author: Robert H. Dudley, Justice.

text:
    Susan Jayne BOHANNON v. ARKANSAS STATE BOARD OF NURSING
    94-1092
    895 S.W.2d 923
    Supreme Court of Arkansas
    Opinion delivered April 3, 1995

      Law Office of Connie Mitchell, by: Connie Mitchell, for appellant.

      Winston Bryant, Att’y Gen., by: John D. Harris, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant is a registered nurse who was charged by the Arkansas State Board of Nursing with violating Ark. Code Ann. § 17-86-309(a)(4) and (6) (Repl. 1992) as being “habitually intemperate or . . . addicted to the use of habit forming drugs” and “guilty of unprofessional conduct.” The Board heard extensive testimony and concluded that appellant diverted controlled substances to herself and then falsified medical records to reflect that the drugs had been given to patients at both Bates Memorial Hospital in Bentonville and Eureka Springs Memorial Hospital. The Board suspended her license for three years and set out conditions for reinstatement.

Appellant appealed the Board’s decision to circuit court. The circuit court affirmed the Board’s ruling, and appellant appeals. We affirm the Board’s ruling.

I.

Appellant’s abstract is flagrantly deficient. See Ark. Sup. Ct. R. 4-2(b)(2). It does not contain a summarization of the pleadings or the Board’s findings of fact and conclusions of law. Her abstract of the pleadings is as follows: “On May 27, 1993, the Arkansas State Board of Nursing sent its Order and Notice of Hearing to Susan Jayne Bohannon seeking to suspend and/or revoke her nursing license for alleged violations of Ark. Stat. [sic] Ann. § 17-86-309(a)(4) and (a)(6).”

Her abstract of the Board’s order is as follows:

After a hearing which occurred on August 11, 1993, on August 17, 1993 the Arkansas State Board of Nursing entered its Order suspending Susan Jayne Bohannon’s nursing license in Arkansas. The Arkansas State Board of Nursing ordered that Susan Jayne Bohannon’s nursing license in Arkansas be suspended for three years with conditions placed on reinstatement.

The findings of fact made by the Board are not abstracted.

We have held that a summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. 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). Appellant has failed to provide this. Yet, one of her points of appeal contains the following argument: “The Board’s decision merely makes conclusory statements in violation of statutory authority.”

The rules provide that the abstract shall consist of “an impartial condensation, without comment or emphasis” and that testimony be abstracted in first person. Ark. Sup. Ct. R. 4-2(a)(6) (emphasis added). Neither requirement has been met. The testimony provided is in third person, and it includes only those parts of the testimony that support appellant’s arguments. For example, the abstracted testimony of Salena Wright, Nurse Manager of the Emergency Department at Bates Memorial Hospital, merely states that appellant notified the Director of Nursing that dmg vials had been tampered with and that Ms.Wright had no personal knowledge of who diverted drugs at the hospital. Yet, Ms. Wright’s testimony contains references to appellant’s job performance and her refusal to submit to drug testing, and both of these facts bear directly on the propriety of the Board’s decision.

The abstract of testimony incorporates arguments within the supposed testimony. For example, the testimony of Jim Bona is abstracted as follows:

Mr. Bona read a report attached as Exhibit 2. The report contained hearsay which was objected to. Attachment 3 Report of Chemist was admitted without allowing cross-examination, Chapter 11, Section 10 (j) of the Rules of the Board and contained hearsay within hearsay. The report contained statements from persons present to testify, and Attachment 11 contained information that was irrelevant. Reports on patients were included that were identified by initials only thereby denying Susan Jayne Bohannon the right to cross-examination.

Another example is the following interjection of argument within supposed abstract of Beverly Terrell’s testimony:

Ms. Terrell’s boss was seated in'the Board Room and had been called by the attorney for the Board and the witness had ridden in the same vehicle to Little Rock with her boss and another witness for the attorney for the Board.

In Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993), we said such similarly selective abstracting constituted “egregious acts of omission and commission [which] go beyond mere oversight and constitute a gross violation of Rule 4-2(a)(6).” Id. at 357, 862 S.W.2d at 277. However, we addressed the merits because the State supplemented the abstract. Id. Similarly, in this case appellee Board has supplied a supplemental abstract of the testimony, but has not included a summary of pleadings or of the Board’s order. Since appellant’s abstract is flagrantly deficient, we summarily affirm all points of appeal except the point involving sufficiency of the evidence, and we determine that point only because the Board chose to supply a supplemental abstract which sets out the testimony involving that point.

II.

We now turn to the only point we reach — whether the Board’s decision was supported by substantial evidence. Judicial review of decisions of the Arkansas State Board of Nursing is governed by the Arkansas Administrative Procedure Act pursuant to Ark. Code Ann. § 25-15-212 (Repl. 1992). If there is any substantial evidence to support the agency’s decision, the reviewing court will not reverse. Arkansas Contractors Licensing Bd. v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129 (1988). Substantial evidence is valid, legal, and persuasive evidence that a reasonable mind might accept to support a conclusion and force the mind to pass beyond speculation and conjecture. Woodyard v. Arkansas Diversified Ins. Co., 268 Ark. 94, 594 S.W.2d 13 (1980). To prove an absence of substantial evidence, appellant must show that fair-minded persons could not reach the same conclusion. Arkansas Health Planning & Dev. Agency v. Hot Spring County Memorial Hosp., 291 Ark. 186, 723 S.W.2d 363 (1987). The question is not whether the testimony would have supported a contrary finding, but whether it would support the finding that was made. Arkansas Highway and Transp. Dept. v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. Robinson v. Ed Williams Constr. Co., 38 Ark. App. 90, 828 S.W.2d 860 (1992).

Appellant was charged with violating Ark. Code Ann. § 17-86-309(a)(4) and (6) as being “habitually intemperate or . . . addicted to the use of habit forming drugs” and “guilty of unprofessional conduct” based upon the following:

1. During but not limited to July 1992, while employed by Bates Memorial Hospital, Bentonville, Arkansas, [she] did make false or failed to correct documentation as to the administration of narcotics.
2. During the aforementioned time, [she] did divert controlled substances such as Demerol from her employer.
3. Prior to employment at Bates Hospital, respondent was employed at Eureka Springs Hospital, where she did make false or failed to make correct documentation as to the administration of narcotics.

In support of the allegations, the Board heard the following evidence. Jim Bona, an investigator for the Arkansas Department of Health, testified that on July 1, 1992, Rick DeFreece, Director of Pharmacy at Bates Memorial Hospital, submitted seven vials of meperidine hydrochloride (Demerol) for quantitative analysis. All seven vials were obtained from the emergency room controlled drug supply. The Arkansas Department of Health Toxicology Laboratory report found that all seven vials were adulterated. Subsequently, audit procedures were put in place, and inventories were checked by the hospital pharmacy at least once, and more often twice daily.

On July 7, 1992, the pharmacy director found three vials of Demerol from a medicine cart on the medical/surgical unit that appeared to have been tampered with in the same manner as those from the emergency room. These vials were submitted to the Toxicology Laboratory for testing, and it was determined that one of the vials was adulterated.

Hospital records and testimony from Salena Wright, Nurse Manager of the Emergency Department, indicated that appellant worked in the emergency department until June 30, 1992, at which time she was transferred to the medical/surgical unit. Ms. Wright stated that appellant was transferred because she was not performing well in the emergency room and was having problems getting along with physicians and other nurses. Hospital records indicated that appellant was the only employee to sign out Demerol in the emergency department and the medical/surgical unit on the dates in question.

Ms. Wright stated that appellant had been assigned to care for patient “D.D.” just before she resigned from Bates on July 7, 1992. D.D. came to the emergency room with acute abdominal pain and was given an injection of Demerol. D.D. was admitted to the medical/surgical unit at 5:00 a.m. on July 6, 1992, free of pain. Ms. Wright cared for the patient and charted that she was pain free throughout the day. Appellant took over the care of D.D. at 7:00 p.m. that evening. On July 7, Ms. Wright discovered that appellant had charted an injection of Demerol at 7:50 p.m. on July 6 and at 5:00 a.m. on July 7. Ms. Wright asked D.D. if she had received anything for pain, and the patient told her that she had complained of a headache and received two pills, but that was all.

After this incident, Ms. Wright did a retrospective review of other patients for whom appellant had cared. She found that appellant had cared for another patient on July 1, 1992, who had been unresponsive. Although there was no change in the patient’s condition, the medication administration charts, signed by appellant, reflected that she gave Demerol at 8:10 p.m. on July 1, and again at 2:00, 3:00, and 6:00 a.m. on July 2. There was no indication of irritability or restlessness to warrant pain medication. It was the only Demerol the patient was given throughout her stay at the hospital.

Ms. Wright and Marian Fowler, Director of Human Resources, both testified that appellant had been very candid about being a recovering substance abuser when she applied at the hospital. Ms. Fowler stated that appellant agreed to submit to random drug tests throughout her tenure at the hospital as a part of the process for nurses in recovery. On July 7, 1992, Ms. Fowler and Ms. Wright asked appellant to submit to a drug test. At first appellant agreed, but became increasingly agitated and-irritated and stated that she thought she was being “set up.” However, after three trips to the bathroom in a supposedly unsuccessful attempt to collect a urine specimen, appellant refused to take the test and stated that she was resigning from her employment.

Prior to her employment at Bates Memorial, appellant worked at Eureka Springs Memorial Hospital for twenty-one days. Testimony from administrators there provided ample evidence of faulty documentation and circumstantial evidence of drug use.

Sherry Gerster, Director of Nursing at Eureka Springs Memorial, testified that on her first day of employment, April 1, 1992, appellant was assigned a patient who was taking Demerol every three hours. Appellant signed out seventy-five milligrams of Demerol from the pharmacy, but did not document the need or action for the medication in her nurse’s notes. On April 7, 1992, appellant was assigned to care for a patient for whom Demerol had been prescribed, but who did not receive any except when appellant was on duty. On April 8, appellant took care of this same patient and documented giving Demerol at 12:15 p.m., but did not document in her nurse’s notes the reason it was given. In addition, while the medication and treatment documentation states that the drug was given at 12:15 p.m., the drug was not signed out on the controlled administration record until 12:40 p.m. At 3:15 p.m. on that same day, it was documented in the medication and treatment record that the patient was complaining of back pain and was given fifty milligrams of Demerol. However, nothing is documented in the nursing notes, and the Demerol was not signed out on the controlled drug administration record until 6:15 p.m.

Ms. Gerster stated that appellant was caring for another patient on the same shift that day who had been prescribed seventy-five milligrams of Demerol and twenty-five milligrams of Phenergan. At 3:15 p.m., appellant was given orders by a physician to give the medication, and such is documented in the medication and treatment record and in the nurse’s notes. However, the controlled drug administration record reveals that appellant signed out one-hundred milligrams of Demerol to this patient and administered all of it.

Further, Ms. Gerster testified that appellant documented having given a postoperative patient seventy-five milligrams of Demerol twenty minutes before she was to be discharged from the hospital. Ms. Gerster stated that this was in violation of hospital policy.

Ms. Gerster also testified that appellant took care of an outpatient surgery patient whom another nurse observed and recorded at 11:20 a.m. as having no nausea and eating ice chips. At 1:00 p.m, appellant documented that he complained of pain and nausea, vomited twice, and was given seventy-five milligrams of Demerol. However, at 1:10 p.m, it was documented that he was discharged in good spirits and in no acute distress. The hospital’s discharge criteria mandate that a patient will not be discharged if he is nauseated or vomiting.

Finally, Ms. Gerster stated that on April 9, appellant cared for a patient for whom Demerol had been prescribed to be given as needed for pain. Although the patient was not in distress at 7:30 a.m., fifty milligrams of Demerol was signed out on the controlled drug record for her at 8:12 a.m. and again at 4:00 p.m. There was only one entry in the medication and treatment record for a dose of fifty milligrams of Demerol with no time recorded, but there were entries for doses of fifty milligrams of Demerol and twenty-five milligrams of Phenergan; one at 8:00 a.m. and one at 4:00 p.m.

Tina Long, who was Assistant Director of Nursing at Eureka Springs Hospital while appellant was employed there, testified that she observed appellant leaving the hospital with the keys to the narcotics cabinet. The keys are not supposed to leave the hospital. Ms. Long confronted appellant and reminded her that the keys were not to leave the hospital. Appellant replied that she had been hoping Ms. Long would not find out that she had taken the keys.

Ms. Long also stated that on April 21, 1992, appellant worked a twelve-hour shift, from 7:00 a.m. to 7:00 p.m. At 3:00 p.m., appellant was given the narcotics keys. Ms. Long received an electronic page at 7:00 p.m. from another employee who had checked the narcotics cabinet and suspected tampering. The employee stated that she had not handled the drugs. Ms. Long and the employee discovered that a seventy-five milligram vial of Demerol appeared to have been adulterated. They found a hub cover from a hypodermic needle in the employee bathroom right after appellant had been there. Ms. Long called appellant’s home at 8:10 p.m. to ask her to come in for a drug screen, but reached an answering machine and did not leave a message. Appellant was scheduled to work another twelve-hour shift on April 22, but called in sick.

In summary, there is substantial evidence to support the Board’s finding that appellant diverted drugs from her employers at Bates Memorial Hospital and at Eureka Springs Memorial Hospital and made false documentation about those drugs at both facilities. This also constituted substantial evidence to support the finding that appellant acted in an unprofessional manner. Accordingly, we affirm the ruling of the Board.

Holt, C.J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Greg QUINNEY, individually and D/B/A GQ Inspection Service, Inc. v. John M. PITTMAN and Carolyn H. Pittman
    94-787
    895 S.W.2d 538
    Supreme Court of Arkansas
    Opinion delivered April 3, 1995

      The Gill Law Firm, by: Victor A. Fleming, for appellant.

      Daggett, Van Dover & Donovan, by: Robert J. Donovan, for appellees.
   Robert H. Dudley, Justice.

The primary issue in this appeal is whether venue of this constructive fraud case lay in Monroe County. The trial court correctly ruled that the action was properly brought in Monroe County, and we affirm.

There is no serious dispute about where and when the determinative facts occurred. In the first part of 1992, John and Carolyn Pittman, plaintiffs, resided in Phillips County. John Pittman served as a chancellor of the First Judicial District, and Phillips County is one of the five counties in the district. Judge Pittman was elected to the Arkansas Court of Appeals for a term beginning January 1, 1993.

On July 16, 1992, after Judge Pittman was elected to the court of appeals, the Pittmans entered into a contract for the purchase of a home in Pulaski County, where the court of appeals is located. The contract was conditioned upon the sale of their home in Phillips County and also upon an inspection for defects in the home in Pulaski County.

On July 18, 1992, the Pittmans entered into a contract, styled a “service agreement,” for inspection of the home by GQ Inspection Service. Greg Quinney, defendant, did business under the trade name of GQ Inspection Service. The discussions about the service agreement took place in Pulaski County, and the document was executed in Pulaski County. All subsequent statements and acts by GQ were made or done in Pulaski County.

The Pittmans did not know that GQ had previously inspected the home for another couple, who were also prospective purchasers, and had found that a major defect existed under the home. As a result of GQ’s discovery of the major defect, the other couple withdrew from their agreement to buy the home. The sellers’ real estate agent, Betty Fureigh, expressed displeasure with GQ. Gregory Quinney, GQ’s owner, admitted that Betty Fureigh was “mad” about the report. Testimony showed that independent home inspectors rely on real estate agents for referral business.

On July 18, the same date the service agreement was made, Lance Lefler, an employee of GQ, inspected the house. The Pittmans were present, but John Pittman was physically unable to crawl under the house. Lefler issued a written report to the Pittmans indicating some areas of dry rot and other problems under the house. The report was made to the Pittmans in Pulaski County.

On July 21, GQ sent a letter to Betty Fureigh, the real estate agent representing the sellers. Fureigh was upset over Lefler’s report. Quinney reassured Fureigh that the damage under the house was not extensive. The Pittmans did not see the letter until after filing suit.

On July 28, the Pittmans called Lefler for a reinspection. He orally reported to them, in Pulaski County, that the repairs that had been made were satisfactorily completed. There was conflicting testimony as to whether Lefler informed the Pittmans that additional repair work was necessary.

On August 4, the Pittmans moved out of their home in Phillips County. On August 5, Carolyn Pittman and the children moved into the home in Pulaski County.

On August 4, Lefler was called back to inspect the house. On August 7, 1992, the Pittmans and GQ signed a “Memorandum of Agreement Regarding Inspection and Repairs at 7 Foxhunt Trail.” This is the last act involving the Pittmans and GQ, and all of these acts took place in Pulaski County.

On August 14, John Pittman moved into a recreational cabin the family owned in Monroe County. Monroe County is also within the First Judicial District. John Pittman intended to reside in the cabin in the judicial district for the remaining weeks of his term as chancellor. On about half of the weekends he drove to Pulaski County to be with his family, and on other weekends his family came to Monroe County to see him. He spent all of the week nights and half of the weekends at the cabin. He had a telephone and all utilities, as well as a computer, some office equipment, and some of the court reporter’s equipment there. He registered to vote in Monroe County.

On August 20, 1992, the Pittmans paid for the house in Pulaski County, received a warranty deed to it, and executed a mortgage to the lender. The loan closing was conducted in Pulaski County. Proof showed that the Pittmans, at least in part, relied on the GQ report and subsequent reinspections in purchasing the home. Shortly thereafter, the Pittmans learned that there was a real danger of the first floor collapsing and that the only acceptable repair of the house would involve the removal and replacement of all first floor joists, beams, supporting beams, subflooring and flooring, as well as extensive support, all at a cost of approximately $150,000.

On September 25, 1992, the Pittmans filed suit in Monroe County for constmctive fraud against Gregory Quinney d\b\a GQ Inspection Service, Inc., the sellers of the home, the sellers’ real estate agent and the agency for whom she worked, and a termite inspection service. None of the other defendants had committed any act in Monroe County. The Pittmans subsequently settled with all of the defendants except GQ. In late December 1992, Judge Pittman moved to Pulaski County in order to serve on the court of appeals, beginning in January 1993.

GQ Inspection Service moved to dismiss the complaint on the ground that venue did not properly lie in Monroe County. GQ argued that the applicable statute required a suit for constructive fraud to be filed in the county of the defendant’s residence or where the allegedly fraudulent acts were committed, which was Pulaski County. Alternatively, GQ argued that even if the statutes did not so require, the Pittmans could not file suit in Monroe County because neither of them was a resident of that county for venue purposes. The trial judge ruled that venue was properly fixed in Monroe County under Ark. Code Ann. § 16-60-113(b) (1987) because John Pittman resided in that county at the time suit was filed. The case went to trial, and a Monroe County jury found GQ guilty of constructive fraud and returned a verdict of $120,000.00. After the settlements are taken into account, GQ will be required to pay $30,000.00 under the judgment. On appeal, GQ repeats each of its venue arguments.

We first address GQ’s statutory argument. Venue is fixed by statute. Since statehood, the General Assembly has provided that the basic rule of venue is that a defendant must be sued in the county where he lives or is summoned. Ark. Revised Stat. ch. 116, § 4 (1838); Ark. Code Ann. § 16-60-116 (1987); First South, P.A. v. Yates, 286 Ark. 82, 689 S.W.2d 532 (1985). The Pittmans’ suit alleged a constructive fraud. We have consistently held that the venue statutes do not allow a plaintiff to file suit for economic damages as the result of a fraud in a county when the only connection with that county is the plaintiff’s residence. See First South, P.A., 286 Ark. 82, 689 S.W.2d 532, for a complete history of the statutes and our cases.

However, in 1985, the General Assembly enacted Act 921, which is codified as Ark. Code Ann. § 16-60-113(b) (1987). It is our fundamental duty, of course, to give effect to the legislative purpose set by the venue statutes. Subsection (b) of section 16-60-113 currently provides as follows:

Any action for any type of fraud may be brought in the county where any one (1) plaintiff resides or any one (1) defendant is located, in the county where one (1) or more of the acts utilized to induce, perpetuate or conceal the fraud was performed, or the county from which an act or one (1) or more of the fraudulent acts or part of a scheme to defraud was originated or was communicated from or into by telephone, mail, or other means orally or in writing.

In listing the alternative venues for fraud, the General Assembly followed the recognized rule of grammar that a list of items followed by commas and ending with the word “or” between the final two items shall be read in the disjunctive. See Hughey v. State, 310 Ark. 721, 840 S.W.2d 183 (1992). The current statute thus provides three separate venues for fraud:

(1) the county where one plaintiff resides or one defendant is located;
(2) the county where one or more of the fraudulent acts occurred; or
(3) the county where the fraud originated or from which it was communicated.

The statute is clear: “Any action for any type of fraud may be brought in the county where any one (1) plaintiff resides. ...” Ark. Code Ann. § 16-60-113(b) (1987). The statute uses the present tense by providing that suit may be brought where one of the plaintiffs “resides.” It does not use the past tense, or refer to the county of residence “at the time the cause of action arose,” as does the first subsection of the statute, subsection (a). The distinction between subsections (a) and (b) of section 16-60-113 was obviously intentional. It allows a plaintiff to file suit for fraud in the county of his residence at the time of the filing of the complaint, no matter where the fraud occurred.

GQ argues that the title and emergency clause of the 1985 amendment do not mention that an action for fraud can be brought in the county where one of the plaintiffs resides, and we should look to the title and emergency clause to determine the true legislative intent. When the meaning of a statute is ambiguous, we will look at either the title or the emergency clause, or both, in order to determine legislative intent, but when the language of a statute is certain and the intent obvious from that language, we need not resort to a search of the title or emergency clause. American Casualty Co. v. Mason, 312 Ark. 166, 848 S.W.2d 392 (1993). The statute at issue is certain. In summary, the trial court correctly ruled that the 1985 act changed the law so that an action for fraud could be brought in Monroe County, the county where one of the plaintiffs resided at the time the suit was filed.

GQ fleetingly contends that Ark. Code Ann. § 16-60-113(b) does not apply to actions for constructive fraud. The statute provides that it applies to “[a]ny action for any type of fraud.” Id. (emphasis added). We have previously held that the meaning of the statute is obvious, and it applies to actions for constructive fraud. Evans Indus. Coatings, Inc. v. Chancery Court, 315 Ark. 728, 870 S.W.2d 701 (1994).

GQ next argues that, even if the statute allows a fraud action to be brought in the county where one of the plaintiffs resides, John Pittman did not reside in Monroe County. In Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989), when faced with the same issue, we examined our past cases involving the residence of a plaintiff under Ark. Code Ann. § 16-60-112(a) (1987). The language of that statute and the statute at issue are comparable. We concluded that the General Assembly was aware of the difference between the words “residency” and “domicile,” was aware of the fact that a person might have a residence in one county and his domicile in another, and deliberately chose to use the word “residency.” “Residency” means the place of actual abode, not a home which one expects to occupy at some future time. Id. at 479, 780 S.W.2d at 520. There is no valid reason to make a distinction between the statute at issue in that case and the statute at issue in this case. Thus, we hold that the statute allows a suit for fraud to be filed at the place of actual abode of one of the plaintiffs. John Pittman’s actual abode was in Monroe County at the time he filed the suit.

GQ additionally argues that, even if the statute provides that the action can be brought in the county where one of the plaintiffs resides and even if John Pittman was a resident of Monroe County, he did not reside there when the cause of action accrued; therefore, venue was improper in Monroe County. The statute at issue, subsection (b) of section 16-60-113, provides that a cause of action for fraud can be brought in the county where “any one (1) plaintiff resides.” The statute uses the present tense, which indicates residency at the time the suit is filed. GQ’s argument below, and its argument on appeal, both involve cases construing another statute, Ark. Code Ann. § 16-60-112 (1987). That statute, unlike the one currently at issue, provides that venue for personal injury action lies “in the county where the person injured or killed resided at the time of injury.” Id. § 16-60-112(a) (emphasis added). That statute, 16-60-112, does fix the time of residency “at the time of injury,” but the General Assembly chose not to use that language in the statute now before us, 16-60-113(b), and instead provided that suit can be brought in the county where “any one (1) plaintiff resides.”

As a subpart of this argument, GQ argues that any fraud it might have committed was completed by August 7, 1992, the date the Pittmans and GQ signed the “Memorandum of Agreement Regarding Inspection and Repairs at 7 Foxhunt Trail.” GQ’s abstract does not reflect that this argument was raised during the pretrial hearing on GQ’s motion to dismiss for lack of venue and at trial the Pittmans testified without objection that they relied on all of GQ’s representations in their purchase of the home on August 14, 1992. In addition, the jurors were instructed, without objection, that they were to determine whether the Pittmans suffered damages as a result of their purchase of the house in reliance on misrepresentations by GQ. Thus, this argument was not raised at the trial level, and we will not consider a matter raised for the first time on appeal. Pledger v. C.B. Form Co., 316 Ark. 22, 871 S.W.2d 333 (1994).

GQ next contends that the trial court erred in refusing to grant a directed verdict in its favor. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Our standard in reviewing the sufficiency of the evidence is well settled: (1) The evidence is viewed in a light most favorable to the appellee; (2) the jury’s finding will be upheld if there is any substantial evidence to support it; and (3) substantial evidence is that of sufficient force and character to induce the mind of the factfinder past speculation and conjecture. Allred v. Demuth, 319 Ark. 62, 64, 890 S.W.2d 578 (1994). GQ moved for a directed verdict on the specific ground that there was no justifiable reliance by the Pittmans on its representations. The trial court correctly denied the motion.

It was undisputed that the Pittmans employed GQ to inspect the home before they decided to purchase it. Lance Lefler, an employee of GQ, inspected the home on two occasions. There was a dispute over the contents of Lefler’s statements to the Pittmans. John Pittman testified that Lefler indicated on his second visit that the repair work had been completed properly. Pittman testified that he and his wife relied on this statement in making a commitment to the sellers to accept the repairs as satisfactory. He also stated that he overheard a conversation between Lefler and Betty Fureigh, the real estate agent for the seller, discussing the reinspection and Lefler said- that only a few boards needed to be replaced. Carolyn Pittman testified that on Lefler’s second inspection he indicated that the repairs that had been made were satisfactory and only a few boards still needed to be replaced. This testimony, while disputed by GQ, amounted to substantial evidence to support the jury’s finding of fact. It is the province of the finder of fact to weigh the credibility of witnesses. Maloy v. Stuttgart Memorial Hosp., 316 Ark. 447, 872 S.W.2d 401 (1994). GQ makes other arguments about insufficiency of the evidence, but because those arguments were not brought to the attention of the trial court, we do not consider them.

GQ’s next assignment of error is that the trial court erred in allowing into evidence a letter from Greg Quinney, GQ’s owner, written to Betty Fureigh, the sellers’ real estate agent. The letter states, in pertinent part, that “the additional damage not reported in the initial inspection [for the previous prospective purchaser] is not extensive” and that the “repair work for the dry rotted joists is satisfactory.” The ruling admitting the letter occurred as follows. A witness for the Pittmans, an architect, testified: “If I were doing an inspection for a homeowner I would have said something more than what was stated in the GQ report. I would have been direct about the extensiveness of the damage involved. It is widespread, over the entire house. And I think I would have been a little clearer on where the damage was and the extent of the damage.” The Pittmans’ attorney started to ask the next question and then said only, “We have a letter here.” GQ’s attorney objected and stated in part: “It [the letter] has the potential to be a prior inconsistent statement, and we have not objected to it being a part of the record. However, unless Mr. Donovan [Pittmans’ attorney] can show otherwise, it was not material or relevant to any issue that this witness is going to testify to and is not in evidence yet. I can see where it would be admissible to impeach Mr. Quinney’s credibility, but since it did not come up prior to closing, it does not appear that the information contained in it —[.]” At this point the trial court overruled the objection. GQ’s attorney stated that the Pittmans would use the letter to show that Greg Quinney was saying one thing while his employee was saying another.

On appeal GQ argues that the Pittmans did not rely on the letter, and, therefore, it was immaterial. In its reply brief GQ argues that the trial court did not conduct an A.R.E. Rule 403 weighing of probative value against unfair prejudice. Neither of these arguments was made to the trial court. At trial, GQ admitted that the letter would be admissible for impeachment. Its relevancy argument was that the letter was not relevant to the testimony of the architect. In short, GQ’s argument to the trial court was that the letter was admissible, but not through the testimony of the architect. However, GQ does not pursue that argument on appeal. Rather, on appeal GQ argues that the Pittmans did not rely on the letter, and there was no Rule 403 weighing. Because these arguments are raised for the first time on appeal, we do not consider them.

GQ’s next point of appeal is that “[t]he court erred in disallowing GQ to use and argue a comparative fault defense to the jury and in failing to give a comparative fault instruction.” The trial judge ruled that the action was for constructive fraud and that the comparative fault statute, Ark. Code Ann. § 16-64-122 (Supp. 1993), applies to “actions for damages for .. . injury to property in which recovery is predicated upon fault” and that this was neither an action for “injury to property,” nor was it an action involving “fault” as that word is defined in the statute. Subsequently, GQ did not proffer any comparative fault instructions that it might have wanted given. A party cannot complain about the failure to give an instruction when he did not proffer the instruction. ARCP Rule 51; Precision Steel Warehouse, Inc. v. Anderson-Martin Mach. Co., 313 Ark. 258, 854 S.W.2d 321 (1993).

Finally, GQ contends that the trial court erred in granting a directed verdict against its counterclaim. GQ filed a counterclaim that refers to the contract between the Pittmans and GQ and then alleges:

The claim against GQ is itself a breach in that it alleges GQ’s inspection was exactly that which the language quoted above from Exhibit A [the contract] says it was not.
Counterdefendant’s breach of contract by naming GQ herein has caused GQ damages in the form of legal fees and lost earnings and going to trial as a defendant herein will cause GQ further legal fees and lost earnings. Upon prevailing herein, GQ should be entitled to all costs, plus attorney’s fees.

In its argument, GQ contends that the Pittmans breached the contract with GQ by filing the constructive fraud action because the contract provided that GQ’s inspection services “are not deemed to be a warranty.” GQ cites no authority for upholding the counterclaim, nor does it make a convincing argument for reversal on the point, and we see no apparent merit in the argument. When an appellant neither cites authority, nor makes a convincing argument, and where it is not apparent without further research that the point is well taken, the appellate court will affirm. Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994).

Affirmed.

Special Justice Georgia Elrod joins in this opinion.

Newbern, J., not participating.


author: David Newbern, Justice.

text:
    Everick MONK v. STATE of Arkansas
    CR 94-1416
    895 S.W.2d 904
    Supreme Court of Arkansas
    Opinion delivered April 3, 1995

      William R. Simpson, Jr., Public Defender, by; C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   David Newbern, Justice.

Everick Monk was convicted of rape, burglary, and robbery. He was sentenced to forty years imprisonment. He contends the evidence was insufficient to support the conviction and that evidence of pretrial identifications of him by the victim should have been suppressed. He also contends it was error to admit into evidence an envelope and its contents, bearing his name and fingerprints, which the victim allegedly found in her apartment after the commission of the crimes. We hold the identification testimony and the physical evidence were admissible and the evidence was sufficient to sustain the conviction.

In the middle of the afternoon on November 26, 1993, the 74-year-old victim heard a knock on the front door of her apartment in the Albert Pike Hotel in Little Rock. When she opened the door, a man forced his way into her apartment and repeatedly hit her with “his open hand.” She attempted to get away from him, and he continued to hit her until they reached her bedroom. Once they were in the bedroom, the intruder stuck his finger in her vagina and forced her to engage in fellatio. After the attack, he demanded money and took $20.

After the intruder had left her apartment, the victim noticed an envelope that did not belong there. She testified it was a white, long, oblong envelope with some writing on the outside. She said that she laid it on the table and did not alter its contents in any way. Although she was too afraid and upset to call anyone other than her daughter on the evening following the incident, she did call 911 the next morning. When the police arrived, she gave Officer Mark Little the envelope.

Approximately four days passed between the report of the incident and a visit by the victim to the police station to view a photo lineup. During that period Detective Oberle developed Everick Monk as a suspect from the name “Monk Everick” on the food stamp notice contained in the envelope. During the delay that resulted from his attempts to obtain a photograph of Mr. Monk, Detective Oberle spoke with the victim’s daughter about the investigation. He testified the daughter called him every day and he was reasonably sure she knew the delay was caused by his efforts to obtain the photograph.

Once he obtained the photograph, Detective Oberle asked the victim to come to the police station to view a lineup of photographs. In the presence of her daughter and the detective, the victim picked out two “look-alikes.” One of them was Everick Monk. Although Detective Oberle did not say anything to the victim concerning the identity of anyone in the photographs, he said he might have told the victim’s daughter, after the victim had picked it as a “look alike,” that the number 2 photograph depicted Everick Monk, the suspect.

Mr. Monk was arrested on December 10, 1993. On December 23, 1993, Detective Oberle called the victim back to the police station to view a physical lineup. Mr. Monk was the only person from the photospread who also appeared in the physical lineup. In addition, the detective testified that the victim knew Mr. Monk had been arrested and would be in the lineup. Detective Oberle testified that after a very brief time of viewing the men in the lineup, the victim positively identified Mr. Monk as her attacker. After she made her identification, the detective told the victim that “she got the right one, or picked the right guy that we had arrested.”

Prior to trial Mr. Monk moved to suppress both identifications. During a hearing in April 1993 the victim made a positive in-court identification of Mr. Monk as the perpetrator; however, at a hearing held in August 1993 on a second motion to suppress the victim testified she was not sure the man in the courtroom on the day of the first hearing was her attacker. She said that on the way home after the first hearing she had asked her daughter if the man in the courtroom was the same man that she had picked from the lineups.

Ultimately, the victim admitted on cross-examination during the trial that she was not sure the man in the courtroom during the hearing in April was the same man who was in her apartment on that afternoon in November. She also testified she “could not be sure or correct in pointing out any individual who may have been in my house.”

At the trial, the victim did not identify Mr. Monk as the person who had attacked her. Detective Oberle testified concerning her pre-trial identifications of Mr. Monk from the photospread and the physical lineup. In addition, the State sought to introduce the envelope and contents the victim allegedly found on her bedroom floor after the attack. Although Mr. Monk objected to the admission of the envelope on the basis of authenticity, the Trial Court allowed it to be introduced.

Mr. Monk moved for a directed verdict at the close of the State’s case-in-chief, contending the State failed to prove that he was the perpetrator. The motion was denied. At the close of all the evidence, the motion was renewed by counsel who said, “Your Honor, I renew all my previous objections, including specifically the Motion for Directed Verdict based on the same argument that I made at the close of the State’s case.”

1. Sufficiency of the evidence

To preserve the question of the sufficiency of the evidence, a motion for directed verdict must be made at the close of the State’s evidence and at the close of the case. Ark. R. Crim. P. 36.21(b). The motion must be specific and apprise the Trial Court of the ground asserted for granting the motion. Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995); Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994). A general motion will not do. Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995).

Mr. Monk’s initial motion for directed verdict was to the effect that there had been no testimony identifying him as the culprit. In response, the Trial Court pointed out Detective Oberle’s testimony concerning the pretrial identifications by the victim. Mr. Monk’s counsel then renewed his motion to suppress that testimony as well as his objection to the admissibility of the envelope and contents.

While we have some doubts about the sufficiency of the renewal of the directed verdict motion at the close of the case, we need not decide the case on the basis of the content of that motion. The sufficiency of the evidence question became, through counsel’s discussion with the Trial Court, no more than renewal of his earlier evidentiary objections. We thus can dispose of the case by resolving the issues presented in those objections.

2. Extra-judicial identification

Mr. Monk argues that both the photo lineup and the physical lineup procedures were unnecessarily, and unconstitutionally, suggestive. Prior to discussing those procedures, however, we note that Mr. Monk has cited Synoground v. State, 260 Ark. 756, 543 S.W.2d 935 (1976), for the proposition that identity cannot ordinarily be established by evidence of an extrajudicial identification as original evidence. The decision in the Synoground case was based on Trimble v. State, 227 Ark. 867, 302 S.W.2d 83 (1957), in which we held that evidence of extrajudicial identification could not be used to buttress unimpeached testimony of a witness making an in-court identification.

We have strong doubts whether those cases apply here in view of the fact that the victim made no in-court identification subsequent to the omnibus hearing, and her identification at the omnibus hearing was certainly impeached. In any event, the objection raised at the trial was not on the basis of the rationale expressed in the Synoground and Trimble cases, so we need not consider it here. Penn v. State, supra; Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995).

From the constitutional perspective, the admissibility of testimony concerning pretrial identification is determined on standards similar to those applied to identification testimony offered in court. See Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381 (1972). A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the criminal. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). Even if the identification technique used was impermissibly suggestive, however, testimony concerning it is admissible if the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977); Bishop v. State, supra.

The factors to be considered in the determination of reliability are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the prior description; (4) the level of certainty; and (5) the time lapse between the crime and the confrontation. We do not reverse a ruling on the admissibility of an identification unless it is clearly erroneous, and we do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Bishop v. State, supra.

a. The photospread

With respect to the photospread, it is argued that, due to the communication between Detective Oberle and the victim’s daughter, the victim knew prior to viewing the photographs that one of the pictures would be of a man suspected of the crimes. Mr. Monk contends that increased the odds of his picture being selected from the lineup. In other words, he argues the victim’s knowledge foreclosed the possibility that she would not find anyone in the lineup she could identify as her assailant.

In Hayes v. State, 311 Ark. 645, 846 S.W.2d 182 (1993), we held it not absolutely impermissible to tell a witness a suspect was in a lineup, for the witness must realize that she would not be called to view the lineup if a suspect were not present. Rather, what the witness has been told is only one factor to be considered.

Considering the totality of the circumstances, it is doubtful that any knowledge the victim may have had about a suspect being in the lineup caused her to identify Mr. Monk as a lookalike mistakenly. The photospread provided in the abstract of the record of trial reveals that all of the men in the lineup were African-American and each had facial hair similar to the description the victim gave to the police.

Detective Oberle testified he did not say anything to the victim which would have led to the identification. Mr. Monk argues the photo lineup here was more suggestive than the one we approved in Hayes v. State, supra, because Detective Oberle privately indicated to the victim’s daughter that Mr. Monk was the suspect. As noted above, however, that conversation appears to have taken place after the victim had identified the look-alikes. There was nothing unconstitutionally suggestive about the photo lineup, and thus the testimony concerning it was admissible.

b. The physical lineup

Mr. Monk contends the physical lineup was unduly suggestive because the victim, again through her daughter, had access to information concerning the identity of the perpetrator. In addition, he contends the procedure was suggestive because he was the only person from the photospread who also appeared in the physical lineup.

While it is possible the daughter could have told the victim that the victim had picked the suspect in the photospread, the only “evidence” Mr. Monk was able to present on the point was the victim’s rather swift positive identification at the physical lineup. It is doubtful that the physical lineup was rendered impermissibly suggestive by the fact that Mr. Monk was the only man from the photospread to reappear in the second identification procedure. Detective Oberle testified that the men who appeared in the photospread were merely “fillers,” and that the use of their pictures did not necessarily indicate they were all in custody. Thus, he said that when the time came for the victim to view the physical lineup, he had to use fillers who were already in custody.

Clearly, the appearance of different men in the second procedure was unavoidable. We observe from a picture of the physical lineup that the fillers all had similar physical characteristics to those of Everick Monk.

No case has been cited in which we have dealt squarely with the question whether a less than positive, or look-alike, identification taints a subsequent identification as the result of the viewer’s familiarity upon seeing in the flesh a person whose picture she has previously been shown. In State v. Neslo, 433 So.2d 73 (La. 1983), a case similar to this one, the Louisiana Supreme Court considered the problem. Two victim-witnesses selected Neslo and another person in a photo lineup as persons who “resembled” the man who shot and shot at them and killed their friend. Later the victim-witnesses were shown a physical lineup including Neslo, and again two persons, one of them Neslo, were selected but not positively identified. Still later, the same lineup was reassembled, and the victim-witnesses identified Neslo as someone who looked like their assailant.

In holding that the identification of Mr. Neslo was not unduly suggestive, the Louisiana Supreme Court said the procedure used was proper and indeed followed that suggested in Manson v. Brathwaite, supra. Emphasis was placed on the fact that in neither the photo lineup nor the physical one was there anything which made Mr. Neslo stand out. There was further discussion about the opportunity of the witnesses to view the suspect at the time the crime was committed, and both victim-witnesses said they were not influenced by the prior photo lineup in their reactions to the physical lineup. While no such testimony was given in Mr. Monk’s trial, that is not very significant. The point is that the Louisiana Supreme Court was unwilling, as are we, to say that a progressive identification procedure which proceeds from photographs to physical is, per se, unduly suggestive.

Of course, the jury had before it evidence that Mr. Monk’s picture had been seen by the victim prior to the physical lineup in which he appeared. It also had before it evidence that the victim had in effect withdrawn the positive identifications she had made at the physical lineup and at the omnibus hearing thus reverting to a stance of uncertainty. In these circumstances the jury was placed in a position to evaluate the weakness or strength of the identification testimony, and we cannot say the Trial Court abused his discretion in admitting the evidence.

3. The envelope and contents

The problem here is that the victim did not identify the envelope and contents at the trial as the one she found in her bedroom after the crimes were committed. We must determine if this physical evidence was properly authenticated and thus admissible.

In evidentiary determinations, a trial court has wide discretion. Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). We will not reverse a trial court’s ruling concerning the admissibility of evidence unless there is an abuse of discretion. Rule 901(a) of the Arkansas Rules of Evidence provides: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.” Subsection (b) of the Rule provides, in part, as follows:

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of a witness with knowledge. Testimony of a witness with knowledge that a matter is what it is claimed to be.
* * *

The victim testified that after the intruder left her apartment, she found the strange envelope on her bedroom floor where a significant portion of the attack occurred. She described it as a long white envelope with some writing on the outside. She stated she placed it on a table and then gave it to the police when they arrived at her apartment the following morning. She testified on cross-examination that there was only one intruder involved in the incident, which would foreclose the possibility of the envelope belonging to another suspect. Her testimony shows that the letter was not in her apartment before the attack and that she found it in her apartment immediately afterward.

Officer Little testified that when he arrived at the apartment the victim presented him with a white, long envelope that had writing on the outside. He said the envelope was in his possession from the time he received it from the victim until he stored it in the property room at the police station. At the trial, he identified the envelope and testified that the serial numbers placed on it for identity purposes at the property room matched. Officer Little testified that, to his knowledge, no one had tampered with the envelope or its contents other than those officers who tested it for fingerprints. A fingerprinting specialist with the Little Rock Police Department testified that the fingerprints from the envelope matched those on Everick Monk’s print card.

Given the testimony of those witnesses, we cannot say the Trial Court abused his discretion in concluding the identity of the envelope and its contents was sufficiently established as that found by the victim in her apartment. That evidence contributed materially to overall strength and sufficiency of the evidence identifying Mr. Monk as the assailant.

Affirmed.


text:
    Anita ZARUBA v. Levi PHILLIPS, Cindy George, and Jack Mace as Members of the Board of Election Commission of Carroll County, Arkansas; Shirley Doss, Clerk, Carroll County; Don Wilson and Jr. Hill
    94-1190
    895 S.W.2d 544
    Supreme Court of Arkansas
    Opinion delivered April 3, 1995

      Murphy & Carlisle, by: Marshall N. Carlisle, for appellant.

      Kenneth Elser, Deputy Prosecuting Attorney, for appellees.
   David Newbern, Justice.

Anita Zaruba, the appellant, is a registered voter and taxpayer residing in Omega Township, Carroll County. She sought to enjoin the appellees, who are members of the County Election Commission, and other county officials from conducting a local option (wet-dry) election in Omega Township. She contended those petitioning for the election had not presented a sufficient number of signatures prior to the deadline 60 days before the proposed election. The petition was certified by the County Clerk, and the election was held November 8, 1994. The drys won 110 to 32. We hold the Chancellor properly dismissed Ms. Zaruba’s claim for lack of jurisdiction of the subject matter.

Ms. Zaruba claimed the Chancellor had jurisdiction because her claim was founded upon Ark. Const. Art. 16, § 13, which deals with illegal exactions. Her theory was that public funding of the election would constitute an illegal exaction.

The illegal exaction issue cannot even be approached without first deciding the sufficiency of the petition. The issue of the sufficiency of the petition for a local option election is one over which chancery court has no jurisdiction. McFerrin v. Knight, 265 Ark. 658, 580 S.W.2d 463 (1979). We affirm the decision and decline to remand for transfer to the Circuit Court because the sufficiency of the petition cannot be questioned after the election has been held. Herrington v. Hall, 238 Ark. 156, 381 S.W.2d 529 (1964).

Affirmed.


author: Tom Glaze, Justice.

text:
    John BROWN v. STATE of Arkansas
    CR 94-1395
    895 S.W.2d 909
    Supreme Court of Arkansas
    Opinion delivered April 3, 1995

      William R. Simpson, Jr., Public Defender by: Kent C. Krause, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant John Brown appeals from convictions on two counts of aggravated robbery and one count of theft. His sentences total forty years imprisonment. Brown raises three points for reversal, but none has merit.

In his first argument, Brown challenges certain state evidence as being inadmissible hearsay. At trial, state witness, Charlotte Clark, testified that on November 26, 1993, she was working as a cashier at Delta Express in Little Rock, when a man entered the store demanding money. The man had his hand in his pants, and Clark had the impression he had a weapon. She further related that, Anjuanita Cunningham, another store clerk, refused the man’s demands, and as the man left, he threatened to return to blow up the store. Clark said that Cunningham saw the man enter an old grey and silver Buick, and while watching him drive away, she called out the Buick’s license plate to Clark, who wrote its numbers down on a piece of paper. During her direct testimony, Clark identified State’s Exhibit 1 as being the slip of paper bearing the license plate numbers given her by Cunningham and Brown’s counsel objected, stating the exhibit was inadmissible hearsay. The trial court overruled Brown’s objection. On appeal, Brown urges the exhibit should have been excluded because it contained Cunningham’s, not Clark’s, perceptions which were written down by Clark, and Brown was unable to cross examine Cunningham regarding her reliability since she was not a witness.

Clark’s oral description of the license plate on the robber’s vehicle as it left the scene was admissible under A.R.E. Rule 803(1) as a present sense impression. In Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987), the court discussed Rule 803(1) as follows:

A present sense impression is “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” A.R.E. Rule 803(1). A present sense impression must describe or explain the event the declarant is perceiving. D. Binder, Hearsay Handbook, 2nd Ed. § 101 (1983). The statement must be made while the event or condition is being perceived by the declarant. 4 Weinstein, Evidence, § 803(1)[01] (1985). The statement is required to be contemporaneous or near contemporaneous with the event. Binder, supra.

Here, Cunningham’s contemporaneous statement describing the robber’s actions, car and license plate numbers upon his leaving the crime scene falls within the present sense impression exception to the hearsay rule. Thus, the trial court did not abuse its discretion in allowing Clark’s testimony relating Cunningham’s descriptions and perceptions made at the time of the crimes.

Brown’s second point concerns his pretrial motion in limine which requested the exclusion of anticipated trial testimony that officers had found marijuana at Brown’s residence at the time of his apprehension. Brown argued simply that such testimony was irrelevant. The trial court agreed, and the state offered to caution witnesses not to mention the subject. Nonetheless, Officer Andy Garrett testified to Brown’s arrest and the search of his residence, and when he mentioned finding two articles of Brown’s clothing in the closet, the prosecutor asked the officer what he did with them. Garrett replied:

I took these in custody and I stored them at the LRPD property department there until trial. I also found a small bag of green vegetable matter inside the green jeans, and which I also found $4.00 and some change like loose coins, assorted U.S. coins, inside the jeans.

Brown requested a mistrial which was denied, and on appeal, he argues the trial court’s ruling was prejudicial error because Garrett’s testimony was irrelevant and was introduced merely for the purpose of showing Brown to be a man of bad character in violation of A.R.E. Rule 404(b).

Trial courts are granted wide latitude of discretion in granting or denying a motion for mistrial, and the court’s decision will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994). Among the factors we consider on appeal are whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice. Id. Here, the prosecutor’s questioning cannot be said to have elicited Garrett’s reference to having found “a small bag of vegetable matter,” and after Garrett’s nonresponsive answer, Brown never requested a cautionary instruction or admonition to the jury. In these circumstances, we cannot say the trial court abused its discretion in denying Brown’s motion for mistrial.

Finally, Brown contends that, while the trial court correctly gave the lesser included instruction on robbery, it erred by failing to also instruct the jury on attempted aggravated robbery. Brown failed to proffer any such instruction and consequently, that argument is not preserved for appellate review. Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994).

For the reasons above, we affirm.

      We note that Brown never contends Cunningham was unavailable as a witness.


author: Donald L. Corbin, Justice.

text:
    MARTIN FARM ENTERPRISES, INC. v. Jerry HAYES
    94-868
    895 S.W.2d 535
    Supreme Court of Arkansas
    Opinion delivered April 3, 1995

      Womack, Landis, Phelps, McNeill & McDaniel, by: G. S. Brant Perkins, for appellant.

      J. Scott Davidson, for appellee.
   Donald L. Corbin, Justice.

Appellant, Martin Farm Enterprises, Inc., as third party plaintiff, appeals an order of the Cleburne County Circuit Court granting the motion for summary judgment of appellee, Jerry Hayes, as third party defendant, and dismissing with prejudice appellant’s third party complaint for indemnity and contribution. Our jurisdiction of the appeal is proper, pursuant to Ark. Sup. Ct. R. l-2(a)(16) and (d), respectively, because it raises a question about the law of torts and was certified to this court by the court of appeals. The gravamen of appellant’s argument is that the trial court erred in dismissing the third party complaint “with prejudice” rather than “without prejudice.” We agree and reverse.

A review of the procedural history of this case is helpful. The primary action in this case was filed on July 23, 1992 by Carolyn E. Phillips, et vir. (collectively “Phillips”) against appellant and Collier Farms, Inc. On September 3, 1992, Phillips was granted a voluntary nonsuit as to Collier Farms, Inc. because it was an improper party to the action. On the same date, she filed an amendment to her complaint substituting Franklin Collier d/b/a Collier Farms (“Collier”) as appellant’s co-defendant in the primary action. Phillips sought damages for her personal injuries, medical expenses, and loss of income which, she alleged, resulted from her consumption of meat, eggs and milk produced by certain of her farm animals which had consumed feed contaminated by unlawful amounts of the chemical heptachlor. Phillips alleged that the defective feed had been supplied by Collier to appellant, who then sold it to Phillips.

Appellant’s initial responsive pleading, filed on September 14,1992, included a third party complaint against appellee, which read as follows:

10. By way of third party complaint, [appellant] states that all the feed which [appellant] purchased was supplied from [appellee.] If said feed was defective, then [appellant] is entitled to indemnity and/or contribution based upon the Arkansas Products Liability Act, A.C.A. § 16-116-107.

Appellee, as third party defendant, timely filed a motion to dismiss both the third party complaint and the primary complaint, or, in the alternative, for judgment on the pleadings. Appellee argued that both complaints against him were barred by the applicable statute of limitations, and, as to the third party complaint only, he argued that section 16-116-107 did not afford appellant a claim for indemnity against him.

Thereafter appellee moved for summary judgment as to both complaints. Appellee argued that he was entitled to judgment as a matter of law because the complaints against him were barred by the applicable statute of limitations. As to the third party complaint only, he argued that, because he had no liability to Phillips, inasmuch as her complaint against him was time-barred, likewise no “common liability” existed vis-a-vis appellee and appellant to Phillips, and, therefore, appellant had no right to contribution from appellee pursuant to the Uniform Contribution Among Tortfeasors Act, Ark. Code Ann. §§ 16-61-201 to -210 (1987).

Summary judgment motions were also filed by Collier and appellant in the primary action wherein each defendant argued that Phillips had failed to show the cause of her injuries. By orders filed on February 22, 1994 and March 8, 1994, the circuit court granted the summary judgment motions of Collier and appellant for lack of causation, and dismissed the complaint against them without prejudice. The record on appeal does not reflect whether Phillips refiled her complaint.

By order filed on February 15, 1994 and refiled on May 4, 1994, the circuit court granted appellee’s summary judgment motions and dismissed the complaints against him with prejudice. This appeal arises from the May 4, 1994 order with respect to the dismissal of the third party complaint only. No other appeal has been taken by any party.

On appeal, appellant argues that the circuit court’s error in granting appellee’s summary judgment motion and dismissing the third party complaint with prejudice was two-fold. First, the trial court’s reasons for granting the motion were erroneous. Second, dismissal of the third party complaint with prejudice was error because the dismissal of the primary complaint rendered the third party complaint moot. Because we agree with appellant’s second argument and reverse the circuit court’s judgment, we do not address appellant’s first argument.

A claim for contribution among tortfeasors is a derivative or conditional action in that the contribution-claimant, e.g., the third party plaintiff (defendant), is not entitled to a money judgment against the party from whom contribution is sought, e.g., the third party defendant, until the third party plaintiff has paid more than his pro rata share of their common liability. Section 16-61-202(2). Under section 16-61-207(1), however, the third party plaintiff is not required to wait until he has paid the judgment to implead in the primary action other persons who are or may be jointly liable for the tort, but may move for leave as a third party plaintiff “to serve a summons and complaint upon a person not a party to the action who is or may be liable as a joint tortfeasor to him or to the plaintiff for all or part of the plaintiff’s claim against him.”

The purpose of section 16-61-207(1) is expressed in the prefatory note of the National Conference of Commissioners on Uniform State Laws (1939 Act), as follows:

This Subsection enables one or more of several joint tortfeasors sued by the injured person to add as third-party defendants any fellow joint tortfeasors whom they believe to have been also responsible for the tort complained of and to litigate against them in the injured person’s action any claims for contribution. In this way, the interests of justice may be promoted by obviating the necessity of a separate action for contribution. It should be noted that this Section does not affect in any way the substantive law of contribution concerning the accrual of a cause of action for contribution as set forth in Section 2, Subsection (2) (A.C.A. § 16-61-202(2)), above. It merely provides for a litigation, in advance, of those issues upon which the claim for a money judgment for contribution will ultimately depend. A cross-claimant (third-party plaintiff) who is successful on his cross-claim for contribution cannot procure a money judgment for contribution unless he has paid more than his pro rata share of any judgment liability he may have sustained to the injured person, in accordance with the provisions of Section 2, Subsection (2) (A.C.A. § 16-61-202(2)) of this Act.

Although the commissioners’ interpretation of the statute is not binding upon this court, we have stated that it is highly persuasive and should be adopted in the absence of clear error or a conflict with settled policy of this state. Shultz v. Young, 205 Ark. 533, 169 S.W.2d 648 (1943).

Similarly, a claim for indemnity is a derivative or conditional action in that it is an action by one who is compelled to pay money which ought to be paid by another to recover the sums so paid. Carpetland of N.W. Ark., Inc. v. Howard, 304 Ark. 420, 803 S.W.2d 512 (1991).

In the present case, when appellant’s summary judgment motion in the primary case was granted and the complaint against it was dismissed, appellant’s derivative third party complaint against appellee necessarily became moot. Faser v. Sears, Roebuck & Co., 674 F.2d 856 (11th Cir. 1982). Said another way, as a result of the dismissal of the complaint against appellant, there no longer existed any legal action to determine appellant’s liability to Phillips. Thus, any judgment rendered on appellant’s third party complaint would have no practical effect upon a then existing legal controversy; therefore, the third party complaint became moot. Stair v. Phillips, 315 Ark. 429, 867 S.W.2d 453 (1993).

This court has previously stated that it is not convinced that summary judgment is the proper way to dispose of a case that is moot. Covell v. Bailey, 296 Ark. 397, 757 S.W.2d 543 (1988) (substituting an order of dismissal, on de novo review, for the chancellor’s order of summary judgment disposing of a moot case). In the present case, the circuit court granted appellee’s summary judgment motion and dismissed appellant’s third party complaint with prejudice, which operated as a final adjudication on the merits and a bar to subsequent suits on the same cause of action. Magness v. McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991). This disposition was error. A moot case presents no justiciable issue for determination by the court. Sebastian County Ass’n for Retarded Citizens and Indep. Living, Inc. v. Board of Zoning Adjustment of the City of Fort Smith, 265 Ark. 175, 577 S.W.2d 394 (1979). Once the third party complaint became moot, appellee’s summary judgment motion, with respect to the third party complaint, should have been denied without addressing its merits, Faser, 674 F.2d 856, and the third party complaint dismissed without prejudice on the grounds of mootness of the issues, lack of jurisdiction and non-justiciable nature of the issues as presented. See Board of Zoning Adjustment, Ark. R. Civ. P. 12(h)(3).

We reverse the circuit court’s judgment and remand with directions to enter an order consistent with this opinion.