text:
    Everett Lamont FOREMAN v. STATE of Arkansas
    CR 94-440
    875 S.W.2d 853
    Supreme Court of Arkansas
    Opinion delivered May 23, 1994

      Dale E. Adams, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Per Curiam.

This is a petition for writ of certiorari that arises from the decision of the Fourth Division of Pulaski County Circuit Court to set bond for Everett Lamont Foreman in the amount of $1,000,000, “cash only.” Inasmuch as the court explicitly stated that its purpose was to put Foreman’s bond out of reach and failed to consider the factors set forth in Ark. R. Crim. P. 9.2(c), it exceeded the bounds of its discretion in arbitrarily setting bail at such a level. For these reasons, we grant the petition and remand the matter to the circuit court for reconsideration of the appropriate bond amount in the light of the “facts relevant to the risk of wilful nonappearance” listed under Rule 9.2(c).

Foreman, who is charged with aggravated assault, is currently awaiting trial on May 26 in the Pulaski County Circuit Court, Fourth Division. At a hearing on unrelated matters, the trial court inquired about Foreman’s bond, having received information from the news media that Foreman may have violated the terms of a previously set bond in a different court. A bond hearing was subsequently set.

At the hearing, the state introduced a certified copy of Foreman’s convictions for driving and drinking under age and refusing to take a blood alcohol test. All parties agreed that Foreman had also been convicted in another court of first-degree murder and had been sentenced to life imprisonment, a matter now pending an appeal. Foreman’s family had made a $250,000 appeal bond following that conviction, and Foreman had not missed any court appearances thereafter. Although the state had filed a petition to revoke the bond for underage drinking and driving and refusal to consent to blood alcohol testing, the judge in the other division denied the petition, leaving Foreman at liberty on the $250,000 appeal bond.

With respect to the pending charges, the municipal court set bond at $1,500, but, by the time of the bond hearing under review here, it had not been made. The state contended at the hearing that such an amount was insufficient. However, the state never specified an amount that would prove satisfactory, and the trial court, focusing on the murder conviction, which is on appeal from another court, and expressing doubt that a person facing a life sentence would turn himself in under the penalty of an additional ten years imprisonment, asked defense counsel “how much [Foreman] can make so I can set it above what he can make. I don’t think this Defendant should be out. I’m going to set it at a bond so high I don’t think that he can. . . .” The court then set bond “at $1,000,000, which will be cash only. That means he may not post a surety. He must come up with cash money to make this bond.”

The setting of the amount of bond rests in the reasonable discretion of the trial court. Municipal Court of Huntsville v. Casoli, 294 Ark. 37, 740 S.W.2d 614 (1987). Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy, and it is available to the appellate court in its exercise of superintending control over a lower court that is proceeding illegally where no other mode of review has been provided. Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). A demonstration of a plain, manifest, clear, and gross abuse of discretion is essential before this court will grant a petition for writ of certiorari. Shorey v. Thompson, 295 Ark. 664, 750 S.W.2d 955 (1988).

The record here clearly establishes that the circuit court, in setting the amount of bail, purposely set the bond out of Foreman’s reach and did not take into account “all facts relevant to the risk of wilful nonappearance,” such as those examples appearing in Ark. R. Crim. P. 9.2(c). Consequently, we have no choice but to hold that the circuit court’s action in setting bail at so high a figure was arbitrary and exceeded its discretion.

Emphasis is given in the dissenting opinion to the effect of Act 3 of 1994, which provides, in pertinent part:

When a criminal defendant has been found guilty, pleaded guilty, or pleaded nolo contendere to a criminal offense of murder in the first degree, or any offense classified as a Class Y felony and is sentenced to death or a term of imprisonment, the court shall not release the defendant on bail or otherwise pending appeal or for any reason.

Act 3 of 1994, § 1(b)(3). In the dissent’s view, the trial court did not err in setting bond at $1,000,000 in light of the recently enacted statute. The court’s decision, according to the dissenting opinion, was effectively a denial of bail to one who, under the terms of Act 3, was not entitled to bail anyway.

While it is true that Act 3 of 1994 was effective prior to the date of Foreman’s bond hearing in the aggravated assault case, the first-degree murder conviction occurred prior to March 4, 1994 — the date on which Act 3 became law. The $250,000 bond in that case had already been set. It was not within the province of the court in the aggravated assault case to amend the bond on behalf of the other division of the circuit court to conform (however inadvertently or unconsciously) with the provisions of Act 3.

The language of Act 3 clearly indicates that it is the responsibility of the sentencing court in a first-degree murder or Class Y felony case to refuse release on bail or pending appeal. Nothing is said concerning a situation such as the present one, where a party is already under an appeal bond for first-degree murder and is subsequently brought into another court on an unrelated charge.

Although it may be said, under these circumstances, that the circuit court, in setting bail at such a high figure, was taking into account Foreman’s “prior criminal record” pursuant to Ark. R. Crim. P. 9.2(c)(vi), it is obvious that the court did not take “a// facts relevant to the risk of nonappearance” into account. For example, “family ties and relationship,” listed at Ark. R. Crim. P. 9.2(c)(iii), is a factor that clearly played some part in the setting of the $250,000 bond but that was ignored here. Foreman’s family, as mentioned above, produced the appeal bond in the first-degree murder case, and Foreman missed no scheduled court date thereafter.

As stated earlier, we grant the petition for writ of certiorari and remand the matter to the Pulaski County Circuit Court, Fourth Division, for reconsideration of the appropriate bond amount, explicitly taking into account the factors enumerated in Ark. R. Crim. P. 9.2(c).

Hays, Glaze and Brown, JJ., dissent.

Robert L. Brown, Justice, dissenting. The trial judge appears to have emphasized Foreman’s conviction for a capital crime in setting a $1 million bond rather than merely setting a bond to assure attendance at trial for an aggravated assault charge. I cannot say that he erred in this regard in light of Act 3 of 1994.

Foreman was convicted of first-degree murder and appealed. Bond was set at $250,000 which he made. He was also charged with aggravated assault. Bond was set at $1,500 on the assault charge but not posted. Foreman, according to the State, violated the terms of his bond when he was arrested for drinking under age, but according to Foreman’s counsel, Sixth Division Circuit Court refused to revoke the $250,000 bond.

Our Rules of Criminal Procedure do not provide that persons convicted of capital crimes shall be admitted to bail. Ark. R. Crim. P. 36.5. Moreover, effective March 4, 1994, Act 3 of 1994 states that a criminal defendant convicted of first-degree murder shall not be released on bail pending appeal. The Federal and State Constitutions also provide a constitutional right to bail for non-capital offenses and specifically a right against excessive bail. U.S. Const, amend. 8; Ark. Const, art. 2, §§ 8, 9. This court has said that the Arkansas Constitution confers an absolute right to bail before conviction. Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992). Here, the trial judge effectively denied that right, if we consider only the aggravated assault charge, by stating that he was going to set bail so high that Foreman could not make it.

The reality of the situation though is that both our criminal rules and the laws of this state now provide that Foreman should not be free on any bond, pending his appeal for first-degree murder. Act 3 became effective before the trial judge set the $1 million cash bond. It does not appear arbitrary or an abuse of discretion for a trial judge to consider the first-degree murder conviction and effectively deny bail to a person who as of March 4, 1994, could not be free on bail in the first place.

In sum, while the trial judge was foreclosed from effectively denying Foreman bail for a non-capital offense, he certainly was not proscribed from doing so when a conviction for first-degree murder is factored in. For that reason, I respectfully dissent.

Hays and Glaze, JJ., join.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Donnie Ray PETERSON v. STATE of Arkansas
    CR 94-391
    876 S.W.2d 261
    Supreme Court of Arkansas
    Opinion delivered May 23, 1994

      Pro Se Motion for Appointment of Counsel; John Langston, Judge; denied and appeal dismissed.

      Appellant, pro se.
    No response.
   Per Curiam.

In 1985 appellant Donnie Ray Peterson pleaded guilty to theft of property and burglary and was sentenced to consecutive terms of imprisonment of thirty and forty years. He further pleaded guilty to a second count of theft of property and battery in the second degree and was sentenced to concurrent terms of imprisonment of twenty and ten years imprisonment to be served consecutively to the sentences imposed for the aforementioned count of theft and the burglary conviction. In 1986 appellant filed a petition to correct sentence under Criminal Procedure Rule 37 and Act 431, which is now codified as Ark. Code Ann. § 16-90-111 (Supp. 1991). The petition was denied. In 1987 the trial court denied a second petition filed by appellant pursuant to Criminal Procedure Rule 37 seeking to vacate the pleas. We affirmed. Peterson v. State, 296 Ark. 324, 756 S.W.2d 897 (1988). In 1992 appellant filed another petition to correct sentence pursuant to Ark. Code Ann.§ 16-90-111 (Supp. 1991) which was denied by the trial court. Appellant appealed, and this court dismissed the appeal as meritless. Peterson v. State, CR 93-117 (March 22, 1993). In October 1993 appellant filed a third petition to correct sentence pursuant to Ark. Code Ann.§ 16-90-111 (Supp. 1991). It was denied, and appellant has lodged the record here on appeal. He now seeks appointment of counsel.

The appellant’s motion is denied, and the appeal dismissed as it is clearly apparent from the record that appellant could not prevail in the appeal. This court has consistently held that an appeal of the denial of post-conviction relief will be dismissed in those cases where it is clear that the appeal is merit-less. Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

Arkansas Code Annotated § 16-90-111 (Supp. 1991) provides a narrow remedy whereby the trial court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within one-hundred-and-twenty days after a petitioner has entered a plea of guilty. Appellant did not file the petition in the trial court until approximately seven years after he pleaded guilty and the sentences were imposed. After the one-hundred-twenty day period for filing a petition elapses, relief is not available under the statute, unless the petitioner demonstrates that the sentence imposed was illegal on its face. Williams v. State, 291 Ark. 255, 724 S.W.2d 158 (1987); Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). Appellant did not make such a showing.

Appellant did not contend that the sentences imposed, which were within statutory range, exceeded the maximum sentence which could be imposed for the offenses. He argued only that the sentences imposed were illegal because the prior felony convictions used to establish that he was a habitual offender were not valid. The argument is not one sufficient to demonstrate that an otherwise valid sentence is illegal on its face. Arkansas Code Annotated § 16-90-111 (Supp. 1991) does not require the trial court to reexamine the validity of convictions used to establish that the petitioner was a habitual offender.

Motion denied and appeal dismissed.


author: Jack Holt, Jr., Chief Justice.

text:
    Christopher BECK v. STATE of Arkansas
    CR 94-103
    876 S.W.2d 561
    Supreme Court of Arkansas
    Opinion delivered May 31, 1994

      Hough & Hough, P.A., by: Robert E. Hough, Jr., for appellant.

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

This is an interlocutory appeal from an order of the Sebastian County Circuit Court denying a motion to transfer to juvenile court charges filed against the minor appellant-defendant, Christopher Beck, who is charged with the Class Y felony of having knowingly discharged a firearm from a vehicle and caused serious bodily injury. Two points have been raised for reversal: (1) whether Ark. Code Ann. § 9-27-318(c) (Repl. 1993) — which grants the prosecuting attorney, when a case involves a juvenile sixteen years of age or older at the time of the commission of a felony offense, “discretion to file a petition in juvenile court alleging delinquency or to file charges in circuit court and to prosecute as an adult” — violates federal and state constitutional guarantees of due process and equal protection; and (2) whether the circuit court’s denial of the motion to transfer was clearly erroneous. Neither issue has merit, and we affirm the decision of the circuit court.

Facts

The appellant, Christopher Beck, was charged by information on October 25, 1993, with the crime of knowingly discharging a firearm from a vehicle and causing serious physical injury in violation of Ark. Code Ann. § 5-74-107 (Repl. 1993). The victim of the drive-by shooting, Kenyatta Williams, a fourteen-year-old, was wounded in the neck. He sustained injury to the spinal cord which left him paralyzed. A quadraplegic, Kenyatta has lost control of his limbs and bodily functions from the neck down and hence is unable to care for himself.

Beck had originally been arrested and charged with battery on October 22, 1993. He was brought before a municipal judge on October 23, 1993. Bail was set at $125,000. By direct filing of a felony information on October 25, 1993, the prosecuting attorney charged Beck with unlawfully discharging a firearm from a vehicle and causing serious physical injury to Kenyatta Williams. On October 27, 1993, Beck pleaded not guilty and filed a motion to transfer his case to juvenile court.

A hearing was set for December 8, 1993, but prior to that date, Beck requested that the court determine whether Ark. Code Ann. § 9-27-318(e) was unconstitutionally violative of due process and equal protection guarantees. At the conclusion of the December 8 hearing, the circuit court declined to issue a ruling on either the transfer or the constitutional question but instead allowed the parties ten days in which to present briefs and argument in that regard.

Following a motion to reopen the hearing by the state on December 13, 1993, to which Beck objected, the circuit court held a further hearing on December 17, 1993. The prosecution was allowed to present more witnesses and to play a videotape representing the victim’s condition. Thereafter, the circuit court ruled that the statute was constitutional and denied the transfer motion. A notice of interlocutory appeal was filed on January 4, 1994.

I. Constitutional challenge

Interlocutory appeals come within this court’s purview pursuant to Rule l-2(a)(12) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas. Under Ark. Code Ann. § 9-27-318(h) (Repl. 1993), “Any party may appeal from an order granting or denying the transfer of a case from one court to another court having jurisdiction over the [juvenile] matter.”

Given the interlocutory character of this appeal, we would not, under ordinary circumstances, consider the constitutional challenge to Ark. Code Ann. § 9-27-318(e). For instance, in another juvenile transfer case, we declined to address an argument based on res judicata and collateral estoppel partly because no ruling had been obtained below and, in addition, because no authority had been cited under which the issue could have been decided on interlocutory appeal even had the point been properly preserved. Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992).

Here, however, the situation is different. The constitutional question was fully briefed at both the circuit court level and on appeal, and the circuit court specifically found the transfer statute constitutional.

Beck attacks, in particular, the constitutionality of Ark. Code Ann. § 9-27-318(c) on the grounds that the statute violates the due process and equal protection clauses of both the United States and Arkansas Constitutions. The statutory section in question provides:

When a case involves a juvenile age sixteen (16) years or above at the time the alleged delinquent act occurred and the alleged act would constitute a felony if committed by an adult, the prosecuting attorney has the discretion to file a petition in juvenile court alleging delinquency or to file charges in circuit court and to prosecute as an adult.

Ark. Code Ann. § 9-27-318(c) (Repl. 1993). Beck asserts that the right to confidentiality afforded juveniles prosecuted under the Juvenile Code is denied to those charged as adults. He further claims that the statute elsewhere arbitrarily sub-classifies juveniles according to different age categories and that the legislature’s decision not to protect the identity of juveniles charged with particular crimes is arbitrary and irrational and thus a denial of equal protection. In addition, he claims that he is denied due process because Ark. Code Ann. § 9-27-318(c) allows the prosecutor to deprive him of the confidentiality provided by the Juvenile Code without offering him the opportunity to be heard.

All legislation is presumed to be constitutionally valid, and all doubt is resolved in favor of constitutionality. Snyder v. Martin, 305 Ark. 128, 806 S.W.2d 358 (1991); Duhon v. State, 299 Ark. 503, 774 S.W.2d 830 (1989). A party challenging a statute must bear the burden of proving it unconstitutional. Carney v. State, 305 Ark. 431, 808 S.W.2d 755 (1991); Duhon v. State, supra; Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987). We are not convinced by the arguments, authorities, or theories advanced by Beck that Ark. Code Ann. § 9-27-318(c) is unconstitutional.

a. Equal protection

We have previously held that if a classification exists in an Arkansas statute and that classification has a rational basis and is neither unreasonable nor arbitrary, the statute will not be struck down on equal protection grounds. Carney v. State, supra. In Carney, where we rejected an equal protection claim that a statute was unconstitutional in providing for the suspension of driver’s licenses of persons under eighteen years of age who were convicted of drug- or alcohol-related offenses (while those older were not affected), we noted that the state’s authority to supervise the conduct of children is broader than its power over similar actions by adults. Thus, we found the drawing of the penalty line at age eighteen neither irrational nor arbitrary.

Similarly, in the present case, the decision of the legislature to vest prosecuting attorneys with the discretion to bring felony charges against sixteen-year-olds in circuit courts is neither arbitrary nor irrational. The well-documented rise in the violent crime rate among juveniles in recent years clearly prompted the legislature to make the option of trying sixteen-year-olds as adults available to the state. Indeed, Act 1189 of 1993, § 1, declares that:

The General Assembly of the State of Arkansas finds that the State of Arkansas is experiencing an increase in violent crime committed by school age juveniles and the growth of street gangs made up largely of school age juveniles.

See, for an analogous statement of intent, the language quoted from the emergency clause appended to Act 793 of 1981 in Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986). Simply put, Beck has failed to demonstrate why these conclusions by the legislature are irrational or arbitrary.

b. Due process

As for Beck’s contention that he is deprived of due process through the deprivation of his right to confidentiality under the Juvenile Code, it should be noted that the Juvenile Code itself explicitly exempts from the guarantee of confidentiality those instances when “[t]he arrest or the proceedings under this subchapter result in the juvenile being formally charged in circuit court for a felony.” Ark. Code Ann. § 9-27-352(a)(2) (Repl. 1993). A pre-deprivation hearing, to which Beck insists he is entitled, is unnecessary in view of the governmental interest outlined above. See Mathews v. Eldridge, 424 U.S. 319 (1976).

Beck also challenges the constitutionality of Ark. Code Ann. § 9-27-318(c) as applied, asserting that it gives prosecutors “unbridled discretion” and usurps the deliberative function of the court provided for elsewhere in the same statute. Apart, however, from a vague reference to other “cases cited, infra,” Beck supplies no citation of authority to support his speculative argument. We do not consider such deficient contentions on appeal. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992).

II. Circuit court’s decision

For his second point for reversal, Beck advances the claim that the circuit court’s decision to deny the motion to transfer was clearly erroneous because all of the evidence clearly and convincingly showed that the case should be transferred to juvenile court. This argument is divided into two sub-points.

a. Additional hearing

Beck contends that the trial court abused its discretion by granting the prosecutor’s motion to hold an additional hearing on the motion to transfer and by admitting various items into evidence at that hearing. We hold that that circuit court’s actions did not constitute an abuse of discretion.

During the first transfer hearing, on December 8, 1993, the state presented the testimony of one witness and introduced into evidence one letter. Both related to the physical condition of Kenyatta Williams, the victim of the drive-by shooting. Beck, on the other hand, offered the testimony of several witnesses dealing with his character and prospects for rehabilitation. At the conclusion of the hearing, the court postponed ruling upon the motion to transfer and the constitutional challenge, allowing the parties ten days in which to submit briefs.

On December 13, 1993, the state filed a motion to reopen the hearing, noting that, while the victim had been unable to testify at the December 8 hearing because of his physical condition and the need to remain in Little Rock for treatment, his family had made a videotape depicting his condition. Citing the videotape’s relevance to the motion to transfer, the state requested its admission into evidence. In an order filed on December 16, 1993, the circuit court granted the state’s motion to reopen the hearing, stating specifically:

The Court wishes to have all pertinent information available prior to making its decision in this case. The Court in its discretion believes that further testimony at this time would not prejudice either party, but would aid the Court in making the decision required.

Both parties were given the opportunity to introduce additional testimony.

At the second hearing, held on the following day, December 17, 1993, the defense renewed its objection to the granting of the motion to reopen, arguing that the Arkansas Rules of Civil Procedure governed and that none of the criteria for allowing a new trial under Rule 59 had been met. Further, the defense objected to the state having been given a “second bite at the apple” when it already had adequate time to prepare for and present evidence at the initial hearing. The circuit court overruled the objection.

Subsequently, the defense objected to the admission of the videotape on hearsay, relevancy, and confrontation grounds. The circuit court permitted the defense attorney to voir dire Garnette Bell, the victim’s mother, regarding the recording of the videotape. When Ms. Bell testified that the videotape had been made on Sunday, December 12, 1993, the defense objected that the videotape “didn’t even exist prior to the [December 8] hearing” and had been “manufactured exclusively and purely for this hearing.” The defense further objected to the state’s “attempt to sensationalize these proceedings” with after-acquired, hearsay evidence that was “not reliable and more prejudicial than probative.” The circuit court, in admitting the videotape into evidence, explained that “to memorialize certain events after something has happened ... is not manufacturing, it’s just getting ready for trial, getting ready for whatever is going to happen in this case.”

Beck cites no authority, apart from a broad, passing allusion to the “rules of criminal procedure, the rules of civil procedure, and the rules of evidence” for his contention that the circuit court abused its discretion in granting the motion to reopen the hearing. We reiterate that we do not consider unsupported arguments on appeal. Tisdale v. State, supra.

Rule 59 of the Arkansas Rules of Civil Procedure, to which Beck referred at the second hearing, deals with new trials. It goes without saying that a reopened hearing is not a new trial. In the context of criminal trials, however, we have repeatedly held that the reopening of the case-in-chief for the taking of additional evidence is a matter committed to the discretion of the trial court and that we will not reverse the decision in the absence of an abuse of discretion. Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992); Cameron v. State, 278 Ark. 357, 645 S.W.2d 943 (1983); Williams v. State, 262 Ark. 219, 555 S.W.2d 231 (1977). See also Holloway v. State, 312 Ark. 306, 849 S.W.2d 473 (1993). The principle is also well established in civil cases. See, e.g., Midwest Lime Co. v. Independence Chancery Court, 261 Ark. 695, 551 S.W.2d 537 (1977). The same principle should apply in this situation, as well.

With respect to the admission of the videotape showing Kenyatta Williams’s physical condition, Beck relies on Ark. R. Evid. 804(a)(5) for his contention that the trial court abused its discretion. That hearsay exception defines “unavailability as a witness” to include a situation in which the declarant:

Is absent from the hearing and the proponent of his statement has been unable to procure his attendance . . . by process or other reasonable means. . . .

According to Beck, there was no showing of a good-faith effort on the part of the state to procure the victim’s testimony. See Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993). The record, however, indicates that Kenyatta Williams was paralyzed from the neck down and incapabale of moving his legs or controlling the movement of his arms. At the time of the hearing, he had a blood clot in his left leg and was being treated at Arkansas Children’s Hospital in Little Rock. The rule of evidence cited by Beck is inapplicable under the circumstances.

In addition, Beck argues that the circuit court improperly considered the information in reaching its decision because the prosecutor did not request that judicial notice be taken of the document. The case on which he relies, Pascall v. Smith, 263 Ark. 428, 569 S.W.2d 89 (1978), which involves judicial notice taken by the Supreme Court of Arkansas, has no bearing whatsoever on the present matter. The information was available to the circuit court in the case file, and the circuit court took judicial notice of it in accord with Ark. R. Evid. 201(c), which provides that “A court may take judicial notice, whether requested or not.”

b. Denial of motion to transfer

The standard of review in juvenile tranfer cases is whether the circuit court’s denial of a motion for transfer is clearly erroneous. Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). Beck urges that the circuit court’s denial of the motion to transfer was clearly erroneous. He contends that the state presented no credible, properly admitted evidence, that the trial court erred at the hearing on December 8, 1993, in admitting a letter from Arkansas Children’s Hospital detailing the victim’s condition, and that the information alone is insufficient to justify the circuit court’s decision.

The circuit court did not rely on the letter from the hospital in denying Beck’s motion. Hence, any error on the court’s part in admitting it was harmless.

Under Ark. Code Ann. § 9-27-318(e) (Repl. 1993):

In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Contrary to Beck’s assertion that the only factor considered by the circuit court was the seriousness of the offense, based on the information charging a Class Y felony, the court had before it evidence of the accused’s rehabilitative prospects, prior history, character traits, and mental maturity offered by witnesses for the defense.

In any event, we have held that there is no requirement that every element mentioned in the statute be given equal weight. Holland v. State, 311 Ark. 494, 844 S.W.2d 943 (1993); Cobbins v. State, 306 Ark. 447, 816 S.W.2d 161 (1991). Moreover, the serious and violent nature of an offense is a sufficient basis for trying a juvenile as an adult. Holland v. State, supra; Wicker v. State, 310 Ark. 580, 839 S.W.2d 186 (1992). Indeed, we have held that a criminal information, on its own, is sufficient to establish that the offense charged is of a serious and violent nature. Vickers v. State, supra; Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991).

Although the circuit court is not obliged to make specific findings of fact in a juvenile transfer case, Vickers v. State, supra, the circuit court in the present case rightly reviewed all the factors enumerated in the Code and found that the seriousness of the offense and the violence employed outweighed the other two factors. The circuit court stated that the evidence presented by the defense on the second and third factors was “not convincing.” In its formal order denying the motion to transfer, that “in and of itself, the Information filed by the State justifies by a clear and convincing evidence standard that the case should be retained in this Court.” Further, the circuit court found that “[e]ither the testimony of the victim’s family or the video tape standing alone is more than sufficient to prove the element required in Section 9-27-318(e)(1).” In short, the circuit court carefully considered all the factors required by the Code before making its finding.

We cannot say that the trial court’s denial of the motion to transfer was clearly erroneous.

Affirmed.


author: Jack Holt, Jr., Chief Justice. Robert L. Brown, Justice,

text:
    Barry Lee FAIRCHILD v. Larry NORRIS, Acting Director, Arkansas Department of Correction
    93-975
    876 S.W.2d 588
    Supreme Court of Arkansas
    Opinion delivered May 31, 1994
    [Rehearing denied July 5, 1994.]

      Herbert C. Rule III, Charles W. Baker, RA. Hollingsworth, Elaine R. Jones, Richard H. Burr & Steven W. Hawkins, for appellant.

      Winston Bryant, Att’y Gen., by: Oían W. Reeves, Senior Asst. Att’y Gen., for appellee.

       Hays and Newborn, JJ., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

Appellant Barry Lee Fairchild was convicted in 1983 of the capital murder of Marjorie Mason and was sentenced to death. We affirmed his conviction. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied 471 U.S. 1111 (1985); Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985). For some eight years, following Fairchild’s conviction, a number of proceedings occupied the attention of the United States District Court of the Eastern District of Arkansas and the Eighth Circuit Court of Appeals. Fairchild v. Lockhart, 675 F.Supp. 469 (E.D. Ark. 1987); Fairchild v. Lockhart, 857 F.2d 1204 (8th Cir. 1988), cert. denied 488 U.S. 1051 (1989); Fairchild v. Lockhart, 744 F.Supp. 1429 (E.D. Ark. 1989); Fairchild v. Lockhart, 900 F.2d 1292 (8th Cir. 1990), cert. denied 497 U.S. 1052 (1990); Fairchild v. Lockhart, 979 F.2d 636 (8th Cir. 1992), cert. denied__U.S._(1993).

On June 30, 1993, Fairchild unsuccessfully petitioned the Jefferson County Circuit Court for a writ of habeas corpus, or in the alternative, for a declaratory judgment pursuant to Ark. Code § 16-111-101, et seq., the central issue being whether or not, under the state and federal constitutions, petitioner is ineligible for the death penalty, given that Act 420 of 1993, a newly passed state statute, prohibits the execution of the mentally retarded. The record of trial contains a history of prior proceedings, including a survey of Arkansans’ opinions on capital punishment; transcripts of Fairchild’s Pulaski County Special School District records, both elementary and high school; forensic and intellectual evaluations; an evaluation report from the Johnson Center for Psychological Testing; together with extensive briefs in support of the habeas corpus petition. Based on these materials, the trial court, on July 28, 1993, denied the petition for writ of habeas corpus with a further finding that the passage of Act 420 of 1993 affords this petitioner “no basis for his relief’ and “that a hearing is unnecessary as [to] his petition for declaratory judgment,” and as such, it was denied.

Subsequently, Fairchild filed a notice of appeal to this court in the Jefferson County Circuit Court from the order denying him declaratory relief. On September 7, 1993, the record of the Jefferson County Circuit Court proceeding was filed with the Arkansas Supreme Court Clerk. At this time, Fairchild was scheduled for execution on September 22, 1993.

On September 10, 1993, prior to the filing of the briefs in this appeal, Fairchild filed a motion for stay of execution with this court, predicated on the central issue of his appeal: whether or not, under the state and federal constitutions, he was ineligible for the death penalty in light of Act 420’s prohibition of the execution of the mentally retarded. Fairchild supported this motion with essentially the same briefs and materials provided to the trial court in his petition for declaratory judgment.

During the pendency of this motion, application was made by ARC of Arkansas (formerly, the Association for Retarded Citizens of Arkansas) and individual citizens, to file an amici curiae brief in support of Fairchild’s position, which was granted. Following submission of complete briefs on all critical issues from the parties and an oral argument on September 19, 1993, we denied the motion for stay of execution. Fairchild v. Norris, 314 Ark. 221, 861 S.W.2d 111 (1993). In our per curiam opinion, dated September 20, 1993, we noted that United States District Judge G. Thomas Eisele in Fairchild v. Lockhart, 744 F. Supp. 1461 (1989), after considering a voluminous amount of evidence presented by both parties bearing on Fairchild’s mental history, had ruled in a seventy-eight-page opinion that Fairchild was not retarded. We also recognized that the United States Eighth Circuit Court of Appeals had reviewed Judge Eisele’s findings and affirmed them in Fairchild v. Lockhart, 979 F.2d 636 (8th Cir. 1992), cert. denied 497 U.S. 1052 (1990). As a result, we held that Fairchild could not reassert the issue of his mental retardation and was precluded from doing so under the doctrine of collateral estoppel. Fairchild v. Norris, 314 Ark. 221, 861 S.W.2d 111 (1993).

Fairchild did not challenge the court’s decision by petitioning the Supreme Court for writ of certiorari. Instead, he chose to file a petition for writ of habeas corpus with the United States District Court. On September 22, 1993, two days after we handed down our per curiam, Judge Eisele granted Fairchild federal habeas relief, directing that Fairchild’s sentence be changed to life in prison without parole. The District Court found that the evidence presently against Fairchild at trial was legally insufficient to justify the death penalty. Fairchild v. Norris, No. PB-85-262 (E.D. Ark. September 22, 1993) (see also Addendum to Mem. Op., E.D. Ark. September 24, 1993). On April 8, 1994, the United States Court of Appeals for the Eighth Circuit reversed the District Court’s holding and remanded it with directions to dismiss Fairchild’s petition, explaining that Fairchild had not proven by clear and convincing evidence that, but for a constitutional error, no reasonable juror could have found him eligible for the death penalty. Instead, the Court of Appeals explained, the evidence at trial was sufficient for a reasonable juror to find that Fairchild was a major participant in the felonies and that he acted with reckless indifference to human life, resulting in Ms. Mason’s death. Fairchild v. Norris, No. 93-3325EA (8th Cir. April 8, 1994).

Following his unsuccessful attempt to obtain a stay of execution from our court in late September of 1993, Fairchild has attempted to continue his appeal from the Jefferson County Circuit Court’s decision by reasserting the same issues he presented earlier in his motion to stay execution. Fairchild’s briefs, as well as recent oral arguments in support of the briefs by his counsel, are, with little exception, the same arguments presented in his quest for a stay of execution. These include his contention that, in light of the passage of Act 420 of 1993 (“An Act to Prohibit the Sentencing of a Mentally Retarded Defendant to Death”), his execution would: (1) violate state and federal guarantees against the imposition of cruel and unusual punishment; (2) render a disproportionate sentence as between him and other retarded individuals; and (3) violate his due process rights. He also argues that even though the United States District Court has held that he is not retarded, collateral estoppel does not apply, and he is entitled to an evidentiary hearing if there is any dispute as to whether he meets the statutory presumption established by Act 420.

As we noted earlier, the oral arguments of the parties and the briefs in support of the motion for stay of execution and of this request for relief are the same — even the attachments to the briefs are identical. Thus, it is obvious that Fairchild has twice presented the same issues to this court in this appeal: first, through his motion for stay and, now, in this proceeding.

When Fairchild requested a stay of execution after lodging his appeal in this court on September 7, 1993, he was well aware that his appeal would be effectively ended if this court refused that stay request. As previously mentioned, Fairchild’s execution was scheduled for 9:00 p.m. on September 22, 1993, and therefore, this court expedited the filing of briefs and then scheduled oral argument which was heard on September 27, 1993. Realizing the practical finality of his appeal which would result if this court denied his stay request, Fairchild was permitted, without objection, to argue all issues he had raised before the Jefferson County Circuit Court. Fairchild now tries to reassert these same issues in this same appeal. In effect, Fairchild’s present reassertions amount to a belated petition for rehearing on this court’s September 20, 1993, per curiam decision.

For these reasons, we apply the doctrine of law of the case and consider these issues no further. We have recently held that the doctrine of law of the case prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals. Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993). See Mauppin v. State, 314 Ark. 566, 865 S.W.2d 70 (1993); see also Housing Authority of NLR v. Green, 241 Ark. 47, 406 S.W.2d 139 (1966). However, the doctrine of law of the case is not limited to issues raised in prior appeals as the doctrine was developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit which is the situation we have before us. See 18 Wright, Miller and Cooper, Federal Practice & Procedure §4478 (1981). As stated by Justice Holmes in Messenger v. Anderson, 225 U.S. 436 (1912), the law of the case “merely expresses the practice of courts generally to refuse to reopen what has been decided.” Messenger, 225 U.S. at 444. This doctrine applies to issues of constitutional law. Bedell v. State, 260 Ark. 401, 541 S.W.2d 297 (1976), cert. denied 430 U.S. 931 (1977). Here, there was no material variance between these two proceedings apart from the fact that one was labeled “Motion for Stay of Execution” and the other “Appeal.” Both involved the same facts and the same constitutional issues.

Since Fairchild requested no timely rehearing concerning the opinion, all legal issues were resolved in our holdings of September 20, 1993, in which we concluded that Fairchild could not reassert the issue of his mental retardation. It is the law of the case. See Fairchild v. Norris, 314 Ark. 221, 861 S.W.2d 111 (1993). Indeed, prior to our holding, the United States District Court ruled that “Mr. Fairchild is not now retarded and was not in 1983.” Fairchild v. Lockhart, 744 F.Supp. at 1461.

Our present holding does not run afoul of Act 420 of 1993, codified at Ark. Code Ann. § 5-4-618 (Repl. 1993), which prohibits the execution of the mentally retarded, as the question of Fairchild’s mental retardation was addressed and resolved by the federal courts before the statutory prohibition was enacted. The mere passage of Act 420 does not breathe new life into this issue. It does not require a third resolution, as urged by the dissenting opinion in this case.

There is no basis for Fairchild’s present application for relief.

Affirmed.

Brown, J., concurs.

Hays and Newbern, JJ., dissent.

Robert L. Brown, Justice,

concurring. I concur with the majority opinion but write to emphasize that the appellant, Barry Lee Fairchild, is not mentally retarded. The United States District Court so found after a full hearing, and the Eighth Circuit Court of Appeals affirmed. Fairchild v. Lockhart, 744 F.Supp. 1429 (1989), aff’d 900 F.2d 1292 (8th Cir. 1990), cert. denied 497 U.S. 1052 (1990). The public policy of this State which is embodied in Act 420 of 1993 clearly prohibits the execution of the mentally retarded. But because Fairchild has been found not to be retarded, that public policy is not at issue.

The bulk of the United States District Court’s 1989 opinion, which is 78 pages in length, is concerned with Fairchild’s IQ and his claim of mental retardation. Witness these statements and findings by that court which are the result of an exhaustive analysis:

On the basis of all of the evidence and the totality of the circumstances including:
1. A review of the state court record and the transcript of the testimony of Mr. Fairchild and the other witnesses in the state court proceedings;
2. A review of the transcripts of all of the appearances and hearings in this Court with particular focus on Mr. Fairchild’s performance as a witness and his awareness of the issues and his communicative skills;
3. The views and opinions of his attorneys and others who have had close association with Mr. Fairchild, as disclosed in the record;
4. A careful review of the factual reports and also the opinions of those who examined or observed Mr. Fairchild when he was at the State Hospital in 1974 and in 1983, and at the Federal Hospital in Springfield in 1986;
5. A careful consideration and evaluation of the documentary evidence, testimony and the opinions of Dr. George Baroff, Dr. Judy White Johnson, Ms. Ruth Luckasson, Dr. Theodore Blau, Dr. Pritchard, Dr. Rosendale, Mr. Dennis Keyes and Dr. Donald Butts and the other witnesses who testified in person or by deposition at the hearing which commenced on Thursday afternoon, March 16, 1989, and ended Tuesday evening, March 21, 1989;

The Court finds and concludes that Mr. Fairchild was not only capable of but did, in fact, voluntarily, knowingly, and intelligently waive his Miranda rights before confessing his involvement in the robbery, rape, and murder of Ms. Mason on March 5, 1983.

And the Court further finds and concludes that petitioner has not sustained his contention that the State failed to provide him with a professionally adequate evaluation of his mental condition before his 1983 state court trial.

The Court can also state at this time that it is convinced, and so finds, that Mr. Fairchild is not now retarded and was not in 1983. It is also convinced, and so finds, that in March of 1983, he understood not only the language and terminology of the Miranda warnings but also the practical meaning and effect thereof.

The Court’s own judgment as to the mental status of Mr. Fairchild based upon all of the evidence and based upon observing him testify and communicating in court on different occasions, upon viewing and reviewing the videotaped confessions, and upon reading transcripts of his testimony in the state court proceedings and listening to witnesses — expert and lay — describe his actions and conduct was, and continues to be, that he would fall in the “dull, below normal” category but that he is not “retarded.” Because of the circumstances under which the various “IQ” tests were given, probably the Revised Beta Examination conducted by Dr. Richard D’Andrea at Springfield is the least contaminated by by (sic) motivational or “secondary gain” phenomenon. Although by hindsight one might wish that a WAIS-R or Revised Stanford-Binet test had been administered under those optimal motivational circumstances, the Court is nevertheless convinced that the 87 IQ received by Mr. Fairchild on the Revised Beta is closer by far to an accurate IQ reading on Mr. Fairchild than either the 1989 WAIS-R or the Stanford-Binet test results. It is the Court’s opinion that the best tests, administered under optimal circumstances, would yield an IQ for Mr. Fairchild somewhere between 75 and 87.

744 F.Supp. at 1460-1461. (Emphasis added.) The rebuttable presumption for mental retardation under Act 420 is an IQ of 65 or below.

The Eighth Circuit Court of Appeals affirmed the absence of retardation in Fairchild with this straightforward assessment:

We affirm the District Court’s finding that Fairchild was not retarded in 1983, and is not retarded now. We cannot say this conclusion was clearly erroneous. On the contrary, the evidence here was mixed. The appellant has undergone a vast array of tests to ascertain his competence. The scores on those tests are contradictory; with 70 serving as the threshold of retardation, his IQ has been scored as low as 60 and as high as 87. And even if all the tests agreed, that would not settle the question. Being retarded means more than scoring low on IQ tests. It also means functioning ineffectively in society. The District Court correctly noted that here the evidence weighs against finding that the appellant is retarded. His interactions with others undermine such a claim. For example, the trial court allowed Fairchild to act as co-counsel at his trial. T. 73, 397. On the basis of his dealings with Fairchild, his habeas lawyer, Mr. Hall, noted his surprise upon discovering that some test scores indicated the appellant was retarded.

900 F.2d at 1295.

These decisions resolve the issue for me. Fairchild’s claim of retardation was clearly essential to his federal habeas corpus petition and was fully examined and explored prior to the enactment of Act 420. It was found to be wanting. There is no basis now for a redundant exploration of this issue.

David Newbern, Justice, dissenting. The State of Arkansas is on the verge of putting Barry Lee Fairchild to death without determining for itself whether he is, and was at the time the murder of which he was convicted, retarded. That is so despite the newly declared public policy of the State: “No defendant with mental retardation at the time of committing capital murder shall be sentenced to death.” Ark. Code Ann. § 5-4-618(b) (Repl. 1993).

Perhaps as a result of its disgust with the delays resulting from the numerous motions and appeals filed by prisoners, especially those on death row, here and in federal courts, the majority of the members of this Court are improperly making a technical exit to avoid facing an important issue. It was error to have denied the stay of execution sought in Fairchild v. Norris, 314 Ark. 221, 861 S.W.2d 111 (1993), on the basis of collateral estoppel. Now the majority absolves itself of that error with a questionable application of the law of the case doctrine to avoid addressing the merits of Mr. Fairchild’s appeal. I must dissent.

To its credit, the majority opinion is not shrill, yet the frustration we sometimes feel as the result of the seemingly interminable petitions and appeals of criminal defendants shows in the euphemistic recitation of the “number of proceedings” which have “occupied the attention” of the federal courts. We should never allow that frustration to trump the law or even to color our decisions.

The majority of my colleagues are unwilling to address the merits of Mr. Fairchild’s appeal because they previously refused to do so when we considered his motion for stay of execution in Fairchild v. Norris, supra. That decision was incorrect. The majority erroneously applied the doctrine of collateral estoppel to determine that we were barred from revisiting Judge Eisele’s finding that Mr. Fairchild is not mentally retarded.

It is enough to say, without repeating the entire dissenting opinion in Fairchild v. Norris, supra, that the issue before the United States District Court when Judge Eisele rendered his finding was whether Mr. Fairchild was capable of waiving the rights accorded him by the Miranda rule. As a retarded person may waive those rights, the question whether Mr. Fairchild was retarded was unnecessary to Judge Eisele’s decision. For collateral estoppel to preclude a court from addressing an issue, a finding on that issue must have been made in a previous decision, and that finding must have been necessary to that decision. Neither the majority as a group nor any member of it has responded, satisfactorily or otherwise, to that criticism of its decision.

The majority now applies the law of the case doctrine to avoid, once again, addressing Mr. Fairchild’s appeal, including his citation of the new mental retardation statute, on its merits. Application of law of the case in this appeal is tenuous at best. The majority cites no case to support its proposition that a conclusion, particularly a procedural one like application of collateral estoppel, reached in the process of deciding a motion, can or should be considered law of the case.

Even if there were authority for applying the doctrine in a situation such as this, it should not be considered to be binding upon us. The majority opinion quotes Mr. Justice Holmes’s statement in Messenger v. Anderson, 225 U.S. 436 (1912), that the law of the case “merely expresses the practice of courts generally to refuse to reopen what has been decided.” Mr. Justice Holmes’s remark was slightly longer. Mr. Justice Holmes said the doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” 225 U.S. at 444 (emphasis added).

Contrasting the doctrine of law of the case and res judicata, the Supreme Court has also said, “there is a difference between such adherence [to law of the case] and res judicata; one directs discretion, the other supersedes it and compels judgment. In other words, in one it is a question of power, in the other of submission.” Southern Ry. Co. v. Clift, 260 U.S. 316 at 319 (1922).

By its enactment of § 5-4-618(b), long after the federal court ruled on whether Mr. Fairchild had the capacity to waive his Miranda rights, the Arkansas General Assembly determined that mentally retarded persons who commit capital murder should not be executed. It defined “mental retardation” in § 5-4-618(a)(1) and created, in § 5-4-618(a)(2), a rebuttable presumption that a person with an intelligence quotient of 65 or below suffers from mental retardation.

Here, as was the Georgia Supreme Court in Fleming v. Zant, 386 S.E.2d 339 (Ga. 1989), we are faced with a significant change in the law which may have a profound effect on our interpretation of the “cruel and unusual punishment” proscription in Ark. Const, art. 2, § 9. The majority opinion sluffs it off by saying “The mere passage of Act 420 does not breathe new life into this issue. It does not require a third resolution . . . .” We have not addressed the issue, much less resolved it. The majority thus dodges a question of life or death by deferring to the decision of a federal court which is not binding upon us and which was made before the statute was enacted.

Mr. Fairchild seeks to show he falls within the protection of art. 2, § 9, on the basis of the new law. As the Georgia Supreme Court noted in the Fleming case, the matter of proportionality is implicated. Mr. Fairchild’s counsel, by presenting the materials mentioned in the majority opinion, make a strong argument that there is a lot of evidence that Mr. Fairchild is “retarded,” as that term is defined in § 5-4-618, and has been since childhood.

We have the power to decide, on the merits, whether Mr. Fairchild should have a hearing to determine whether he is retarded. We should do so, and we should grant the hearing for the reasons stated in my dissenting opinion, joined by Justice Hays, in Fairchild v. Norris, supra.

If counsel are correct, Barry Lee Fairchild may well not be the first retarded person to have been executed in Arkansas, but he surely will be the last. Now that the law has changed, we should not let that happen on the basis of an erroneous application of collateral estoppel, coupled with an insupportable and unnecessary application of law of the case. Our failure to address the merits of Mr. Fairchild’s appeal on the majority’s application of law of the case is at best cavalier and at worst irresponsible.

I respectfully dissent.

Hays, J., joins in this dissent.


text:
    Thomas E. MARONEY and Larry E. Parker v. The CITY OF MALVERN and AS&GC, Inc.
    93-1106
    876 S.W.2d 585
    Supreme Court of Arkansas
    Opinion delivered May 31, 1994

      Baxter, Wallace, Jensen & McCallister, by: Ray Baxter and Karen Virginia Wallace, for appellants.

      Glover, Glover & Roberts, by: David M. Glover, for appellees.
   Jack Holt, Jr., Chief Justice.

Appellants Thomas E. Maroney and Larry E. Parker appeal the Hot Spring County Chancery Court’s findings which: (1) enjoined them from crossing a reserve strip of land to obtain access to the public road known as South-gate Drive, which would provide an access to their property; and (2) dismissed their complaint for injunctive relief and to open a public roadway for appellants’ use inasmuch as their lawsuit should have been brought in county rather than chancery court. We decline to reach the merits of this appeal as the trial court order did not cover all of the parties and their respective claims as required by Ark. R. Civ. P. 54(b).

This dispute arose when the mayor of Malvern placed a locked gate at the end of Southgate Drive which appellants claim left them with no means by which to enter upon their lands, thus blocking the ingress and egress to their property. Appellants filed a complaint for injunctive relief against the City of Malvern and James L. Scott, who owned a strip of property some two feet by fifty feet abutting Southgate Drive and adjacent to the appellants’ property. Appellants wanted to require them to open the roadway from Southgate Drive across Mr. Scott’s property to permit appellants access to their property. The City of Malvern countered by filing an answer to the effect that they had not violated its ordinances and regulations concerning roadways and developments and that the appellants’ complaint be dismissed.

Mr. Scott also filed a motion to dismiss, stating that he was no longer titled owner to the reserve strip of property at the end of Southgate Drive in that he had divested himself of ownership interest and that Arkadelphia Sand and Gravel Company (“AS&GC”) was record owner. That same day, AS&GC filed a motion to intervene. A few days later, both motions were granted.

In addition to filing its answer in intervention, AS&GC filed a counterclaim and cross-complaint against the City of Malvern, contending that, in light of Ordinance Number 704 forbidding “reserve strips controlling access to land,” it was entitled to a judgment declaring that the City of Malvern is equitably estopped from applying its 1973 ordinance relating to “reserve strips.” AS&GC further claimed that the City of Malvern was estopped from denying AS&GC the right to complete the sale of remaining unsold lots in compliance with the terms of approval given to the original developer. AS&GC also requested an order restraining and enjoining appellants from trespassing on, over, or through the reserve strip of property at the end of Southgate Drive.

In a second amendment to its counterclaim, AS&GC admitted that it was mistaken in claiming ownership of the reserve strip at the end of Southgate Drive, when, in fact, James L. Scott remained its owner. As a result, Mr. Scott petitioned the court to set the order of dismissal aside, explaining that he had discovered that he did own the reserve strip of land. The motion was denied because the order granting the dismissal was entered more than ninety days earlier.

The City of Malvern also filed a counterclaim against the appellants, Maroney and Parker, asking that they be estopped from getting an injunction granting access across Southgate Subdivision and to its roadways; that the appellants be required to fulfill their obligations in constructing the roadways upon their property according to the master street plan of the City of Malvern; and, that a declaratory judgment be entered against [Maroney and Parker] requiring them to build the roadways in accordance with the street plan.

After reviewing the evidence as well as post-trial briefs and proposed precedents prepared by the parties, Special Chancellor Arnold found, in pertinent part:

(1) That regardless of the contentions of the parties, James L. Scott holds the title to the reserve strip of land, 2' by 50' and his wife holds a dower interest in said land;
(2) That the Plaintiffs have to cross Scott’s land to connect to any street of the City of Malvern;
(3) That the Plaintiffs contend they are landlocked and they should have access to the City Streets of Malvern through Southgate subdivision;
(4) That the Plaintiffs have not filed their action in the proper Court. . . .
The Arkansas Supreme Court ruled in Cathryn Chadwick Yates v. Floyd Andrew Sturgis and Vanessa Sturgis, 311 Ark. 617 (1993), that the County Court has exclusive original jurisdiction in this type of situation.
IT IS THEREFORE, CONSIDERED AND ORDERED that the Complaint of the Plaintiffs is dismissed as the County Court has exclusive original jurisdiction in this matter.
Plaintiffs are enjoined from crossing the property of James L. Scott until this matter is heard by the County Court of Hot Spring County.

Although the various claims and counterclaims raised by the parties were, for the most part, litigated, we are concerned that the record is silent on the question of the disposition of AS&GC’s counterclaim and cross-complaint against the City of Malvern as well as the City of Malvern’s counterclaim against the appellants. The counterclaims of intervenor, AS&GC, and the City of Malvern as well as AS&GC’s cross-complaint against the City of Malvern, are viable causes of action which stand independent of the trial court’s judgment in dismissing the complaint of the appellants and must not be left unadjudicated. See South County, Inc. v. First Western Loan Co., 311 Ark. 501, 845 S.W.2d 3 (1993).

We will only review final matters on appeal. See Ark. R. App. P. 2(a). A judgment which adjudicates fewer than all of the claims of all of the parties does not terminate the action. Ark. R. Civ. P. 54(b). The purpose of Rule 54(b) is to prevent “piecemeal appeals while portions of the litigation remain unresolved.” Reporter’s Notes to Ark. R. Civ. P. 54(b).

The failure to comply with Rule 54(b) by the absence of an order adjudicating the rights of all parties is a jurisdictional issue that we are obligated to raise on our own. State Farm Mut. Auto Ins. Co. v. Thomas, 312 Ark. 429, 850 S.W.2d 4 (1993); Smith v. Leonard, 310 Ark. 782, 840 S.W.2d 167 (1992). Granted, the trial court may direct final judgment with regard to fewer than all of the claims or parties by an express determination that there is no just reason for delay. State Farm Mut. Auto Ins. Co., supra, Ark. R. Civ. R 54(b). However, this was not done in this case. We have repeatedly held that it is not enough to dismiss some of the parties or to dispose of some of the claims; to be final and appealable, an order must cover all of the parties and all of the claims. Williamson v. Misemer, 316 Ark. 192, 871 S.W.2d 396 (1994); Smith v. Leonard, 310 Ark. 782, 840 S.W.2d 167 (1992).

In short, the chancellor failed to appropriately treat the counterclaims of AS&GC and the City of Malvern, as well as the City of Malvern’s cross-complaint. For this reason, it is necessary for us to invoke Ark. R. Civ. R 54(b) by dismissing this appeal.

Appeal dismissed.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I agree that this case should be dismissed for lack of compliance with Ark. R. Civ. R 54(b) but only because the counterclaim by appellee City of Malvern prays for a declaratory judgment that appellants Maroney and Parker be required to build all of the roads in their new development in accordance with the City’s Master Street Plan. That cause of action appears to be separate and apart from the appellants’ complaint to open a public roadway, and the chancellor has subject matter jurisdiction to address this claim.

However, I disagree that the cross claims of AS&GC, Inc. have independent viability. Cross claims by definition arise out of the transaction or occurrence that is the subject matter of the original action or counterclaim. Ark. R. Civ. P. 13(f). Because the trial judge has determined that he has no subject matter jurisdiction over the original action, it follows that jurisdiction is also lacking to decide the cross claims. To the extent a cross claim is alleged by AS&GC that raises matters outside the scope of the original action, I question its validity. In addition, the AS&GC counterclaim against the appellants appears to be directly related to their complaint to open a public road over the reserve strip. Again, the trial judge has recognized a lack of jurisdiction over this matter, and the counterclaim is not a separate claim.


author: Robert H. Dudley, Justice.

text:
    Jeannette E. SMITH, James E. and Paula Parker, and James Larry Smith v. John Paul and Shirley LEONARD and Leonard’s Hardware, Inc., an Arkansas Corporation
    93-1118
    876 S.W.2d 266
    Supreme Court of Arkansas
    Opinion delivered May 31, 1994

      Wright, Lindsey & Jennings, by; Roger D. Rowe and Troy A. Price, for appellant Jeannette E. Smith.

      Mobley, Smith & Mobley, by: William F. Smith, for appellants James E. and Paula Parker.

      Edgar, Perigo & Hilsabeck, Inc., by: Steven E. Edgar, for appellant James Larry Smith.

      Davidson, Horne, & Hollingsworth, by: Derrick M. Davidson; Robert E. Irwin and Laws & Murdoch, P.A., by; Ike A. Laws, for appellees.
   Robert H. Dudley, Justice.

The main issue in this case is whether a stockholder in a closely held family corporation breached his duty to the other shareholders when he gained majority control. The chancellor ruled there was no breach of duty to the minority stockholders. We affirm.

This is the third appeal involving this case. See Smith v. Leonard, 310 Ark. 782-B, 840 S.W.2d 167 (1992) and Leonard v. Leonard’s Hardware, Inc., 309 Ark. 450, 828 S.W.2d 846 (1992). The essential facts viewed in the light most favorable to the appellees, as we must do, are as follows. In 1902, Leonard’s Hardware was founded in Russellville by the grandfather of appellee John Paul Leonard and, commencing in 1955, was operated as a partnership by Leonard and his brother-in-law, W.O. Tibbels. Tibbels’s half-interest in the partnership was transferred to his two daughters, appellants Jeannette Smith and Paula Parker. In 1981, the business was incorporated as Leonard’s Hardware, Inc. Ten thousand shares of stock were authorized, but only six hundred shares were issued. Appellee Leonard and his wife, Shirley, were issued three hundred shares as joint tenants, or half of the issued stock. See Ark. Code Ann. § 4-25-105 (Repl. 1991). Appellant Jeannette Smith and her husband, James Larry Smith, were issued one hundred fifty shares, or a quarter of the issued stock, and appellant Paula Parker and her husband, James Parker, were issued the other one hundred fifty shares. The corporation purchased the interests of the partners in the partnership by issuing promissory notes. The real estate was retained in the Leonard-Smith-Parker partnership. The board of directors of the new corporation consisted of Leonard and his nieces’ husbands, James Larry Smith and James Parker. James Larry Smith and James Parker were active in the daily operations of the business. Although Jeannette Smith and Paula Parker shared ownership of the stock with their husbands, they entrusted the management of the business to them and looked to them for information.

In June 1988, appellee Leonard, the president of the corporation and a principal stockholder, learned that James Larry Smith, a director and the secretary-treasurer, and James Parker, a director, had been embezzling funds from the corporation. Leonard confronted both of them, and each admitted his malfeasance. Leonard testified that Parker said he would pay back the money and that Leonard’s niece, Paula Parker, said she would see to it that he or they would pay it back, and she apologized for Parker’s misdeeds. Parker and his wife subsequently arranged to repay the corporation the money Parker had taken. After that time Parker continued to represent his wife in all corporate matters, including voting her stock at stockholder meetings.

Smith was unable to make restitution. His only assets of any consequence were his undivided interests in the one hundred fifty shares of stock, the note, and the partnership realty. On July 1, 1988, Leonard, Parker, and Smith went to the corporation’s attorney, James K. Young, for advice. As a result of the meeting, the remaining 9,400 shares of stock were issued, with 5,000 being issued to Leonard and his wife, 2,500 to the Parkers, 1,250 to appellant Jeannette Smith, and 1,250 to James Larry Smith. The corporation’s promissory note to Smith in the amount of $113,167.16 was given back to the corporation, and, in exchange, the corporation issued two promissory notes for the same total, one to appellant Jeannette Smith in the amount of $56,583.58, and the other to James Larry Smith in the amount of $56,583.58. Smith and his wife also executed a warranty deed to the corporation for their 25% interest in the real estate. Later, the corporation reconveyed a 12 1/2% interest in the partnership real estate back to Jeannette Smith.

Smith pledged his stock and promissory note to the corporation as security for his debt. The pledge provided that a “sufficient amount of stock and note is hereby transferred to Leonard’s Hardware to cover” the debt, and any part of the stock or note that was not necessary to satisfy the debt would be returned to Smith. It further provided that the amount of the debt would be established as soon as possible, as follows:

Leonard’s Hardware, through its president, John Paul Leonard, agrees to proceed expeditiously toward determining the outstanding indebtedness, and upon determining the indebtedness will proceed forthwith to issue to James Larry Smith the stock and notes in the amount to be received by him.

Smith’s promissory note was dated July 1, 1988, and was endorsed as follows: “I, James Larry Smith, hereby assign this Promissory Note to Leonard’s Hardware to secure indebtedness owed them.” The date of July 1, 1988, appears by Smith’s signature.

James K. Young, the attorney, testified that by the date of the meeting in his office, July 1, 1988, appellant Jeannette Smith was aware that her husband had been embezzling from the corporation and that Smith’s note, stock, and real estate were being transferred to the corporation as security for his debt to the corporation. One week later, on July 8, 1988, Leonard purchased ten shares of stock from Smith for $1,656.00. These ten shares came from the stock Smith had pledged to the corporation. Leonard voted these shares on at least one occasion. However, on October 16, 1990, Leonard returned the shares to the corporation and received $1,656.00 from the corporation.

Leonard testified that Smith subsequently attempted to sell his stock first to Parker and then to Leonard. He stated that Parker and Smith had a first option agreement with each other and Leonard had second option. He additionally testified that Smith asked $500,000 for his stock, which was far more than it was worth. By January of 1989, Leonard concluded that the amount Smith had embezzled was $160,526.51 and so notified Smith.On March 13, 1989, Smith wrote back to Leonard as follows:

John,
I’m sorry that it’s taken me so long to get back to you concerning my debt and the checks that you sent me.
After review of all the documents and the checks that you have given me I realize that the debt is far greater than I had anticipated, however there are several items that I am not responsible for and am sure of.
I want this part of my life to be over. At this time I wish to sign and deliver all of my stock in Leonard’s Hardware, Inc. to the store to be distributed to its present stockholders at their [illegible] percentage of stock holdings, in exchange for a clear release of my indebtedness. Plus a check to me in the amount of the credit balance on my personal account as of 3/1/89.
Sincerely,

Larry Smith

cc Jeannie Smith

Jim Parker

P.S. Please reply immediately.

In May of 1989, Leonard and Smith met and agreed that the amount embezzled by Smith exceeded the value of the stock, the note, and the value of the real estate already transferred to the corporation. As a result, Leonard accepted the pledged property on behalf of the corporation as treasury stock in full satisfaction of Smith’s debt. At that time the corporation had unrestricted earned surplus.

Jeannette Smith filed this action on August 23, 1990, and sought rescission of the issuance of the 9,400 shares of stock, damages for Leonard’s alleged breach of fiduciary duty to her as a minority stockholder, and dissolution of the corporation. The Parkers intervened and sought similar relief. James Larry Smith also intervened and sought to rescind his pledge, pay his indebtedness, and recover the 1,250 shares of stock. The chancellor denied the relief, and the Smiths and the Parkers appeal.

The two determinative findings of fact by the chancellor were as follows:

John Leonard acted on behalf of the corporation and in its best interest by recovering funds misappropriated by James Smith, even though he may have personally benefitted by the change in ownership.
In recovering the misappropriated funds, John Leonard did not conceal the method of recovery. John Leonard did not deceive the shareholders about the purpose for recovering the misappropriated funds.

From those findings of fact, the chancellor reached the following conclusion of law.

John Leonard did not breach his fiduciary duty by recovering the misappropriated funds from James Smith.
The transfer of James Smith’s stock into the corporation’s treasury was a valid corporate act.

Appellants’ main point of appeal is that the chancellor erred in the conclusion that Leonard did not breach his fiduciary duty to the other shareholders in recovering the embezzled funds when he, at the same time, gained majority control of the corporation. Appellants contend that there should have been shareholder meetings, a disclosure of facts and legal consequences to the minority stockholders, and shareholder authorization for Leonard to act as he did.

The first question is whether the acquisition of Smith’s stock as treasury stock was undertaken in compliance with the governing statutes. The parties agree that the Arkansas Business Corporation Act is the governing statutory authority. The applicable statute governing the acquisition by a corporation of its own stock is section 4-26-611 of the Arkansas Code Annotated of 1987, which provides in pertinent part:

(a) A corporation shall not purchase directly or indirectly any of its own shares unless the purchase is authorized by this section and not prohibited by its articles of incorporation.
(d) A corporation may purchase its own shares out of unrestricted earned surplus, this purchase to be authorized by the board of directors, and no stockholders’ authorization is required.
(f) In exercising the powers conferred by this section, it is not required that the shares purchased by the corporation must be purchased pro rata by the shareholders, or ratably from the holders of all the shares of any class or series. However, this section is not intended to validate stock purchases designed to effect fraudulent, improper, or unfair liquidating distributions to one or more shareholders; or fraudulently, improperly, or unfairly designed to augment'the voting power of any one (1) or more shareholders; or otherwise designed to effect any fraudulent, unfair, or improper discrimination in favor of any one (1) or more shareholders as against others.

Ark. Code Ann. § 4-26-611(a), (d), & (f) (Repl. 1991) (emphasis added).

There was substantial evidence that there was sufficient unrestricted earned surplus to allow the purchase authorized by the board of directors; therefore, a shareholders’ authorization was not required by statute. Thus, the question becomes whether Leonard acted unfairly toward the minority stockholder appellants so as to breach his fiduciary duty and, as a consequence, lose the protection of the business judgment rule.

The standard of conduct for directors of a corporation is set out in section 4-27-830 of the Arkansas Code Annotated of 1987, which provides in pertinent part:

A. A director shall discharge his duties as a director, including his duties as a member of a committee:
1. In good faith;
2. With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and
3. In a manner he reasonably believes to be in the best interest of the corporation.

Ark. Code Ann. § 4-27-830(A) (Repl. 1991).

We addressed the application of these standards, which by common law is known as “the business judgment rule,” in Hall v. Staha, 303 Ark. 673, 800 S.W.2d 396 (1990), and wrote:

The rule is a rebuttable presumption that directors are better equipped than the courts to make business judgments and that the directors acted without self-dealing or personal interest and exercised reasonable diligence and acted with good faith.

Id. at 678, 800 S.W.2d 398 (quoting Gries Sports v. Cleveland Browns Football Co., 496 N.E.2d 959 (Ohio 1986)). We set out a two-part test for the propriety of its application: (1) that the protection can “only be claimed by disinterested directors whose conduct otherwise meets the tests of business judgment,” and (2) that directors exercise their duty to inform themselves of “all material information reasonably available to them prior to making a business decision.” Id.

Appellants contend that Leonard was not a disinterested director, but rather that he personally benefitted from the corporation’s purchase of treasury stock, and cite us to Andersen v. J.M. Anderson Mfg. Co., 90 N.E.2d 541 (Mass. 1950). The cited case is readily distinguishable. It held that, in a case with facts comparable to those of the case at bar, the plaintiffs stated a cause of action. It was not a holding on the merits. Here the chancellor did not dismiss the complaint for failure to state a cause of action, but heard all of the evidence and found there was a predominating corporate purpose for the transaction, even though Leonard also received a benefit. The chancellor also found that Leonard did not deceive the shareholders and did not conceal his actions. In addition, there was substantial evidence and fair inferences from that evidence to support a finding that all shareholders were aware of all of Leonard’s actions as they took place. We review chancery cases de novo and will not reverse a finding of fact unless it is clearly erroneous. Conway Corp. v. Construction Eng’rs, Inc., 300 Ark. 225, 782 S.W.2d 36 (1986). The chancellor’s findings of fact were not clearly erroneous. The findings supported the chancellor’s conclusion of law that the transaction was a fair and informed one and that it was in the best interest of the corporation. See, e.g., Gries Sports v. Cleveland Browns Football Co., 496 N.E.2d 959, 968 (1986).

Appellants’ next point of appeal is that the chancellor erred in finding the pledge agreement conferred authority on Leonard to settle the debt owed by Smith. After Leonard learned that Smith and Parker had been embezzling from the corporation, he confronted them, and after some discussion it was determined that Smith was unable to repay the amount he had stolen. All were aware that Smith’s only assets of consequence were his interests in the company. With the supervision of the corporation’s attorney, an arrangement was made by which Smith pledged his stock and promissory note. All three igembers of the board were present. Leonard subsequently determined the amount Smith had embezzled, and realized that it exceeded the value of the items pledged. Smith surrendered the pledged instruments as complete satisfaction of the debt. Appellants contend that Leonard exceeded his authority by accepting the pledge and that there should have been a shareholder vote on the matter. Under the applicable Arkansas statutes, all corporate powers may be exercised by the board of directors unless limitations are set by the articles of incorporation. See Ark. Code Ann. § 4-26-801(a) (Repl. 1991). The chancellor correctly concluded that the transfer of Smith’s stock into the corporation’s treasury was a valid corporate act.

Appellants additionally contend that the chancellor erred in ruling that Smith’s pledge was accepted in satisfaction of his indebtedness. The essential elements for accord and satisfaction are proper subject matter, competent parties, an assent or meeting of the minds of the parties, and consideration. See Holland v. Farmers & Merchants Bank, 18 Ark. App. 119, 711 S.W.2d 481 (1986). Usually, there are two elements to be considered. One, that there be a disputed amount involved, and two, that there be a consent to accept less than the claimed amount in satisfaction of the whole. Jewell v. General Air Conditioning Corp., 226 Ark. 304, 289 S.W.2d 881 (1956).

The chancellor heard evidence that Smith wrote Leonard a letter after Leonard had determined the amount of the debt. Smith responded and wrote, in part, “I realize that the debt is far greater than I anticipated, however there are several items that I am not responsible for and am sure of.” Leonard and Smith subsequently met and determined the items for which Smith declined responsibility. Subsequently, they agreed on the acceptance of Smith’s interests pledged in satisfaction of the debt. This constituted substantial evidence for the chancellor’s finding of fact and a sound basis for his conclusion of law.

After the trial had been completed, Smith tendered a check in settlement of his debt and demanded that his stock be returned. The chancellor ruled that Smith’s tender should be returned, and it has been returned. Appellants contend that the chancellor erred in ordering Smith’s tender returned. Since the tender has been returned, the issue is moot, but even if it had not been returned, the argument is without merit. A part of the Arkansas Uniform Commercial Code, section 4-9-506 of the Arkansas Code Annotated of 1987, provides that a debtor will only have the right to redeem collateral if done so before the obligation has been discharged. Ark. Code Ann. § 4-9-506 (Repl. 1991). The debt was discharged when the stock was accepted as treasury stock in satisfaction of the debt. Id. § 4-9-505(2). The tender was too late and of no effect.

The chancellor concluded as a matter of law that Leonard’s conduct did not constitute oppression that would mandate dissolution of the corporation, and appellants assign the conclusion as error. Section 4-26-1108 of the Arkansas Code Annotated of 1987 provides for the judicial dissolution of a corporation when the “acts of the directors or those in control of the corporation are illegal, oppressive, or fraudulent.” Ark. Code Ann. § 4-26-1108(a)(1)(B) (Repl. 1991). Appellants contend they are oppressed because their reasonable expectations of a return on investment have not. been met. We have not previously addressed either “oppression” or “reasonable expectations.” See Frances Fendler Rosenzweig, Protecting the Rights of Minority Shareholders in Close Corporations Under the New Arkansas Business Corporation Act, 44 Ark. L. Rev. 1, 54 (1991). Cases from other jurisdictions are scant, but In re Kemp & Beatley, Inc., 473 N.E.2d 1173 (N.Y. 1984), cited by appellants, is instructive. The Court of Appeals of New York set out a standard as follows:

Defining oppressive conduct as distinct from illegality in the present context has been considered in other forums. The question has been resolved by considering oppressive actions to refer to conduct that substantially defeats the “reasonable expectations” held by majority shareholders in committing their capital to the particular enterprise.
A shareholder who reasonably expected that ownership would lead him or her to a job, a share of corporate earnings, a place in corporate management, or some other form of security, would be oppressed in a very real sense when others in the corporation seek to defeat those expectations and there exists no effective means of salvaging the investment.
A court considering a petition alleging oppressive conduct must investigate what the majority shareholders knew, or should have known, to be the petitioner’s expectations in entering the particular enterprise. Majority conduct should not be deemed oppressive simply because the petitioner’s subjective hopes and desires in joining the venture are not fulfilled. Disappointment alone should not necessarily be equated with oppression.

Id. at 1179 (citations omitted).

Appellants received their corporate stock in exchange for their partnership interests. At that time, neither Paula Parker nor Jeannette Smith were promised employment by the corporation or by Leonard. Both of their husbands were in fact employed by the corporation. The facts prove only a case of disappointment, and the chancellor did not err when he ruled that the facts proved did not constitute oppression.

We do not address one of appellants’ assignments of error. In it, appellants contend that the chancellor erred in failing to declare void the issuance of the additional 9,400 shares of stock. They argue that the issuance of the additional stock was a stock split and since the stock in the corporation had a par value, the corporation could not split its stock without appropriate amendments to the articles of incorporation and without adjusting the par value of the outstanding stock. Consequently, they argue that the issuance of the additional shares was void. We do not reach the argument because it does not appear that such an argument was brought to the attention of the trial court either at the original trial on the merits or after remand from this court. See Smith v. Leonard, 310 Ark. 782, 840 S.W.2d 167 (1992). Even if such an argument were made, the chancellor did not rule on it. A party will not be allowed to argue an issue for the first time on appeal, and even if it were argued, it is up to appellants to obtain a ruling on the issue. Firstbank of Arkansas v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993).

Affirmed.

Hays, J., not participating.


author: David Newbern, Justice.

text:
    WORTHEN NATIONAL BANK of Batesville v. W.J. Bill McCUEN, Secretary of State
    94-59
    876 S.W.2d 567
    Supreme Court of Arkansas
    Opinion delivered May 31, 1994

      Ivester, Skinner & Camp, P.A., by: Hermann Ivester and S. Scott Luton, for appellant.

      Winston Bryant, Att’y Gen., by: Patricia Van Ausdall, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Worthen National Bank of Batesville (Worthen) appeals from a ruling that Arkansas’s Trademark Act, Ark. Code Ann. §§ 4-71-101 through 4-71-114 (Repl. 1991), does not empower the Secretary of State to register trademarks or service marks for a limited geographical area within the State. We affirm the decision of the Trial Court.

First National Bank of Batesville operated under that name in the Independence County area from 1944 until 1991 when it became Worthen National Bank of Batesville. In 1992, First National Bank of Arkansas expanded and also began operating in the Independence County area. The name change of First National Bank of Batesville, coupled with the expansion of First National Bank of Arkansas, created confusion among the residents of Independence County.

In May 1992 Worthen obtained an injunction in Independence Chancery Court prohibiting First National Bank of Arkansas from using the names “First National Bank of Arkansas,” “First National Bank,” or “First National,” in Independence County. The Chancellor found that those terms had acquired a secondary meaning in the Independence County area, and only Worthen was entitled to their use.

In March 1993 Worthen applied to the Secretary of State for a service mark for “First National Bank” with protection to be limited to Independence County. The Secretary of State denied the application because the mark is identical or confusingly similar to other marks used in the State and because he lacked authority to issue a registration on other than a state-wide basis.

Worthen sought mandamus in Pulaski Circuit Court to compel the Secretary of State to register the mark. The petition was amended to include a petition for declaratory judgment that § 4-71-105 empowers the Secretary of State to register a service mark limited to a geographical area within the State smaller than the whole State. Both parties moved for summary judgment, and the Trial Court granted the Secretary of State’s motion. The order stated that § 4-71- 105(a)(5) does not grant the Secretary of State the power to register a service mark for a geographical area within but smaller than the entire State. Worthen contends the Trial Court incorrectly interpreted the Arkansas Trademark Act. When interpreting statutes, we give the words their ordinary and usually accepted meanings. Bob Cole Bail Bonds, Inc. v. Howard, 307 Ark. 242, 819 S.W.2d 274 (1991). When a statute is clear, it is given its plain meaning. Roy v. Farmers & Merchants Ins. Co., 307 Ark. 213, 819 S.W.2d 2 (1991). Section 4-71-105(a) states the contents of an application for registration of a trademark or a service mark in this State. Subsection (a)(5) provides an application must contain:

A statement that the applicant is the owner of the mark and that no other person has the right to use the mark in this state whether in the identical form thereof or in such a near resemblance thereto as might be calculated to deceive or to be mistaken therefor.

A service mark is deemed to be “used” in this State “when it is used or displayed in the sale or advertising of services, and the services are rendered in this state.” § 4-71-101 (b)(2).

Worthen contends Arkansas’s trademark law is a version of the Model State Trademark Act. As the Model Trademark Act was patterned after the Lanham Act, 15 U.S.C. § 1051 through § 1128 (Supp. 1994), Worthen contends the Arkansas law should be interpreted in a manner consistent with the interpretation given to the acts in the federal and other jurisdictions. Even if we accept this contention, Worthen has not cited any cases which directly support its argument that the Secretary of State should have the power to register trademarks or service marks for a limited geographical area within the state.

Worthen cites Application of Beatrice Foods Co., 429 F.2d 466 (C.C.P.A. 1970); Burger King of Fla., Inc. v. Hoots, 403 F.2d 904 (7th Cir. 1968); and Allied Tel. Co. v. Allied Tel. Systems Co., 565 F. Supp. 211 (S.D. Ohio 1982). None of these cases supports the proposition that the Secretary of State may register a mark and limit the geographical boundaries of that registration.

Application of Beatrice Foods Co., supra, involved concurrent registration, authorized in 15 U.S.C. § 1052(d) (Supp. 1994). Concurrent registration is not provided for in the Arkansas Code. Burger King of Fla., Inc. v. Hoots, supra, addressed the relationship between competing federal and state registered marks. It sheds no light on the question presented here,

Allied Tel. Co. v. Allied Tel. Systems Co., supra, concerned defenses that may be asserted against a federally registered trademark. Specifically, the Court addressed 15 U.S.C. §1115(b)(5) which states that a party which has adopted a mark without knowledge of a prior registered mark is permitted to continue use of the mark, but only in the area of the adopted mark’s use prior to such registration. While the opinion recognizes that use of an unregistered mark may engender rights that infringe those of the owner of a registered mark, it does not in any manner suggest that registration may be limited to a geographical area within the United States but smaller than the United States. To the contrary, the District Court stated that “Pursuant to 15 U.S.C. § 1115(b), . . . the registrant of a mark, has ‘the exclusive right to use the registered mark ...’ throughout the United States unless a defense or defect is applicable.” 565 F. Supp. at 215-16.

We are not persuaded by these authorities that we should disregard the requirement for registration under the Arkansas Act that the applicant be able to state that the proposed mark is one which is not in use in Arkansas. The intent of the drafters of § 4-71-105(a)(5) was that a registered mark be one to which the owner has exclusive rights in this State. If there is to be a change incorporating provisions, such as the ones noted above in the federal law, it must come in the form of legislation.

Affirmed.