text:
    ARKANSAS BOARD of EXAMINERS In Counseling v. Mary Pat CARLSON
    98-102
    976 S.W.2d 934
    Supreme Court of Arkansas
    Opinion delivered October 29, 1998
    [Petition for rehearing denied December 3, 1998.]

      Winston Bryant, Att’y Gen., by: Arnold M. Jochums, Ass’t Att’y Gen., for appellant.

      Wright & Burke, by: William Randal Wright, for appellee.
   Donald L. Corbin, Justice.

Appellant Arkansas Board of Examiners in Counseling appeals the judgment of the Miller County Circuit Court reversing the Board’s decision to revoke Appellee Mary Pat Carlson’s license to practice as a licensed professional counselor. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1 — 2(b)(1) & (6), as it presents an issue of first impression requiring our interpretation of an act of the General Assembly. On appeal, the Board argues that (1) there is substantial evidence to support its decision, and (2) the circuit court erred in reversing its decision on a ground not raised before the Board. We reverse the ruling of the circuit court and reinstate the Board’s decision.

Facts and Procedural History

In May 1996, the Board sent Carlson notice of a hearing to determine whether she had violated the Counselors Licensing Law, Ark. Code Ann. § 17-27-101 to -308 (Repl. 1995), the Board’s rules, and the ethical standards for licensees. The Board alleged that Carlson had violated section 17-27-102(5), which prohibits licensees from conducting projective tests, and had committed several ethical violations stemming from Carlson’s counseling of RMN, a minor female born on July 9, 1988. As to the ethical violations, the Board alleged that Carlson had failed to notify RMN’s psychologist, Dr. Betty Feir, that she had been seeing the child during the same time that Dr. Feir was treating her. The Board alleged further that Carlson had exceeded the boundaries of her practice, as reflected in her Statement of Intent, by administering four tests to RMN: (1) the Bender Visual Motor Gestalt test (Bender-Gestalt), (2) the Wechsler Intelligence Scales for Children, Revised (WTSC-R), (3) the Draw-A-Person test (DAP), and (4) the Draw-A-Family test (DAF). The Board asserted that these tests are projective instruments that counselors are not authorized to administer. See section 17-27-102(5). The Board also asserted that Carlson was not licensed in the appraisal speciality. The Board’s notice reflected that it had adopted the Ethical Standards of the American Association for Counseling and Development (March 1988) (Ethical Standards) and the Code of Ethics and Standards of Practice of the American Counseling Association (July 1995) (Code of Ethics).

A hearing was held before the Board on June 7, 1996, during which testimony and exhibits were presented on the matter. In an order dated June 24, 1996, the Board revoked Carlson’s license to practice. Particularly, the Board found that Carlson had violated Ethical Standard B(3), pertaining to her failure to notify RMN’s psychologist that she was simultaneously seeing the child. The Board also found that Carlson had used appraisal techniques despite the fact that she had not been approved for a specialty license in the appraisal area, in violation of section 17-27-301(6) and Board Rules 3.3 and 4.2. The Board also found that Carlson’s use of appraisal instruments constituted practice outside her Statement of Intent. Lastly, the Board found that Carlson’s use of projective instruments in violation of section 17-27-102(5)(B) constituted unprofessional conduct.

Carlson appealed to the circuit court, arguing, among other things, that the Board’s decision was not supported by evidence, was arbitrary and capricious, and was based on rules and regulations not properly adopted by the Board. The circuit court vacated the Board’s conclusions of law and ordered the Board to reconsider its ruling. This appeal followed.

Standard of Review

Judicial review of decisions of the Arkansas Board of Examiners in Counseling is governed by the Arkansas Administrative Procedure Act (APA) pursuant to Ark. Code Ann § 25-15-212 (Repl. 1996). See Bohannon v. Arkansas State Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995). Our review, like that of the circuit court, is limited in scope and is directed not to the decision of the circuit court, but to the decision of the administrative agency. Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). Under the APA, it is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency’s decision or whether the agency’s decision runs afoul of one of the other criteria set out in section 25-15-212(h). Id. We review the entire record in making this determination. Arkansas Alcoholic Beverage Control Bd. v. Muncrief 308 Ark. 373, 825 S.W.2d 816 (1992).

We will not reverse the Board’s decision if there is any substantial evidence to support it. Bohannon, 320 Ark. 169, 895 S.W.2d 923. Substantial evidence is evidence that is valid, legal, and persuasive and that a reasonable mind might accept to support a conclusion and force the mind to pass beyond speculation and conjecture. Id. The question is not whether the testimony would have supported a contrary finding, but whether it would support the finding that was made. Id. It is the prerogative of the board to believe or disbelieve any witness and to decide what weight to accord the evidence. Id. Similarly, the construction of a state statute by an administrative board or agency will not be overturned unless it is clearly wrong. Thomas v. Arkansas Dep’t of Human Servs., 319 Ark. 782, 894 S.W.2d 584 (1995). This court has often stated that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. See, e.g., Hamilton v. A.P.C. & E. Comm’n, 333 Ark. 370, 969 S.W.2d 653 (1998); Social Work Licensing Bd. v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998); Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).

I. Substantial Evidence

The Board asserts that its decision to revoke Carlson’s license is supported by substantial evidence. Specifically, the Board contends that there was substantial evidence to support its conclusion that (1) Carlson violated Ethical Standard B(3) by failing to notify RMN’s psychologist that she was seeing the child as a patient, and (2) Carlson exceeded the scope of her practice, as originally licensed by the Board and evident in her Statement of Intent, in violation of the statutory law and Rules 2.8 and 3.3 of the Arkansas Board of Examiners in Counseling Rules and Regulations (Board Rules).

A. Failure to Notify Child’s Psychologist

The Board found that Carlson had violated Ethical Standard B(3) by failing to notify RMN’s psychologist that she was counseling the child during the same period of time. Carlson maintains that RMN was never her client; instead, she asserts that RMN’s mother was her patient.

Ethical Standard B(3) provides:

If an individual is already in a counseling relationship with another professional person, the member does not enter into a counseling relationship without first contacting and receiving the approval of that other professional. If the member discovers that the client is in another counseling relationship after the counseling relationship begins, the member must gain the consent of the other professional or terminate the relationship, unless the client elects to terminate the other relationship.

Dr. Betty Feir, a psychologist licensed in Arkansas and Texas, testified that she started seeing RMN as a patient when the child was three years old. She stated that RMN had been progressing beautifully up until the fall before the Board’s hearing, when the child began having some difficulty. Specifically, she stated that the child had problems with bed-wetting and that she had become somewhat withdrawn. She stated that when she asked the child what was wrong, RMN revealed that she had been going to Carlson’s offices and that Carlson had been talking to her about her situation and asking her questions. She stated that RMN indicated that she was not supposed to tell this to Dr. Feir. She also stated that RMN indicated that she did not want to go to Carl- • son’s office. Dr. Feir perceived that RMN was having the kind of relationship with Carlson similar to the one RMN had with her, and that it was certainly RMN’s perception that Carlson was her therapist. She stated that if, in fact, RMN’s mother was actually Carlson’s client, it was unusual and inappropriate for a child of RMN’s age to be in the room while her mother was having therapy. She stated that it would not be standard therapy to see an adult in therapy with a child present. She stated that Carlson knew that she (Dr. Feir) was seeing RMN because Carlson had heard her testify about her relationship with RMN in court. She stated that Carlson also knew that RMN was continuing to see her.

Dr. Wrenda Gallien, a board-certified psychiatrist in child psychiatry, testified that she had a doctor-patient relationship with RMN that began in November of 1995. She stated that from her interviews of RMN, it appeared that the child had seen two mental health professionals at the same time. She stated that RMN said she did not like going to two therapists. She stated that on the child’s second visit to her, RMN volunteered that she had been asked not to talk about her visits with Carlson. She stated that RMN indicated that Carlson had called her father stupid, and that her mother and Carlson both indicated that if RMN said that she wanted to continue living with her father, she would not be able to see her mother anymore. Dr. Gallien stated that it is normal for a parent to be present when a child is being counseled, but that if the therapy is for a parent, it is not normal for the child to be present during therapy.

Carlson testified that the only substantive contact she had with RMN was when she conducted an evaluation of the child for purposes of giving testimony at trial. She denied that RMN was ever her client or patient. She stated that RMN’s mother’s attorney had requested that she evaluate RMN for an upcoming hearing in Texas, involving the child’s continued visitation with her mother. She stated that she did so testify in court on June 30, 1994. She admitted that RMN had mentioned Dr. Feir to her, and that she knew Dr. Feir would give expert testimony at the Texas hearing in June 1994. She indicated that after she heard Dr. Feir’s testimony, she became aware that Dr. Feir had been treating RMN for a number of years. She denied having counseling sessions with RMN after June 30, 1994.

On cross-examination, however, Carlson admitted to having written a letter to RMN’s father on October 13, 1995, that reflected “following your request to discuss with [RMN’s mother] whether she would be willing to have you sit in on counseling sessions with [RMN], I obtained her agreement and attempted to get in touch with you to notify you.” (Emphasis added.) Moreover, on rebuttal, Patricia Bradley, an employee of RMN’s father, testified that on November 7, 1995, she saw RMN and her mother go into Carlson’s office, and that when they came out, RMN was carrying some books and papers. Bradley stated that she heard RMN crying and telling her mother that she did not like the things that they, presumably RMN’s mother and Carlson, were saying about her daddy. Bradley stated that on November 14, 1995, she saw RMN go back into Carlson’s office carrying paper and books, and that she was not carrying anything when she left.

From the foregoing testimony, we conclude that there is substantial evidence to support the Board’s finding that Carlson had seen RMN as a counseling client, but had made no attempt, under Ethical Standard B(3), to consult with Dr. Feir or to coordinate her activities with Dr. Feir despite her knowledge that RMN was seeing Dr. Feir.

B. Exceeding the Scope of Her Duties as Licensed

The Board argues that there is substantial evidence to support its decision that Carlson exceeded the scope of her licensed practice by administering the WISC-R, the Bender-Gestalt, the DAP, and the DAF tests to RMN, in violation of sections 17-27-102 and 17-27-301 and Board Rules 2.8 and 3.3.

Section 17-27-301 sets out the qualifications for applicants who wish to be licensed professional counselors. Subsection (6) provides:

The applicant will declare special competencies and demonstrate professional competence in specialty areas by passing a written or oral or situational examination, or any combination thereof, as the board will prescribe. Upon examination of credentials the board, by a majority of the board members present and voting, may consider such credentials adequate evidence of professional competence and recommend to the chairman of the board that a license be approved in that specialty. [Emphasis added.]

Board Rule 2.8 provides that the applicant’s Statement of Intent refers to a typed statement from the license applicant “describing the intended use of the license, the public with whom the applicant will work, and the counseling approaches the applicant plans to use (including techniques and tools).” (Emphasis added.) Carlson’s Statement of Intent, approved by the Board on September 21, 1985, reflects:

It is my intent to work in a community mental health clinic with chronic and acute mental health clients in group, individual, family and couple counseling using eclectic techniques of marriage and family counseling, individual counseling and group counseling.
My areas of expertise include: marriage and family counseling (American Association of Marriage and Family Therapy, clinical member), hypno-counseling (American Society of Clinical Hypnosis), sex counseling (American Association of Sex Educators, Counselors, Therapists — certified member), individual and group counseling (Licensed Professional Counselor, Texas).

Dr. Ann Thomas, Executive Director of the Licensing Board, testified that Carlson’s original Statement of Intent is the current statement on file with the Board, and that it does not contain a specialty in appraisal.

Rule 3.3 of the Board’s Rules and Regulations provides:

Areas of specialization, as specified in the statement of professional intent, shall be evaluated by the Board. The Board will use the national standards for the preparation of counselors, prepared by the specific professional association, as a guide in establishing the standards, for counseling, i.e., Marriage and Family Counseling, Rehabilitation Counseling, Pastoral Counseling, Career Counseling, School Counseling, Clinical Mental Health Counseling/Psychotherapy, Geriatric Counseling, Counseling Supervision, Appraisal or other specified counseling areas.

Dr. Philip Hestand, a psychologist licensed by both this Board and the Board of Examiners in Psychology, testified about the particular tests given by Carlson to RMN and about the training and specialization required to administer such tests. He stated that he had previously served on this Board and was familiar with the Board Rules and the Code of Ethics that applies to counselors. He stated that the WISC-R is a test of intelligence and ability and is considered an appraisal instrument, as some of the subtests require some judgment or interpretation by the administrator of the test as to quality of the response. He stated that an individual licensed by the Board who has a specialization in appraisal and has had course work in administering this type of test would be eligible to give the WISC-R.

Dr. Hestand stated that the Bender-Gestalt test was developed to assess both developmental age and the possibility of neurological impairment. He stated that a person who has had course work in testing of this type, including some sort of neurological assessment training, and has met the requirements for the appraisal specialization would be allowed to administer the test and make the conclusion that there is no indication of neurological problem. He stated that although the Bender-Gestalt test had been used by some as a projective test, it appeared from Carlson’s report on RMN that she did not use it as a projective test.

Dr. Hestand testified that the DAP test is a projective test when you use it to interpret internal processes that might be going on such as personal characteristics or attitudes or you are trying to make some kind of determination about emotionality based on a drawing. He stated that as a projective instrument, the DAP test is also an assessment of emotionality or personality and thus, it is an appraisal instrument. He stated that from Carlson’s report, it was apparent that the DAP test had been utilized as a projective instrument, as she had made interpretations about RMN having a sense of ambivalence, seeing men as powerful and also extremely weak or ineffectual, and that there were indications from the drawing of tension and anxiety, but overall a sense of a reasonably secure individual. He stated that the DAF test, similar to the DAP test, was also used by Carlson as a projective instrument, as she made subjective interpretations about RMN’s attitudes based on the projection of the child into the drawing.

Dr. Hestand testified that a licensee’s practice is based on his or her statement of intent. He explained that at the time of licensing, the applicant submits a letter of intent to the Board, wherein the applicant states what he or she intends to do in his or her practice. The Board then determines, based on what the applicant said, his or her credentials, and an oral exam, whether or not the applicant is competent to do those things. He stated that not all applicants have the same course work background or credentialing, and that the Board determines at the time of licensing what the applicant is competent to do or not competent to do. He stated further that not all persons licensed by the Board are licensed to do the same things. He stated that a counselor is required to have the appraisal specialization in order to use assessment instruments that are standardized or that require course work in training to administer. He stated that Carlson was approved for specialization in marriage and family counseling, and that she thus was not authorized to do psychological assessments using the foregoing tests. He noted that under the Board Rules, a person must have an assessment specialization before they can administer the WISC-R, the DAP, and the DAF as an assessment instrument, and that this requirement exists even if the test is not used as a projective instrument. He stated further that to administer the Bender-Gestalt and then write a report on the results requires an appraisal specialization, as the counselor is required to demonstrate that he or she has competency in appraising individuals both developmentally and psychologically. He stated that even a person holding an appraisal specialization might not be allowed to do particular types of testing, and that under the Arkansas counseling law, licensed counselors are never approved to administer projective tests. He stated that the conclusion of Carlson’s report appears to be based on projective testing rather than objective testing.

During her testimony before the Board, Carlson admitted that persons licensed by the Board must confine their practice within the ambit of their Statements of Intent. She also admitted that she does not have a speciality license. She stated that she had previously submitted an application to the Board for the appraisal specialty license, and that the Board had informed her that she would need to take three additional three-hour college courses in order to obtain such specialty license. She denied, however, that she needed such a specialty license to perform appraisals. When questioned by one of the Board members, Carlson contradicted herself, stating that she thought it would be good to have the appraisal specialty on her credentials, but that she did not think that she could do more with the appraisal specialty than she could without it. Carlson further admitted that the DAF and DAP tests can be used in a projective manner, but she denied having used them in such a way.

We conclude that there was substantial evidence to support the Board’s findings that Carlson was not licensed in the appraisal speciality, and that she was therefore not authorized to perform the four appraisal tests that she administered to RMlST. There is likewise substantial evidence that at least two of the tests, the DAP and the DAF tests, were used by Carlson as projective instruments, which is prohibited by section 17-27-102(5)(B).

We note Carlson’s arguments that (1) section 17-27-301(6) cannot be applied to her because she had been licensed by the Board prior to the time that subsection was passed by the General Assembly, and (2) that the Board applied the wrong version of Rule 3.3 to her case. Both these arguments must necessarily fail because Carlson did not raise them before the Board, despite the fact that she raised them in the circuit court. This court will not set aside administrative decisions on grounds that were not presented to the agency. “[I]t is essential to judicial review under the Arkansas Administrative Procedure Act that issues must be raised before the administrative agency appealed from or they will not be addressed by this court[.]” Wright, 311 Ark. at 132, 842 S.W.2d at 46 (citing Alcoholic Beverage Control Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985)).

II. Adoption of the Board’s Rules

The Board argues that the circuit court erred in reversing its decision on grounds not previously raised before the Board. Particularly, the Board asserts that Carlson failed to raise the issue of the Board’s alleged improper adoption of its Rules governing specialization and the 1988 Ethical Standards during the administrative hearing. The Board additionally asserts that the circuit court erred in concluding that Carlson was not provided sufficient notice of the law so that she could conform her conduct to the statute because neither the licensing law nor the Board’s regulations defined “projective instruments.” Again, the Board asserts that this issue was raised for the first time in circuit court. We agree that the circuit court’s reversal of the Board’s decision on those grounds was erroneous.

The circuit court ruled that the Board’s rules and the Ethical Standards were not properly adopted under Ark. Code Ann. § 25-15-204 (Repl. 1996). The circuit court concluded that the lack of notice deprived Carlson of her rights to due process of the law under both the Arkansas and United States Constitutions. The circuit court’s order reflects in part:

Because the rules and regulations were not properly filed with the Secretary of State, there is no legal notice of what is expected of counselors subject to said rules and regulations. There was no evidence presented by the Board of other notice and, in fact, Ms. Carlson’s attorney objected to the lack of notice. [Emphasis added.]

It is unclear what the circuit judge was referring to when he found that Appellee’s attorney had objected to the lack of notice of the Board’s rules. We are not aware of any such objection made by Carlson to the Board. To the contrary, during opening statement before the Board, Carlson’s attorney stated that “we admit that the board has adopted the standards.” Moreover, Carlson admitted in her response to the Board’s notice that the Board had adopted ethical standards, and that she is subject to the ethical provisions contained within the Ethical Standards and the Code of Ethics, enumerated by the Board in its notice.

We will not set aside an administrative determination upon a ground not presented to the agency because to do so would deprive the agency of the opportunity to consider the matter, make its ruling, and state the reasons for its action. Franklin v. Arkansas Dep’t of Human Servs., 319 Ark. 468, 892 S.W.2d 262 (1995) (citing Riverways Home Care v. Arkansas Health Servs. Comm’n, 309 Ark. 452, 831 S.W.2d 611 (1992); Arkansas Cemetery Bd. v. Memorial Properties, Inc., 272 Ark. 172, 616 S.W.2d 713 (1981)). The same may be said for constitutional arguments not raised at the agency level. See Arkansas Health Servs. Agency v. Desiderata, Inc., 331 Ark. 144, 958 S.W.2d 7 (1998) (approving the rule adopted by the court of appeals in Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982) that even though the Workers’ Compensation Commission may not have authority to declare statutes unconstitutional, such constitutional issues should first be raised at the Administrative Law Judge or Commission level, because such issues often require an exhaustive analysis that is best accomplished by an adversary proceeding, which can only be done at the hearing level). Carlson’s failure to raise the due-process arguments before the Board preclude their consideration by this court on appeal. Franklin, 319 Ark. 468, 892 S.W.2d 262. Thus, it was error for the circuit court to reverse the Board’s decision on the ground that the administrative rules had not been properly adopted. We accordingly reverse the ruling of the circuit court, and we reinstate the Board’s decision in its entirety.

Thornton, J., not participating.

       For purposes of clarification, we note that during the proceedings below, the term “Letter of Intent” was used interchangeably with that of “Statement of Intent.”


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    Deborah MAJORS v. AMERICAN PREMIER INSURANCE COMPANY
    98-161
    977 S.W.2d 897
    Supreme Court of Arkansas
    Opinion delivered October 29, 1998

      Ogles Law Firm, P.A., by: John Ogles, for appellant.

      Wright, Lindsey & Jennings LLP, by: Gregory T. Jones and Elisa Masterson White, for appellee.
   Annabelle Clinton Imber, Justice.

This case involves an interpretation of the underinsured motorist coverage statute, Ark. Code Ann. § 23-89-209(a) (Supp. 1997). Appellant Deborah Majors was involved in an accident with an underinsured vehicle. At the time of the accident, Ms. Majors was insured by American Premier Insurance Company. Ms. Majors filed suit against American Premier alleging that she was entitled to underinsured motorist (UIM) coverage in the amount of $25,000.00. The trial court granted summary judgment in favor of American Premier on the basis that it had obtained a written rejection of UIM coverage from the named insureds at the time the policy was originally issued, and Ark. Code Ann § 23-89-209(a) did not require American Premier to obtain an additional written rejection when the policy was amended. We affirm.

The relevant facts in the instant case are not in dispute. On August 11, 1995, the appellant’s parents, Stewart and Virginia Foster, entered into a contract for automobile insurance with American Premier. The contract covered both Mr. and Mrs. Foster and their automobiles. The Fosters were informed of the availability of UIM coverage at the time the policy was issued. They rejected UIM coverage and executed a written waiver. In July of 1996, Mrs. Foster contacted her local insurance agent about adding her daughter, Deborah Majors, to the policy. Ms. Majors was twenty-four years old, did not five with her parents, and planned to pay for her own coverage. Mrs. Foster filled out and signed a “Change Request” form, adding Deborah Majors as an “additional operator” and her vehicle, a Nissan Stanza, to the policy. The words “same coverages” were written across the section listing the various coverage options, including UIM coverage. American Premier did not offer UIM coverage, and Mrs. Foster did not withdraw her previous rejection of that coverage. Nor did Ms. Majors request any change in the coverage extended to her.

On July 27, 1996, Deborah Majors was involved in an automobile accident with a drunk driver. As a result of that accident, Ms. Majors incurred medical expenses in the amount of $90,000.00. Ms. Majors was offered the policy limits of $50,000.00 by the other driver’s insurance company. After receiving permission from American Premier, Ms. Majors settled with the other insurance company for the policy limits. She then made demand on American Premier for $25,000.00, claiming that underinsured motorist coverage existed as a matter of law because American Premier did not offer UIM coverage to her when she was added to her parents’ policy. American Premier refused her demand, and on December 5, 1996, Ms. Majors filed suit against American Premier. American Premier answered and then filed a motion for summary judgment. Ms. Majors appeals the trial court’s order granting American Premier’s motion for summary judgment.

As we have said on numerous occasions, summary judgment is to be granted by a trial court only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998). Where the operative facts of the case are undisputed, we simply determine on appeal whether the appellee was entitled to summary judgment as a matter of law. Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996).

Mr. and Mrs. Foster rejected UIM coverage when they obtained the initial policy from American Premier in August of 1995. On July 2, 1996, that policy was changed to include Deborah Majors, their daughter, and her Nissan Stanza automobile. Ms. Majors was injured on July 27, 1996. During all relevant periods, Ark. Code Ann. § 23-89-209(a) (Supp. 1997), uninsured motorist coverage, provided in pertinent part:

(a)(1) No private passenger automobile liability insurance covering liability arising out of the ownership, maintenance or use of any motor vehicles in this state shall be delivered or issued in this state or issued as to any private passenger automobile principally garaged in this state unless the insured has the opportunity, which he may reject in writing, to purchase underinsured motorist coverage.
(2) After a named insured or applicant for insurance rejects underinsured motorist coverage, the insurer or any of its affiliates shall not be required to notify any insured in any renewal, reinstatement, substitute, amended, or replacement policy as to the availability of such coverage.

(Emphasis added.) We have recognized that this statute requires insurers to provide underinsured motorist coverage to the named insured unless such coverage is rejected in writing by the insured. Shelter Mutual Ins. Co. v. Irvin, 309 Ark. 331, 831 S.W.2d 135 (1992). It is clear that the Fosters rejected UIM coverage in August 1995. The question presented in the instant case is whether the Arkansas underinsured motorist coverage statute, Ark. Code Ann. § 23-89-209(a), required American Premier to offer UIM coverage to Ms. Majors when she was added to the Fosters’ policy in July 1996. We hold that it did not.

When construing a statute, we adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). The first rule in determining that intent is to construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. If the language is plain and unambiguous, our analysis need go no further. Id.

It is evident from the plain language of section 23-89-209(a) that an insurance company does not have to offer UIM coverage each time that an existing policy is changed, so long as UIM coverage has previously been rejected by a named insured or applicant for insurance. Section 23-89-209(a)(2) specifically provides that once a named insured or applicant for insurance rejects UIM coverage, the insurer is not required to notify any insured about such coverage in any “renewal, reinstatement, substitute, amended, or replacement policy.” The broad wording of this provision clearly indicates the legislature’s intent to make a rejection of UIM coverage by one named insured effective as to any subsequent incarnation of the original policy that comes within the comprehensive categories listed in section (a)(2). This provision also indicates that a rejection of UIM coverage by a named insured is effective thereafter as to any person insured under that policy.

In Colonia Underwriters Insurance Co. v. Richardson, 325 Ark. 300, 924 S.W.2d 808 (1996), we held that the addition of two vehicles to a policy of insurance was an amendment to the policy that did not require a second and subsequent rejection of UIM coverage under the statute. We further noted that the UIM statute was clear in its provision that an insurer is not required to notify the insured in any amended policy as to the availability of UIM coverage once a named insured has rejected that coverage. Id.; see also Watford v. State Farm Mutual Automobile Ins. Co., 871 F. Supp. 1085 (W.D. Ark. 1994).

Ms. Majors contends that the holding in Colonia is limited to its facts, i.e., the addition of vehicles to an existing policy. Although Colonia did not specifically address the addition of a named insured, our interpretation of the UIM statute is governed by its clear language that any amendment to an existing policy of insurance does not require a second rejection. Ms. Majors also argues that this case can be distinguished from Colonia because she is an adult paying for her own insurance and living apart from her parents. She asserts that the addition of her name to her parents’ existing policy constituted a new policy of insurance. We do not agree.

The undisputed facts reflect that Ms. Majors was added to her parents’ insurance policy as an “additional operator.” American Premier’s obligation to insure her arose out of her mother’s written request that Ms. Majors and her vehicle be added to an existing policy. As noted by the trial court, it is apparent that Ms. Majors sought to be added to her parents’ existing policy in order to obtain the benefit of a cheaper insurance rate. Clearly, Ms. Majors never intended to take out a separate insurance policy. Thus, we hold that adding Ms. Majors to her parents’ existing insurance policy constituted an amendment to that policy and a second or subsequent rejection of UIM coverage was not required under Ark. Code Ann. § 23-89-209(a).

Ms. Majors finally contends that the trial court’s interpretation of the UIM coverage statute violates public policy. It has previously been pointed out, however, that a state’s public policy is best evidenced by its statutes. Guaranty National Ins. v. Denver Roller, Inc., 313 Ark. 846, 537 S.W.2d 160 (1993). An insurance provision that is in accordance with a statute cannot run contrary to public policy. Shelter General Ins. Co. v. Williams, 315 Ark. 409, 867 S.W.2d 457 (1993). The underinsured motorist coverage statute establishes the public policy of the State of Arkansas with regard to UIM coverage. As American Premium fully complied with that statute, there has been no violation of public policy.

Affirmed.

       Our decisions in Lucky v. Equity Mutual Insurance Co., 259 Ark. 846, 537 S.W.2d 160 (1976) and American National Property & Casualty Co. v. Ellis, 315 Ark. 524, 868 S.W.2d 469 (1994) are inapposite because the statutory language construed in those cases differs significantly from the statutory language construed herein.


text:
    Juanita Duke SHACKELFORD, Administratrix of the Estate of James Anthony Shackelford, Deceased v. ARKANSAS POWER & LIGHT COMPANY
    98-193
    976 S.W.2d 950
    Supreme Court of Arkansas
    Opinion delivered October 29, 1998

      The McMath Law Firm, by: Mart Vehik; and Tapp Law Offices, by: J. Sky Tapp, for appellant.

      Friday, Eldredge & Clark, by: Scott J. Lancaster and John C. Fendley, Jr., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Juanita Duke Shackelford, Administratrix of the Estate of James Anthony Shackelford, filed a wrongful-death and survival action against Carrick and Pat Patterson, Arkansas Power and Light Company (AP&L), John Doe 1, electrician, and John Doe 2, boat hoist manufacturer. On February 3, 1997, we reversed a summary judgment granted in favor of Carrick and Pat Patterson and remanded the case to the trial court for further proceedings. Shackelford v. Patterson, 327 Ark. 172, 936 S.W.2d 748 (1997). On October 3, 1997, Ms. Shackelford filed a motion to dismiss her claims against Carrick and Pat Patterson pursuant to a settlement agreement. The trial court entered an order of dismissal as to the Pattersons only on October 6, 1997. On the same day that she filed her motion to dismiss, Ms. Shackelford also filed a second amended and substituted complaint in which she listed AP&L as the only defendant. AP&L subsequently moved for summary judgment. At the beginning of the hearing on AP&L’s motion for summary judgment, Ms. Shackelford assured the trial court that AP&L was the only remaining defendant. The trial court entered summary judgment in favor of AP&L on October 21, 1997. The caption to the order of summary judgment fists AP&L, Carrick and Pat Patterson, John Doe 1, and John Doe 2 as the defendants. However, the body of the order refers only to AP&L. Specifically, the last sentence of the order declares that “the Motion for Summary Judgment of defendant, Arkansas Power & Light Company, Inc., is hereby granted and plaintiffs cause of action against said defendant is hereby dismissed in its entirety with prejudice.” Ms. Shackelford now appeals the trial court’s order of summary judgment in favor of AP&L. We, however, must dismiss this appeal without prejudice due to a violation of Ark. R. Civ. P. 54(b).

Arkansas Rule of Civil Procedure 54(b) provides in relevant part that:

any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjucheating all the claims and the rights and liabilities of all the parties.

(Emphasis added.) It is well settled that the failure to obtain a final order as to all the parties and all the claims, as required by Ark. R. Civ. P. 54(b), renders the matter not final for purposes of appeal. Hodges v. Huckabee, 333 Ark. 247, 968 S.W.2d 619 (1998); Richardson v. Rodgers, 329 Ark. 402, 947 S.W.2d 778 (1997). Because a violation of Rule 54(b) relates to subject-matter jurisdiction of this court, we must raise the issue on our own. Hodges, supra; Richardson, supra.

In the case before us today, it is clear that the trial court has not entered a final order as to the two John Doe defendants. Pursuant to Ark. R. Civ. P. 41(a), a plaintiff may file a motion requesting a voluntary dismissal (or nonsuit) of a claim or claims against one or all of the defendants. As mentioned above, Ms. Shackelford filed such a motion as to the Pattersons, and the trial court entered an order of dismissal as to the Pattersons only on October 6, 1997. Ms. Shackelford, however, did not file a motion for a voluntary dismissal (or nonsuit) as to John Doe 1 and 2. Even if we assume that Ms. Shackelford’s second amended and substituted complaint was in the nature of a motion to dismiss her claims against John Doe 1 and 2, there is no order in the record granting such a dismissal against these two defendants. In Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 954 S.W.2d 939 (1997), we recently held that the mere filing of a motion to dismiss is insufficient to conclude the action. Instead, the claim against the defendant remains until the trial court enters an order of dismissal. Id. Stated differently, an order of dismissal (or nonsuit) does not become effective until it is entered. Id.; see also Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989).

For these reasons, we conclude that Ms. Shackelford’s claims against John Doe 1 and 2 are still pending. Because there is not a final order as to these two defendants or a Rule 54(b) certification, we do not have jurisdiction to hear this case. Accordingly, we dismiss this appeal without prejudice so that the trial court may enter a final order as to the remaining defendants, John Doe 1 and 2.

Appeal dismissed without prejudice.


author: Ray Thornton, Justice.

text:
    Lowell D. FONKEN v. Yedidiyah D. FONKEN
    97-1568
    976 S.W.2d 952
    Supreme Court of Arkansas
    Opinion delivered October 29, 1998

      Hughes & Hughes, P.A., by: Teresa L. Hughes, for appellant.

      Daisy Olsen, for appellee.
   Ray Thornton, Justice.

Appellant Lowell Fonken is the father of Yedidiyah “Jake” Fonken, appellee, who, upon reaching his majority, filed suit in White County Chancery Court seeking back child support. The chancery court found that, pursuant to Ark. Code Ann. § 9-14-105(c) (Repl. 1998), Mr. Fonken was obligated to pay his son back child support in excess of $19,000.00. From the decision of the trial court, Mr. Fonken brings this appeal. We affirm.

Jake’s parents were divorced on November 3, 1982, by order of the Pulaski County Chancery Court. Custody was awarded to the mother, and Mr. Fonken was ordered to pay child support in the amount of $135.00 per month. In May, 1988, Mr. and Mrs. Fonken jointly petitioned the Pulaski County Chancery Court for a change of custody, and requested that Mr. Fonken’s child-support obligation be abated. This petition was granted. Custody of Jake was later returned to his mother by a consent order dated February 2, 1989, but there was no mention of child support in the order. Later in 1989, when he was eleven, Jake went to visit his maternal grandparents for the summer. At this time, his mother was receiving voluntary child-support payments from Mr. Fonken. Alleging abuse while in his mother’s' custody, Jake and his grandparents notified his mother that he would not be returning to her home. Once his mother realized that Jake would not be returning, around October, 1989, she told Mr. Fonken to stop sending her child-support payments.

At trial of this matter, Jake testified that he visited with his father when he and his grandparents would visit the state, and that they spoke on the phone numerous times when Jake would call Mr. Fonken collect. According to Jake, his father had given him $155.00 in birthday gifts over the years, but that was the extent of the support paid since Jake went to live with his grandparents.

Jake turned eighteen on December 20, 1995; shortly thereafter, he filed suit in White County Chancery Court seeking retroactive child support from February 2, 1989, until December 20, 1995 from his father alone, pursuant to Ark. Code Ann. § 9-14-105(c). The trial court found that Mr. Fonken had a legal obligation to furnish support for his son from the time Jake lived with his grandparents, beginning in October, 1989, through the reminder of his minority. Using the child-support chart as well as Mr. Fonken’s income from the years in question, the trial court awarded support to Jake in the amount of $19,690.63, with interest.

Mr. Fonken’s first point on appeal is that the trial court erred in retroactively modifying the May 12, 1988, order of the Pulaski County Chancery Court, which changed custody and abated his obligation for child support. As a general rule, custody and support of children, during and after a suit for divorce between the parties, belongs appropriately to the court hearing the divorce case. McCormac v. McCormac, 304 Ark. 89, 91, 799 S.W.2d 806, 807 (1990); Holt v. Holt, 42 Ark. 495, 498 (1883). Here, the Pulaski County Chancery Court abated its previous order for child support in 1988, and it did not order child support reinstated when it returned custody to the mother in February, 1989. Although the Pulaski County Chancery Court continued to have jurisdiction of support matters arising out of the divorce action between Mr. and Mrs. Fonken, it did not exercise that jurisdiction to establish child-support obligations following its abatement of such obligations. While Mr. Fonken objected to the exercise of jurisdiction by the White County Chancery Court, he did not obtain or insist upon a ruling on this issue. The issue of appropriate venue in this action was waived by Mr. Fonken, through his appearance and acceptance of the White County Chancery Court’s authority. Tortorich v. Tortorich, 333 Ark. 15, 21, 968 S.W.2d 53, 55 (1998); Hargis v. Hargis, 292 Ark. 487, 490, 731 S.W.2d 198, 200 (1987).

Although chancery cases are reviewed de novo on appeal, we will not disturb a chancery court’s findings of fact unless they are clearly erroneous or clearly against the preponderance of the evidence. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Nichols v. Wray, 325 Ark. 326, 333, 925 S.W.2d 785, 789 (1996).

Ark. Code Ann. § 9-14-105(c) (Repl. 1998) provides that:

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

The trial court found that this language provided Jake with a cause of action to enforce the obligations of child support that inure to his benefit. We hold that a parent has a legal duty to support his minor children, regardless of the existence of a support order. Storey v. Ward, 258 Ark. 24, 26, 523 S.W.2d 387, 389 (1975); see also Ryan v. Baxter, 253 Ark. 821, 824, 489 S.W.2d 241, 243 (1973); Nason v. Nason, 55 Ark. App. 164, 165, 934 S.W.2d 228, 230 (1996); Dangelo v. Neil, 10 Ark. App. 119, 122, 661 S.W.2d 448, 450 (1983). Neither the dissolution of the marriage tie, nor awarding custody of the children, either permanently or temporarily to the mother, reheves the father of his obligation to support them. Holt, 42 Ark. at 499. We further hold that the trial court properly applied Ark. Code Ann. § 9-14-105(c).

Neither the abstract nor the record reflects that the trial court imposed a retroactive increase to the child support ordered and paid during the period from the divorce until the 1988 order abating Mr. Fonken’s child-support obligation. Further, Mr. Fonken cannot rely upon that abatement to relieve him of his legal responsibility to pay child support for the period from the date his custody of Jake ended until the child attained his majority. Whether the order of abeyance canceled the obligation or merely suspended its enforcement is irrelevant. There was no valid order of any court requiring the father to support his minor child during this period of time, but he continued to have both a legal and moral duty to do so. McCall v. McCall, 205 Ark. 1123, 1126, 172 S.W.2d 677, 678 (1943). Mrs. Fonken’s actions in telling Mr. Fonken to stop paying child support, and his reliance thereupon, are insufficient to relieve him of his legal obligation to his minor child. Even when the support obligation may be affected by contract, the duty cannot be bartered away permanently to the detriment of the child. Storey, 258 Ark. at 26, 523 S.W.2d at 389; Robbins v. Robbins, 231 Ark. 184, 187, 328 S.W.2d 498, 500 (1959).

For his second point on appeal, Mr. Fonken contends that Jake was not entitled to the imposition of retroactive child support under Ark. Code Ann. § 9-14-105(c). The trial court found that this code section provides for a cause of action on behalf of a minor child to recover unpaid child support accruing during that child’s minority. As we have noted, the trial court does not appear to have modified the child-support amounts previously ordered and paid, but established a level of child support applicable for that period of time during which Mr. Fonken was not under court order to pay child support. We cannot say that the trial court’s finding that Jake was entitled to accrued child support, from October, 1989, until his majority, was clearly erroneous, and therefore we affirm on this point. We have previously held that where a divorce decree does not address the issue of child support, there is no bar to an action by the children for support. Upchurch v. Upchurch, 196 Ark. 324, 327 (1938).

Lastly, Mr. Fonken argues that should this court hold that Jake is entitled to unpaid child support that accrued during his minority, this court should set the amount of support at the original order of $135.00 per month. However, we have noted that no order establishing the appropriate level of child support was entered after the Pulaski County Chancery Court’s 1988 order granting Mr. Fonken custody and abating the original order of support. The record reflects that the trial court based its order of $19,690.63 upon the fathers’ income, the child-support chart, and any offsets for payments previously made by him. We cannot say that the trial court’s decision was clearly erroneous, and we affirm the trial court’s award.


author: Per Curiam.

text:
    Jeremy TURNER v. STATE of Arkansas
    CR 98-992
    976 S.W.2d 955
    Supreme Court of Arkansas
    Opinion delivered October 28, 1998

      David P. Price, for appellant.
    No response.
   Per Curiam.

Appellant Jeremy Turner filed a motion for rule on the clerk on August 13, 1998. We denied the motion because appellant’s attorney, David P. Price, did not admit fault in fading to timely file the record. See Turner v. State, 334 Ark. 240, 973 S.W.2d 480 (1998) (per curiam). We indicated, however, that we would grant the motion if appedant’s attorney filed within thirty days a motion and affidavit accepting fidl responsibility for not timely filing the record. Appedant’s attorney has assumed fidl responsibility for the error in a second motion for rule on the clerk filed on October 9, 1998.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Johnson v. State, 332 Ark. 78, 959 S.W.2d 54 (1998) (per curiam); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this per curiam will be forwarded to the Committee on Professional Conduct. See Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).


text:
    Don JENKINS and Republican State Committee v. The Hon. David BOGARD, Circuit Judge, Pulaski County Circuit Court; Democratic Party of Arkansas; Kenneth Chitwood; Terry Wells; Sharon Priest, Secretary of State; State Board of Election Commissioners; Crawford County Board of Election Commissioners; Franklin County Board of Election Commissioners
    98-1303
    980 S.W.2d 548
    Supreme Court of Arkansas
    Opinion delivered October 30, 1998

      John Wesley Hall Jr., for appellants.
    No response.
   Per Curiam.

On March 24, 1998, Don Jenkins filed as a Republican candidate for the office of State Representative for District 10, and after the primary election, the State Republican Committee certified Jenkins as its nominee for the District 10 position. On September 14, 1998, the Secretary of State, pursuant to Ark. Code Ann. § 7-5-203 (Supp. 1997), certified Don Jenkins as the Republican nominee for the State Representative, District 10, position to the Crawford County and Franklin County Boards of Election Commissioners.

On September 30, the Democratic Party of Arkansas filed a complaint and petition for writ of mandamus and declaratory judgment in Pulaski County Circuit Court. The Democratic Party named as defendants Don Jenkins, the Secretary of State, the Republican State Committee, the State Board of Election Commissioners, and the Franklin County and Crawford County Boards of Election Commissioners. In its complaint, the Democratic Party requested the court to hold Jenkins is not qualified to run for the State Representative position, District 10, because he was not a resident of the district for more than one year as required by Ark. Const. art. 5, § 4. The Democratic Party further requested that the named defendant election officials should be required to remove Jenkins’s name from the ballot or alternatively not count or certify the votes cast in his favor.

The partial record before us reflects the docket sheet of the circuit court, and while the court set a hearing on October 5, 1998, to hear the Democratic Party’s mandamus request, no hearing was held. Apparently, Jenkins had not yet been served, and perhaps the hearing was delayed for that reason. The partial record next shows that, on October 23, 1998, the circuit court set a hearing for October 28, 1998. At that October 28 hearing, the circuit court permitted Kenneth Chitwood, a resident of Van Burén in District 10, to be substituted for the Democratic Party, ruling Jenkins and the other defendants would not be prejudiced by the substitution. The change in the plaintiff was evidently made because the Democratic Party is an unincorporated association that does not have standing to sue. The circuit court then granted Chitwood’s request for declaratory judgment and mandamus, holding Jenkins is not qualified to run for the State Representative, District 10, position, and his votes may not be counted or certified in Crawford and Franklin Counties. The court further ordered the Crawford and Franklin County Boards of Election Commissioners to maintain all records of votes cast for Jenkins for thirty days after the November 3, 1998 General Election. The circuit court’s order was signed and entered on October 29, 1998.

On October 29, 1998, Jenkins and the Republican State Committee appealed the circuit court’s order and asks for a stay of that order. They also request that they be granted an expedited and emergency appeal. We grant the appellants’ requests for a stay and an accelerated appeal for the reasons set out below.

In our recent case of Standridge v. Priest, 334 Ark. 568, 976 S.W.2d 388 (1998), we cited State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989), where our court set out the proper legal proceeding to file suit to determine the eligibility of a candidate and to decide whether his or her name should be placed on or removed from a ballot. There, the court sanctioned the use of mandamus when seeking the appropriate election officials to remove a candidate’s name from the ballot or requiring them to place a candidate’s name on the ballot. Id. In upholding the use of mandamus in these circumstances, the court concluded that because petitions for writs of mandamus must be heard within seven days, such a remedy provides for prompt consideration of issues, which is often important in election cases. 300 Ark. at 412, 779 S.W.2d at 172; see also Ark. R. Civ. P. 78(d), Court Notes, 1995 Amendment. Rule 78(d) provides as follows:

(d) Upon the filing of petitions for writs of mandamus or prohibition in election matters, it shall be the mandatory duty of the judge or chancellor having jurisdiction to fix and announce a day of court to be held no sooner than two (2) and no longer than seven (7) days thereafter to hear and determine the cause.

In the present case, the Democratic Party filed its complaint (now prosecuted by Chitwood) on September 30, 1998, but the record reflects no hearing was held within the two-to-seven-day period required under Rule 78(d). As previously noted, the circuit court initially scheduled October 5 as a hearing date, but, for whatever reasons, that hearing never took place. In reviewing the partial record, the various affidavits reflecting service on the defendants are listed, but nothing in the record reflects a notice was actually served on the defendants informing them that they were to appear on October 5, 1998, or a date not later than seven days from when the complaint and petition was filed. In fact, the record shows the hearing on the appellee’s complaint was ultimately held on October 28, almost a full month after the complaint was filed and only six days prior to the November 3, 1998 general election.

Because the record fails to show appellee expeditiously obtained the mandated hearing required under Rule 78(d), we stay the circuit court’s order. At the same time, we grant an accelerated appeal. In doing so, we direct appellants to file the remaining portion of the record no later than Friday, November 13, 1998, and their initial brief on Friday, November 20, 1998. The appellee will file his responsive brief no later than Friday, November 27, 1998. Appellant’s reply brief will be due no later than Tuesday, December 1, 1998, so the case can be submitted on Thursday, December 3, 1998.