author: Tom Glaze, Justice.

text:
    GREAT DANE TRAILER SALES, INC. v. MALVERN PULPWOOD, INC.
    89-179
    785 S.W.2d 13
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990

      Wright, Lindsey & Jennings, for appellant.

      Hardin & Grace, for appellee.
   Tom Glaze, Justice.

Appellee, Malvern Pulpwood, Inc., is a wood cutting facility which transports pulpwood by trucks and trailers to commercial mills. Appellant, Great Dane Trailer Sales, Inc. (Great Dane), is in the business of manufacturing and selling a wide variety of trailers. This litigation involves Malvern Pulpwood’s initial purchase from Great Dane of two drop-deck, 65,000 pound weight-rated pulpwood trailers. Great Dane issued warranties on the trailers which were limited to the repair or replacement of defective parts and remedies were limited by the exclusion of consequential and incidental damages. The drop-deck trailers exhibited serious defects, as did their replacements, two straight-deck trailers. Malvern Pulpwood filed suit for breach of the warranties of merchantability and fitness for particular purpose, and Great Dane defended on the basis of its “repair or replacement” warranty and disclaimer! Great Dane also argued that Malvern Pulpwood was barred from bringing its claim against Great Dane in this state action because Malvern Pulpwood failed, as is required by the Bankruptcy Code, to schedule the claim in Malvern Pulpwood’s Chapter 11 proceeding filed in 1987. Prior to trial, the trial court considered Great Dane’s defenses and denied its motion for summary judgment. The matter was then submitted to a jury trial which resulted in a $40,000 verdict in favor of Malvern Pulpwood. Great Dane raises four points for reversal on appeal, but we find none requiring reversal.

First, Great Dane notes that Malvern Pulpwood had its warranty claim prior to, and at the time, Malvern Pulpwood filed its Chapter 11 bankruptcy petition on October 8,1987. Nevertheless, Malvern Pulpwood failed to list the claim on its schedule of assets, and when the bankruptcy court entered its order confirming the reorganization plan, Malvern Pulpwood, Great Dane argues, was barred from proceeding against it on the claim. We disagree.

When Malvern Pulpwood filed its Chapter 11 proceeding, Great Dane was not a creditor of Malvern Pulpwood nor was it named as a party in any capacity. Nonetheless, Great Dane asserts a right to use that bankruptcy proceeding to bar Malvern Pulpwood from suing it. In order for a federal court judgment to be res judicata in an action in a state court the parties must be the same; the judgment is conclusive only as against parties or their privies or others who sufficiently participate, or are represented, in the action and it is not binding on strangers. See 50 C.J.S. Judgments § 901b (1947); Cf. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985); Carl v. Elizabeth Hospital, 204 Ark. 716, 164 S.W.2d 432 (1942). In Bailey, we discussed res judicata and its claim preclusion facet, stating that it bars not only relitigation of issues actually litigated in the first suit, but also those which could have been litigated but were not. The court further explained that claim preclusion bars relitigation of a subsequent suit when (1) the first suit resulted in a final judgment, (2) the first suit was based upon proper jurisdiction, (3) the first suit was fully contested in good faith, (4) both suits involve the same claim or cause of action, and (5) both suits involve the same parties or their privies. See also Lovell v. Mixon, 719 F.2d 1373 (8th Cir. 1983). Here, Great Dane was neither a party nor a privy to one of the parties in the earlier bankruptcy proceeding. That being so, Great Dane is unable to rely upon res judicata to bar Malvern Pulpwood’s suit against it.

Great Dane cites a number of federal decisions, but we find none of them controlling. It relies largely on the cases of In re Emmer Bros. Co., 52 B.R. 385 (D.C. 1985) and Stein v. United Artists Corp., 691 F.2d 885 (9th Cir. 1982). In Emmer, a creditor bank had entered into a settlement with a Chapter 11 debtor, but later discovered the debtor had failed to disclose or schedule an interest in an antitrust suit. The bank, alleging misrepresentations on the debtor’s part, requested that the bankruptcy court rescind the prior settlement or award it damages. The bankruptcy court ruled the bank’s claim was barred as a matter of law, but the federal district court reversed, rejecting, among other things, the debtor’s argument that the bank’s action was an impermissible collateral attack on the bankruptcy court’s order of confirmation. The district court concluded that the bank’s action was permissible under the circumstances because the antitrust claim had been undisclosed and, therefore, was not “properly dealt with by the plan” under 11 U.S.C. § 1141(c). It further stated that the doctrines of res judicata and collateral estoppel would not bar such an action, at least when the alleged fraud could not have been asserted in the bankruptcy proceedings, the underlying factual claims were not actually adjudicated, and the relief sought would not upset the confirmed plan of arrangement.

Unlike Great Dane’s situation here, the bank in Emmer was a creditor of the debtor, and, as a named party, had a stake in the Chapter 11 proceeding. We also point out that in Emmer, the court was dealing with the bank’s allegations of fraud, which under some circumstances permit a party with standing to attack collaterally a prior final judgment. Great Dane, on the other hand, has never alleged that Malvern Pulpwood committed fraud in this matter or that the confirmation order of the bankruptcy court was void for that or any other reason. For that matter, we are unaware of anyone, including Chapter 11 creditors, who claims fraud of any kind on Malvern Pulpwood’s part.

Great Dane also relies upon th& Stein case wherein the court concluded that the Chapter 11 debtor, having failed to list its antitrust claim against United Artists and others, could not enforce the claim after the bankruptcy court entered its confirmation order. In Stein, however, no one raised or argued the res judicata and standing issues that we consider here, and for this reason alone, we find that decision unpersuasive.

Great Dane’s next point is that the trial court erred in failing to grant its motions for summary judgment and directed verdict because the parties contractually excluded all remedies except to repair or replace defective parts. Malvern Pulpwood responds, claiming that, while an express warranty excluded all implied warranties, the express warranty failed of its essential purpose, thereby entitling Malvern Pulpwood to the general remedy provisions of Article 2.

Under Ark. Code Ann. § 4-2-719 (1987), parties to an agreement may limit the buyer’s remedies to the repair and replacement of nonconforming goods or parts and to make the remedy agreed upon the sole remedy, unless circumstances cause the exclusive or limited remedy to fail of its essential purpose. See Kohlenberger v. Tysons Food, 256 Ark. 584, 510 S.W.2d 555 (1974); Caterpillar Tractor Co. v. Waterson, 13 Ark. App. 77, 679 S.W.2d 814 (1984). When there is substantial evidence tending to show that a particular piece of machinery obviously cannot be repaired or its parts replaced so that it is made free of defects, a jury verdict, which implicitly concludes that a limitation of the remedy to the repair and replacement of nonconforming parts deprived the purchaser of the substantial value of the bargain, should be sustained. Kohlenberger, 256 Ark. at 600, 510 S.W.2d at 566. Such a limited remedy fails whenever the warrantor, given the opportunity to do so, fails to correct the defect within a reasonable period. Id.

In connection with the sale of two drop-deck trailers sold to Malvern Pulpwood, Great Dane offered the following warranty:

Great Dane Trailers, Inc.’s sole obligation under this warranty shall be limited to the repair or replacement, at its option, of any defective part of said trailer which is the result of defective materials and/or defective workmanship of parts furnished and installed by Great Dane Trailers, Inc. This warranty will expire sixty (60) months from date of delivery to the purchaser, and repairs under this warranty shall be at repair facilities designated by Great Dane Trailers, Inc. Transportation expenses to the repair facility are to be borne by the purchasers.
THE EXPRESS WARRANTY HEREIN IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, NO IMPLIED WARRANTY OF MERCHANTABILITY IS MADE AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.

Although the foregoing five-year warranty was given to repair or replace the 65,000 pound GVWC rated drop-deck trailers, we believe the evidence sufficiently shows the limitation failed of its essential purpose. The drop-deck trailers were described as ten-year trailers with a five-year warranty. Both drop-deck trailers “broke” in the same spot within one year from the time Malvern Pulpwood acquired them. Malvern Pulpwood offered testimony that Great Dane’s repair job was sloppy and rendered the trailers unsafe. One witness, a welder, stated he did not believe the repairs would fix the trailers; he said that any time steel is welded, the steel would not be as strong as it was before. Great Dane finally replaced the drop-deck trailers with straight-deck trailers. Nevertheless, the replacements, too, broke in the same spot as the drop-deck trailers. In its case, Great Dane offered evidence opposing Malvern Pulpwood’s claims, but even though such countervailing evidence was there for the jury to consider, we have no doubts that substantial evidence existed to support Malvern Pulpwood’s claims that Great Dane failed to correct the trailers’ defects within a reasonable period and that the limitation failed of its essential purpose.

Next, Great Dane argues that there was no implied warranty of fitness for a particular purpose — the basis for Malvern Pulpwood’s recovery. Again, we must disagree.

To recover for breach of an implied warranty of fitness for a particular purpose, the plaintiff must prove that (1) he has sustained damages; (2) at the time of contracting, the defendant had reason to know the particular purpose for which the product was required; (3) the defendant knew the buyer was relying on defendant’s skill or judgment to select or furnish the product; (4) the product was not fit for the purpose for which it was required; (5) this unfitness was a proximate cause of plaintiffs damages; and (6) plaintiff was a person whom defendant would reasonably have expected to use the product. E.I. Dupont De Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).

Great Dane contends that it was aware only of the ordinary purpose to which the pulpwood trailers would be used — hauling pulpwood — and was unaware of any other purpose. Great Dane, in citing Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983), states that before it can beliablefor a breach of the warranty of fitness for a particular purpose, it must be shown it, as a supplier, knew that a particular purpose was intended by the consumer, Malvern Pulpwood. Instead, Great Dane asserts only the ordinary purpose for which the trailers would be used was shown, giving rise to a warranty of merchantability — a warranty which was not incorporated in the instructions given the jury.

Great Dane’s argument overlooks the fact that, under the circumstances of the case, the particular purpose involved was pulpwood hauling. If the particular purpose for which goods are to be used coincides with their general functional use, the implied warranty of fitness for a particular purpose merges with the implied warranty of merchantability. Beech Aircraft Corp. v. Flexible Tubing Corp., 270 F.Supp. 548 (D. Conn. 1967). Such a holding is certainly consistent with the general rule in Ark. Code Ann. § 4-2-317 (1987), which provides that warranties, express or implied, shall be construed as consistent with each other and as cumulative.

Great Dane further argues that no implied warranty exists because Malvern Pulpwood, in purchasing the trailers, relied upon its president, Joe Gage, rather than upon the skill or judgment of Great Dane. Again, our review of the record reflects evidence that, depending upon how one views it, supports the opposing views of both parties on this issue. Nonetheless, we believe the evidence is more than sufficient to show Malvern Pulpwood justifiably relied upon Great Dane’s judgment in furnishing a suitable trailer and supports the jury’s verdict which implicitly finds a breach of implied warranty that the trailers were fit for a particular purpose.

In sum, Mr. Gage, when reading a logging magazine, learned that Great Dane sold drop-deck trailers and provided a five-year warranty. Gage was interested in drop-deck trailers because they had a low center of gravity and were safer. He also looked for a low profile trailer which had a 65,000 pound GVWR, and when he contacted Great Dane, he gave it the specifications he wanted in such a trailer. In return, Great Dane furnished Gage the specifications as well as pictures of the Great Dane drop-deck trailers. Although Gage had built certain pulpwood trailers in the past, he had no experience regarding the Great Dane trailers, and he obtained both specifications and pictures from Great Dane’s salesman before ordering the trailers. As previously noted, the trailers failed; they could never haul more than 55,000 pounds and each trailer — two drop-deck and two straight-deck replacements — broke in the same spot, thereby indicating a defect in design, which proved, considering the evidence, more than what Great Dane could correct.

Finally, Great Dane urges that, even if Malvern Pulpwood prevails on its implied warranty claim, Malvern Pulpwood still may not recover consequential damages. See Ark. Code Ann. §§ 4-2-715 to -2-719(2)(3) (1987). Malvern Pulpwood agrees with Great Dane that the courts are divided on the issue as to whether an exclusive remedy’s failure under § 4-2-719(2) also leads to buyer consequential damages under § 4-2-715. Arkansas case law indicates consequential damages are recoverable upon the failure of a limited remedy’s essential purpose. See Kohlenberger, 256 Ark. 584, 510 S.W.2d 555; Caterpillar Tractor Co., 13 Ark. App. 77, 679 S.W.2d 814. In Kohlenberger, we stated, quoting with approval from Adams v. J. I. Case Co., 125 Ill. App. 2d 388, 261 N.E.2d 1 (1970), as follows:

The manufacturer and the dealer have agreed in their warranty to repair or replace defective parts while also limiting their liability toxrtiat extent. Had they reasonably complied with their agreernejit contained in the warranty they would be in a position to claim the benefits of their stated limited liability and to restrict plaintiff to his stated remedy. The limitations of remedy and of liability are not separable from the obligations of the warranty. Repudiation of the obligations of the warranty destroy its benefits. The complaint alleges facts that would constitute a repudiation by the defendants of their obligations under the warranty, that repudiation consisting of their wilful failure or their careless and,negligent compliance. It should be obvious that they cannot at once repudiate their obligation under their warranty and assert its provisions beneficial to them.

From the above, we hold that, upon failure of Great Dane’s limited remedy’s essential purpose, Malvern Pulpwood was then entitled to any of the buyer’s remedies provided by the Code, and included among them are consequential damages provided in § 4-2-715.

In this final point, Great Dane also submits that Malvern Pulpwood’s proof on damages was insufficient and speculative. This argument is without merit. The damage instruction was submitted to the jury without objection. The jury was told to award as damages the profits Malvern Pulpwood may have lost as a foreseeable result of the warranty breach. It was also instructed that the measure of damages for a warranty breach in this case is the difference at the time and place of acceptance of the trailers between the value of two Great Dane drop-deck pulpwood trailers, or equivalent, as they were accepted and the value the two trailers would have had if they had been as warrantied. Malvern Pulpwood presented sufficient value testimony to support its claims. In fact, Malvern Pulpwood offered proof of damages as to each of the elements described in the sum of over $44,000. The jury awarded $40,000, a sum clearly justified by the evidence.

For the reasons given above, we find no error and hold the jury verdict should be sustained.

       At this point, we should mention that Malvern Pulpwood apparently requested, and the bankruptcy court granted, modification of the plan to include the claim against Great Dane. This action occurred after Malvern Pulpwood obtained its judgment against Great Dane, and while Malvern Pulpwood included the modification motion and order in its supplemental abstract, it was never properly made a part of the record in this case. We agree with Great Dane that the motion and order should be striken, and it is not considered in reaching the court’s holding.

       Great Dane, in its answer, affirmatively alleged that Malvern Pulpwood’s action was barred by the principles of res judicata, estoppel and laches because Malvern Pulpwood failed to schedule the claim it had against Great Dane. Nothing in the abstract reflects the reason the trial court rejected Great Dane’s motion for summary judgment or directed verdict on this issue.


source: Caselaw Access Project

license: Public Domain

text:
    Arnold James McCONAUGHY v. STATE of Arkansas
    CR 89-205
    784 S.W.2d 768
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990

      Mary Ann Gunn, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Tom Glaze, Justice.

This is an appeal from the appellant’s conviction for robbery and theft of property of a E-Z Mart in Springdale, Arkansas, on March 14, 1988. Appellant was sentenced under the habitual offender provision and received a sentence of forty years imprisonment for the robbery conviction and ten years imprisonment for the theft conviction. The sentences were ordered to run concurrently. For reversal, the appellant argues the trial court committed error in denying 1) his motion to dismiss on speedy trial grounds, and 2) his motion to suppress two photographic lineups and the victim’s identification of the appellant. We find no error, and thus affirm.

On March 17,1988, the appellant was arrested and charged by information for the robbery and theft of the E-Z Mart. At his arraignment on March 29,1988, the appellant entered a plea of not guilty, and the trial date was set for June 2,1988. On the day set for trial, the appellant changed his plea to not guilty by reason of mental disease or defect. Upon the change of the appellant’s plea, the trial court properly entered an order to commit the appellant to the State Hospital for examination. See Ark. Code Ann. § 5-2-305 (Supp. 1989). In the order, dated June 2, 1988, the trial judge stated that the examination and observation should not exceed thirty (30) days. A docket entry was made to reflect this order.

On December 1,1988, the trial court received a letter from the State Hospital stating that the appellant was committed to the hospital on November 8,1988, and that he was now ready to return to court for disposition. After receiving this letter, the trial court entered an order on December 7, 1988, directing that the appellant be brought before the court for trial on “call of the court.” This order is noted on the docket. On March 23,1989, the appellant filed his motion to dismiss on speedy trial grounds pursuant to A.R.Cr.P. Rule 28.2. His motion was dismissed, and the appellant was tried on March 27, 1989.

Under A.R.Cr.P. Rule 28.1, the state had twelve (12) months from the time provided in Rule 28.2 to bring the appellant’s case to trial, excluding only such periods of necessary delay as provided for in Rule 28.3. Both sides agree that the time for trial commenced running on March 17,1988. Appellant was tried ten (10) days after the twelve (12) month deadline.

Once it is shown that the trial was held after the speedy trial period set out in Rule 28.1 had expired, the state has the burden of showing that any delay was the result of the appellant’s conduct or was otherwise legally justified. See Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). We hold that the state has met this burden. Pursuant to Rule 28.3(a), the period of delay resulting from an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial is excludable. Here, the appellant was committed at the State Hospital for observation and examination for a period of twenty-three (23) days. Since the appellant was tried only ten (10) days after the twelve (12) month trial deadline, this twenty-three (23) day excludable period is more than enough to bring the state in compliance with the speedy trial rules.

In so holding, we note the appellant’s argument that the trial court failed to make a written order or docket entry noting the number of days of the excluded period in compliance with Rule 28.3(i). We have stated that a trial court should enter written orders, or make docket notations at the time continuances are granted to detail the reasons for the continuances and to specify to a day certain the time covered by such excluded periods. Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). But, a trial court’s failure to comply with Rule 28.3(i) does not result in automatic reversal. We have held that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Rule 28.3(i). See Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989); Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989).

Here, the record clearly reflects that on the original trial date, the appellant delayed the proceedings by changing his plea to not guilty by mental disease or defect. The docket reflects that the trial judge entered an order to commit the appellant to the State Hospital for not more than thirty (30) days. Further, the record shows that the appellant was not able to be committed to the State Hospital until November 8 due to a waiting list, and that he was at the hospital for examination and observation for twenty-three (23) days. Hence, we hold that the record is sufficient to satisfy the requirements of Rule 28.3(i).

In the second issue, the appellant argues that the trial court erred in refusing to suppress the store clerk’s pretrial identification of the appellant from two photographic lineups. Specifically, the appellant contends that under the totality of the circumstances the identification procedures were so impermissibly suggestive as to give rise to the substantial likelihood of irreparable misidentification. We disagree.

Linda Lance was the store clerk on duty the morning the robbery occurred. She stated that the robber had come in earlier that morning to buy a Coke. On returning to rob the store, the robber had a conversation with the store clerk, which gave her the opportunity to observe him for several minutes. She described the robber as being in his thirties, 5T1” in height with brownish-blonde hair and blue eyes, slim build, and wearing a brown jacket and a baseball cap. Officer David Dodson prepared two separate photographic lineups. The first lineup contained pictures of six men. All of the men had mustaches, brownish-blonde hair and blue eyes, and rather slender faces. The second lineup contained pictures of the appellant and two other men wearing baseball caps. One of these men had a beard and the other had a rather full face. The appellant is the only man whose photograph appeared in both lineups^

The day after the robbery, Lance went to the police station to attempt to identify the robber. There is uncertainty on how the identification process was conducted at the station. The appellant suggests that Lance was shown both lineups at the same time. Officer Dodson testified that Lance was shown the first lineup, and she positively identified the appellant as the robber. Then, according to Dodson, she saw the second lineup by mistake while he was shuffling some papers around his desk. After seeing this lineup, she again identified the appellant as the robber. Lance testified that she was shown both lineups and identified the appellant as the robber in each one, but she was unable to recall how the lineups were shown to her.

We have stated that it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence and then it is for the jury to decide what weight the identification testimony should be given. Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984). Further, we do not reverse a trial court’s ruling on the admissibility of identification evidence unless it is clearly erroneous and do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification.

Here, in ruling on the motion to suppress, the trial court was presented with a swearing match between the appellant’s allegation and Officer Dodson’s testimony. The trial court apparently believed Officer Dodson’s testimony that the clerk was shown the first lineup, by itself, from which she made a positive identification of the appellant, and we cannot say this ruling is clearly erroneous. While we may agree with the appellant’s contention that the second,lineup was suggestive, it would not taint the clerk’s separate, identification of the appellant from the first lineup.

Further, we have held that even if the identification technique used is impermissibly suggestive, testimony concerning it is admissible if the identification in question is reliable. Maulding v. State, 296 Ark. 328, 757 S.W.2d 916 (1988). Reliability is the linchpin in determining the admissibility of identification testimony, and the following factors must be examined to determine reliability: 1) the opportunity of the witness to view the criminal at the time of the crime, 2) the witness’s degree of attention, 3) the accuracy of the prior description, 4) the level of certainty, and 5) the time lapse between the crime and confrontation. Id. The reliability of the clerk’s identification has been shown here. As stated before, the appellant had several minutes during the crime to observe the robber and gave a description to the police. When she went to the police station the next day, she positively and quickly identified the appellant as the robber.

For the reasons stated above, we affirm.


author: Otis H. Turner, Justice.

text:
    FIREMAN’S INSURANCE CO. & D.H. Blattner & Sons, Inc. v. ARKANSAS STATE CLAIMS COMMISSION and Arkansas State Highway and Transportation Department
    89-245
    784 S.W.2d 771
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990
    [Rehearing denied March 26, 1990.]

      Arnold, Grobmyer & Haley, A Professional Association, by: Robert R. Ross; and Niewald, Waldeck, Norris & Brown, A Professional Corporation, by: Kevin E. Glynn, for appellants.

      Steve Clark, Att’y Gen., by R.B. Friedlander, Solicitor General and John D. Harris, Asst. Att’y Gen., for appellee Arkansas State Claims Commission.

      Robert L. Wilson, Tom G. Lorenzo, and Charles Johnson, for appellee Arkansas State Highway and Transportation Department.

      Dudley and Price, JJ., not participating.

   Otis H. Turner, Justice.

This action commenced as a claim filed by appellants with the Arkansas Claims Commission.

Potashnik Corporation and Sajan Construction Corporation contracted with the Arkansas Highway and Transportation Department for certain highway construction. Following default of the original contractors, Fireman’s Insurance Company as surety on the contractor’s performance bond, retained Blattner and Sons, Inc. to complete the projects. During completion of construction, disputes arose between Fireman’s and Blattner on the one hand and the Arkansas Highway and Transportation Department on the other, over costs and damages alleged to have occurred during completion, for which Fireman’s and Blattner claimed entitlement from the department.

A complaint was filed with the Arkansas State Claims Commission and the hearing was held at which Fireman’s and Blattner were afforded an opportunity to prove their claim. A complete transcript of that hearing was made and preserved. The Claims Commission subsequently issued its written order finding no improper action on the part of the Highway and Transportation Department and denied the claim in its entirety.

From that order the appellant petitioned the circuit court for review under the provisions of the Administrative Procedure Act and subsequently filed in circuit court a petition for writ of certiorari seeking a reversal of the Commission’s order and entry of judgment, or in the alternative, a de novo jury trial or oral hearing and written briefs. The appellees moved to dismiss the petition for writ of certiorari and petition for Administrative Procedure Act review. After a hearing the motion was granted and the petitions dismissed. From this order of dismissal, Fireman’s and Blattner bring this appeal.

Though the appellants make compelling arguments, we are persuaded that the sovereign immunity granted by the Constitution of the State of Arkansas bars an action against the state and that the procedure for hearing claims as established by the General Assembly meets due process requirements and that the order of the circuit court should be affirmed.

Six alleged errors are asserted by appellant: (1) the Administrative Procedures Act applies here and judicial review from the Claims Commission should therefore be granted, (2) Arkansas case law dictates a review of the Claim’s Commission decisions by certiorari to the circuit court; (3) sovereign immunity would not be violated by review under either the Administrative Procedure Act or on certiorari; (4) the circuit court was in error in holding that the Claims Commission is an arm of the General Assembly; (5) the Claims Commission’s order and the court’s denial of review is violative of appellant’s due process rights; (6) the Claims Commission’s order and the dismissal by the court of appellant’s petition for review is violative of the doctrine of separation of powers.

In holding that the doctrine of sovereign immunity as dictated by the Arkansas Constitution and interpreted by a long line of case law bars the relief sought by appellants, the first five of appellants’ points will be considered together. The Constitution of Arkansas provides that the state of Arkansas shall never be made a defendant in any of her courts. Arkansas Constitution of 1874, Article 5, Section 20. The completeness of the intent of such immunity is best illustrated by the long and unequivocal line of cases expressly recognizing and protecting the immunity. As early as Pitcock v. State, 91 Ark. 527, 121 S.W. 742 (1913), this court held that the constitutional prohibition was not merely declaratory that the state could not be sued without her consent, but that all suits against the state were expressly forbidden. Further, where the pleadings show that the action is, in effect, one against the state, the trial court acquires no jurisdiction.

Extending this immunity to its next logical step, we held that where a suit is brought against an agency of the state with relation to some matter in which the defendant represents the state in action and liability, and the state, though not a party of record, is the real party in interest so that judgment for plaintiff would operate to control the action of the state or to subject the state to liability, the action is, in effect, one against the state and prohibited by the constitutional bar. Page v. McKinnley, 196 Ark. 331, 118 S.W.2d 235 (1938). See also, Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986).

To further illustrate the intent of the General Assembly to keep and maintain a doctrine of complete sovereign immunity, this court, in 1979, while recognizing the complete immunity enjoyed by the state for the acts of its officers and employees, held that in the absence of specific legislation extending immunity to those officers and employees, they were not individually protected under the umbrella of the state’s immunity. At the very next session of the legislature, a statute was passed extending the state’s immunity to its officers and employees in the absence of malicious acts. Ark. Code Ann. § 19-10-305 (1987).

The only exception to total and complete sovereign immunity from claims which has been recognized by this court occurs when the state is the moving party seeking specific relief. In that instance the state is prohibited from raising the defense of sovereign immunity as a defense to a counterclaim or offset. Parker v. Moore, 222 Ark. 811, 262 S.W.2d 891 (1953).

In addition to Article 5 of the Constitution invoking sovereign immunity in relation to actions against the state, the framers of the Constitution included a subsequent provision stating that the General Assembly shall provide for payment of all just and legal debts of the state. Arkansas Constitution of 1874, Article 16, Section 2. For many years these debts, after processing by the legislature, were paid by special acts of the General Assembly for claimants the legislature deemed deserving. As the state grew and the legislative demands increased, the General Assembly was apparently unable to devote sufficient time to the investigation and action required in handling each individual claim. The answer was passage of the first Claims Commission Act in 1933. A similar act was passed each two years thereafter until Act 53 of the 1945 General Assembly was enacted, creating the Board of Fiscal Control, the first continuing body to consider whether the individual claims against the state were “just and legal debts” which should be honored and worthy of recommendation to the General Assembly for the appropriation of funds for payment.

In 1949 the General Assembly created the State Claims Commission by Act 462 of 1949, which granted to the Commission exclusive jurisdiction over all claims against the state and its agencies, departments and institutions (with certain exceptions not here involved). Section 6 of Act 462 provided that “[t]he action taken by the Commission with respect to the allowance or disallowance of a claim, in whole or in part, shall be final and binding on all parties thereto and shall not be subject to judicial review at their instance.” (Emphasis added.) Further, that “[ajfter the hearing, the Commission shall prepare a finding of fact and make a determination for disposition of the claim, which finding and determination, together with the entire record shall be made available to the General Assembly at its session next succeeding the Commission’s action on the claim.” Thereafter, “the State Comptroller shall submit to [the General Assembly] an appropriation bill covering specifically each claim approved by the Commission prior to that date.” Section 6 of the Act concluded by declaring that the Act shall in no manner be construed as enlarging the liabilities of the state or any of its agencies.

Act373of 1951 amended sections 1,4,7,9,10,and 12of Act 462 of 1949 and repealed sections 8 and 14. Section 6, however, was neither amended nor repealed.

Section 1 of Act 276 of 1955 abolished the “State Claims Commission” established by Act 462 of 1949 and established a new commission, the “Arkansas State Claims Commission,” which was declared in Section 3 to “have all the powers, duties and jurisdiction of the Commission which it replace [d].” Act 276 further directed that the “Commission” thus created “shall be governed by all laws now or hereafter provided for the government of claim proceedings in this State.” Section 4 repealed “[a] 11 laws and parts of laws in conflict herewith.”

The repealer clause, however, did not affect section 6 of Act 462 of 1949. Nothing in the 1955 Act addressed the mechanics of Commission action and review. Instead, Act 276 of 1955 dealt with the composition of the Commission and the compensation of its members.

The legislature has thus created a method by which claims alleged to be “just and legal debts of the state” shall be filed, processed,'and reviewed by the General Assembly while preserving the state’s sovereign immunity as declared in the Constitution.

We are not impressed by appellants’ argument that the dismissal by the circuit court of the petition for certiorari and review under the Administrative Procedure Act constitutes a denial of appellants’ due process rights. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545 (1965). The due process requirements of the Constitution are satisfied when an adequate post-deprivation procedure exists. See Parratt v. Taylor, 451 U.S. 524(1981).The Arkansas post-deprivation procedure is through the Claims Commission process.

The Arkansas Administrative Procedure Act, Ark. Code Ann. §§ 25-15-201 to -213 (1987 and Supp. 1989), providing for a review from actions of state commissions and agencies, has no application to the State Claims Commission. The act creating the Claims Commission clearly creates it as an arm of the legislature, reporting solely to that body. Section 25-15-202(1) defining “agency”, states that agency means each board, commission, department, officer or other authority of the government of the state of Arkansas, whether or not within or subject to review by another state agency, except the General Assembly, the courts and the Governor.

Since the act creating the Claims Commission grants the power of review only to the legislature and without question delegated to the Commission duties which are, under the Constitution, solely the duties of the General Assembly, the Claims Commission proceedings are thus proceedings of the General Assembly and not subject to the provisions of the Administrative Procedure Act.

Appellants are thus obliged to seek review by the General Assembly under the Claims Commission rule promulgated by the Commission under the authority of the General Assembly. Appellants have elected to bypass those rules and proceedings and seek direct review by the judicial system without exhausting the remedies provided by the Claims Commission.

Appellants have no standing to argue a denial of due process unless and until they have exhausted their procedural remedies. See Barr v. Arkansas Blue Cross and Blue Shield, Inc., 297 Ark. 262, 761 S.W.2d 174 (1988). In this instance the remaining remedy is a review by the General Assembly.

Since we hold that the Claims Commission is an arm of the General Assembly and the General Assembly has total control over the determination of, and subsequent funding for, payment of the “just debts and obligations of the state” — all other avenues for redress through legal proceedings being barred by the sovereign immunity provision of the Arkansas Constitution — appellants’ argument that the State Claims Commission system, without a provision for judicial review, violates the separation of powers doctrine, is without merit.

Affirmed.


text:
    Robert Allen HENARD v. ST. FRANCIS ELECTION COMMITTEE, et al.
    89-289
    784 S.W.2d 598
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990

      Lonnie Paul Gehring, for appellants.

      Butler, Hicky & Long, by: Fletcher Long, Jr., for appellees.
   Otis H. Turner, Justice.

This is an appeal from a decision of the circuit court of St. Francis County dismissing appellants’ challenge of a local option election in the town of Wheatley. Appellants raise five points for reversal, none of which we deem to have merit.

The local option alcohol issue was raised by a petition; a local minister, the Reverend Eugene Hoggatt, was instrumental in securing the necessary signatures. The matter was placed on the November 8, 1988, general election ballot in the town of Wheatley. The “drys” prevailed by a vote of 118 to 55.

Appellants first argue that the petition placing the issue on the ballot was not properly filed with the county clerk within a period “not less than sixty days prior to the election” as required by Ark. Code Ann. § 14-14-915(b) (1987), pursuant to Amendment 7 of the Arkansas Constitution.

Though the clerk’s filing mark did not appear on the petition, the clerk’s testimony indicated that his office received the petition not less than 60 days prior to the election. The circuit court, as trier of the facts, made a determination that the filing was timely, and we will not disturb its finding on appeal. ARCP Rule 52(a).

The trial court’s ruling is not in conflict with our decision in Glover v. Russell, 260 Ark. 609, 542 S.W.2d 751 (1976), where a chancellor’s decision invalidating petitions filed 55 days before an election was upheld. In this regard, see also Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26 (1937). Further, we have held that though a filing mark is evidence of the filing of the document, the mark in and of itself is not an essential element of the act. Stanislaus v. Austin, 202 Ark. 441, 150 S.W.2d 610 (1941).

Appellants argue for their second point the fact that the county clerk apparently failed to publish a notice of the election as required by Ark. Code Ann. § 14-14-917(c)(1) (1987). That statute calls for notice to be given “through publication by a two-time insertion, at not less than a seven-day interval, in a newspaper of general circulation in the county, or as provided by law.” Further, the notice must state that the measure will be presented to voters at the next regular election “and shall include the full text, the ballot title, and the official numeric designation of the measure.”

In Phillips v. Rothrock, supra, this court noted the failure of the county clerk to publish “the notice required by law” and there stressed the mandatory character of the enabling acts governing initiative and referendum. However, in the recent case of Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985), we emphasized that the public interest dictates that election results should become final without delay and stated:

[T]he failure to publish notice of an election is immaterial if the election is actually held and the electors have not been deprived of the opportunity to express themselves. ‘ [T] he voice of the people is not to be rejected for a defect or want of notice, if they have in truth been called upon and spoken.’ Wheat v.Smith, 50 Ark. 266, 7 S.W. 161 (1887). There is no indication that the voters in the three townships did not express themselves on the wet-dry issue in the 1980 general election.

286 Ark. at 475-476, 695 S.W.2d at 379.

Appellants’ reliance in this regard on Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987), is misplaced. The majority in Garrett referred to Wurst, supra, in a totally different context and said nothing to challenge the language quoted above.

Point three argued by appellants concerns the defects in the preparation, circulation, and filing of the petition and the placement of the issue on the ballot. This argument is without merit and is controlled by our holding in Phillips v. Rothrock, where we stated:

[A] 11 provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election, all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void.

194 Ark. at 952-53, 110 S.W.2d at 30.

None of the errors argued by appellants meet the exceptions of the above-quoted rule. As we observed in Jones v. Etheridge, 242 Ark. 907, 911, 416 S.W.2d 306, 309 (1967): “An election by the people should not be so lightly impugned by those who only hope to find enough information to change the result of an election.” It must be demonstrated that the outcome would have been different but for the irregularities and such a showing has not been made by appellants.

The fourth issue for reversal actually consists of a list of minor irregularities ranging from the voting by non-residents of Wheatley, to the service as an election official of the Rev. Hoggatt, who assumed the duty upon the absence of another appointed official, to the late opening of the polling place. The trial court noted that when the 13 alleged illegal votes were subtracted from the result, there remained a two to one margin in favor of the “drys.” With regard to the service of the Rev. Hoggatt, there was no showing that his presence at the polling place had any effect on any voter. Nor was there any showing that any voter was disfranchised by the late opening of the polling place.

We said long ago, in Patton v. Coates, 41 Ark. 111 (1883):

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

41 Ark. at 126.

This court has said that while we do not condone disregard of the state’s election laws, we are nevertheless reluctant to void an entire election on the basis of a slight deviation from the statutory requirements. “The failure to comply with the letter of the law by election officers, especially in matters over which the voter has no control, and in which no fraud is perpetrated, does not as a general rule render an election void, unless the statute expressly makes it so.” Allen v. Rankin, 269 Ark. 517, 521, 602 S.W.2d 673, 675 (1980) (quoting Goggin v. Ratchford, 217 Ark. 180, 229 S.W.2d 130 (1950)). None of the improprieties alleged by appellants appear to have affected the outcome of this election.

Lastly, appellants make a vague assertion that the Arkansas local option election laws amount to a denial of equal protection guaranteed by the Arkansas and U.S. Constitutions in that the private clubs and restaurant provisions of Ark. Code Ann. § 3-9-201 (1987) and Ark. Code Ann. § 3-8-205 (1987), dealing with the sale and consumption of alcoholic beverages, somehow discriminate in favor of tourists and visitors. No authority is cited for this proposition, and we find the contention to be without merit.

Affirmed.

Glaze, J., concurs.


text:
    Susan E. MEEKS v. Arthur STEVENS
    89-183
    785 S.W.2d 18
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990

      Steve Clark, Att’y Gen., by: Mary B. Stallcup, Deputy Att’y Gen., for appellant.

      Van Kleef & Strait, Vicki King of Counsel, by: John D. Van Kleef, for appellee.
   Otis H. Turner, Justice.

Appellant, Susan E. Meeks, challenges the validity of a default judgment obtained by appellee, Arthur Stevens, contending that service of process was never perfected. We agree.

Appellant was formerly employed as a social worker with the Arkansas Social Services Division of the Arkansas Department of Human Services. In August, 1988, she informed appellee and his wife of a Division investigation, directed by her, that revealed possible child abuse and neglect of the children of appellee’s wife. Among other things, the report contained allegations of sexual abuse by appellee of his stepdaughter.

Appellee subsequently filed an action against the appellant, alleging that she had used her position, and had conspired with the natural father of the children, to destroy appellee’s reputation. He sought damages for libel, slander, outrage, and invasion of privacy.

Appellee sought personal service on his complaint by placing the summons in the hands of a deputy sheriff, who was unable to locate appellant. Appellee then attempted service by certified mail, addressed to appellant’s postal box, with delivery restricted to appellant. Notices directed to appellant were placed in the box on three separate occasions, but the certified mail was never claimed. There was no evidence that the notices were received by appellant, but they were not returned to the issuing office and, in addition, other mail addressed to appellant at that box was not returned and was apparently removed from the box.

Thereafter, the certified mail was returned to appellee’s attorney marked by the Postal Service “unclaimed.” Subsequently, appellee sent a summons, complaint, and letter to appellant, which warned that the case could proceed to default judgment. This letter was again sent by certified mail to appellant’s postal box. Appellee also sent a copy of the motion for default judgment by certified mail on the same date.

The motion for default judgment was subsequently heard and a judgment was entered on appellee’s complaint when appellant failed to appear. Thereafter, appellant moved to set aside the default judgment. It is from a denial of that motion that appellant brings this appeal.

Though Rule 55 of the Arkansas Rules of Civil Procedure provides for entry of a default judgment when a party fails to appear or otherwise to defend, Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987), the courts have made it abundantly clear that defaults are not favored and this court has so stated. Allstate Insurance Co. v. Bourland, 296 Ark. 488, 758 S.W.2d 700 (1988). Because of its harsh and drastic nature which can result in the deprivation of substantial rights, a default judgment should only be granted when strictly authorized and when the party affected should clearly know he is subject to default if he does not act in a required manner. Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1976).

Service of process or a waiver of that service is necessary in order to satisfy the due process requirements of the United States Constitution. Smith v. Edwards, 219 Ark. 79, 648 S.W.2d 482 (1983). Therefore, where sufficient notice of an action has not been given, and a default judgment has followed, a motion to set aside the judgment must be granted. Ideal Mutual Insurance Co. v. McMillian, 275 Ark. 418, 631 S.W.2d 274 (1982). Appellee’s attempt at service of process and notice of impending default must then be measured against the extremely heavy burden imposed upon him.

Appellee first attempted personal service pursuant to Arkansas Rules of Civil Procedure, Rule 4(d)(1), but was unsuccessful. He next sent a copy of the summons and complaint by certified mail to appellant’s postal box in compliance with Arkansas Rules of Civil Procedure, Rule 4(d)(8)(A), which provides in pertinent part:

Service of a summons and complaint upon a defendant . . . may be made ... by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. Service pursuant to this paragraph shall not be the basis for the entry of a default or judgment by default unless the record contains a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee. If delivery of mailed process is refused, the plaintiff or attorney making such service, promptly upon receipt of notice of such refusal, shall mail to the defendant by first class mail the copy of the summons and complaint and a notice that despite such refusal the case will proceed and the judgment by default may be rendered against him unless he appears to defend the suit.

Clearly, the rule requires a “refusal” of the mailed notice before default may be entered. The question dispositive of this appeal is whether under these facts the “unclaimed” mail returned by the postal department is “refused” mail within the meaning of Rule 4(d)(8)(A).

The Domestic Mail Manual of the U.S. Postal Service at Section 159.16 characterizes “refused” mail as mail which the addressee has refused to accept and “unclaimed” mail as mail which the addressee abandons or mail which the addressee fails to call for or claim. “Refused” appears in the government manual to be self-defining. Hence, it is necessary to look elsewhere for a definition. The ultimate arbiter, the Oxford English Dictionary, gives as its relevant definition: “To decline positively, to express or to show a determination not to do something.” (Emphasis is original.) The Random House Dictionary of the English Language, Second Edition (1987), in relevant part, defines “refuse” as “to decline to accept (something offered); to express a determination not to (do something).” Both definitions of the term “refuse” stress the active element of refusal — declining “positively” and expressing or showing a determination not to do a particular thing. Refusal therefore is not passive in character.

With respect to Rule 4(d)(8)(A), the active nature of refusal is spelled out with care. The record must contain “a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee.” (Emphasis added.) Silence or inaction, which elsewhere in the law may be presumed to be token consent, is not, in this instance, equivalent to refusal.

Though this appears to be a case of first impression in Arkansas, we agree with the analysis of the Missouri Court of Appeals, Western District. In Central Wholesale Distributors v. Day, 672 S.W.2d 88 (Mo. App. 1984), the court held specifically that the return of an attempted service by registered mail is not tantamount to a refusal to receive service of process. See also, In the Matter of the Interest of M.L.K., 768 P.2d 316 (Kan. App. 1989), and Romeo v. Looks, 535 A.2d 1101 (Pa. Super. 1987), where courts endorsed publication as a secondary method of notice when unclaimed letters were returned.

The record in this case does not show whether appellant was the only person to receive mail in the postal box to which the notices were sent. The postmaster testified that appellant was sent three claimed notices for certified mail but failed to present the notices and claim the mail. A failure to present claimed notices at the post office does not reach the level of affirmative action suggested by the definitions of “refuse.” Further, this failure to act affirmatively is a far cry from the explicit requirements of Rule 4(d)(8)(A), which serves as a safeguard against the harshness of default judgment.

In this instance, and under these facts, we are not persuaded that appellant’s due process rights would be satisfied by a finding that the notices of certified mail not returned and other mail addressed to appellant at the same location and not returned, establishes or creates a presumption that the mail was refused. Neither fact, considered separately or together, is sufficient to infer or create a rebuttable presumption that the appellant “refused” the certified mail under the provisions of the rule.

It has long been established that when no sufficient service has been had, the court does not acquire jurisdiction of the person of the defendant. Coffee v. Gates and Bro., 28 Ark. 43 (1872).

Reversed and remanded.


author: Per Curiam.

text:
    ARKANSAS REAL ESTATE COMMISSION v. Frances VETETO, et al.
    89-227
    784 S.W.2d 601
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990

      Steve Clark, Att’y Gen., by: Stacy Van Ausdall, Asst. Att’y Gen., for appellant.

      John W. Beason, for appellee.
   Per Curiam.

The appellees filed separate complaints with the Arkansas Real Estate Commission (Commission) against licensed real estate brokers, Gary Jenkins and John Massey, d/b/a Gary Jenkins & Company. The complaints contained various allegations of fraud and misrepresentation. In November 1988, the Commission conducted hearings and revoked the licenses of Gary Jenkins and John Massey. Prior to the commencement of the proceedings before the Commission, Jenkins received a discharge in bankruptcy for all debts except that of Dwight and Beverly Reeves. In February 1989, the Commission ordered John Massey to repay the appellees and directed Jenkins and Massey jointly to pay $8,700 to Dwight and Beverly Reeves.

When appellees had not been paid after thirty days, they asked the Commission for reimbursement from the Real Estate Recovery Fund (Fund) pursuant to Ark. Code Ann. § 17-35-406 (1987). On April 10,1989, the Commission conducted a hearing and voted unanimously that a total of $58,700 should be paid to the appellees from the Fund. Of the $58,700, Dwight and Beverly Reeves were to receive $8,700, representing payment in full, Edith Raines was to receive the statutory limit of $10,000 and all other appellees were to share the remaining $40,000 on a pro rata basis. The Commission ordered payment of the claims based upon the statutory maximum of $50,000 for the acts of one licensee, Massey, [Ark. Code Ann. § 17-35-406(f)(l) (1989)] and ordered payment in full to the Reeves, the only claim against Jenkins not discharged in bankruptcy.

The appellees appealed the Commission’s decision to the Circuit Court of Craighead County pursuant to Ark. Code Ann. § 17-35-408(a) (1987) and the trial judge reversed the order of the Commission. The circuit court ordered the Commission to pay the appellees $100,000 from the Fund, representing the statutory limit of $50,000 per licensee. The Commission appeals from the order of the circuit court.

The preamble of Act 73 of 1979, now codified as Ark. Code Ann. §§ 17-35-401 to -409 (1987), clearly states that the Arkansas Real Estate Commission is to establish, maintain, and administer the Real Estate Recovery Fund and also that the Commission shall determine the amount of damages suffered by persons as a result of illegal or unethical broker activities. This language reflects the legislature’s intent to vest the Commission alone with the power to determine damages. Ark. Code Ann. § 17-35-407(e) (1987) expressly limits the circuit court’s jurisdiction:

The circuit court shall have no jurisdiction or authority to order payments from the fund in any amount in excess of either: (1) the amount determined by the commission; or (2) the limits set forth in § 17-35-406.

Here, the Commission determined that a total of $58,700 should be paid to the appellees. On appeal, the circuit court reversed the Commission’s ruling and ordered a total of $100,000 to be paid to the appellees, representing the statutory limit of $50,000 for the acts of each licensee. See, Ark. Code Ann. § 17-35-406(f)(1) (Supp. 1989). While$100,000 does not exceed the statutory limit with respect to two licensees, it does exceed the amount the Commission ordered to be paid from the Fund. Therefore, it appears doubtful from reading Ark. Code Ann. § 17-35-407(e)(1) (1987) that the circuit court has jurisdiction to order payment of an amount in excess of the amount allowed by the Commission. Another issue also arises in this respect — while the statute in issue is framed in terms of jurisdiction, some question exists whether the limitation set out in that law is actually a matter of jurisdiction. The parties, however, have discussed neither of these issues and while jurisdiction is a matter we will raise on our own, Arkansas Savings & Loan v. Corning Savings & Loan, 252 Ark. 264, 478 S.W.2d 431 (1972), we are reluctant in this case to decide that question without benefit of briefing. By this per curiam the parties are directed to supplement their briefs on the issues noted above.

       Created in 1979, the Real Estate Recovery Fund authorizes payment to victims of unethical and unscrupulous brokers and salesmen not to exceed $10,000 for any one (1) violation, nor $50,000 for the acts of any one (1) licensee. See, Ark. Code Ann. § 17-35-406 (Supp. 1989).


text:
    OZARK ACOUSTICAL CONTRACTORS, INC., et al. v. NATIONAL BANK OF COMMERCE OF MEMPHIS, TENNESSEE
    CA 89-522
    786 S.W.2d 813
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990

      John B. Thurman, for appellants.

      Wright, Lindsey & Jennings, by: David M. Powell and Roger D. Rowe, for appellee.
   Per Curiam.

Ozark Acoustical Contractors, Inc. (Ozark), Conrade Electric Co., Inc. (Conrade), Ketcher & Co., Inc. (Ketcher), and Southwest Interiors, Inc. (Southwest), have appealed from a decision giving a mortgage lien held by the appellee, National Bank of Commerce of Memphis, Tennessee, priority over their materialman’s liens. The bank moves to dismiss the appeal on the ground that the notices of appeal filed by the appellants were untimely. We find that the notices of Ozark and Conrade were timely but that the notices of Ketcher and Southwest were not, thus the motion is granted as to the appeals of Ketcher and Southwest but not as to the appeals of Ozark and Conrade.

On March 27, 1989, the trial court entered its order establishing the priorities among the parties. Ketcher and Ozark moved to set the order aside because they had not received notice of it. The motion was granted on May 23, 1989, and the court reentered its order on June 5, 1989.

On June 30, 1989, Ozark and Conrade filed a notice of appeal. Ketcher and Southwest were not named as appellants, but on July 19and20,1989,theymoved to amend the noticeof appeal by adding their names as appellants. On July 26,1989, the trial court granted the motion to amend the notice of appeal.

Arkansas R. App. P. 4(a) permits the trial court to increase the time for filing a notice of appeal if it is shown that the would be appellant did not receive notice of the judgment or order to be appealed. Instead of permitting the increase in time, the trial court vacated its original order and reentered it at a later date. A trial court may set aside its judgment within 90 days of its having been filed with the clerk in order to “prevent the miscarriage of justice.” Ark. R. Civ. P. 60(b).

The bank argues that the appeal of Ozark and Conrade was untimely because it should have been filed within 30 days of the March 27 order. That might be true if the trial court had extended the time for Ketcher and Southwest to file their notice or notices of appeal, but that action would presumably have had no affect on the judgment with respect to Ozark and Conrade. However, the trial court chose a different route. The final order as to all parties was entered June 5, thus the June 30 notice by Ozark and Conrade was timely.

Unfortunately for Ketcher and Southwest, their failure to file within thirty days of the June 5 order was fatal to their appeal. While it is proper for two or more parties to file a joint or consolidated appeal, Ark. R. App. P. 3(c), the notice of appeal must “specify the party or parties taking the appeal. . . .”Ark. R. App. P. 3(e).

We hold that Ozark and Conrade filed a timely notice of appeal from the final order. We dismiss the appeal as to Ketcher and Southwest, however, because they did not file a timely notice which is required for this court to take jurisdiction of an appeal. LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980).

Glaze, J., not participating.


text:
    Ramon PHILLIPS et al. v. LOWRANCE BROTHERS & COMPANY, INC.
    89-188
    784 S.W.2d 775
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990

      Mays & Crutcher, by: Richard L. Mays', and Oscar Fendler, for appellant.

      Moore, Moore-Hart & Barton, by: Whit Barton, for appellee Lowrance Bros. & Co., Inc.
   Per Curiam.

This appeal is dismissed pursuant to ARCP Rule 54(b). The appellants filed suit against Lowrance Brothers and Company, Inc., Commonwealth Savings & Loan Association and others seeking to set aside a foreclosure decree. The chancery court granted summary judgment in favor of Lowrance Brothers, purchasers of land at the foreclosure sale. It is that order from which the appeal is taken.

When more than one claim for relief is presented or multiple parties are involved, an order adjudicating fewer than all the claims or the liability of fewer than all parties does not terminate the action. This appeal is clearly premature because (1) the chancellor has made no ruling regarding Commonwealth, which is still a party to the suit, and (2) the chancellor has not yet decided whether he will set aside the judgment. See Tulio v. Arkansas Blue Cross and Blue Shield, Inc., 283 Ark. 278, 675 S.W.2d 369 (1984).

Appeal dismissed.


text:
    Jeff ROSENZWEIG as Next Friend of William Frank Parker v. STATE of Arkansas
    CR 88-95
    784 S.W.2d 776
    Supreme Court of Arkansas
    Opinion delivered February 26, 1990

      Petitioner, pro se.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner seeks to intervene, asking this court to remand the case of William Frank Parker, whose execution is scheduled to take place February 28,1990, to the trial court for a sanity determination. He also asks us to set aside Parker’s conviction on double jeopardy grounds and to hold the Arkansas capital punishment scheme unconstitutional. Petitioner has filed a separate petition to stay Parker’s execution. His petitions are denied because petitioner lacks standing.

Nothing in the record of either of Parker’s trials suggests that he is presently incompetent to waive further litigation or appeals nor is there anything to suggest a change in Parker’s behavior that would reflect he is presently incompetent. Our recent cases of Franz v. State, 296 Ark. 181, 754 S. W.2d 839 (1989), and O’Rourke v. State, 300 Ark. 323, 778 S.W.2d 938 (1989), are both distinguishable from the present situation. This court has considered two direct appeals regarding this matter. In the first one, Parker had been convicted of capital murder and was sentenced to death; we reversed. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). In the second, Parker, again, was convicted for capital murder, and again he was sentenced to death; this time, we affirmed. Parker v. State, 300 Ark. 360, 779 S. W.2d 156(1989). Parker seeks no further relief, and petitioner, in our view, simply has no standing, under the facts alleged and the existing circumstances of this case, to intervene on Parker’s behalf. Accordingly, petitioner’s petition for stay of execution is denied as well.


author: Robert H. Dudley, Justice. Steele Hays, Justice, Eddie N. Christian, Special Justice,

text:
    Bill BLANKENSHIP v. Theresa OVERHOLT, Debbie Frye and The United States of America
    89-206
    786 S.W.2d 814
    Supreme Court of Arkansas
    Opinion delivered February 28, 1990

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Jacob Sharp, Jr. and Brian Brown, for appellant.

      Kitterman Law Firm, by: Gregory S. Kitterman, for appellees.
   Robert H. Dudley, Justice.

Appellant Bill Blankenship, the regional manager of a private security firm, owns four (4) rental properties in the Jacksonville area. John Finley applied to Blankenship for work as a security guard. The two had never before met. In his work application Finley wrote that he had experience laying tile. Blankenship told Finley that he did not have an opening for a security guard, but that he owned a rent house which needed bathroom and kitchen repairs. Finley said he needed work, and Blankenship hired him to repair the bathroom shower for “around six hundred dollars.” Finley was going to use regular sheetrock in the wall, but Blankenship specified waterproof sheetrock and the color of the tile. It took Finley “three or four days” to complete the bathroom, and Blankenship went by to check the progress “once or at most twice,” or else “occasionally.” Blankenship specified that Finley should go into the apartment to work only when one of the tenants was there. Blankenship did nothing else. The bathroom job was successfully completed.

Blankenship then hired Finley, by another oral contract, to repair and retile the kitchen “for an agreed amount of money,” or on a “materials cost plus labor” basis. Blankenship specified treated wood for the braces in the kitchen. There is no proof that Blankenship ever saw any of the work being done in the kitchen. The contractor was in the process of taking up floor linoleum and used gasoline to remove the glue when an explosion and fire occurred. Injury and damages to the tenants, appellees Overholt and Frye, occurred. The trial court refused to grant a directed verdict for the owner of the property, appellant Blankenship. Appellant Blankenship was held not to be the employer of an independent contractor, but instead the master in a master-servant relationship, and, thus, vicarious liability attached for Finley’s negligence. We reverse and dismiss as to appellant Blankenship.

An employer of an independent contractor is not liable for the independent contractor’s torts which are committed in the performance of the contracted work. Humphries v. Kendall, 195 Ark. 45, 111 S.W.2d 492 (1938). However, when an employer goes beyond certain limits in directing, supervising, or controlling the performance of the work, the relationship changes from employer and independent contractor to master and servant, and the master is liable for the servant’s torts. Meyer v. Moore, 195 Ark. 1114, 115 S.W.2d 1087 (1938).

In drawing that line between independent contractor and servant, we look at the totality of the circumstances. Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v. Sullivan, 293 Ark. 576, 740 S.W.2d 127 (1987). Section 220 of the Restatement (Second) of Agency sets out the various circumstances or facts which are to be weighed in drawing the line:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
G) whether the principal is or is not in business.

We have written that (a) above, the extent of control, is the principal factor in determining the relationship. Moore v. Phillips, 197 Ark. 131, 120 S.W.2d 722 (1938). In Moore, we explained:

By a long line of decisions this court is committed to the universal rule, that where the contractor is to produce a certain result, according to specific and definite contractual directions, agreed upon and made a part of the contract, and the duty of the contractor is to produce the net result by means and methods of his own choice, and the owner is not concerned with the physical conduct of either the contractor or his employees, then the contract does not create the relation of master and servant. This court has consistently accepted and stated the settled rule that even though control and direction be retained by the owner, the relation of master and servant is not thereby created unless such control and direction relate to the physical conduct of the contractor in the performance of the work with respect to the details thereof. St. Louis, I.M. & S. R. v. Gillihan, 77 Ark. 551, 92 S.W. 793; Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S.W. 4.

Here, the employer was not concerned with the physical conduct of the contractor. Instead, he was concerned with the result. The fact that he wanted treated wood for the braces in the kitchen floor is a specification for the end result, and not supervision of the physical conduct of the contractor. The employer was not engaged in one of the building trades, knew nothing about them, had no tools, had no skill in the field, did not even know the helper’s name, and had never before employed the contractor. The relationship between the employer and the contractor was in every way described in the Restatement test that of employer and independent contractor.

Viewing the evidence and all inferences most favorably to appellees, as we must do in the denial of a motion for a directed verdict, we cannot say there was any substantial evidence to support the verdict.

Reversed and dismissed as to appellant Blankenship.

Special Justice Gene E. McKissic joins in this opinion.

Hays, J., and Special Justice Eddie N. Christian, dissent.

Glaze and Turner, JJ., not participating.

Steele Hays, Justice,

dissenting. Relying only on a sterile record, the majority has overridden the trial court and jury, holding there is no substantial evidence to support the verdict. I fully concur in the dissenting opinion of Special Justice Eddie N. Christian, but offer these further observations.

Whether the relationship in this instance is one of master-servant or independent-contractor hinges, not on whether Bill Blankenship did exercise control over John Finley in the performanee of the work, but whether, under the circumstances in their entirety, Blankenship had a right to control. It is the right to control that is decisive. Hobbs-Western Co. v. Carmical, 192 Ark. 59, 91 S.W.2d 605 (1936). That is a factual question of the broadest scope and subject to the most subtle nuances of proof.

As to whether Blankenship had a right to control, his own testimony provides the answer and refutes the assertion of the majority that he was interested only in the result:

I went out to see the work. If it would not have been satisfactory to me, I would have told him that I didn’t like it, that I wanted it changed and here’s the way I want it done. ... In my opinion, Mr. Finley was better at knowing how to save a dollar than he was to how to do a job right.
I expected Mr. Finley to do the work in a fashion which I wanted it done. I believe that I could look at the tile as it progressed, if there was an area that something was wrong with the tile being laid there, I could say, “This is wrong, correct it before you get down there." [My emphasis.]

Given its strongest probative weight, that testimony is entirely sufficient to sustain an inference, as the jury found, that Mr. Blankenship was as interested in the manner of the work as in the end result.

Eddie N. Christian, Special Justice,

dissenting. Appellees, Theresa Overholt and Debbie Frye, leased a house in Jacksonville, Arkansas, owned by appellant, Bill Blankenship. Blankenship hired John Finley to make certain repairs, including the laying of tile in the kitchen area of the leased premises. Finley, in the course of removing the old floor surface, utilized gasoline as a glue removal agent. A flash fire ensued and Frye was burned. Overholt’s and Frye’s personal property was also damaged or destroyed.

At trial, Blankenship alleged that there was no substantial evidence that Finley was his agent and argued that Finley occupied the status of an independent contractor. As a result, Blankenship made a motion for directed verdict.

The motion for directed verdict was denied and, after a jury verdict in favor of the appellees, Blankenship lodged this appeal.

The sole issue before the court is whether the trial court was correct in denying Blankenship’s motion for directed verdict.

In reviewing a denial of a motion for directed verdict, we give the proof its strongest probative force. Such proof, with all reasonable inferences, is examined in the light most favorable to the party against whom the motion is sought and if there is any substantial evidence to support the verdict, the trial court will be affirmed. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987); First Nat’l Bank of Wynne v. Leonard, 289 Ark. 357, 711 S.W.2d 798 (1986).

We have held that a determination of whether an agency relationship is established doesn’t depend on whether the agent is actually directed, but instead on whether authorization and the right to control exist. Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v. Sullivan, 293 Ark. 576, 740 S.W.2d 127 (1987); Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985).

In this case, Blankenship retained control over the type of materials used and, in fact, caused a change in the materials on two (2) occasions. Furthermore, he restricted the hours that Finley could work and admitted to visiting the job periodically to check on its progress. More importantly, and by his own admission, Blankenship would have caused Finley to change the work if it had not been satisfactory.

After considering all of the evidence in the light most favorable to the appellees, we cannot conclude that there is no substantial evidence to support the verdict.

Dissent.

Hays, J., joins in this dissent.


author: David Newbern, Justice.

text:
    Daniel L. MEDLOCK, et al. v. James C. PLEDGER, et al.
    89-89
    785 S.W.2d 202
    Supreme Court of Arkansas
    Opinion delivered February 28, 1990
    [Rehearing denied April 2, 1990.]

      Jack, Lyon & Jones, P.A., by: Eugene G. Sayre, for appellants.

      William E. Keadle, Revenue Legal Counsel, for appellee James C. Pledger.

      Henry Law Firm, by: David P. Morphew and Joe Morphew, for appellees Donald Venhaus, Patricia Tedford, and Pulaski County, Arkansas.

      James N. McCord, for intervenor/appellee City of Fayetteville, Arkansas.

      Dudley and Price, JJ., not participating.

   David Newbern, Justice.

The question in this case is whether the imposition of a sales tax on cable television service is an unconstitutional, and thus illegal, exaction because the tax does not apply to other mass communications media. We hold that, for a time, the tax was illegal because it was not levied on other, similar services, such as satellite television programming. Now that the tax has been made to apply to all similarly situated businesses, however, its illegality has been cured. We remand the case to the chancellor so that the taxes illegally collected may be refunded to those who paid them.

By Act 188 of 1987 the general assembly added to the services to be subject to the sales tax:

Cable television services provided to subscribers or users. This shall include all service charges and rental charges whether for basic service or premium channels or other special service, and shall include installation and repair service charges and any other charges having any connection with the providing of cable television services.

By Act 769 of 1989, the language was changed to the following:

Service of cable television, community antenna television, and any and all other distribution of television, video, or radio services with or without the use of wires provided to subscribers or paying customers or users, including all service charges and rental charges, whether for basic service, premium channels, or other special service, and including installation and repair service charges and any other charges having any connection with the providing of the said services.

Act 769 was signed by the governor on March 21, 1989, and in accordance with its emergency clause, became law on July 1, 1989. The act is now codified as Ark. Code Ann. § 26-52-301 (3)(D)(i) (Supp. 1989).

Act 188 was promptly challenged by the appellants, Daniel L. Medlock, Community Communications Co., and the Arkansas Cable Television Association, Inc., on behalf of themselves and all other similarly situated taxpayers. The appellees are James C. Pledger, Commissioner of Revenues, and various state, county, and city officials, Pulaski County, the City of Benton, and all other similarly situated counties and cities. The City of Fayetteville intervened.

As Act 769 had not become law when the chancellor made his ruling, the sole question before him was the constitutionality of Act 188. The taxpayers challenged it as being in violation of their rights of freedom of speech and freedom of the press guaranteed by the First Amendment, their right to equal privileges and immunities guaranteed by U.S. Const., art. 4, § 2, and Ark. Const, art. 2, § 18, and their right to equal protection of the laws guaranteed by the Fourteenth Amendment and Ark. Const, art. 2, § 3. They also claimed protection under 47 U.S.C. § 542 and the Supremacy Clause. All of the counts in the complaint boiled down to a claim of discrimination against the cable television medium, and that is the essence of the arguments on appeal, although they are segmented as was the complaint.

1. Public rights of way

In his order ruling against the taxpayers, the chancellor distinguished the cable medium from others on the ground that it required use of a public right of way in addition to the fact that there are no gross proceeds to be taxed in the case of, for example, broadcast television. There was uncontradicted testimony to the effect that a cable television enterprise pays a franchise fee for the use of the right of way. It is true that the use of public rights of way by cable television may subject it to more regulation as has been suggested in some cases. See City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488 (1986); Central Telecommunications, Inc. v. TCI Cablevision, Inc., 800 F.2d 714 (8th Cir. 1986); Omega Satellite Products v. City of Indianapolis, 694 F.2d 119 (7th Cir. 1982); Community Communications v. City of Boulder, 660 F.2d 1370 (10th Cir. 1981). However, those cases involve regulation related to access to'or use of the rights of way rather than a tax which has no relationship to the acquisition of the privilege of using public property. We thus find the fact that cable television uses public property and must obtain a franchise to do so should not control the result in this case.

2. The First Amendment

We need not indulge in a long explanation of the history of cable television and the cases which have gradually recognized the entitlement of such enterprises to First Amendment protection. A good discussion of it is found in Quincy Cable TV, Inc. v. F.C.C., 768 F.2d 1434 (D.C. Cir. 1985).

The Supreme Court has left no doubt about the matter. In City of Los Angeles v. Preferred Communications, Inc., supra, it was held that the complaint of a cable television company alleging violation of the company’s rights guaranteed by the First Amendment should not have been dismissed for failure to state a claim upon which relief could be granted. The court made it clear that the complaint implicated the First Amendment and facts should be developed to determine how to balance the First Amendment protection to which a cable television company was entitled against the city’s right to regulate the company’s use of public property.

3. Discrimination

Entitlement to protection under the First Amendment does not mean entitlement to absolute freedom from regulation by the government. U.S. v. O’Brien, 391 U.S. 367 (1968). If a tax is to be applied to an enterprise entitled to First Amendment protection, it must be a general tax and must not be a form of censorship. In Grosjean v. American Press Co., 297 U.S. 233 (1936), Louisiana was held to have violated the First Amendment by imposing a tax on newspapers circulating more than 20,000. The court recognized that the press may be subjected to taxation but not if the tax is discriminatory and functions as a censor of some newspapers but not others.

In Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983), it was held that a Minnesota use tax on ink and paper purchases over $100,000 was invalid because its impact was on a few newspapers and one in particular. Unlike the Grosjean case, there was no direct implication of censorship, but the tax was found to discriminate among newspapers and thus to be invalid. The Supreme Court again recognized, however, that the press is subject to a general, nondiscriminatory tax.

In Arkansas Writers’ Project v. Ragland, 481 U.S. 221 (1987), the Supreme Court held that a tax which was applied to some, but not other, magazines sold in Arkansas was in violation of the First Amendment.

In none of the cases we have discussed above, and in none of the other cases cited to us, do we find the Supreme Court holding that, for example, the failure to tax newspapers in the same manner as radio broadcasts violates the First Amendment. Each of the cases involved discrimination among competing mass communicators, each of whom was entitled to First Amendment protection. The taxpayers argue here that cable television is entitled to exemption from the sales tax because newspaper sales are not taxed and subscription magazine sales aren’t taxed. They would like us to issue a ruling which would invalidate not only Act 188 but, in effect, Act 769 as well. We decline to do so. As noted above, Act 769 was not before the court in this case, and we are unwilling to hold that all mass communications media must be taxed in the same way. It would be impossible to impose a tax which would have the same effect on broadcast television, the ) delivery of which produces no direct “gross proceeds,” and cable television. We must, however, hold that a tax which discriminates between mass communicators delivering substantially the same service runs afoul of the First Amendment and the cases which prohibit discriminatory taxation among the purveyors of a particular medium.

Act 188 levied a tax on cable television enterprises but did not tax the proceeds resulting from the “unscrambling” of satellite signals. The similarity of the services is demonstrated in the testimony of Paul Gardner, Jr., president of the Arkansas Cable Television Association. He testified that his company offered both cable service and decoders for “unscrambling” satellite television broadcasts which a viewer using a satellite dish could not otherwise receive. He testified that his company charged the same to a cable viewer for the premium HBO channel, for example, as it charged a satellite viewer. Act 188 thus imposed a tax which cannot pass First Amendment muster, and we must remand this case to the chancellor for orders consistent with this opinion.

Reversed and remanded.

Dudley, J., not participating.


author: Steele Hays, Justice.

text:
    Milton THOMPSON v. STATE of Arkansas
    CR 89-210
    785 S.W.2d 29
    Supreme Court of Arkansas
    Opinion delivered March 5, 1990

      William R. Simpson, Jr., Public Defender, Bret Qualls, Deputy Public Defender, by: Didi H. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

The appellant was convicted of possession of cocaine with intent to deliver and possession of drug paraphernalia. He was sentenced to seventy years in prison as an habitual offender. The sole issue before us is whether the prosecutor exercised his peremptory challenges with the discriminatory purpose of excluding black persons from the jury.

The appellant, a black man, claims the jury panel should have been quashed when the prosecuting attorney used peremptory challenges to strike two black persons. He relies on Batson v. Kentucky, 476 U.S. 79 (1986) and Ward v. State, 293 Ark. 88, 722 S.W.2d 728 (1987).

The appellant had the burden of making a prima facie case of discrimination in the selection of jurors. Batson, supra; Ward, supra. A prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of a discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions or statements by a prosecuting attorney during voir dire. Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989). Once a prima facie case has been made, the burden shifts to the prosecutor to give a sufficiently neutral explanation for the peremptory strike in the context of a “sensitive inquiry” by the court. Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988). Weconcludethe appellant failed to establish a prima facie case of discrimination. Therefore, we will not address the need for a sensitive inquiry or the reasons behind the prosecutor’s use of the peremptory challenges.

The jury that convicted the appellant included three black members. The presence of minority members on the jury, while by no means determinative of the question of whether discrimination occurred, is of some significance. Ford v. State, supra. It is also noteworthy that, when the three black jurors were seated on the jury, the prosecutor still had peremptory challenges remaining. See Owens v. State, supra. Finally, we note that the number of black persons serving on the jury (three) was greater than the number struck by the prosecutor (two).

We have not been reluctant to recognize those situations in which a prosecutor has used peremptory challenges to exclude potential jurors solely on the basis of race. See Mitchell v. State, 259 Ark. 341, 750 S.W.2d 936 (1988); Ward v. State, supra. But those cases differ markedly from the case at bar. In Mitchell, the sole black venireman was excluded by the prosecutor, resulting in an all-white jury. We determined, based on the nature of the prosecutor’s questioning during voir dire, that a prima facie case of discrimination had been made. In Ward, the prosecutor exercised all eight of his peremptory challenges to strike black jurors, resulting in an all-white jury. We declared that a prima facie showing of discrimination was made in that case also.

The record in this case fails to reflect a discriminatory purpose in the prosecutor’s use of peremptory challenges. The appellant did not meet his burden of making a prima facie case. See Owens v. State, supra; Ford v. State, supra. See also White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989).

Affirmed.

Price, J., not participating.


text:
    Ronnie MIDGETT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES
    89-307
    785 S.W.2d 21
    Supreme Court of Arkansas
    Opinion delivered March 5, 1990

      Ed Phillips, Inmate Att’y, and Marceliers Hewett, Compliance Att’y, Ark. Dep’t of Correction, for appellant.

      James E. Dickson, Ark. Dep’t of Human Services, for appellee.
   David Newbern, Justice.

Ronnie Midgett appeals from the decision of the probate court by which his parental rights were terminated and the appellee, Arkansas Department of Human Services (DHS), was appointed guardian of his three children with the power to consent to adoption. The sole issue raised is whether DHS complied with a statutory requirement to provide remedial support services designed to reunite the child and the parents before seeking to establish grounds for the guardianship. The trial court found that DHS had made reasonable efforts to deliver “applicable available services” to the family. We agree that compliance with the statute was had and affirm.

Testimony of DHS caseworker Suzann Henry showed that the Midgett family began receiving services from the agency in 1977. In that year one of the children was placed in foster care as a result of having been abused. The child was later returned to the family, and services continued. A second child was placed in foster care in 1978 where he remained over two years. The mother left the home in 1980 because of abuse administered by Ronnie Midgett. DHS lost contact with the case while the family was in Texas, but it was known that a Texas agency placed one of the children with an aunt while the family was there after placing him in foster care twice as the result of physical abuse. Contact was regained in 1986 when the family returned to Craighead County.

In January, 1986, a protective services case was reopened on the family due to a report of child abuse. At that point the family consisted of Ronnie Midgett and his four children. The mother continued to live away from the home. She received services from DHS, or was offered them, up until the time of the hearing in this matter.

Ronnie Midgett was convicted of first degree murder of his eight-year-old son as the result of a brutal beating which occurred in May, 1986. We affirmed the conviction after modifying it to second degree murder. Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987). After his conviction, Midgett was incarcerated. He argues DHS failed to provide family rehabilitative services required by statute while he was in prison.

At the time of the hearing in this matter, the applicable statute provided for establishment of grounds for a guardianship, and in Ark. Code Ann. § 9-9-304(F)(ii) (1987), which has since been repealed, it was further provided:

However, before grounds may be established under this subdivision, the court must be satisfied that the parents have received for a period of up to six (6) months in the discretion of the court, from the Arkansas Department of Human Services, remedial support services designed to reunite the child and the parents and that such services have failed to substantially reduce the risk of harm to the child.

The statute was not very clear in that one cannot tell whether the discretion of the court was to be applied to the matter of whether the services were to be provided or only to the matter of their duration. In any event, there was no requirement that the services be provided in the six months immediately preceding the guardianship hearing. In Watson v. Dietz, 288 Ark. 111, 702 S.W.2d 407 (1986), our statement with respect to the requirement was only that, “[t]he services must last six months.” In this case, the evidence is sufficient to support not only the trial court’s finding that DHS made reasonable attempts to deliver “applicable available services” but that such services were in fact delivered for years.

Midgett cites Santosky v. Kramer, 455 U.S. 745 (1982); A.B. v. Arkansas Social Services, 273 Ark. 261, 620 S.W.2d 271 (1981); and Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979), for the proposition that the state’s burden in showing parents of a child to be unfit is a heavy one which can be met by producing clear and convincing evidence of unfitness. DHS concurs in that statement of the standard to be applied, and it is the one recited by the trial judge. No argument is made, however, that the facts here do not demonstrate unfitness. Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984), is cited, but the maximum effect our decision in that case could have here is its implication that the imprisonment of a convicted murderer is not, standing alone, sufficient to show unfitness. While all parties and courts concerned accept the clear and convincing evidence standard for proof of parental unfitness, no case has been cited applying that standard to a determination whether there has been compliance with § 9-9-304(F)(ii). Such a standard would be inappropriate in view of the statutory language giving the trial court discretion. We hold there was ample evidence of compliance with the statute.

Affirmed.

Price, J., not participating.