text:
    Richard WAYMIRE v. Jay DEHAVEN
    92-1436
    858 S.W.2d 69
    Supreme Court of Arkansas
    Opinion delivered July 5, 1993

      Wallace & Hamner, by: James R. Wallace and Michael A. LeBoef, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: R. Kenny McCullough, for appellee.
   David Newbern, Justice.

This is a defamation case. Richard Waymire, the appellant, entered an agreement to purchase property from The Maumelle Company of which the appellee, Jay DeHaven, is part owner and operator. Mr. Waymire apparently was to trade a recreational vehicle as part of the purchase price. Mr. Waymire and Mr. DeHaven got into a dispute in the course of the transaction, resulting in Mr. Waymire filing a complaint against Mr. DeHaven with the Arkansas Real Estate Commission.

Mr. DeHaven learned that Arkansas Business magazine was to publish an article about him and his company, and he called representatives of the magazine and their lawyer to meet with him and his lawyer. During the meeting Mr. DeHaven was asked about the Waymire transaction and complaint. He responded with the remarks which formed the basis of Mr. Waymire’s slander claim.

The article which was the subject of the discussion at the meeting was published in Arkansas Business. It quoted words spoken by Mr. DeHaven at the meeting. After a description of events surrounding the real estate transaction and Waymire’s complaint to the Arkansas Real Estate Commission, the following appeared:

But Jay DeHaven of The Maumelle Co. blasts back at Richard Waymire. DeHaven claims Waymire was trying to scam him for $ 15,000.00, that being part of the purchase price, by holding the title of the recreational vehicle for weeks and using other ploys.
“Waymire is an absolute con,” DeHaven says. “He’s an absolute crook.”

The Trial Court found that the statements Mr. DeHaven made about Mr. Waymire did not constitute slander per se. As Mr. Waymire, who is employed as a salesman of new and used cars, made no showing that he could produce evidence of special damages, the Trial Court held there was nothing for a jury to decide, and summary judgment was entered in favor of Mr. DeHaven.

The initial determination whether words spoken or published are capable of constituting defamation per se rests in the Court. The opinion in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1946), discusses in detail the role of a court in defamation proceedings, and W. Prosser and W.P. Keeton, Prosser and Keeton on Torts, § 111 (5th ed. 1984), at p. 781, states:

It is for the court in the first instance to determine whether the words are reasonably capable of a particular interpretation, or whether they are necessarily so; it is then for the jury to say whether they were in fact so understood.

If the words in question could not constitute slander per se we would affirm, but we must reverse and remand as the words used by Mr. DeHaven about Mr. Waymire could have been construed as actionable without a showing of special damages because of being prejudicial to a person of a profession or trade. Such words are actionable without a showing of special damages.

In Reese v. Haywood, 235 Ark. 442, 360 S.W.2d 488 (1962), in the process of determining that the words in question in that case were not actionable per se, we wrote:

In an early case we discussed the distinction between words that are actionable in themselves and those that are not: “Where the natural consequence of the words is a damage, as if they import a charge of having been guilty of a crime, or of having a contagious distemper, or if they are prejudicial to a person in office, or to a person of a profession or trade, they are in themselves actionable; in other cases, the party who brings an action for words, must show the damage which was received from them.” Studdard v. Trucks, 31 Ark. 726.

We recently applied the distinction between words actionable per se and those which are not in Ransopher v. Chapman, 302 Ark. 480, 791 S.W.2d 686 (1990), where we reversed a directed verdict because the evidence was capable of supporting determination of slander per se. We held that in such a case “no evidence of damages in the form of actual losses is required.”

The argument advanced by Mr. DeHaven and adopted by the Trial Court was that the words in question here did not allege that Mr. Waymire was guilty of a crime and were not made about or in direct reference to his business; therefore, they could not constitute defamation per se, and absent a showing of special damages, they were not actionable.

1. Allegation of crime

We look to circumstances surrounding the challenged statements to determine whether they are capable of an actionable meaning. In Bland v. Verser, 299 Ark. 490, 11A S.W.2d 124 (1989), the Arkansas State Medical Board, which had an account at the Bank of Harrisburg, had apparently lost money from the account due to conversion by a Board employee. Dr. Verser, the chairman of the Board, allegedly told a group of persons, “But I have told them, and I’m telling you, the head teller in the Bank of Harrisburg has to be the dumbest most stupid, ignorant person; or second, there is a collusion.” Ms. Bland, the person referred to, alleged Dr. Verser had defamed her by imputing she was guilty of criminal misconduct. He moved for summary judgment. The Trial Court held Dr. Verser’s statements did not constitute actionable slander and granted summary judgment. We reversed and remanded as the use of the term “collusion,” in those circumstances was enough to imply Ms. Bland was guilty of theft from the Bank.

Recognizing that words imputing a crime are capable of constituting defamation per se, the Trial Court in this case looked to cases from other jurisdictions which analyzed the term “crook” to conclude that it was a word of general disparagement rather than a direct allegation of specific criminal conduct and it was not slander per se. See Cinquanta v. Burdett, 388 P.2d 779 (Col. 1963); Friedlander v. Rapley, 38 App. D.C. 208 (C.A.D.C. 1912); Klein v. McGauley, 29 A.D.2d 418, 288 N.Y.S.2d 751 (1968); Nelson v. Rosenberg, 280 N.W. 229 (Neb. 1938); Vacca v. General Elec. Credit Corp., 88 A.D.2d 740, 451 N.Y.S.2d 869 (1982). Cf., Albertini v. Schaefer, 97 Cal. App. 3d 822, 159 Cal.Rptr. 98 (Ct. App. 1979).

We agree that the language used, including the words, “crook,” “con,” and “scam,” did not, in context, allege any criminal misconduct on the part of Mr. Waymire.

2. Prejudice in business or trade

Restatement 2d, Torts, § 573, makes the following statement in Comment c.: “It is not necessary that the defamer refer to the other engaged in the particular profession or calling in question. It is enough that a statement is of a character to be particularly disparaging of one engaged in such occupation.” Use of “crook,” “con,” and “scam,” uttered in conjunction with an allegation that Mr. Waymire was using “ploys,” including holding title to a recreational vehicle in order to obtain $15,000 from DeHaven, presented a jury question whether Mr. Waymire had been disparaged in his business or profession. Webster’s Ninth New Collegiate Dictionary (1986), at p. 1046, defines “scam” as a fraudulent or deceptive act or operation; “con,” at p. 271, as a swindle and “crook,” at p. 308, as a person who engages in fraudulent or criminal practices.

This is a close case, but on balance we must hold that the easily ascertainable meanings of the terms used, when applied to a car salesman in the context of describing a trade of a recreational vehicle for real estate, are capable of impugning Mr. Waymire’s business reputation and are thereby capable of being defamatory.

That, of course, does not end the matter. Our conclusion is only that summary judgment was improper because Mr. DeHaven was not, in the words of Rule 56(c), entitled to it as a matter of law. Presumably upon remand the case will proceed to trial, and a jury will determine whether Mr. DeHaven’s statement was prejudicial to Mr. Waymire in his business, trade, or profession.

Reversed and remanded.

Glaze, J., concurs.

Brown, J., not participating.


source: Caselaw Access Project

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

license: Public Domain

text:
    Brenda PYLE v. Wayde ROBERTSON
    92-943
    858 S.W.2d 662
    Supreme Court of Arkansas
    Opinion delivered July 5, 1993

      Martin E. Lilly, for appellant.

      Robertson Law Firm, by: Jeannette A. Robertson, for appellee.
   Tom Glaze, Justice.

Appellant, Brenda Pyle, has multiple real estate holdings in Jonesboro, Craighead County, Arkansas. Pyle failed to pay taxes on a certain parcel of her holdings for the years 1978-1981 and the property was certified to the State Commissioner of Lands on October 15,1982 for non-payment of taxes. Subsequently, on February 17,1988, the parcel was sold by auction to the appellees Wayde and Jeanette Robertson. On August 22, 1988, Pyle filed a petition in Craighead Chancery Court naming as defendants the Robertsons, Craighead County and the State Commissioner of Lands seeking to have the judicial sale to the Robertsons set aside. Her petition, in part, alleged, “that Craighead County certified the property as being delinquent for the years 1978,1979,1980, and 1981 without notice or knowledge to her . . .”. The Robertsons filed a motion for summary judgment together with supporting affidavits and exhibits which the Chancellor granted. In contrast, Pyle failed to introduce proof in response to Robertson’s motion. By opinion letter, the chancellor stated the following:

. . . there is no dispute over the fact the Plaintiff [Pyle] received notice of the delinquent taxes that allowed certification to the state, received notice again from the State Land Commissioner’s Office in 1986 by certified mail that the lands would be sold in 1988 at public auction, and had thirty (30) days from the sale to pay all delinquent taxes, interest, penalties, and costs to redeem this property, which she failed to do.

If a moving party supports its motion for summary judgment by making a prima facie showing of an absence of factual issues and entitlement to judgment as a matter of law, and the adverse party fails to set forth specific facts showing a genuine issue of material fact, then this court will not say the trial judge erred in granting summary judgment. See, Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); and Bushong v. Garman, 311 Ark. 228, 843 S.W.2d 807 (1992). However, when it comes to cases involving redemption of tax delinquent lands, this court has stated that strict compliance with the requirement of notice of the tax sales themselves is required before an owner can be deprived of his property. Trustees ofFirst Baptist Church v. Ward, 286 Ark. 238, 691 S.W.2d 151 (1985). Thus, we must assure ourselves that proper notice was communicated before the Robertsons are entitled to judgment.

On appeal, Pyle boldly disputes she received the notice found by the trial court, but in making such argument, simply fails to abstract any of the affidavits and exhibits the Robertsons offered below on the notice issue. Such proof obviously was the basis of the trial court’s granting summary judgment to the Robertsons, yet Pyle chose not to abstract Robertson’s affidavits and exhibits, except one, even though it is her duty, as appellant, to abstract such material parts of the pleadings, proceedings, facts, documents and other matters in the record as are necessary to an understanding of all questions presented to us for decision. See Rule 4-2(a)(6) of the Rules of Supreme Court. Pyle also significantly fails to abstract the trial court’s opinion letter which revealed its findings and basis of the court’s award of summary judgment. This court had said that the lower court’s decision is the heart of any appeal. Duelmer v. Hand, 286 Ark. 348, 692 S.W.2d 601 (1985).

We point out that the Robertsons supplemented Pyle’s abstract by providing an abridgement of the trial briefs filed in support of their motion for summary judgment as well as an abstract of one of the four affidavits filed in support thereof. However, our civil procedure rules clearly provide that the trial court may only consider “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any” for summary judgment purposes. Ark. R. Civ. P. 56(c). Because the appeal is from the trial court’s granting of summary judgment, our review is limited and focuses on the pleadings, affidavits and other documents filed by the parties in support of their respective arguments. Anderson v. First Nat’l Bank, 304 Ark. 164, 801 S.W.2d 273 (1990). In distinguishing between motions to dismiss and motions for summary judgment, this court has consistently held that it is incorrect for a trial judge to base his or her decision whether to grant summary judgment on factual allegations made in the briefs and exhibits. Godwin v. Churchman, 305 Ark. 520, 810 S.W.2d 34 (1991); Guthrie v. Tyson, 285 Ark. 95, 685 S.W.2d 164 (1985). Here, it would be improper for this court to render a decision based upon factual allegations contained in the Robertsons’ trial brief.

Accordingly, since the proof filed in support of Robert-sons’ motion can only be found within the confines of Robertsons’ argument to the trial court, we are bound to affirm on appeal for want of a proper abstraction of the evidence. We cannot resolve an appeal concerning the validity of a tax sale such as the one here when neither the evidence presented, nor what evidence is relied upon by appellant, has been abstracted. Thomason v. Dierks Lumber Co., 208 Ark. 407, 186 S.W.2d 425 (1945). Our review is on the record as abstracted, not upon the transcript. Zini v. Perciful, 289 Ark. 343, 344, 711 S.W.2d 477, 478 (1986).

In conclusion, we must allude to the dissenting opinion which, with all due respect, we believe is misleading. First, the opinion suggests the court failed to consider the supplemental abstract when, indeed, we combed it thoroughly. What the dissenting opinion fails to discern is that the Robertsons’ abstract essentially summarized arguments and references to affidavits or exhibits in a trial brief. Pyle and Robertsons abstracted only one affidavit and none of the other several affidavits and exhibits bearing on the issues relevant to this appeal. As mentioned above, this court has consistently held it will not consider allegations made in briefs when considering whether the trial court erred in granting summary judgment.

Second, the dissenting opinion refers to Pyle’s argument that she believed she had paid all back taxes and no one disabused her of that understanding. Again, a receipt was obtained by Pyle when she made the 1984 payment and that receipt apparently reflects she paid only taxes for 1982 and 1983 but it is not abstracted. Also, although a proof of publication exists concerning notice given Pyle for nonpayment of her 1978 taxes, such is found nowhere in the parties’ abstract.

For the reasons stated above, we affirm.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. I question whether the abstracting in this case is so flagrantly deficient under Supreme Court Rule 4-2(b)(2) as to warrant an affirmance on all issues. The Robertsons certainly did not think so, as they did not raise the issue. The majority does so on its own. I specifically question the majority’s assertion that Brenda Pyle did not abstract the affidavits attached to the Robertson’s Motion for Summary Judgment. She did.

Pyle’s primary argument is that when she paid to redeem her land in 1984, she believed that she had paid all back taxes owing. No one at the time disabused her of this understanding. Her abstract contains the following:

1. The Petition to Set Aside the Sale and the Response where she avers that she redeemed her property on November 6,1984.

2. The Motion for Summary Judgment filed by the Robert-sons with a summary of the affidavit by Jane Todd, County Clerk of Craighead County, an affidavit by Steve Hollowell, Assistant to the State Land Commissioner, and an affidavit by Carol Ward, Tax Collector for Craighead County.

3. The Response by Pyle to the appellees’ Motion for Summary Judgment and a subsequent Reply to the Response.

4. The Order Granting Summary Judgment to the appellees, stating that the court finds that there are no material issues of fact in dispute and that the payment of taxes in 1984 did not excuse the plaintiff from the obligation of paying taxes for previous years.

The Robertsons’ Supplemental Abstract includes the following:

1. Their Motion for Summary Judgment with summaries of the affidavits of the Craighead County Clerk, the executive assistant to the State Land Commissioner, and the Craighead County Collector.

2. An expanded description of the Reply by the appellees to the Response of Pyle.

Brenda Pyle challenges the summary judgment on the basis that there is a material issue of fact regarding what transpired when she paid the delinquencies in 1984. Sufficient pleadings and affidavits are presented to this court, in my judgment, for a resolution of that issue on the merits. In determining the sufficiency of an abstract we have looked in the past at both the appellants’ abstract and the appellee’s supplemental abstract. See, e.g., Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). Indeed, Supreme Court Rule 4-2(b)(l) contemplates consideration of a supplemental abstract by the appellee. There is no reason why we should not take into account the supplemental abstract in the present case.

It is true that we do not have in the abstract the chancery court’s letter opinion and certain exhibits were not included. Those lapses do represent deficiencies. Yet, we do have the court’s order granting summary judgment and the pleadings, motions, and affidavits joining the issue. Accordingly, I do not agree that the abstract is flagrantly deficient as Supreme Court Rule 4-2 requires for an affirmance due to noncompliance with the rule.

I respectfully dissent.


author: Donald L. Corbin, Justice.

text:
    Carolyn GILLIAM v. Harold THOMPSON, et al.
    93-119
    856 S.W.2d 877
    Supreme Court of Arkansas
    Opinion delivered July 5, 1993

      Bracey & Bracey, by: Bill E. Bracey, Jr., for appellant.

      Snellgrove, Laser, Langley & Lovett, by: Todd Williams, for appellees.
   Donald L. Corbin, Justice.

Appellant, Carolyn Gilliam, fell while descending the stairs at the Capri Apartments in Blytheville, Arkansas, and broke her ankle. The last step, on which appellant fell, is made of concrete and attached to a landing made of the same material. Appellant filed a complaint against the owners of the Capri Apartments, Harold C. Thompson, Sr. and Edell Thompson, d/b/a Capri Apartments, alleging they were negligent in failing to maintain the stairs in a reasonably safe condition and failing to warn of the unsafe condition of the stairs, which negligence was a proximate cause of her injury. A jury trial was held and the jury found for the defendants. Appellant filed this appeal.

Appellant raises two arguments on appeal. Appellant first argues the trial court failed to clearly and properly instruct the jury on the law applicable to the case. Appellant next contends the trial court erroneously denied her motion for a new trial because there was not substantial evidence to support the verdict.

We will first address appellant’s argument as to the lack of substantial evidence to support the verdict. On review of a trial court’s denial of a motion for a new trial, we affirm if the verdict is supported by any substantial evidence. Isbell v. Ed Ball Constr. Co., 310 Ark. 81, 833 S.W.2d 370 (1992). Substantial evidence means evidence which compels a conclusion one way or the other and is more than mere speculation or conjecture. Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992). In determining whether the verdict is supported by substantial evidence, we give appellee the benefit of all reasonable inferences permissible under the proof. Id. The trial court has some discretion in granting or denying a new trial, but that discretion is limited, and the “trial court is not to substitute its view of the evidence for that of the jury’s unless the jury verdict is found to be clearly against the preponderance of the evidence.” Id. at 572, 839 S.W.2d at 516.

It is undisputed that appellant fell and broke her ankle on the last step of appellees’ building. Appellant’s argument on this point centers upon her allegation that the stairway violated the Standard Building Code as adopted by the city of Blytheville. Looking at the evidence in the light most favorable to appellee, there was evidence at trial that the building was designed by a licensed and registered architect, the steps were approved by the city inspector after they were installed, the stairs were in essentially the same condition at the time of appellant’s accident as when they were first installed, and there had never been an injury of this type on any of the stairs in the apartment complex. Harold Thompson, Jr., the appellees’ son and partner, testified that there had to be a landing at the bottom of the stairway where the pre-fabricated stairs met the parking lot to adjust the steps to the grade or the terrain of the parking lot. He also testified that the treads were all of uniform width and the siderail extended to the leading edge of the last tread in compliance with the Standard Building Code. Appellant testified the day was clear and the steps were dry. Additionally, photographs were introduced by both sides of the steps where appellant fell in which the bottom step appellant fell on is clearly visible and distinguishable from the bottom landing of the same material. The jury was instructed that violation of the Standard Building Code was evidence of negligence. This constitutes substantial evidence from which the jury could have found in favor of appellees.

Appellant also argues we should reverse and remand for a new trial because the trial court failed to properly instruct the jury on the substantive law. Appellant addresses this point in three sub-arguments. Appellant’s first sub-argument is that the trial court committed reversible error in failing to properly instruct the jury that the plaintiff was an invitee as a matter of law and entitled to a duty of ordinary care for her safety. Appellant states in her brief she requested AMI 1104A, which is the standard instruction for a landlord’s duty to a tenant’s invitee, but there is no indication in the record or abstract that AMI 1104A was proffered by appellant. We have repeatedly held that in order to preserve an objection regarding an erroneous instruction of the law, the party appealing must make a timely objection informing the trial judge of the reason the instruction is wrong, and when the point of appeal is that the court failed to give an instruction, the party appealing must submit a proposed instruction on the issue. Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992). It is incumbent upon appellant to present a record and abstract from which we can determine error occurred. Puckett v. Puckett, 289 Ark. 67, 709 S.W.2d 82 (1986). We find no error in this instance.

Appellant’s second sub-argument is that the trial court erred by not including the following language from AMI 1106(B):

If the owner knows or reasonably should know that a licensee is in a position of danger, he has a duty to use ordinary care to avoid injury to the licensee.

The use of this portion of AMI 1106(B) is discretionary. It is set off by brackets from the main body of 1106(B) and need not be given every time AMI 1106(B) is used. The evidence was that appellant had gone up the steps to see if her nephew was home and fell as she came down the last step. Since there was no evidence presented that appellant was in a position of danger about which appellees either knew or should have known, it was not error for the trial court to exclude the last portion of AMI 1106(B).

As her last sub-argument, appellant argues it was error for the trial court to refuse to give her proffered instruction on appellee’s duty to warn of latent dangers. Appellant proffered the instruction to the trial court, but there is no record of any argument made by counsel to the trial court as to the reason this instruction should have been given. We do not consider arguments on appeal that were not raised in the trial court. Viking Ins. Co., 310 Ark. 317, 836 S.W.2d 371. Since appellant did not present her argument below, we will not now consider it.

Affirmed.


author: Robert L. Brown, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Ray TOWNSEND and Ray Townsend Farms, Inc.
    92-1456
    858 S.W.2d 66
    Supreme Court of Arkansas
    Opinion delivered July 5, 1993

      Robert L. Wilson, Philip N. Gowen and Charles Johnson,
      for appellant.

      Carl Madsen, for appellees.
   Robert L. Brown, Justice.

The appellant, Arkansas State Highway Commission, appeals from a chancery court decision enjoining it from removing certain structures from a highway right-of-way. The Commission bases its appeal on several grounds, including a state statute which prohibits physical encroachments on rights-of-way. We agree with the Commission that the statute decides the matter in its favor, and we reverse the chancery court’s decision and dismiss.

On November 3,1930, the Monroe County Judge issued an order granting the Commission’s petition to enlarge the right-of-way to 250 feet on either side of the center line of the “Roe to Clarendon Road,” now Highway 79. The order was based on “public interests and the economical construction, improvement and maintenance” of the road. Landowners feeling aggrieved or damaged by the order were directed to file a claim with the county judge or be forever barred. The right-of-way granted was an easement and not fee simple title. The appellees, Ray Townsend and Ray Townsend Farms, Inc. (“Townsend”), at all times relevant to the appeal owned the servient estate involved in this dispute in fee simple. Located on the Townsend property which is subject to the highway right-of-way are a gate, a fence, and two cabins. In recent years, Townsend began the practice of charging sports enthusiasts $1.00 to enter his property and hunt or fish and an additional $1.00 to use his boats on a lake on his property.

The Commission filed a petition on April 1,1992, seeking to enjoin Townsend from continuing to maintain the gate, fence, and cabins on the right-of-way and requesting an order directing Townsend to remove the structures. An ex parte decree was granted on April 7,1992, ordering Townsend to remove all of the property in dispute.

Thereafter, Townsend moved to dismiss the petition on the merits and to set aside the ex parte decree. By order entered on May 26,1992, the chancery court granted the motion to set aside the decree and scheduled the matter for trial.

A hearing was held on June 16, 1992. In a letter opinion, following the hearing, the court determined that because the taking in this instance was not in fee, the Commission was vested with something less than predominant control. The court said:

When a right-of-way such as the one in question is granted, the owner of the servient estate is not left at the mercy of the state. Every incident of ownership not in conflict with the right-of-way is reserved to the servient tenement. The holder of the right-of-way is not permitted to roam at will over the property of the landowner but is held to a reasonable use upon a practical route for the exclusive purpose for which the right-of-way exists.

The court found that the structures on the right-of-way had existed for approximately 60 years and that the Commission had acquiesced to their presence until “recent prodding from sportsmen.” The court also observed that the Commission had simply failed to demonstrate that these structures interfered with its right to use this property for state highway purposes. It further found that the gate had been removed in the past and rebuilt by the Commission and that the purpose of the gate and fence was to protect Townsend’s property from trespassers.

On August 18, 1992, the chancery court entered an order finding that the right-of-way extended 250 feet on either side of the centerline of Highway 79 and that, concerning the alleged encroachments on the right-of-way, there had been a tacit agreement for many years between the Commission and Townsend to permit the structures now at issue. The Commission’s prayer for a mandatory injunction requiring removal of the structures was denied. The Commission then moved for a new trial, but that motion, too, was denied.

For its central issue on appeal, the Commission argues that the chancery court’s finding that Townsend has the right to maintain his structures within the right-of-way so long as they do not interfere with the maintenance of or construction on Highway 79 is inconsistent with the governing statute. We agree. The police powers of the state are clearly set out by statute, which reads in part:

(a) The rights-of-way provided for all state highways shall be held inviolate for state highway purposes, except as provided in subsections (b) and (c). No physical or functional encroachments, installations, signs other than traffic signs or signals, posters, billboards, roadside stands, gasoline pumps, or other structures or uses shall be permitted within the right-of-way limits of state highways.

Ark. Code Ann. § 27-67-304(a) (1987). “State highway purposes” are defined with some specificity at Ark. Code Ann. § 27-67-302 (1987). Those purposes include “protection of the state highway system from both physical and functional encroachments of any kind" (Emphasis ours.) There is no question but that the structures involved in this case are encroachments on the right-of-way.

Townsend urges, however, that only encroachments that interfere with maintenance, operation, or construction of the highway are foreclosed. According to this theory, other encroachments not so interfering are permissible. We have previously observed, however, that there is no such thing as an authorized, reasonable, and necessary encroachment on a highway right-of-way. Buffalo v. Arkansas State Highway Commission, 248 Ark. 406, 451 S.W.2d 737 (1970). Moreover, the language of Ark. Code Ann. § 27-67-304(a) (1987) is clear and precise in its declaration that “No physical or functional encroachments . . . shall be permitted within the right-of-way limits of state highways.”

The gate, fence, and cabins on the right-of-way violated the terms of the statute which are broad and unambiguous. The General Assembly drew no distinction in § 27-67-304(a) between degrees or types of encroachments. Nor did it differentiate between a right-of-way granted by easement or one held in fee simple. According to that statue, rights-of-way in general are inviolate and to be free from physical encroachments of any kind. We decline to superimpose on the statute a distinction based on how the right-of-way was first granted or on the kind of encroachment involved. The Commission was well within its rights to petition to clear the right-of-way in this case.

Nor do we believe that acquiescence by the Commission in allowing these structures to remain on the right-of-way for a considerable period of time is a persuasive reason to allow the encroachments to continue. Here, representatives of the state were aware of the encroachments in the right-of-way. Indeed, there was evidence that a Commission employee had a key to the Townsend gate. Nevertheless, as already discussed, § 27-67-304(a) specifically prohibited such encroachments. In the face of this express proscription by the General Assembly, the Commission employees had no authority to engage in conduct to countermand a statutory directive and commit the state to encroachments in the right-of-way. Unauthorized acts by state employees under such circumstances will not result in estoppel against the state. We have specifically held that a sovereign is not bound by the unauthorized acts of its employees. Miller v. City of Lake City, 302 Ark. 270, 789 S.W.2d 440 (1990); Hankins v. City of Pine Bluff, 217 Ark. 226, 229 S.W.2d 231 (1950). The chancery court, accordingly, was in error in finding that the Commission was estopped by the conduct of its representatives.

Reversed and dismissed.


author: James B. Sharp, Special Chief Justice.

text:
    Edgar K. RIDDICK v. Garland STREETT, et al.
    92-211
    858 S.W.2d 62
    Supreme Court of Arkansas
    Opinion delivered July 5, 1993

      Crockett, Brown, & Worsham, P.A., by: C. Richard Crockett, for appellants.

      Ivester, Skinner, & Camp, P.A., by: Hermann Ivester and Todd A. Lewellan, for appellees.
   James B. Sharp, Special Chief Justice.

The record in this case consists of more than 3,000 pages, over 200 exhibits, and over 100 findings of fact by the Chancellor. The new rules of this Court did not go into effect until May 1,1993. Rule 9(b) in effect at the time that the Appellants’ Brief was filed herein in part stated, “. . . the Appellants’ Abstract and Brief shall begin with a concise statement of the case, without argument. This statement, ordinarily not exceeding two pages in length, should be sufficient to enable the court to read the Abstract with an understanding of the nature of the case, the general fact situation, and the actions taken by the Trial Court.” In spite of the facts above recited concerning the number of pages of the record, the number of exhibits, and the number of findings of fact by the Chancellor, the Appellant is not justified in writing a 19-page Statement of the Case, and certainly not without leave of this Court tó do so.

The Appellants’ Statement of the Case is in reality a lengthy introductory argument that fails entirely to comply with Supreme Court Rule 9(b).

Garland Streett, Sandra K. Streett, Robert V. Light, Cherry Light, Thomas F. McLarty, III. Donna McLarty, Jack L. Tyler, and Ann Tyler are residents and owners of lots located in Greenbrier Subdivision. Edgar K. Riddick purchased property now known as Greenbrier Subdivision from Louise S. Vinson in 1960. Jackson T. Stephens, Jr., and Nancy Stephens own a lot in Greenbrier that abuts the lot in Edgehill Subdivision on which they reside. Edgar Riddick was the owner, developer, surveyor, subdivider, and marketer of Greenbrier Subdivision and its constituent lots. Numerous problems and disputes between lot owners and Mr. and Mrs. Riddick developed as to the proper location of boundaries and boundary markers within Greenbrier and along Cantrell Road. Numerous surveyors experienced surveying problems because of large discrepancies on the plat of Greenbrier and between the plat and apparent claims of usage and of ownership. Using the distances shown as the boundaries, and the various angles at which those boundaries ran, all as shown on the Greenbrier Subdivision Plat, it was a mathematical fact that the figures of that subdivision would not close. That resulted in numerous discrepancies in the dimensions and locations of the various plots in that subdivision and those distances and angles shown on that plat.

The Appellees brought suit against Edgar K. Riddick, Jr., and June Riddick seeking (a) to have the Chancellor fix the boundaries of Greenbrier along Cantrell Road and between the lots in Greenbrier in a manner consistent with representations as to the lot dimensions, and the areas and the locations contained within the plat and Bill of Assurance and verbal and written representations of the Riddicks, (b) to have Greenbrier resurveyed to reflect the Chancellor’s decision regarding boundaries and to eliminate the multitude of problems inherent in the deficiencies in the plat, (c) to have the Riddicks bear the cost of the resurvey, (d) reformation of the Greenbrier Plat and Bill of Assurance and Deeds to property in Greenbrier to conform with the resurvey and reformed plat, (e) easements by prescription, implication, necessity, and estoppel for ingress and egress to certain of the Appellees’ lots in Greenbrier over a lot owned by the Riddicks, (f) injunctive relief, (g) damages for unjust enrichment, and (h) an award of attorneys’ fees. The Appellees also sought to have the Riddicks estopped to deny that the boundaries should be fixed in accordance with the Riddicks’ various representations.

June Riddick counterclaimed for damages on the ground that the lawsuit was frivolous, an abuse of process, and intended to cause her stress and mental anguish.

The City of Little Rock, Troy and Nicholas, Inc., Residential Funding Corporation, Randall Byars, Janice Byars, Sheffield Nelson, Mary Lynn Nelson, and the Arkansas State Highway Commission were named as necessary parties pursuant to Rule 19 of the Arkansas Rules of Civil Procedure. No affirmative relief was sought against these defendants. The Highway Commission was dismissed prior to trial on the ground of sovereign immunity. The City of Little Rock requested in its Answer that the Chancellor order an accurate resurvey and replatting of Green-brier in compliance with the subdivision ordinance.

In the Findings of Fact and Conclusions of Law, the Chancellor (a) estopped the Riddicks from denying that the boundaries should be fixed in accordance with the Riddicks’ various representations, (b) fixed the boundaries of Greenbrier along Cantrell Road and the boundaries of all lots within Greenbrier, (c) ordered that Greenbrier be resurveyed in accordance with specified guidelines and that an accurate plat based on the resurvey be prepared, submitted to the City of Little Rock for approval, and filed of record, (d) ordered that the Greenbrier Plat and Bill of Assurance and the deeds to the lots in Greenbrier be reformed to conform to the new survey and plat, (e) ordered the Riddicks to bear the cost of the resurvey, (f) declared that easements for ingress and egress over the private drive exist for the benefit of the various lot owners, (g) denied the Appellee Streetts’ claim for unjust enrichment without addressing the merits of the claim, (h) denied the Appellees’ requests for injunctive relief and attorneys’ fees, and (i) denied June Rid-dick’s counterclaim for damages. A timely appeal was filed by the Appellants and a timely cross-appeal was filed by the Appellees.

In reviewing the Chancellor’s findings, this Court does not reverse unless it finds that they are clearly erroneous or clearly against a preponderance of the evidence. Ark. R. Civ. P. 52(a). This Court defers to the superior position of the chancellor to judge the credibility of the witnesses. Brown v. City of Stuttgart, 312 Ark. 97, 847 S.W.2d 710 (1993); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991).

Our decision is based upon the fact that the present plat and Bill of Assurances constitute a cloud upon the title of all of the parties to this litigation, and in order to remove that cloud upon the title to the real estate involved, a replatting of that subdivision and a new Bill of Assurances must be made. Since this opinion is based upon removal of the clouds upon the title of these parties, w.e do not reach the questions of any taking of the Appellants’ land, reformation of any documents, planning of any fraud by any party, or any questions concerning the statutes of limitations.

All of the grantors of all of the parties, or their heirs, would be necessary parties to an action for reformation of a deed. Harbour v. Sheffield, 269 Ark. 932, 601 S.W.2d 595 (1980); Goldsmith v. Stewart, 45 Ark. 149 (1885).

We held in Dotson v. Aldridge, 246 Ark. 456, 438 S.W.2d 464 (1969), that “. . . we do not agree that the statute of limitations prohibits a person in possession from suing to remove a cloud upon his title even though the cloud had been in existence and within the knowledge of the possessor for more than seven years.” While it is true that each of the parties here is not in possession of all of the land in Greenbrier, each party is in possession of some land in Greenbrier. And since the present plat of Greenbrier and the present Bill of Assurances themselves constitute clouds upon the title of the parties, the possession that each party does have is sufficient to take this situation out of the statute of limitations.

“The remedial processes of equity are quite flexible, and where there is a manifest right clearly recognized, in equity jurisprudence they cast about for some fit mode of enforcing it, if no exact precedent may be found applicable to the case.” Goldsmith v. Stewart, supra. “A court of equity can fashion the relief justified by the proof. Keith v. Barrow-Hicks Ext. Imp. Dist., 275 Ark. 28, 626 S.W.2d 951 (1982).” Roe v. Dietrich, 310 Ark. 54, 835 S.W.2d 289 (1992).

While we have found no Arkansas Case authorizing an entire subdivision to be replatted, once the decision has been made that a replatting is necessary in order to remove the clouds upon the titles to these parties, the Chancellor is authorized to take such actions as may be necessary in order to remove such clouds upon the title.

Only by a replatting can these many clouds upon the various titles of the parties be removed. Only by a replatting can this be done with a clear, definite, and easily definable result. Under these circumstances, the Chancellor had good reason to appoint a surveyor to perform the duties required by her decree, as here modified. McDonald v. Roberts, 177 Ark. 781, 9 S.W.2d 80 (1928); Walker v. Walker, 8 Ark. App. 297, 651 S.W.2d 116 (1983).

In a long line of cases we have held that the decree of the Chancellor should describe the boundary line between disputing land owners with sufficient specificity that it may be identified solely by reference to the decree. In Harris v. Robertson, 306 Ark. 258, 813 S.W.2d 252 (1991), we held that the decree itself must describe the boundary line, and it must be done, “. . . without reference to a plat which may not be in existence in a few years.”

That line of cases, however, is distinguished from the case before us in two ways. First, those cases involved only a dispute between adjoining landowners, not a multitude of landowners, few of which were adjoining landowners, and not numerous surveying angles and distances. Even with over two hundred findings of fact by the Chancellor, all of these surveying angles, distances and points of reference could not be fully described. Second, in none of those cases was an entire subdivision to be replatted, and that replat eventually filed for record in the official plat book in a county’s real estate records. Harris v. Robertson, supra; McDonald v. Roberts, supra.

After that subdivision has been replatted and the Bill of Assurances written to conform to the plat, in accordance with these directions, and under the supervision and approval by the Chancellor, that plat should then be filed of record, after it has been approved under the applicable ordinance of the City of Little Rock.

Therefore, we instruct the Chancellor to have the designated surveyor to replat the land encompassed in the Greenbrier Subdivision, to fit into that plat the street, and the utility rights of way now actually existing in Greenbrier. That replat shall encompass the area bounded by Edgehill Subdivision, Allsopp Park, and the present right of way line on the inside curve of State Highway 10 along Cantrell Road. In doing so, the Chancellor should have this done under her supervision and control. The Chancellor shall instruct that surveyor to use the Chancellor’s findings of fact where they are applicable to that purpose. We designate that as the “Official Replat.”

The Chancellor’s decree stated in paragraph 2 (f), found at page 141 of the abstract of the record, “After the boundary between Plot 9 and 10 is fixed as stated above, the corner of Plot 7, 9 and Edgehill Subdivision shall be fixed at 1 /2” rebar located S 40 degrees 03 minutes 43 seconds E 222.08 feet from the northern most Edgehill Subdivision concrete monument along Plot 7. The boundary line between Plot 7 and Plot 9 shall extend from said corner S 40 degrees 38 minutes 54 seconds W to the center line of the private drive.”

In that paragraph 2 (f) a mistake was made in the two angles recited. The first angle there should be, “N 40 degrees 03 minutes 43 seconds W”, and the second angle there should be, “N 40 degrees 38 minutes 54 seconds E.”

Following the Chancellor’s approval of the surveyor’s work in preparing the Official Replat, following its approval by the appropriate authorities of the City of Little Rock, this Official Replat shall be refiled in the Plat Record Books of Pulaski County, Arkansas.

In-making this Official Replat, that surveyor shall give due consideration to the following:

a. That part of the present Highway 10 right of way that would be necessary to have had Greenbrier contain whatever area would have been contained in the 1930 Deed to Mrs. Vinson.

b. Reflect the actual location of Greenbrier Road as it now exists.

c. Reduce the measurements on the Official Replat for those parts of the plots between where Greenbrier Road actually is and where the present right of way actually is on the inside curve line of Highway 10. That surveyor may use a preliminary plat of the entire area that would have been covered by Mrs. Vinson’s deed to assist him in establishing what certain angles should be on the Official Replat. The northeasterly boundaries in that preliminary plat no doubt will be far beyond the present right of way from the present inside curve of Highway 10. That part of the area shown on that preliminary replat that is North and East of the present right of way line of the inside curve of Highway 10 should be deducted from the area of the plots in Greenbrier that would have been North and East of the present right of way line of that inside curve of Highway 10. The Official Replat will show those plots reduced in their northerly and easterly dimensions by the area that will be shown on the preliminary plat to lie between the present right of way line of that inside curve of Highway 10 and the northeasterly boundary of that preliminary plat.

d. The Official Replat shall be located with reference to Edgehill Subdivision, Allsopp Park, the Northeast corner of Section Twenty Two (22), and the Southeast corner of the Northeast Quarter (NE 1/4) of Section Twenty Two (22), all in Township Two (2) North, Range Twenty Two (22) West, Pulaski County, Arkansas, and the present right of way of the inside curve of Highway 10.

e. Since the Vinson deeds involved with Highway 10 go, “to the side”, “along the East line of Robinson Drive” or Cantrell Road, and since none of them go to the present curb line of Highway 10, the Official Replat as well as the Ownership Replat should go to the present Highway 10 right of way and not to the present curb line of Highway 10. It is too easy to destroy or change that present curb and the description in the Official Replat should be as definite and permanent as is possible.

In the Bill of Assurance and on the Official Replat, the distances, angles and directions shall be as shown on the Official Replat, without directions that points on the ground be identified by reference to the surveyor’s pins and pipes that he sets. The distances, angles and directions shall be as shown on the Official Replat.

Under her supervision and direction, using the Official Replat, and following the approval and filing for record of that Official Replat and Bill of Assurances, the Chancellor then shall have the surveyor prepare an additional copy of the Official Replat and incorporate on that second copy of the Official Replat, as we have modified them, the Chancellor’s finding of facts as to easements and ownership of the area of Greenbrier Subdivision, whether by adverse possession, purchase, prescription, or permission. That second copy of the Official Replat, heretofore referred to as the “Ownership Replat” shall be incorporated into the Chancellor’s decree. The Chancellor’s decree shall remove the various clouds upon the titles to the respective real estate owned in Greenbrier Subdivision and decree the easements and ownership of the area of Greenbrier Subdivision as replatted, whether by adverse possession, purchase, prescription or permission of the various parties to this litigation.

June Riddick, wife of Edgar K. Riddick, counterclaimed on the basis that she had no part in creating the subdivision plat, and she sought damages on the ground that the claim against her was frivolous. The Chancellor found that June Riddick acted as a partner in development of the subdivision. The facts and circumstances found by the Chancellor to exist with regard to June Riddick justified the Chancellor in refusing to award any damages to her.

The Appellees claimed the Riddicks would be unjustly enriched if allowed to retain $29,972.69 as the result of an inequitable claim made by them against the Streetts having to do with ownership of subdivision property. The Chancellor found that the amount was spent by the Streetts for attorneys’ fees in pursuing a settlement with a previous owner. We find no error in the Chancellor’s conclusion that attorneys’ fees are, absent statutory authorization, not to be recovered. No authority is cited or convincing argument made for the Appellees’ contention that the Chancellor erred in “treating this claim as nothing more than a claim for attorneys’ fees incurred in this case.” The Chancellor thus did not err in failing to find that the Appellants were liable for unjust enrichment with regard to the various tracts of land which they sold to some of the Appellees.

We find no error in the Chancellor’s finding that no attorneys’ fees should be allowed. In Arkansas, attorneys’ fees are not allowed by courts unless such fees are by contract or by statute. Continental Casualty Co. v. Sharp, 312 Ark. 286, 849 S.W.2d 481 (1993); Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993). The facts here do not fit under either category.

We affirm the Chancellor’s Decree, as herein modified, and remand this case to the Chancellor with directions in carrying out the mandate of this Court.

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

Special Justices Dan M. Burge and Robert W. Henry join in this opinion.


author: Per Curiam.

text:
    Maurice COLEMAN v. STATE of Arkansas
    CR 93-676
    856 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered July 5, 1993

      Billy E. Ross, for appellant.
    No response.
   Per Curiam.

Appellant, Maurice Coleman, by his attorney, Bill E. Ross, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 212 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Debra COOK and Keith Seeman v. ESTATE OF Ruby SEEMAN
    93-361
    858 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered July 12, 1993

      J. Bradley Green, for appellants.

      Malcolm R. Smith, P.A., for appellee.
   Jack Holt, Jr., Chief Justice.

This case presents the novel issue of whether an exclusionary clause in a will lacking a residuary clause controls intestate property held by the testatrix. We hold that it does not and reverse the findings of the Probate Court.

On May 7, 1987, the decedent, Ruby Seeman, executed a will distributing her assets to her husband, brother and three surviving children. The will, which does not have a residuary clause, fails to dispose of her residence, but it does explicitly exclude the widow and children of her late son, Marion Seeman, from inheriting any part of her estate: “Whereas, my son, Marion Seeman, has preceded me in death, I direct that no part of my estate shall go to his Widow, Darlene Seeman, or to their children Deborah Seeman Jones and Keith Seeman.”

Mrs. Ruby Seeman died on March 10, 1992, and proof of will documents were filed by the two witnesses. The Executrix for the Estate petitioned the court for authority to sell the decedent’s residence and asked the court to determine to whom the proceeds of the sale should be distributed. After a hearing the Arkansas County Probate Court determined:

That the decedent’s residence was not disposed of by her will, and the decedent’s will did not contain a residuary clause.
As it was the Testatrix’s specific intent to exclude Deborah Seeman Jones and Keith Seeman from sharing in her estate, the will should be construed so that the proceeds from the sale of the house are distributed to the decedent’s three surviving children, Jeanette Seeman Tuthill, Margaret Seeman Schafer and Harold Seeman, Jr.
IT IS, THEREFORE, BY THE COURT, CONSIDERED, ORDERED ADJUDGED AND DECREED that the proceeds from the sale of the decedent’s residence are to be distributed to the decedent’s three surviving children, Jeanette Seeman Tuthill, Margaret Seeman Schafer and Harold Seeman, Jr.

It is from this order that Debra (Seeman Jones) Cook and Keith Seeman bring this appeal.

This is a case of first impression for this court. Clearly, the decedent’s residence was not disposed of through her will; it is also apparent that Mrs. Seeman intended to prevent her two grandchildren from inheriting from her estate. Traditionally, the cardinal principle of will interpretation is that the testator’s intent governs and that intention is to be gathered from the four corners of the instrument, Gifford v. Gifford, 305 Ark. 46, 805 S.W.2d 71 (1991), and if at all possible, we will broaden or enlarge a residuary clause to avoid intestacy. Kidd v. Sparks, 276 Ark. 85, 633 S.W.2d 13 (1982). Yet, here, there is no residuary clause disposing of the balance of the decedent’s estate so intestacy as to the residence is unavoidable. Our statutes provide that any part of the estate “not disposed of by will shall be distributed as provided by law with respect to the estates of intestates.” Ark. Code Ann. § 28-26-103 (1987).

Although there are no Arkansas cases deciding whether the intent to disinherit should affect distribution of intestate property, we have mentioned this issue on one occasion. In Quattlebaum v. Simmons Nat’l Bank, 208 Ark. 66, 184 S.W.2d 911 (1945), a case involving questions of whether certain bequests had lapsed and, if so, whether certain legatees could also share in the residual intestate property, we stated in obiter dictum, “The fact that a person is disinherited by the will does not prevent his sharing, as heir at law or distributee, in property, a legacy or devise of which has failed by lapse.” Quattlebaum, 208 Ark. at 69, 184 S.W.2d at 913 (citation omitted).

In other jurisdictions it is well settled that although the testator’s intent to disinherit is clearly and unambiguously expressed in the will, such exclusionary language will not be given effect as against the distribution of intestate property. Estate of Stroble, 636 P.2d 236 (Kan. 1981); In Re Estate of Stewart, 304 A.2d 361 (N.H. 1973); Kimley v. Whittaker, 306 A.2d 443 (N.J. 1973); In Re Smith’s Estate, 353 S.W.2d 721 (Mo. 1962);In Re Dunn’s Estate, 260 P.2d 964 (Cal. App. 2d 1953). A good reason given for this rule, expressed by the court of appeals of a sister state, is that because the intestate property passes by law rather than by will, the statute and not the testator controls the distribution of this property. Estate of Baxter, 827 P.2d 184, 187 (Okla. App. 1992).

The estate relies on In Re Fellman’s Estate, 99 N.Y.S.2d 259 (1944) in its argument, but we do not find it persuasive. There, the testator devised a gift to his brother which lapsed because he predeceased the testator. The court denied the testator’s sister, who had been left $3,000 in “lieu of all interest in my estate,” a share of the lapsed devise but offered no explanation for its decision.

We hold that although the will excluded the appellants from the estate, it did not alter their entitlement under the laws of intestate succession, provided in Ark. Code Ann. § 28-26-103 (1987). Accordingly, we reverse the decision of the Probate Court. Reversed and remanded.


text:
    Sherman A. MORGAN v. Steven NEUSE
    92-1453
    857 S.W.2d 826
    Supreme Court of Arkansas
    Opinion delivered July 12, 1993

      Donald C. Donner, for appellant.

      John W. May, for appellee.
   Jack Holt, Jr., Chief Justice.

Sherman Morgan, a resident of Washington County, filed suit against Steven Neuse seeking to prevent Mr. Neuse, a tenured political science professor at the University of Arkansas, from serving as a member of the Washington County Board of Election Commissioners, claiming Morgan’s appointment was in violation of our constitution, Article 3, Section 10:

No person shall be qualified to serve as an election officer who shall hold at the time of the election any office, appointment or employment in or under the government of the United States, or of this State, or in any city or county, or any municipal board, commission or trust in any city, save only the justices of the peace and aldermen, notaries public and persons in the militia service of the State. Nor shall any election officer be eligible to any civil office to be filled at an election at which he shall serve - save only to such subordinate municipal or local officers, below the grade of city or county officers, as shall be designated by general law.

Neuse was appointed to the Washington County Board of Election Commissioners as the “third member” pursuant to Ark. Code Ann. § 7-4-102(b) (Repl. 1991):

(b)(1) The third member for each of the county boards of election commissioners shall be appointed by the State Board of Election Commissioners from a list of five (5) names submitted to the State Board of Election Commissioners by the county committee of the majority party.
(2) (A) The nominees shall be certified to the State Board of Election Commissioners by the chairman of the county committee of the majority party.
(B) The third members for each of the county boards of election commissioners shall be elected by a majority vote of the State Board of Election Commissioners from the list of five (5) nominees submitted.
(C) The list of five (5) nominees shall be certified and submitted to the State Board of Election Commissioners by the majority party county committee chairman subsequent to the primary election but at least fifty (50) calendar days before any general election for state, district, or county office.
(D) The third member of each county board of election commissioners shall be elected as aforesaid by the State Board of Election Commissioners at least forty (40) calendar days before any general election for state, district, or county office.

The question of Mr. Neuse’s eligibility to serve as a member of the Washington County Board of Election Commissioners was first raised in a related case, Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). In that case, another plaintiff/appellant, Dan C. Edwards, brought suit against Steven Neuse, Dale Evans and John Burrow, as former or current members of the Washington County Board of Election Commissioners; Marlene Ray, as a former member of that commission; and Job Serebrov, as Ms. Ray’s replacement on the commission. Mr. Edwards sought a writ of mandamus to prevent Neuse from serving on the election commission. The trial court denied Mr. Edwards’ petition, and we dismissed his appeal on the basis that Edwards failed to comply with our former Ark. Sup. Ct. R. 9(d) (now Ark. Sup. Ct. R. 4-2 (a)(6)), by not properly abstracting the record below.

In the case now before us, Mr. Morgan filed a complaint for declaratory judgment and injunction against Mr. Neuse, individually, seeking to disqualify Mr. Neuse from serving as the “third member” of the Washington County Board of Election Commissioners pursuant to Ark. Code Ann. § 7-4-102(b)(1) (Repl. 1991). Mr. Morgan asked the chancellor to make specific rulings as to:

. . . First, That the Court declare the Defendant, Steven Neuse, to be disqualified from holding the office of Election Commissioner of the State of Arkansas “at the time of the election,” furthermore enjoining the Defendant from holding said office during “the time of the election” so long as he shall continue to be employed by the State of Arkansas; Second, That, the Court declare the act of “voting” by the Plaintiff, Steven Neuse, upon any issue coming before the Board of Election Commissioners of Washington County, to be an act which takes place “at the time of the election”; Third, That the Court grant the Plaintiff, Sherman A. Morgan, his costs and whatever other appropriate relief the Court feels is justified.

In denying Mr. Morgan’s request for declaratory judgment and injunctive relief, the trial court made only one finding, that Ark. Code Ann. § 7-4-101-113 (Repl. 1991) should be favored with the presumption of constitutionality and Mr. Morgan had failed to provide the court with a reason which would rebut that presumption. The court made no ruling whatsoever on the other issues raised by Mr. Morgan, particularly whether Mr, Neuse was disqualified as election commissioner as long as he was a state employee and whether Mr. Neuse’s “voting” was an act taking place “at the time of the election” as required by Article 3, Section 10 of our state constitution.

We have said on many occasions, the burden to obtain a ruling on a particular theory of recovery is on the party who advances that theory below. Guaranty Nat’l Ins. v. Denver Roller, Inc., 313 Ark. 128, 854 S.W.2d 312 (1993); City of Springdale v. Town of Bethel Heights, 311 Ark. 497, 845 S.W.2d 1 (1992); National Lbr. Co. v. Advance Dev. Corp., 293 Ark. 1, 732 S.W.2d 840 (1987). Likewise, it is well established that matters left unresolved at trial are waived and may not be relied upon on appeal. Guaranty Nat’l, supra; Carpetland of N.W. Ark., Inc. v. Howard, 304 Ark. 420, 803 S.W.2d. 412 (1991). Simply put, the burden was on Mr. Morgan to obtain the rulings he desired, and his failure to do so operates as a waiver.

In addition to failing to obtain a ruling on Mr. Neuse’s eligibility and related issues, we also note that Mr. Morgan failed to bring a complete cause of action and to join the proper parties such as the State Board of Election Commissioners and the Washington County Board of Election Commissioners. See Ark. R. Civ. P. 19. In State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989) we specifically stated that the proper legal proceeding to challenge eligibility of a candidate and seek his removal is mandamus coupled with a declaratory judgment action. The same rings true to disqualify a person who is serving as an election commissioner under Ark. Code Ann. § 7-4-102 (Repl. 1991).

We consider matters involving our election processes to be of grave public interest and that they should be brought to a full and final resolve as expeditiously as possible. However, we cannot do so until we have both the appropriate parties and fully developed issues before us.

For these reasons, we must affirm the trial court.


author: Robert H. Dudley, Justice.

text:
    Johnnie PETERS v. William PIERCE
    93-109
    858 S.W.2d 680
    Supreme Court of Arkansas
    Opinion delivered July 12, 1993

      Gary Eubanks & Associates, by: James Gerard Schulze and Wm. Gary Holt, for appellant.

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles and Roy Gene Sanders, for appellee.
   Robert H. Dudley, Justice.

Plaintiff Johnnie Peters was driving a pick-up truck on an access road entering Interstate 30 in Pulaski County. He stopped at a “yield” sign, which was positioned just before the access lane merges into the main lanes of traffic, and was struck from behind by a car driven by defendant, William Pierce. Defendant Pierce, appellee in this court, contended below that the accident was not his fault because plaintiff started to pull out onto the interstate and then stopped, and further contended the plaintiff was not damaged by the very limited impact. The only visible damage to the defendant’s car was a small dent in the top of the front bumper. The rear bumper of the plaintiffs truck was not bent, but was pushed downward. The case was tried once before and resulted in a $6,000 verdict for the plaintiff, but he appealed. We reversed and remanded because the plaintiff was not given the opportunity to answer the defendant’s misleading and incompetent testimony. Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992). Upon retrial, the jury returned a defendant’s verdict. The plaintiff again appeals. This time, we affirm.

Before the second trial, plaintiff filed a motion in limine and asked that the defendant not be allowed to argue that the case had been orchestrated by plaintiffs attorney. Defendant was attempting to support this argument, in part, by alleging that plaintiffs attorney had referred plaintiff to a physician. Alternatively, if that motion were denied, plaintiff asked that he be allowed to respond to the argument by showing the reason he employed counsel at the time he did was because the defendant’s insurance adjuster was rude to him. The trial judge listened to the pretrial arguments, weighed them, and ruled that it would be unduly restrictive not to allow the defendant’s attorney to draw an inference from the facts, which might be proved, and additionally ruled that it would create unfair prejudice to allow testimony about insurance. The trial judge concluded his ruling by stating: “I don’t think it would be unreasonable to have the plaintiff testify that I went to a lawyer because I needed help. I think that states the obvious.”

At the retrial, plaintiffs wife testified that plaintiff went to Dr. Jon Dodson before he employed an attorney. She admitted that she made a mistake in her deposition when she stated that her husband employed counsel a month after the accident. She testified he employed a lawyer only about a week after the accident, but that, no matter what the date, he was examined by the doctor before he employed counsel. She further testified: “We had a problem is why we needed a lawyer, yes. We didn’t want to fool with that. We needed to see about doctors, not lawyers at the time.” Plaintiff made a proffer of additional testimony, which he asked the trial court to allow. The only facts contained in the proffer, that were not already in evidence, were:

An adjuster from the insurance company called my husband just as we had gotten back from Dr. Dodson’s office, and was talking to him about his finance stuff. They gave him problems with paying benefits for his time off work, and he told them that he had just come from the doctor and didn’t feel like talking about it.

Plaintiff testified repeatedly, both on direct and cross-examination, that he went to Dr. Dodson for an examination before he employed counsel. He admitted that he was not sure of the dates on which he saw either of them, but he was certain that he was examined by the doctor either two or four days before he employed counsel. He admitted that someone referred him to Dr. Dodson, but stated that he could not remember who recommended that he see that particular doctor. Plaintiff made a proffer of the additional testimony he sought the trial court to allow. The only facts contained in the proffer, that were not already in evidence, were:

When we got home from the doctor, I got a phone call. I answered it. Because I was under medication, I was feeling bad. I didn’t feel like answering questions. I really don’t remember the lady that called me, but I presume it was from the insurance company.

On appeal plaintiff contends that, because the trial court permitted defendant’s counsel to argue that plaintiff’s counsel orchestrated the lawsuit, the trial court erred in refusing to allow him to testify that he went to an attorney only after the insurance adjuster was rude to him. In Younts v. Baldor Electric Co., 310 Ark. 86, 89, 832 S.W.2d 832, 834 (1992), we stated: “As a general rule, it is improper for either party to introduce or elicit evidence of the other party’s insurance coverage. This principle is part of the collateral source rule which excludes evidence of benefits received by a plaintiff from a source collateral to the defendant.” However, a party cannot use the insurance exclusionary rule to mislead a jury or gain any kind of undue advantage, York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980), and, if a party gives misleading testimony, insurance coverage may become relevant to some other issue in the case. Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992); Industrial Farm Home Gas Co. v. McDonald, 234 Ark. 744, 355 S.W.2d 174 (1962). Here, the proffered testimony would have given the jury the information that the defendant had insurance, and we have said that it is inherently prejudicial to inform a jury of insurance coverage. Hively v. Edwards, 278 Ark. 435, 646 S.W.2d 688 (1983). In addition, the proffered testimony would have had only marginal relevance to the issue of when the plaintiff employed counsel, and it would have been only slightly probative of the issue.

A trial judge may exclude evidence, although relevant, if its probative value is substantially outweighed by the danger of unfair prejudice. A.R.E. Rule 403. The standard of review of a trial court’s weighing of probative value against unfair prejudice is whether the trial court abused its discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Here, the mention of insurance would have caused substantial unfair prejudice, and it would have had only a slight probative value on the issue of orchestration. Thus, we cannot hold that the trial court abused its discretion in refusing to allow the proffered testimony about insurance.

Plaintiff-appellant alternatively argues that the trial court abused its discretion in denying his pretrial motion to prohibit the defendant from arguing that plaintiff’s attorneys orchestrated the lawsuit. The trial court was obviously concerned about the issue and preliminarily ruled that the defendant could argue any facts that might be proved along with the fair inferences that arose from those facts. However, defense counsel, during his opening statement, stated: “Dr. Dodson is one of those people you will'find that he is one of those doctors that nobody has ever seen in their life until after they’ve been in an automobile accident and have a lawyer see them.” Plaintiff objected, and the trial court sustained the objection with the admonition, “Let’s keep it straight.” There was no proof that Dr. Dodson was one of those people that nobody sees until they are involved in a car accident. In closing argument, defense counsel stated, “I still say he was sent there by the lawyer. . . .” No objection to the argument is abstracted. The trial court subsequently instructed the jurors that the argument of counsel was not evidence. In our decisional conference on this case, the defendant’s argument was discussed at length. There was concern about the unfairness of the argument, but it was decided that the trial court did not abuse its discretion in the rulings it was asked to make. There is nothing to show that the trial court should have anticipated, before trial, that defense counsel would argue that “he is one of those doctors that nobody has ever seen in their life until after they’ve been in an automobile accident and have a lawyer see them.” The pretrial motion was apparently the only time the issue was raised. The appellant has abstracted only one other objection, the one in which the trial court sustained his objection with the admonition, “Let’s keep it straight.” Thus, we cannot say that the trial court abused its discretion in any ruling it was asked to make.

Plaintiff’s second assignment is that the trial court erred in allowing the defendant to prove that plaintiff was receiving a pension and in allowing proof of the amount of that pension. The ruling was erroneous. In general, compensation that is not to be deducted from the recovery should not be disclosed to the jury, as there is no reason to do so, and prejudice will result. Amos v. Stroud, 252 Ark. 1100, 482 S.W.2d 592 (1972). See also Annotation, Collateral source rule: receipt of public or private pension as affecting recovery against tortfeasor, 75 A.L.R.2d 885 (1961). There are exceptions to the general rule, see Annotation, Admissibility of Evidence that Injured Plaintiff Received Benefits from a Collateral Source, on Issue of Malingering or Motivation to Extend Period of Disability, 47 A.L.R.3d 234 (1973). As indicated, this court follows the general rule regarding a collateral source, which would extend to cover pensions. The next to last paragraph of the opinion in Transit Homes, Inc. v. Bellamy, 282 Ark. 453, 671 S.W.2d 153 (1984), might be read to conflict with our earlier cases although it involves credit on a subrogation claim. In order to prevent confusion, we overrule the paragraph to the extent it might be read to conflict with any earlier case.

Even though the ruling allowing evidence of the pension and the amount plaintiff received from it was in error, plaintiff cannot show that he was prejudiced by that ruling. We will not reverse in the absence of a showing of prejudice. McNair v. Ozark Gas Transmission System, 292 Ark. 235, 729 S.W.2d 165 (1987). In this case the jury returned a general verdict for the defendant. The jury may well have reached its verdict by determining that the plaintiff’s fault was equal or greater than that of the defendant. Thus, the jury may have never considered the issue of damages, and plaintiff cannot show prejudice. We will not reverse in the absence of a showing of prejudice. See Webb v. Thomas, 310 Ark. 553, 837 S.W.2d 875 (1992).

Affirmed.


author: Steele Hays, Justice.

text:
    Robert MANKEY v. WAL-MART STORES, INC.
    93-285
    858 S.W.2d 85
    Supreme Court of Arkansas
    Opinion delivered July 12, 1993

      Ponder & Jarboe, by: Dick Jarboe, for appellant.

      Barrett & Deacon, by: David W. Gaboon and D.P. Marshall, Jr., for appellee.
   Steele Hays, Justice.

Robert Mankey (appellant) brought this action against Wal-Mart Stores, Inc. (appellee) for injuries sustained in a slip and fall at a Wal-Mart store in Walnut Ridge. Wal-Mart moved for a directed verdict at the close of Mankey’s evidence and the trial court granted the motion. Mankey appeals on the single point that the trial court should have permitted the issue of Wal-Mart’s negligence to be decided by the jury. We hold the trial court ruled correctly.

Robert Mankey and his companion, Diane Eldon, were shopping together at a Wal-Mart store. Ms. Eldon went to the clothing department and Mr. Mankey went to the automotive department. Mr. Mankey picked up a case of motor oil and placed it in his basket. He then went elsewhere in the store, returning to the automotive department some ten to fifteen minutes later with Ms. Eldon. As Mr. Mankey was looking up at the oil filters, he slipped on motor oil which had leaked from a carton onto the floor. In falling, Mankey reinjured his back and aggravated a preexisting condition. Mr. Mankey sued Wal-Mart alleging that the store had breached its duty of care to him as a customer. At trial, he testified he did not see anything on the floor before he fell and he did not know how long the oil had been on the floor. Margaret Jones, a Wal-Mart employee, testified that she had been down the aisle where the accident occurred approximately five or ten minutes before and did not see the oil.

The trial court ruled there was insufficient evidence to establish negligence on the part of Wal-Mart in placing the foreign substance on the floor or that the substance had been there for a sufficient period of time that Wal-Mart either knew or should have known that the substance was present and failed to remedy the situation.

In determining whether a directed verdict should have been granted, we view the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992); Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989). A motion for a directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Howard v. Hicks, 304 Ark. 112, 800 S.W.2d 706 (1990).

The law is well settled that a property owner has a general duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992); Dye v. Wal-Mart Stores, Inc., 300 Ark. 197, 777 S.W.2d 861 (1989). In order to prevail in a slip and fall case, a plaintiff must show either (1) the presence of a substance upon the premises was the result of the defendant’s negligence, or (2) the substance had been on the floor for such a length of time that the appellee knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991); Skaggs Co. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986).

We have stated that the mere fact that a person slips and falls does not give rise to an inference of negligence. Moore v. Willis, Etc., 244 Ark. 614, 426 S.W.2d 372 (1968). The doctrine of res ipsa loquitur is not applicable to slip and fall cases. Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986). Possible causes of a fall, as opposed to probable causes, do not constitute substantial evidence of negligence. J.M. Mulligan’s Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1990). Also, the presence of a foreign or slick substance which causes a slip and fall is not alone sufficient to prove negligence. Collyard v. American Home Assurance Co., 271 Ark. 228, 607 S.W.2d 666 (1980). It must be proved that the substance was negligently placed there or allowed to remain. Diebold v. Vanderstek, 304 Ark. 78, 799 S.W.2d 804 (1990).

Robert Mankey admits there is no evidence Wal-Mart did anything that constituted negligence in causing the substance to be on the floor. However, he contends there is evidence from which the jury could infer that Ms. Jones, the Wal-Mart employee, was negligent in not noticing the oil or the container on its side or the oil dripping down the boxes. Mr. Mankey points to Ms. Jones’ testimony that it was unlikely that she walked by and didn’t see the substance and that Ms. Jones had an affirmative duty to look for debris or objects on the floor. However, the argument presupposes that the oil was on the floor when Ms. Jones passed by, when in fact there was no evidence, direct or circumstantial, from which that inference could be drawn. In short, there is no evidence that Wal-Mart breached its obligation to keep a reasonable watch over its premises.

Mankey argues a number of inferences and assumptions but he offered no evidence that Wal-Mart was responsible for the motor oil being on the floor or that it knew or should have known the motor oil was there. In fact, Mr. Mankey admitted in his deposition that he did not know how much oil was on the floor, or exactly where it came from. He did not see it leaking and he did not see a Wal-Mart employee or anyone else spill the oil.

We have recognized the length of time a substance is on the floor is a key fáctor. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). The burden is on the plaintiff to show a substantial interval between the time the substance appeared on the floor and the time of the accident. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992).

Robert Mankey admits there is no proof as to how long the oil had been on the floor but argues this evidence is relatively unimportant. He maintains the court should not substitute its judgment for that of the jury as to how long it took the oil to accumulate. Mankey relies upon his own testimony at trial in which he estimated that it would have taken four to five minutes for that much oil to pool on the floor. In addition, he claims that the jury could consider the fact the oil had dripped down the side of the boxes in determining how long the oil had been on the floor.

The only evidence concerning the time the oil might have been on the floor came from Ms. Jones. She testified as follows:

Q. So, based on your recollection then, how long had it been since you had been down the aisle where Mr. Mankey fell before you were aware that an accident had happened?
A. I’d say roughly five to ten minutes, because I had taken boxes back, I come out checked the, when I come back out, I checked the register and there was a customer there and I was in the process of checking this customer out at the time the lady hollered at me. (TR. 103).

Ms. Jones testified that it is doubtful that she went back up the aisle without seeing the oil, but admitted “anything was possible.” The longest period of time the oil could have been on the floor under the proof was ten minutes. We have held that an interval of almost two hours between the time a substance was placed on the floor and the time of an accident was not sufficient to establish an inference of negligence. Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989); Moore v. Willis, 244 Ark. 614, 426 S.W.2d 372 (1968) Also, the fact that an employee was in the vicinity where a foreign substance was later discovered is not sufficient to raise an inference a spill was negligently overlooked. Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986)(employees had been up and down the aisle for an hour and fifteen minutes before the fall and did not see the substance); Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992)(employee had gone down the aisle ten to fifteen minutes before the accident and saw no spill on the floor); Skaggs Co. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986)(employee had walked down the aisle five minutes before the occurrence and did not observe the foreign matter). Here, there was no proof the motor oil was present on the floor for anywhere near the “substantial” period of time required to justify an inference of negligence.

Giving Mankey’s evidence its highest probative value, and considering all the reasonable inferences deducible from it, the proof falls short. Mankey did not prove the motor oil was on the floor because of Wal-Mart’s negligence or that the oil had been on the floor for so long that Wal-Mart knew or should have known, it was there. Therefore, the trial court was correct in granting Wal-Mart’s motion for a directed verdict.

Affirmed.

Dudley and Corbin, JJ., not participating.


author: David Newbern, Justice.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. ESTATE OF Kimberly Dawn HOGAN
    93-337
    858 S.W.2d 105
    Supreme Court of Arkansas
    Opinion delivered July 12, 1993

      Richard B. Dahlgren, Office of Chief Counsel, for appellant.

      Daily, West, Core, Coffman & Canfield, by: Robert W. Bishop and Michael C. Carter, for appellee.
   David Newbern, Justice.

Two questions are presented in this appeal. The first is whether a probate court may approve a tort claim settlement on behalf of a ward if the settlement distributes funds to a trust designed not to be a medicaid qualifying trust. The second question is whether a probate court has authority to declare that such a trust is not a medicaid qualifying trust. We affirm the order approving distribution to the trust, but we reverse the order holding that the trust is not a medicaid qualifying trust.

Kimberly Dawn Hogan was born in 1981 with brain dysfunction. In 1988 she was treated surgically at Sparks Regional Medical Center in Fort Smith. Her parents alleged that medical malpractice which occurred in connection with that procedure caused further injury to her brain. A settlement was reached, and Kimberly’s mother was appointed guardian of her estate by the Probate Court which was asked to approve the settlement.

The settlement was approved, and it included an escrow for liens including one asserted by the appellant, Arkansas Department of Human Services (DHS), for medicaid funds previously expended on Kimberly’s care. The settlement also included a provision for creation of a trust for Kimberly’s benefit with the malpractice defendants’ insuror as “trustor” and a Fort Smith bank as trustee. It is a “special needs trust” designed to assure that the funds contained in it are not to be available to Kimberly for the sort of expenses covered by medicaid and thus not to be considered in determining her eligibility for medicaid. See Eligibility for Welfare Benefits as Affected by Claimant’s status as Trust Beneficiary, 21 A.L.R. 4th 729 (1983); Special Trusts for Asset Preservation Planning, 132 Trusts & Estates 62 (1993).

The trust instrument provided the funds were to be used for Kimberly’s care but were, “intended to be utilized for those special needs in excess of those public and private funds that are available and not in any way intended to replace them or to affect her eligibility for said funds.”

In its order approving the settlement the Probate Court stated the amount settled on Kimberly was intended by the parties to

supplement the costs and expenses she incurs. . .in excess of what is available to her from public, quasi-public, and private contributions. . . . The net funds are not provided in order to repay any benefits which have been provided . . . and are not intended to take the place of any benefits payable to her in the future from . . . medicaid .... These funds ... are not [to] . . . affect Kimberly’s eligibility for said funds.

DHS, which had been notified of the guardianship proceeding, but not, in writing at least, of the settlement hearing, intervened to take exception to the Probate Court approval of a settlement purporting to have an effect on a determination of medicaid eligibility which it contended was to be an administrative decision subject to circuit court review.

At a hearing where DHS, the trustee bank, and the guardian were present, DHS argued the Probate Court lacked jurisdiction to determine whether the trust was a “medicaid qualifying trust,” i.e., one which was not immune from consideration when determining funds available to Kimberly when determining her future eligibility for medicaid assistance. See 42 U.S.C. § 1396a(k).

The Probate Court then issued a further order containing the following:

[T]he court has determined and hereby finds that the Trust is not a medicaid qualifying trust and the funds in the Trust are not available for and cannot be utilized for the provision of services which are obtainable from other sources, including medicaid provided services.

We agree with DHS that the Probate Court had no authority to make that decision.

1. Jurisdiction

In addition to arguing that jurisdiction to determine whether a trust is a medicaid qualifying trust is reserved by federal and state law to the administrative process, DHS argues the Probate Court exceeded the powers conferred upon it by the Constitution and statutes, and we agree.

The jurisdiction of probate courts is established by Ark. Const. art. 7, § 34, and it includes “matters relative to . . . guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law.” Arkansas Code Ann. § 28-65-107(a) (1987) repeats the provision for exclusive jurisdiction of probate courts in matters of guardianship, and § 28-65-302(7) provides specifically that a guardian, with probate court approval, may consent to a settlement of a claim by the ward. The authority of a probate court with respect to approval of tort claim settlements on behalf of guardians is further elaborated in § 28-65-318 (1987). Probate courts are, however, courts of limited and specific jurisdiction, and they have only the powers conferred by the Constitution or by statute or powers necessarily incidental to those specifically granted. Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984).

Kimberly’s estate responds to the jurisdictional argument by contending that the determination that the trust was not a medicaid qualifying trust was necessary to the decision approving the settlement. It also contends it was proper for the Probate Court to decide that question because the issue was injected by DHS.

a. Necessity

In support of its argument that it was necessary for the Probate Court to include in its order a holding that the trust was a medicaid qualifying trust Kimberly’s estate cites Alexander v. First National Bank of Fort Smith, 275 Ark. 439, 631 S.W.2d 278 (1982). In that case we held the Probate Court had the authority to determine, in the course of approving the distribution of assets of an estate, whether there had been a family settlement agreement. We affirmed the Probate Court’s holding that there was no family settlement agreement. Had it been held to the contrary, the initial distribution of the estate would have been directly affected. It was thus necessary for the Probate Court to make a determination whether there had been a family settlement agreement to accomplish its task of distribution of the assets.

Kimberly’s estate makes no showing that a decision whether the trust is a medicaid qualifying trust had any effect on the manner in which the assets created by the settlement were distributed. The initial determination as to Kimberly’s medicaid qualification occurred months before the decision distributing the settlement fund and, as Kimberly’s estate points out in connection with the next subpoint, the question about the nature of the trust was stimulated by DHS’s objection to the trust and the settlement after its initial approval. We cannot say the decision of that issue was necessary to the Probate Court approval of the settlement. When a probate court acts without authority in a matter ancillary to one it properly considers, its decision on the ancillary question is void. Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978).

b. Injection of the issue

When the question is one of subject matter jurisdiction, it does not matter how it arises; it may be raised for the first time on appeal, Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976), and we can raise it on our own. Arkansas Savings & Loan Ass’n Board v. Corning Savings & Loan Ass’n, 252 Ark. 264, 478 S.W.2d 431 (1972). The parties to an action may not confer subject matter jurisdiction on the court, McCraw v. Simpson, 203 Ark. 763, 158 S.W.2d 655 (1942), thus it does not matter that DHS seemed to be seeking an answer to the question whether the trust was a medicaid qualifying trust.

We reverse the Probate Court’s order of January 4, 1993, and its holding that the trust is not a medicaid qualifying trust.

2. Settlement terms

DHS has given us no reason to reverse the order approving the settlement terms. Presumably the determination of the effect upon continued medicaid eligibility of the provisions of the trust and settlement order of which DHS complains will be made in another forum. See Arkansas Dept. of Human Services v. Donis, 280 Ark. 169, 655 S.W.2d 452 (1983).

DHS concedes that the Probate Court has not decided Kimberly’s eligibility for medicaid. Just as in In Re Porter, 298 Ark. 121, 765 S.W.2d 944 (1989), that issue was not before the Probate Court.

The decision of the Probate Court approving the settlement is affirmed. The decision of the Probate Court that the trust created by the settlement is not a medicaid qualifying trust is reversed.

Affirmed in part and reversed in part.