author: AndrEE LAYTON Roaf, Justice. TOM GLAZE, Justice,

text:
    DIAMOND STATE TOWING COMPANY, Inc., and James Ingram v. Lindel Kay CASH
    95-1282
    919 S.W.2d 510
    Supreme Court of Arkansas
    Opinion delivered April 22, 1996

      Wood, Smith, Schnipper & Clay, by: Lynn Williams, for appellants.

      Harrell & Lindsey, P.A., by: Searcy W. Harrell, Jr., and Phillip J. Foster, for appellee.
   AndrEE LAYTON Roaf, Justice.

This case arises from an automobile collision. Appellee Lindel Kay Cash filed an action for personal injury against the appellants, Diamond State Towing Company, Inc. (Diamond State Towing), and James Ingram. A jury returned a verdict in favor of Diamond State Towing and Ingram. Subsequendy, Cash filed a motion for new trial pursuant to ARCP Rule 59(a)(6), asserting that the verdict was clearly contrary to the preponderance of the evidence; the trial court granted the motion. The sole issue on appeal is whether the trial court abused its discretion in granting a new trial. We affirm.

At approximately 4:30 a.m. on June 24, 1989, Lindel Cash was traveling east on Interstate 30 east of Texarkana. Ms. Cash testified that she could see something in the road as she approached an overpass; she was in the left lane. Subsequently, she recognized that there was an accident and stopped her car. Ms. Cash testified that she was sitting with her foot on the brake when one of her passengers, Floyd Waites, yelled, “[H]e’s going to hit us.” Ms. Cash looked in the rear-view mirror and saw lights. James Ingram, a shareholder in Diamond State Towing, was driving a 1966 Hendrixson heavy-duty wrecker. Mr. Ingram’s vehicle struck the rear of Ms. Cash’s vehicle.

Ingram testified that he was returning to Hope, Arkansas, from Nash, Texas, where he had spent four or five hours pulling a truck and trailer out of a ditch. He testified that he was not sleepy, had not been drinking any alcohol, and had taken no drugs other than his blood pressure medication. Ingram stated that he saw the headlights flash from the first accident, thought it might have been a lightning flash, and did not “hit the brakes or let off the accelerator”; he kept going, then he saw taillights. Ingram testified that he “did not think much, then I got closer and noticed the taillights were not moving.” When he realized that Cash’s car was stopped, Ingram slammed on his brakes. Ingram also testified that he was traveling fifty miles per hour, which he thought was a reasonable speed.

Ingram stated that there was a barricade on the left and a van stopped on the right. He testified that he was not tailgating the Cash vehicle and the first time he saw her was when he “came on her.” In addition, Ingram stated that he saw Cash’s taillights, but he did not see any hazard lights, signal lights, or brake lights. Ingram further testified that no one else hit anyone, but the driver of the eighteen wheel truck behind Ingram stated “it was a miracle he got it stopped” without hitting Ingram.

Corporal Robert Lavender of the Arkansas State Police testified that a one-car accident occurred at the apex of the overpass. He stated that the vehicle swerved and hit the concrete wall; the left lane of the interstate was completely blocked and part of the outside lane was blocked. Corporal Lavender testified that the accident involving Ms. Cash occurred within 100 yards of the single vehicle accident. Lavender stated that there was aluminum railing on the shoulder of the highway and there was not enough room for Ingram to pass on the right of Ms. Cash’s vehicle. Lavender testified that “failed to yield” was marked on the accident report, but he meant following too closely. In addition, Lavender testified that there was a 282-foot skid mark from the left front of the wrecker; he did not find any skid marks which led from Ms. Cash’s vehicle. Finally, Lavender stated that it was not normal for a car to come to a complete stop on the interstate.

Floyd Waites, Ms. Cash’s son-in-law, testified that Ms. Cash took a quarter- to a half-mile to brake easily, and she stopped without skidding or losing control. He testified that Ingram’s wrecker struck the Cash vehicle approximately 15 to 20 seconds later.

The jury returned a verdict in favor of the defendants; however, the trial court concluded the verdict was against the clear preponderance of the evidence and granted a new trial. In making its ruling, the trial court observed that the key testimony was that of Mr. Ingram. Ingram stated the first thing that he saw was “white lights” flashing; he thought it was when the first car hit the bridge. Ingram testified that “I got a glimpse of something up there, you know, a flash and I figured that’s what it was.” Ingram stated that he did not slow down; he testified that he “kept going and then I seen some taiUights and I didn’t think nothing much of it right then and then as I got closer I noticed the taillights wasn’t moving.”

The trial court found that Ingram could not take evasive action to the right because of another vehicle nor could he take evasive action to the left because of the barricade. However, the trial judge also recognized that Ms. Cash was confined to the lane in which she had stopped. The trial court concluded the issue was whether Ingram was negligent in not recognizing the danger earlier. The trial court stated that Ingram was put on notice by the flash of lights, which he thought were from an accident, but he did not slow down. Further, the trial court concluded Ingram’s inability to keep a proper lookout may have been affected by his long workday without any sleep. The trial judge also found Ms. Cash was not negligent. He stated that Ms. Cash’s failure to activate her hazard lights was of little consequence; Ms. Cash’s brake lights would have been clearly visible to following traffic.

Appellants, Diamond State Towing and James Ingram, bring this appeal from the trial court’s order granting Cash’s motion for a new trial. Arkansas Rule of Civil Procedure 59(a)(6) provides that a new trial may be granted to all or any of the parties on all or part of the issues on the application of the party aggrieved when the verdict or decision is clearly against the preponderance of the evidence or is contrary to the law. Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995). Although the trial court is granted some discretion in the matter, that discretion is limited, and the trial court may not substitute its view of the evidence for the jury’s except when the verdict is clearly against the preponderance of the evidence. Id.; Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994). The test we apply in reviewing the trial court’s granting of the motion is whether the trial court abused its discretion. Bristow, supra. A showing of abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Id.

On appeal, the appellants cite three cases in which this Court has found an abuse of discretion where a trial court granted a new trial, Razorback Cab of Ft. Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993), Schrader v. Bell, 301 Ark. 38, 781 S.W.2d 466, (1989), Wilson v. Kobera, 295 Ark. 201, 748 S.W.2d 30 (1988), and three cases in which this Court has upheld the trial court’s decision granting a new trial, Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995), Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994), Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990). In addition, the appellants note that the jury was instructed in accordance with AMI Civil 3rd, 2102 (1989)(comparative negligence), AMI Civil 3rd, 603 (1989) (occurrence of accident is not, of itself, evidence of negligence), AMI Civil 3rd, 614 (1989)(sudden emergency), and AMI Civil 3rd, 902 (1989) (superior right of forward vehicle does not relieve driver of forward vehicle of the duty to use ordinary care). The appellants submit that in considering the facts in the record and the jury instructions, it is apparent that the trial court abused its discretion and entered into the province of the jury. The appellants, however, do not contest that Ms. Cash sustained an injury; they simply appeal the trial court’s decision regarding the issue of negligence.

The appellants first submit that the trial court invaded the province of the jury regarding whether Ingram should have perceived the danger of the first accident. The appellants submit Ingram saw a swirl of light that he initially believed to be lightening; therefore, there was no danger for him to perceive. Second, the appellants contend that the trial court invaded the province of the jury on the issue of keeping a proper lookout. On this point, the appellants submit there was no evidence that Ingram was fatigued. Next, the appellants contend that the trial court invaded the province of the jury in concluding that Cash’s negligence did not equal or exceed the negligence of Ingram. The appellants submit that Ingram specifically stated he saw taillights, but not brake lights, and it is for the jury to determine the credibility of the witnesses. Finally, the appellants submit the trial court ignored the fact that the sudden emergency instruction was given and it was for the jury to decide whether Cash should have activated her hazard lights.

In the instant case, the jury was instructed regarding the duty to keep a proper lookout that a reasonably careful driver would keep under circumstances similar to those shown by the evidence, the duty to keep a vehicle under control, and the duty to drive at a speed no greater than is reasonable and prudent under the circumstances. See AMI Civil 3rd, 901 (1989). Ingram admits he was traveling fifty miles per hour and his wrecker struck the rear of Ms. Cash’s vehicle. By his own testimony, Ingram saw the headlights from the first accident, but he did not do anything; he kept going, then he saw taillights.

The appellants find it significant that Ingram never saw Ms. Cash’s brake lights and that cars are not normally stopped on the interstate. Ingram, however, testified that he saw the lights from the first accident and Ms. Cash’s taillights; he just did not realize the taillights were not moving. In addition, the driver of the truck behind Mr. Ingram was able to stop, and no other accidents occurred.

In Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995), we upheld the trial court’s granting of a motion for new trial where the defendant, by his own testimony, conceded he was not paying attention to the road as he entered the intersection prior to the collision. We noted that the only significant testimony favoring the defendants came as a result of the testimony of one of the defendants. Similarly, in the instant case, Ingram testified he saw the headlights from the first accident but he did not take any precautionary measures.

In Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994), Richardson was traveling in a feed-on lane to the highway and the Flanerys were traveling on the highway. According to her testimony, Ms. Richardson looked, but when she did not see anyone on the highway, she proceeded forward. Ms. Richardson’s car collided with the car driven by Mr. Flanery. The Flanerys filed an action against Ms. Richardson, but the jury returned a verdict in favor of Ms. Richardson. We held that the trial court did not abuse its discretion in granting the Flanerys’s motion for new trial because the overwhelming weight of evidence was that Ms. Richardson had negligendy caused the accident. We noted that it was unrefiated that the Flanerys had the right-of-way when the accident occurred. Similarly, it is undisputed that Ms. Cash had the superior right as the forward vehicle.

In Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990), this Court also upheld a trial court’s granting of a new trial. Mr. Turrise was the driver of a van that was involved in a one-vehicle accident. The passengers filed an action against Mr. Turrise; the jury returned a verdict in favor of the defendant. Mr. Turrise testified that a blue car shot out in front of him which caused him to drive off the road. In affirming the granting of a new trial, this Court noted that the only evidence tending to excuse Turrise’s failure to keep the van on the road was his sudden emergency testimony. This Court also noted that the physical evidence showed a course of conduct contrary to that which an ordinary person would have undertaken when confronted with such an emergency. In the instant case, the physical evidence also shows a course of conduct contrary to that which an ordinary person would have undertaken when confronted with such an emergency. Ingram admits that he did not take any action after observing the lights from the initial accident.

Granted, the jury was instructed that a person who is suddenly and unexpectedly confronted with danger is required to use only the care that a reasonably careful person would use in the same situation. See AMI Civil 3rd, 614 (1989). Further, the jury was instructed on comparative fault. See AMI Civil 3rd, 2102 (1989). However, Ingram admitted he saw the headlights from the first accident and took no action. He further admitted that he saw Ms. Cash’s taillights, but he did not realize they were not moving. Under these circumstances, we cannot say that the trial court abused its discretion in granting a new trial on the basis that Ingram failed to keep a proper lookout and that Ms. Cash’s negligence, if any, did not equal or exceed that of Ingram.

Affirmed.

Glaze and Dudley, JJ., dissent.

TOM GLAZE, Justice,

dissenting. Once again, this court has affirmed the lower court’s substitution of its opinion for that of the jury. The jury’s verdict was clearly supported by substantial evidence, and cannot be said to be against the clear preponderance of the evidence.

Here, the trial court granted a new trial, finding that the plaintiff, Cash, was not negligent. However, Cash’s witness testified that Cash was at a standstill on the interstate for as long as twenty (20) seconds without her engaging her emergency flasher. By Cash’s own admission, she never took any evasive action nor did she look behind her to observe the possibility of any oncoming traffic. Defendant Ingram testified that he only saw Cash’s taillights, an indication that Cash failed the most minimum task of warning others by depressing her brake pedal. Clearly, evidence was introduced to the jury from which a reasonable inference of Cash’s negligence could have been derived.

Evidence was also introduced to the jury that Ingram was not negligent. It was dark and early in the morning at the time of the collision. Ingram testified that when he saw a flash of light ahead, he thought it was lightning. In retrospect, the lights he saw were the headlights flashing from the first accident. Seeing only taillights of a car ahead and witnessing no accident, Ingram believed he had no reason to apply his brakes. Once Ingram determined the taillights (of Cash’s car) were stationary, he applied his brakes on his tow truck, skidding 282 feet. Ingram testified he was on 1-30 driving fifty miles per hour. From this evidence, the jury reasonably concluded that Ingram had kept a proper lookout and was not negligent in applying his brakes at the time he first became aware that Cash’s car was stopped on the overpass and Ingram was unable to pass to the left because of a guardrail or to the right because of traffic.

Clearly, among all the evidence introduced, the jury considered both evidence of Cash’s negligence and of Ingram’s lack of negligence. In light of the comparative fault instruction given, the jury could have reasonably concluded that Cash was equally, if not more, negligent than Ingram.

Nonetheless, the trial court expressed an opinion that Ingram’s “inability to maintain a proper lookout may have been affected by his long workday without a nap which caused him to be tired.” The court’s opinion exemplifies its abuse of discretion in donning the hat of the factfinder and substituting its opinion for that of the jury. In my view, the trial court erred by substituting its opinion for that of the jury and finding that the verdict was clearly against the preponderance of the evidence. Cf. Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996) (Glaze, J., dissenting); Turrise v. State, 303 Ark. 576, 798 S.W.2d 684 (1990) (Dudley, Glaze, and Turner, JJ., dissenting).

For the foregoing reasons, I respectfully dissent.

Dudley, J., joins this dissent.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles Edward BRADFORD v. STATE of Arkansas
    CR 96-140
    919 S.W.2d 515
    Supreme Court of Arkansas
    Opinion delivered April 22, 1996

      Bart E. Ziegenhorn, for appellant.
    No response.
   PER CURIAM.

Appellant files a motion to supplement the record, requesting the record to include a copy of a federal district court order entered on June 9, 1995, suggesting a postconviction hearing be conducted in state court or a writ of habeas corpus would issue within 120 days. We grant appellant’s motion, but, in addition, direct the state to supplement the record with any additional and relevant information on how and when this cause was decided in federal court and referred to state court, resulting in this appeal.


author: Per Curiam.

text:
    Bobby Joe CRANFORD, Jr. v. Circuit Judge Terry CRABTREE
    CR 96-294
    919 S.W.2d 514
    Supreme Court of Arkansas
    Opinion delivered April 22, 1996

      Norwood & Norwood, BA., by: Doug Norwood, for petitioner.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Sr. Appellate Advocate, for appellee.
   Per Curiam.

On April 23, 1993, petitioner Bobby Joe Cranford, Jr., was arrested for DWI and charged with that offense. On November 17, 1993, he was tried in the Municipal Court of Rogers and found guilty. He was sentenced to 4 days of public service, a $500 fine, $339.25 court costs, alcohol safety school, and a 120-day suspension of his driver’s license. A formal judgment was entered that same date. On December 1, 1993, his appeal of the DWI judgment was perfected in circuit court. Since that date, no action has been taken on his appeal by that court. On June 21, 1995, Cranford filed a motion to dismiss the judgment against him for violation of the speedy trial rules. Ark. R. Crim. P. 28.1 et seq.

Cranford advises this court in his brief in support of his petition that he is seeking this special writ to require the circuit court to rule on his motion to dismiss so that, in the event of an unfavorable ruling, he can then proceed with a petition for writ of prohibition in this court. Alternatively, he requests that if a prior ruling by the circuit court is not necessary, we treat his petition as one for prohibition. The State in its brief supporting its response argues that the writ of procedendo ad judicium is not an appropriate remedy. Rather, the State contends, this court can use the writ of mandamus to accomplish the same purpose, and mandamus is a power of this court enumerated in the State Constitution. See Ark. Const, art. 7, § 4.

The State, however, concedes that a. prima facie case for violation of the speedy-trial rules has been pled by Cranford. The State further states that after discussing this matter with local prosecutors, it has no objection to this court’s treating the petition as one for prohibition and granting it.

We agree that a prima facie speedy-trial violation has been pled. Noting no objection from the State, which has the burden of proving speedy-trial compliance [see McConaughey v. State, 301 Ark. 446, 784 S.W.2d 768 (1990)], we treat the petition as one for prohibition and grant the same.


text:
    William L. SEATON v. STATE of Arkansas
    CR 96-65
    920 S.W.2d 13
    Supreme Court of Arkansas
    Opinion delivered April 22, 1996

      Appellant, pro se.

    No response.
   Per Curiam.

On May 12, 1995, judgment was entered reflecting that William L. Seaton had entered a plea of nolo con-tendere to four counts of sexual abuse and been sentenced to an aggregate term of twenty years’ imprisonment. On September 11, 1995, Seaton filed in the trial court a pro se petition pursuant to Criminal Procedure Rule 37 to vacate the judgments. The trial court denied the petition, and appellant Seaton has lodged the record in this court on appeal. He now seeks by motion appointment of counsel.

The motion is denied and the appeal dismissed. It is clear that the appellant could not prevail on appeal because the Rule 37 petition filed in the trial court was not timely. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appeal is wholly without merit. See 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).

Criminal Procedure Rule 37.2 (b) provides that a petition under the rule is untimely if not filed within ninety days of the date judgment was entered after a plea of guilty. The ninety-day period for filing petitions also applies to pleas of nolo contendere. The plea of nolo contendere to a charge in a criminal case is an admission of guilt in the criminal case. See Patterson v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995), citing Hudson v. U.S., 272 U.S. 451 (1926). Criminal Procedure Rule 24, Rule 25, and Rule 26, which govern pleas of guilty and nolo contendere, make no distinction between the pleas for the purposes of the rule. See Ashby v. State, 297 Ark. 315, 761 S.W.2d 912 (1988). A judgment founded on a plea of nolo contendere may be challenged in a proceeding under our postconviction rule. See Cusick v. State, 259 Ark. 720, 536 S.W.2d 119 (1976).

Here, judgment was entered on May 5, 1995, but the petition for postconviction relief was not filed until September 11, 1995, which was more than four months after the judgment was entered. The time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on an untimely petition for postconviction relief. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). As the appellant did not file his petition for postconviction relief within the ninety-day period set by Rule 37 to raise such claims, he was entided to no relief under the rule. Smith v. State, 321 Ark. 195, 900 S.W.2d 939 (1995).

Motion denied and appeal dismissed.


author: BRADLEY D. Jesson, Chief Justice.

text:
    ARKANSAS STATE MEDICAL BOARD v. Scott L. BOLDING, D.D.S., and Springdale Memorial Hospital Association, Inc.
    95-728
    920 S.W.2d 825
    Supreme Court of Arkansas
    Opinion delivered April 29, 1996

      Cearley Law Firm, by: Robert M. Cearley, Jr., for appellant.

      Everett, Mars & Stills, by: Thomas A. Mars, for appellee Scott L. Bolding, D.D.S.

      Cypert, Crouch, Clark & Harwell, by: Charles L. Harwell, for appellee Springdale Mem. Hosp. Ass’n, Inc.
   BRADLEY D. Jesson, Chief Justice.

The appellant, Arkansas State Medical Board (“Medical Board”) brought suit against appel-lees Scott Bolding, D.D.S., a dentist, and the Springdale Memorial Hospital Association, Inc. (“Hospital”). The Medical Board sought to enjoin Dr. Bolding from engaging in the unlawful practice of medicine, and the Hospital from aiding and abetting Dr. Bolding’s unlawful practice of medicine on its premises. The trial court granted summary judgment in favor of Dr. Bolding and the Hospital on the grounds that Dr. Bolding was practicing dentistry under the authority granted to him by the Arkansas State Board of Dental Examiners (“Dental Board”). Because the Dental Board had not been joined as a party defendant, the trial court reasoned that it could not grant the relief requested by the Medical Board without exposing Dr. Bolding to inconsistent determinations by two different state agencies. While we agree that the Dental Board was a necessary party, we hold that the trial court erred in granting summary judgment and reverse and remand.

The facts as set out in the Medical Board’s complaint are as follows. The Medical Board, established pursuant to Ark. Code Ann. § 17-95-301 (Repl. 1995), is the licensing and regulatory authority for the practice of medicine within the State. Pursuant to Ark. Code Ann. § 17-95-402 (Repl. 1995), the Medical Board may seek an injunction in chancery court against any person who attempts to practice medicine without a license. The “practice of medicine” includes “ [performing any kind of surgical operation upon a human being.” Ark. Code Ann. § 17-95-202(2) (E) (Repl. 1995).

The Medical Board alleged that Dr. Bolding had been granted privileges at the Hospital to perform medical procedures that he was not licensed by the Medical Board to perform. Particularly, these procedures included blepharoplasties (eyelid surgeries), rhytidecto-mies (facelifts), rhinoplasties (nose surgeries), otoplasties (ear surgeries), scalp surgeries, and cleft lip repairs. According to the Medical Board, these procedures are reconstructive plastic surgical procedures that require specialized medical training and a medical license to perform. The Medical Board sought to enjoin Dr. Bold-ing from engaging in the unlawful practice of medicine, claiming that his performance of these procedures was detrimental to the health, safety, and welfare of the people of the State of Arkansas. The Medical Board likewise sought to enjoin the Hospital from aiding and abetting Dr. Bolding’s unlawful practice of medicine.

Dr. Bolding and the Hospital filed separate answers to the Medical Board’s complaint. Though Dr. Bolding admitted to having performed some of the procedures mentioned in the complaint, he claimed that, according to the Dental Board, these procedures constituted the “practice of dentistry,” which is exempt under the Medical Practices Act’s licensing requirement under Ark. Code Ann. § 17-95-203(3)(A) (Repl. 1995). Both Dr. Bolding and the Hospital responded that the Dental Board was a party whose join-der was required under Ark. R. Civ. P. 19.

Dr. Bolding and the Hospital filed separate motions for summary judgment. Attached to the Hospital’s motion was the affidavit of Anne Buss, the Hospital’s medical staff coordinator, who averred that she had previously sought and received an opinion from the Dental Board to the effect that the privileges requested by Dr. Bolding were within the American Dental Association’s approved definition of oral and maxillofacial surgery, a specialty in which Dr. Bolding was “licensed” by the Dental Board. In response to the motion for summary judgment, the Medical Board submitted the affidavit of Dr. James A. Beckman, a plastic surgeon, who averred that the cosmetic surgeries being performed by Dr. Bolding constituted the practice of medicine, and that blepharoplasties and rhy-tidectomies did not fall within the practice of dentistry.

Following a hearing on the motions, the trial court announced from the bench that it was granting summary judgment in favor of Dr. Bolding and the Hospital on the basis that the Dental Board was a necessary party. The trial court concluded that, since the Dental Board had not been joined in the lawsuit, it could not grant the relief requested by the Medical Board without exposing Dr. Bold-ing and the Hospital to inconsistent determinations by two different state agencies. The Medical Board now appeals from the trial court’s order granting summary judgment.

The Medical Board first argues that the trial court erred in granting summary judgment and effectively dismissing the lawsuit rather than joining the Dental Board as a party under Ark. R. Civ. P. 19, governing joinder of persons needed for just adjudication. That rule provides, in pertinent part:

(a) Persons to Be Joined If Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or, (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter, impair or impede his ability to protect that interest, or, (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest. If he has not been joined, the court shall order that he be made a party. If he should join as a plaintiff, but refuses to do so, he may be made a defendant; or, in a proper case, an involuntary plaintiff.

(Emphasis added.) Pursuant to this rule, we hold the Dental Board should have been joined as a necessary party, as it is the regulatory agency that is vested with the authority to decide what constitutes the practice of dentistry. Our conclusion is consistent with our previous recognition that officials who are charged with enforcing a statute, rule, or order that is being challenged, or whose presence is needed to afford complete relief to the parties, are necessary parties. Pulaski County v. Jacuzzi Brothers Div., 317 Ark. 10, 875 S.W.2d 496 (1994); citing 7 Wright, Miller & Kane, Federal Practice and Procedure: Civil, 1617 (1986); 26 Fed. Proc., L.Ed., 59:116, 117; IBM Credit Corp. v. Pulaski County, 316 Ark. 580, 873 S.W.2d 161 (1994).

In the present case, Dr. Bolding applied for and allegedly received a “license” from the Dental Board to practice oral and maxillofacial surgery. While a copy of the “license” does not appear in the record, an August 30, 1993, letter from the Dental Board to the Hospital indicates that Dr. Bolding was so licensed on July 6, 1993, and, according to the Board, was “well within the scope of oral and maxillofacial surgery in applying for the privileges he ha[d] requested” at the Hospital, and was allowed by virtue of his training to perform the procedures at issue. As the Medical Board argues that the Dental Board exceeded its authority in expanding the definition of dentistry beyond its statutory limits, we conclude that joinder of the Dental Board was necessary to afford complete relief to the existing parties under Rule 19. It follows that, under the mandatory language of the rule, see Newbern, Ark. Civil Prac. and Proc. (2d ed. 1993), § 5-3, the trial court erred in granting summary judgment and effectively dismissing the case with prejudice rather than ordering joinder of the Dental Board. The Medical Board further claims that summary judgment was improper because the case presented both a question of law, whether the Dental Board exceeded its authority by expanding the definition of dentistry beyond its statutory limit, and a question of fact, whether the procedures in question fall within this statutory definition.

In determining whether summary judgment was proper, we look to the following guideposts recently summarized in Renfro v. Adkins, 323 Ark. 288, 295-296, 914 S.W.2d 306, 309-310 (1996):

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.
It is further well-settled that once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact.

(Citations omitted.)

Dr. Bolding and the Hospital ask us to affirm the trial court’s decision in light of the Dental Board s letter opinion that Dr. Boldings’s requested procedures fall within the practice of dentistry. The “practice of dentistry” is defined in Ark. Code Ann. § 17-82-102(1)(A) (Repl. 1995), and includes:

(i) Examination, diagnosis, treatment, repair, prescription, and surgery of or for any disease, disorder, deficiency, deformity, condition, lesion, injury, or pain of the human oral cavity, teeth, gingivae, and soft tissues; and
(ii) The diagnosis, the surgical and adjunctive treatment of the diseases, injuries, and defects of the human jaws and associated structures.

Ordinarily, agency interpretations of statutes are afforded great deference, even though they are not binding. Ark. Dep’t Human Servs. v. Greene Acres Nurs. Homes, 296 Ark. 475, 757 S.W.2d 563 (1988); Arkansas Pub. Serv. Comm’n v. Allied Tel. Co., 274 Ark. 478, 625 S.W.2d 515 (1981). We have further held that the interpretation given a statute by the agency charged with its execution is highly persuasive, and while it is not conclusive, it should not be overturned unless it is clearly wrong. Pledger v. Boyd, 304 Ark. 91, 799 S.W.2d 807 (1990); Arkansas Contractors Licensing Bd. v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129 (1988)(emphasis added). However, we hesitate to afford any special deference to the Dental Board’s letter to the Hospital approving Dr. Bolding’s requested procedures in light of the scant record before us, especially when we consider the fact that our statute defining the practice of dentistry has not been previously subjected to judicial scrutiny or time-tested agency interpretations. See State Med. Soc. v. Bd. of Exam. in Podiatry, 546 A.2d 830 (Conn. 1988).

As mentioned above, Dr. Bolding’s “license” to practice oral and maxillofacial surgery is missing from the record. The Dental Board’s letter merely indicates that it adheres to the definition of oral and maxillofacial surgery adopted by the American Dental Association:

The specialty of dentistry which includes the diagnosis, surgical and adjunctive treatment of diseases, injuries and defects involving both the functional and esthetic aspects of the hard and soft tissues of the oral and maxillofacial regions.

An explanation of the scope of Dr. Bolding’s “license” is also missing from the record. The Medical Board maintains that the practice of a specialty in dentistry is nothing more than a recognition by the Dental Board that a person has met certain certification and educational requirements so that he or she may announce a specialty. The Medical Board further asserts that there is nothing in the Dental Practices Act that would prohibit a general dentist from performing the procedures at issue in this case. With these matters in mind and in the absence of a fully developed record, we decline to hold as a matter of law that the “practice of dentistry” or the definition of “oral and maxillofacial surgery” includes such procedures as scalp surgeries, eyelid surgeries, and facelifts.

The Medical Board presented the affidavit of Dr. Beck-man, a plastic surgeon who averred that the cosmetic surgeries being performed by Dr. Bolding constituted the practice of medicine and that blepharoplasties and rhytidectomies did not fall within the practice of dentistry. Also presented was the deposition of Dr. W. Ray Jouett, Chairman of the Medical Board, who testified that following a meeting at which several plastic surgeons were present, the Board voted to seek an injunction against Dr. Bolding, as it determined he was engaged in the practice of medicine. According to Dr. Jouett, the factual question presented to the Board at the time was not whether the procedures constituted dentistry, but whether they constituted the practice of medicine. We believe that the affidavit of Dr. Beckman and the deposition of Dr. Jouett created a mixed question of law and fact, precluding summary judgment. In evaluating the evidence presented under our standards for reviewing summary judgments, we must conclude that the trial court erred in granting summary judgment in favor of Dr. Bolding and the Hospital.

It is obvious there exists a disagreement between the Medical Board and the Dental Board as to where the practice of dentistry stops and the practice of medicine commences. It is a significant question and one which should only be addressed upon a fully developed record with all necessary parties before the court.

Reversed and remanded.


author: Bradley D. Jesson, Chief Justice.

text:
    Keenan WINTERS v. Joycelyn ELDERS, M.D., and The University of Arkansas for Medical Sciences
    95-1069
    920 S.W.2d 833
    Supreme Court of Arkansas
    Opinion delivered April 29, 1996
    [Petition for rehearing denied June 3, 1996.]

      Oscar Stilley, for appellant.

      Fred H. Harrison, Gen. Counsel, and Jeffrey A. Bell, Assoc. Gen. Counsel, for appellees.

      Dudley and Brown, JJ., not participating.

   Bradley D. Jesson, Chief Justice.

The appellant, Keenan Winters, brought an illegal-exaction suit against appellees Dr. Joycelyn Elders and the University of Arkansas for Medical Sciences (“UAMS”). Winters claimed that, for the years 1988 through 1993, while serving as Director of the Arkansas State Department of Health (“Health Department”), Dr. Elders illegally received dual compensation from UAMS and the Health Department. The chancellor granted Dr. Elders’s and UAMS’s motion for summary judgment and dismissed Winters’s complaint. He raises three issues on appeal. We affirm.

We must affirm this appeal without reaching the merits due to two procedural flaws. First, because Winters has failed to abstract the trial court’s judgment, his abstract is flagrandy deficient under Ark. Sup. Ct. R. 4-2 (a) (6). We have long held that the judgment appealed from is a bare essential of an abstract. D. Hawkins, Inc. v. Schumacher, 322 Ark. 437, 909 S.W.2d 640 (1995); Bohannon v. Arkansas State Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995); Logan County v. Tritt, 302 Ark. 81, 787 S.W.2d 239 (1990); Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987); Zini v. Percival, 289 Ark. 343, 711 S.W.2d 477 (1986); Farrco Construction et al. v. Coleman, 267 Ark. 159, 589 S.W.2d 573 (1979); Wells v. Paragon Printing Company, 249 Ark. 950, 462 S.W.2d 471 (1971). See also, Smith, Arkansas Practice Abstracting the Record, 31 Ark. L. Rev. 359 (1977). As we have stated many times, the reason for our abstracting rule is basic — there is only one transcript, there are seven judges on this court, and it is impossible for each of the seven judges to examine the one transcript. Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995); Franklin v. State, 318 Ark. 99, 884 S.W.2d 246 (1994); Dixon v. State, 314 Ark. 378, 863 S.W.2d 282 (1993).

A second deficiency in Winter’s appeal is that a copy of the chancellor’s letter opinion does not appear in the record. Winters notes in his abstract that this letter opinion was “inadvertently omitted” from the record, and abstracts what he purports to be the entirety of the letter opinion. The absence of the letter opinion from the record is particularly problematic in this case, as Winters attacks specific findings in the chancellor’s opinion in each of his three allegations of error: (1) the chancellor erred in finding that Dr. Elders’s compensation from both UAMS and the Health Department did not violate Arkansas law; (2) the chancellor erred in finding that he was not entitled to summary judgment as to whether the contracts at issue were utilized to avoid the purpose or spirit of the Regular Salary Procedures and Restrictions Act; and (3) the chancellor erred in finding that Dr. Elders had a valid defense to the repayment of sums in excess of the line-item maximum for her position as Director of the Health Department. The letter opinion is omitted from the record, and, accordingly, Winters cannot demonstrate error. The burden was on the appellant to bring up a record sufficient to show that the chancellor was wrong. See King v. Younts, Chief of Police, 278 Ark. 91, 643 S.W.2d 542 (1982); Armbrust v. Henry, 263 Ark. 98, 562 S.W.2d 598 (1978); A.R.A.P. 6(b).

In Hedge v. State, 317 Ark. 104, 877 S.W.2d 90 (1994), the appellant asked us to issue a writ of certiorari to the court reporter to produce “part of the trial proceedings” that were not in the record. His request came more than three months after the record was lodged and less than two weeks before his briefs were due. While we granted the petition and a motion to stay the briefing schedule, we noted that:

hereafter counsel will be expected to examine the record before, or immediately after, it is lodged in this court to determine that nothing essential (and designated) is omitted, if so, to specifically identify the omitted material, and to exercise due diligence in moving to supplement the record.

(Emphasis added.) Our opinion in Hedge was intended to put the members of the bar on notice that we would require parties to exercise due diligence in presenting motions to supplement the record with omitted materials. While Winters filed a petition for writ of certiorari to complete the record after the case was orally argued, any attempt to supplement the record after the case has been submitted does not satisfy our due-diligence standard.

Affirmed.

BROWN, J., not participating.

Special Justice JOHN R. Eldridge, III, joins in this opinion.


author: Robert H. Dudley, Justice.

text:
    Jason Ryan CARTER v. STATE of Arkansas
    CR 95-1085
    921 S.W.2d 583
    Supreme Court of Arkansas
    Opinion delivered April 29, 1996

      Clarence W. Cash, Jr, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

On December 18, 1993, Jason Hatcher was shot and killed in the parking lot of Harvest Foods in Sherwood. Tim McGarrity was shot in the leg, and Derek Ham-monds narrowly escaped injury, as he was in the line of fire. There was a large gathering of teenagers in the parking lot at the time, and the shootings followed altercations among several of them. There was proof that more than one weapon was fired, and there was testimony that appellant fired one of the weapons. The State conceded that it could not prove which one of the weapons fired the shot that killed Hatcher or the shot that injured McGarrity.

Appellant was charged in the shootings, along with Michael Ryan Webb, Chad Jones, and James Gross. The cases were severed, and appellant was tried and convicted of first-degree murder, first-degree battery, and aggravated assault. Appellant was sentenced to sixty years on the first-degree murder conviction, thirty years on the battery conviction, and ten years on the aggravated-assault conviction. Appellant’s sole argument on appeal is that the evidence is insufficient to convict him on any of the three counts. We find no merit in his argument and affirm.

Appellant argues to this court, as he argued to the court below, that the State failed to prove that the bullets removed from Hatcher and McGarrity came from his gun; therefore, his convictions for first-degree murder and first-degree battery should be reversed. We disagree, as the evidence clearly supports a conviction for accomplice liability. We have said that “[w]hen two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both.” Robinson v. State, 318 Ark. 33, 36, 883 S.W.2d 469, 471 (1994).

Appellant admitted that he drove himself and two codefen-dants to and from the scene of the shootings in his blue Honda Accord. He stated that one of the codefendants, Michael Ryan Webb, put a rifle in the trunk when appellant picked him up at his house. He admitted that he opened the trunk so that Webb could retrieve and use the gun. Appellant said that he brought a .38 caliber revolver with him, which he fired at the scene, although he testified that he shot into the air and not at anyone.

The jury heard extensive testimony from seven State’s witnesses concerning the altercation. Several witnesses described appellant’s car, stated that they saw the driver firing a gun toward the crowd, and observed that Hatcher and McGarrity had been wounded immediately thereafter. McGarrity, the battery victim, told the jury about his fist fight with one of the codefendants, the volley of gunshots that took place soon after appellant’s car arrived, McGarrity’s gunshot wound, and Hatcher’s fatal wound. The jury heard expert ballistics testimony regarding the weapons recovered from the defendants, and the conclusion that a handgun had been fired at the scene. A state medical examiner testified that Hatcher had died from the gunshot wound sustained at the shooting.

Appellant’s witness, codefendant James Gross, testified at length about the fist fight with McGarrity, appellant’s arrival with the other codefendants, Gross’s retrieval of the handgun from appellant, and his firing it himself. Both Gross and appellant testified that they fled the crime scene and all four codefendants met later at Chad Jones’s apartment.

The evidence is abundant that appellant participated as an accomplice to the murder and the battery. An accomplice is one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of an offense, solicits, advises, encourages, or coerces the other person to commit the offense, or aids, agrees to aid, or attempts to aid the other person in planning or committing the offense. Ark. Code Ann. § 5-2-403 (Repl. 1993); see also Allen v. State, 324 Ark. 1, 918 S.W.2d 699 (1996). We have said that relevant factors in determining the connection of an accomplice to a crime are “the presence of the accused in proximity of the crime, the opportunity to commit the crime, and an association with a person involved in the crime in a manner suggestive of joint participation.” Banks v. State, 315 Ark. 666, 673, 869 S.W.2d 700, 704 (1994). The State presented evidence by which the jury could conclude that appellant aided in the commission of these offenses; therefore, his culpability was not affected by which bullets actually killed Hatcher and wounded McGarrity. Robinson v. State, 318 Ark. at 36, 883 S.W.2d at 471; Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991).

Appellant argues that his aggravated-assault conviction cannot stand because the State failed to prove that he “purposely engaged in conduct that created a substantial danger of death or serious physical injury to another person.” Ark. Code Ann. § 5-13-204 (emphasis added). This argument is without merit.

Section 5-2-202 of the Arkansas Code Annotated provides that “a person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.” Id. § 5-2-202(1). The rule is well setded that intent is seldom capable of proof by direct evidence, but must be ascertained by the circumstances surrounding the offense. Akbar v. State, 315 Ark. 627, 869 S.W.2d 706 (1994); Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991). We have said that “it is axiomatic that one is presumed to intend the natural and probable consequences of his actions.” Akbar, 315 Ark. at 629, 869 S.W.2d at 707. As stated earlier, the jury heard testimony that appellant drove himself and two codefendants to the scene of the shooting, that he brought and fired a gun at the scene, assisted Webb in retrieving a rifle from the trunk of the car, and that Derek Hammonds was in the line of fire and narrowly escaped injury. This is ample evidence for the jury to conclude that he purposely engaged in conduct that created a substantial danger of death or serious physical injury to Hammonds. See Robinson v. State, 318 Ark. at 35, 883 S.W.2d at 470.

In summary, reviewing all of the evidence in the light most favorable to the State, as we must do, Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993), we find it sufficient to convict appellant on all three counts. We affirm the decision of the trial court.


author: DAVID Newbern, Justice.

text:
    Barbara KING, Robert Griffin, Marvin Jarrett, and the Phillips County Election Commission v. Geraldine R. DAVIS and Arlanda Jacobs
    96-60
    920 S.W.2d 488
    Supreme Court of Arkansas
    Opinion delivered April 29, 1996

      David Solomon, for petitioners.

      Wilson & Assocs., by: J.L. Wilson, for respondents.
   DAVID Newbern, Justice.

Geraldine R. Davis and Arlanda Jacobs were unsuccessful candidates for separate justice of the peace positions in the general election held November 8, 1994. They sued the successful candidates and the members of the Phillips County Election Commission alleging numerous irregularities and illegalities in the conduct of the election and asked that they be declared the winners or that the election results be declared void. The Phillips County Circuit Court concluded that the irregularities and illegal conduct by public officials in the election process rendered the election void and ordered that a new election be held March 12, 1996. By order ofjanuary 29, 1996, we stayed the March 12 election.

On February 16, 1996, Barbara King, Robert Griffen, and Marvin Jarrett, the members of the Election Commission, petitioned for certiorari seeking “to hold void the requirement that [the Commissioners] ... hold a special election ... or in the alternative stay the calling of an election until an appeal can be heard ...” The Commissioners conclude the brief accompanying their petition as follows: “The writ of Certiorari should be granted as the Circuit Judge clearly exceeded his authority to void an election and require another to be held.”

Two issues are thus presented. To the extent we are asked to set aside the Trial Court’s judgment voiding the elections we decline to issue the writ. We grant the writ as to that part of the judgment requiring the Commissioners to hold a new election.

1. Void elections

The Commissioners focus on the characterization by the complainants in the Trial Court of each of their separate causes of action as “an election contest.” They argue our decision in Binns v. Heck, 322 Ark. 277, 908 S.W.2d 328 (1995), redefined the proof necessary to succeed in an election contest. Binns v. Heck was a contest brought by a losing alderman candidate who alleged that if illegal votes cast in favor of the declared winner were purged he would have won. We held, as we had held many times in the past, that “a pleading which merely alleges the conclusion that the contestant received more legal votes than the contestee without alleging facts which would disclose that the result of the election was actually different from that shown by the returns does not state a cause of action,” citing Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980), and Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306 (1967).

In Phillips v. Earngey, 321 Ark. 476, 901 S.W.2d 782 (1995), and in Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992), we distinguished between election contests and actions brought to declare an election void. We did so, however, only for the purpose of discussing whether an election commission might be a proper party. We did nothing in those cases to disturb the conclusion we reached in Files v. Hill, supra, that “the mere fact that one bringing suit only seeks to have the election declared void and does not seek the office for himself, or even for the candidate he espouses, does not keep the proceeding from being categorized as an election contest.” See also Spires v. Election Comm’n of Union County, 302 Ark. 407, 790 S.W.2d 167 (1990).

There thus are two types of election contests. When it is of the type where the contestant seeks to oust and replace the certified winner, the proof must be as we stated in Binns v. Heck, supra, but a contest of the election in general, seeking to have it declared void altogether is different. Both types were pleaded here. The holding of the Trial Court in this case makes it of the latter sort, and we must decide whether certiorari should issue to set aside the holding which voided the elections.

Certiorari lies to correct proceedings erroneous on the face of the record when there is no other adequate remedy, and it is available in the exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993); Sexton v. Supreme Court, 297 Ark. 154-A, 761 S.W.2d 602 (1988); Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974). It will not take the place of an appeal unless the right of appeal has been lost by no fault of the aggrieved party. Hendricks v. Parker, 237 Ark. 656, 375 S.W.2d 811 (1964); Hyder v. Newcomb, 234 Ark. 486, 352 S.W.2d 826 (1962). Certiorari may only be resorted to in cases when an excess of jurisdiction is apparent on the face of the record. See Lupo v. Lineberger, supra. A writ of certiorari is a remedy to quash irregular proceedings “but only for errors apparent on the face of the record; not to look beyond the record to ascertain the actual merits of a controversy or to control discretion or to review findings of facts.” Id.

The Commissioners argue:

There is no basis to void an election in a contest case as set out in Binns, supra. But even so the test to void an election of Patton v. Coates, 41 Ark. 111 (1883), Jones v. Glidewell, 53 Ark. 161 (1890), Baker v. Hendrick, 225 Ark. 778, and Files v. Hill, 268 Ark. 106 594 S.W.2d 836 (1980), [is] far from being met in the findings of the Circuit Judge.

By citing the line of cases beginning with the landmark Patton v. Coates, the Commissioners all but concede the Trial Court did not act in excess of his jurisdiction by voiding the election. We have no doubt a circuit court may set aside an election in accordance with the rule stated in the Patton case:

The wrong should appear to have been clear and flagrant; and in its nature, diffusive in its influences; calculated to effect more than can be traced; and sufficiently potent to render the results really uncertain. If it be such, it defeats a free election, and every honest voter and intimidated or deceived voter is aggrieved thereby ... If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected.

Whether the Trial Court’s findings were sufficient to do it in this case is, of course, an issue we may determine on appeal if an appeal is proper and if it is pursued in this matter. The Trial Court did not act without jurisdiction or in excess of its jurisdiction by holding the election void.

2. New election

As we held recendy in Binns v. Heck, supra, and in Phillips v. Earngey, supra, there is no statutory or other authority for a trial court to direct an election commission to call a new election after an invalid previous election. We held in both cases that, for the court to direct an election commission to do so would confer a power that does not exist and establish a remedy only the General Assembly may create.

Cases in which we have held certiorari appropriate when an error appears on the face of the record include Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994) (order of body attachment or arrest without opportunity to be heard); Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994) (denial of appeal bond in accordance with statute superseded by rule); and Midwest Buslines, Inc. v. Munson, 274 Ark. 108-A, 622 S.W.2d 187 (1981) (issuance of a temporary restraining order without ordering expeditious hearing as required by rule).

In view of our decisions in Binns v. Heck, supra, and Phillips v. Earngey, supra, the error in this case of ordering the Phillips County Election Commission to hold a new election was clear on the face of the record, and issuance of certiorari is thus warranted unless, of course, an appeal would suffice. Justices of the peace are elected every two years. Ark. Const, art. 7, § 38. The election ordered was to supplant one held in 1994. We are now well into the second year of the term of office for which the election was to be held. By the time an appeal could be decided, the 1996 election would be upon us. Certiorari is proper in this circumstance. We grant the writ to the extent of setting aside the order commanding the Phillips County Election Commission to hold a new election to fill the justice of the peace positions at issue.

Writ of certiorari granted in part and denied in part.

Dudley, Glaze, and Corbin, JJ, not participating.

Special Justices ERIC W. Bishop, Ronald L. Boyer, and Constance G. Clark join the opinion.


author: Tom Glaze, Justice.

text:
    Albert BELL v. STATE of Arkansas
    CR 95-417
    920 S.W.2d 821
    Supreme Court of Arkansas
    Opinion delivered April 29, 1996
    [Petition for rehearing denied June 3, 1996.]

      J. Bradley Green, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.

      Dudley, J., not participating.

   Tom Glaze, Justice.

Appellant Albert Bell was charged with two counts of capital felony murder and was convicted of two counts of first-degree murder. He was sentenced to two consecutive life sentences. According to the state’s evidence, Bell and Terry Sims went to Cloud’s Grocery Store in Casscoe, Arkansas County, where Sims shot store employees Julian Russell and Mary Lou Jones while Bell took money from the cash register. Bell was sixteen years old when these crimes were committed. See Bell v. State, 317 Ark. 289, 877 S.W.2d 579 (1994) (court upheld trial court’s denial of Bell’s pretrial motion to transfer case to juvenile court). Bell brings this appeal, raising three points for reversal. However, we do not reach all three because we must reverse for prejudicial error found as a result of this court’s examination of the record required under Ark. Sup. Ct. R. 4-3(h). We consider that issue first.

Prior to trial, Bell moved to suppress any statements he gave as a result of an interrogation by law enforcement authorities on January 8, 1992. He alleged any statements attributed to him were involuntary and inadmissible. The record reveals that Sergeant Gary Allen and Officer John McCord interrogated Bell, but only McCord was present to testify at the suppression hearing. Bell’s counsel objected to Allen’s absence and counsel’s inability to cross examine Allen. The prosecutor responded that he was not required to produce all of the state’s witnesses, and anything Allen had to testify to at the hearing would already have been testified to by McCord. The trial court overruled defense counsel’s objection, and after hearing the testimony of McCord, Bell, and Bell’s father, the trial court denied Bell’s motion to suppress.

Recently, in Foreman v. State, 321 Ark. 167, 901 S.W.2d 802 (1995), we cited the rule that, whenever an accused offers testimony that his confession was induced by violence, threats, coercion or offers of reward, the state has a burden to produce all material witnesses who were connected with the controverted confession or give an explanation for their absence. In determining whether a witness is “material,” this court has stated that there must be some connection between the witness and the alleged acts of coercion or an opportunity to observe the alleged coercion. Id.

Here, Allen was undoubtedly a material witness because he took part in interrogating Bell and in obtaining statements from him. Bell testified that Allen acted as a “bad cop,” and McCord as the “good cop” during Bell’s interrogation. Bell further claimed Allen did most of the questioning, and it was during Allen’s questioning when Bell asked for an attorney, and Allen said, “No.” Additionally, Bell asserted Allen would get upset, hit the desk and wall, and when Bell asked for an attorney, Allen asked, “[W]hy did [you] need a lawyer, because [you’re] guilty?”

In sum, Bell’s suppression motion raised the issue of the involuntariness of his statements to the police, and because Detective Allen was a material witness connected with those controverted statements, it became the state’s burden to produce Alien as a witness at the suppression hearing or to explain his absence. The state did neither. The prosecutor suggested McCord’s and Allen’s testimonies would be the same, but such a suggestion is purely self-serving. Bell should have been afforded the opportunity to cross examine both witnesses concerning their respective roles when questioning Bell. See Williams v. State, 278 Ark. 9, 642 S.W.2d 887 (1982). We would add that it is immaterial that Allen later testified at the trial because Ark. Code Ann. § 16-89-107(b) (1987) requires the trial judge to determine voluntariness by hearing evidence out of the presence of the jury. Id. We point out that the deficiency in the trial court’s ruling does not in itself entitle Bell to a new trial. Instead, the cause is remanded for a new hearing on Bell’s suppression motion. A new trial should be ordered only if the trial judge finds Bell’s confession to have been involuntary. Williams, 278 Ark. 9, 14, 642 S.W.2d 887, 890 (supplemental opinion denying rehearing); see also Moore v. State, 309 Ark. 166, 828 S.W.2d 599 (1992); Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980).

Because this case is remanded for a suppression hearing, we do not reach Bell’s argument that the trial court erred in finding his custodial statements should have been suppressed, since the trial judge will be called upon to rule on that argument after he conducts the new hearing. We only emphasize that the error we find in this appeal relates only to the state’s failure to meet its burden in producing Allen as a witness.

Bell raises two other points we still must address. The first asserts the trial court erred in denying his motion to change venue, and, second, he contends that the state unconstitutionally excluded African-Americans from the jury.

The thrust of Bell’s venue argument is that he cannot obtain a fair trial or impartial jury in Arkansas County. He sets forth a number of reasons. First, he refers to another pair of murders that took place at Cloud’s Grocery Store in Casscoe in 1975. Those murders were committed by Charles Pickens, who was eventually executed for the crimes on May 12, 1994 — five months prior to Bell’s trial. Third, Bell introduced news articles and testimony describing all the above events, as well as the recent crimes with which Bell was charged. Plus, Bell offered articles relating a prison escape involving him and Sims, and an article reflecting the prosecutor’s remark that the state expected problems in selecting a jury for Bell’s trial.

It is settled law that a change of venue should be granted only when it is clearly shown that a fair trial is not likely to be had in the county. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). The burden is on the defendant, and the decision of the trial judge will be upheld unless it is shown that there was an abuse of discretion in denying the motion. Id.

Initially, we mention Bell’s eight uniform affidavits wherein eight county residents averred his or her respective belief that the minds of inhabitants of the county are so prejudiced against the defendant that a fair and impartial trial cannot be obtained. This court has held that those witnesses who state the appellant cannot receive a fair trial must be able to show that they either have a general knowledge as to the state of mind of the inhabitants of the whole county, or they are cognizant of prejudice existing throughout the whole county. Id. Further, affidavits that cite little or nothing beyond an affiant’s own convictions that a fair trial is not possible are insufficient. Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Here, the affidavits submitted by Bell fail to meet the well-known case law principals set out above. Additionally, we note that only one of the eight affiants testified in court, and when doing so, countered her earlier averments. For example, as a witness, she said that she had not heard anyone express an opinion that Bell was guilty, and in fact she heard some people express the opinion they thought Bell was not guilty.

Bell presented three news media witnesses who related the numerous stories that were published or aired in the county, concerning the crimes committed not only by Bell and Sims, but also concerning Pickens’s murders and execution. However, one news editor testified that his paper is published five days a week with a daily circulation of 3,900 out of a household count of 12,500, and, while his Tuesday paper is free to all households, only four articles regarding Bell, Sims, or Pickens had appeared in the Tuesday editions. An editor of another newspaper said that her paper is published only once a week with a circulation of 1,800. She also stated her paper produced only five articles concerning Bell, Sims or Pickens during the period from December 1992 through March 1994.

Finally, Bell submits the fact that a number of the veniremen were excused because they could not be impartial is reason to conclude a fair trial could not be obtained. The trial court, however, emphasized that the chief reason why the remaining veniremen were excused from duty was because of their beliefs regarding the death penalty, not pretrial publicity. The court has held that voir dire of the jury provides adequate safeguards against pretrial publicity, Bussard, 300 Ark. 174, 778 S.W.2d 213, and there can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Gardner, 296 Ark. 41, 754 S.W.2d 518. Here, twelve jurors were seated who indicated they could make an impartial decision based solely on the evidence. After carefully considering each of Bell’s factors and the related evidence, we hold the trial court did not abuse its discretion in denying Bell’s request for a change of venue.

In his next argument, Bell argues that because only one juror was African-American, the state unconstitutionally excluded African-Americans from the jury. Bell contends because the state used three of its five preemptory strikes against African-Americans and attempted to strike the only African-American who did serve on the jury, the state demonstrated a deliberate and systematic attempt to keep African-Americans off of the jury. Additionally, Bell claims the state was overeager in its efforts to obtain for-cause strikes against five African-Americans, and this is further evidence of an unconstitutional exclusion. Finally, Bell notes that not a single African-American venireman went unchallenged by the state. On the other hand, the state contends Bell has failed to establish a prima facie case, and it gave race-neutral reasons for its strikes.

Batson v. Kentucky, 476 U.S. 79 (1986), provides that the Equal Protection Clause forbids prosecutors from challenging potential jurors solely on the basis of race. In order to prevail under Batson, the defendant must first make a prima facie case that racial discrimination is the basis of a juror challenge. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995). A prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions, or statements by a prosecutor during voir dire. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996).

In the event the defendant is able to do so, the state has the burden of showing that the challenge was not based on race. Only if the defendant makes a prima facie case and the state fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry. Sims, 320 Ark. 528, 900 S.W.2d 508. The standard of review for reversal of a trial court’s Batson ruling is whether the court’s findings are clearly against the preponderance of the evidence. Id.

In the present case, out of approximately seventy-to-eighty potential jurors, twelve veniremen who appeared were African-American. Those twelve veniremen were struck or accepted as follows: (1) Helen Hall raised her hand when the judge inquired whether any of the jury pool had a close relationship with Bell or either of the two victims. Hall stated she knew Bell’s parents, and it would create a problem for her; she was excused for cause. (2) Linda Reeves stated she could not consider the death penalty as a punishment; based on the state’s request, Reeves was excused for cause over Bell’s objection. (3) Flora Wills stated her daughter had been represented by one of Bell’s attorneys, and she knew Bell’s parents. She also was equivocal on whether she could impose the death penalty on one who was not the triggerman. The court refused to strike Wills for cause, and the state used its first preemptory strike. (4) Floid Lavine stated he had known the Bells for years, had coached Bell in peewee ball, and had been in the Bells’s home, and that he would hold the prosecutor to a higher standard in proving Bell guilty than proving a stranger guilty. Lavine was excused for cause on the state’s request and over Bell’s objection. (5) Betty Chambers stated she did not think she could live with imposing the death penalty on someone, and was excused for cause upon the state’s request and over Bell’s objection. (6) Carnetta Holloway was selected as juror no. 6. (7) Charles Higgins was excused for cause because he had experienced two strokes which prevented him from thinking fast; Bell did not object. (8) Amanda Taylor stated she could not consider imposing the death penalty, and was excused for cause; Bell did not object. (9) James Copprell stated he was close friends of the Bells and did not think he should serve on the jury. Copprell was excused for cause, and Bell did not object. (10) Darlene McNeil stated she did not know whether she could consider the death penalty as punishment, but the court refused to excuse her for cause. Over Bell’s objection, the state used a preemp-tory challenge to exclude McNeil. (11) Felicia Geans stated she could not impose the death penalty, and was excused for cause; Bell did not object. (12) Wilma Bradford stated she could not impose the death penalty, and was excused for cause; Bell did not make a specific objection to her exclusion.

The record reflects that the state initiated or joined in motions to excuse at least twenty-three potential jurors, and as determined by the trial judge, most of the exclusions, albeit African-American or otherwise, were based on the fact many of the veniremen could not impose the death penalty. In sum, even if a prima facie case had been shown to exist, we hold the foregoing reasons given for excluding African-Americans in this case were clearly race neutral. Consequently, we hold no Batson error was shown.

For the reasons above, we uphold the trial court’s rulings pertaining to Bell’s venue and Batson issues, but reverse and remand for a suppression hearing.

       When the sentence is death or life imprisonment, the court must review all errors prejudicial to the appellant in accordance with Ark. Code Ann. § 16-91-113(a). See also Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).


text:
    DIXON TICONDEROGA COMPANY v. WINBURN TILE MANUFACTURING COMPANY
    95-812
    920 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered April 29, 1996
    [Petition for rehearing denied June 3, 1996.]

      Allen Law Firm, by; H. William Allen, for appellant.

      Williams & Anderson, by: Leon Holmes, Katharine R. Cloud and John E. Tull, for appellee.

      Dudley, J., not participating.

   Tom Glaze, Justice.

Winburn Tile Manufacturing Company filed this lawsuit against Dixon Ticonderoga Company, alleging negligence, breach of express and implied warranty and deceit in the sale of products called saggers. A sagger is a type of open-top box used in the manufacturing process of tile. Specifically, newly pressed tile is placed in saggers that are then stacked on small rail-type cars that ride on a track through a kiln where extreme heat is applied to glaze the tile. Because saggers must endure shifts in temperatures from around 2300 degrees to room temperature within a twenty-four-hour period, their life span is limited.

At trial, Winburn Tile offered proof in its attempt to show Dixon had intentionally misrepresented that its saggers were manufactured with a PT-250 formula, when, in fact, another mix, PT-250A, was being used. Winburn Tile contended that Dixon’s pattern of fraudulent concealment injured Winburn in the sum of $99,682.45. The jury agreed, awarding compensatory damages in the full amount requested. The jury also awarded Winburn Tile punitive damages in the same amount. On appeal, Dixon claims the trial court erred in (1) submitting punitive damages to the jury and (2) refusing to grant a new trial due to an erroneous verdict for compensatory damages.

In its first argument, Dixon grudgingly concedes that, given this court’s standard of review, Winburn Tile’s evidence at trial was sufficient to prove its allegations of deceit. Nevertheless, Dixon argues deceit, alone, is insufficient to justify the imposition of punitive damages; it urges Winburn tile also had to show Dixon knew its deceit or misrepresentation would cause injury to Winburn.

Both parties agree that the correct law is set out in AMI3d 2217, which was given the jury. That instruction reads as follows:

In addition to compensatory damages for any actual loss that Winburn Tile may have sustained, it asks for punitive damages from the Dixon Company. Punitive damages may be imposed to punish a wrong-doer and to deter others from similar conduct. In order to recover punitive damages from the' Dixon Company, Winburn Tile has the burden of proving either:
First, that Dixon Ticonderoga knew or ought to have known, in light of the surrounding circumstances, that its conduct would naturally and probably result in damage and that it continued such conduct in reckless disregard of the consequences from which malice may be inferred; or
Second, that Dixon Ticonderoga intentionally pursued a course of conduct for the purpose of causing damage;
Or both.
You are not required to assess punitive damages against the Dixon Company, but you may do so if justified by the evidence. (Emphasis added.)

In referring to the first prong of AMI 2217 above, Dixon argues that, before punitive damages could be awarded, Winburn Tile had the burden to show Dixon knew or should have known that its deceit would cause Winburn injury, and Dixon continued its deceit in reckless disregard of the consequences. Dixon claims no evidence of such malicious knowledge or conduct was shown on its part. In sum, Dixon admits it had originally sold and shipped Winburn Tile saggers comprised of one mix, PT250, and later changed that formula or mix to PT250A without informing Dixon, but Dixon argues no evidence was introduced showing it intended Winburn any harm when making that change in formula. To the contrary, Dixon relates it offered evidence that it had some problems of thermal shock with its original PT250 formula, and it was merely trying to improve its product with the new PT250A mix. In reviewing the record, we believe there is strong evidence to support the theory that Dixon not only knew it had misrepresented its product to Winburn, but also it continued selling and shipping that defective product in reckless disregard of the consequences. That being so, malice could have been inferred, thereby entitling Winburn to the AMI 2217 and its request for punitive damages. See Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992); see also Allred v. Demuth, 319 Ark. 62, 890 S.W.2d 578 (1994).

Winburn Tile had been using saggers purchased from two companies, Ferro Corporation and Shenango Corporation, when Dixon approached Winburn about buying its saggers, which were composed of the PT250 formula. Winburn began purchasing Dixon’s product in August 1987, and carefully monitored Dixon’s first shipments to determine the quality was equal to that of Ferro’s and Shenango’s saggers. Dixon’s second shipment in October 1987, revealed serious problems, but a replacement shipment was sent in January 1988, and no further problems were detected — at least not until 1989. Winburn, being satisfied with Dixon’s saggers, used all saggers from the three companies interchangeably.

Unknown to Winburn, Dixon developed a new sagger formula, PT250A, and on September 29, 1988, its shipment to Dixon contained saggers composed of this new formula. Dixon did not disclose this change, and, in fact, Dixon’s invoices to Winburn continued to reflect the saggers shipped contained the old PT250 formula.

In 1989, Winburn Tile learned the number of saggers it was using had dramatically increased, and it set out to determine the reason. It was not until February 1990, that Winburn discovered Dixon’s saggers had laminations. Laminations are defects caused by air pockets in the product and those defects make the product less durable. The other two companies’ saggers showed no signs of lamination.

When Winburn and Dixon could not resolve their differences, this litigation ensued. During discovery, Winburn learned for the first time, from documents produced by Dixon, that Dixon had changed its formula just prior to Dixon’s September 1988 shipment. However, Dixon’s invoices to Winburn continued erroneously to reflect shipments of saggers manufactured with the original PT250 mix.

Although Dixon contends it intended no injury to Win-burn by Dixon’s misrepresentation of formulas, our review of the record reflects ample evidence from which a jury could (and obviously did) find otherwise. In this connection, Dixon admitted that its policy was to discuss with customers any material changes which would have either a positive or negative impact on performance. As previously discussed, this was never done. Dr. Robert Moore, a ceramic engineer, testified there was more talc in the PT250A formula than the PT250 mix, but the risk of putting high amounts of talc into the sagger is that the sagger will weaken. He said that in testing for the softening temperatures for these products, samples generally are sent to the customers. Dixon knew very well that any valid test given the new sagger formula must be performed at the plant where it is to be used in order to evaluate how it works in those particular conditions. Nonetheless, it shipped the new formula saggers without any suggestion that plant tests be conducted. Dixon’s knowing failures to comply with its own policies in these matters reflect a reckless disregard of consequences. The resulting problems should have been of little surprise. Besides the increase in the number of saggers Winburn incurred after the PT250 formula was changed to PT250A, Winburn paid a higher price per sagger, $3.25 to $4.00. And while Dixon discounts the advantages it derived from producing the PT250A, testimony was presented that other financial benefits were derived by Dixon from its change in formulas. In sum, we believe the jury had strong, substantial evidence from which it could reasonably find Dixon continued and financially benefited from its deceitful conduct, and at the least, should have known its conduct would cause damage to Winburn.

In its second point for reversal, Dixon asserts the compensatory damages awarded by the jury were erroneous, and the trial court erred in denying Dixon a new trial for that reason. On review, the test in these circumstances is whether the jury verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Williams v. Ingram, 320 Ark. 615, 899 S.W.2d 454 (1995). In determining on appeal whether the evidence is substantial, this court need only consider the evidence on behalf of the appellee and that part of the evidence that is most favorable to the appellee. Id.

Here, the damages awarded were for $99,682.45. The portion of that award which is specifically contested is $78,911.99, the total amount Winburn paid for the 19,279 saggers shipped and paid for after the August 1988 formula change. Dixon complains that the jury award erroneously assigned no value for any of the saggers it had shipped.

We first point out the settled rule that a properly qualified expert’s opinion constitutes substantial evidence, unless it is shown that the expert’s opinion is without reasonable basis. Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 894 (1993). To support its claim for compensatory damages, Winburn duly qualified Dr. Charles Venus as an economist who had reviewed Winburn Tile’s calculation of losses. Venus testified that the actual use Win-burn had of the new formula saggers in manufacturing tile amounted to one or two trips, although some saggers may have made it through three or four times. Even so, Venus stated, for practical purposes, Winburn received no value from the saggers. In addition, we note that the trial court, without objection, gave an instruction on fixing the amount of compensatory damages and that instruction included the following element.

[T]he difference at the time and place of Winburn Tile’s acceptance of the saggers between the value of the saggers as accepted and the value they would have had if they had been as warranted.

Winburn presented evidence that saggers are bought and sold by the truckload, and the last thing they wanted was another load of laminated or defective saggers. Dr. Moore gave his view that the PT250A saggers were unacceptable and were not suitable for use in the Winburn manufacturing process. The weight and value to be given expert witnesses lies within the exclusive province of the jury. It also is the jury’s prerogative either to believe or disbelieve any witness. Id. Considering the foregoing testimony, we conclude the jury had substantial evidence before it.

For the reasons set out above, we affirm.


author: TOM GLAZE, Justice.

text:
    Dorothy J. SMITH v. QUALITY FORD, Inc.
    95-1041
    920 S.W.2d 497
    Supreme Court of Arkansas
    Opinion delivered April 29, 1996

      John W. Walker, P.A., by: John W. Walker and Mark Burnette, for appellant.

      Everett O. Martindale, for appellee.
   TOM GLAZE, Justice.

On June 15, 1987, Quality Ford hired Dorothy Smith as an officer manager, and this litigation ultimately ensued as a result of the company’s discharge of Smith in October 1991. During her more than four years of employment, Smith’s responsibilities included co-signing checks and insuring invoices were paid. Larry Duncan, who was hired in 1988, was Smith’s immediate supervisor, and after being on the job for a short period of time, he formed the suspicion Smith was stealing company funds, but he had no proof. Duncan related his suspicions to LeMon Henderson, the majority stockholder of the company, who told Duncan to get a replacement for Smith. Duncan had difficulties in obtaining a replacement, so Smith continued in her position.

In 1989, Henderson suspected either Duncan or Smith were converting company funds, so he hired certified public accountants to determine if employees were embezzling funds. Eventually in 1991, one of the accountants discovered that Smith had been altering Quality Ford checks and converting those checks and funds to her personal accounts. In August 1991, Smith, who is black, filed an EEOC claim, alleging racial discrimination by Duncan, who is white. Later in October 1991, Henderson, who is black, suspended Smith, and informed Smith she had failed to carry out her duties by not forwarding correspondence from the EEOC to his attention. Smith immediately responded by filing another EEOC claim, alleging retaliatory discharge, and later filed another complaint alleging gender discrimination.

On November 13, 1991, Quality Ford filed a civil suit against Smith, seeking the money she converted, and the next day, Smith was arrested and charged with the crime of embezzlement. In December 1991, Smith answered Quality Ford’s suit, alleging she and Henderson had been involved romantically, and during that relationship, Henderson had authorized Smith’s altering checks to defraud the Internal Revenue Service, and also to divert company funds to Henderson and Duncan. She further filed a counterclaim alleging defamation, malicious criminal and civil prosecution, false arrest, outrage, wrongful termination, breach of contract, and her Tide VII claims of racial and gender discrimination and retaliatory discharge.

On October 8, 1992, Smith was acquitted of the criminal charge of theft. However, in the civil suit, the trial court found Smith had altered and misappropriated twenty Quality Ford checks, totalling $73,108.67. The trial court specifically found that Smith was unbelievable and that she had devised a scheme to defraud Quality Ford of funds by altering checks entrusted to her care. The trial court did hold Smith had prevailed on her Title VII claim of retaliatory discharge, and awarded her damages in the nominal amount of $1,000.00 and attorneys fees in the sum of $5,000.00. The trial court ordered a set off of these awards against the $73,108.67 Smith owed Quality Ford. Furthermore, the trial court held Henderson had breached Smith’s employment contract, and determined Henderson owed Smith two percent (2%) of the company’s annual net profits for the years 1988 through October 1991. The court directed that, after the parties arrived at the amount of the profits owed Smith, that sum should also be set off against the $73,108.67 Smith owed Quality Ford. On March 15, 1995, the trial court entered judgment in favor of Quality Ford in the amount of $52,965.00. Smith brings this appeal from that judgment.

In her initial point for reversal, Smith agrees that the trial court correctly awarded her attorney’s fees, but argues that it erred in the assessment of that fee. Smith cites Hensley v. Eckerhart, 461 U.S. 424 (1983), for the proposition that a prevailing party of a Title VII claim is entitled to a reasonable fee, and that fee is to be determined by the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This is commonly called the “lodestar” fee. The Hensley court further held that where the plaintiff achieved only limited success, the trial court should award only that amount of fees that is reasonable in relation to the results obtained.

While Smith argues that the trial court failed to follow the Hensley formula when setting the $5,000.00 attorneys fee or to state why it might have reduced the lodestar amount, she concedes she failed to submit any evidence of (1) the hours expended by her counsel, (2) the counsel’s rate, or (3) any other relevant facts bearing on the fee amount. The Hensley decision clearly holds that the party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Hensley, at 433.

Here, the trial court awarded Smith’s counsel an attorney’s fee in its December 9, 1994 order even though counsel failed to submit any documents or evidence; counsel never objected either to the maimer or amount of the fees awarded. In fact, although the trial court’s final judgment was not entered until March 15, 1995, Smith still interposed no objections. She only does so for the first time in this appeal.

This court has held that it will not contenance an argument raised for the first time on appeal. Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993); see also McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991) (the burden of obtaining a ruling from the court is on the attorney requesting fees, and the objections and matters left unrecorded below are waived and may not be relied upon on appeal). For the same reasons, we also do not reach Smith’s argument that the trial court erred in setting off counsel’s attorney’s fees against Quality Ford’s judgment.

Smith next argues that she proved a prima facie case of race and sex discrimination and that the trial court failed to give the required findings needed for a review of determining whether the facts as applied might be due to a misunderstanding of the law. Smith cites Jones v. Jones Bros. Const. Corp., 879 F.2d 295 (7th cir. 1989), where the federal appellate court remanded the civil rights case for further findings because the district court’s opinion was not supported by adequate findings of fact and law. See also Chandler v. City of Dallas, Tex., 958 F.2d 85 (5th Cir. 1992).

Here, Ark. R. Civ. P. 52(a) is controlling and provides in relevant part as follows:

If requested by a party, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58 [.]. (Emphasis added.)

While Arkansas’s Rule 52 is similar to the federal rule, Fed. R. Civ. P. 52(a), the Arkansas rule retains prior state law by which the failure of a party to request special findings of fact amounted to a waiver of that right. Reporter’s Notes (as modified by the Court) to Rule 52, n. 1 [citing Anderson v. West Bend Co., 240 Ark. 519, 400 S.W.2d 495 (1966)]. Further, Rule 52(b) provides that upon motion of a party within ten days after entry of judgment, the court may amend its findings and/or judgment accordingly.

In the present case, there is nothing in the record to show Smith requested that the trial court make specific findings of fact and conclusions of law either prior to or after entry of the judgment. Because Smith made no request for findings, she waived her right under Rule 52.

For the reasons above, we affirm.