author:
D ONALD L. CORBIN, Justice. T OM GLAZE, Justice,
      A NNABELLE Clinton Imber, Justice,

text:
    Martha COLLINS v. Cornelius COLLINS
    00-1412
    61 S.W.3d 818
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001
    [Petition for rehearing denied January 17, 2002.]

      Christopher C. Mercer, Jr., for appellant; David O. Bowden, of counsel.

      Jan Dewoody Scussel, for appellee.

       Arnold, C.J., and Glaze and Imber, J.J., would grant.

   D ONALD L. CORBIN, Justice.

This is a domestic-relations case involving a dispute over whether funds obtained in conjunction with a setdement under the Federal Employers Liability Act (“FELA”) are marital property for purposes of the marital-distribution statute. Appellant Martha Collins raises the following allegations of error on appeal: (1) the chancellor applied the wrong standard of proof in evaluating the evidence to determine whether the funds were marital property; and (2) the chancellor erred in awarding the entire FELA setdement to Appellee Cornelius Collins. This case was certified to us from the Arkansas Court of Appeals; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b) (6) and (d). We affirm.

The record reflects that the parties were married on August 1, 1969, and three children were born of that marriage. The parties separated on August 14, 1995, with Appellee filing a claim for divorce on December 21, 1995, in the Jefferson County Chancery Court. Appellant filed a cross-claim for divorce, and on June 13, 1996, a decree of divorce was entered granting Appellee an absolute divorce. During the divorce hearing, it was announced that the parties had entered into a property setdement agreement. As part of that agreement, Appellant was granted a fifty-percent interest in any proceeds awarded to Appellee as a result of his FELA claim, with the exception of those funds exempted under Ark. Code Ann. § 9-12—315(b)(6) (Repl. 1998). The property settlement agreement also provided that Appellee would notify Appellant prior to any settlement of the FELA claim.

After the parties separated, Appellee was injured in an accident that gave rise to his FELA claim. The accident occurred on October 2, while Appellee was employed as an engineer with Southern Pacific Transportation Company/Union Pacific Transportation Company (“the railroad”). Appellee was sitting in a locomotive awaiting orders when some runaway cars struck the locomotive, throwing him about the engine. Fie suffered immediate injuries to his back, neck, and shoulders and was taken to the emergency room at Jefferson Regional Hospital. Appellee was initially referred to physical therapy, but after his condition failed to improve, he sought the care of an orthopedic specialist, Dr. George Schoedinger. A CAT scan performed in February 1995, revealed that Appellee suffered injuries to three different discs that required surgical intervention. Appellee underwent the first of three surgeries on April 1996, a diskectomy at L5/S1, which is at the belt level of the spine. Appellee underwent an anterior diskectomy and fusion at C3/4 and C4/5 in April 1997, after losing the use of his left arm. Finally, in April 1998, Appellee underwent an L5 fusion that resulted in the insertion of a titanium cage in his back.

Appellee was unable to return to work for the railroad following his accident. Prior to the accident, Appellee held two other jobs in addition to his job with the railroad. He owned and operated CK&M Bodyshop and was also an active member of the Arkansas National Guard. After the accident, Appellee was no longer able to manage the bodyshop and sold it to one of his employees in July 1997. Appellee was also honorably discharged from the National Guard because he was found to be physically unfit for continued service.

Appellee filed a FELA claim against the railroad in federal court in St. Louis, Missouri, alleging that he was injured as a result of his employer’s negligence. He sought past and future damages for severe pain and suffering, medical care and attention, psychological and emotional injury, mental anguish and anxiety, and lost wages and benefits. A trial of the matter began on April 6, 1999, in St. Louis. Prior to the submission of any evidence, Appellee and the railroad reached an agreement to settle the matter. In exchange for releasing his employer from any claims of liability, Appellee was awarded a gross setdement of $742,000.00. The following amounts were immediately deducted from the settlement: $185,500.00, for attorney’s fees; $52,310.46, for litigation expenses; $4,000.00, for any expenses incurred but not yet billed; $3,394.09, to repay the Railroad Retirement Board for previously paid disability benefits; and $1,400.00, for any uncovered medical expenses that will be returned to Appellee if not used. An additional $4,631.07 was added to the settlement amount for payment of certain work costs. Appellee also received a check for $14,856.85, to cover outstanding medical bills that he previously paid.

Appellee ultimately received a lump-sum payment of $480,787.18, in settlement of his FELA claim. This amount will increase to $505,426.32, if certain monies withheld for future costs are returned to Appellee. The chancellor ordered Appellee to deposit $240,393.59, an amount equal to one-half of the lump-sum payment, into a savings account in his name alone until a determination was made of what portion, if any, Appellant was entitled to under the property settlement agreement. A hearing on the matter was held on November 23, 1999, and continued until February 3, 2000. Appellant argued that she was entitled to one-half of the setdement proceeds, as they constituted marital property not exempted by section 9-12-315(b)(6). Appellee countered that Appellant was not entitled to any portion of the proceeds, as they were proceeds awarded for permanent disability, and thus were excepted from the definition of marital property.

The evidence presented to the chancellor included the testimony of three witnesses: Appellant, Appellee, and Freddie Lee Kelly, the purchaser of CM&K Bodyshop. Also admitted into evidence were numerous depositions of witnesses, ranging from medical experts to economics experts, including three depositions of Dr. Schoedinger. Other evidence included Appellant’s extensive medical records, a transcript of the settlement hearing in the FELA claim, and the release and resignation signed by Appellee in the FELA case. The chancellor requested that the parties submit briefs and then took the matter under advisement.

The chancellor issued his findings of fact and conclusions of law on June 20, 2000. Therein, the chancellor stated that Appellee had the burden of rebutting the presumption that the proceeds were marital property by a preponderance of the evidence. After setting forth a summary of this court’s most recent holdings in similar cases, the chancellor concluded that the evidence established that Appellee suffered a degree of permanent disability caused by his work-related injury. He also credited the findings of Dr. Edwin 'Wolfgram that Appellee suffers from major depressive disorder and that Appellant failed to rebut this opinion with any other evidence. Thus, the chancellor ruled that the settlement proceeds were not marital property and, therefore, not subject to division. An order reflecting the chancellor’s findings was subsequently entered on July 11, 2000. From this order, comes the instant appeal.

It is well established that this court reviews chancery cases, including those involving the division of property, de novo on appeal. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001); Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). We do not reverse a finding of fact made by the chancellor unless it is clearly erroneous. Id.; McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Pre-Paid Solutions, Inc. v. City of Little Rock, 343 Ark. 317, 34 S.W.3d 360 (2001). We give due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be given their testimony. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999).

I. Quantum of Proof

For her first point on appeal, Appellant argues that the chancellor’s findings were based on an erroneous standard of proof. Specifically, Appellant argues that the chancellor erroneously based his findings on a preponderance of the evidence, and that where a party seeks to prove that property is excepted from the definition of marital property, the quantum of proof required is that of clear and convincing evidence. Appellant relies on some cases from our court of appeals where the announced standard of proof was that of clear and convincing evidence. See Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000); Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). Appellee argues that the cases relied on by Appellant are inapposite to the case at hand because those cases deal with situations where separate property has been co-mingled with marital property or title to the property is held in both spouses’ names. We agree with Appellee.

While this court has held that clear and convincing evidence is required to rebut a presumption that property titled in both spouses’ names is separate property, we have never addressed the standard of proof necessary to prove that funds are excepted from the definition of marital property. We are guided by the principle that the quantum of proof generally required in civil cases is that of preponderance of the evidence. See Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985), cert. denied, 475 U.S. 1036 (1986); McWilliams v. Neill, 202 Ark. 1087, 155 S.W.2d 344 (1941)). Accordingly, we cannot say that it was error for the chancellor to weigh the evidence under a preponderance standard of proof.

II. FELA Settlement Proceeds

We now turn to Appellant’s argument that the chancellor erred in awarding the entire FELA settlement to Appellee as nonmarital property. Appellant contends that Appellee failed to present sufficient proof that the proceeds were awarded for a permanent disability or future medical expenses, and it was error for the chancellor to find that the entire settlement was excepted from the definition of marital property. Appellee argues that the chancellor’s award was correct because the overwhelming evidence established that he suffered a permanent disability that resulted in the FELA settlement.

This court’s treatment of disability payments in the context of martial division has varied over the years. In 1987, however, the General Assembly passed Act 676 of 1987, adding certain exceptions for benefits received in connection with a personal injury or worker’s compensation claim to the definition of marital property. This act now codified at section 9-12-315(b) provides in relevant part:

(b) For the purpose of this section, “marital property” means all property acquired by either spouse subsequent to the marriage except:
(6) Benefits received or to be received from a workers’ compensation claim, personal injury claim, or social security claim when those benefits are for any degree of permanent disability or future medical expenses [.]

The first case to apply this new exception was Clayton v. Clayton, 297 Ark. 342, 760 S.W.2d 875 (1988). At issue in Clayton was whether a spouse’s unliquidated FELA claim constituted marital property. After recognizing that the statute did except certain benefits, including FELA claims, this court held that only that portion of such funds awarded for any degree of permanent disability or future medical expenses is excepted and that the remaining benefits are subject to division as marital property. The decision in Clayton is distinguishable from the situation now at hand. At the time the parties were divorced, negotiations had not yet begun on the husband’s FELA claim, and this court refused to rule on any division of the claim, because the record was insufficient to determine what portion of the FELA benefits might constitute marital property. Here, the record is replete with evidence regarding the nature of the husband’s injuries, his inability to work, and even evidence from Appellee’s FELA attorney regarding the strategy behind the pursuit of the FELA claim. Thus, we must determine if this evidence was sufficient to establish that the settlement proceeds were not subject to division as marital property.

A review of the record before this court reveals that Appellee submitted ample evidence to demonstrate that his settlement was awarded for a degree of permanent disability. At the outset, we recognize the long-standing principle that this court defers to the chancellor’s credibility assessments. McKay, 340 Ark. 171, 8 S.W.3d 525. For purposes of clarity, we begin with a review of the medical evidence submitted in this case. This evidence consisted of a multitude of medical records, including records from Appellee’s three surgeries and extensive physical therapy. There were also three depositions of Dr. Schoedinger admitted into evidence. During a deposition taken on October 2, 1995, Dr. Schoedinger opined within a reasonable degree of medical certainty that Appellee’s injuries were attributable in whole or in part to his work-related accident. This opinion was reiterated in a January 13, 2000 deposition of Dr. Schoedinger who again opined that the accident caused Appellee’s injuries that in turn required surgical intervention. Dr. Schoedinger also testified that Appellee was permanently disabled from doing the job of an engineer. This opinion was corroborated by another expert witness, Dr. Calvin Benton, a former medical director for Southern Pacific Railroad. Dr. Benton testified in a deposition for the FELA case that based upon a review of his medical records, Appellee was unable to return to work for the railroad.

Appellee also underwent two Functional Capacity Evaluations (“FCE”), performed by a physical therapist. The first FCE was an eight-hour assessment conducted after Appellee’s first two surgeries on September 19, 1997. It revealed that Appellee had limited ability with regards to the amount of sitting, standing, and walking that he could endure. The therapist opined that Appellee could do some part-time work, building up to full-time work in the light-duty classification. A second FCE was conducted on October 16, 1998, and showed a marked reduction in his endurance, marked increase in his level of pain, and decreases in his strength. This time the therapist opined that Appellee would be unable to do full-time sedentary work, noting that his pain was too overpowering.

Dr. Schoedinger also referred Appellee to Wilbur Swearingin, a certified rehabilitation counselor. They met on three separate occasions. After reviewing Appellee’s medical and psychiatric records, as well as the results of his FCE’s, Swearingin testified in a deposition in the FELA case that he did not believe Appellee was able to work full time in October 1997. He further stated that he did not believe that he could offer Appellee any assistance to find other employment because of his medical situation.

In addition to this medical evidence, Appellee offered the deposition testimony and medical records of Dr. Edwin Wolfgram, his treating psychiatrist. Dr. Wolfgram diagnosed Appellee as suffering from a single-episode major depressive disorder, chronic post traumatic stress disorder, and pain disorder. According to Dr. Wolf-gram, Appellee was depressed because he was used to working sixteen to twenty hours per day but now could do nothing. He opined that Appellee was incapable of working in any consistent manner, and that his psychiatric conditions alone had rendered him permanently and totally disabled. According to Dr. Wolfgram, Appellee’s psychiatric conditions originated with his work-related accident.

Also included in the evidence was the deposition testimony of Dr. James Long, a professor of economics at Auburn University hired by Appellee to calculate his wage losses to retirement age. Dr. Long determined Appellee’s wage losses from October 2,. 1995, discounting it to present value, based on Appellee’s wages at the time of the accident, his fringe benefits and any mitigating income. According to Dr. Long’s calculations, Appellee’s past wage losses totaled $244,784.00. Dr. Long then determined Appellee’s future wage losses as follows: losses of $1,226,101.00, if Appellee retired at the age of 65; losses of $1,426,851.00, for retirement at 67; and losses of $1,735,573.00, for retirement at the age of 70.

Appellant also deposed Nelson Wolff, Appellee’s FELA attorney on September 3, 1999, in connection with the divorce case. According to Wolff, the railroad paid most, but not all, of Appellee’s medical bills during the course of the lawsuit, therefore resulting in the allocation of a portion of the FELA proceeds as payment to those medical providers. When asked if he had any type of breakdown of the proceeds actually paid to Appellee, Wolff responded that he did not, but explained that Missouri jury instructions and verdict forms are general forms that do not allow for an apportionment of damages. Wolff also testified that after the parties agreed to reach a settlement on April 6, they decided to go ahead and complete the paperwork the following day because both parties were anxious to settle the matter. Wolff stated that it was his and Appellee’s position throughout the litigation and settlement that Appellee suffered a severe injury as a result of the work-related accident. According to Wolff, there was compelling evidence to establish that Appellee was severely and permanently disabled as a result of the accident and that his subsequent medical treatments left him disabled from gainful employment.

In sum, the overwhelming evidence before the chancellor established that Appellee suffered a permanent disability that ended his career with the railroad and has prevented him from maintaining gainful employment. In addition, Appellee testified about the nature and extent of his injuries, and stated that the pain he continues to suffer as a result of those injuries prevents him from maintaining gainful employment. He stated that prior to the settlement, he attempted to work part time, first as a substitute teacher and then doing some office work, but was unable to stay with either job. He also testified that he was forced to sell CM&K Bodyshop because he was unable to do the physical activities required of the business. Appellant stated that he received occupational-disability benefits following the accident, but returned $3,394.09 of his disability and sick pay to the Railroad Retirement Board from his settlement proceeds.

Moreover, in agreeing to settle his FELA claim, Appellee acknowledged that he suffered from a permanent disability resulting in his inability to return to work for the railroad. The release referenced the specific accident that led to Appellee’s injuries and states in relevant part:

Considering myself permanently disabled as a result of said accident and injuries, I further agree as a consideration for the payment to me of the sum of money mentioned herein, that I shall not return, nor attempt to return, to work for the Union Pacific Railroad Company/Missouri Pacific Railroad Company/Southern Pacific Railroad Transportation Company, or any affiliated or subsidiary companies in any capacity, and I hereby resign from active service effective this date. As a further consideration of this settlement, I hereby agree to never return or attempt to return to the employ of Union Pacific Railroad Company, its successors, affiliates, assigns, or subsidiaries, in any capacity, and any attempt to do so will be grounds for immediate disqualifications and/or dismissal.
That in determining said consideration there has been taken into consideration not only the ascertained injuries, disabilities and damages but also the possibility that the injuries sustained may be permanent and progressive and recovery therefrom uncertain and indefinite, so that consequences not now anticipated may result from the said accident, and for the consideration of the amount aforementioned, it is the express intention and desire of the undersigned to release, discharge and acquit Union Pacific Railroad Company/Missouri Pacific Railroad Company/Southern Pacific Transportation Company, their agents, servants and employees, and all other persons, firms and corporations hable, or who might be claimed liable, from any and all claims, demands and choses in action arising from the injuries, disabilities and damages sustained in the said accident which are uncertain, indefinite and the consequences of which are not now anticipated^]

In Skelton v. Skelton, 339 Ark. 227, 5 S.W.3d 2 (1999), this court held that a husband provided sufficient proof to establish that his disability payments were exempt from the definition of marital property. In reaching this conclusion, this court utilized a two-prong test originally set forth in Mason v. Mason, 319 Ark. 722, 895 S.W.2d 513 (1995). The first prong requires that the claim be for a degree of permanent disability or future medical expenses. Second, the injury must be sustained while on the job or in the consequence of a tortious act. Id.

Here, there was evidence about the extent of Appellee’s injuries and the continued problems he experiences as a result of the accident. The evidence specifically demonstrated that Appellee suffers from a degree of permanent disability. The evidence also demonstrated that Appellee has been unable to maintain gainful employment due to his permanent disability. Moreover, the release executed in conjunction with the settlement of Appellee’s FELA claim, recognized that Appellee was permanently disabled. We believe this evidence was sufficient to satisfy the first prong of the Mason test, that the FELA proceeds were awarded for a degree of permanent disability. It is also undisputed that Appellee’s injury was sustained in the course of his employment, thus satisfying the second prong of Mason. The chancellor relying on this court’s previous decisions in Mason and Skelton determined that Appellee proved by a preponderance of the evidence that the settlement proceeds were awarded as a result of his permanent disability.

The dissent erroneously concludes that this case should be remanded because the chancellor failed to allocate the settlement proceeds. Pointing specifically to evidence of Appellee’s past lost wages, the dissent states that it was error for the trial court not to divide the $244,784.00 as marital property. This argument, however, amounts to nothing more than the dissent substituting its judgment for that of the chancellor. The evidence regarding the past lost wages came in the form of an expert’s deposition testimony taken prior to trial in preparation for Appellee’s FELA suit. Dr. Long, an economics expert retained by Appellee, testified regarding his opinion of Appellee’s past and future lost wages. There was absolutely no evidence that any part of the actual settlement proceeds represented a portion of lost wages, past or future. There is nothing in the record before us to indicate that the trial court did not consider this evidence in reaching his conclusion that the entire setdement was awarded for a degree of permanent disability.

In fact, as previously pointed out, the overwhelming amount of evidence presented in this matter supports the chancellor’s conclusion that this award was for a degree of permanent disability and, thus, not subject to division as marital property. The chancellor analyzed the evidence before him in a manner consistent with this court’s analysis in Skelton, 339 Ark. 227, 5 S.W.3d 2. First, the chancellor determined that based on the evidence before him the settlement was awarded for a degree of permanent disability. Secondly, he determined that the disability was job related. Only then did the chancellor conclude that the award was not marital property and therefore not subject to division. In the absence of any proof to the contrary, we cannot say that the chancellor was clearly erroneous in finding that the FELA proceeds were not subject to division as marital property.

III. Analytic vs. Mechanistic Approach

Finally, Appellee urges this court to adopt the analytic approach in determining the nature of personal injury settlements for purposes of marital distribution. Appellee contends that with the enactment of section 9-12-315 (b)(6), Arkansas in fact adopted the analytic approach. Appellant argues that this issue is not properly before us, as Appellee failed to raise it below. Appellant also argues that this court has already adopted the mechanistic approach, and such an approach should remain the law. We decline to reach the merits of Appellee’s argument on this point, as it is raised for the first time on appeal. See Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998). Our refusal to address this issue in the present case does not foreclose the possibility of addressing it in the future when the issue is properly before us.

Affirmed.

Arnold, C.J., Glaze and Imber, JJ., dissent.

T OM GLAZE, Justice,

dissenting. I disagree with the majority decision. The court’s holding does correctly recognize that Clayton v. Clayton, 297 Ark. 342, 760 S.W.2d 875 (1988), controls, but the court then erroneously applies the rule in Clayton.

In Clayton, this court held that a spouse’s Federal Employers’ Liability Act (FELA) claim for an unliquidated personal injury is subject to being divisible as marital property under Ark. Code Ann. § 9-12-315, however, the Clayton court excepted from marital property those FELA benefits received for any degree of permanent disability or future medical expenses. In Clayton, this court remanded, instructing the lower court to hold further proceedings and to make necessary findings to determine what benefits were to be considered marital property and distributed under § 9-12-315.

Unlike in Clayton, here appellee Cornelius Collins settled his FELA claim with his employer, Union Pacific Railroad Company (Union Pacific), in the gross amount of $742,000, but deducting therefrom attorneys’ fees, litigation and other costs, leaving him a lump-sum payment of $480,717.18. Collins then structured this net amount, claiming all of it was for permanent disability or future medical expenses, thus, making these specific benefits indivisible as non-marital property under § 9-12-315(b)(6). The trial court then improperly adopted Collins’s manipulation of his settlement terms that completely excluded his wife, Martha Collins, from sharing in any of his FELA benefits.

Our court and the General Assembly have clearly decided that divorcing spouses should share in unliquidated personal injury claims — except for permanent disability and future medical expenses. Consequently, we should not permit an injured spouse to settle around the other spouse by manipulating settlement terms so as to designate all benefits as resulting from a permanent disability.

Mr. Collins’s unrebutted expert testimony rendered by Dr. James Long at the hearing on this matter reflects Collins had suffered past wage losses in the amount of $244,784.00. That being so, such past lost-wage benefits accumulated during the marriage are clearly marital property to be equally distributable under § 9-12-315(a). The trial court’s failure to state reasons for failing to divide these lost wages equally was error. See Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988); see also Duncan v. Duncan, 11 Ark. App. 25, 665 S.W.2d 893 (1984). Candidly, it makes no sense for the trial court to accept the injured spouses’ argument that he sustained a permanent injury without acknowledging he also suffered past medical expenses and lost income. In fact, as already pointed out, that is exactly what the proof here showed below. For this reason alone, this case should be reversed and remanded for further proceedings.

Another benefit in issue arises involving a $14,856.85 check which was made payable to Mr. Collins. Although the trial court’s finding suggests Mr. Collins received checks payable to medical providers in the amount of $14,856.85, the record reflects a check was made payable in this amount to Mr. Collins. It appears the trial court’s finding was clearly erroneous on this point, and it, too, should be reconsidered by the trial court on remand.

In conclusion, I point out that my earlier interpretation of Arkansas’ marital property statute, Ark. Code Ann. § 9-12-315 (Repl. 1998), was that a spouse’s “unliquidated” personal injury claim is not marital property. However, I lost that argument in a 4-3 decision in Bunt v. Bunt, 294 Ark. 507, 744 S.W.2d 718 (1988) (Hickman, Purtle and Glaze, JJ., dissenting). In that dissent, I posed a series of questions concerning problems that likely would arise when judges would be required to retain jurisdiction to divide future proceeds from personal injury claims.

While I remain firmly convinced that a spouse’s unliquidated personal injury claims should not be marital property, our case law now clearly holds otherwise. In addition, the General Assembly has not deemed it necessary to modify § 9-12-315 so as to except such personal injury claims; instead, in 1987, it merely amended § 9-12-315(b), only to exclude the marital property benefits from personal injury claims when those benefits are for any degree of permanent disability or future medical expenses. However, by endorsing a procedure under § 9-12-315, whereby an injured spouse can unilaterally settle his personal injury claim so as to exclude his or her spouse, we can expect more cases like the instant one and ex-spouses will find themselves without recourse to protect whatever benefits that were intended for them under the statute. We should reverse and remand for the reasons above.

ARNOLD, C.J., and Imber, J., join this dissent.

A NNABELLE Clinton Imber, Justice,

dissenting. I agree .with Justice Glaze’s dissenting opinion. Appellee not only claimed a degree of permanent disability and future medical expenses, but he also claimed past medical expenses, past lost-wage benefits, and pain and suffering. As noted by Justice Glaze in his dissenting opinion, the amounts allocable to past lost-wage benefits and past medical expenses are easily deducible. Likewise, the record contains ample evidence from which a reasonable inference could be drawn that would preponderate in finding some of the loss sustained to be due to pain and suffering. The fact that a specific allocation was not made in the settlement documents should not preclude a finding that the award was intended to compensate for a particular purpose and the amount thereof; tins is the province of the fact-finder in every case. The majority’s holding today effectively overrules our decisions in Clayton v. Clayton, supra, and Bunt v. Bunt, supra, by permitting a settlement loophole to transmute marital property into nonmarital property. The case should be reversed and remanded for a determination and division of amounts that are allocable as past lost-wage benefits, past medical expenses, and pain and suffering.

Arnold, C.J., and Glaze, J., join in this dissent.

       The chancellor erroneously states in his order that Appellee received several checks totaling $14,856.85 that were made payable to various medical providers. Although the check was made payable to Appellee, his uncontradicted testimony revealed that the $14,856.85, as well as the other checks issued to pay medical providers were never given to him, but rather were disbursed by his attorneys.

       Dr. Wolfgram’s deposition was entered into evidence in this matter to show what evidence was available to the parties in the FELA suit, not for the purpose of proving the truth of the matters asserted.

       Provision (b)(6) reads:
      (b) For the purpose of this section, “marital property” means all property acquired by either spouse subsequent to the marriage except:

      (6) Benefits received or to be received from a workers’ compensation claim, personal injury claim, or social security claim when those benefits are for any degree of permanent disability or future medical expenses. (Emphasis added.)

       In Mr. Collins’s release to Union Pacific, he said, “Considering myself permanently disabled as a result of said accident and injuries, I further agree as a consideration for the payment to me of the sum of money mentioned herein, that I shall not return, nor attempt to return to work for [Union Pacific].”

       The majority opinion concedes this testimony, but then suggests there is nothing in the record to indicate the chancellor did not consider this evidence in reaching his conclusion that the entire settlement was awarded for permanent disability. Again, the majority loses sight of the fact that past lost wages are marital property and, once that was established, it was the chancellor’s responsibility to comply with the requirement to state the basis for not dividing the property equally. No such reasons or findings are found in the chancellor’s decision.

       At pages 96-109 in the transcript, particularly Mr. Collins’s attorney, Nelson Gregory Wolff, testified to damages sustained by Mr. Collins and how settlement monies were disbursed. Wolff said:
      There are checks that are paid to Neal (Collins), and on the back, he endorsed to medical providers for, for Neal himself so he can walk out of the office and not worry about having to deal with paying medical bills now, in the future or expenses or anything.

        The first check was in the amount of $14,856.85 that was made payable to Neal. That was a breakdown of part of the settlement so that he wouldn’t have to carry it all in a big lump sum. He received a bigger check later. At the bottom he gets another check in the amount of $480,787.18.
      These checks were all payable to Neal. Some of them were on behalf of outstanding medical bills that may have been related or unrelated to the case and that is how they were prepared. The checks that have medical providers in parenthesis, were all medical bills due and owing at the time of setdement.
      Clearly from Wolffs unrebutted testimony, Mr. Collins was paid for past medical expenses and checks were both related and unrelated to Collins’s FELA claim. Obviously, the past medical expenses are not excepted from the marital property statute, and if the chancellor desired to treat these checks as nonmarital, he was required to state his reasons for doing so. Again, the chancellor merely accepted Mr. Collins’s setdement terms as providing all funds paid to be for permanent disability and future medical expenses, which was wrong.


source: Caselaw Access Project

author: D ONALD L. Corbin, Justice.

license: Public Domain

text:
    TRI-STATE DELTA CHEMICALS, INC., d/b/a UAP Mid-South v. Nelson CROW, William Day, William Day and Sons, Larry Hillis, Moss Farms, Inc., Peacock and Staudinger, Prairie Creek Farms, Inc., Greg Simpson, and Guy Teeter
    01-624
    61 S.W.3d 172
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001

      Wyatt, Tarrant & Combs LLP, by: Ross Higman; and The Eilbott Law Firm, by: Don A. Eilbott, for appellant.

      Gibson Law Office, by: Charles S. Gibson, for appellees.
   D ONALD L. Corbin, Justice.

This appeal raises an issue of first impression: Whether a defendant’s default on a suit filed in circuit court effectively waives any right to compel arbitration. Appellant Tri-State Delta Chemicals, Inc., d/b/a UAP Mid-South (UAP), appeals the order of the Desha County Circuit Court granting a default judgment in favor of Appellees Nelson Crow; William Day; William Day & Sons; Larry Hulis; Moss Farms, Inc.; Peacock & Staudinger; Prairie Creek Farms, Inc.; Greg Simpson; and Guy Teeter. For reversal, UAP argues that the trial court erred in granting the default judgment and thereby denying its motion to compel arbitration. Appellees contend that this appeal should be dismissed for lack of a final order under Ark. R. Civ. P. 54(b), as damages have not yet been determined. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1—2(b)(1). We dismiss the appeal.

The record reflects that Appellees filed their complaint against UAP on April 10, 2000. The complaint alleged actions for breach of implied warranty of fitness, constructive fraud, actual fraud, and breach of fiduciary duties, based on UAP’s sale of cotton seed to Appellees. Appellees alleged that UAP knew that the seed was old when it sold the seed to Appellees and that such old seed would result in less crop yield. Service of the suit was made on UAP’s Arkansas agent, Prentice Hall Corporation System, on April 20, 2000. Under Ark. R. Civ. P. 12(a), UAP, which is a nonresident corporation, was required to file its answer within thirty days after service. UAP did not file an answer.

On August 16, 2000, Appellees filed a motion for default judgment. That same afternoon, UAP filed a motion for an extension of time to file an answer to the complaint. On August 25, 2000, UAP filed a motion to dismiss under Rule 12(b)(6) and, alternatively, a motion to compel arbitration of the dispute. UAP contended that Appellees were contractually obligated to arbitrate any disputes arising out of the purchase of seed from UAP, and that they were also obligated to arbitrate under Ark. Code Ann. § 2-23-101 to -110 (Repl. 1996 and Supp. 2001).

On October 23, 2000, a hearing was held'on the motion for default judgment. UAP presented testimony from several witnesses on the issue of its failure to timely plead or otherwise defend the suit. The motion for arbitration was not litigated at that time, as the trial court concluded that the default motion needed to be considered first. In an order filed November 6, 2000, the trial court granted Appellees a default judgment and denied “ [a]ll pleadings for affirmative relief filed to the contrary by the Defendant.” UAP timely filed a notice of appeal from that order.

Appellees move to dismiss this appeal on the ground that the default judgment did not address the issue of damages, and that the judgment therefore is not final under Rule 54(b). Appellees rely on Sevenprop Assocs. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988), wherein this court held that a default judgment is not a final, appealable order if the issue of damages remains to be decided. See also String v. Kazi, 312 Ark. 6, 846 S.W.2d 649 (1993).

UAP, on the other hand, asserts that it is not appealing the default judgment, only the denial of the motion to compel arbitration. UAP asserts that this is a proper interlocutory appeal under this court’s holdings and Ark. R. App. P.—Civ. 2(a) (12). See, e.g., Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000); Walton v. Lewis, 337 Ark. 45, 987 S.W.2d 262 (1999). While we agree that, generally, a denial of a motion to compel arbitration is an immediately appealable order, we do not believe that an interlocutory appeal will lie under the circumstances of this case. Instead, we agree with Appellees that UAP waived any right it may have had to compel arbitration when it failed to timely assert arbitration as a defense to the suit.

Although this is a matter of first impression in Arkansas, other jurisdictions have addressed this issue. For example, in Charming Shoppes, Inc., v. Overland Constr., Inc., 186 Misc. 2d 293, 717 N.Y.S.2d 860 (N.Y. Sup. Ct. 2000), the court held that by failing to file an answer to the plaintiff s lawsuit within the time prescribed by law, the defendant waived its right to arbitrate the dispute. The court explained:

Though arbitration clauses are generally enforceable, they cannot be used to bypass the statutory provisions requiring that pleadings be answered or to thwart a proper motion for a default judgment. The Defendant effectively waived its right to enforce the arbitration clause when it failed to answer or appear in response to the summons and complaint under circumstances where there was no reasonable excuse for such default.

Id. at 297, 717 N.Y.S.2d at 863.

Similarly, in Woodruff v. Spence, 76 Wash. App. 207, 883 P.2d 936 (1994), the defendant argued that the trial court erred in granting a default judgment to the plaintiff and in denying his motion to stay the judicial proceedings pending arbitration. Although the appellate court ultimately remanded the case to the trial court for an evidentiary hearing, the court stated: “Whether [the defendant] knowingly waived his right to arbitration depends on whether he had notice of the action against him prior to entry of the default judgment.” Id. at 211, 883 P.2d at 938. We find these holdings persuasive on the issue presented in this case.

Here, UAP had thirty days after service in which to file its answer or other defensive pleading. UAP’s agent was served with notice of Appellees’ suit on April 20, 2000. Accordingly, it had until May 22, 2000, to file an answer. UAP did not file an answer in the suit, timely or otherwise. In fact, UAP did not even attempt to make an appearance in the suit until August 16, 2000, following its receipt of Appellees’ motion for default judgment. Its motion for arbitration was not filed until more than a week later, on August 25, 2000.

The trial court found that UAP had been properly served with a summons and complaint and that it had failed to timely plead or otherwise defend the suit. UAP does not dispute that service was properly completed. Thus, because service was completed and UAP failed to timely assert its right to arbitrate, it effectively waived or defaulted on that right. We reject UAP’s suggestion that the right of arbitration exists regardless of whether it is timely asserted. The right to seek arbitration is a defense to civil litigation. Like any other defense, it may be waived by failing to timely assert it under the rules of civil procedure.

Accordingly, under the unique circumstances of this case, an interlocutory appeal will not lie. Rather, the only appealable issue in this case is whether the trial court abused its discretion in granting the default judgment. As stated above, however, this issue is not properly before us, because the default judgment, which reserved the issue of damages, is not a final order under Rule 54(b). We thus grant Appellees’ motion to dismiss this appeal.

IMBER, J., not participating.

       May 20, 2000, fell on a Saturday; thus, UAP had until the following Monday, May 22, 2000, to file its answer.


author: R OBERT L. Brown, Justice. w H. “Dub” ARNOLD, Chief Justice,

text:
    Mike WOODALL and Mike Woodall Auto Sales, Inc. v. CHUCK DORY AUTO SALES, INC.
    01-659
    61 S.W.3d 835
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001

      Eichenbaum, Liles & Heister, PA., by: Peter B. Heister, for appellant.

      Dover & Dixon, P.A., by: M. Darren O’Quinn, for appellee.
   R OBERT L. Brown, Justice.

Appellants Mike Woodall and Mike Woodall Auto Sales, Inc. (Woodall), appeal from a judgment which memorializes a directed verdict in favor of appellee Chuck Dory Auto Sales, Inc. (Dory), and awards Dory damages for a counterclaim in the amount of $102,230. Woodall’s one point on appeal concerns whether the circuit judge erred in granting a directed verdict in favor of Dory, when the loans at issue carried with them a usurious interest rate. We reverse the judgment and remand for further proceedings.

On December 15, 1998, Woodall filed a complaint, which was followed by an amended complaint in this matter, and asserted that during the years 1995, 1996, and 1997, Dory made short term loans to him “virtually every business day” which ranged from $50,000 to $125,000 per day in exchange for car titles. The term of each loan, he alleged, was typically one business day. Dory charged him interest in the amount of $75.00 per title, and the typical interest paid per day ranged from $375 to $800. These loans, he contended, violated Article 19, § 13 of the Arkansas Constitution in that the interest assessed exceeded the rate of five percent above the Federal Discount Rate at the time of the contracts. Thus, he concluded, the loans were void with respect to unpaid interest, and he was entitled to twice the interest paid on the usurious loans.

Dory answered and pled the affirmative defenses of comparative fault, estoppel, laches, payment, release, set-off, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. He also filed a counterclaim for judgment for three checks which Woodall made payable to him but which were returned for insufficient funds. The three checks totaled $102,230. Dory claimed twice their value, or $204,460.

On February 2, 2001, the circuit judge held a bench trial on the matter and heard testimony from Woodall and his wife, Renae Woodall. An employee of Regions Bank, Ms. Karen Howell, who was a defense witness, was taken out of turn and testified to the amount of the Woodall checks returned for insufficient funds. At the close of Woodall’s case, Dory moved the judge for a directed verdict on grounds that Woodall had not made a case for usury, that the $75 fee per title was not interest, and that the transactions were sales. The circuit judge ruled:

It will be the ruling of the Court that both of these parties were businessmen. They were dealing at arms length, one with the other. They knew that there was no title or transfers — transfer of titles or possessions; there was no floor plan contract between them.
And I understand it, there was no written agreement of any kind between them, no drafting agreement, no floor plan, no notes, no nothing except what I’m going to call, which one of you called in your briefs, a transaction fee, which these gentlemen agreed upon at the start of this and which they carried out till the very end of it was a transaction fee, starting with a hundred dollars, ending at $75 per vehicle. And I’m going to rule that that was not interest, that that was simply a charge that was made for the purpose of transacting business.

The judge further ruled on Dory’s counterclaim, without objection by Woodall:

Well, based upon that ruling, I think [Dory] would be entitled to [his] counterclaim of $102,230.
It’s just inconceivable to me, gentlemen, that these folks could go through three years transacting a total of, if my figures are correct, $62,550,464 worth of business with $357,700 in transaction fees being paid, and all at once when the defendant [sic] goes out of business he starts crying wait a minute, I’ve been charged too much. It’s just — it’s beyond me to think that these people did not know what they were doing. If there was something illegal, I think they even condoned it. But I don’t at this point think that there was anything wrong with this.

Judgment was entered on February 21, 2001.

Woodall urges, as his sole point on appeal, that the circuit judge erred in finding that the $75 charge per title did not constitute interest and in dismissing his complaint. We agree.

The standard of review, when the grant of a motion for directed verdict or motion to dismiss is involved, is important to the resolution of this case. We have previously set forth that standard:

In determining whether a directed verdict should have been granted, we review 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). A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993). 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).

Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 292, 908 S.W.2d 331, 333 (1995).

We further have said that a trial court’s duty is to review a motion for directed verdict or dismissal at the conclusion of a plaintiffs case by deciding whether, if it were a jury trial, the evidence would be sufficient to present to the jury. See Swink v. Giffin, 333 Ark. 400, 970 S.W.2d 207 (1998). In making that determination, the trial court does not exercise fact-finding powers that involve determining questions of credibility. See id; Neely v. Jones, 234 Ark. 812, 354 S.W.2d 726 (1962).

In the case at hand, Woodall and his wife, Renae Woodall, described their standard way of doing business with Dory. According to the Woodalls, each afternoon Renae Woodall would place four to eight certificates of title for vehicles in separate envelopes with the vehicle’s make, model, and year marked on the front of the envelope and print a computer sheet showing the value of each vehicle. Assignments of the certificates of title were not completed, and possession of the vehicles did not change hands. No other documentation was included in any of the envelopes. The envelopes and sheet were delivered to Dory by a driver, at which time Dory would write a check payable to Woodall for the total value of those vehicles and send it back to Woodall by means of the same driver. Woodall would deposit Dory’s check. The next morning, Woodall would repay what he described as a loan to Dory, together with a transaction fee of $75 per vehicle which he described as interest. Dory then returned the envelopes to Woodall. Thus, Woodall maintains that a case for usurious interest on the loans was made.

Dory counters Woodall’s case in his brief before this court by arguing that the circuit judge made a credibility call and did not believe Woodall. He points out that Woodall was a convicted felon and had made the comment in a previous deposition.that he was “buying back the titles [he] had sold [to Dory,]” which evidenced that sales, not loans, had taken place. Dory underscores that he paid the fair market value for these vehicles on a daily basis, got the certificates of title, and was paid a transaction fee for his trouble.

There are three problems with the position Dory has taken in this case. First, the circuit judge’s own words do not reveal that he decided this case based on the credibility of the parties. Secondly, even if the judge had, we have held that such a consideration of credibility is not appropriate in deciding a motion to dismiss at the close of the plaintiffs case. See Swink v. Giffitt, supra. And, thirdly, Dory never testified as to why these transactions were sales and not loans.

We turn then to our caselaw for a definition of what constitutes interest. In Arkansas Sav. & Loan Ass’n v. Mack Trucks of Arkansas, Inc., 263 Ark. 264, 566 S.W.2d 128 (1978), we examined whether a fee deemed a “service charge” was actually interest. In doing so, we relied on our prior decision of Sosebee v. Boswell, 242 Ark. 396, 414 S.W.2d 380 (1967), in which we had previously set forth two principles for determining when additional charges are interest: (1) “any profit exacted by the lender must be treated as interest if it depends upon a contingency not within the control of the debtor[,]” and (2) “the moneylender cannot impose upon the borrower charges that in fact constitute the lender’s overhead expenses or costs of doing business[.]” Arkansas Sav. & Loan Ass’n, 263 Ark. at 267-68, 566 S.W.2d at 130 (quoting Sosebee v. Boswell, supra). Additionally, this court has recognized the following definition of interest:

The compensation which is paid by the borrower of money to the lender for its use, and generally, by a debtor to his creditor in recompense for his detention of the debt.

Winston v. Personal Fin. Co. of Pine Bluff, 220 Ark. 580, 585, 249 S.W.2d 315, 318 (1952) (quoting Bouvier’s Law Dictionary).

Woodall testified that the $75 charge attached to each certificate of title was a fee paid to Dory for the use of the money. This testimony plus the daily practice of exchanging money between the two men constituted substantial evidence that the $75 fee was a “cost of doing business” or “compensation paid to the lender for the use of the money.” Accordingly, based on the evidence before the circuit judge when the motion to dismiss was made, we are convinced that there was substantial evidence the $75 charge was interest. Moreover, because the circuit judge dismissed Woodall’s complaint before Dory presented his case, we are not privy to what Dory’s testimony might have been regarding why these transactions were sales rather than loans.

On the surface, at least, the circuit judge concluded that Woodall and Dory were businessmen dealing at arm’s length who had established a process for doing business and that only when matters began to go awry for Woodall did he raise the usury accusation. That may be, but this state’s policy against usury as set out in our constitution is mandatory and provides no exception for knowledgeable businessmen. The standard is whether Woodall made a case supported by substantial evidence, when the proof is viewed in the light most favorable to him and that proof is given its highest probative value. We cannot say that he did not. Nor can we say that when the motion to dismiss was made, fair-minded people would all have reached the same conclusion against Woodall. That, of course, is the test for reversal. See Morehart v. Dillard Dep’t Stores, supra. Accordingly, we reverse the judgment and remand the case for further proceedings, including a new trial if necessary.

We further reverse and remand the judgment in Dory’s favor for the checks returned for insufficient funds in the amount of $102,230. At this stage, we cannot tell whether that amount includes any of the $75 transaction fees. That issue needs to be resolved on remand.

Reversed and remanded.

IMBER, J., not participating.

Arnold, C.J., dissents.

w H. “Dub” ARNOLD, Chief Justice,

dissenting. I agree with the majority that this Court has, indeed, held that consideration by the trial judge of the credibility of the parties is not appropriate in deciding a motion for directed verdict or to dismiss at the close of the plaintiff s case. See Swink v. Giffin, 333 Ark. 400, 970 S.W.2d 207 (1998). However, this limitation on the trial judge to be able to consider everything, including credibility, when the trial is a bench trial, is disconcerting to me, not to mention unrealistic. When the judge is to determine whether or not the plaintiff has met his burden of proof in a bench trial, the trial judge should be able to assess all things, including credibility. I am bothered by this restriction on the trial court’s consideration.

I therefore must respectfully dissent.

       Ark. R. Civ. P. 50(a) provides that in a nonjury case, a party moves to dismiss rather than for a directed verdict. Accordingly, for the balance of the opinion, we will refer to the motion as one for dismissal.


author: A NNABELLE CLINTON IMBER, Justice.

text:
    Roger Allen HAMMON v. STATE of Arkansas; Michael Jackson v. State of Arkansas; William Eugene Langley v. State of Arkansas
    CR 00-1259; CR 00-1383; CR 00-1275
    65 S.W.3d 853
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001
    [Amended and Substituted Opinion delivered January 24, 2002]

      Dave Wisdom Harrod, for appellant Roger Allen Hammon.

      Robert C. Marquette, Chief Public Defender, for appellant William Eugene Langley.

      Daniel G. Ritchey, for appellant Michael Jackson.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   A NNABELLE CLINTON IMBER, Justice.

Dave Wisdom Harrod, Robert C. Marquette, and Daniel G. Ritchey have each filed motions to withdraw as counsel in three separate appeals from circuit court orders denying petitions for postconviction relief under Ark. R. Crim. P. 37. The three motions are treated as a case in order to resolve the construction of Rule 16 of the Arkansas Rules of Appellate Procedure—Criminal in relation to this court’s prior case law holding there is no constitutional right to appointment of counsel in state postconviction proceedings. We now hold that, when this court allows court-appointed counsel to withdraw in an appeal of a denial of postconviction relief for sufficient cause shown, the postconviction petitioner is not automatically entitled to the appointment of new counsel. This court may, however, exercise its discretion and appoint counsel for a Rule 37 appellant. Mr. Harrod’s motion to withdraw is moot and, therefore, must be denied. Mr. Marquette’s motion to withdraw is granted for sufficient cause shown, and we appoint Mr. Charles Kester to represent Mr. Langley in his appeal from an order denying postconviction relief. Mr. Ritchey’s motion to withdraw is denied, and his motion to proceed as court-appointed counsel is granted.

I. Hammon v. State

The first of the three combined motions to withdraw is in the case of Hammon v. State, CR 00-1259. Roger Allen Hammon was convicted of capital murder and sentenced to life imprisonment without parole. We affirmed the judgment. Hammon v. State, 338 Ark. 733, 2 S.W.3d 50 (1999). Mr. Hammon filed a Rule 37 petition pro se, and the circuit court appointed Dave Wisdom Harrod, the public defender for Cleburne County, as counsel for Mr. Hammon in the Rule 37 proceeding. Mr. Harrod represented Mr. Hammon at a hearing on the petition for postconviction relief in White County Circuit Court. On September 14, 2000, the circuit court denied the Rule 37 petition. About one week later, Mr. Harrod terminated his employment with the State Public Defender’s Office. On September 26, 2000, Mr. Hammon filed a pro se notice of appeal from the denial of his petition for postconviction relief, and the record was lodged in this court on October 31, 2000. Shortly thereafter, Mr. Harrod filed a motion to withdraw as counsel and requested the substitution of the new public defender as attorney of record for Mr. Hammon. We ruled that Mr. Harrod’s motion to withdraw should be briefed and submitted as a case.

On February 23, 2001, Mr. Harrod filed an amended motion to withdraw. We denied Mr. Harrod’s amended motion to withdraw on March 15, 2001, and allowed him an extension of ninety days in which to file a brief on Mr. Hammon’s behalf. On June 20, 2001, Mr. Harrod filed a brief asserting that any appeal in the case would be wholly without merit and asking to be allowed to withdraw as counsel pursuant to Ark. Sup. Ct. R. 4 — 3(j)(1) (2001). Following Mr. Harrod’s filing of the motion and brief, Mr. Hammon filed pro se points for reversal.

Mr. Harrod’s original motion to withdraw as counsel for Mr. Hammon is moot because Mr. Harrod has already filed an abstract and brief on Mr. Hammon’s behalf pursuant to Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R. 4-3(j) (2001). Accordingly, we must deny Mr. Harrod’s original motion to withdraw as attorney-of-record.

II. Langley v. State

The second motion to withdraw filed in the case of Langley v. State, CR 00-1275, presents us with similar issues and is justiciable. Robert C. Marquette, a full-time, state-salaried public defender, was appointed by the Crawford County Circuit Court to represent William Eugene Langley in his Rule 37 proceeding. The circuit court conducted a hearing and denied the petition. Mr. Marquette timely filed a notice of appeal from the denial of postconviction relief. The record was lodged with our clerk on November 6, 2000. On November 13, 2000, Mr. Marquette filed a motion to withdraw as attorney for Mr. Langley.

The question before this court is whether Mr. Marquette should be allowed to withdraw from representing Mr. Langley in the appeal from the trial court’s denial of his request for postconviction relief. Arkansas case law indicates that, once an attorney represents an appellant in a matter of postconviction relief, the attorney is obligated to continue representing the appellant until relieved by the appropriate court. See Sanders v. State, 329 Ark. 363, 952 S.W.2d 133 (1997) (per curiam); Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989) (per curiam). After the notice of appeal has been filed, this court has exclusive jurisdiction to relieve counsel. Rule 16 of the Rules of Appellate Procedure — Criminal states:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause. After the notice of appeal of a judgment of conviction has been filed, the Supreme Court shall have exclusive jurisdiction to relieve counsel and appoint new counsel. If court appointed counsel is permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause, new counsel shall be appointed promptly by the court exercising jurisdiction over the matter of counsel’s withdrawal.

Ark. R. App. P — Crim. 16 (2001).

Pursuant to Rule 16, we will allow withdrawal of counsel “in the interest of justice or for other sufficient cause.” Mr. Marquette requests withdrawal on the basis that he is a full-time, state-salaried public defender appointed to represent Mr. Langley. He points out that this court has held that full-time, state-salaried public defenders are not entitled to receive additional compensation from the state for their services throughout any appeal to the Arkansas Supreme Court. Rushing v. State, 340 Ark. 84, 8 S.W03d 484 (2000). We have also allowed a public defender to withdraw from representation of a criminal defendant on direct appeal where the attorney was ineligible for compensation by this court pursuant to Rushing. Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000). The attorneys in both Rushing and Tester were allowed to withdraw on direct appeal, and new attorneys were appointed to represent the defendants.

Mr. Marquette seeks to withdraw in an appeal from the denial of postconviction relief. It is clear in Rushing and Tester that we considered the fact that the attorneys would not be paid for their services on direct appeal as sufficient cause to entitle them to withdraw. The same justification should apply to appeals from orders denying petitions for postconviction relief under Rule 37. As Mr. Marquette is acting in his capacity as a full-time, state-salaried public defender, he is prohibited from receiving “any funds ... or other thing of monetary value, directly or indirectly, for the representation of an indigent person pursuant to court appointment, except the compensation authorized by law.” Ark. Code Ann. § 16-87-214 (Supp. 2001). The legislature expressly subjected the Public Defender Commission to the Regular Salary Procedures and Restrictions Act. See Act 1379 of 1999, § 1; Ark. Code Ann. §§ 19-4-1601 — 1615 (Repl. 1998 and Supp. 2001). As of November 13, 2000, when Mr. Marquette filed his motion to withdraw, “this Act, in essence, prohibited] the public defender from receiving compensation from the State in an amount greater than that established by the General Assembly as the maximum annual salary for the employee.” Rushing v. State, 340 Ark. at 86, 8 S.W.3d at 490. Thus, Mr. Marquette could not be compensated by this court for any work on the appeal. Under Rule 16, Mr. Marquette must continue to represent Mr. Langley on appeal of the denial of his request for postconviction relief until this court has relieved him as counsel. Pursuant to our precedent in Rushing and Tester, Mr. Marquette has shown sufficient cause to be relieved from representation of Mr. Langley. His motion to withdraw is hereby granted.

Mr. Langley has now filed a pro se motion for appointment of counsel and motion for extension of time to file his brief. The question then becomes whether this court must appoint new counsel to replace Mr. Marquette. Both the United States Supreme Court and this court have held that there is no constitutional right to an attorney in state postconviction proceedings. Coleman v. Thompson, 501 U.S. 722 (1991); O’Brien v. State, 339 Ark. 138, 3 S.W.3d 332 (1999) (per curiam); McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997). Similarly, this court has held that the right to counsel ends in Arkansas after the direct appeal of the original criminal trial is completed, and the State is not obligated to provide counsel in postconviction proceedings. Fretwell v. State, 290 Ark. 221, 718 S.W.2d 109 (1986) (per curiani). See also Gipson v. State, 343 Ark. 44, 31 S.W.3d 834 (2000) (per curiam). Our reasoning has been that a postconviction proceeding is civil in nature and, thus, there is no constitutional right to appointment of counsel as part of a criminal proceeding. Fretwell v. State, supra.

Though the last sentence of Rule 16 requires new counsel to be appointed promptly by the court when court-appointed counsel is permitted to withdraw, that language was not added to the rule until January 13, 2000. Prior to our adoption of the additional language, this court held that Rule 16 applied to post-conviction appeals as well as direct appeals from judgments of conviction. Thomas v. State, 335 Ark. 262, 983 S.W.2d 122 (1998) (per curiam); Sanders v. State, 329 Ark. 363, 952 S.W.2d 133 (1997) (per curiam); Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989) (per curiam). However, we have never held that the new language adopted by this court in the 2000 amendment to Rule 16 applies to postconviction appeals. While we clearly have exclusive jurisdiction under Rule 16 to relieve counsel after the notice of appeal in a postconviction proceeding has been filed, the amendment to Rule 16 requiring the prompt appointment of new counsel applies only to direct appeals and not to postconviction proceedings, as there is no constitutional right to counsel in state postconviction proceedings.

Nonetheless, we have the discretion to appoint attorneys for indigent appellants in Rule 37 cases. Rule 37.3(b) of the Arkansas Rules of Criminal Procedure states:

If the original petition, or a motion for appointment of counsel should allege that the petitioner is unable to pay the cost of the proceedings and to employ counsel, and if the court is satisfied that the allegation is true, the court may at its discretion appoint counsel for the petitioner for any hearing held in the circuit court. If a petition on which the petitioner was represented by counsel is denied, counsel shall continue to represent the petitioner for an appeal to the Supreme Court, unless relieved as counsel by the circuit court or the Supreme Court. If no hearing was held or the petitioner proceeded pro se at the hearing, the circuit court may at its discretion appoint counsel'for an appeal upon proper motion by the petitioner.

Ark. R. Crim. P. 37.3(b) (emphasis added). Likewise, this court may exercise its discretion and appoint counsel upon proper motion by the petitioner. Mr. Langley has made such a motion to this court. Pursuant to Act 169 of 2001, the General Assembly appropriated funds to the Arkansas Supreme Court for the payment of “Court Appointed Attorneys.” As funds are available to compensate an attorney appointed by this court to represent Mr. Langley, we hereby appoint Mr. Charles Kester to represent Mr. Langley in his appeal of the order denying him postconviction relief. We grant Mr. Langley an extension of 60 days in which to file his brief, making his brief due on or before March 25, 2002.

III. Jackson v. State

The third and final motion to withdraw was filed in the case of Jackson v. State, CR 00-1383. Michael Jackson was convicted of First Degree Battery and sentenced to 240 months in the Arkansas Department of Correction. Following a timely appeal, the Arkansas Court of Appeals affirmed his conviction. Jackson v. State, CA CR 99-325 (Ark. App. November 3, 1999). Mr. Jackson filed a Rule 37 petition pro se. The circuit court appointed Daniel G. Ritchey to represent Mr. Jackson in the Rule 37 proceeding. The court held a hearing and denied Mr. Jackson’s petition. Mr. Ritchey filed a notice of appeal at Mr. Jackson’s request and, subsequently, filed a motion to withdraw in this court. In his motion, Mr. Ritchey asks, in the alternative, for authority to proceed with the appeal as court-appointed counsel. He further petitions for a writ of certiorari to complete the record. In the event alternative relief is granted, he requests a waiver of the requirement that an affidavit of indigency be filed in -order to proceed in forma pauperis or an extension of time for filing the affidavit due to Mr. Jackson’s incarceration. In addition, Mr. Ritchey requests an extension of time to file the record.

As previously stated, there is no constitutional right to an appointed attorney in state postconviction proceedings. However, Mr. Ritchey filed a notice of appeal on Mr. Jackson’s behalf and is obligated to continue to represent Mr. Jackson under Rule 16 of the Rules of Appellate Procedure — Criminal unless this court relieves him as counsel. In his Supplemental Motion to Withdraw as Attorney-of-Record, Mr. Ritchey states that he has received no compensation for court-appointed representation of Mr. Jackson to date and has no means to obtain compensation for representation from Mr. Jackson on his postconviction proceeding. Counsel asserts that he should not be required to continue to represent Mr. Jackson without compensation. Mr. Ritchey makes three additional requests on behalf of Mr. Jackson: (1) motion to waive the requirement that an affidavit of indigency be filed in order to proceed in forma pauperis or, in the alternative, motion for an extension of time to file such an affidavit; (2) petition for a writ of certiorari to complete the record; and (3) motion for an extension of time to file the record.

We note first that the notice of appeal in this case was filed on September 19, 2000, and Mr. Bdtchey tendered a partial record certified by the clerk of the trial court on November 28, 2000. Because the time for lodging a properly certified record had not expired at the time Mr. Ritchey tendered the partial record in this case, we direct the clerk to file said record. See Ark. R. App. P.— Civ. 5.

We now appoint Mr. Ritchey to continue his representation of Mr. Jackson as court-appointed counsel. Pursuant to Act 169 of 2001, Mr. Ritchey will be entitled to compensation from this court for his services on appeal. We grant the motion for extension of time to file an affidavit of indigency, which affidavit must be filed in this court on or before February 18, 2002. Upon the fifing of such affidavit, we direct the clerk to issue a writ of certiorari to the circuit clerk and court reporter to complete the record within thirty days of the issuance of the writ. Likewise, we grant an extension of time to file the complete record. The deadline for fifing the complete record shall be no later than thirty days after the issuance of the writ of certiorari. Mr. Ritchey, as the attorney-of-record, is hereby directed to proceed accordingly.

Motion to withdraw as attorney-of-record denied in CR GO-1259; Motion to withdraw as attorney-of-record granted and appointment of new counsel granted in CR 00-1275; In CR GO-1383, motion to withdraw as attorney-of-record denied, motion to proceed as court-appointed counsel granted, motion for extension of time to file affidavit of indigency granted, petition for writ of certiorari to complete record granted upon timely fifing of affidavit of indigency, and motion for extension of time to file the record granted.

       Act 1370 of 2001 amended Ark. Code Ann. § 19-4-1604 to provide that “[pjersons employed as full-time public defenders who are not provided a state-funded secretary may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals.” This amendment contains no clause allowing retroactive application.

       The Reporter’s Notes to Rule 16 indicate that the last sentence of the Rule was added by a Per Curiam amendment on January 13, 2000, in order “to require the prompt appointment of substitute appellate counsel when the court permits the withdrawal of counsel.”

       We note that Ark. R. Crim. P. 37.5(b)(1)(A) provides that, upon this court’s affirmance of a sentence of death, the circuit court that imposed the sentence of death shall conduct a hearing to consider the appointment of an attorney to represent the person in postconviction proceedings. If the person rejects the appointment of an attorney, the waiver must be made in open court on the record. Ark. R. Crim. P. 37.5(b)(2). If the circuit court determines that the person is indigent and that he either accepts the appointment of an attorney or is unable to make a competent decision whether to accept or reject an attorney, the circuit court must issue written findings to that effect and enter a written order appointing an attorney to represent the person. Ark. R. Crim. P. 37.5(b)(2). The appointment of an attorney under Rule 37.5 remains effective through an appeal to the Supreme Court. Ark. R. Crim. P. 37.5(c). All compensation and reasonable expenses authorized by the courts are to be paid pursuant to Ark. Code Ann. § 16 — 91—202(f), or as otherwise provided by law. Ark. R. Crim. P. 37.5(j).


author: J IM HANNAH, Justice.

text:
    Paul SMITH v. STATE of Arkansas
    CR 01-440
    61 S.W.3d 168
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001

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

      Mark Pryor, Att’y Gen., by: Katherine Adams, Ass’t Att’y Gen., for appellee.
   J IM HANNAH, Justice.

Paul Smith appeals his conviction for the kidnapping of Marcus Thomas and Kayla Goodwin on the basis of sufficiency of the evidence. In this same trial, Smith was convicted of the first-degree murder of Emma Goodman. He takes no appeal from that conviction. On this appeal, we have jurisdiction pursuant to Ark. Sup. Ct. R. 1—2(a)(2) as a case in which the penalty is life imprisonment. Because Smith failed to renew his directed-verdict motion after the State offered rebuttal evidence, Smith’s appeal may not be heard. This court has carried out a review under Rule 4-3 (h) and finds no errors prejudicial to the appellant. The State cross-appeals asserting it was deprived of its tenth peremptory challenge. Its appeal, however, was not filed until more than the permitted thirty days and, as such, is untimely. Direct appeal affirmed. Cross-appeal dismissed.

Facts

Emma Goodman was killed by strangulation and multiple blunt-force trauma sometime during the night of May 1-2, 1998. Paul Smith was charged and convicted. Smith and Goodman had been in a relationship and living together when Goodman broke it off after an argument and made Smith leave the house.

Goodman’s eleven-year-old grandson Marcus Thomas lived with her. He testified that Smith had been dating his grandmother, and that on the day before the murder, he saw Smith ask Goodman for keys, but his request was refused. Marcus further testified that before leaving that day, Smith pushed Goodman. On the night of the murder, Marcus and his three-year-old sister Kayla went to sleep on the couch in a dining area. During the night, a noise woke Marcus up. He went to an aunt’s bedroom, turned on the light, and found Smith there choking his grandmother. When Smith saw Marcus he stopped, but then commenced hitting Goodman in the face. Goodman was pleading with him to stop, which he apparently did at that time. Smith then went outside to get something. Goodman closed and locked the door, and would not let Smith back in. Smith regained entry. It appears that ultimately, Goodman may have let Smith back in the house; however, there was evidence of forcible entry at the front door.

By this point, Goodman was holding Marcus and Kayla in her lap, and Smith threatened to cut her with a pocket knife if she did not let the children go. She did, and Smith then got her to the floor and began hitting her in the face with a doorknob he tore from a door in the kitchen. Marcus then testified that Smith dragged Goodman up the stairs by her hair, but that they returned downstairs thereafter. The autopsy substantiated injury beneath the scalp consistent with Marcus’s account. Marcus testified further that his grandmother told him to call the police if Smith took her back upstairs, but he could not because the wires were cut. At this point, Marcus and Kayla went into a bedroom, and Smith locked them in. After that, Marcus heard bumping noises upstairs and then nothing. It became quiet, and they fell asleep. The next morning, Marcus jimmied his way out of the bedroom with a knife he found under the bed. He and Kayla found Goodman on a couch. They tried to wake her up, but could not. When an aunt arrived, she went to the service station and called 911. Marcus testified that the phones had been working the day before, and he did not know who had pulled the phone wire out of the wall.

Cindy Robinson, Goodman’s niece, testified that after the murder she went to her mother’s house, which was next to Smith’s home. Smith was in the yard washing his truck. Robinson spoke with her mother, Goodman’s twin sister, and they decided to go over to Goodman’s house. On their way out, Smith tried to talk to them, but they refused. Robinson testified that Smith was saying, “That’s why I did what I did.” Arresting officers noted fresh wounds on Smith’s hands. Bloody towels and cloths were retrieved from Smith’s truck, and blood was found on Smith’s shoes. Additionally, blood-stained articles and blood were also found at Goodman’s residence. The autopsy showed Goodman was killed by strangulation and blunt-force trauma. Smith was convicted of first-degree murder and two counts of kidnapping.

Sufficiency of the Evidence

Smith asserts there was insufficient evidence to support his conviction for the kidnapping of Marcus and Kayla. However, Smith states in his brief that after the State presented rebuttal evidence, “defense counsel did not renew his earlier directed verdict motions regarding the kidnapping charges.” A review of the record confirms Smith did not move for a directed verdict after the State’s rebuttal evidence.

The issue of failure to move for a directed verdict after the State puts on rebuttal evidence was discussed in King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999). Therein we noted our procedural rules require that a motion for a directed verdict be brought at the “conclusion of the evidence presented by the prosecution and again at the close of the case. . . .” Ark. R. Crim. P. 33.1. Therein we also stated, “Close of the case means close of the whole case, in other words, after the last piece of evidence has been received.” King, supra. This court stated in Rankin v. State, 329 Ark. 379, 386 948 S.W.2d 397 (1997), that:

Even if a defendant renews his motion at the close of his case-in-chief, the requirement of the rule to renew the motion at the “close of the case” obligates the defendant to renew the motion again at the close of any rebuttal case that the State may present in order to preserve the sufficiency issue for appeal.

See also, Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995) [overruled on other grounds in MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998)]; Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994).

This court has repeatedly held that in order to preserve for appeal the issue of the sufficiency of the evidence in a criminal case, the appellant must move for a directed verdict both at the close of the State’s case and at the close of the whole case. Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993); Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992); DeWitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991). See also, Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994).

Smith asserts that the rebuttal evidence only dealt with his argument of diminished capacity and a witness who intended to provide evidence that Smith’s motive in the murder was jealousy. Thus, Smith argues that all the pertinent evidence on the issue of kidnapping had already been introduced when he last moved for directed verdict. On this basis, he argues he is in compliance with Ark. R. Crim. P. 33.1, and the analysis of King, supra, is not applicable. We first note that the analysis under King, supra, requires that the motion must be renewed at the close of “any” rebuttal case the State presents. Additionally, under the instructions on the kidnapping charge, the jury was required to determine, among other things, whether the “conduct or a result thereof’ was “the conscious object of’ Smith. The jury may have been influenced by the rebuttal testimony on this issue and others. We hold Smith failed to preserve the question of sufficiency of the evidence by fading to move for a directed verdict after the State’s rebuttal testimony. King, supra.

Cross-Appeal

The State cross-appealed alleging the trial court erred when it refused to allow the State to use its tenth peremptory challenge. The State indicates, however, that its cross-appeal may be untimely under Byndom v. State, 344 Ark. 391, 39 S.W.3d 781 (2001), because the notice of appeal was not filed within thirty days of the entry of judgment. The State asks that this court apply Byndom prospectively because the application of rules governing a timely cross-appeal was unclear until the decision in Byndom. The notices of appeal in the present case were filed before Byndom was decided. The State cites to Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996) and Aka v. Jefferson Hosp. Assoc., 344 Ark. 627, 42 S.W.3d 508 (2001), for the proposition that because the state of the law was unclear, any holding thereon should be prospective only. We note that both of these decisions speak to situations where there is conflicting case law or, in other words, older case law upon which the parties may have relied. The State offers no such case law. Rather, the argument by the State is that the law was not clear, presumably because Rule 3 does not refer specifically to cross-appeals. However, as this court stated in Byndom, Rule 3 refers to appeals, not direct appeals, and contrary to the State’s argument in Byndom, there is no authority for the State to bring a cross-appeal other than under Rule 3.

In Byndom, this court addressed the issue of a cross-appeal by the State filed more than thirty days after the judgment was entered. This court held that the State had thirty days within which to file its notice of cross-appeal. Rule 3(b) provides that “the prosecuting attorney shall file a notice of appeal within thirty (30) days after entry of a final order by the trial judge.” The word “shall” is mandatory. Middelton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001). The State had thirty days from the date of the entry of the judgment to file its notice of appeal, and it did not do so. This court cannot reach the issue of the peremptory challenge because the notice of cross-appeal was not timely filed. Byndom, supra. Therefore, the State’s cross-appeal was untimely, and this court will not consider it.

Arkansas Supreme Court Rule 4-3(h)

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

Direct appeal affirmed.

Cross-appeal dismissed.

IMBER, J., not participating.


author: P ER CURIAM.

text:
    Steven ABSHURE v. STATE of Arkansas
    CR 01-925
    61 S.W.3d 842
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001

      Edgar R. Thompson, for appellant.
    No response.
   P ER CURIAM.

Appellant Steven Abshure, by and through his attorney, Edgar R. Thompson, has filed a petition for writ of certiorari to complete the record for appeal. Appellant was convicted of several felony drug offenses and sentenced to a total of twenty-five years’ imprisonment. The judgment was entered on April 6, 2001. Appellant timely filed a pro se notice of appeal. Mr. Thompson, who was appointed to represent Appellant at trial, was apparently unaware of Appellant’s actions. As a result, the transcript was not timely lodged with this court’s clerk.

Appellant subsequently filed a pro se motion for rule on the clerk. We granted the motion in an unpublished per curiam opinion. See Abshure v. State, CR 01-925, (Ark. October 25, 2001). We further directed Mr. Thompson, who remained the attorney of record, to file within thirty days a petition for writ of certiorari to complete the record for appeal. Mr. Thompson timely filed this petition on November 21, 2001. Accordingly, we grant the petition and direct the court reporter for the Lonoke County Circuit Court, First Division, to complete the transcript so that it may be promptly filed with this court’s clerk.

Petition granted.

Imber, J., not participating.


author: P ER Curiam.

text:
    ARKANSAS COUNTY v. DESHA COUNTY
    01-1085
    61 S.W.3d 840
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001

      No response.

      Rose Law Firm, by: Herbert C. Rule, III and Stephen N. Joiner, for appellee/petitioner.
   P ER Curiam.

AppeEee, Desha County, has filed a petition for a writ of certiorari to complete the record pursuant to Rule 3-5 of the Rules of the Supreme Court. AppeEee aEeges that certain designated items are omitted from the transcript in this case. SpecificaEy, appeEee’s petition states that the trial exhibits were not included within the record. AppeEee requests that we require the clerk of the trial court to transmit aE standard-size trial exhibits to our court. Rule 3-1 (a) of the Rules of the Supreme Court provides that the record should include “exhibits.” Accordingly, we grant appeEee’s request and order the clerk of the trial court to transmit the trial exhibits to this court.

AppeEee also argues that various over-sized trial exhibits should have been included within the record. Rule 3-1 (j) of the Rules of the Supreme Court states that “documents of unusual bulk or weight” may be filed with our court upon direction of the “party” or “the clerk of the court.” AppeEee contends that “the trial court’s transcript and the appeEant’s abstract of the testimony wiE be impossible to foEow unless these exhibits are part of the record.” Because these exhibits may be vital to our consideration of this case, we direct the clerk of the trial court to transmit these exhibits to this court.

FinaEy, appeEee contends that appeEant should bear the costs associated with supplementing the record. Pursuant to Rule 4-2 of the Rules of the Supreme Court, the proper time to assess costs to appeEant for faEure to properly abstract the case is after we take the case under consideration. Accordingly, we decline to assess any costs associated with supplementing the record at this time.

We grant the appeEee’s petition and direct that a writ of certiorari be issued to the clerk of the trial court to complete the record within thirty days and deliver it as soon as completed pursuant to Rule 3-5 (b) of the Rules of the Supreme Court.

Petition granted.

Imber and Hannah, JJ., not participating.

       We note that appellee does not think that it is necessary for the clerk of the trial court to transmit exhibit number forty-three to this court for our review during our consideration of this case. Because exhibit number forty-three is a cross-section of a persimmon tree, we agree with appellee and order the clerk of the trial court to retain possession of this over-sized exhibit.

       Because the oversized exhibits are irreplaceable, they should be hand-delivered to the clerk of this court.


author: P iER CURIAM.

text:
    Teresa BALLARD, Kenisha Bryant, and Cheryl King v. The CLARK COUNTY, Arkansas, CIRCUIT COURT
    01-1268
    61 S.W.3d 175
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001

      The Nixon Law Firm, by: David G. Nixon and Paige E. Young, for appellant.
    No response.
   P iER CURIAM.

Petitioners Teresa Ballard, Kenisha Bryant, and Cheryl King petition this court for a writ of prohibition to prevent the Clark County Circuit Court from ruling on a motion to strike their notice of appeal. We grant the motion to expedite consideration of this matter, and we grant the petition for writ of prohibition, and order that the writ be issued.

Petitioners were potential members of a class action lawsuit against Advance America, a check-cashing establishment. See Garrett v. Advance America, Cash Advance Centers of Arkansas, Inc., No. CIV-99-152 (Clark County, Arkansas). On July 18, 2001, the circuit court approved a settlement agreement between Advance America and the class representatives. Petitioners disapproved of this settlement agreement, and their disapproval has spawned several appeals.

Petitioners first filed a motion to intervene as separate parties in the class action, after the settlement was struck. The circuit court denied this motion. The petitioners filed their first notice of appeal from this denial on August 10, 2001. This appeal was docketed as CA 01-1218. Petitioners lodged a partial record in connection with this appeal.

Also on August 10, 2001, Petitioners filed a second notice of appeal, appealing the circuit court’s order approving the settlement agreement. This appeal was docketed as CA 01-1190. On November 2, 2001, petitioners lodged a complete record of proceedings with this court for this second appeal.

In response to the two notices of appeal filed on August 10, 2001, the class representatives filed a motion to post supersedeas bond. The circuit court ordered a hearing on the matter for September 5, 2001, and on September 11, 2001, the circuit court granted the motion to post bond and ordered the petitioners to post the bond in the amount of $750,000. On September 20, 2001, petitioners filed a third notice of appeal seeking appellate review of the bond requirement. This appeal is docketed as CA 01-1182. Petitioners lodged a partial record for this third appeal.

On October 3, 2001, the class representatives filed a motion to strike the September 20, 2001 notice-of appeal in CA 01-1182, which dealt with the appeal of the order to post a supersedeas bond. On November 2, 2001, the class representatives filed a motion to show cause why the petitioners should not be held in contempt for failing to comply with the circuit court’s order to post bond. The motion to strike and the contempt issue were set for hearing in the trial court on December 10, 2001. On December 5, 2001, the December 10, 2001 hearing was temporarily stayed by this court.

On November 13, 2001, the petitioners filed a petition for writ of prohibition to bar the circuit court from requiring a supersedeas bond. This petition was docketed as 01-1251. Three days later, on November 16, 2001, the petitioners filed a second petition for writ of prohibition to bar the circuit court from striking their notice of appeal. This petition was docketed as 01-1268. No response has been filed to this petition. It is this November 16, 2001 petition for writ of prohibition that this per curiam opinion addresses.

The petition for writ of prohibition in 01-1268 asserts that the circuit court is wholly without jurisdiction to decide the motion to strike the notice of appeal. The standards governing issuance of writs of prohibition have been often stated by this court. A writ of prohibition is issued by this court to prevent or prohibit the lower court from acting wholly without jurisdiction. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000) ; Raines v. State, 335 Ark. 376, 980 S.W.2d 269 (1998); Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998). The purpose of the writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise. Young v. Smith, supra; Tatro v. Langston, 328 Ark. 548, 944 S.W.2d 118 (1997). We have stated that a writ of prohibition is never issued to prohibit an inferior court from erroneously exercising its jurisdiction. Young v. Smith, supra; Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994); Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). Prohibition lies to the circuit court and not to the individual judge. Crump v. Ford, 346 Ark. 156, 55 S.W.3d 295 (2001) (per curiam); Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997).

Three records have been filed in connection with petitioners’ various appeals: (1) a complete record for the appeal from the approved settlement (CA 01-1190); (2) a partial record for the appeal from the denial of the motion to intervene (CA 01-1218); and (3) a partial record for the appeal-bond requirement (CA 01-1182). A trial court ceases to have jurisdiction over a case when the record is filed and the case is docketed in the appellate court. McElroy v. American Medical Int’l, Inc., 297 Ark. 527, 763 S.W.2d 89 (1989) (citing Venhaus v. Pulaski County Quorum Court, 291 Ark. 558, 726 S.W.2d 668 (1987); Brady v. Alken, Inc., 212, Ark. 147, 617 S.W.2d 358 (1981); Estes v. Masner, 244 Ark. 797, 427 S.W.2d 161 (1968)).

Three records have now been filed with the Supreme Court Clerk in appeals relating to this class-action settlement, including CA 01-1182 dealing with the appeal from the order to post a supersedeas bond. The record in CA 01-1190 was a complete record of proceedings in the circuit court regarding the approval of the settlement. The partial record in CA 01-1182 supplements the record in CA 01-1190 and includes motions to require a bond and responses and the circuit court’s order requiring a bond. The record filed in 01-1268 for the writ of prohibition includes the petition for writ of prohibition with the attached motion to strike the appeal, the response, and the brief in support of the petition. It, thus, appears that the circuit court is wholly without jurisdiction to strike the notice of appeal in CA 01-1182 because of the filing of the necessary records for the appeal of this matter and the docketing of the appeal. The circuit court, accordingly, is wholly without jurisdiction to act on the motion to strike.

We further note that this court has held that a trial court operates in excess of its authority when it dismisses an appeal to an appellate court. See Venhaus v. Pulaski County Quorum Court, 291 Ark. 558, 726 S.W.2d 668 (1987). In Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), we held that a trial court may not act on a motion to dismiss appeal filed at the trial court level:

We are troubled by the apparent misunderstanding to the effect that trial judges may dismiss appeals. While we give the trial court the authority to extend the time for docketing the record with us or with the court of appeals, our rules of appellate procedure do not confer on the trial court the power to dismiss appeals. Those rules, as we said of the comparable statutes in Davis v. Ralston Purina Co., [248 Ark. 14, 449 S.W.2d 709 (1970)] and again about the rules in Brady v. Alken, [273 Ark. 147, 617 S.W.2d 358 (1981)], are for this court to apply.

Johnson, 290 Ark. at 259-60, 718 S.W.2d at 437 (emphasis in original). See also Stahl v. State, 328 Ark. 106, 940 S.W.2d 880 (1997); McElroy v. American Medical Int’l, Inc., 297 Ark. 527, 763 S.W.2d 89 (1989). In Stahl, we treated a petition for writ of prohibition as a petition for writ of certiorari and granted the writ, thus preventing the circuit court from striking the notice of appeal.

Petitioners filed a motion to consolidate the record at the same time they filed the petition for writ of prohibition. This motion requests that the Supreme Court Clerk consolidate the petition record (01-1268) with the record on appeal concerning the supersedeas bond (CA 01-1182). The motion to consolidate is denied as moot, as we have decided by this opinion that the petition for a writ of prohibition should be granted.

Motion for expedited appeal; granted.

Motion to consolidate; moot.

Petition for writ of prohibition; writ issued.

IMBER, J., not participating.

       On December 4, 2001, the court of appeals certified these three appeals to the supreme court.