author: Robert L. Brown, Justice.

text:
    Vincent Anthony SANSEVERO v. STATE of Arkansas
    CR 00-1397
    45 S.W.3d 840
    Supreme Court of Arkansas
    Opinion delivered June 21, 2001

      William R. Simpson, Jr., Public Defender, and Sandra Cordi, Deputy Public Defender; by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

In this appeal, appellant Anthony Vincent Sansevero raises the sole issue of whether the evidence presented by the State was insufficient to convict him of battery in the second degree. We agree that it was, and we reverse the judgment of conviction for second-degree battery and remand.

On July 22, 1999, the victim, eleven-year-old K.S., was babysitting in Litde Rock for the children of Karen McCammon, who are named Robert and Marie. At the time, Robert was age six and Marie was age four. K.S. stated that it was her first time to babysit in another person’s home, but added that the McCammon’s house was very near to her home. K.S. testified that she was babysitting in the daytime, while Ms. McCammon went to a doctor’s appointment for approximately an hour.

Ms. McCammon left for her doctor’s appointment at about 8:22 a.m., and K.S. and the two children sat down to watch television. The doorbell rang, and K.S. answered the door. It was a man, and he asked for a drink of water from the hose outside. K.S. agreed and closed the door. About five minutes later, a man rang the doorbell again. It was Sansevero. He also asked for water, and this time K.S. went to the kitchen to get him some water. She returned to the door and gave him a plastic cup filled with water. At that time, Sansevero asked if he could use the telephone. K.S. replied, “No, I’m sorry.” Sansevero then pushed his way past K.S. into the house and locked the door behind him. He grabbed K.S. by the neck and pushed her up the stairs and into a bedroom. K.S. testified that she did not scream or yell, and that the children did not see her being pushed up the stairs.

Once in the bedroom, Sansevero closed the door. K.S. stated that she was crying at this point. He ordered her to take off her clothes, and she said, “No.” He then ordered her again to take off her clothes and tried to do so himself but was not able to get her clothes off. He then hit her across the face. Sansevero next asked, “Where do your parents keep the money?”, and she responded, “I don’t know. This isn’t my house.” K.S. stated that Sansevero went downstairs at that time, and she followed because she was not sure what he was going to do and the children were downstairs. He forced her a second time up the stairs, and this time, he undressed her and raped her.

During the rape, one of the children, Robert, came to the bedroom door and asked K.S. to play a video tape for the children. K.S. stated that when Robert knocked on the door, Sansevero got off of her and began to put his clothes back on. Sansevero told K.S. to get dressed and to clean up. While she was getting dressed, Sansevero told her, “If you tell anybody, I’m going to kill you.” K.S. testified that she went downstairs to sit with the children. When Sansevero came down, he repeated the threat and said, “If you tell anyone, I’ll find you and I’U kill you.” He then left.

Ms. McCammon arrived home approximately five to ten minutes later and took K.S. home. K.S. told her mother what had happened, and her father called the Little Rock Police Department. K.S. subsequently gave the clothes she was wearing to police officers and went to Arkansas Children’s Hospital for a sexual-assault examination. At the crime scene, police officers obtained evidence, including the plastic cup that Sansevero drank from. The police officers were able to lift fingerprints from that cup, which matched the fingerprints of Sansevero. The investigation also revealed other DNA evidence, including semen, finking Sansevero to the crime. He was arrested and charged with rape, residential burglary, terroristic threatening, and second-degree battery. Enhancement of any sentence was requested due to his having been convicted of more than four previous felonies.

Sansevero was tried by a jury and convicted on all counts. Proof of five prior convictions was introduced, and he was sentenced to life imprisonment for rape, forty years for residential burglary, fifteen years for terroristic threatening, and fifteen years for battery in the second degree.

Sansevero only appeals his conviction for second-degree battery. He argues that there was insufficient evidence to support a conviction for battery in the second degree because the State failed to prove by substantial evidence that he knew the victim was less than thirteen years of age at the time of the offense. This charge arose from the testimony of K.S. that when she resisted his orders to take off her clothes, he slapped both sides of her face with his hand, causing bruising. Sansevero contends that he was charged with causing physical injury to K.S., who he knew to be twelve years of age or younger. He denies that he knew K.S.’s age.

Second-degree battery is defined in Ark. Code Ann. § 5-13-202(a)(4)(C) (Supp. 1999), and reads in pertinent part:

(a) A person commits battery in the second degree if:
(4) He intentionally or knowingly, without legal justification, causes physical injury to one he knows to be:
(C) An individual sixty (60) years of age or older or twelve (12) years of age or younger[.]

(Emphasis added.) The jury was instructed on this specific definition of battery and returned a guilty verdict. No evidence was presented by the State that Sansevero knew K.S. was twelve years old or younger.

Sansevero directs this court’s attention to an opinion by the court of appeals in Hubbard v. State, 20 Ark. App. 146, 725 S.W.2d 579 (1987). In Hubbard, the issue presented was whether the defendant knew the victim to be sixty years of age or older under the second-degree battery statute. The court of appeals concluded that the State had to prove that the defendant had actual knowledge of the victim’s age under the language of the statute. The court said:

The plain wording of § 41-1602(1) (d) (iii) [now § 5-13-202(a)(4)(C)] imparts that knowledge on the part of the defendant must be personal to him. The statute does not provide a substitute or explanatory equivalent. We believe the test is whether from the circumstances in the case at bar, appellant, not some other person or persons, knew that his victim was sixty years of age or older. A different result by this court could have been reached had the General Assembly defined “knows to be” in the above statute to include one who has information that would lead an ordinary, prudent person faced with similar information to believe that the information is fact.

Hubbard, 20 Ark. App. at 148-149, 725 S.W.2d at 580-581.

The State counters this by arguing that K.S.’s physical appearance, standing alone, was circumstantial evidence of her age and constituted substantial evidence that Sansevero knew that K.S. was twelve or younger. The State cites the court to Clark v. State, 246 Ark. 876, 440 S.W.2d 205 (1969), where Justice Fogleman, in a concurring opinion, wrote that age may be proved in many different ways such as by the appearance of the individual to the jury. The State contends that the jury could infer that Sansevero knew of the victim’s age when he battered her based on her appearance and her obvious youth. See also Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995) (jury’s observation of defendant at trial was sufficient circumstantial evidence that he was more than sixteen years old).

It falls our lot to interpret the language of § 5-13-202(a)(4)(C) and specifically what the General Assembly intended by the phrase “knows to be.” We strictly construe criminal statutes and resolve any doubts in favor of the defendant. Hagar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000); Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993). It is also axiomatic that in statutory interpretation matters, we are first and foremost concerned with ascertaining the intent of the General Assembly. State v. Havens, 337 Ark. 161, 987 S.W.2d 686 (1999). In cases of statutory interpretation, we give words their ordinary and usually accepted meaning. Hagar v. State, supra; Bush v. State, 338 Ark. 772, 2 S.W.3d 761 (1999). In the case before us, the General Assembly has expressly provided that in order to commit second-degree battery, it is necessary that Sansevero knew K.S. to be age twelve or younger. The language of the statute is clear and unmistakable and differs significantly from statutes such as the rape statute which merely provide that the victim be a certain age and not that the defendant know what that age is. See, e.g, Ark. Code Ann. § 5-14-103(a)(4) (Repl. 1997). Moreover, the General Assembly has expressly provided that with respect to sexual offenses involving children beiow the age of fourteen, it is no defense that the defendant did not know the age of the child. See Ark. Code Ann. § 5-14-102(b) (Repl. 1997). No comparable language is contained in the second-degree battery statute.

We take note of the fact that since the court of appeals handed down Hubbard v. State, supra, in 1987, the General Assembly has amended § 5-13-202 in three legislative sessions. Despite this focus on the statute, the General Assembly has failed to address the issue of the “knows to be” language which was pointed out to that body in the Hubbard decision. Hence, we can only conclude that the General Assembly has intended to retain the “knows to be” language, as interpreted in Hubbard.

We, therefore, hold that the State failed to establish proof of an essential element of the second-degree battery offense, which was Sansevero’s actual knowledge of the age of K.S. We modify the conviction to battery in the third degree, a Class A misdemeanor, which has no knowledge-of-age requirement, and assess the maximum term of one year imprisonment in the county jail. See Ark. Code Ann. §§ 5-4-401(b)(1), 5-13-203 (Repl. 1997). We credit Sansevero, however, with the time served of 390 days, leaving no time to be served on this judgment of conviction.

This appeal did not involve Sansevero’s convictions for rape, residential burglary, and terroristic threatening. Thus, the sentences assessed in connection with those convictions will remain in place. The judgment of conviction for second-degree battery is reversed and modified and this matter is remanded for entry of a judgment consistent with this opinion.

The record in this case has been reviewed for other reversible error pursuant to Ark. Sup. Ct. R. 4-3 (h), and none has been found.

Reversed and remanded.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    CITY of VAN BUREN, Arkansas v. Curtis SMITH
    01-73
    46 S.W.3d 527
    Supreme Court of Arkansas
    Opinion delivered June 21, 2001

      Hardin, Jesson & Terry, PLC, by: J. Rodney Mills and J. Leslie Evitts, III, for appellant.

      Ray Hodnett, for appellant.
   Annabelle Clinton Imber, Justice.

Curtis Smith, a fifteen-year veteran of the Van Buren Fire Department, was discharged from his position as a firefighter on January 29, 1999, by the Mayor of Van Buren. The City of Van Buren asserted that Mr. Smith’s termination was the result of three separate events that occurred on January 27, 1999, in which Mr. Smith acted inappropriately toward superior officers and thereby violated department rules. The termination was upheld by the Van Burén Civil Service Commission. On appeal to the circuit court, the circuit judge took additional testimony and found that, while Mr. Smith had violated the department’s rules and regulations, his inappropriate behavior on January 27, 1999, was not the actual reason for the termination, but merely a pretext; rather, Mr. Smith’s termination actually resulted from his public criticism of the Van Buren Police Department’s handling of a drowning incident in October of 1998. In reversing the decision of the Van Buren Civil Service Commission, the circuit court held that Mr. Smith should have been suspended for thirty days without pay and that he should be reinstated as a fireman. It is from this order that the City of Van Burén appeals. We affirm the circuit court.

I. Standard of Review

We review the findings of the circuit court to determine whether they are clearly against the preponderance of the evidence. Tovey v. City of Jacksonville, 305 Ark. 401, 808 S.W.2d 740 (1991); Dalton v. City of Russellville, 290 Ark. 603, 607, 720 S.W.2d 918 (1986). A finding is clearly erroneous when, although there is evidence to support-it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Foundation Telecommunications v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000).

II. Sufficiency of the Evidence

For its first point on appeal, the City of Van Burén argues that the preponderance of the evidence does not support the circuit court’s decision to reverse the civil service commission and reinstate Mr. Smith as a firefighter. “A right of appeal by the city or employee is given from any decision of the commission to the circuit court within whose jurisdiction the commission is situated.” Ark. Code Ann. § 14-51-308(e)(1)(A) (Repl. 1998). The circuit court reviews decisions of the civil service commission de novo and has jurisdiction to modify the punishment fixed by the commission even if the court agrees that the officer violated department rules and regulations. City of Little Rock v. Hall, 249 Ark. 337, 459 S.W.2d 119 (1970). See also Tovey v. City of Jacksonville, supra. The circuit court may modify the punishment even if the evidence it relies upon in doing so was not presented to the commission. City of Little Rock v. Hall, supra.

According to testimony before the Van Buren Civil Service Commission, Mr. Smith attended a training meeting conducted by Captain Teasie Harris on January 27, 1999. At that meeting, Capt. Harris was explaining the department’s new standard operating procedure, which called for the use of one-and-one-half-inch fines to combat vehicle fires rather than one-inch fines. During this explanation, Mr. Smith exclaimed loudly that “[t]hat was the stupidest G** d***ed thing he had ever heard.” Although Capt. Harris informed Mr. Smith that there would be no argument concerning the new procedure and attempted to resume training, Mr. Smith continued to argue with Capt. Harris. Both Capt. Harris and another witness, Leslie Stevenson, testified that Mr. Smith’s comment was directed toward Capt. Harris and that Mr. Smith’s outburst was disrespectful and degrading to Capt. Harris and to the department. Mr. Stevenson admitted that foul language was commonly used by members of the department, but he also stated that such language was never directed toward superior officers.

Later that same day, Captain Fred Trent was using the telephone at the fire station when Mr. Smith’s verbal banter became so loud that Capt. Trent had to leave the room to complete .his conversation. Mr. Smith became even louder, thereby forcing Capt. Trent to return to the room on two separate occasions to ask Mr. Smith to be quiet. Battalion Chief Gary Huffman, who witnessed the incident, testified that Mr. Smith was using obscene language, “razzing” Capt. Trent about his telephone usage, and being generally disrespectful to his superior officer.

Finally, that same day, Chief Dennis Gilstrap of the Van Buren Fire Department undertook to speak with Mr. Smith about these instances of insubordination. White he was attempting to do so, Mr. Smith continually interrupted him with questions such as “[w]hat in the h*** did I do?” and “[w]ell, what in the f*** did I do?” Chief Gilstrap felt that Mr. Smith was deliberately attempting to make him angry and twice instructed Mr. Smith to “shut up.” Mr. Smith continued his antagonism until Chief Gilstrap finally ordered him to go home. Chief Gilstrap suspended Mr. Smith without pay until further notice and recommended to the Mayor of Van Buren that Mr. Smith’s employment be terminated. Mayor John Riggs accepted the chiefs recommendation and terminated Mr. Smith’s employment for violations of the Van Buren Fire Department Rules and Regulations, Sections 15 and 44.

The specific sections that Mr. Smith was accused of violating provide as follows:

SECTION 15: Officers and members are cautioned that the use of obscene, immoral, profane or disrespectful language, agitating and acts tending to create dissension in the department, or attempt to cast unfavorable reflections upon any members of the department will not be tolerated.
SECTION 44: The following acts, infractions or violations of the rules and regulations shall be deemed, upon conviction, as sufficient cause for separation from the service.
1. Willful disobedience to orders.
3. Disrespect or insolence toward a superior officer.
* * *
7. Conduct unbecoming an officer or member of the department.
* * *
9. Agitating or creating dissension in any manner whatsoever to create dissatisfaction with any member or members, or ill feeling of any kind.

The Van Buren Civil Service Commission unanimously upheld the mayor’s decision. Mr. Smith then appealed the commission’s determination to the Circuit Court of Crawford County. The circuit court allowed Mr. Smith to present additional evidence pertaining to an incident at Lake Lou Emma on October 23, 1998, wherein Mr. Smith attempted to save the life of a drowning woman. Mr. Smith became disgruntled when he arrived at Lake Lou Emma in response to an emergency call and observed two police officers and the fire marshall standing nearby watching a woman floating in the lake. Mr. Smith asserted that these officials had been on the scene for at least fifteen minutes without attempting to help her and that, when he entered the water in an attempt to save her from drowning, they offered him no assistance. Mr. Smith was able to successfully remove the woman from the water, but she subsequently died.

Unhappy with the behavior of the officers on the scene, Mr. Smith wrote a letter to Van Buren’s mayor, fire chief, police chief, and city council members, charging that the officers “committed a severe dereliction of duty bordering on the criminal and should be subjected to disciplinary measures fitting for such gross incompetence.” Robert “Bob” Gilstrap, who was Chief of the Van Buren Fire Department at the time of the Lake Lou Emma incident, testified that he “felt like [Mr. Smith] had probably stepped over a fine, and he had himself in a position that could cause some problems” as a result of his letter to the various city officials. Bob Gilstrap was the fire chief for about seven years, beginning in 1992. He testified that even before he became chief, there had been talk about discharging Mr. Smith because of conflicts between Mr. Smith and the previous fire chief. He further testified that he would have had grounds during his own term as fire chief to terminate Mr. Smith’s employment based upon violations of department rules, but that he considered Mr. Smith to be a good emergency-service worker. According to Bob Gilstrap, “one of [Mr. Smith’s] shortcomings was that he was strong-willed and opinionated. . . . He had an opinion on just about everything, and he usually stated it. That would put him in conflict with his superiors and the former Chief had problems with him.”

On January 1, 1999, Dennis Gilstrap succeeded his brother, Bob Gilstrap, as Chief of the Van Burén Fire Department. Within one month of assuming his duties as fire chief, Dennis Gilstrap recommended that Mayor Riggs discharge Mr. Smith. According to one witness, Bob Gilstrap disclosed that Dennis Gilstrap had made a statement, shortly after the drowning incident in October 1998, that Mr. Smith’s “days were numbered” at the fire department because of his letter complaining about the police officers’ actions at Lake Lou Emma. Chief Dennis Gilstrap denied making any such statement. He testified that he had very limited knowledge of the events surrounding the Lake Lou Emma incident and that it was not a motivating factor in his decision to recommend to the mayor that Mr. Smith be terminated.

In an order entered on October 11, 2000, the Crawford County Circuit Court ruled that Mr. Smith had been wrongfully terminated. The circuit court found that the correspondence sent by Mr. Smith to city officials as a result of the drowning incident at Lake Lou Emma “had a direct bearing [on], if not the total reason, for [Mr. Smith’s] termination.” The court further noted that “[t]here is no doubt that Fireman Smith is opinionated, and often speaks when it would be better to simply listen. However, the City of Van Burén tolerated this behavior for fifteen years, and to now use this as a reason for termination points more, in the Court’s opinion, to the incident at Lake Lou Emma.” Thus, the circuit court made the determination that Mr. Smith’s termination was not predicated upon the three incidents that occurred at the fire station on January 27, 1999, but that his termination resulted from Mr. Smith’s criticism of the Van Burén Police Department. According to the circuit court’s order, this determination was based on (1) testimony by the former fire chief, Bob Gilstrap, that he believed Mr. Smith had gone too far by writing the letter; (2) the testimony of several firemen, including former Chief Bob Gilstrap, who indicated Mr. Smith was a good fireman, particularly out on the job, but that problems arose from his being opinionated; and (3) the fact that Chief Dennis Gilstrap had “philosophical differences” with Mr. Smith and had not always gotten along with him. Although the circuit court recognized that Mr. Smith’s cursing would ordinarily be sufficient grounds for termination of employment, the evidence demonstrated that such cursing was common around the fire station. Under these circumstances, the court found that Mr. Smith’s inappropriate behavior on January 27, 1999, was not a sufficient basis for termination in the case at bar.

The circuit court reversed the commission’s decision upholding Mr. Smith’s discharge and held instead that Mr. Smith should have been suspended without pay for thirty days. The court order also reinstated Mr. Smith as a fireman for the City of Van Buren. Such a modification is within the authority of the circuit court. City of Little Rock v. Hall, supra. Based upon the evidence before the commission, along with the additional evidence originally presented to the circuit court, we cannot say that the circuit court’s findings, as set forth in its order and judgment, are clearly against the preponderance of the evidence.

III. Presentation of Additional Evidence

For its second point on appeal, the City of Van Burén contends that it was error for the circuit court to admit into evidence testimony concerning events that occurred prior to January 27, 1999. Specifically, Van Buren asserts that such evidence is irrelevant to the issue of whether Mr. Smith’s employment was properly terminated because of his behavior on January 27, 1999. Van Buren further argues that Mr. Smith waived his right to present additional evidence and should have been estopped from doing so because, at the hearing before the commission, he argued that no evidence of events preceding January 27, 1999, should be introduced.

The circuit court “shall review the commission’s decision on the record and may, in addition, hear testimony or allow the introduction of further evidence upon the request of either the city or the employee,” provided the evidence is competent and otherwise admissible. Ark. Code Ann. § 14-51-308(e)(1)(C) (Repl. 1998). “The relevancy of evidence is within the trial court’s discretion, subject to review if abused.” Dalton v. City of Russellville, 290 Ark. 603, 607, 720 S.W.2d 918, 921 (1986).

Van Burén has offered no citation to authority to support its argument that the trial court erred in allowing additional evidence to be presented despite its statutory authority to do so. This court does not consider arguments that are unsupported by convincing argument or sufficient citation to legal authority. Arkansas Pub. Defender Comm’n v. Greene County Cir. Ct., 343 Ark. 49, 32 S.W.3d 470 (2000); Judicial Discipline & Disab. Comm’n v. Thompson, 341 Ark. 253, 16 S.W.3d 212 (2000); Rainey v. Hartness, 339 Ark. 293, 5 S.W.3d 410 (1999). Moreover, we cannot say that the circuit court abused its discretion by admitting the additional evidence that was relevant to the issue of whether Mr. Smith’s behavior on January 27, 1999, was the actual reason for Mr. Smith’s termination or merely a pretext.

Affirmed.

       The court ordered Mr. Smith to attend counseling with Dr. Philip Barling “in an effort to help his working relationship with city personnel, and to alleviate the conflict created by his opinionated views.”

       On December 29, 2000, the circuit court entered judgment against the City of Van Buren for Mr. Smith’s lost wages in the amount of $15,122.13, and further awarded costs in the amount of $1,100.00. These figures are not disputed by the City of Van Buren.


author: Ray Thornton, Justice.

text:
    Jerry BULLINGTON, d/b/a Bullington Builders, Inc. v. Helen PALANGIO
    00-878
    45 S.W.3d 834
    Supreme Court of Arkansas
    Opinion delivered June 21, 2001

      The Blagg Law Firm, by: Ralph J. Blagg and Brad A. Cazort, for appellant.

      Morgan & Tester, P.A., by: Kent Tester, for appellee.
   Ray Thornton, Justice.

Appellant, Jerry Bullington, doing business as Bullington Builders, Inc., appeals the January 27, 2000, judgment of the Van Burén County Circuit Court, finding him individually Hable to appellee, Helen Palangio, and awarding damages to appellee in the amount of $19,000.00. Appellant raises two points for reversal: (1) the trial court erred in allowing the jury to impose personal liability upon appellant, and (2) the trial court erred in submitting the issue of waiver of implied warranties to the jury. We find no reversible error and affirm.

On July 9, 1994, the parties entered into a contract for the construction of appellee’s new residence in Damascus. The contract was signed on July 11, 1994, and is entitled “Buffington Builders, Inc.” at the top of the contract, but is entitled “Jerry Buffington” at the upper right-hand corner. The language of the contract provides that the contract is between “Jerry Buffington, d/b/a Buffington Builders, Inc.” and “Helen Palangio.” The contract was executed by Jerry Buffington, d/b/a Buffington Builders, Inc., and does not indicate any official capacity as a corporate officer.

Buffington Builders, Inc. (“Corporation”), was incorporated on December 29, 1993. The Corporation’s only stockholders were appellant, who managed the business, and appellant’s wife. The Corporation failed to pay its franchise taxes, and its charter was revoked approximately one and one-half months before the completion of construction on appellee’s home. The Corporation’s charter was not reinstated.

The contract provides for a one-year express warranty for workmanship and materials beyond normal wear and tear. The contract further states that the “ [contractor will expedite work in a timely manner without sacrificing quality. Quality will not be sacrificed under any circumstances.” The contract is silent with regard to implied warranties of habitability and proper construction.

Following completion of the residence, appellant sought to remedy appellee’s complaints about the construction, but she was not satisfied. After more than one year had passed, appellee contracted with another builder to remedy the defects she alleged.

On October 15, 1997, following the completion of these repairs, appellee brought this action against Jerry Bullington, d/b/a Bullington Builders, Inc., alleging negligence, breach of implied warranty, and breach of contract. Specifically, appellee alleged various acts of negligent construction, including negligent construction of steps from the garage into the house, negligent construction of the concrete driveway, negligent construction of the attic, negligent construction of support piers, and various instances of negligence pertaining to cosmetic features of the house.

On December 10, 1998, the complaint was amended to include Bullington personally as a defendant, asserting that the corporate entity did not shield him from personal liability for negligence, breach of implied warranties, and breach of contract, and asking the court to hold him. and the Corporation jointly and severally liable for appellee’s damages. The complaint was further amended to allege that appellant failed to follow the plan provided by appellee as set out in the contract between the parties, amounting to breach of contract.

At the conclusion of the trial, the jury returned a general verdict; finding appellant individually liable to appellee and awarding damages of $19,000.00 to her. The jury found no liability with regard to the Corporation. The trial court entered judgment in accordance with the jury verdict, and appellant brings this appeal.

1. Personal Liability

We first consider whether it was error to hold appellant personally hable for performance of the residential construction contract. We note that this case presents three possible rationales for imposing personal liability upon appellant as an individual.

The first rationale is that even if the contract was originally executed as a binding agreement to be performed by the Corporation, appellant, as owner and manager of the Corporation, became personally liable as an individual who continued to fully perform the terms and conditions of the construction contract after the corporate charter was revoked.

The second rationale is that the construction contract was entered into by Jerry Bullington, d/b/a Bullington Builders, Inc., rather than by the Corporation, and that the construction contract was not executed in the corporate name by its president and attested by its secretary.

The third rationale for imposing personal liability is appellee’s contention that the Corporation was so managed and controlled by appellant as to constitute a sole proprietorship; that the Corporation was merely an alter ego and a tool; and that the corporate veil should be pierced in order to impose personal liability upon appellant, who was acting for and on behalf of the Corporation.

We first address the issue raised by the first rationale: the effect of revocation of the corporate charter before the completion of construction. Several statutory provisions are applicable in analyzing this issue. Ark. Code Ann. § 26-54-104(a) (Repl. 1997) provides, in relevant part: “(a) Every corporation shall file an annual franchise tax report and pay an annual franchise tax, unless exempted under § 26-54-105....” Id. Additionally, Ark. Code Ann. § 26-54-111 (a) (Repl. 1997) provides:

(a) On or before January 1 of each year, the Secretary of State shall issue a proclamation proclaiming as forfeited the corporate charters or authorities, as the case may be, of all corporations, both domestic and foreign which, according to his records, are delinquent in the payment of the annual franchise tax for any prior year.

Id. Finally, Ark. Code Ann. § 4-27-1420 (Repl. 1996) provides:

The Secretary of State may commence a proceeding under § 4-27-1421 to administratively dissolve a corporation if:
1. The corporation does not pay within sixty (60) days after they are due any franchise taxes or penalties imposed by this chapter or other law.
* * *

Id. Reading these statutory provisions together, it is clear that our statutory law imposes an affirmative duty on the corporation to file franchise tax forms and pay the corresponding fees in order to maintain its corporate status.

In addition to our statutory law, we have well-established case law regarding the issue of whether personal liability attaches for liabilities that arise if a corporate charter is not perfected or is revoked. For example, in Gazette Publ’g Co. v. Brady, 204 Ark. 396, 162 S.W.2d 494 (1942), we stated that in order to exempt any association of persons from personal liability for the debts of a proposed corporation, they must comply fully with the act under which the corporation is created and that partial compliance with the act is not sufficient. Id.

In Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991), we expanded on the proposition we set forth in Gazette, supra, and stated that the reasoning behind cases holding officers and stockholders individually liable for obligations that arise during the operation of a corporation when the corporate charter has been revoked for nonpayment of franchise taxes is that they ought not be allowed to avoid personal liability because of their nonfeasance. Id. (citing Whitaker v. Mitchell Mfg. Co., 219 Ark. 779, 244 S.W.2d 965 (1952); Gazette, supra).

In addition, in H.T. Larzelere v. Reed, 35 Ark. App. 174, 816 S.W.2d 614 (1991), the Arkansas Court of Appeals held that “[o]fficers and directors of a corporation who actively participate in its operation during the time when the corporate charter is revoked for failure to pay corporate franchise taxes are individually liable for debts incurred during the period of revocation.” Id. (citing Mullenax v. Edward Sheet Metal Works, Inc., 279 Ark. 247, 650 S.W.2d 582 (1983); Moore v. Rommel, 233 Ark. 989, 350 S.W.2d 190 (1961)).

In the instant case, it is undisputed that the corporate charter of Buffington Builders, Inc., was revoked for failure to pay franchise taxes approximately one and one-half months prior to the completion of construction, and the charter was not reinstated. After the corporate charter was revoked, appellant individually assumed the performance of the contract. Based upon our case law, we hold that appellant was personally liable for any liabilities that resulted from faulty or incomplete performance of the contract, including those arising as breaches of express or implied warranties. Because the revocation of corporate status imposes personal liability upon appellant in this case, we need not address the issues presented by the second and third rationales upon which personal liability might be established.

II. Implied Warranties

We next consider whether it was error for the trial court to submit the issue of waiver of implied warranties to the jury. Appellant contends that the trial court erred by not finding as a matter of law that the contract between the parties constituted a waiver of implied warranties by the appellee.

As authority for his argument, appellant relies on Carter v. Quick, 263 Ark. 202, 563 S.W.2d 461 (1978), where we held that where a contract contains an express warranty on the subject of an asserted implied warranty, the former is exclusive and there is no implied warranty on that subject. Id. However, the ruling in Carter, supra, was that an implied warranty for materials and workmanship was replaced by a specific contractual warranty as to materials and workmanship. The expressed contractual warranty in Carter, supra, was that the builder promised that “he would build the house with the same quality and be as good as his own,” and stated, “If you want to look at my house look it over. I’ll build you one just like it with the same material and workmanship as my house.” Id. At trial, Carter moved for a directed verdict on the ground that Quick failed to show a breach of the contract because no evidence was presented as to the quality of workmanship of appellant’s residence. Id. In determining the effect of an express warranty upon an implied warranty in building contracts, we concluded that implied warranties are not applicable when there is an express warranty. Id. We further concluded that where a contract contains an express warranty on the subject of an asserted implied warranty, the former is exclusive and there is no implied warranty on that subject. Id. (citing Reed v. Rea-Patterson Milling Co., 186 Ark. 595, 54 S.W.2d 695 (1932); Earle v. Boyer, 172 Ark. 534, 289 S.W.490 (1927); Elder Grocery Co. v. Applegate, 151 Ark. 565, 237 S.W. 92 (1922); C.B. Ensign & Co. v. Coffelt, 119 Ark. 1, 177 S.W. 735 (1915)). Based upon these principles, we held that because Carter’s testimony was the only evidence pertaining to the quality of the workmanship on his own house, the evidence was not sufficient to show a breach of warranty and that Carter’s motion for a directed verdict should have been granted. Id.

Since Carter, supra, we have made it clear that implied warranties of habitability, sound workmanship, and proper construction are given by operation of law and are intended to hold a builder-vendor to a standard of fairness. We addressed this issue in O’Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997), where we stated:

In Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970), we adopted the view that by operation of law, a builder-vendor gives implied warranties of habitability, sound workmanship, and proper construction. The implied warranty does not rest upon an agreement, but arises by operation of law and is intended to hold the builder-vendor to a standard of fairness. Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983). However, implied warranties may be excluded when the circumstances surrounding the transaction are in themselves sufficient to call the buyer’s attention to the fact that no implied warranties are made or that a certain implied warranty is excluded. See Carter v. Quick, 263 Ark. 202, 563 S.W.2d 461 (1978); 77A CJS Sales § 266 (1994).

O’Mara, supra.

In the present case, there is an express warranty that covers workmanship and materials, but there is no express exclusion of implied warranties of habitability and proper construction to hold a builder to a standard of fairness. Under the principle set forth in Carter, supra, the fact that the contract contains an express warranty that deals specifically with workmanship supports a conclusion that the implied warranty of workmanship has been waived by the express contractual warranty of workmanship. However, our decision in Carter, supra, did not specifically address the effect of the waiver of the warranty of materials and workmanship upon the more fundamental implied warranties of habitability and proper construction, and we now hold that the principle set forth in Carter, supra, was limited to the effect of an express warranty upon an implied warranty on the same subject. With regard to implied warranties of habitability and proper construction, the contract in the present case does not disclaim such implied warranties and does not use any language to suggest that the construction is being accepted “as is” or “with faults” so as to waive such implied warranties. In addition, appellant testified that he did not explain to appellee that the language of the express warranty covering workmanship and materials for one year was intended to waive implied warranties for habitability and proper construction.

According to O’Mara, supra, implied warranties may be excluded when the circumstances surrounding the transaction are in themselves sufficient to call the buyer’s attention to the fact that no implied warranties are made or that a certain implied warranty is excluded. Id. Under this standard, the implied warranties of habitability and proper construction were not waived because they were not included in the language of the express warranty on workmanship. There is no showing that the buyer’s attention was called to any proposed exclusion of implied warranties of habitability and proper construction.

Moreover, the jury instruction concerning warranties essentially mirrored the language of our holding in O’Mara, supra. The jury instructions provided as follows:

For you to determine that the Plaintiff waived the implied warranty, you must consider that a builder, by operation of law, gives implied warranties of habitability, sound workmanship, and proper construction, and are intended to hold the builder to the standard of fairness.
These warranties may be excluded when circumstances surrounding transactions are themselves sufficient to call the buyer’s attention to the fact that no implied warranties are made or that certain implied warranties are excluded. You must determine whether there existed sufficient circumstances surrounding the transaction to call the Plaintiff’s, Helen Palangio’s, attention to the fact that no implied warranties were made or that certain implied warranties were excluded.

This instruction was not erroneous, and we affirm the trial court’s referral of this question of fact to the jury.

With respect to the verdict reached by the jury, we have consistently held that it is not the appellate court’s province to try issues of fact; the appellate court simply reviews the record for substantial evidence to support the jury’s verdict. E.g., City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000); Missouri Pac. Transp. Co. v. Jones, 197 Ark. 79, 122 S.W.2d 613 (1939) (holding that on questions of fact, the finding of the jury is conclusive). Because we defer to the jury as to findings of fact, and because there was substantial evidence to support its findings, we affirm.


author: Jim Hannah, Justice. Annabelle Clinton Imber, Justice,

text:
    Stephen CLEMMONS v. OFFICE of CHILD SUPPORT ENFORCEMENT
    01-258
    47 S.W.3d 227
    Supreme Court of Arkansas
    Opinion delivered June 21, 2001

      Kenneth A. Hodges, for appellant.

      Phillips & Douthit, by: Michael Lamoureux, for appellee.
   Jim Hannah, Justice.

Appellant Stephen L. Clemmons petitions for review from a court of appeals decision affirming the chancery court’s order awarding child support to Appellee Office of Child Support Enforcement (OCSE) in the amount of $20,775. Stephen argues on appeal that the chancery court erred in finding that his ex-wife, Sheila, maintained the right to collect child-support arrearages, which she assigned to OCSE, after the couple’s son, Christopher, had reached majority. Stephen also argues that the chancery court applied the wrong statute of limitations to allow OCSE to collect the entire amount of child-support arrearages due from a 1978 support order. We affirm the chancery court and the court of appeals.

Facts

The chronology of this case has been stated previously in the two prior court of appeals decisions in this case. See Office of Child Supp. Enforcem’t v. Clemmons, 65 Ark. App. 84, 984 S.W.2d 837 (1999); Clemmons v. Child Support Enforcement, 72 Ark. App. 443, 37 S.W.3d 687 (2001). These facts are restated here.

Sheila and Stephen Clemmons were married in the state of Missouri on March 4, 1971, and divorced there on October 16, 1974. One child, Christopher Stephen Clemmons, was born of that union on June 5, 1973. The couple divorced in Missouri on October 16, 1974, and Sheila was awarded custody of Christopher, with Stephen ordered to pay seventy-five dollars per month child support until Christopher entered the first grade, at which time support was to increase to one hundred dollars per month. The custody and support provisions of this decree were modified by the Missouri court on May 7, 1976, with Sheila having custody of the minor child for nine months during the regular school term and Stephen having custody for three months during the summer, with each party having reasonable visitation while the child was in the other’s custody. Further, Stephen was ordered to pay seventy-five dollars per month child support, which abated during his three months of custody.

On September 7, 1976, the Washington County, Arkansas, juvenile court placed custody of Christopher with Sheila, apparently based on a dependency-neglect petition filed by Sheila. On September 9, 1976, the juvenile court quashed that order and placed physical custody with Stephen. However, Sheila failed to appear at that hearing with Christopher; Stephen would later learn that she had taken him to California. On November 17, 1976, Stephen also obtained an order from the Missouri court awarding him temporary custody of Christopher.

In February 1977, Stephen located Sheila and Christopher in California, but Sheila refused to allow him any contact or communication with Christopher. Law enforcement officials declined to assist Stephen in gaining physical custody of Christopher, even though he had the Arkansas and Missouri custody orders.

A hearing was held in California in December 1977 on the issues of custody, visitation, and support. Both parties were present and represented by counsel. On March 27, 1978, an order was entered in the Superior Court of California in the County of Los Angeles acknowledging the Missouri decree as a valid foreign decree and giving it full faith and credit; finding a child-support arrearage of $525.00 from June 1977 through December 1977; placing custody of Christopher with Sheila, with reasonable visitation awarded to Stephen; and modifying Stephen’s child-support obligation from seventy-five dollars per month to one hundred twenty-five dollars per month as of January 1, 1978. After the California order was entered, Sheila continued to move around California and continued to refuse any contact between Stephen and Christopher. Stephen did not appeal the California order granting custody to Sheila, nor did he ever pursue a contempt citation concerning her denial of his visitation with Christopher, which would have been the proper forum for these issues.

Christopher turned eighteen on June 5, 1991. In 1993, Sheila assigned her rights to the state of Missouri for assistance in collecting child-support arrearages. After locating Stephen in Arkansas, Missouri initiated an interstate action to enforce Stephen’s child-support obligation under the 1978 California award. On February 6, 1995, the Arkansas OCSE filed a request in Pope County, Arkansas, Chancery Court for registration of the California order and a petition to reduce Stephen’s unpaid child support to judgment. On November 14, 1995, the Pope County Chancery Court entered the California order as a foreign decree and ordered briefing of two issues: the mother’s assignment of rights of her non-minor child, and the proper statute of limitations. On January 22, 1998, the chancellor entered an order estopping OCSE or Sheila from obtaining a judgment and/or attempting to collect any child-support arrearages based upon the fact that Sheila had willfully concealed Christopher from his father.

OCSE appealed this order, and the court of appeals reversed and remanded the case, holding that the chancellor directly contravened the purpose of the Uniform Interstate Family Support Act (“UIFSA”) when he refused to allow the collection of past-due support based upon a failure to allow visitation, and ordering that the chancellor “determine the proper amount of child-support arrearage due pursuant to the March 27, 1978, California order, taking into consideration the applicable statute of limitations and the propriety of the mother’s assignment.”

Upon remand, without elaborating his reasons, the chancellor made the determination at a hearing on August 26, 1999, that, “taking into consideration the applicáble statute of limitations and the propriety of the mother’s assignment, it is hereby found that the Defendant’s child support delinquency to be [sic] the sum of $20,775 as ofjuly 28, 1999.” Stephen appealed that ruling, arguing that the chancellor erred (1) in not considering the propriety of Sheila’s assignment of child support to OCSE pursuant to the instructions of this court on remand, and (2) in calculating the child-support arrearage. Despite the court of appeals’ determination that the chancellor’s opinion was “conclusory” and failed to address the issues put before it on remand, and despite the court of appeals recognition that this was an issue of first impression, the court of appeals affirmed the chancellor’s ruling, and Stephen petitioned for review to this court arguing the same points on appeal. This court accepted review.

Standard of Review

Upon a petition for review, we consider the case as though it were originally filed in this court. Davis v. Child Support Enforcement, 341 Ark. 349, 20 S.W.3d 273 (2000); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999); Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999); ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998); Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). We have held many times that although we review chancery cases de novo on the record, we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999).

I. Propriety of Sheila’s Assignment to Missouri

The first issue before this court is whether Sheila’s assignment of her collection rights to Missouri, which then assigned or transferred those rights to Arkansas, was proper. Within this issue is also the question of whether a custodial parent can attempt to collect child-support arrearages for a child who has since reached the age of majority.

A. Validity of Shelia’s Assignment to Missouri and Arkansas

As an initial issue, it should be noted that Sheila’s assignment of her collection rights to Missouri was a valid assignment under Missouri law pursuant to Mo. Ann. Stat. §§ 454.010 et seq. In turn, Arkansas recognizes collection orders for other states pursuant to Arkansas’s Uniform Interstate Family Support Act found at Ark. Code Ann. §§ 9-17-101-9-17-902 (Repl. 1998). As such, there is no issue regarding the legitimacy of Sheila’s assignment to collect arrearages and the transfer of that collection right to OCSE pursuant to Missouri and Arkansas law.

B. Sheila’s Ability to Assign Collection Rights to the State

While there is no issue as to the mechanics of Sheila’s assignment of her purported rights, the real issue here is whether Sheila actually had rights to assign. Stephen argues that Sheña no longer had the right to pursue support arrearages from him after Christopher turned eighteen in 1991, prior to Sheila’s filing for collection. OCSE argues that the right belongs to anyone listed in the applicable statute.

Stephen argues that Ark. Code Ann. § 9-14-105 (Repl. 1998) “Petition for Support” controls and dictates that only Christopher could initiate the action to collect child support from him. This statute states:

(a) The chancery courts in the several counties in this state shall have exclusive jurisdiction in all civil cases and matters relating to the support of a minor child or support owed to a person eighteen (18) or older which accrued during that person’s minority.
(b) The following may file a petition to require the noncustodial parent or parents of a minor child to provide support for the minor child:
(1) Any parent having physical custody of a minor child;
(2) Any other person or agency to whom physical custody of a minor child has been given or relinquished;
(3) A minor, child by and through his guardian or next friend; or
(4) The Office of Child Support Enforcement when the parent or person to whom physical custody has been relinquished or awarded is receiving assistance in the form of Aid to Families with Dependent Children, Medicaid, Title IV-E of the Social Security Act —• Foster Care, or has contracted with the department for the collection of support.
(c) Any person age eighteen (18) or above to whom support was owed during his minority may file a petition for a judgment against the nonsupporting parent or parents. Upon hearing, a judgment may be entered upon proof by a preponderance of the evidence for the amount of support owed and unpaid. (Emphasis added.)

This statute seems to indicate that the people named in section (b) may initiate an action to collect support for a minor child, while section (c) indicates that a child who has reached majority may initiate an action on his or her own behalf.

Stephen also argues that Ark. Code Ann. § 9-14-236 (Repl. 1998) “Arrearages — Child support limited — Limitations period” requires that a child who has reached majority, rather than the custodial parent or guardian, must pursue collection of arrearages. This statute states:

• (a) As used in this section:
(1) “Action” means any complaint, petition, motion, or other pleading seeking recovery of accrued child support arrearages;
(2) “Moving party” means any of the following:
(A) The custodial parent;
(B) Any person or agency to whom custody of a minor child has been given or relinquished;
(C) The minor child through his guardian or next friend;
(D) A person for whose benefit the support was ordered, within five (5) years of obtaining his majority; or
(E) The Office of Child Support Enforcement when the custodial parent or person to whom custody has been relinquished or awarded is or has been receiving assistance in the form of Aid to Families with Dependent Children or has contracted with the Office of Child Support Enforcement for the collection of support;
(3) “Accrued child support arrearages” means a delinquency owed under a court order or an order of an administrative process established under state law for support of any child or children which is past due and unpaid; and
(4) “Initial support order” means the earliest order, judgment, or decree entered in the case by the court or by administrative process which contains a provision for the payment of money for the support and care of any child or children.
(b) In any action involving the support of any minor child or children, the moving party shall be entitled to recover the full amount of accrued child support arrearages from the date of the initial support order until the filing of the action.
(c) Any action filed pursuant to subsection (b) of this section may be brought at any time up to and including five (5) years beyond the date the child for whose benefit the initial support order was entered reaches the age of eighteen (18) years.

This statute is the applicable statute in this case because OCSE is pursuing collection of support arrearages for support ordered in a prior judgment. Had OCSE sought an initial petition for support against Stephen, Ark. Code Ann. § 9-14-105 would have applied. This statute, which specifically applies to the collection of child-support arrearages, indicates that the “moving party” can be the custodial parent, any person or agency to whom custody of a minor child has been given or relinquished, a minor child’s guardian or next friend, OCSE when rights have been assigned, or the child himself or herself once he or she reaches the age of majority. However, this statute does not indicate whether anyone is the exclusive party to pursue an action.

While Stephen argues that both of these statutes specifically allow only the child, upon majority, to pursue the collection action, Stephen’s proposition would require this court to interpret and add language to the statute that is not there. This court reviews issues of statutory construction de novo, as it is for this court to decide what a statute means. Stephens v. Arkansas School for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. The basic rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute must be construed so that no word is left void or superfluous and in such a way that meaning and effect is given to every word therein, if possible. Id. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id. Where the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. (citing State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994)). Statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).

First and foremost, taking into consideration our rules for interpreting statutes, this statute does not place a limitation on who can pursue an action for collection of child-support arrearages from the hst of possible parties. In Ark. Code Ann. § 9-14-236, the list of potential moving parties is set off by the word “or” to indicate who the alternative moving parties may be. Had the General Assembly meant to limit child-support arrearage actions brought after the child reaches majority to those brought by the child, we believe that it would have specifically made such a statement in the statute rather than including the child of majority in a Hst of alternative moving parties.

In addition, our case law supports such a conclusion. In most of our cases, the custodial parent of a minor child sought child-support arrearages. See, e.g., Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978); Cunningham v. Cunningham, 297 Ark. 377, 761 S.W.2d 941 (1988); Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992); State Office of Child Sup. Enforcem’t v. Terry, 336 Ark. 310, 985 S.W.2d 711 (1999); Branch v. Carter, 326 Ark. 748, 933 S.W.2d 806 (1996); Durham v. Arkansas Dep’t of Human Services, 322 Ark. 789, 912 S.W.2d 412 (1995). In some cases, the adult child pursued the arrearages. See, e.g., Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (1998); Chunn v. D’Agostino, 312 Ark. 141, 847 S.W.2d 699 (1993). In others, the parent has pursued the arrearages even after a child reaches majority. See Sanderson v. Harris, 330 Ark. 741, 957 S.W.2d 685 (1997); Cole v. Harris, 330 Ark. 420, 953 S.W.2d 586 (1997). In no case has this court held that only the adult child has the right to pursue the arrearage.

The strongest support for the proposition that the right to pursue child-support arrearages belongs either to a custodial parent or to the child, whether of majority or not, is Dan v. Bankston, 327 Ark. 723, 940 S.W.2d 481 (1997), in which this court allowed the deceased custodial parent’s estate to pursue and recover past-due child support from her ex-husband who had custody of the children after the mother’s death. The court recognized “the custodial parent’s right to unpaid installments of child support,” and the estate was entitled to take possession of all of the mother’s personal property, which included back child support. Dan, 327 Ark. at 725-726. While Dan obviously dealt with the recovery of child-support arrearages where the children were still minors, the case indicates that the right to the payments equally belongs to the “custodial parent,” the parent who had custody of the children when the support was ordered. Based on Dan, “custodial parent” as listed in the statute necessarily must be a designation of the parent who maintains the right to collect the ordered support rather than the parent in whose custody a minor child currendy resides. For example, the term “custodial parent” is merely the alternate to “non-custodial parent” for purposes of party recognition in support and custody proceedings. In this case, the 1978 California Order required child support to be paid to Shelia just as in Dan. This court in Sharum, supra, stated, “[E]ntitlement to payment of child support installments vested in appellant as they accrued, and she was entided to judgment as a matter of right....” This proposition is further supported in Chunn, in which the children upon majority pursued the support arrearages. This court stated, “As we read the statute it contemplates one support obligation which may be pursued by different persons at different times.” Chunn, 312 Ark. at 145. These cases indicate that once a child reaches majority, whoever files the collection action first is allowed the right and ability to collect. Finally, the differences between Ark. Code Ann. § 9-14-105 and § 9-14-236 provide further support for this determination. In Ark. Code Ann. § 9-14-105(b), the petitioning party may be “any parent having physical custody of a minor child,” while in Ark. Code Ann. § 9-14-236(a), the “moving party” may be the “custodial parent.” Again, had the General Assembly meant to confer the right to collect arrearages only upon the “parent having physical custody of a minor child” until the child reached majority, and then only upon the adult child, it clearly would have so stated rather than using the term “custodial parent.” Therefore, we determine that Sheila retained the right to pursue child-support arrearages even after Christopher reached age eighteen.

II. Calculation of Child-support Arrearages

In the second issue on appeal, Stephen argues that the chancery court erred in awarding $20,775.00 in child-support arrearages from the California order establishing support. Fie argues that the $525.00 awarded in the California order cannot be collected because the ten-year statute of hmitations has run since it was reduced to judgment and not collected, and the rest of the pending monthly support can only be collected to ten years prior to February 6, 1995, when OCSE filed the action in Arkansas for collection of past-due support. Actually, the Arkansas statute of limitation bars ah claims for child-support arrearages that have accrued prior to March 29, 1986. See Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992); Branch v. Carter, 236 Ark. 748, 933 S.W.2d 806 (1996). In this case, if the Arkansas statute of hmitations governs, then OCSE is entided to recover all arrearages that accrued between March 29, 1986, and June 5, 1991, Christopher’s eighteenth birthday.

OCSE argues in response that California's statute of hmitations, and not Arkansas’s, applies in this UIFSA litigation because California’s statute of hmitations is longer and is, therefore, the applicable statute. OCSE argues that because California does not have a statute of hmitations for the collection of support arrearages, the entire amount can be cohected from the issuance of the original order in June 1977.

In UIFSA arrearage proceedings, the applicable statute of limitations is the longer of the statute of limitations under Arkansas law or the state issuing the support order. Ark. Code Ann. § 9-17-604(b) (Repl. 1998). Such a determination requires a two-step analysis. First, the court must consider whether there are differing limitations on the time that a custodial parent or child of majority may initiate a proceeding to collect support arrearages. Second, the court must look at the longer of the two statutes allowing how far back collection of support arrearages is allowed.

On the first issue, both Arkansas and California law allow a child of majority or custodial parent to bring an action for support arrearages at least up to five years after the child turns eighteen, or up through age twenty-three. See Ark. Code Ann. § 9-14-236(c); Cal. Fam. Code § 4383 (Repealed in 1993); Cal. Fam. Code § 4502 (1993). Under California law, prior to 1993, a judgment for child support could be enforced by writ of execution without prior court approval until five years after the child reached majority and thereafter only as to amounts that were not more than ten years overdue. Cal. Fam. Code § 4383; In re Marriage of Garcia, 79 Cal. Rptr. 2d 242 (Ct. App. 1998). Beyond these time frames, the court had discretion to determine whether to allow enforcement of the judgment and could take into account such considerations as laches or lack of diligence. Id. After 1993 in California, upon the repeal of § 4383 by the enactment of § 4502, support judgments did not have to be renewed, and they became “enforceable until paid in full.” Id. Based on this, because Sheila filed the action here within five years of Christopher’s eighteenth birthday, under either Arkansas or California law she timely filed her action to collect arrearages.

The analysis does not end there, however. Of more importance here is how far back the court can go in determining the amount of support due. California does not consider its pre-1993 or post-1993 statutes for enforcement of child-support orders as “statutes of limitation,” but instead as statutes providing a procedure for enforcement. Garcia; In re Marriage of Wight, 264 Cal. Rptr. 508 (1989). Whether the pre- or post-1993 statutes should apply is the first consideration. Certainly, under the post-1993 statute, there is no question that Sheila can collect the entire amount of support because the statute allows collection of the entire amount until paid in full. Cal. Fam. Code § 4502. However, based on the reasoning in Garcia that applying a post-1993 statute to a pre-1993 judgment would be impermissibly retroactive, we believe the pre-1993 statute applies.

As noted, § 4383, the pre-1993 statute, allows collection in the five years between majority and age twenty-three by way of a writ of execution without court approval. After age twenty-three, collection can only be had for the ten years prior. Here, obviously, the claim was made within the five years, but Sheila did not have a writ of execution. However, according to the reasoning in Wight and Garcia, the trial court still retained discretion to determine whether to allow enforcement of the judgment. As such, the chancellor’s determination to allow collection of the entire support amount is lawful. Under California law, the entire amount of child support until Christopher’s eighteenth birthday was due. Because California allows for collection of the entire child-support arrearage, the law of California is applicable in this UIFSA action. Therefore, we do not find that the chancellor was clearly erroneous in granting the entire amount of child-support arrearage of $20,775.

The concurring opinion argues that the trial court should be affirmed by applying the law-of-the-case doctrine because the trial court in its first order seemingly ruled on the issues of the assignment and statute of limitations. However, the doctrine cannot apply in this case. The law-of-the-case doctrine provides that on second appeal the decision of the first appeal becomes the' law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999); Barnhart v. City of Fayetteville, 321 Ark. 197, 900 S.W.2d 539 (1995); Vandiver v. Banks, 331 Ark. 386, 962 S.W.2d 349 (1998); see also, Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989). The doctrine of law of the case prevents an issue raised in a prior appeal from being raised in a subsequent appeal. Vandiver, supra. The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998). On the second appeal, the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented. Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994). The doctrine extends to issues of constitutional law. Id.

While the history of this case may seem to trigger this doctrine given the language in the chancery court’s 1998 original order, there is a reason why the law-of-the-case doctrine cannot apply in this case. The statements in the chancery court’s 1998 order regarding the assignment to OCSE and the statute of limitations are obiter dictum and cannot satisfy the requirements of law-of-the-case doctrine.

The chancellor’s 1998 order only decided OCSE’s inability to collect arrearages due to estoppel, and the statements in the order regarding the assignment and statute-of-hmitations issues were obiter dictum. As such, those statements do not qualify for recognition under the law-of-the-case doctrine. In Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000), this court discussed the interplay between the law-of-the-case doctrine and obiter dictum. The court stated:

The law-of-the-case doctrine does dictate that a decision made in a prior appeal may not be revisited in a subsequent appeal. Mode v. State, 234 Ark. 46, 350 S.W.2d 675 (1961). We have long held that a decision in a prior appeal becomes the law of the case. Bowman v. State, 93 Ark. 168, 129 S.W. 80 (1909). This is true even if the decision was wrongly decided. Rankin v. Schofield, 81 Ark. 440, 98 S.W. 674 (1905). The conclusion of the court in one opinion becomes the law of the case on subsequent proceedings on the same cause and the matter is res judicata. Perry v. Little Rock & Fort Smith Railway Cp., 44 Ark. 383, 395 (1884). The doctrine requires that matters decided in the first appeal be considered concluded. The doctrine is not inflexible and does not absolutely preclude correction of error, but it prevents an issue already decided from being raised in a subsequent appeal unless the evidence materially varies between the two appeals. Carmargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999).
Courts developed the doctrine to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit. Fairchild v. Norris, 317 Ark.166, 876 S.W.2d 588 (1994). The doctrine requires that matters decided in a prior appeal be considered concluded. Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Mauppin v. State, 314 Ark. 566, 865 S.W.2d 270 (1993). While a decision of the court will not be disturbed because it is law of the case under res judicata, the court is not bound by a conclusion stated as obiter dictum, even if couched in terms that infer the court reached a conclusion on a matter. This is so because obiter dictum is mere comment and not a decision of the court, and therefore not binding as the law of the case under res judicata. In an opinion, the court may sustain by comment an argument presented by obiter dictum. Peeples v. State, 305 Ark. 338, 808 S.W.2d 331 (1991). However, a comment on the evidence does not rise to a decision or holding by the court. Smith v. City of Little Rock, 279 Ark. 4, 648 S.W.2d 454 (1983).
Where discussion or comment in an opinion is not necessary to the decision reached therein, the discussion or comment is an obiter dictum. Nashville Livestock Common v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990). In Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981), the court noted that even though the opinion stated, as obiter dictum, that upon retrial an instruction on first-degree murder ought to be given, that was not a point in issue and thus not binding. Dicta consists of statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand, and they lack the force of an adjudication. Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987). “We point this out so that the dicta in one decision will not be seized on as the ratio decidendi in the next decision. . . .” McLeod, Comm. Of Revenues v. J. E. Dilworth Co., 205 Ark. 780, 171 S.W.2d 62 (1943).

Green, 343 Ark. at 250-251. Based on this directive, it is obvious that the findings by the chancery court in the 1998 order regarding the assignment and the statute-of-fimitations issue were dicta because they had nothing to do with the court’s actual order — that is, that OCSE was estopped from collecting the arrearages due to Sheila’s bad acts of concealing Christopher from his father for so many years. In other words, whether the chancery court decided the assignment and statute-of-limitations issues had nothing to do with the court’s actual order barring collection of the arrearages. As such, there is no initial order from which Stephen is barred from arguing the issues due to the law-of-the-case doctrine.

The concurring opinion argues that the trial court on remand refused to reopen the issue of assignment, one of the issues placed before it by the court of appeals, and because Stephen failed to cross-appeal initially, he should now be barred from raising the issues here. However, the flaw in this reasoning is highlighted by the fact that the law-of-the-case doctrine applies not to what the trial court decided in its 1998 order, but instead to the court of appeals’s first decision.

The concurring opinion also argues that in the first appeal, the court of appeals issued a limited remand order instructing the trial court to award arrearages and did not reopen the issues of assignment and limitation in its remand order. The concurring opinion is mistaken. The court of appeals’s first decision only included reversal on the estoppel issue with a specific directive to “determine the proper amount of child-support arrearage due pursuant to the March 27, 1978, California order, taking into consideration the applicable statute of limitations and the propriety of the mother’s assignment.” Office of Child Supp. Enforcement v. Clemmons, 65 Ark. App. 84, 984 S.W.2d 837 (1999). That is plain language. The court of appeals directed the trial court to determine the proper amount of child-support arrearage. Because estoppel is not applicable, the trial court had to decide the propriety of the assignment first, and then had to decide the applicable statute of limitations before it could determine the proper amount of child-support arrearages. Those two issues were to be decided by the trial court on remand. Clearly, this directive indicates that the court of appeals did not find that these two issues, which were not necessary to the trial court’s finding on estoppel, had been conclusively decided by the trial court to trigger the law-of-the-case doctrine. Otherwise, the court of appeals would have merely directed the trial court on remand to enter the judgment for arrears.

The concurring opinion is also mistaken in arguing that the trial court on remand refused to reopen the issue of assignment. The court of appeals did not direct the trial court to take further evidence. The trial court on remand did exactly what the court of appeals instructed it to do. The trial court decided the propriety of the assignment, the applicable statute of limitations, and the amount of child-support arrearages. Those issues were before the trial court, and the trial court decided them. In its second decision from which this petition for review arises, the court of appeals, after setting out the remand directive from the first appeal, stated:

Upon remand, without elaborating his reasons, the chancellor made the conclusory determination that “taking into consideration the applicable statute of limitations and the propriety of the mother’s assignment, it is hereby found that the Defendant’s child support delinquency to be the sum of $20,775 as of July 28, 1999.”

This statement clearly indicates that the court of appeals recognized that it instructed the trial court to consider these issues anew, and then recognized that the trial court had done so. Because the law-of-the-case doctrine only applies to the court of appeals’s first decision rather than the trial court’s 1998 order, law of the “case does not bar our consideration of these issues on the merits in this appeal.

We affirm the chancery court and the court of appeals.

Brown and Imber, JJ., concur.

Annabelle Clinton Imber, Justice,

concurring. I agree with the result reached by the majority; however, I would affirm the trial court by applying the doctrine of the law of the case. That doctrine bars consideration in a second appeal of issues that were or should have been decided in the first appeal, where there has been a decision on the merits in the first appeal. Vandiver v. Banks, 331 Ark. 386, 962 S.W.2d 349 (1998). According to Justice Holmes, the law of the case merely expresses the practice of courts generally to refuse to reopen what has been decided. Messenger v. Anderson, 225 U.S. 436 (1912). The application of the law-of-the-case doctrine is not limited to issues actually raised in prior appeals, because it was developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit. Miller County v. Opportunities, Inc., 334 Ark. 88, 971 S.W.2d 781 (1998). For that reason, even those issues that might have been but were not actually presented in the first appeal are barred from reconsideration in the second appeal. Vandiver v. Banks, 331 Ark. at 394.

On January 22, 1998, the Pope County Chancery Court entered an Order finding that:

1. the assignment by Mrs. Shelia Clemmons to the Office of Child Support Enforcement was proper;
2. the statute of limitations is ten years unless the action was filed prior to the child becoming 24 years of age, then all arrearages would be collectible; and,
3. regardless of the preceding findings, both Mrs. Clemmons and OCSE were estopped from obtaining a judgment for arrearage in child support because of Mrs. Clemmons’ concealment of the minor child from its biological father, Stephen Clemmons.

OCSE appealed the trial court’s finding of estoppel. Mr. Stephens filed no cross-appeal from the trial court’s findings of proper assignment and statute of limitations. The Court of Appeals determined that the trial court erred in refusing to enforce an order for child support and determine the amount owed in arrearage based upon a theory of estoppel. The appellate court reversed and remanded the case with instructions to the trial court “to determine the proper amount of child-support arrearage due pursuant to the March 27, 1978, California order, taking into consideration the applicable statute of limitations and the propriety of the mother’s assignment.” Office of Child Support Enforcement v. Clemmons, 65 Ark. App. 84, 88, 984 S.W.2d 837, 839 (1999).

Upon remand, the trial court determined that Mr. Stephens owed child support in the amount of $20,757.00 and refused to reopen the issue of assignment. Mr. Clemmons then filed the appeal that is before us today, arguing that the trial court erred in not considering the propriety of Mrs. Clemmons’ assignment of child support to OCSE.

An argument that could have been raised in the first appeal and is not made until a subsequent appeal is barred by the law of the case. Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989); McDonald’s Corp. v. Hawkins, 319 Ark. 1, 888 S.W.2d. 649 (1994). When there is no cross-appeal, the order from which cross-appeal is not taken becomes the law of the case. Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1994); Moore v. Robertson, 244 Ark. 837, 427 S.W.2d 796 (1968). In Moore v. Robertson, supra, Robertson alleged on cross-appeal that the decision of the trial court in favor of his co-defendants should have enured to his benefit despite his failure to file an answer in the case. The failure to answer ultimately resulted in a default judgment against him. We refused to address the issue because it should have been raised by cross-appeal in the first appeal of the case. In declining to address the merits of Robertson’s argument, we stated:

The case at bar confirms the wisdom of the [law-of-the-case] rale. If the appellee’s contention has merit — a point which we do not decide —■ its assertion on the first appeal would have done away with the necessity for a second trial and a second appeal, with their attendant expenditure of time and money. Such waste can be effectively prevented only by a strict adherence to the principle that points not urged upon the first appeal are not available later on.

Moore v. Robertson, 244 Ark. at 839-40. As in Robertson, the case at bar demonstrates the wisdom of the law-ofi-the-case doctrine. Had Mr. Clemmons cross-appealed the trial court’s adverse assignment and limitations rulings, those issues could have been addressed in the first appeal and, if successful, would have done away with the necessity for a remand and second appeal. Because Mr. Clemmons failed to cross-appeal the first time around, the trial court’s findings with regard to the propriety of the assignment and applicable statute of limitations became the law of the case.

Upon remand, the trial court noted that it had already determined that Mrs. Clemmons’ assignment to OCSE was proper and that the action was brought within the applicable statute of limitations. Despite these findings, the trial court denied relief in the first trial based upon the affirmative defense of estoppel. The majority concludes that the finding of estoppel rendered the first two findings unnecessary dicta not subject to the law-of-the-case doctrine. That conclusion ignores the defensive nature of an estoppel claim.

“Equitable estoppel is a judicial remedy by which a party may be precluded by its own act or omission from asserting a right to which it otherwise would have been entitled, or pleading or proving an otherwise important fact.” 28 AM.JUR.2d Estoppel and Waiver, § 28 (2000). The trial court’s findings effectively determined that OCSE had a claim that could properly be asserted. Thus, contrary to the majority’s conclusion, the findings did have something to do with the trial court’s order and were not merely obiter dicta. The affirmative defense of estoppel would have been moot if OCSE had no right to be asserted. The trial court’s findings as to assignment and limitations were, therefore, integral to its ultimate holding and not merely comments on the evidence.

Mr. Clemmons did not raise these issues in the first appeal, but sought to reopen the issues upon remand to the trial court based upon the court of appeals’ instructions. The trial court refused to reopen the issues in the proceedings on remand, wherein the following exchange occurred:

By THE Court: Okay. Well, Mr. Hodges basically wants to relitigate the findings that I made earlier, and says that the propriety of the assignment, or the assignment of the interest was improper, and that the statute of limitations has run because of the improper assignment. I think that’s basically what we are getting to.
MR. HODGES: Yes, sir. I was just following the decision of the Court of Appeals.
By THE COURT: Well, I don’t agree with either one of you, and I don’t want to cut off any argument that you might want to make, but let me tell you how I see this. In my decision — Letter decision to you I found that the statute of limitations was ten (10) years. Well, that would cause ■— it’s in excess of the time that would cut off some of the support period. And based on that the arrearages, ten years of arrearages would be Fifteen Thousand dollars ($15,000.00). I had already made my decision on the issues that you raised again, Mr. Hodges, in regard to the propriety of the assignment and the statue (sic) of limitations, and I’m not going to change my mind about that, nor do I want to hear anymore proof on that. I think that all was produced at the trial.
Now, is there anything else?
Mr. Helms: Your Honor, I — the, uh — the letter ruling that you referred to—
By the Court: uh-huh.
Mr. Helms: —I guess I’m reading that wrong. You said under the statute of limitations in this case is ten (10) years, unless the action was filed prior to the child becoming twenty-four (24) years of age—
By the Court: Yes.
MR. Helms: —and then all arrearage accrued would be collectible.
* * *
By THE COURT: Unless I’m wrong about his age, I believe he was — he was born on June 5th of ’73, and it was filed in ’95. That’s twenty-two (22). You may be right, Mr. Helms.
Mr. Helms: I never claimed to be good at math, your Honor.
By THE COURT: "Well, I was doing it on my — in my head, and I put it on the calculator. He would have been twenty-two (22). So in that case your figures as to the arrearages would be correct....

(Emphasis added.) Thus, the trial court recognized that the issues of assignment and limitations had been conclusively determined at the first trial and did not reopen those issues in its deliberations on remand. Taking into account the propriety of the assignment and the applicable statute of limitations as had previously been determined, the trial court awarded arrearages. By doing so, the trial court followed the directive of the appellate court, which, contrary to the majority’s conclusion, did not reopen the issues of assignment and limitations in its remand order.

The court of appeals issued a limited remand order, instructing the trial court to determine “the proper amount of child-support arrearage....” In doing so, the appellate court did instruct the trial court to “tak[e] into consideration the propriety of the assignment and the proper statute of limitations.” The appellate court did not instruct the trial court to redetermine the propriety of the assignment and the proper statute of limitations. Those issues had already been determined. The remand order issued by the court of appeals was no more than a directive to the trial court to apply the findings it had previously made in determining the proper amount of child support to award in arrearage. If Mr. Clemmons thought those findings were made in error, he could have submitted the issues to the court of appeals for determination on cross-appeal and preserved those issues in case he lost on direct appeal. He failed to do so. Mr. Clemmons cannot now reopen findings that could have been addressed in the first appeal of this matter simply because he is dissatisfied with the manner in which those findings are now being applied.

Because I believe that the law-of-the-case doctrine bars the appellant from raising in this second appeal an issue that could have been raised in the first appeal, I concur with the majority in affirming the trial court.

BROWN, J., joins in this concurrence.

       It should be noted that while Slaton indicates that law of the case extends to issues that were or could have been decided in the first appeal, in criminal cases we have held that the issue actually must have been decided explicitly or implicitly before the doctrine can apply. See} e.g., King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999), and Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999).

       One exception to the law-of-the-case doctrine arises where evidence is presented during the period between two appeals that materially varies from the evidence presented prior to the first appeal. In this situation, the law-of-the-case doctrine will not bar the second appeal, whereas otherwise the appellant would have been barred. Fairchild v. Norris, 317 Ark. 166, 876 S.W.2d 588 (1994). This exception does not apply to the case at bar because no new evidence has materialized that would substantially change the outcome of this case.


author: Per Curiam.

text:
    Jacinto HENDERSON v. STATE of Arkansas
    CR 01-616
    45 S.W.3d 846
    Supreme Court of Arkansas
    Opinion delivered June 21, 2001

      Q. Byrum Hurst, Jr., for appellant.
    No response.
   Per Curiam.

Jacinto Henderson, by his attorney, Q. Byrum Hurst, Jr., has filed a motion for rule on the clerk. The motion admits that the record was not timely filed and that it was no fault of the appellant.

This court has held that we will grant a motion for rule on clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part, but instead implies fault on the part of the court reporter and the clerk of the lower court. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

The present motion for rule on the clerk is denied.


text:
    Ivory JOHNSON v. STATE of Arkansas
    CR 99-1160
    45 S.W.3d 844
    Supreme Court of Arkansas
    Opinion delivered June 21, 2001

      William A. McLean, for appellant.

      Mark Pryor, Att’y Gen., by: Darnisa Evans Johnson, Sr. Ass’t Att’y Gen., for appellee.
   Per Curiam.

Appellant, Ivory Johnson, pled guilty to nine counts of aggravated robbery and nine counts of theft of property. He was sentenced to a total of forty years in the Arkansas Department of Correction. Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37 alleging ineffective assistance of counsel. After a hearing, the trial court entered its order denying appellant’s petition. This appeal followed.

Appellant’s counsel has submitted a brief on appellant’s behalf that incorrectly states that jurisdiction of this appeal lies in the court of appeals. Not only has counsel faded to correctly set forth the jurisdiction of this appeal, counsel has also misled this court with the structure of his brief that this appeal challenges the trial court’s decision. Under the “Point on Appeal” heading, counsel argues that the trial court erred in ruling that appellant did not receive effective assistance of counsel and under the “Conclusion” section of his argument, counsel argues that the circuit court should be reversed and the case remanded for a new trial. However, within the actual argument presented to this court, counsel concedes that this appeal is without merit. We find counsel’s argument confusing and because of the structure of his argument there has resulted an unnecessary delay in the disposition of this appeal.

Rule 16 of the Rules of Appellate Procedure — Criminal provides in pertinent part that trial counsel, whether retained or court-appointed, shall continue to represent a convicted defendant throughout any appeal, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause. Counsel filed a notice of appeal from the denial of appellant’s petition and was thus obligated to represent appellant until such time as he was permitted by the appellate court to withdraw pursuant to Ark. Sup. Ct. R. 4-3(j)(1). Under Rule 4-3(j)(1), a court-appointed attorney who wishes to withdraw from an appeal must abstract and brief all of the rulings that were adverse to his client. Although such a “no-merit” brief is typically filed in a direct appeal from a judgment, we have also allowed the filing of no-merit briefs in postconviction appeals. See Riley v. State, 298 Ark. 292, 766 S.W.2d 921 (1989).

If it was counsel’s intention to withdraw, he should have filed a brief and a motion to be relieved as counsel pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967) and our Rule 4-3(j)(1), stating there is no merit to the appeal. In turn, we would have informed appellant in accordance with Rule 4-3 (j) that he was entitled to file within thirty days a pro se brief advancing any points for reversal he desired to raise on appeal.

Because counsel has failed to follow the above rules, the disposition of appellant’s appeal has been unduly delayed. We direct counsel to either file a motion to withdraw with an accompanying brief pursuant to Rule 4-3(j)(1) or rebrief the issues in this appeal and argue the merits. Counsel has thirty days from this decision to file the appropriate documents.

Rebriefing ordered.


text:
    Raymond MITCHELL v. STATE of Arkansas
    CR 01-600
    45 S.W.3d 846
    Supreme Court of Arkansas
    Opinion delivered June 21, 2001

      John H. Bradley, for appellant.
    No response.
   Per Curiam.

On September 6, 1997, a hearing was held before the Arkansas Board of Certified Court Reporter Examiners concerning a complaint filed by then-practicing attorney Wayne A. Gruber against Nila J. Keels, CCR #456. As a result of that hearing, Keels’s license was revoked. That revocation still stands. The Board’s actions are filed with the Supreme Court Clerk’s file, of which this court takes judicial notice. See Shoemate v. State, 339 Ark. 403, 5 S.W3d 446 (1999); State v. Knight, 259 Ark. 107, 533 S.W2d 488 (1976).

The issue now before this court involving Ms. Keels arises in Raymond Mitchell’s attempt to perfect his appeal from a hearing held on February 28, 2001, where the circuit court revoked Mitchell’s earlier suspended imposition of sentence in CR-96-258 in the Chickasawba District of Mississippi County Circuit Court. Ms. Keels was the court reporter, and Mitchell timely filed his notice of appeal and requested a copy of the transcript. On May 9, 2001, Mitchell’s original record was mailed to the Supreme Court Clerk to lodge the appeal, but the clerk notified Mitchell’s counsel that the record could not be lodged because Ms. Keels was not a certified court reporter. On May 24, 2001, Mitchell requested a motion for rule on the clerk to file the record regardless of Ms. Keels’s failure of certification, but we denied that request.

On May 29, 2001, Mitchell renewed his request for motion for rule on the clerk, attaching the lower court’s emergency order which reflected that court’s attempt to grant Ms. Keels a 120-day period from January 2, 2001 to May 1, 2001, to continue the court’s business as provided under Section 13 of the regulations of the Board of Certified Court Reporter Examiners. Even assuming the circuit court’s emergency order was valid, that order has expired on its face, and Ms. Keels is not shown as certified or licensed to complete the court’s business so as to permit the lodging of Mitchell’s appeal.

The court clerk’s officer clearly was correct in rejecting a transcript from a court reporter who is not certified, and therefore we deny Mitchell’s motion. The court has clearly held that its intention is to strictly adhere to Section 9 of the Rules Providing for Certification of Court Reporters, which provides all transcripts taken in court proceedings will be accepted only if they are certified by a court reporter who holds a valid certificate. See Pullam v. Fulhright, 285 Ark. 152, 685 S.W.2d 151 (1985). However, because this is a criminal case, we will direct the Supreme Court Clerk to accept the transcript in this case, provided the attorneys of record will certify to the Clerk, by affidavit, statements that the transcripts are true, accurate, and complete. Moreover, the trial court shall certify within thirty days of this per curiam that this reporter is not now employed as a court reporter without proper certification by the Board of Certified Court Reporter Examiners. Id.

       There are other complaints and actions that have been taken against Ms. Keels that are reflected in the Supreme Court Clerk’s file, but we need not dwell on them for present purposes.

       This court need not reach at this time other pending questions surrounding the emergency order’s validity For example, a serious issue is raised as to whether such emergency orders are intended to extend a court reporter’s license if grounds have been shown to warrant revocation under Section 19 of the Board’s regulations.