which could be terminated only for good cause. He additionally alleged that he had completed his probationary period.

We have clearly stated that we will reexamine our doctrine when we are presented with a case in which the contract of employment provides for discharge only for cause and the employee is discharged arbitrarily or in bad faith. Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984). In fact, in Jackson we reversed the granting of a summary judgment in order that the facts of the case could be developed on this precise issue. However, in the case at bar, the plaintiff has not stated a cause of action, for even if we should decide to change our law to prohibit an arbitrary or bad faith discharge when the contract requires cause, this complaint shows that the defendant had good cause to discharge plaintiff. The complaint recites that defendant informed plaintiff that he was being discharged for “failure to make the run on time and because of his failure to notify defendant of his illness. . .” and the complaint further recites that plaintiff, in fact, did not report for work at the designated time and place.

Affirmed.

Hubbell, C.J., and Hickman, J., concur.

Purtle, J., and Hollingsworth, J., dissent.

Webb Hubbell, Chief Justice,

concurring. I concur in the result reached by the majority, but I am concerned that we are further opening the floodgates of employment litigation. In Jackson v. Kinark, 282 Ark. 548, 669 S.W.2d 898 (1984), we seem to indicate that an employee handbook may give rise to an employment contract for an indefinite term. The majority now seems to accept appellant’s argument that the employment application which said that the employee will be on probation for the first three months creates an employment contract after three months which would require the employer to discharge the employee only for cause.

I do not believe that we should even hint that an application, like the one in this case, establishes a duty on the employer not to discharge without cause.

Hickman, J., joins in this concurrence.

John I. Purtle, Justice,

dissenting. I respectfully disagree with the majority opinion primarily because I think the archaic dpctrine of complete employment-at-will is no longer in keeping with public purpose and current law. Even if we are to uphold the employment-at-will doctrine, this case is an exception and should be reversed.

The employment-at-will doctrine allows an employer to discharge an employee for holding out for constitutionally protected and guaranteed rights. It also approves discharge for spite. This type discharge should no longer be condoned and many jurisdictions are casting it aside. We should do likewise. In fact I am of the opinion this court has acknowledged its duty and obligation to re-examine our policy on this issue. Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984); Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982). We again have the opportunity to consider the unfairness and harshness of the old rule. Thank goodness we as a society in general have moved away from this antiquated system by creation of Civil Service Commissions, employment contracts and other enlightened employment relationships. So long as we keep ducking the issue as we did in Jackson and Griffin we will not bring Arkansas into the fold of modern employment policies. How long shall we endure discrimination and abuse of workers before we recognize that an employee has a right to know what might cause him to lose his job and the reason if he is terminated? A good employer will no doubt be fair and honest with employees ,and they with the employer. There is nothing to fear by adopting needed changes in current public policy in the matter of employment of workers. Certainly the employer will still retain the authority to dismiss unproductive and uncooperative employees for any valid reason. However, he ought not to be able to dismiss any employee purely because of political or religious belief or the color of his skin. It is likely that the federal courts will give some relief in these matters but wrongfully discharged employees ought to have also the protection of our state courts.

I believe the appellant stated a cause of action and was entitled to have it heard in court. It may well be that he would have lost if it had been tried; nevertheless, he was, in my opinion, entitled to be heard. What was the purpose of having him undergo a probationary period of employment if he was to have no more job security after his apprenticeship was completed?

The appellant may well have been in violation of rules of the Transportation Department if he had gone to work two hours earlier. If he were on drugs, which he said he was, and the medicine made him drowsy, he was forbidden by law to drive a truck. Even if he was ill, and that is not disputed, he could have been a danger to the public and also in violation of regulations relating to truck drivers. He reported ready for work two hours late but had forewarned the employer he might be unable to drive. It seems to me simple justice and fair play required the employer to check into the matter before firing him and that the court should have heard the matter rather than summarily dismissing his claim.

I do not contend the appellant possessed a property right in the employment which guaranteed full due process procedure. However, I believe the majority is clearly wrong in accepting the employer’s averments as true and disregarding appellant’s claim that he could be terminated only for cause.

P.A. Hollingsworth, Justice,

dissenting. I dissent from the Court’s affirmance of this case. This Court has stated that it would re-examine the employment-at-will doctrine in light of the trend to soften its harshness as adopted by other jurisdictions. Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984). The reason this Court has not dealt with the new trend previously is due to the summary disposal of the cases. The Court believed the facts were not properly developed for consideration of this issue. Once again in this instance the maj ority is avoiding dealing with the doctrine by upholding the trial court’s granting of a motion to dismiss for failure to state facts upon which relief can be granted. Ark. R. Civ. P. Rule 12 (b)(6).

I believe the appellant did allege facts in his amended complaint upon which relief could be granted. Appellant informed the appellee that he might not be able to make the run the next morning due to his illness. This was sufficient notice to the appellee.

The granting of the motion to dismiss should be reversed so that this Court can reconsider the rigid employment-at-will doctrine. This issue is of extreme importance to the citizens of this state. Our economic hard times require that employees be informed as to what infractions can cause them to lose their jobs. It is highly unconscionable that an employee can be fired at the employer’s whim. This Court must examine again its construction of the employment-at-will doctrine in order to alleviate this atrocity. This case was ripe for this determination. I would reverse the lower court’s decision.


text:
    Eddie Junior NELSON v. STATE of Arkansas
    CR 84-71
    680 S.W.2d 91
    Supreme Court of Arkansas
    Opinion delivered December 5, 1984

      William R. Simpson, Jr., Public Defender, Jerome Kearney, Deputy Public Defender, by: Thomas J. O’Hearn, Deputy Public Defender.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

In July and August, 1981, the appellant, a youthful offender, committed three felonies. He was charged in circuit court with each felony and, in January, 1982, pleaded guilty. The judgment of conviction provides that he was sentenced in each case ... “to five years; two years suspended to run concurrent, credit for jail time of 159 days.” He was placed in the custody of the Department of Correction under the Youthful Offender Alternative Service Act of 1975. Ark. Stat. Ann. §§ 43-2339 through 43-2349 (Repl. 1977). Later, he was released but soon committed three additional felonies. The prosecuting attorney filed a petition for revocation of that part of the sentences upon which execution had been suspended. The trial court revoked suspension of execution of the remainder of each sentence and ordered the sentences to be served consecutively. The appellant contends that the trial court was without jurisdiction to change the judgment from concurrent to consecutive after the first part of the sentences had been placed into execution. The argument is meritorious. We reverse. Jurisdiction is in this court. Rule 29 (l)(c).

A sentence must be in accordance with the statutes in effecton the date of the crime. Ark. Stat. Ann. § 41-803 (Repl. 1977); Cooper v. State, 278 Ark. 394, 645 S.W.2d 950 (1983). The Youthful Offenders Alternative Service Act of 1975 was in effect in 1981, the date of the crimes and, by the provisions in § 43-2342(a), a trial judge could suspend either the imposition or the execution of the sentence and place a youthful offender on probation under supervision of the judicial branch, or else, in accordance with the provisions of § 43-2342 (c), sentence the offender to the Department of Correction for transfer to an alternative service program or immediate pardon under supervision of the executive branch. The judgment of conviction in this case reflects that the judge sentenced the offender under § 43-2342(c) and the sentence was put into execution because appellant was placed in the custody of the Department of Correction,

Under the Criminal Code, once the execution of a sentence has begun, the trial court loses jurisdiction to modify the sentence. Massey v. State, 278 Ark. 625, 648 S.W.2d 52 (1983). Correspondingly, the courts have no inherent authority to modify a sentence after execution of that sentence has begun because, at that time, the power to exercise discretion has passed to the executive branch of government. Davis v. State, 169 Ark. 932, 277 S.W. 5 (1925). Thus, the trial court was without jurisdiction to modify the sentences after execution of those sentences had commenced. In addition, a new sentence cannot be set at a revocation hearing. Deaton v. State, 283 Ark. 79, 671 S.W.2d 175 (1984).

We address only the point raised, and make no comment upon the validity of single sentencing proceeding in which the offender is sentenced, the sentence is placed into execution, and the court subsequently places the offender on judicial probation. We leave that problem for another day.

Reversed.


author: Steele Hays, Justice.

text:
    FARMERS INSURANCE COMPANY OF ARKANSAS v. Mark SHUFFIELD
    84-171
    680 S.W.2d 96
    Supreme Court of Arkansas
    Opinion delivered December 3, 1984

      Huckabay, Munson, Rowlett & Tilley, for appellant.

      Henry Morgan, for appellee.
   Steele Hays, Justice.

By this appeal, Farmers Insurance Company of America challenges the allowance of an attorney’s fee in a dispute with its insured. Farmers insured the dwelling and contents of Mark Shuffield, which were later damaged by fire. While the claim was being processed, Farmers sued Shuffield, alleging he had committed fraud in submitting his proof of loss. Farmers asked that its coverage be declared void.

Shuffield counter-claimed for the fire damage and moved that Farmers’ suit be dismissed, which the trial court declined to do. Prior to trial, and without objection from Farmers, the trial court ordered a reversal of the parties so that Shuffield became the plaintiff and Farmers the defendant. The case was tried in that posture and the jury assessed Shuffield’s damage at $57,809.15, appreciably less than he had alleged. Shuffield moved for a penalty and attorney’s fee for defending Farmers’ suit and the trial court allowed a fee of $7,500 from which Farmers has appealed. We affirm.

Farmers argues that Ark. Stat. Ann. § 66-3238 (Repl. 1980) providing for penalty and attorney’s fee, is not applicable because we have held the statute must be strictly construed and, hence, not to be applied where the insured fails to recover the amount claimed under the policy. Countryside Casualty Co. v. Grant, 269 Ark. 526, 601 S.W.2d 875 (1980); Hill’s Co-op Gin Co. v. Bullington, 261 Ark. 915, 522 S.W.2d 281 (1977); MFA Mutual Insurance Co. v. Perrow, 249 Ark. 542, 459 S.W.2d 798 (1970); Smith v. Beal, 248 Ark. 248, 451 S.W.2d 195 (1970); Kansas City Fire and Marine Insurance Co. v. Baker, 229 Ark. 133, 13 S.W.2d 249 (1958).

If that were the only rule of law involved, we could sustain the argument, as the amount recovered by Shuffield fell short of the amount claimed by some $25,000. But Farmers had initiated suit to cancel its policy on an allegation of fraud and Ark. Stat. Ann. § 66-3239 (Repl. 1980) applies in that situation:

In all suits in which the j udgment or decree of a court is against a life, fire, health, accident or liability insurance company, either in a suit by it to cancel or lapse a policy, or to change or alter the terms or conditions thereof in any way that may have the effect of depriving the holder of such policy of any of his rights hereunder, or in a suit for a Declaratory Judgment under such policy or in a suit by the holder of such policy to require such company to reinstate such policy, such company shall also be liable to pay the holder of such policy all reasonable attorney’s fee for the defense or prosecution of said suit, as the case may be . . .

Here, the fraud issue was not dismissed but was submitted to the jury in conjunction with Shuffield’s claim of entitlement under the policy and, pursuant to the statute, the trial court had the authority to allow an attorney’s fee for defending against Farmers’ attempt to cancel the policy.

We find no merit in the argument that the realignment of the parties removed the case from the purview of § 66-3239. That step may have been taken merely to facilitate the trial process, and Farmers’ acquiescence lends credence to that assumption. The significant fact is that Farmers’ efforts to void its coverage remained an issue in the trial and it was for the trial court to determine whether that warranted an attorney’s fee pursuant to the statute.

An additional fee of $1500 is allowed for counsel’s services in connection with this appeal

Affirmed.

      “In all cases where loss occurs and the . . . fire .... insurance company . . . liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such [company] shall be liable to pay the holder of such policy . . . in addition to the amount of such loss, twelve percent (12%) damages upon the amount of such loss, together with all reasonable attorneys’ fees for the prosecution and collection of said loss; ...”