author: Jack Holt, Jr., Chief Justice. Jack Holt, Jr., Chief Justice.

text:
    Bennie CLEVELAND v. STATE of Arkansas
    CR 93-188
    865 S.W.2d 285
    Supreme Court of Arkansas
    Opinion delivered November 15, 1993
    [Supplemental Opinion on Denial of Rehearing December 13, 1993]

      Thomas D. Deen, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

In this case, the appellant, Bennie Lamar Cleveland, seeks to overturn his conviction on charges of capital murder, attempted capital murder, kidnapping, aggravated robbery, and theft of property. He raises five points on appeal, but none of his arguments merit reversal.

The record reveals that Cleveland had been involved in a turbulent relationship with Paula Easter of McGehee, Arkansas, for about two years when it ended in December 1991. At the time, Ms. Easter was employed as a cook by Cash’s Quik Check, a convenience store in McGehee. The appellant persisted in attempting to contact Ms. Easter, phoning her and her aunt repeatedly and going once to her workplace, in violation of orders from his parole officer, Danny Calvert.

Subsequently, on the evening of December 29, 1991, Cleveland and a companion, Wendell Moton, drove to Cash’s Quik Check. The appellant was armed with a .22-caliber pistol, and Moton carried a shotgun. Moton went inside, purchased some ice cream, and returned to the car to report that Ms. Easter was at work. Then Cleveland and Moton together entered the store with their weapons.

Ms. Easter and a co-worker, Michelle Nagel, were seated in a booth with a customer, Willard Blackmon. The appellant approached the table and fired at Ms. Nagel, killing her where she sat. Mr. Blackmon tried to escape, but Cleveland shot and wounded him. Next, he chased Ms. Easter through the building and ordered her to come out of a cooler where she had attempted to hide. She told Cleveland, in response to his question, that she did not know how to open the cash register.

The appellant took Ms. Easter outside and ordered her to get in the car. He then returned to the store, where he was observed by the wounded Mr. Blackmon, and emerged shortly afterward, carrying a handgun and a box containing cash. Cleveland then drove to Little Rock, where he left Moton, and began an odyssey that would eventually take him and Ms. Easter to New Jersey, where they were arrested by a state trooper on January 4, 1992.

A jury trial was held before the Desha County Circuit Court in July 1992. Cleveland was convicted on all charges. The kidnapping and aggravated robbery charges were merged in the capital murder conviction, and the appellant was sentenced consecutively, under an amended judgment, to life without parole for the capital murder of Michelle Nagel, thirty years for the attempted capital murder of Willard Blackmon, and ten years for the theft of property.

I. Motion for directed verdict on aggravated robbery

At the conclusion of the State’s case, the appellant moved for a directed verdict on the issues of aggravated robbery and- kidnapping “as a portion of’ the first and second counts of the amended information, which covered, respectively, the capital murder and attempted capital murder charges. On appeal, Cleveland actually argues only with respect to the underlying aggravated robbery charge.

On appeal, before considering other assignments of error, this court determines the sufficiency of the evidence. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993). An appeal from the denial of a motion for a directed verdict is a challenge to the sufficiency of the evidence, and the test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993).

Substantial evidence is that evidence which is forceful enough to compel a conclusion, one way or the other, beyond suspicion or conjecture. Gunter v. State, supra. We view the evidence in the light most favorable to the State. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993).

Cleveland contends that there was simply no proof of any prior intent on his part to commit a robbery at Cash’s Quik Check. Instead, he argues, the evidence shows that the murder of Michelle Nagel and the shooting of Willard Blackmon occurred before the act of robbery. The appellant asserts that the proof indicates that he re-entered the convenience store after the shootings and after Ms. Easter had been placed in the automobile. The entire sequence of events, he claims (citing the testimony of his co-defendant, Wendell Moton), revolved around his relationship with Ms. Easter.

Other testimony, however, suggests a closer relationship between the shootings and the robbery. Jo Ann Owens, the store manager, stated that she was called to the business at about 10:00 p.m., shortly after the crimes were reported, and that she discovered that a pistol and a money box were missing. She also found that the cash register contained no large-denomination bills. Ms. Owens determined that approximately $400 in cash had been taken.

Ms. Easter testified that, after placing her in the car, Cleveland went back inside the store and returned with her purse and the money box which was ordinarily kept under the counter beneath the cash register. Moton corroborated this testimony, adding the detail that the money box was “beige” in color.

The most compelling evidence came from Mr. Blackmon, who had been shot in the back and arm. As he lay upon the floor, pretending to be dead, he heard one of the co-defendants say, “You got the money sack. Let’s go. Let’s go.” Presently, he saw Cleveland come back inside. “He had a key' in his hand,” Mr. Blackmon testified, “and put it in the cash register and tried to open it. . . . Then when he couldn’t get it, he went on back out the door.”

It appears that Cleveland, on appeal, is urging that the sequence of events is dispositive of the question of his “intent to rob” — i.e., he suggests that the robbery was an afterthought because it occurred after the murder had been committed. Yet, as this court declared in Grigsby v. State, 260 Ark. 499, 508-09, 542 S.W.2d 275, 280-81 (1976):

Where the robbery and the killing are so closely connected in point of time, place and continuity of action as to constitute one continuous transaction it is proper to consider both as a single transaction and the homicide as a part of the res gestae of the robbery. [Citations omitted.] The sequence of events is unimportant and the killing may precede, coincide with or follow the robbery and still be committed in its perpetration. [Citations omitted.]
. . . Where the circumstances permit an inference that the killing and the robbery were all part of one transaction, the state is not required to prove intent to commit the felony by direct evidence. [Citations omitted.] . . .
(Emphasis added.) It is the close proximity of events, rather than their particular order, that makes possible an inference of a single continuous transaction.

These principles have recently been reaffirmed in Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993), where we held, quoting Grigsby, that when the defendant had been placed at the scene of the crime approximately one hour before the body of a murder victim was discovered and when money previously in the vietim’s possession was missing, the jury was justified in deciding that the robbery and murder were one continuous transaction.

So, too, in Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992), we found sufficient circumstantial corroborating evidence to establish robbery as the underlying felony in a capital felony murder case. There, the owner of a'building in which the victim engaged in a bootlegging enterprise testified that he had visited the victim on the night of the murder and that he found him alone, in good health, and well-provisioned with beer and whiskey. On his return the next morning, however, he discovered the victim lying in a pool of blood and about six cases of beer and twenty half-pints of vodka and whiskey missing, along with some money he had given the victim the night before.

In Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991), there was no direct evidence of the defendant’s intent to rob his victim before murdering him, though there had been testimony presented regarding the defendant’s financial situation and his belief that the victim made a lot of money. We shifted the focus, however, to the actual criminal episode: “The circumstantial evidence consisting of the close proximity of time and place of the killing and the taking of the decedent’s property so as to make it all one transaction is sufficient to allow the jury to conclude the killing occurred in the course of a robbery.” 306 Ark. at 389-90, 815 S.W.2d at 380.

Here, as in the cited cases, the robbery and the murder occurred in close proximity to each other. A victim-witness stated that one of the co-defendants mentioned a money bag before leaving the store. Two other witnesses agreed that, after shooting two people and forcing a third to accompany him, Cleveland went back to the store and returned to the car with a money box. The store manager testified that a pistol, a money box, and $400 in cash were missing when she was called to the scene at about 10:00 p.m. The jury had before it enough evidence to indicate that the robbery and the murder formed a single continuous transaction. The trial court did not err in refusing to grant Cleveland’s motion for a directed verdict.

II. Supplemental jury panel

By the third day of jury selection, the regular panels of both divisions of the circuit court were exhausted. The trial judge directed the circuit clerk to draw a supplemental panel, using variants of two random numbers — 17 and 82 — selected by the court for pulling the district-wide master jury list. The circuit clerk, in turn, gave the numbers to an employee, who ran them through a computer and generated one hundred fifty-five names. The trial judge then personally instructed the clerk to attempt to find telephone numbers for those listed and ordered him, in the judge’s words, to “start from the top of the list and work down” in order to avoid a “courthouse panel” consisting of friends and acquaintances of courthouse personnel.

Because voir dire was underway, there was no time to employ the usual method of notification by letter. Forty-one supplemental panel members received telephone notice and reported for duty the next morning. Of the twelve jurors who were finally seated, five were drawn from the supplemental panel.

Cleveland maintains that the trial court erred in denying his motion to quash the supplemental panel. The appellant, who is black, argues that the telephone summons of supplemental panel members resulted in the unlawful exclusion of black prospective jurors. Out of the forty-one additional venirepersons who reported to the circuit court, only three were black. According to the 1990 census, 42.5 percent of Desha County residents are black.

In Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977), this court specifically approved the practice of reaching prospective jurors by telephone, despite the appellant’s contention in that case that the method amounted to a systematic exclusion of the large class of eligible jurors without telephones. The trial judge, in overruling the motion to quash the panel, explained that “We were in the process of selecting a jury in this case. We ran out. We had to take the most expedient method. One juror is as good as another.” 262 Ark. at 416, 557 S.W.2d at 877. This court upheld the ruling.

The scenario in the present case is similar — the examination of venirepersons was underway, and completion of that phase of the proceedings had become a matter of some urgency. It cannot be overemphasized that the critical factor in Huckaby was the fact that voir dire was in progress at the time the telephone summons was authorized. We noted that “Whatever might have been the proper procedure before the trial, it was certainly within the trial court’s discretion to approve the most expeditious method of bringing in more jurors after the trial was already in progress.” Id. The same rationale applies here.

In another case, Kitchen v. State, 264 Ark. 579, 572 S.W.2d 839 (1978), we reversed a conviction where, on the morning of the day that trial was scheduled to begin, it was discovered that the prospective jurors had not been notified to appear, and the circuit judge instructed the sheriff to summon a portion of the panel by phone. We contrasted those circumstances with the situation in Huckaby v. State:

There we held that it was permissible to summon additional jurors, during a recess, by telephone since it was within the trial court’s “discretion to approve the most expeditious method of bringing in more jurors after the trial was already in progress.” Here the initial summoning of prospective jurors for the trial of this case was solely by telephone upon four hours’ notice. We are of the view that our holding in Huckaby should not be extended to approve this procedure.

264 Ark. at 581, 572 S.W.2d at 841. In the present case, as in Huckaby and unlike Kitchen, additional venirepersons, not the initial panel members, were summoned by telephone.

Personal notice by telephone is a statutorily sanctioned means by which prospective jurors may be summoned. Ark. Code Ann. § 16-32-106(b)(2) (Supp. 1993). See King v. State, 312 Ark. 89, 93, 847 S.W.2d 37, 40 (1993), where this court approved the telephone summons of additional jurors, holding that “There was no breach of statutory procedure under these circumstances.”

The selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to trial by jury. Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989). There is, however, no requirement that the petit jury actually chosen must mirror the community and reflect the various distinctive groups in the population. Id. A defendant in a criminal trial is entitled to require that the state not deliberately or systematically deny to members of his race the right to participate, as jurors, in the administration of justice. Waters v. State, 271 Ark. 33, 607 S.W.2d 336 (1980). It is the state’s purposeful or deliberate denial to blacks, on account of race, of participation in the administration of justice by selection for jury service that violates the equal protection clause. Id.

As we pointed out recently in Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993), the appellant bears the burden of proving the systematic exclusion of members of his racial group from the venire. In order to establish a prima facie violation of the fair-cross-section requirement, the appellant must show that (1) the group alleged to be excluded is a distinctive group in the community; (2) the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process. Walker v. State, supra; Sanders v. State, supra.

Cleveland attempts to characterize the selection process in the present case as discretionary and thus discriminatory. Yet the numerical method utilized in drawing the supplemental panel was strictly random in operation. A showing that a particular jury panel is not representative of the racial composition of the population will not support a motion to quash the panel, for when the panel is drawn by chance, such a showing does not in itself make a prima facie case of racial discrimination. Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986).

It must be emphasized that it is not enough simply to cite statistics — a policy or procedure entailing the systematic exclusion of a particular group must be shown in order to cross the threshold and shift the burden of proof to the State. Here, Cleveland failed to make a prima facie showing of racial discrimination in the jury selection process. Like the appellant in Walker v. State, supra, he was unable to offer any evidence of systematic exclusion.

In the present case, the circuit court was dealing with an emergency situation in which voir dire was underway and seven jurors had been seated. It is clear from a reading of the transcript that the trial judge took pains to ensure fairness by giving specific instructions' to the circuit clerk, who, in turn, passed the court’s directions along to his staff.

The circuit judge stated for the record that, when it became necessary to create a fresh pool of prospective jurors, he picked two random numbers between one and one hundred from a list he has used for the purpose during the past several years. He gave those numbers to the circuit clerk, Skippy Leek; and outlined the procedure to be followed:

These two numbers were given to Mr. Leek, whom I understand gave them to Jerri Cingolani downstairs, who ran them through the computer, and it generated a hundred and fifty-five names on a list. . . .
My instructions, after consulting with Mr. Leek and seeing what resources we had available, were for him to get as wide a distribution within the courthouse as he could of that list so as many people from the various communities and areas of the counties could have a chance to look at it and make notes and respond for people that they knew, because we have no telephone numbers. It is my understanding they took the telephone books from the county, Dumas, McGehee, and I guess the Arkansas City and whatever outlying areas, and they attempted to get phone numbers for as many of these people as they could in addition to identifying them from anyone in the courthouse who might know them.
Now, I indicated my concern that they start at the top of the list and work down, that it was not a matter of picking out who you know or picking out your friends, that I did not want a, quote, courthouse panel coming in here, not in a derogatory sense ... but not just acquaintances and friends of employees and officials of the courthouse.

The trial court thus emphasized the importance of proceeding in alphabetical order rather than singling out persons known to the clerk’s staff.

Called as a witness by the appellant, the circuit clerk, Skippy Leek, testified that registered voters in the judicial district are listed alphabetically in the courthouse computer. The computer selected persons whose order on the alphabetical listing ended in the pair of double-digits randomly picked by the judge —e.g., 17, 82, 117, 182 — and produced a list containing one hundred fifty-five names.

Mr. Leek stated that, following the directions of the trial court, he instructed courthouse personnel to proceed with the list alphabetically. Deputy Sheriff Roy Fryar, who assisted in telephoning potential jurors, testified that the calls were made in alphabetical order.

Personal acquaintance played a limited but expedient part in the clerk’s instructions to his deputies. Ms. Irvin and June Robnolt, another deputy clerk who made telephone calls, were told to come up with numbers for as many people on the list as practicable. If, for instance, they knew an individual, they were to attempt to locate that person at work; if they knew a woman whose married name might be different than that shown on the list, they were to locate her by using her married name.

One person listed, Warren Radar of Arkansas City, had no telephone but was known to staff members and personally contacted by a law enforcement officer. (The record does not indicate Mr. Radar’s race.) Another person listed, Rose Daniels, a black woman who was eventually seated as a juror, was reached by telephone after a friend of hers, who happened to be in the circuit clerk’s office on other business, supplied her number.

The randomly derived supplemental list did not identify prospective jurors by race; that list, of course, was based on voter registration lists, which do not reveal the voters’ race. See Thomas v. State, supra. Consequently, the trial court had no evidence before it regarding how many blacks may have been listed among the one hundred fifty-five ádditional names or how many may actually have been contacted. According to deputy clerk Sandra Irvin, “We tried to contact every name that was on the supplemental list. I don’t know how many names are on that list.. . . When we got through, I did not count. I do not know how many were contacted or how many showed up.”

The record merely reflects that three black venirepersons reported to duty after having been notified by telephone, two of whom were impaneled for trial. However, nothing in the evidence presented by the appellant suggests that these figures resulted from the systematic exclusion of blacks from the jury selection process, which was random, not selective, in its inception and execution.

In short, the appellant has failed to establish a prima facie case of racial discrimination. Hence, the trial court did not err in refusing to quash the supplemental panel.

III. Batson and gender

Cleveland made an objection, based on the principle set forth in Batson v. Kentucky, 476 U.S. 79 (1986), forbidding the state’s exercise of race-based peremptory challenges, to the alleged gender-biased nature of the prosecution’s strikes in the present case. Nine of the State’s ten peremptory challenges were used to remove women from the jury pool.

Of particular significance in the present case is the appellant’s own gender. That inescapable fact affords him no standing to assert a claim that he suffered prejudice as a result of the State’s peremptory challenges. Moreover, the jury that was ultimately impaneled consisted of five females and seven males.

IV. Venireperson’s remark

During the general voir dire, a prospective juror, Pam Ferguson, responding to a question addressed to the group concerning contact with trial participants, said, “Well, my husband, Ronnie Ferguson, works for the Dumas Police Department. He has arrested Bennie several times.” The trial court initially granted Cleveland’s motion for a mistrial based on the remark but subsequently withdrew the ruling, pending the completion of individual voir dire and an assessment of the potential tainting of the panel. Following the conclusion of individual voir dire, the trial court denied the defense motion.

The case law in this area speaks clearly. In Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985), this court upheld a trial court’s refusal to declare a mistrial when a police officer on the jury panel, in response to the court’s general query as to acquaintance with the defendant, volunteered, “I have arrested him several times in the past.” We found no abuse of the trial court’s discretion in denying a mistrial, observing that the chance remark was inadvertent and the arrests were not specified. See also Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957 (1987); McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985).

A mistrial should be avoided except where the fundamental fairness of the trial itself is at stake. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). Here, as in Novak, the remark was inadvertent, and the number of arrests and the reasons for arresting the appellant remained indefinite. Within the context of an entire week of voir dire, Ms. Ferguson’s chance remark, which was made on the first day of the jury selection process, cannot be said to have tainted the jury panel. The trial court did not err in refusing to order a mistrial.

V. Parole officer’s testimony

At the time Cleveland committed the offenses for which he was convicted in the present case, he was a parolee under the supervision of parole officer Danny Calvert. In the weeks prior to December 29, 1991, two of the victims, Michelle Nagel and Paula Easter, and several of Ms. Easter’s relatives notified Mr. Calvert about the appellant’s efforts to contact Ms. Easter. Mr. Calvert then ordered Cleveland to stop phoning or otherwise attempting to reach Ms. Easter. The appellant, as events proved, failed to heed Mr. Calvert’s admonition.

By a motion in limine, Cleveland endeavored to prevent Mr. Calvert from testifying, asserting that the prejudice resulting from the revelation that the appellant was on parole at the time the crimes were committed would outweigh the probative value of the testimony. The State contended that Calvert’s testimony was necessary to support the testimony of Ms. Easter and her relatives regarding the nature of the relationship between Ms. Easter and Cleveland and to counter a statement that the appellant had made following his arrest that he and Ms. Easter had together planned the robbery of the convenience store.

The trial judge denied the motion in limine, declaring that Mr. Calvert was an “occurrence witness” who would offer substantive testimony. He ordered the prohibition of references to Cleveland’s prior convictions or incarcerations by other witnesses and pointed out that it was the appellant who had put the allegation of Ms. Easter’s participation in the crimes in issue. Further, he stated that he would caution the jury to give no consideration to Mr. Calvert’s status as Cleveland’s parole officer. The judge then specifically found that the probative value of Mr. Calvert’s testimony, when coupled with the admonition, would outweigh any prejudicial effect.

Before Mr. Calvert was brought to the witness stand, the State had called Ms. Easter’s aunt, Hattie Mae Brown, who described the numerous telephone calls she had received from the appellant and stated that, on December 20, 1991, she “went to his [Cleveland’s] parole man,” whom she identified by name as Danny Calvert. The appellant offered no objection to this reference to the identity and status of Mr. Calvert.

After Mr. Calvert took the stand and testified that he was Cleveland’s parole officer, the trial court admonished the jury “not to infer or speculate or to consider anything else that may have to do or you think may have to do with his position.” At the conclusion of the parole officer’s testimony, Cleveland moved for a mistrial, contending that Mr. Calvert’s testimony served merely to divulge the appellant’s criminal past.

On the stand, Mr. Calvert made no reference to the appellant’s previous convictions. Although some of his testimony duplicated that of Ms. Brown and other family members, he made substantive additions, as the appellant concedes, with reference to his warnings to Cleveland about trying to contact Ms. Easter and Cleveland’s stated confusion about his relationship with Ms. Easter. The mere fact that some of the evidence offered by Mr. Calvert was cumulative is not a basis for holding that its admission, otherwise proper, constitutes an abuse of the trial court’s discretion. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). Such a consideration does not warrant invocation of the drastic remedy of mistrial. See King v. State, supra.

VI. Rule 4-3(h) review

Because the appellant was sentenced to life imprisonment without parole, the record in this case has been examined in compliance with Rule 4-3(h), formerly Rule 11(f), of the Rules of the Supreme Court. Although the appellant failed to abstract all adverse rulings as required by our rule, the State has appropriately cured this deficiency in its supplemental abstract. We have determined that there were no rulings adverse to the appellant that constituted prejudicial error.

Affirmed.

Thomas D. Deen, for appellant.

Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING DECEMBER 13, 1993

Petition for Rehearing denied.

Jack Holt, Jr., Chief Justice.

In his petition for rehearing, Bennie Cleveland challenges this court’s holding in Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993), on the issues of the supplemental jury panel, the application of the Batson principle to gender, and the sufficiency of the abstract. We deny the petition but address the Batson-gender question in order to correct our original opinion.

Addressing Cleveland’s third point for reversal, we gave unduly short shrift to his argument that the principle set forth in Batson v. Kentucky, 476 U.S. 79 (1986), forbidding the state’s exercise of race-based peremptory challenges, should be extended to embrace his claim that the prosecution’s strikes exhibited gender bias. Of the State’s ten peremptory challenges, nine were used to remove women from the jury pool. The jury’s final composition numbered seven males and five females.

In our opinion, we stated that Cleveland, as a male, lacked standing to assert a Batson-gender argument. In doing so, we failed to acknowledge the appellant’s citation of Powers v. Ohio, 499 U.S. 400 (1991), in which the United States Supreme Court held that, under the equal protection clause, a white male defendant in a criminal proceeding had standing to object to the State of Ohio’s use of peremptory challenges to remove seven black venirepersons from the jury. Notwithstanding the erroneous statement in our opinion, we conclude that a rehearing is not required because the trial court did not err in refusing to extend the Bat-son doctrine to encompass gender.

A division of authority exists at both the federal and state levels concerning the appropriateness of advancing the Batson standard within the realm of gender. As the State has pointed out, the majority of courts that have ruled on the question have declined to do so. Three of the four federal circuits that have considered the matter have held that Batson should not be expanded so far. Eight of the thirteen state courts that have dealt with the issue have also rejected arguments that Batson should apply to sex as well as race.

The United States Supreme Court will have the opportunity to resolve the question during the present term when it entertains the case of J.E.B. v. Alabama, 92-1239. See J.E.B. v. T.B., 606 So.2d 156 (Ala. Civ. App. 1992), cert. granted, _U.S._, 113 S.Ct. 2330, 124 L.Ed.2d 242 (1993). In Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993), we declined the opportunity to extend Batson to “gender challenges within a racially cognizable group” on the basis that “no reason or authority” had been provided to support the innovation. 313 Ark. at 630, 855 S.W.2d at 951. With regard to Cleveland’s argument, we believe that the weight of reason and authority rests with the State’s position.

Of particular significance in the present case is the fact that the gender composition of the jury that was ultimately impaneled here was five females and seven males. Other jurisdictions that have treated the gender issue under similar circumstances offer instructive guidance. In State v. Harrison, 805 P.2d 769 (Utah App. 1991), the appellate court found it unnecessary even to reach the Batson-gender question because the presence of five women on the jury demonstrated that the use of strikes to keep additional women from being seated was not obvious error. The same approach prevailed in Mowbray v. State, 788 S.W.2d 658 (Tex. App. 1990), where eight of twelve seated jurors were women. In State v. Clay, 779 S.W.2d 673 (Mo. App. 1989), the appellate court, in rebuffing the Batson-gender argument, noted that five women served on the jury that convicted the appellant. The parallels that may be drawn with the present situation are obvious.

At this point in the development of the Batson doctrine, we consider it unsound to extend the principle to peremptory challenges based on gender, and we so hold.

The petition for rehearing is denied.

         See United States v. Broussard, 987 P.2d 215 (5th Cir. 1993); United States v. Nichols, 937 F.2d 1257 (7th Cir. 1991); United States v. Hamilton, 850 F.2d 1038 (4th Cir. 1988). Only the Ninth Circuit has held that Batson should be extended to gender-based strikes. See United States v. DeGross, 913 F.2d 1417 (9th Cir. 1990), aff’d en banc, 960 F.2d 1433 (9th Cir. 1992).

       See Murphy v. State, 596 So.2d 42 (Ala. Cr. App. 1991); Potts v. State, 376 S.E.2d 851 (Ga. 1989); People v. Crowder, 515 N.E.2d 783 (Ill. App. 1987); Hannan v. Commonwealth, 774 S.W.2d 462 (Ky. App. 1989); State v. Adams, 533 So.2d 1060 (La. App. 1988); State v. Clay, 779 S.W.2d 673 (Mo. App. 1989); State v. Culver, 444 N.W.2d 662 (Neb. 1989); State v. Oliviera, 534 A.2d 867 (R.I. 1987). Batson has been extended to encompass gender in Tyler v. State, 623 A.2d 648 (Md. 1993); State v. Gonzales, 808 P.2d 40 (1991); People v. Irizarry, 560 N.Y.S. 279 (A.D. 1 Dept. 1990); City of Mandan v. Fern, 501 N.W.2d 739 (N.D. 1993); State v. Burch, 830 P.2d 357 (Wash. App. 1992). The decisions in Tyler and Gonzales were based, respectively, on the Maryland and New Mexico state constitutions.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Clarence T. GANN v. Charlie PARKER and Shirley Parker
    93-464
    865 S.W.2d 282
    Supreme Court of Arkansas
    Opinion delivered November 15, 1993

      Lohnes T. Tiner, for appellant.

      Barrett & Deacon, by: David W. Cahoon, for appellees.
   Robert H. Dudley, Justice.

Appellant Clarence Gann, an employee of a butane gas distributor, was called to the home of appellees, Charlie and Shirley Parker, to inspect for gas leaks. While there Gann found a leak in the Parkers’ gas stove. He removed the stove from between some counters and, while attempting to seal the leak, came in contact with an overhead electrical ventilator. When he touched the ventilator he received a severe electrical shock and suffered physical and emotional injuries. Gann sued the Parkers, the possessors of the home. The trial court granted summary judgement for the Parkers. We affirm.

Depositions and affidavits were submitted below, but are abstracted on appeal only by appellees. They show that Franklin and Inez Jewell built the house about twenty-five years ago, and, at that time, Franklin Jewell personally installed the ventilator inside a cabinet that is above the stove. The appliance, labeled a vent-a-hood, is a metal hood containing an electric light and an exhaust fan. It is necessary to remove two or three cover plates to see the switches and wiring inside the appliance. About seven or eight years ago the Jewells had the vent-a-hood taken out and recovered with chrome. The abstract does not reveal whether the appliance was rewired at that time, or who reinstalled it. By the time of Gann’s injury, the Parkers, the Jewells’ daughter and son-in-law, possessed the house. The abstract does not reveal how long they had been in possession of the house, or whether they had purchased it, but Shirley Parker, the Jewells’ daughter, had been in and about her parents’ house since it was built. There was no evidence of any incident before Gann’s injury that would cause the possessor of the home to know that the vent-a-hood might be dangerous. There was no evidence that anyone had ever been shocked by touching the appliance, or that the fan or lights flickered. Inez Jewell stated that in the twenty-five years the vent-a-hood was in place, it neither shocked her, nor caused the fan to sputter, nor caused a light bulb to flicker, except when a light bulb burned out. Appellee Shirley Parker stated she used the appliance every day and never observed anything unusual.

Joey Jewell, Shirley Parker’s .brother, stated that after Gann was injured, he took the vent-a-hood out of the cabinet, removed two or three cover plates from the exterior of the appliance and found two wires inside. One wire had a naked spot on it and another was frayed and had deteriorated to the point that it had become stuck to a metal part of the ventilator.'He opined that the one wire became stuck to the metal because it had gotten very hot.

Gann admitted that when he was in the Parkers’ home to repair the stove, he did not notice anything unusual about the vent-a-hood. He did not see anything that would indicate an electrical problem. He did not see any frayed wiring or anything of that nature. He stated that he touched the vent-a-hood several times before he was shocked.

Gann’s case rests entirely on the affidavit of an electrician who stated that the wiring was inadequate, that the appliance was not properly grounded, and that the appliance was not directly connected to its own circuit breaker, but appeared to be tapped into another circuit in the wall. He stated that the wiring into the vent-a-hood lacked a Romex connector, thus exposing the wire to the sharp edges of the appliance’s metal frame, and the wires to the appliance were pinched by wooden shelving.

The possessors of the home, as the movants for summary judgment, bore the burden of showing that there was no issue of material fact. Gleghorn v. Ford Motor Credit Co., 293 Ark. 289, 737 S.W.2d 451 (1987). In reviewing the grant of summary judgment, we must view the evidence in the light most favorable to appellant Gann, as he is the party resisting the motion and is entitled to have all doubts and inferences resolved in his favor. Ford v. Cunningham, 291 Ark. 56, 722 S.W.2d 567 (1987). However, it is appropriate to sustain a grant of summary judgment if the record before the trial court, as abstracted, “showed there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Tullock v. Eck, 311 Ark. 564, 567, 845 S.W.2d 517, 519 (1993).

It is undisputed that Gann entered the house to find and seal a gas leak at the request of the possessors of the home. Consequently, he was a business invitee, and the possessors had a duty to use ordinary care to protect him from harm. Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991). To recover from the failure of a possessor of a home to use ordinary care, the business invitee had tp show (1) that the premises were defective, (2) that the possessor created the defect, or that the defect was apparent, or by the exercise of ordinary care should have been apparent, so that a reasonably prudent possessor would correct the defect or warn the invitee of it, and (3) that the defect caused the injury. It is undisputed that the premises in this case were defective, but there was no evidence to show that the possessors created the defect. Consequently, the initial question is whether the defect was so apparent that, through the use of ordinary care, the possessors should have discovered and corrected it. Ordinary care means that a homeowner must protect an invitee from dangers that could have been, or reasonably should have been, foreseen. First Elec. Coop. Corp. v. Pinson, 277 Ark. 424, 642 S.W.2d 301 (1982). There was no showing that by the use of ordinary care a reasonably prudent possessor would have discovered the defects inside the appliance. The wire that melted onto the metal was inside the appliance and could be seen only by removing the cover plates. There was no showing of prior notice of the defect either by shock, by flickering of the electric light, or by sputtering of the fan. The defect inside the appliance simply was not apparent to the possessors of the home, and, as a result, there was no genuine issue of material fact about the possessors’ lack of negligence in failing to cure the defect or in failing to warn the invitee of it.

The electrician stated that the wiring was inadequate and that the appliance was not properly grounded, was not connected to its own circuit breaker, and lacked a Romex connector. However, there is nothing in his statement, as abstracted by appellees, to imply that any of the above defects were or should have been apparent, upon the exercise of ordinary care, to the possessors of the home. Again, there is no genuine issue of material fact about the possessors’ lack of negligence in their failing to cure these defects or in failing to warn the invitee of them. Further, there was no showing which, if any, of these defects was the proximate cause of the injury.

Appellant argues that we should reverse this case because in Scully v. Middleton, 295 Ark. 603, 605, 751 S.W.2d 5, 6 (1988), we said one who supplies a defective electrical outlet can be held liable for any injuries it might cause. The quotation is appropriate for the facts of that case, but not to the facts of this case. In both cases the appliance was defective, but in this case the possessors were not aware the appliance was defective.

Additionally, appellant quotes language from Southwestern Gas & Electric Co. v. Bianchi, 198 Ark. 996, 132 S.W.2d 375 (1939), and argues that we should hold that the possessors had constructive knowledge of the defect in the appliance. The cited case holds that persons of ordinary intelligence are presumed to know of the dangerous properties of electricity. Id. at 1000, 132 S.W.2d at 377. It does not hold that persons of ordinary intelligence are presumed to know of hidden defects in appliances. The possessor of a home is not an absolute insurer of the premises.

Appellant Gann alternatively argues that the grant of summary judgment was in error because the doctrine of res ipsa loquitur, or “the thing speaks for itself’ doctrine, should have been applied to create an inference of negligence. The argument is without merit. We have said that we will not apply the doctrine unless the event is the kind which ordinarily does not occur in the absence of negligence, and all other responsible causes, such as the conduct of the plaintiff or third persons are sufficiently eliminated. Coca-Cola Bottling Co. v. Hicks, 215 Ark. 803, 223 S.W.2d 762 (1949). Here, the defective wiring was initially installed by the former owner and was later reinstalled by some unknown third party. At the time of the injury, Gann, and not the possessors of the home, was in direct control of the appliance. Those two factors could eliminate the application of the doctrine, but we decline to apply the doctrine in this case because this type of event could easily occur in the absence of negligence on the part of the possessor of a home. Thus, the thing does not speak for itself. The trial court did not err in granting summary judgment for appellees.

Affirmed.


text:
    IN THE MATTER OF THE Anna Flippin LONG TRUST, Susanna Holk Neal v. Thomas Flippin HOLK, Jr., a Minor
    93-447
    864 S.W.2d 869
    Supreme Court of Arkansas
    Opinion delivered November 15, 1993

      James A. McLarty, III, for appellant.

      Dick Johnston, for appellee.
   Robert H. Dudley, Justice.

In 1977 Anna Flippin Long executed a will which contained a testamentary trust. She died in October of 1980, and her will was admitted to probate in November of 1980. Sometime afterwards, the executor of the will distributed the estate assets to the trustee. The trustee, the First National Bank of Wynne, has administered the trust for some years and has made distributions in accordance with its understanding of the testamentary trust instrument. A dispute arose between the trustee and a beneficiary of the trust involving the construction and interpretation of the trust instrument. The beneficiary, Susanna Hoik Neal, filed suit in probate court for a declaratory judgment to construe the trust. Answers were filed in the probate court by the trustee and others. The probate court, by declaratory judgment, construed the trust instrument. Susanna Hoik Neal appeals. We reverse and remand for transfer to chancery court because the probate court was without jurisdiction to interpret the trust instrument.

We have long written that the construction, interpretation, and operation of trusts are matters within the jurisdiction of the courts of equity. Ex Parte Conway, 4 Ark. 302 (1842). In Spradling v. Spradling, 101 Ark. 451, 455, 142 S.W. 848, 850 (1911), we wrote:

Courts of equity have inherent and exclusive jurisdiction over all kinds of trusts and trustees. They have full and complete jurisdiction of trusts independently of statute, whether the same arise by express declaration and agreement, or result by implication of law.

Probate court does not have jurisdiction over the construction of trusts. Most recently, in Clement v. Larkey, No. 93-226, slip op. at 3 (Ark. October 25, 1993), we wrote, “[Njeither the Arkansas Constitution nor Ark. Code Ann. § 28-1-104 (1987) confers on probate courts jurisdiction to administer a trust created by a will. See Alexander v. Alexander, 262 Ark. 612, 561 S.W.2d 59 (1978).” A probate court is a court of special and limited jurisdiction and has only such'jurisdiction as is conferred by the constitution and statutes, or necessarily incidental to the exercise of the jurisdiction and powers specifically granted. Carpenter v. Logan, 281 Ark. 184, 186, 662 S.W.2d 808, 810 (1984).

In summary, the probate court did not have subject matter jurisdiction to construe or interpret the trust instrument in this case. Accordingly, we must reverse and remand for the probate court to transfer to chancery court. The remand of this case might appear to be a vain and useless act, but the chancellor might rule on the admissibility of some evidence that was not ruled on in the case now on appeal, causing the result to be different.

Reversed and remanded.

Corbin, L, not participating.


author: Steele Hays, Justice.

text:
    CITY OF SHERWOOD, Arkansas, L.D. Livingston and Willi Dean Livingston, His Wife, and Michael Lane Hoffman and Shannon Jo Meyer Hoffman, His Wife v. Calvin COOK and Audmese Cook
    93-248
    865 S.W.2d 293
    Supreme Court of Arkansas
    Opinion delivered November 15, 1993

      Kinard, Crane & Butler. P.A., for appellants.

      Howard Tanner, for appellees.
   Steele Hays, Justice.

This suit to quiet title to a twenty foot strip of land was brought by appellees Calvin and Audmese Cook against the City of Sherwood, Michael and Shannon Jo Hoffman, and L.D. Livingston and Willi Dean Livingston, appellants. The chancellor ordered the Cooks’ title quieted and the appellants now challenge that ruling on appeal. We sustain the chancellor’s findings and conclusions.

The Cooks own approximately six acres in Sherwood. The disputed strip of land lies on the southern border of the Cooks’ property. The appellants maintain the property is located within Block 2 of the Trammel Addition to Sherwood. Plats and Bills of Assurance for Trammel Addition were filed at various times by Metropolitan Trust Company. The six acre tract has never been described or platted in the Bills of Assurance and plats for the Trammel Addition. Furthermore, the six acres has been described by metes and bounds in every instrument of conveyance introduced at the trial.

The following diagram is the plat filed in January, 1947 for Block 2 of the Trammel Addition:

The Cooks’ property is located in the southwest corner of the plat directly south of Lots 1 through 6 and west of Lot 7, the disputed strip being twenty feet by 488.08 feet on the southern border of their property. In short, the Cooks claim they own the twenty foot strip of land and the appellants contend the land is a public street known as Feather Drive.

Tammy Lane is a dedicated street on the western boundary of the Cooks’ property. It is simply marked as “road” on the above plat. The Livingstons own the property on the west side of Tammy Lane across from the Cooks. The Hoffmans own the property south of the Cooks.

Some testimony was presented that a fifteen or twenty foot easement running east and west exists on the northern boundary of the Hoffmans’ property. Therefore, if both easements exist, there would be a strip of land thirty-five or forty feet wide dedicated for public use lying between the Cooks and the Hoffmans. However, we need not be concerned with the existence of an easement on the northern boundary of the Hoffmans’ property. That is not at issue.

The appellants submit that Feather Drive is a dedicated street running east and west along the entire southern border of Block 2 of the Trammel Addition. The Cooks are not concerned with whether Feather Drive is a dedicated street on the eastern half of Block 2. They submit, however, that the controversial strip of land on their border has not been dedicated. Based upon the testimony, Feather Drive begins at “Old Highway No. 67,” just east of Block 2, and runs west along the southern border of Block 2 until it reaches Lot 9. Evidently, the City of Sherwood maintains this portion of Feather Drive.

The Cooks acquired legal title to their property in 1967. The legal description of the land includes the twenty feet in controversy. According to the legal description, the Cooks’ property extends to the section line on their southern border which is the center line of what appears to be an unnamed road on the above plat. When the Cooks acquired the property, a fence ran east and west approximately twenty feet north of the section line. Based upon the legal description, the fence is twenty feet north of their property line. According to the plat, the fence is on the southern boundary of their property.

This controversy arose when the Cooks were denied a permit to move the fence from its present location to the southern boundary of their property. After being denied the permit, the Cooks unsuccessfully petitioned to have the City of Sherwood abandon the easement. The Cooks then filed their complaint in Chancery Court.

It is undisputed that the legal description of the Cooks’ property includes the twenty foot strip of land, and the twenty foot strip has always been included in the description of the land. Moreover, the Cooks have paid property taxes on the strip since they obtained title in 1967.

The appellants introduced photographs which indicate the presence of a road over the disputed strip. However, the gravel which is evident in the photographs was placed there by the Hoff-mans in 1991. Indeed, the testimony established that the City of Sherwood has never paved the twenty foot strip nor placed gravel on it. Photographs taken prior to 1991 suggest the road had not been as developed as the appellants contend.

Mr. Cook testified that he has been mowing the strip of land for the last twenty years. Prior to this litigation, Mr. Hoffman helped him mow. Mrs. Hoffman testified that the County would bushhog the strip about twice a year. Also, Mr. Tanner, Director of Public Works for Sherwood, testified that it was possible the City bushhogged the strip; however, the City had never done anything else to maintain the strip.

The chancellor held that title was vested and quieted in the Cooks and the twenty foot strip was not and never had been a public street. The chancellor further ordered the City of Sherwood to issue a permit to the Cooks to construct a fence upon the southern boundary line of their property. The sole point of error on appeal is that the trial court erred in failing to find that the street easement was dedicated by the acts of prior owners of the land in deeding property by reference to the lots and blocks descriptions contained in the plats.

We review chancery cases de novo but will not reverse the findings of fact by the chancellor unless they are clearly erroneous. Brasel v. Brasel, 313 Ark. 337, 854 S.W.2d 346 (1993). Also, we give due regard to the superior position of the chancellor to judge the credibility of the witnesses. Id. ARCP Rule 52(a). Finally, we must consider the evidence in the light most favorable to the appellee. Guaranty Nat’l Ins. v. Denver Roller, Inc., 313 Ark. 128, 854 S.W.2d 312 (1993).

The question is whether the twenty foot strip along the southern boundary of the Cooks’ property has been dedicated as a public street. The two essential elements of a dedication are the owner’s appropriation of the property to the intended use and its acceptance by the public. Fitzhugh v. Goforth, 228 Ark. 568, 309 S.W.2d 196 (1958). The City of Sherwood does not contend that the land owned by the Cooks was ever platted by Metropolitan Trust Company. Further, Ark. Code Ann. § 14-301-102 (1987) requires a dedication to be accepted by an ordinance. However, when an owner of land files a plat and thereafter lots are sold with reference to it, such action constitutes an irrevocable dedication of any street or passageway for public use shown or indicated on the plat. Wenderoth v. City of Ft. Smith, 256 Ark. 735, 510 S.W.2d 296 (1974). Furthermore, whenever a dedication becomes irrevocable, a public authority can accept the dedication for public use whenever the necessity occurs. Id.

The appellants submit that the street easements shown on recorded plats have been adopted by the sale of lots with reference to those plats. We first consider whether the plat dedicates a public street along the southern boundary. Initially, the Cooks contend the language in the Bills of Assurance never dedicated such streets. The language of the earliest Bill of Assurance indicates that “[t]he streets, roads or thoroughfares shown on said plat have heretofore been laid out and platted.” Although this language refers to an earlier dedication, the streets on the later plats may still be adopted by sales made with reference to the plat. See Wynn Motel Hotel, Inc. v. City of Texarkana, 217 Ark. 314, 230 S.W.2d 649 (1950).

In addition, the Cooks submit the area along the southern boundary of the plat is simply not meant to be a street. Across the bottom of each of the filed plats is an area indicating what appears to be some type of easement; however, the area is not labeled. Other road easements shown on the 1947 plat are either labeled “road” or given a street name— “Country Club Road.”

In order for a dedication to result from sales with reference to a plat, it is unnecessary that the areas to be dedicated be marked on the plat as streets. Tiffany, The Law of Real Property § 1103 (3rd ed. 1975). The dedication is sufficient if it appears, from a consideration of the plat as a whole, with reference to the surrounding circumstances, that the spaces were intended to be devoted to a public use. Id. Also, the failure to label or name a street will not necessarily prevent a public dedication inasmuch as the intent of the dedicator is controlling. Wenderoth, supra. Further, an unbounded easement is a grant of a valid right of way and the limits are to be determined by the lines of reasonable enjoyment. Harvey v. Bell, 292 Ark. 657, 732 S.W.2d 138 (1987). Therefore, should we find the. plat has been adopted by reference, we believe the indication of a platted road, albeit unnamed, is sufficient.

It is a well established principle of law that an owner of land, by laying out a town upon it, platting it into blocks and lots, intersected by streets, and selling lots by reference to the plat, dedicates the streets to the public use. Arkansas State Highway Comm. v. Sherry, 238 Ark. 127, 381 S.W.2d 448 (1964). However, in the present case, the owner of the land did not lay out the plat. The evidence indicates that Metropolitan Trust Company first platted a portion of Block 2 of the Trammel Addition in 1934. However, the subject property belonged to the Estate of lessee Coffee prior to 1931. As part of the settlement of the Coffee Estate, the property was conveyed to Grover Owens in 1931. The Cooks have deraigned their title back to this 1931 transaction. The appellants do not contend that Metropolitan Trust Company ever held title to the property after a plat had been filed.

The appellants’ contention is that previous owners of the land implicitly dedicated the disputed strip of land by selling lots with reference to the plat. The City of Sherwood contends that when the owner of land adopts an existing plat, by selling lots by reference to the plat, such action amounts to a dedication of the streets shown on the map. See Hope v. Shiver, 77 Ark. 177, 90 S.W. 1003 (1905). The appellants submit that sales were made with reference to the plat on five occasions which constitute dedication by reference to the plat. Appellants rely on the fact that several of the Cooks’ predecessors in title have simultaneously owned both the property in question and other lots in Trammel Addition. They contend that when these previous owners sold a lot with reference to the plat, they adopted the existing plat as to all the land they owned. However, it is undisputed that the terminology found in the plat has never been used to describe the location of the Cooks’ property or the actual strip in controversy. Every transaction which involved the property has described the land by a metes and bounds description.

The five transactions which the appellants contend dedicate the street by reference to the plat occurred on: June 23, 1961; February 16, 1963; May 25, 1965; April 13, 1966; and October 15, 1966. These instances involve transactions by Mr. and Mrs. Robinson and Mr. and Mrs. Beatty. Both the Beattys and the Robin-sons previously owned the six acre tract of land, and they also owned other lots within Block 2 of the Trammel Addition. The appellants contend these transactions constitute dedication of the street by reference to lots on the plat.

In the 1963 transaction the Beattys conveyed the six acres and portions of Lot 7, 8, and 9, to Mr. and Mrs. Robinson. However, the property now owned by the Cooks was described by metes and bounds. In the 1965 transaction the Robinsons dedicated a five foot strip along the western border of what is now the Cooks’ property. In the same document, Metropolitan Trust dedicated a five foot strip of Lot 1. This transaction apparently added five feet to a twenty foot strip which had been previously dedicated for Tammy Lane. There was no evidence concerning when the prior twenty feet had been dedicated. Again, the property now owned by the Cooks was described, not by reference to the plat, but by metes and bounds.

The appellants rely on language found in Hope v. Shiver, supra, where we stated “when the owner of land makes a plat thereof, or adopts one made by someone else, and sells lots by reference to the maps, this amounts to a dedication of the streets and public ways shown on the map.” However, that analysis assumed that competent evidence had been presented establishing that the owners of the land, at the time it was platted, adopted and approved a plat by conveying lots in accordance with the plat and by referring to the plat for the more definite description and location of the lots. Id. Ultimately, we concluded the evidence was incompetent; therefore, we held that “the mere fact that certain parties who did not own this land had made a plat and had it recorded did not constitute a dedication against the owner of the land.” Id.

In addition, the appellants rely upon Wynn v. Texarkana, supra, which contained the “sells by reference to the map” language found in the Hope opinion, supra. In Wynn, the St. Louis Iron Mountain & Southern Railway Company (Southern) made and recorded a plat of the original town of Texarkana in 1880. The plat showed a street seventy-eight feet wide which bordered Lot 12, Block 26, of Texarkana. The City of Texarkana brought suit alleging that the hotel constructed on Lot 12 was encroaching upon the street. Wynn Motel contended that it had legal title to the property and the street had not been dedicated. Ultimately, it was determined that Southern did not have legal title to Lot 12 when the plat was recorded. Id. Nevertheless, noting that throughout the chain of title the disputed tract, Lot 12, had been conveyed and reconveyed with reference to the map recorded by Southern in 1880, we concluded that there was a dedication by sale with reference to the plat. In City of Magnolia v. Burton, 213 Ark. 157, 209 S.W.2d 684 (1948), the court relied upon similar language to conclude that dedication had occurred by reference to the plat. However, we noted in Magnolia that descriptions conforming to the plat were used to convey title to the disputed land.

This case hinges on the interpretation of the “adopts one made by someone else, and sells lots by reference to the map” language found in the Hope and Wynn cases. We believe these holdings are limited to the instance in which the actual property adjacent to the land in dispute is sold by reference to the plat. In Wynn, the specific property in question had been conveyed as Lot 12 of Block 26; therefore, the lot was sold by reference to the plat. Likewise, in Magnolia, the plat was used to describe the land adjacent to the land in controversy. In the instant case, the Cooks’ land and the strip of land in controversy have always been sold by a metes and bounds description; therefore, the predecessors in title have never adopted the plat by reference.

Indeed, our cases generally conclude that an owner of property adopts a plat as to all of his property only when the owner of land had submitted the plat. A recent case which addressed dedication by reference to a plat is Harvey v. Bell, supra. There we recognized that a developer, by filing a plat, expressly dedicated that subdivision’s, easements for use of the general public. Id. In reaching that decision, we quoted Frauenthal v. Slaten, 91 Ark. 350, 121 S.W. 395 (1909):

An owner of land, by laying out a town upon it, platting it into, blocks and lots, intersected by streets and alleys, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable.

Id. Our most recent cases dealing with dedication by reference to a plat refer to an actual owner of property laying out the plat. See Wenderoth, supra; Incorporated Town of Mountain View v. Lackey, 225 Ark. 1, 278 S.W.2d 653 (1955); Lancaster v. Incorporated Town of Mountain View, 227 Ark. 596, 300 S.W.2d 603 (1957); Arkansas State Highway Comm, supra; Brown v. Land, Inc., 236 Ark. 15, 364 S.W.2d 659 (1963). These cases have not included the broad “adopts by reference” concept which the appellant proposes as constructs of the Hope and Porter opinions.

The strip on the southern border of the Cooks’ property has never been dedicated as a street. The “adopts one made by someone else, and sells lots by reference to the map” language only includes property in which the plat is used to provide the description of the land. As mentioned, the Cooks’ property has never been platted and has always been described by metes and bounds. When the Beattys sold Lots 7, 8, and 9, by reference to the plat, they adopted the plat as far as those lots are concerned; however, the Cooks’ property was described as metes and bounds without reference to the plat. It follows that this property has never been sold by “reference” to the plat. Accordingly, the subject strip of land has never been dedicated as a public street.

The appellants contend that the dedication has been recognized because the Cooks petitioned to abandon the easement and because the existing fence is located on the southern boundary according to the plat. In Wenderoth, supra, a property owner was estopped from denying that a twenty-five foot strip of property was a dedicated public street. There, the owners previously acknowledged the existence of the dedication by objecting in a public proceeding to a proposal to close a twenty-five foot dedicated street adjacent to the disputed piece of land. Id. By objecting, the owners recognized that the two adjacent strips had been dedicated together to form a fifty foot dedicated street. However, the Cooks maintained no dedication ever occurred when they appeared before the city council. They have never recognized the easement; they simply petitioned the city to abandon its claim because the easement never existed.

Also, the appellants rely upon Porter v. City of Stuttgart, 135 Ark. 48, 204 S.W.2d 607 (1918), which recognized that a street may be dedicated to public use by the recognition of a filed plat. In Porter, the land adjacent to the controversial strip had been platted; however, Porter challenged the validity of the plat. Although the land adjacent to the controversial strip may not have been conveyed by reference to the plat, Porter recognized the validity of the plat by paying taxes assessed on his property according to the plat. See Wenderoth, supra. Since Porter’s property had been platted and he recognized the plat, we do not consider the Porter case to be contrary to today’s decision.

Nor do we think the existence of the fence constitutes a recognition of the easement. Its location lacks significance because the Cooks have been maintaining and paying taxes on the disputed land, beyond the fence, since 1967. In Wenderoth, where a dedication had occurred, we noted that the property owners had not paid taxes on the property in question.

Finally, the appellants’ argument that the area “looks like an easement” is irrelevant to the theory of dedication by reference to a plat. If the area looks like a “road” it is because the Hoffmans placed gravel and chat on the road; at most the city has merely mowed or bushhogged the area.

For the reasons stated the decree is affirmed.

       According to the metes and bounds description, the length of the Cooks’ southern boundary is 7.774 chains (513.08 feet). Since the west twenty-five feet of the Cooks’ property has been dedicated as a public street, the length of the southern boundary is 488.08 feet.

       On May 7, 1945, Metropolitan Trust gave Grover Owens a quit claim deed to the land for $1.00.


text:
    David Lee EDWARDS v. STATE of Arkansas
    CR 93-432
    864 S.W.2d 866
    Supreme Court of Arkansas
    Opinion delivered November 15, 1993

      Rees Law Firm, by: David Rees, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

David Lee Edwards was initially charged with two counts of first degree battery and being a felon in possession of a firearm. The charges arose from an incident in which Zoila Cardwell and Jimmy Payne were shot. Payne later died and one of the battery charges was changed to capital murder.

At trial the state’s case was based almost entirely upon the testimony of Zoila Cardwell, who identified Edwards as the man who murdered Jimmy Payne and wounded her as she ran from the scene. Edwards and four defense witnesses testified Edwards was at home at the time. The jury returned a verdict of guilty and Edwards appeals from the judgment imposing a sentence of life without parole for capital murder, twenty years for battery and ten years for possession of a firearm. Finding no error, we affirm.

I

The Trial Court Erred In Admitting A Written Statement By The Appellant As Evidence.

Zoila Cardwell testified that she and Jimmy Payne were walking in West Memphis on the evening of July 16, 1991, when David Lee Edwards passed them on a bicycle. They stopped to speak to two men on a street corner and David Lee Edwards called, “Come here, Jimmy, I want to talk to you.” As Jimmy approached him, Edwards drew a gun and shot Payne in the head. She said David Edwards then cursed her and shot her in the arm and the neck as she fled.

Edwards was arrested at his home and taken to police headquarters where he gave a statement to the effect that at the time of the shooting he was at home with his mother, his wife, their two children, his brother Eugene, and Thomas Mitchell, his nephew. Edwards testified in his own behalf, as did his mother, Hattie Edwards, his niece, Tammy Mitchell, his nephew, Virgil Mitchell, and his brother, Eugene Edwards. Their combined testimony established that in addition to the persons identified in Edwards’ written statement, Tiffany Mitchell, Tammy Mitchell, and her baby, Virgil Mitchell and Virgil’s cousin, Darius (surname not given), were at the Edwards home that evening.

During David Lee Edwards’ cross-examination by the prosecutor he acknowledged having given a statement to the police that he was at home with his mother, wife, nephew and brother. He testified that he told the officer there were others present who were not listed, but he signed the statement anyway. The statement was offered as an exhibit for the state and a defense objection was overruled.

Appellant argues the statement is hearsay and' does not come within the purview of A.R.E. 801(d) in that the statement was not given under oath and subject to the penalty of perjury. He maintains that if the defendant takes the stand the statement cannot be introduced by the state as substantive evidence. Appellant cites Harris v. State, 36 Ark. App. 120, 819 S.W.2d 30 (1991); Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988) and Smith v. State, 279 Ark. 68, 648 S.W.2d 490 (1983). But those cases have little application here. They deal with the use of prior inconsistent statements used in trial where the declarant is not the accused, but a witness in the trial of one other than the declarant.

The state concedes the statement is not admissible under Rule 801(d)(1) but is admissible under 801(d)(2)(i) as an admission by a party-opponent. Appellant does not contend that the statement was made without his being informed of his rights or that it was the product of coercive methods. Rule 801(d)(2) does not require that the statement be made under oath or that its use is dependent upon the defendant’s taking the stand. Such statements are, of course, subject to objection based on relevancy, or materiality, etc., but the objection here was based on hearsay and there was no error in the court’s ruling. See United States v. Porter, 544 F.2d 936 (8th Cir. 1976); J. Reynolds, Arkansas Uniform Rules of Evidence at 159 (1983), D. Binder, The Hearsay Handbook § 28.16 at 510 (3rd ed. 1991).

II

The Trial Court Erred In Failing To Give A Proper Curative Instruction Upon Request By Appellant And For Its Failure To Grant A Mistrial.

During appellant’s cross-examination by the state he was asked if he had been convicted of forgery in 1980, answering in the affirmative. Defense counsel objected on grounds the conviction exceeded the maximum period of ten years for the use of such evidence as provided under A.R.E. 609. The objection was sustained and counsel said, “Would you ask the jury to disregard that please?” The court stated, “The objection to the last question was sustained and any answer is stricken, you may disregard it.”

Appellant contends the admonition was insufficient and the trial court should have ordered a mistrial on its own motion. We disagree. If the appellant felt the admonition was lacking, he should have brought it to the court’s attention and we do not regard the infraction as so egregious as to require a mistrial when none was requested. Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990).

Ill

The Trial Court Erred In Denying Defense Counsel’s Request That He Be Permitted To Read Part Of Jimmy Payne’s Hospital Record That Was Exculpatory Of The Defendant.

By stipulation, the parties agreed that the voluminous hospital records of Jimmy Payne could be admitted without objection. Near the end of the trial the prosecutor brought to the attention of the court and counsel an excerpt from the medical history indicating that Payne was shot by Zoila Cardwell. Defense counsel asked to be permitted to read that portion of the record to the jury before resting its case. The state agreed to its use as exculpatory, but objected to counsel reading it, without the state then being permitted to read all portions of the record in contravention. The trial court ruled that counsel for the appellant could read the medical record to the jury in closing argument, but not as part of its case in chief.

Appellant argues that this ruling deprived him of full use of exculpatory evidence because the jury was instructed under our model instructions that the arguments of counsel are not evidence. But that hardly prevents counsel from pointing out to the jury that the medical records, which were evidence, contained exculpatory material and then reading it to them.

We are not persuaded the trial court handled the matter improperly. While the closing arguments are not in the record, there is no contention on appeal that the jury was not informed concerning the contents of the victim’s medical records and we conclude that the appellant was'not prejudiced by the ruling. A.R.E. 103.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.

       The excerpt is part of the patient’s discharge summary dictated on October 6, 1991, after Payne’s death on that date. It reads: “This is a twenty-four year old black male shot in the head while riding a bike. Reportedly the wife shot the patient in the neck.”


author: David Newbern, Justice.

text:
    Robert Ray MOORE v. STATE of Arkansas
    CR 93-754
    864 S.W.2d 863
    Supreme Court of Arkansas
    Opinion delivered November 15, 1993

      Larry J. Steele, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Robert Ray Moore appeals from a conviction of DWI IV and of driving on a suspended driver’s license. He raises three points on appeal. He contends the evidence was not sufficient to show he violated Ark. Code Ann. § 5-65-101 (1987) because he was not proven to have been in control of a vehicle while inebriated. We hold the evidence was sufficient. Secondly, he contends records of his three prior DWI convictions should not have been admitted into evidence. We hold the records were sufficient and properly admitted. Finally, he contends the Trial Court erred in refusing to admit into evidence an identification card belonging to another person he claimed to have been the driver of the car. We conclude the evidence offered was irrelevant. The convictions are affirmed.

Robert Ray Moore was found by Vernon Nelson, a passing motorist, some distance from a car which had run off the road into a ditch. After declining Moore’s request to pull the car out of the ditch, Nelson took Moore to the Walnut Ridge Police Station. Moore informed officers he had been driving and lost control of his vehicle. He was given a breathalyzer test and registered .24% blood alcohol by weight. The presence of .10% alcohol, or more, in the blood of a motor vehicle driver is unlawful. Moore subsequently denied driving the vehicle.

Mr. Nelson testified that, when he first saw Moore, he thought Moore was having a heart attack as he observed him stand up, fall down, and then attempt to get up again. Mr. Nelson investigated and found Moore to be obviously inebriated. Mr. Moore told Mr. Nelson it was his (Robert Ray Moore’s) car Nelson had observed in the ditch.

Mr. Moore told a state policeman, who advised Moore of his Miranda rights, that he had been in his vehicle alone and had just run off into a ditch and had had nothing to drink after the accident. No argument has been made about Mr. Moore being under the influence of alcohol at the time he spoke with the officers.

A police officer testified to administering the breathalyzer and presented the results of the test which were admitted into evidence. It was stipulated that at the time of the incident Moore’s operator’s license was suspended, and the prosecution rested its case. A motion for a directed verdict based on insufficiency of the evidence was made and denied.

Robert Ray Moore took the stand and stated his brother, Bobby Gene Moore, was the driver when the car ran into the ditch. He stated he, Robert Ray Moore, passed out shortly after he was helped into the car and awoke alone in the ditch some time later. Moore testified that he told the state policeman that Bob Moore had been driving the car, but that he had meant his brother. He then explained that his brother was referred to as “Little Bob” and he was called “Big Bob” because of the similarity in their names.

Robert Ray Moore explained that he had not seen “Little Bob” lately and knew not his whereabouts, but he proffered a photo identification card purportedly identifying Bobby Gene Moore to verify the brother’s existence. After cross-examination, the defense rested and renewed its directed verdict motion.

The parties made arguments concerning proof of prior DWI convictions. Counsel for Moore objected to the State’s evidence based on the fact that the docket sheets offered were not definite enough, particularly with respect to whether Robert Ray Moore’s right to counsel had been accorded in each prior case. The prosecutor argued that each of the three prior conviction records tendered reflected a waiver of counsel and, therefore, each was admissible. A motion to suppress them was denied. The jury returned guilty verdicts.

1. Sufficiency of the evidence

Robert Ray Moore argues there is no. evidence he was in physical control of the vehicle and points out that there is no evidence that he even had access to the vehicle keys as no officer searched him and no keys were found in the vehicle.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).

The fact that the officers did not locate the keys to the car is only some evidence whether Moore had been in possession of them. The only question before the Trial Court was one of credibility. That was for the jury to determine. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). The “Big Bob” - “Little Bob” story was obviously not accepted by the jury which, instead, credited the evidence provided by the officers and Mr. Nelson with respect to Mr. Moore’s statements, made shortly after he was picked up on the road, that he had been driving.

2. Suppression of proof of prior convictions

Mr. Moore cites Neville v. State, 41 Ark. App. 65, 848 S.W.2d 947 (1993), to support his argument that the certified copies of the docket sheets reflecting his prior convictions were not definite enough to show his right to counsel had been satisfied or waived, noting specifically that one of the sheets just had a column with check marks on it with a box checked showing waiver of attorney while another had a rubber stamp reflecting a waiver of attorney and no judge’s signature. The third is also criticized because it is not signed by a municipal judge. The Neville case is clearly distinguishable and provides no support for Moore’s challenge to his conviction. The problem in the Neville case was that the records produced by the State contained names and the abbreviation “Atty” without statements as to whether those were references to attorneys representing the accused or the State.

Here there is a clear indication on each of the docket sheets showing a prior DWI conviction that Moore waived the right to counsel. The docket sheets satisfy the requirements of Ark. Code Ann. § 16-90-204 (1987) which establishes the requirements for proof of prior convictions. Each is a duly certified copy of the record of a prior conviction. There is no requirement that the document be signed by any court, nor is there anything in the statute which prohibits a checklist format. As the documents comply with the requirements of the statute, there was no error in the Trial Court’s refusal to suppress them.

3. The ID card

The Trial Court ruled that the ID document was too old to be relevant. The ruling was correct. In Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), we reiterated the rule that trial courts have a wide latitude of discretion in the admission of evidence, and we do not reverse absent an abuse of that discretion.

It is enough to note that the card did not identify the man photographed as “Little Bob.” It was simply a card bearing a photograph, apparently taken by the State of Michigan some 10 years earlier, of a man. It had on it writing identifying the person in the photograph as having the same surname as Robert Ray Moore. It did not in any way tend to show that the person depicted was or even could have been the driver of the car in question here.

Affirmed.


author: Tom Glaze, Justice.

text:
    FARM BUREAU MUTUAL INSURANCE COMPANY v. Winston CAMPBELL and Sharon Campbell
    92-1458
    865 S.W.2d 643
    Supreme Court of Arkansas
    Opinion delivered November 15, 1993

      David Hodges, for appellant.

      Tom Garner and Larry Dean Kissee, for appellees.
   Tom Glaze, Justice.

This case on appeal largely centers upon appellant Farm Bureau Mutual Insurance Company’s motion to dismiss and its Rule 12(b) defenses of insufficiency of process and lack of personal jurisdiction, and whether Farm Bureau in some manner waived these defenses below. Farm Bureau also asserted below that Rule 11 sanctions or penalty and attorneys’ fees under Ark. Code Ann. § 16-22-309 (Supp. 1993) should have been imposed against the Campbells.

Based upon Farm Bureau’s showing that the Campbells failed to obtain service of process on it within 120 days after having filed their complaint, the trial judge dismissed the Campbells’ cause without-prejudice, but held their complaint was not time-barred. The judge further denied Farm Bureau’s request for Rule 11 sanctions. Farm Bureau appealed the judge’s adverse holding on the sanction issues, and the Campbells cross-appealed, claiming the trial judge erred in failing to find Farm Bureau had waived service of process and was estopped to object to the manner in which service was made. We affirm the trial court on all issues.

We first consider the trial court’s dismissal of the Camp-bells’ lawsuit under ARCP Rule 4(i). Rule 4(i) provides that, if service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. In deciding this issue, we must set out this case’s procedural history.

On January 7, 1988, the Campbells’ son was killed in an accident involving a motor vehicle insured by Farm Bureau. On January 11, 1988, Farm Bureau’s representative went to the Camp-bells’ home and obtained a signed release in exchange for giving the Campbells a check for $20,000. The Campbells filed suit on June 20, 1989, and later amended their complaint to include Farm Bureau, wherein they alleged Farm Bureau was liable for fraud, intentional misrepresentation, tort of outrage and intentional infliction of emotional distress. The Campbells took a voluntary nonsuit on September 10, 1990, but refiled their suit against Farm Bureau on September 9, 1991, and this time alleged only infliction of emotional distress and tort of outrage. In refiling their suit, the Campbells mistakenly thought Farm Bureau was a foreign corporation, and as a consequence served only the secretary of state. The Campbells mailed a courtesy copy of their complaint, without summons, to Farm Bureau’s attorney. The Campbells later learned Farm Bureau was a domestic business with a designated agent, but no complaint and summons was ever served on that agent as required by ARCP Rule 4.

Following ARCP Rule 12(b), Farm Bureau’s attorney filed a responsive pleading to the Campbells’ complaint, wherein it denied the allegations in the Campbells’ complaint, but at the same time, reserved its objections to the court’s lack of jurisdiction and the Campbells’ insufficient service of process. Farm Bureau propounded interrogatories to the Campbells the same day it filed its response, and the Campbells later submitted their interrogatories to Farm Bureau. Farm Bureau requested and was granted an extension to answer the Campbells’ interrogatories. The parties later exchanged responses to their respective interrogatory requests. In addition, Farm Bureau filed an amended answer, acknowledging the Campbells had paid the costs incurred in their initial, nonsuited action, but maintained its position that the Camp-bells’ second suit should still be dismissed because they failed to pay the earlier incurred court costs prior to filing this new suit.

About six months after the Campbells filed this second lawsuit, Farm Bureau filed a separate motion to dismiss, and after exchanging answers for requests for admissions, the court held a hearing on Farm Bureau’s motion which the trial court eventually granted. In an excellent analysis of the pertinent facts and controlling rules of procedure, the trial court set out its reasons for granting dismissal as follows:

Farm Bureau also seeks to dismiss the Campbells’ complaint for lack of jurisdiction over Farm Bureau for failure of the Campbells to serve summons on Farm Bureau within 120 days after filing of the complaint. Farm Bureau relies on Rule 4(i) of the Arkansas Rules of Civil Procedure, which provides:
(i) Time Limit for Service: If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative.
Farm Bureau has raised this ground for dismissal in paragraph 9 of its answer to complaint filed on September 26, 1991.
The Campbells admit that no service of summons was made on Don Alpe, agent for Farm Bureau. However, they claim that Farm Bureau has waived this ground for dismissal by filing an answer to the complaint and by its filing of an amendment to answer.
Rule 12 of the A.R.C.P. governs Defense and Objections — When and How Presented. Rule 12(b) provides that every defense to a claim for relief in any pleading shall be asserted in the responsive pleading thereto, except that the following defenses may, at the option of the pleader, be made by motion: (2) lack of jurisdiction over the person, and (5) insufficiency of service of process. Rule 12(h) governs Waiver or Preservation of Certain Defenses. It provides that a defense of lack of jurisdiction over the person or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in the subsection (g), or (B) if it is neither made by motion under this rule nor included in the original responsive pleading.
Farm Bureau has elected the option of asserting the defense of lack of jurisdiction of the person and insufficiency of service of process in its original responsive pleading. Under Rule 12(h), it has preserved these defenses by including them in its original responsive pleading. .
The service of process on the defendant in any civil case provides jurisdiction to the court that issues the process. Jurisdiction can be obtained by the defendant entering his appearance and submitting to the jurisdiction of the court. Farm Bureau has filed an answer herein, but has specifically reserved the objection to the jurisdiction of the person and the insufficiency of service of process.
It appeárs that this may be a trap for the unwary and that the Campbells may have been lulled to sleep by Farm Bureau’s answering the complaint and then proceeding with discovery by filing interrogatories to the Campbells on September 26, 1991, simultaneous to the filing of an answer. Be that as it may, no service was made on Farm Bureau within 120 days after the filing of the complaint. Farm Bureau has made and preserved its objection to jurisdiction of the person and insufficiency of the service of process. Rule 4(i) provides that it is mandatory that the action shall be dismissed without prejudice if the service of summons on the defendant is not made within 120 days after the filing of the complaint. It appears that the court does not have a choice in this matter.

As set out above, the trial court correctly found Farm Bureau had followed the provisions in Rule 4 to preserve its defenses. Nevertheless, the Campbells specifically argue on appeal that Farm Bureau waived its defenses because of its proceeding with discovery procedures and amending its original response without reasserting its defenses. The Campbells’ argument is wrong for several reasons not mentioned in the trial court’s discussion above.

First, nowhere in our Rules of Civil Procedure is there a requirement that compelled Farm Bureau to reallege its defenses. Rather, as was the situation here, Farm Bureau was permitted under ARCP Rule 15(d) to file a supplemental answer that dealt with an event which had occurred since having filed its original answer in this suit — Farm Bureau answered stating the Campbells had recently paid Farm Bureau its court costs which the company had incurred in the first lawsuit.

Second, the Campbells, as noted by the trial court, may well have been lulled into believing Farm Bureau intended to defend the suit on its merits because Farm Bureau participated in discovery procedures. Nonetheless, this court has specifically held that in deciding whether a defendant has waived his rights and entered his appearance, the determining factor is whether the defendant seeks affirmative relief, that is, whether the pleading filed is more than a defensive action. Storey v. Brewer, 232 Ark. 558, 339 S.W.2d 104 (1960). An example of such affirmative action is where a defendant filed a cross-complaint. See Utley v. Heckinger, 235 Ark. 780, 362 S.W.2d 13 (1962); Burton v. Sanders, 230 Ark. 67, 321 S.W.2d 209 (1959); Nichols v. Lea, 216 Ark. 388, 225 S.W.2d 684 (1950), and Federal Land Bank of St. Louis v. Gladish, 176 Ark. 267, 2 S.W.2d 696 (1928); see also Divelbliss v. Suchor, 311 Ark. 8, 842 S.W.2d 845 (1992). Here, Farm Bureau asked for no affirmative relief.

Third, although this court has said that a defendant may, by his conduct, be estopped to object to the manner in which service is made, the court also cautioned that estoppel does not apply where the defect in'the summons itself is so substantial as to render the process void. Storey, 232 Ark. 558, 339 S.W.2d 104. Here, as discussed in the trial court’s findings set out hereinabove, the Campbells admitted that no service of summons whatever was made on Farm Bureau, thus, estoppel simply is inapplicable in these circumstances. For the reasons given above, we hold the trial court was clearly correct in dismissing the Camp-bells’ complaint for insufficiency of process.

We now turn to Farm Bureau’s contention that the trial court erred in failing to impose Rule 11 sanctions against the Campbells. Under Rule 11, an attorney signing a pleading, motion, or other paper on behalf of a party constitutes a certificate that (1) the attorney made a reasonable inquiry into the facts supporting the document or pleading, (2) he or she made a reasonable inquiry to the law supporting the document to ensure that it is warranted by existing law or a good faith argument for extension, modification, or reversal of existing law, and (3) the attorney did not interpose the document for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992). Farm Bureau argues the Campbells continued unnecessarily to litigate this case after learning it had failed to serve Farm Bureau properly. Farm Bureau also argues it is entitled to penalty and attorneys’ fees under Ark. Code Ann. § 16-22-309 (Supp. 1993) because there was a complete absence of a justiciable issue of law or fact in the Campbells’ action. There is no merit to Farm Bureau’s arguments.

Of course, we ultimately agree in this appeal with Farm Bureau’s view that the Campbells’ complaint was properly dismissed under Rule 4. Nonetheless, it is obvious from the parties’ arguments below, the trial court’s thorough opinion and the parties’ written briefs on appeal that the Campbells made a reasonable inquiry into the facts and law and a good faith argument that Farm Bureau had waived its Rule 12(b) defenses below. In this respect, Farm Bureau, the party asking for Rule 11 sanctions, had the burden of proving a violation of the rule, and Farm Bureau failed in meeting that burden. In sum, the trial court did not abuse its discretion in denying those sanctions. Ward, 309 Ark. 192, 828 S.W.2d 833.

In seeking sanctions, Farm Bureau also offers a second but rather obscure argument why the trial court.erred in refusing them. It urges that, in their first lawsuit in 1990, the Camp-bells failed to sufficiently allege facts constituting the torts of intentional infliction of emotion distress and outrage, and by the time they filed their second complaint on September 9, 1991, under the savings provision of Ark. Code Ann. § 16-56-126 (1987), the applicable three-year statute of limitations had run since the alleged cause of action arose on January 11, 1988. Interestingly, Farm Bureau did not argue this statute of limitations issue as a ground to dismiss the Campbells’ complaint, but instead stated it as a reason for the court to impose sanctions. Farm Bureau seems to suggest that, if the Campbells had made a reasonable inquiry into the facts and law, they would have realized their cause of action had expired, but instead litigated the action anyway. We do not agree, and in disagreeing, point out that none of the cases cited by Farm Bureau support such a view. Farm Bureau’s position in this respect is novel and not a legal theory the Campbells, upon reasonable inquiry, could have believed precluded their pursuing their cause of action against Farm Bureau.

For the reasons above, we affirm the trial court on direct and cross-appeal.

       Farm Bureau offered on appeal yet another reason for imposing sanctions which was a theory premised upon the case of Green v. Wiggins, 304 Ark. 484, 803 W.W.2d 536 (1991). Because this theory was not presented to the trial court, we do not consider such new argument on appeal.