author: WH. “Dub” Arnold, Chief Justice. Howard W. Brill, Special Justice, Kenneth R. Reeves, Special Justice, Richard Lusby, Special Justice,

text:
    Floyd VILLINES, III, Pulaski County Judge; B.A. McIntosh, Pulaski County Assessor; and Pulaski County Board of Equalization v. Nora HARRIS
    99-297
    11 S.W.3d 516
    Supreme Court of Arkansas
    Opinion delivered February 10, 2000

      Pulaski County Attorney’s Office, by: Karla M. Burnett, Amanda Mankin, and Keith Chrestman, for appellants.

      Dover & Dixon, P.A., by: Thomas S. Stone and Michael R. Johns, for appellee.
   WH. “Dub” Arnold, Chief Justice.

This case presents an appeal from an interlocutory order of the Pulaski County Circuit Court granting appellee, Nora Harris, injunctive relief from appellants’ assessment and collection of any real property tax as a result of or based upon the 1996 reappraisal of the real property located within Pulaski County, Arkansas. Significantly, the Court of Appeals certified the case to this court as an issue of substantial public interest, solely to determine whether the circuit court erred by enjoining appellants’ continued tax assessment and collection. Accordingly, our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule l-2(d) (1999), and Ark. R. App. P. — Civ. 2(a)(6) (1999).

Notably, the parties urge us to consider related, substantive issues, including (1) whether the circuit court erred in finding that it has subject-matter jurisdiction over this action, and (2) whether Harris stated an illegal-exaction claim. However, we decline to reach issues not properly before us on appeal. Moreover, we reiterate that our appellate jurisdiction in this matter is confined to a review of the circuit court’s interlocutory order granting an injunction. See Ark. R. App. P. — Civ. 2(a)(6) (1999). In fact, the trial court stated that certain issues remain unresolved in this proceeding, including damages and class certification. Given that the issue before this court is whether the circuit court possessed the jurisdiction to grant an injunction, we hold that the circuit court erred and we reverse.

Background

Pursuant to its obligation to equalize real-property values in the county, the Pulaski County Board of Equalization held a special meeting in 1994 and approved a contract with an outside appraisal firm. The contract was executed by the county judge, the appraisals were performed, and reappraised values were placed on the tax rolls in 1996. Nora Harris, a property owner and taxpayer, appealed her reassessment to the Board of Equalization.

Subsequently, on August 14, 1996, Harris filed a complaint in the Pulaski County Court alleging that Pulaski County Judge Floyd Villines, III, and other county officials violated Arkansas statutory requirements and Pulaski County property owners’ federal due-process rights via the county-wide, real-property assessment. As a result, she sought a declaratory judgment and an injunction to prevent appellees from collecting any new taxes based upon the reappraised values. After hearing arguments, Special County Judge Russ Hunt concluded that the county court lacked the power to grant an injunction pursuant to Ark. Code Ann. section 14-14-1002(a), which permits the issuance of an injunction only in the absence of a chancellor from the county. However, he granted summary judgment in favor of Harris and found that appellants violated her due-process rights under the Fourteenth Amendment because they failed to follow the proper Arkansas statute. Importantly, appellants failed to appeal the county court’s March 21, 1997, order. Further, appellants continued to collect taxes based upon the reappraisal.

On April 1, 1997, Harris filed a new action in the Pulaski County Chancery Court and sought an injunction prohibiting the county from issuing tax statements and collecting taxes based on the reappraisals. Pursuant to Ark. Const, art. 7, § 15, and Ark. Code Ann. section 16-113-306, chancery courts have jurisdiction to grant injunctions against illegal or unauthorized taxes or assessments. Priest v. Polk, 322 Ark 673, 912 S.W.2d 902 (1995); Pockrus v. Bella Vista Village Property Owners Assn., 316 Ark. 468, 872 S.W.2d 416 (1994). Although the Pulaski County Chancery Court apparently had subject-matter jurisdiction over Harris’s claim, the parties transferred the action to circuit court.

At the Pulaski County Circuit Court, Harris again sought injunctive relief. She alleged that appellants’ continued tax collection constituted an illegal exaction and violated Pulaski County property owners’ constitutional rights. She also sought money damages. In response, appellants filed a motion to dismiss and argued that the circuit court lacked subject-matter jurisdiction over Harris’s claim. After reviewing the pleadings and counsels’ arguments, Special Circuit Judge John S. Patterson found that the circuit court had jurisdiction over Harris’s claim, which it deemed an illegal-exaction claim. Moreover, the circuit court concluded that it had the authority to issue an injunction in light of the county court’s final and unappealed order and appellants’ subsequent conduct. Reserving the issues of damages and class certification, the circuit court entered an interlocutory order on December 28, 1998, enjoining appellants’ assessment and collection of taxes based upon the 1996 reappraisal. From that order, comes the instant interlocutory appeal.

I. Interlocutory appeal

First, we consider the scope of the instant appeal. As a general rule, an appeal from an interlocutory decision brings up for review only the decision from which the appeal was taken, here, the granting of an injunction. See generally, 5 C.J.S. Appeal and Error § 738 (1993 & Supp. 1999). Conversely, an appellate court will not review another interlocutory decision from which no appeal was taken. Id. For example, where an appeal was certified to consider an interlocutory appeal from the dismissal of a counterclaim and third-party complaint, the court of appeals concluded that the defendant could not bring up for review unrelated issues pertaining to the primary suit that was still pending in the trial court. See Coleman’s Service Center, Inc. v. Southern Inns Management, Inc., 44 Ark. App. 45, 866 S.W.2d 427 (1993); see also Ark. R. Civ. P. 54(b). Specifically, the appellate court noted that when a trial court permits an interlocutory appeal on one issue, when other issues remain to be decided, the issues raised in the appeal must be reasonably related to the order appealed from. Significantly, the interlocutory appeal may not be used as a “vehicle to bring up for review matters which are still pending before the trial court.” Coleman’s, 44 Ark. App. at 49, 866 S.W.2d at 429.

The mere fact that a significant issue is involved, standing alone, is an insufficient basis for this court to accept jurisdiction of an interlocutory appeal. Scheland v. Chilldres, 313 Ark. 165, 167, 852 S.W.2d 791, 792 (1993). Here, Harris suggests that appellees’ conduct rises to the level of an “illegal exaction” in a manner never before considered by the court. She frankly requests that we extend existing law and find that a flaw in the assessment procedure can rise to an illegal exaction. Arguably, this is a significant issue. Nevertheless, we may not reach the merits of her argument. When an appeal reaches a court via an order granting a preliminary injunction, the appellate court will not delve into the merits of the case further than is necessary to determine whether the trial court exceeded its discretion in granting the injunction. Special Sch. Dist. v. Speer, 75 F.2d 420 (8th Cir. 1935). The sole question before the appellate court is whether the trial court “departed from the rules and principles of equity in making the order,” and not whether the appellate court would have made the order. Special Sch. Dist., 75 F.2d at 421-22.

Moreover, when the trial court’s subject-matter jurisdiction is essential to an action, the trial court’s ruling that it has proper jurisdiction does not render that order appealable, even if that ruling is erroneous. Signa Ins. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988). In such a case, this court retains the independent duty to raise the issue of our own jurisdiction because a final order is a jurisdictional requisite for this court to act. Id.; see also Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988). Despite the lack of final order, however, we may exercise our appellate jurisdiction over “an interlocutory order by which an injunction is granted,” pursuant to Ark. R. App. P. — Civ. 2(a)(6). The rule providing for appeals from injunctions is an exception to the general rule that appeals may be taken only from a “final judgment or decree.” See Ark. R. App. P. — Civ 2(a)(1).

Here, we have a distinct basis and specific authority to hear the appeal from an injunction, and the extent of our review is dependent on the decision appealed from. Although we may regret our lack of ability to give a trial court sufficient guidance on remand so that it might avoid error, we cannot precipitately prevent such error by preempting the trial court’s action. We have long held that our role, for better or worse, is to decline to issue advisory opinions. See Seeco, Inc. v. Hales, 330 Ark. 402, 414, 954 S.W.2d 234, 241 (1997). We are limited to a review of the record before us.

In light of our jurisdictional grounds, we decline to reach the following issues: (1) whether the circuit court erred in finding that it has subject-matter jurisdiction over this action, (2) whether Harris stated an illegal-exaction claim, (3) whether the circuit court erred in finding that appellant’s attempts to relitigate the merits of the County-court order are barred by res judicata, (4) any issues relating to summary judgment, (5) any issues relating to the, as yet, unawarded damages, and (6) any issues concerning the motion for class certification. However, we are aware that at the conclusion of the instant litigation, marked by the entry of a final order, these issues may be ripe for appeal. Accordingly, while these issues are beyond the scope of this interlocutory appeal, nothing in this opinion shall be construed as a bar to a subsequent appeal of any or all of these issues.

II. Injunctive relief

Next, we consider the circuit court’s finding that it had the authority to grant appellee injunctive relief. In support of affirming the decision, appellee cites the county court’s inability to grant her an injunction. Specifically, appellee posits that the presence of circuit-court authority derives from the absence of county-court authority. This argument amounts to a logical fallacy in reasoning. It also fails to account for the fact that the chancery court had the authority to grant her an injunction. Alternatively, appellee maintains that because jurisdiction over injunctions has not been given exclusively to courts of equity, a circuit court may have the power to issue an injunction in a case properly before it when ancillary to its jurisdiction or as necessary to grant complete relief. See Arkansas State Medical Bd. v. Leipzig, 299 Ark.71, 770 S.W.2d 661 (1989); Daley v. Digby, 272 Ark. 27, 613 S.W.2d 589 (1981); and Pinckney v. Mass Merchandisers, Inc., 16 Ark. App. 151, 698 S.W.2d 310 (1985).

On the other hand, appellants argue that the circuit court was wholly without authority to issue an injunction. We agree. In the early case of Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920), we held that the creation of our chancery courts left no vestige of equity jurisdiction in the circuit courts. Injunctions are historically equitable and fall within the exclusive jurisdiction of chancery court. Id. Accordingly, we reverse that portion of the circuit court’s order enjoining appellants from collecting any tax based on the 1996 county-wide reappraisal.

Special Justice MARTHA MILLER HARRIMAN and Special Justice W. Kelvin Wyrick join.

Special Justice KENNETH R. REEVES and Special Justice HOWARD W. Brill concur.

Special Justice Richard A. Lusby and Special Justice James E. BAINE concur in part and dissent in part.

Howard W. Brill, Special Justice,

concurring. I concur in the opinion that the circuit court should not have issued an injunction. However, as set out below I do so for different reasons than the majority.

Certainly this court does not issue advisory opinions. Therefore since the trial court expressly refused to rule upon issues of damages and class certification, the majority wisely refused to address those issues. However, the Circuit Court in its order of December 28, 1998, did grant summary judgment for the taxpayer, recognizing the validity of the county court judgment and granting the taxpayer relief on the merits. In addition, the parties at the trial court level and in their briefs and arguments have raised and contested the issues of illegal-exaction claims and res judicata. When this case is remanded to the circuit court, and perhaps transferred back to chancery, these issues will return. Guidance from this court will help the subsequent judicial process.

I. Subject-matter jurisdiction

This case is properly in the circuit court and should remain there. With the consent of both parties, the action was transferred to Circuit Court in July 1997. While motions were pending, the taxpayer filed an amended petition on August 10, 1998. It alleged that taxes had been based on the appraisal and had therefore been unlawfully collected, and the taxpayer sought damages.

As the majority states, this action clearly could have remained in chancery court because that court would have had authority under the clean-up doctrine to award damages. However, circuit courts are the repository of all matters, unless the Constitution vests exclusive jurisdiction elsewhere. Ark. Const, art. 7, § 11. Likewise, Ark. Code Ann. section 16-13-201 provides that circuit courts have “orignal jurisdiction of all actions and proceedings for the enforcement of civil rights or redress of civil wrongs, except when exclusive jurisdiction is given to other courts.”

The crucial issue when the original action was commenced in 1996 in the county court was the assessment itself. The issue when this action was filed in April 1997 in chancery court was whether an injunction should be granted to stop the collection of taxes. But when this action was transferred to circuit court and the amended complaint filed in August 1998, the primary issue became damages. The taxes had been collected, and any injunction would be of scant, if any, relevance. Further, equity jurisdiction is predicated on the absence of an adequate remedy at law. In this procedural context damages have become an adequate remedy, leaving the case properly in circuit court. Despite the circular fashion in which this action came to circuit court, the circuit judge did have subject-matter jurisdiction when he ruled.

II. Injunctions in circuit court

The parties have contested the authority of a circuit court to issue injunctions. The majority opinion sets forth the five scattered precedents that deal with this issue. However, given the passage of time since the 1996 appraisal, the question of an injunction in this matter has declined in significance and the adequacy of the damages remedy has grown. Accordingly, it is unnecessary to hold, as the majority does, that circuit courts lack power to issue injunctions.

III. Res judicata

The elements of res judicata are well established. The doctrine bars relitigation of a claim in a subsequent suit when “(1) the first suit resulted in a final judgment on the merits; (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.” Bailey v. Harris Brake Fire Protection District, 287 Ark. 268, 697 S.W.2d 916 (1985).

While the county court is not a court of general jurisdiction, it is a court of record, Ark. Code Ann. § 14-14-1001, and had subject-matter jurisdiction. The essence of res judicata is that the parties had a full and fair opportunity to litigate the issue. The county had such a chance in the original action. In addition, res judicata requires that a dissatisfied party have the opportunity to appeal. Here the county had the right, and indeed under Ark. Code Ann. section 16-67-201 had six months to act, and failed to do so.

The parties were not identical in the two actions, for the chancery/circuit court action includes an additional defendant. However, the modern definition of privity is “a person so identified in interest with another that he represents the same legal right.” Bruns Foods of Morrilton, Inc. v. Hawkins, 328 Ark. 416, 418, 944 S.W.2d 509, 510 (1997). The privity requirement is satisfied.

The claim in the county court action challenged the appraisal; the claim in the chancery/circuit court action went further and challenged the collection of taxes and sought damages. Those issues were premature and could not have been asserted initially. However, “issues and remedies raised in the subsequent suit do not have to be identical to those raised in the initial suit in order for the claim preclusion part of res judicata to apply.” Swofford v. Stafford, 295 Ark. 433, 435, 748 S.W.2d 660, 662 (1988). The circuit court properly held that the issue of the application of Ark. Code Ann, section 26-26-601 and the county’s failure to follow the procedures had been fairly litigated and the finding was thereby conclusive. The county had its day in court and is not entitled to relitigate its failure to adhere to the Arkansas statutes.

IV Illegal-exaction claims

Article 16, section 13, of the Constitution permits any citizen to sue for himself and all others interested to protect “against the enforcement of any illegal exactions whatever.” When properly asserted, illegal-exaction claims may be brought in either circuit or chancery court, depending in large part on the remedy sought. Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998). The provision encompasses two types of claims: those involving public funds and those involving illegal taxes. Western Foods, Inc. v. Weiss, 338 Ark. 140, 992 S.W.2d 100 (1999); Pledger v. Featherlite Precast Corp., 308 Ark. 124, 823 S.W.2d 852 (1992).

Cases involving taxes are divided between those alleging that the tax itself is illegal or void, and those alleging that the assessment or collection of the tax is flawed or erroneous. Allegations that a tax is contrary to a constitutional or statutory provision fall within the scope of illegal exactions, and thus come within the subject-matter jurisdiction of the circuit and chancery courts. Barclay v. Melton, 339 Ark. 362, 5 S.W.3d 457 (1999); Barnhart v. City of Fayetteville, 321 Ark. 197, 900 S.W.2d 539 (1995). Likewise, allegations that a government has failed to roll back taxes as required by Amendment 59 support an illegal- exaction claim. See Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998); Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997). But the authorities are equally clear that a flaw in the assessment procedure, no matter how serious or grievous to the taxpayer, does not make the exaction itself illegal or void. Pockrus v. Bella Vista Village Property Owners Assn., 316 Ark. 468, 872 S.W.2d 416 (1994); Scott County v. Frost, 305 Ark. 358, 807 S.W.2d 469 (1991); McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990).

The unique posture of this case falls between the two classic situations. The original action alleged a flaw in the assessment and was properly brought in county court; it was not an illegal-exaction claim. Further, neither the county suit nor this suit specifically alleged that the tax itself was illegal or contrary to law. Accordingly, the county contends that a mistake or flaw in the assessment procedure can never rise to the level of an illegal exaction. The taxpayer on the other hand, while admitting that the special circumstances of this case present a form of illegal exaction never before addressed by this Court, contends that the mistake or error in the assessment grew into an illegal exaction because of two subsequent events: first, the determination by the county judge, and second, the county’s failure to abide by the judicial determination.

The taxpayer has made an express and frank request to extend existing law. Without deciding whether a flaw in the assessment procedure can ever rise to an illegal exaction, in the unusual setting of this case it did not. At a special session in 1994, the Board of Equalization decided, pursuant to its authority in Ark. Code Ann. section 26-27-311, to employ professional appraisers to conduct the appraisal, rather than have its in-house staff carry out its duties. However, the Board ignored, or overlooked, the provisions of Ark. Code Ann. section 26-26-601 et seq. These provisions require (1) a petition signed by the county assessor, a majority of the equalization board, and a majority of the local government governing bodies and school boards; (2) publication of the petition; (3) a public hearing, with the opportunity for property owners to be heard in support or in opposition to the petition; (4) approval by the county court; (5) negotiations by three property owners appointed by the court for the employment of professional appraisers; and (6) approval of the contract by the county judge, a majority of the members of the municipal governing bodies, and a majority of the affected school boards.

Certainly this court should not undermine the significance of this statute or the legislative intent in enacting these safeguards. However, these facts do not rise to this court’s prior definition of an illegal or void tax. Taxes collected pursuant to an appraisal conducted by an appraiser hired in violation of this statute do not become illegal or void.

V. Damages

The taxpayer has been wronged. She has been denied the rights given her by the Arkansas statutes. With notice and the chance to participate in a hearing, she might have persuaded the court that no county-wide reappraisal was required or that a different professional appraiser be hired.

The Constitution guarantees her redress. “Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character.” Ark. Const, art. 2, § 13. The circuit court has jurisdiction of proceedings “for the enforcement of civil rights or redress of civil wrongs.” Ark. Code Ann. § 16-13-201. Governments should not be permitted with impunity to ignore the orders of courts. Upon remand, the taxpayer should have the opportunity to prove her damages.

Kenneth R. Reeves, Special Justice,

concurring. I concur with the majority view that the Circuit Court erred in granting the injunction, but do so on the basis that there is an adequate remedy at law. The Appellee sued in Circuit Court for damages and, if she can prove her case, she can obtain relief with a money judgment. As to the injunction to prohibit the collection of taxes based on the flawed assessment, the horse is already out of the barn. The entry of an injunction at this point affords no relief to the taxpayer.

The issue of whether or not a Circuit Court has the authority to issue an injunction, though addressed by this Court on several occasions, remains unclear. As the majority opinion points out, there is certainly more recent authority that Circuit Courts can issue injunctions, however, the Monette decision still hangs out there — inexplicably unaddressed.

Considering the fact that there is an adequate remedy at law, this Court does not have to reach the significant question of whether or not a Circuit Court can ever issue an injunction, and should not.

Richard Lusby, Special Justice,

concurring in part; dissenting in part. I concur with the majority view that the circuit court lacked authority to issue injunctive relief in this case. It may well be that the court could have concluded that appellee now has an adequate remedy at law in her claim for monetary damages, denying appellee injunctive relief on that basis. Nevertheless, I do agree there is an absence of persuasive precedent granting circuit courts the power to issue injunctions. I disagree with the majority with respect to its refusal to address subject-matter jurisdiction and the related illegal-exaction issue.

I. Interlocutory Appeal

The majority noted that this is an interlocutory appeal permitted by Ark. R. App. P. — Civ. 2(a)(6) (1999) pertaining to injunctions. Citing Coleman’s Service Ctr., Inc. v. Southern Inns Management, Inc., 44 Ark. App. 45, 866 S.W.2d 427 (1993), the court concluded it could not take up any issue other than the circuit court’s authority to grant injunctive relief. However, the court of appeals refused to take up other issues in Coleman’s Service Ctr., Inc. because those issues were “totally unrelated” to the question that was the basis of the interlocutory appeal. Id. at 429. That is not true in the matter now before this court.

In the proceedings below, appellant contended that the circuit court lacked subject-matter jurisdiction. Before granting appellee the injunctive relief requested, the circuit court specifically determined that it did have such jurisdiction. On appeal, appellant not only argues that circuit courts lack power to grant injunctive relief, it again contends that this circuit court lacks subject-matter jurisdiction in the circumstances of this case.

The circuit court’s granting of relief in inextricably bound up in its decision that it had subject-matter jurisdiction. Both below and on appeal, the question of subject-matter jurisdiction is at the heart of the parties’ battle over the appropriateness of the circuit court’s grant of injunctive relief. Under the circumstances, it simply cannot be fairly said that the issue of subject-matter jurisdiction is “totally unrelated” to the injunction which provides the basis for this interlocutory appeal.

The majority concluded that the court cannot take up the issue of subject-matter jurisdiction. The court can take up this issue and if it can, it should. A refusal to do so makes a second appeal almost inevitable. Depending upon the outcome of a second appeal that does resolve the subject-matter jurisdiction issue, the parties’ effort, time, and expense in prosecuting a damage action may well be for naught. I agree this court should not violate its rules and principles simply for the sake of economy. However, where the court, by acting now within its guidelines, can foreclose the necessity of an additional appeal or other legal action, I believe it should.

II. Subject-Matter Jurisdiction and Illegal Exaction

Appellee contends, and appellant vigorously denies, that the case now before the court involved an illegal exaction. If this is an illegal-exaction case, it is beyond question that the circuit court does have subject-matter jurisdiction. Ark. Const art. 16, § 13; Barclay v. Melton, 339 Ark. 362, 5 S.W.3d 457 (1999); Barnhardt v. City of Fayetteville, 321 Ark. 197, 900 S.W.2d 539 (1995). However, appellee concedes that the actions of the county in collecting the tax in this case do not fit within the accepted definition of an illegal exaction. Consequently, appellee frankly asks the court to expand the definition of illegal exaction to apply to the circumstances of this case thereby establishing subject-matter jurisdiction in the circuit court.

As set forth in the background provided in the majority opinion, this case involves the collection of taxes based upon a flawed reappraisal. I agree this court has thus far excluded from the definition of illegal exaction, taxes based upon faulty appraisals and assessments. Pockrus v. Bella Vista Village Property Owners Assn., 316 Ark. 468, 872 S.W.2d 416 (1994); Scott County v. Frost, 305 Ark. 358, 807 S.W.2d 469 (1991); McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990). I would not broaden the definition of illegal exaction to include such matters. However, the facts in this case go beyond the simple situation of a tax based upon a flawed assessment. Here, the county was faced with the need for property reappraisal. The county chose between two statutory methods for conducting the reappraisal process. The statutory provisions appropriate for these particular circumstances involved public notice and the opportunity for property owners to participate in the process. Ark. Code Ann. § 26-26-601, et seq. The county chose a method that did not involve the public’s participation. Ark. Code Ann. § 26-27-311.

As egregious as this decision may have been, it cannot be the basis for an illegal-exaction case, pursuant to the precedents cited above. However, there is more involved here than a taxing authority’s determination to exclude taxpayers from the process. The appellant, having been denied relief by the Board of Equalization, filed suit in county court, seeking to prevent the county from collecting taxes based upon the flawed reappraisal process. The county court agreed that the reappraisal was flawed and gave declaratory relief but denied an injunction, based upon its determination that it lacked authority to provide such relief. Appellant immediately filed suit in chancery court, seeking the additional relief which the county court could not give. Despite notice by a court of competent jurisdiction that its reappraisal process violated the statute, and despite notice of ongoing litigation to enforce the county court’s order, the county went forward to collect taxes based upon a reappraisal that was contrary to statutory law. Stated another way, the county knowingly collected taxes based upon an appraisal that had been declared to be illegal. It is this action of the county that I believe renders the tax collected an illegal exaction.

While the facts described herein do not precisely fit under accepted notions of illegal exaction, I believe the definition should be broadened just enough to include such circumstances. The county’s wrongful exclusion of property owners from the process was bad enough. The county’s inexplicable action, ignoring the court’s order, cannot be allowed to stand. As a practical matter, reversing the trial court’s decision without addressing subject-matter jurisdiction may well do just that.

I share a reluctance to take any action likely to generate unwarranted litigation or undermine the ability of county government to collect legal taxes. However, I do not believe this narrow expansion of existing law would unduly open the door to a flood of illegal-exaction cases. Hopefully, the action of Pulaski County ignoring a court order will not be repeated in this county or any other.

Undoubtedly, there would have been much consternation in Pulaski County government had the majority determined the county’s collection of the tax to be an illegal exaction. I am confident that this consideration played no part in the majority’s refusal to take up this issue. Certainly, such matters should not be of concern to the court. Whatever consequences might flow from a determination that an illegal exaction occurred would be the result of Pulaski County’s blatant disregard of an explicit decision by the county court and applicable statutory law. I would remand this case back to the circuit court for proceedings on damages with a clear statement that the circuit court has subject-matter jurisdiction by virtue of the fact that an illegal exaction has occurred.

Special Justice JAMES E. Baine joins.

       In the absence of a complete evidentiary record, we remain bewildered by appellees’ conduct. Their initial failure to comply with the statutory procedures, coupled with their subsequent conduct, (failing to appeal, and then ignoring the final and binding county-court order), creates a disturbing picture. Nevertheless, we are wholly without jurisdiction to instruct the circuit court how it should proceed on the pending damages issue.

       The structure of appellee’s argument takes the form of a “conditional syllogism”:

        A cannot grant an injunction

        B is not A;

      therefore, B can grant an injunction.
      Although some forms of conditional syllogisms may yield a valid argument (e.g., the modus ponens, and the modus tollens), the instant form reaches an invalid conclusion by denying the antecedent. Notably, the fallacy of “denying the antecedent” fails to account for other possibilities, here, that C can grant an injunction. For a thorough discussion of this and other logical fallacies in the context of reasoning in the law, see Andrew Jay McClurg, Logical Fallacies and the Supreme Court: A Critical Examination of Justice Rehnquist’s Decisions in Criminal Procedure Cases, 59 U. Colo. L. Rev. 741, 774-75 (1988).

       Unfortunately, and inexplicably, the parties agreed to transfer the action from chancery to circuit court. From the limited record before us, it appears that the action could and should have remained in chancery court where that court could have granted an injunction and awarded damages pursuant to the clean-up doctrine.

       Since Monette, only three Arkansas cases have sanctioned a circuit court granting injunctive relief. See Arkansas state Medical Bd. v. Leipzig, 299 Ark. 71, 770 S.W.2d 661 (1989); Daley v. Digby, 272 Ark. 267, 613 S.W.2d 589 (1981); and Pinckney v. Mass Merchandisers, Inc., 16 Ark. App. 151, 698 S.W.2d 310 (1985). Notably, the majority opinions is Leipzig, Daley, and Pinckney fail to cite Monette or to explain why the longstanding constitutional rationale of Monette was inapplicable. Moreover, in his concurring opinion in Cummings v. Fingers, 296 Ark. 276, 281-82, 753 S.W.2d 865, 868 (1988), Justice Newbern observed that in Daley, the authority of a circuit court to grant an injunction was not even an issue on appeal. See Cummings, 296 Ark. at 281-82, 753 S/W2d at 868 (Newbern, J., concurring). Therefore, the court’s acquiescence to the circuit court’s action resulted not from a deliberation on the merits but from the scope of the appeal.


source: Caselaw Access Project

author: Tom GLAZE, Justice. LAVENSKI R. SMITH, Justice,

license: Public Domain

text:
    Charles E. SMITH v. PRUDENTIAL PROPERTY and CASUALTY INSURANCE COMPANY
    99-378
    10 S.W.3d 846
    Supreme Court of Arkansas
    Opinion delivered February 10, 2000
    [Petition for rehearing denied March 9, 2000.]

      Lyons, Emerson, & Cone, PL. G, by: Scott Emerson, for appellant.

      Wright, Lindsey & Jennings, LLP, by: Patrick J. Goss, for appellee.
   Tom GLAZE, Justice.

The court of appeals certified this case to us on the grounds that there is a perceived conflict in Arkansas insurance case law. The issue certified is whether, when an ambiguity exists in the terms of an insurance policy, that ambiguity is a question of law to be decided by the court or a question of fact for the fact-finder. Our court took jurisdiction under Ark. Sup. Ct. R. 1-2(b)(2) and (5) (1999).

The parties have stipulated to the relevant facts, agreeing that the primary issues depend upon the construction of clauses in insurance policies appellant Charles E. Smith obtained from appellee Prudential Property and Casualty Insurance Co. The parties agree that, when Smith was riding his motorcycle on December 19, 1997, Sylvia Midgett negligently pulled her car in front of Smith, colliding with Smith and causing him to sustain severe injuries and damages in excess of $300,000.00. Midgett had insurance coverage with limits of only $100,000.00, so Smith filed a claim under his underinsured motorist (UIM) coverage. While his motorcycle was uninsured, Smith had $100,000.00 UIM coverage each on his 1978 El Camino and 1988 Silverado. Smith claimed not only that his injuries were covered by his UIM policies, but also that he was entitled to stack his two policies in order to recover the total amount of $200,000.00 — an amount not covered by Midgett’s insurance.

Prudential denied Smith’s claims, stating that Smith had no insurance on his motorcycle and that he was not an insured under the UIM coverage clauses as defined in his policies. Prudential further countered that, even if he was an insured under his UIM coverage, Smith could not stack his two policies in order to collect the $200,000.00 in UIM coverage. At trial, Smith was the only witness, and his testimony was brief. In fact, Prudential never cross examined Smith, but instead moved for a directed verdict at the end of Smith’s testimony, reiterating its argument that Smith was not an insured and was not covered under his UIM policy provisions.

The trial court denied Prudential’s directed verdict motion, ruling that the terms defining an insured in Smith’s policies were at best ambiguous, and, therefore, presented a question of fact for the jury. The trial court further held that the language in Smith’s policies bearing on whether UIM coverage could be stacked was also ambiguous, and should be submitted as a fact question to the jury.

Smith also moved for a directed verdict, and in doing so, he agreed with the trial court that ambiguities existed in the policies. However, he disagreed with the trial court’s submitting the case to the jury, since it was his contention that, as a matter of law, that the trial court was obliged to interpret and adopt the UIM coverages in Smith’s favor. The trial court denied Smith’s motion, and submitted all issues to the jury.

The jury returned answers to interrogatories, finding Smith was not an insured under the UIM coverage provisions of his automobile policies, that Smith was not entided to stack his UIM policies, and he was not insured under the “additional car accident coverage” provisions of the policies. Accordingly, the trial court entered a judgment dismissing Smith’s complaint with prejudice, from which Smith brings this appeal.

First, we point out that both Smith and Prudential initially contended below that the UIM coverage clauses contained in Smith’s policies are unambiguous. Smith, on the one hand, asserted he was clearly an insured for UIM coverage purposes in these circumstances, and Prudential, on the other hand, contended Smith was not covered as an insured under the policies’ terms. The trial court rejected the parties’ respective contentions, and we believe it did so correctly; the trial court, after studying the policy UIM coverage terms, found the language ambiguous. While we believe the trial court was right in finding that an ambiguity exists, we ultimately disagree with the trial court’s ruling that the ambiguity was a question of fact, which must be submitted to the jury.

In reaching its conclusion that it was ambiguous as to whether Smith was covered for UIM purposes, the trial court examined Smith’s policies. On page 5 of Part 5, captioned “Underinsured Motorists. . . If You Are Hit By A Motor Vehicle That Is Underinsured,” the following relevant language appears:

OUR OBLIGATIONS TO YOU (PART 5)
UNDERINSURED MOTORISTS BODILY INJURY COVERAGE
UNDERINSURED MOTORISTS PROPERTY DAMAGE COVERAGE
If you have these coverages (see the Declarations), we will pay up to our limit of liability for bodily injury or property damage that is covered under this part when an insured (whether or not occupying a car) or an insured’s car is struck by an underinsured motor vehicle. [Italics supplied.] Our payment is based on the amount than an insured is legally entitled to recover for bodily injury or property damage because:
* THE OWNER OR DRIVER IS UNDERINSURED
The owner or driver responsible for the accident has liability insurance or a liability bond in an amount that is less than the limits shown for this coverage on the Declaration.

The trial court determined that, under the above clause, Smith was an insured and entitled to his UIM coverage limits whether or not he was occupying a car when he was struck by an underinsured motorist. In other words, Smith was covered under the terms of the above UIM provisions when he was riding a motorcycle, not a car, when Midgett’s car hit Smith. Furthermore, the trial court read the definition section of Smith’s policies where it defined the term YOU to mean the person shown as the named insured on the Declara tions of this policy. Unquestionably, Smith was the named insured in the Declaration issued with his automobile policies.

However, Prudential contended below that, under other UIM policy language, Smith was not an “insured.” In this connection, the trial court studied the UIM language on page 6 of Part 5 of Smith’s policies relied on by Prudential. That language reads as follows:

WHO IS INSURED (PART 5)
IN YOUR CAR (INCLUDES A SUBSTITUTE CAR)
You and a resident relative are insured while using your car or a substitute car covered under this part.
Other people are insured while using your car as a substitute car covered under this part if you give them permission to use it. They must use the car in the way you intended.
IN A NON-OWNED CAR
You and a resident relative are insured while using a non-owned car. The owner must give permission to use it. It must be used in the way intended by the owner.
HIT BY A MOTOR VEHICLE
You and a resident relative are insured if hit by an underinsured motor vehicle while a pedestrian.

Using the immediate foregoing policy language, Prudential contended below (and on appeal) that Smith was only an insured for UIM purposes if he was struck by an underinsured motorist when Smith was in one of his covered cars, a substitute car, another car with the owner’s permission, or when he was a pedestrian.

In reading the different UIM provisions relied on by Smith and Prudential, it is evident the policy language is confusing. As the trial court said when it denied Prudential’s motion for directed verdict, the UIM policy terms appear to provide Smith coverage on page 5 of Part 5, but then takes away the coverage on page 6.

After the trial court found that Smith’s policies contained ambiguities pertaining to UIM coverage, it proceeded to instruct the jury on the issues. In Instructions Number Ten, Eleven, and Twelve, the trial court directed the jury as follows:

INSTRUCTION No. ten: You are instructed that if any ambiguity exists in a policy of insurance, the terms of that insurance policy are to be strictly construed against the insurance company that drafted the policy. In other words, you are to resolve all doubts as to the meaning of the language used in an insurance policy in favor of the policy holder or insured.
INSTRUCTION No. Eleven: An ambiguity exists in an insurance policy if there is any doubt or uncertainty as to the meaning of words or provisions in a policy, if there are conflicting provisions in an insurance policy, or if the policy is fairly susceptible to two interpretations.
INSTRUCTION No. Twelve: Policies of insurance are to be liberally construed in favor of providing coverage to an insured.

As the reader can see from the foregoing instructions, the trial court instructed the jury how to determine if an ambiguity exists, even though the trial court had already decided, as a matter of law, that the insurance policies contained an ambiguity. Thus, we conclude the trial court erred, and hold the court should have granted Smith’s directed verdict motion on the UIM coverage issue.

Arkansas’s controlling case law on this subject is found in Southhall v. Farm Bureau Mutual Ins. Co., 276 Ark. 58, 60, 632 S.W.2d 420, 421 (1982), where Justice George Rose Smith wrote for the majority court as follows:

An insurance policy is to be construed strictly against the insurer, who chooses its language. The construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence. (Emphasis added.)

This court has also held that it is a principle of insurance law established in our state that provisions contained in a policy of insurance must be construed most strongly against the insurance company which prepared it, and if a reasonable construction may be given to the contract which would justify recovery, it would be the duty of the court to do so. Drummond Citizens Ins. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979). It is also a cardinal rule of insurance law that a policy of insurance is to be construed liberally in favor of the insured and strictly against the insurer or, as more fully stated, if the language employed is ambiguous, or there is doubt or uncertainty as to its meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. Id.; see also Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307 (1993).

In the instant case, the parties considered the UIM coverage as an issue dependent merely upon the construction to be given the language contained in the insurance policies. Certainly, Prudential offered no extrinsic evidence bearing on the meaning of the policy language. Although the meaning of an ambiguity may become a question for the fact-finder if parol evidence has been admitted to resolve that ambiguity, see Minerva Enter., Inc. v. Bituminous Cas. Corp., 312 Ark. 128, 851 S.W.2d 403 (1993), where the meaning of the language of a written contract does not depend on disputed extrinsic evidence, the construction and legal effect of the contract are questions of law. See Duvall v. Massachusetts Indem. & Life Ins. Co., 295 Ark. 412, 748 S.W.2d 650 (1988); Security Ins. Co. v. Owen, 252 Ark. 720, 480 S.W.2d 558 (1972). Accordingly, we hold that, as to the UIM coverage issue, the trial court erred in submitting that issue to the jury rather than directing a verdict in Smith’s behalf.

We mention at this point that the court of appeals, in recommending certification of this case, suggested that Farm Bureau Mutual Insurance Co. v. Whitten, 51 Ark. App. 124, 911 S.W.2d 270 (1995), is in conflict with other Arkansas cases. We agree. Upon examining that case, we have determined that it was wrongly decided. To the extent that Whitten holds that when the terms of a written contract are ambiguous, its meaning is always a question of fact, that case is overruled.

On the question of whether Smith is entitled to stack his two policies to obtain the $100,000.00 UIM coverage provided in both of them, we reach a different result. We do so because our review of Smith’s policies reflects no ambiguity as to the stacking issue. In fact, the policies contain anti-stacking provisions which prevent such double coverage. On this point, Smith largely relies on page 8 of Part 5 of the policy which relates that the limit of liability is stated on the declarations page and his declaration page shows that he has coverage on two cars. Thus, he claims he should be able to stack his coverage.

Prudential, however, refers to the general provisions in the policies captioned “Limit of Coverage” which, in pertinent part, provide that “Coverages on other cars insured by us cannot be added to or stacked on the coverage of the particular car involved.” Such anti-stacking language clearly prevents Smith from obtaining UIM coverage from both of his policies. Because the trial court erred in finding an ambiguity on this stacking issue, we agree that Prudential was entitled to a directed verdict.

For the above reasons, we reverse and remand with directions for the trial court to enter a judgment in Smith’s favor, but limiting the coverage amount to $100,000.00. In light of our holding in the direct appeal, we also dismiss Prudential’s cross-appeal.

SMITH, J., dissents.

LAVENSKI R. SMITH, Justice,

dissenting. I join the majority in holding that the subject policy contains no ambiquity as to coverage stacking. I also join in the overruling of Farm Bureau Mutual Insurance Co. v. Whitten, supra. Plowever, I disagree with the court’s holding that the subject policy contains an ambiguity as to underinsured motorist coverage. In December of 1997, Charles Smith purchased insurance for his two Chevrolet trucks. The policy in question, when read as a whole, contains no ambiguity as to the identity of those covered by underinsured motorist coverage. The policy states that the company will pay “when an insured (whether or not occupying a car)” is struck by an underinsured motor vehicle. The trial court and the majority find ambiguity in the parenthetical language. No ambiguity exists if the policy provisions contained in Part 5 are reasonably read together. Part 5, as each other Part in the policy, contains sections which address the company’s obligations, the insured’s obligations, cars that are covered, who is insured, losses the company will pay for and how the compay will settle the claims. The “WHO IS INSURED” section of part 5 describes three circumstances where the underinsured coverage applies. The first is when the policy holder or a relative are in the policy holder’s car that is insured by policy. The second covered circumstance is where the policy holder or relative are in a non-owned car by permission of the owner. The third and final circumstance is where the policy holder or relative are hit by an underinsured motorist while a pedestrian. Neither of these include a circumstance where the policy holder is riding in or on an uninsured motor vehicle owned by the policy holder. Mr. Smith simply did not buy that kind of coverage. Construing the provisions in the context of Part 5, I conclude “whether or not occupying a car” is susceptible of only one reasonable interpretation and that is either riding in a car or walking as a pedestrian. It should not be necessary that a policy eliminate every conceivable alternate construction in order to avoid an ambiguity finding.

I respectfully dissent.

       Prudential had filed a cross-appeal, suggesting that, despite the fact that the jury returned a verdict in its favor, the trial court erred in failing to find the policies to be unambiguous and granting Prudential’s motion for directed verdict.


author: Donald L. Corbin, Justice.

text:
    Patrick OLIVE v. STATE of Arkansas
    CR 99-926
    10 S.W.3d 443
    Supreme Court of Arkansas
    Opinion delivered February 10, 2000

      William R. Simpson, Jr., Public Defender, by: Tammy L. Harris, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Kelly S. Terry, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Patrick Olive appeals the judgment of the Pulaski County Circuit Court convicting him of first-degree murder and terroristic act and sentencing him to twenty years’ and ten years’ imprisonment, respectively. The evidence showed that on November 16, 1997, Mrs. Bernice Nichols was in her bed when numerous gunfire shots struck her residence. She died as a result of gunshot wounds to her head and neck. Appellant’s sole point for reversal is that the trial court erred in denying suppression of his custodial statement under Article 2, sections 8 and 10, of the Arkansas Constitution. The issue is whether, under the Arkansas Constitution, a defendant’s invocation of the right to counsel after prosecution has commenced on one charge is also an invocation of the right to counsel during custodial interrogation for a separate, uncharged offense. Because this issue is one of first impression, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (b)(1). We find no error and affirm.

The record reflects that Appellant was initially arrested for an aggravated robbery that occurred on June 28, 1997. Defense counsel was appointed in that case on January 14, 1998. Approximately two months later, on March 13, 1998, while he was still in custody on the robbery charge, Appellant was approached by officers about the murder of Mrs. Nichols. Prior to asking any questions, the officers read Appellant his Miranda rights. Appellant signed a form indicating that he understood his rights and agreed to waive them. During the interview, Appellant confessed to participating in the murder. He was then arrested for that charge.

Appellant moved to suppress the confession on the ground that it had been obtained outside the presence of counsel. He contended that because he had invoked his right to counsel on the robbery charge, and because he had continuously remained in custody, the statement regarding the murder was taken in violation of his rights to counsel under Article 2, sections 8 and 10. The trial court disagreed and denied suppression of the statement.

We begin our analysis of this issue with an examination of the Supreme Court’s decision in McNeil v. Wisconsin, 501 U.S. 171 (1991). There, the Court held that the defendant’s invocation of his Sixth Amendment right to counsel during a judicial proceeding for a charged offense did not constitute an invocation of his Fifth Amendment right to counsel on unrelated and uncharged offenses. The Court concluded that the right to counsel guaranteed by the Fifth Amendment, as interpreted in Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981), was not “offense specific,” but that the right to counsel under the Sixth Amendment was. Id. at 177. The Court explained that once a suspect has invoked the Fifth Amendment right to counsel for interrogation regarding one offense, he may not be reapproached by the police regarding any offense unless counsel is present. On the other hand, the Court concluded:

The Sixth Amendment right, however, is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, “ ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” United States v. Gouveia, 467 U.S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion)).

Id. at 175. The Court concluded that it would not be sound policy to view the assertion of the Sixth Amendment right to counsel as an assertion of the Fifth Amendment right, as provided in Miranda. The Court explained that the two rights serve different purposes:

The purpose of the Sixth Amendment counsel guarantee — and hence the purpose of invoking it — is to “protec[t] the unaided layman at critical confrontations” with his “expert adversary,” the government, after “the adverse positions of government and defendant have solidified” with respect to a particular alleged crime. Gouveia, 467 U.S., at 189. The purpose of the Miranda-Edwards guarantee, on the other hand — and hence the purpose of invoking it — is to protect a quite different interest: the suspect’s “desire to deal with the police only through counsel,” Edwards, supra, at 484. This is in one respect narrower than the interest protected by the Sixth Amendment guarantee (because it relates only to custodial interrogation), and in another respect broader (because it relates to interrogation regarding any suspected crime and attaches whether or not the “adversarial relationship” produced by a pending prosecution has yet arisen). To invoke the Sixth Amendment interest is, as a matter offact, not to invoke the Miranda-Edwards interest.

Id. at 177-78.

Appellant acknowledges that the holding in McNeil is on point with the particular facts of this case. He urges, however, that the Court’s decision should be limited to those rights guaranteed by the United States Constitution in the Fifth and Sixth Amendments. In other words, Appellant asserts that the rights to counsel under the Arkansas Constitution should be interpreted more liberally than those in the federal constitution. We disagree.

In the first place, Appellant has failed to cite to any authority in support of his argument, and we are not aware of any such authority. To the contrary, this court has consistently viewed the right to counsel provided by Article 2, section 10, as guaranteeing the same right conferred by the Sixth Amendment. See e.g., Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998); Jones v. State, 314 Ark. 383, 862 S.W.2d 273 (1993), cert. denied, 512 U.S. 1237 (1994); Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (1991). Likewise, this court has observed that Article 2, section 8, is “our state constitutional equivalent” to the Fifth Amendment. Clark v. State, 256 Ark. 658, 659, 509 S.W.2d 812, 814 (1974). Additionally, this court has frequently relied on the Supreme Court’s decisions in determining the scope of the right to counsel during custodial interrogation. See e.g., Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999); Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226 (1996). Accordingly, we see no reason to deviate from that practice here.

In the second place, this court has twice embraced the Supreme Court’s holding in McNeil, 501 U.S. 171, as a correct statement of the law. In Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), the evidence showed that the severed torso of a woman, later identified as Brenk’s wife, was discovered in Lake Norfolk in August 1990. Around two weeks later, on September 10, Brenk was arrested for failure to pay a misdemeanor fine. Simultaneously, Brenk was served with a petition to revoke his probation. The probation officer advised Brenk that he would need an attorney for the revocation hearing. Brenk requested an attorney, and on September 12, the sheriff informed the attorney that Brenk wanted to speak with him. That same date, officers approached Brenk at the jail and asked him to answer some questions about his wife’s death. Brenk answered several questions, but then indicated that he wanted to talk to his attorney. On appeal, Brenk argued that the statement he made to police should have been suppressed because it was taken outside the presence of counsel and after counsel had been retained. This court rejected his argument on the ground that the invocation of the Sixth Amendment right to counsel does not constitute an invocation of the right to counsel under the Fifth Amendment. This court reasoned:

In the recent case McNeil v. Wisconsin, 501 U.S. 171, 111 S. Ct. 2204 (1991), the Supreme Court held an accused’s invocation of his Sixth Amendment right to counsel during a judicial proceeding does not constitute an invocation of the right to counsel derived by Miranda v. Arizona, 384 U.S. 436 (1966), from the Fifth Amendment’s guarantee against compelled self-incrimination. As in the McNeil case, appellant invoked his Sixth Amendment right to counsellor a judicial proceeding unrelated to the present charge, but did not make any indication that he only wished to deal with the police through counsel and, therefore, did not invoke his Fifth Amendment right to counsel. The Sixth Amendment right to counsel is case specific. Appellant’s request for counsel to represent him at the revocation hearing applied only to the revocation matter and not to any other potential charges. Since appellant did not invoke his Fifth Amendment right to counsel by indicating that he wished to deal with the police only through counsel, the Edwards rule which appellant cites does not apply.

311 Ark. at 587, 847 S.W.2d at 5-6 (citation omitted) (emphasis added).

In Landrum v. State, 326 Ark. 994, 936 S.W.2d 505 (1996), this court had yet another occasion to apply the holding in McNeil. The facts there revealed that Landrum was arrested for the rape and aggravated assault of Kristie Anderson on December 12, 1994. He was scheduled to be arraigned on those charges at 8:30 a.m., December 14. On December 13, Landrum was read his Miranda rights and questioned about the murder of Lucille Hassler. Landrum initially made no admissions about the murder; however, he agreed to take a polygraph examination later that evening. Landrum was again informed of his Miranda rights. Afterwards, Landrum was told that he had done poorly on the polygraph. He then asked to speak privately with a particular officer. Landrum agreed to tell the officer what he knew about the murder once he knew what to expect from the prosecuting attorney. The officer then gave Landrum the choice of whether he wanted to talk to the prosecuting attorney that night or wait until the next morning. Landrum elected to wait. The following morning, December 14, Landrum confessed to the murder of Ms. Hassler. Meanwhile, he missed his scheduled arraignment on the Anderson charges. Landrum argued on appeal that his confession should have been suppressed because it was taken in violation of his right to counsel. Specifically, he argued that had he been arraigned as scheduled on the morning of December 14, he would have had an attorney at the time of his confession. This court rejected Landrum’s argument, relying on the Court’s opinion in McNeil, 501 U.S. 171. This court held:

Applying McNeil to the present case, even if Landrum had been arraigned on the Anderson charges on the morning of December 14, 1994, as scheduled, and an attorney had been appointed for that case, he still could have been questioned regarding the murder of Ms. Hassler. Landrum was repeatedly given his Miranda warnings and repeatedly gave valid waivers. There was simply no police misconduct and no connection between appellant’s missing his scheduled arraignment in the Anderson matter and giving the confession in the present case. Therefore, the trial court properly refused to suppress the confession.

Landrum, 326 Ark. at 1003, 936 S.W.2d at 509 (emphasis added).

Applying the foregoing holdings to the facts of this case, we conclude that the trial court did not err in denying suppression of Appellant’s confession. It makes no difference whether we analyze this issue under our constitution or the federal constitution, because we arrive at the same conclusion. An accused’s right to counsel after a prosecution has commenced, guaranteed by both the Sixth Amendment and Article 2, section 10, is case specific and cannot be invoked once for all future prosecutions. Thus, Appellant’s invocation of his right to counsel in the robbery case did not constitute an invocation of the right to counsel during his subsequent custodial interrogation regarding the murder. Furthermore, Appellant was fully informed of his right to counsel as guaranteed by the Fifth Amendment and Article 2, section 8, and he waived those rights prior to confessing to the murder. Accordingly, we affirm the judgment of conviction.


author: Robert L. Brown, Justice. RAY THORNTON, Justice,

text:
    BNL EQUITY CORPORATION (Formerly Known as United Arkansas Corporation), BNL Financial Corporation (Formerly Known as United Iowa Corporation), Wayne E. Ahart, Kenneth Tobey, and Barry N. Shamas v. Myra Jo PEARSON, Paul Pearson, and James Stilwell
    99-78
    10 S.W.3d 838
    Supreme Court of Arkansas
    Opinion delivered February 10, 2000
    [Petition for rehearing denied March 16, 2000. ]

      Friday, Eldredge & Clark, by: Larry W. Burks, Harry A. Light, and Ellen M. Owens, for appellants.

      Pender, McCastlain & Ptak, PA., by: James R. Pender and Michael J. Ptak; and Williams & Anderson LLP, by: Peter G. Kumpe, John E. Tull III, and Stephen B. Niswanger, for appellees.

       THORNTON, J., would grant. SMITH, J., not participating.

   Robert L. Brown, Justice.

This is an appeal from an order by the trial court granting class certification to the proposed class under Ark. R. Civ. P. 23. The appellants in this appeal are BNL Financial Corporation, the parent company (BNL); BNL Equity Corporation, a wholly-owned subsidiary of the parent; Brokers National Life Assurance Company, a wholly-owned subsidiary of BNL Equity Corporation (BNLAC); Wayne Ahart, chairman of the board of BNL Financial and BNLAC, and also chairman of the board of the predecessor companies; Kenneth Tobey, president of BNL Financial and BNLAC, and president of the predecessor companies; Barry Shamas, executive vice president of BNL Financial and BNLAC, and vice president of the predecessor companies. Prior to 1994, the predecessor company for BNL was United Arkansas Corporation (UAC) and the predecessor company for BNLAC was United Arkansas Life Assurance Company (UALAC). The appellees in this appeal are the plaintiffs and class representatives in the class action — Myra Jo Pearson, Paul Pearson, and James Stilwell.

On April 30, 1996, the Pearsons filed the original complaint against the appellees for violation of the Arkansas Securities Act and specifically for violation of Ark. Code Ann. § 23-42-106(a)(l) (Supp. 1999). The defendants moved the trial court to dismiss the case for lack of subject-matter jurisdiction or to transfer the case to chancery court because the equitable defense of laches had been asserted. The motion was denied. On May 19, 1998, Stilwell joined as a party plaintiff in the third amended complaint. The cause of action centered around misrepresentations or omissions in two public offering prospectuses and a scripted sales presentation. The first public offering sought purchasers of stock in UAC between the dates of May 1, 1989, and May 1, 1991. The second public offering also sought purchasers of stock in UAC. That offering commenced on May 1, 1991, and ended on May 1, 1992.

According to their complaint, the Pearsons purchased stock under both offerings on the dates of April 24, 1991; May 9, 1991; and February 20, 1992. Their total investment in UAC stock was $10,660. Stilwell purchased stock under the first offering on August 30, 1990. His total investment was $2,000. During the first offering, UAC raised $4,110,050 from 1,251 investors. Under the second offering, it raised $2,071,300 from 590 investors.

In their complaint, the Pearsons and Stilwell alleged pervasive deception by the appellants with regard to their entire investment plan Specifically, the Pearsons and Stilwell alleged five material misrepresentations or omissions of material facts that were made through the use of the two public offering prospectuses and the scripted sales presentation. Those misrepresentations or omissions were: (1) that UAC’s primary business objective and principal business activity would be the ownership and operation of a life insurance subsidiary which would primarily offer customary forms of life insurance products; (2) that UAC and its life insurance subsidiary (UALAC) would hire and license captive sales agents and that the captive sales force would use a one-on-one sales method with clients and use personal visits by agents to homes and businesses; (3) that there were no then-existing opportunities known to UAC or its management to purchase any existing insurance company or other business; (4) that the key management team of UAC, primarily appellants Ahart, Shamas, and Tobey, had achieved a strong record of success and built four successful insurance holding companies; and (5) that appellant Tobey had nine or ten years experience in the life insurance business. According to the complaint, contrary to these representations, the primary business activity of the appellants has been dental insurance, a captive sales force was not utilized, opportunities to purchase existing insurance companies were available, and the experience of the management team in the insurance business was misrepresented. The plaintiffs tendered their shares of UAC to the company and prayed for class certification, damages, interest, and attorneys’ fees.

The Pearsons and Stilwell moved the trial court to certify a class consisting of all of the purchasers of UAC stock under the first and second offerings. A hearing was held, and briefs were submitted by the parties.

On August 27, 1997, the trial court entered an order granting class certification.

I. Rule 23 Arguments

The primary thrust of the appellants’ appeal is that these multiple lawsuits simply cannot be tried as a class action because the Rule 23 criteria of typicality, predominance, and superiority have not been met. See Ark. R. Civ. P. 23(a) & (b). The claims of the class representatives are atypical, according to the appellants. Moreover, they contend that common issues of law or fact do not predominate over individual issues. They point out, in particular, that the knowledge of each investor about the investment purchased is an element of the alleged Securities Act violation under § 23-42-106(a)(l). Thus, individual trials on the knowledge issue would be a necessity. In short, they contend that a class action is not the superior means of resolving the multiple causes of action. As a secondary matter, they urge that should this court affirm the class certification, it should direct the trial court to provide more specifics on how the matter will be managed and tried.

We have held that the determination of whether Rule 23 criteria have been satisfied and whether the class action should proceed rests within the broad discretion of the trial court and will not be reversed absent an abuse of discretion. See, e.g., Fraley v. Williams Ford Tractor and Equip. Co., 339 Ark. 322, 5 S.W.3d 423 (1999); Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997); International Union of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988) (broad discretion in trial court extends to protection of absent class members but also to question of whether class action should proceed).

Before we examine the Rule 23 criteria, however, we feel constrained to address a common thread that runs throughout the appellants’ appeal. The appellants contend that discussion of the Rule 23 criteria must, by necessity, bring into play some examination of the merits of the claims including their defenses, and that we should not rigidly enforce our proscription against a merits analysis at this stage. Without weighing the merits, the appellants posit that this court cannot decide whether the claims of the class representatives are typical or that claims of the class members are common and predominate.

The appellants, however, are plowing old ground in raising an issue that has clearly been decided by this court. Most recently, we said:

We have held that neither the trial court nor the appellate court may delve into the merits of the underlying claim in determining whether the elements of Rule 23 have been satisfied. In that regard a trial court may not consider whether the plaintiffs will ultimately prevail, or even whether they have a cause of action. Thus, the propriety of a class action is “basically a procedural question.” (Citations omitted.)

Fraley v. Williams Ford Tractor & Equip. Co., 339 Ark. at 335, 5 S.W.3d at 431 (1999). In Fraley, we held that the trial court could not examine the affirmative defenses of release and consent in deciding whether the class should be certified. The Fraley case was not an anomaly. This court has been consistent in holding that, whether the plaintiff class will ultimately prevail on the merits is immaterial to the issue of class certification. See, e.g., Mega Life & Health Ins. Co. v. Jacola, supra; Farm Bureau Mut. Ins. Co. v. Farm Bureau Policy Holders & Members, 323 Ark. 706, 918 S.W.2d 129 (1996).

We hold once more that we will not look to the merits of the class claims or to the appellants’ defenses in determining the procedural issue of whether the Rule 23 factors are satisfied. We turn then to the Rule 23 criteria of typicality, predominance, and superiority, which we will discuss seriatim. We will conclude by addressing the management point.

a. Typicality

Rule 23(a)(3) requires that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” The appellants vigorously contend that the amount of information provided to the Pearsons and Stilwell concerning their UAC investments defeats their ability to show that their knowledge is typical of the knowledge of all other class members, as Rule 23(a)(3) requires. They further argue that there are substantial questions relating to unique defenses applicable to the Pearsons and Stilwell that would not be applicable to other class members. Their argument is best summarized by a statement on this point from the Second Circuit Court of Appeals that a class certification is not appropriate when a putative class representative is subject to unique defenses that threaten to become the focus of the litigation. See Gary Plastic Packaging v. Merrill Lynch, 903 F.2d 176 (2nd Cir. 1990), cert denied. 498 U.S. 1025 (1991).

We disagree that typicality is lacking in the instant case. Our caselaw is clear that the essence of the typicality requirement is the conduct of the defendants and not the varying fact patterns and degree of injury or damage to individual class members. See Mega Life and Health Ins. Co. v. Jacola, supra; Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997); Farm Bureau Mut. Ins. v. Farm Bureau Policyholders, supra; Chequenet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995); Summons v. Missouri Pac., R.R., 306 Ark. 116, 813 S.W.2d 240 (1991); see also I Herbert B. Newberg, Newberg On Class Actions, § 3.13, at 74-77 (3d ed. 1992).

We have stated that “claims are typical when they “ ‘arise from the same wrong allegedly committed against the class.’ ’’ Farm-Bureau Mut. Ins. Co., 323 Ark. at 711, 918 S.W.2d at 131, quoting Chequenet Systems, Inc. v. Montgomery, 322 Ark. at 749, 911 S.W.2d at 959. In the case before us, there is no question but that the class representatives have alleged a common wrong by the appellants that affects every class member. That conduct surrounds two misrepresented public offerings and the allegations that the appellants induced investors to invest in UAC with either false statements or omissions in the two offering prospectuses and the scripted sales presentation.

We are persuaded that the Pearsons and Stilwell have established that their claims are typical of all class members for certification purposes. There was no abuse of discretion by the trial court on this point.

b. Preponderance

The appellants next contend that Rule 23(b) requires that the trial court find that “the questions of law and fact common to the members of the class predominate over any questions affecting only individual members,” and that that requirement has not been met. They urge that the predominance difficulty in this case relates to the three-year time period for the alleged wrongdoing and the varying degrees of knowledge of individual class members about the offerings during that time frame. For example, they show this court that the first offering covered the period between May 1, 1989, and May 1, 1991, and that the second offering covered the period between May 1, 1991, and May 1, 1992. They then argue that though the class representatives only base their claims on three documents (first offering prospectus, second offering prospectus, and a scripted sales presentation), there was a “host of other information” available to prospective investors in UAC stock during this time. As examples, they direct us to the thirty-two regional meetings held for potential shareholders and investors; a 1991 annual report on the company; an April 10, 1992 letter and brochure sent to shareholders; and forty-four public filings with the Arkansas Insurance Commissioner relating to the insurance being offered by UAC and UALAC.

The appellants contend that the availability of this additional information to class members raises substantial individual questions of the degree of knowledge surrounding the UAC investment. They claim that by defining the class as all purchasers who purchased UAC’s securities, the trial court’s analysis was “too cursory” and ignored the critical element of each class member’s cause of action, which is that purchaser’s knowledge of what the investment entailed. They maintain that this court has previously refused to certify a class in two mass tort actions in the medical field where individual issues relating to knowledge predominated. See Baker v. Wyeth-Ayerst Lab. Div., 338 Ark. 242, 992 S.W.2d 797 (1999); Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995).

The starting point for our examination of the predominance issue is whether a common question of law or fact exists in this case for all class members. See Ark. R. Civ. P. 23(b); Mega Life & Health Ins. Co. v. Jacola, supra. Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991); International Union of Elec., Radio & Mach. Workers, supra. We conclude that it does. That common question relates to the allegations of fraudulent representations or omissions by the appellants in the two prospectuses and scripted sales presentation which induced the class members to buy the UAC securities. The next issue is whether this common question predominates over individual questions. We believe that it does.

This case, to our way of thinking, raises an issue comparable to that asserted in Seeco, Inc. v. Hales, 330 Ark. 402, 95.4 S.W.2d 234 (1997). There, the argument mounted by the defendants was that the class sought recovery on a fraud theory which required, as an element, proof of reliance on the misrepresentation by each class member. We held that even though lack of reliance by individual class members might be an argument raised by the defendants as a defense, the existence of the alleged scheme to defraud royalty owners was a common question for all class members. We concluded that the alleged scheme was the overarching issue and the starting point in resolving the matter. We held to the same effect in Fraley v. Williams Ford Tractor and Equip. Co., supra, where the plaintiffs alleged that the equipment dealer had intentionally converted insurance premiums from the class members as the central fraudulent scheme. Proof of that scheme, we concluded, predominated over individual questions.

Similarly, in the case at hand, a common question..of misrepresentation under § 23-42-106 (a)(1) is the linchpin of every class member’s case and must be resolved as the first step. Resolution of this issue predominates over potential individual issues relating to investor knowledge or affirmative defenses. . ''

The medical mass tort cases, on the other hand, are readily distinguishable in that individual issues clearly predominated in those cases. In Arthur v. Zearley, supra, the thrust of the plaintiffs’ cause of action in the Orthoblock cases was lack of informed consent under the Medical Malpractice Act, which necessarily brought into play the extent of the information imparted'to each patient by his or her physician and that patient’s medical condition. In Baker v. Wyeth-Ayerst Lab. Div., supra, which was a products-liability case related to prescriptions for differing combinations of diet drugs, the cause of action was premised on varying combinations of drugs taken by each patient as well as time of patient usage, quantities taken, and medical histories. Thus, in neither Arthur v. Zearley, supra, nor Baker v. Wyeth-Ayerst Lab. Div., supra, did a common fraudulent scheme predominate over the individual circumstances of each patient. In short, the information conveyed by the defendant physicians varied with each patient in the Orthoblock cases and, likewise, the prescriptions of the diet pills in Baker, were patient specific. This is categorically different from the matter at hand where all class members predicate their claims of § 23-42-106(a)(l) misrepresentations on the offering prospectuses and the scripted sales presentation.

We hold that the trial court correctly found that the wrongful conduct alleged is common to the class and that this issue of liability predominates over individual questions.

c. Superiority

Next, the appellants contest the trial court’s conclusion “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy” under Rule 23(b). The appellants’ contention on this point is analogous to their predominance argument. They claim that the trial court’s “simple” finding that the class was numerous and the claims small was not enough to satisfy the superiority requirement. They again contend that the knowledge issue for individual claimants will render a class action grossly inefficient and will undercut any notion of judicial economy. Only three claimants filed the lawsuit, they emphasize, and this hardly justifies the time and expense of a class action.

Again, we disagree. The avoidance of a multitude of suits lies at the heart of any class action certification. And though smallness of the claims may not be the sole basis for certifying a class, it is a factor to be considered in deciding superiority. See International Union of Elec., Radio & Mach. Workers v. Hudson, supra. Furthermore, here the alternative to a class action would be numerous joinders, wholesale intervention, and several hundred small lawsuits which would be totally inefficient and wholly unmanageable. Surely, neither the parties nor the judicial system would benefit from a legion of lawsuits that are numerous, duplicative, and time consuming. See Snider v. Upjohn, 115 F.R.D. 536 (E.D. Pa. 1987).

There is, too, the point that without the class action procedure, numerous meritorious claims might go unaddressed. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). Plus, by limiting the issues to be tried to the ones that are common to all class members such as the alleged scheme of misrepresentation or omission and common defenses, the trial court can achieve real efficiency. See Seeco, Inc. v. Hales, supra.

The appellants raise the spectre that with the potential for individual suits splintering on issues like investor knowledge, trial of the class action could unravel and turn into a procedural nightmare. We will not speculate on this eventuality. We simply hold that at this stage there is a common issue related to the appellants’ conduct and liability that predominates over individual questions and renders a class action the superior method for litigating the matter.

We are further convinced that a class action is fair to both sides. As we said in Seeco, Inc. v. Hales, supra, and Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991), even if the trial court eventually decides that individual claims have to splinter in bifurcated proceedings, resolution of the issue of wrongful conduct common to all class members can achieve real efficiency as a starting point. We also note that there is a real benefit to the appellants in a class action in that they have the opportunity to nip multiple claims in the bud with common defenses such as the investors’ knowledge of the investment purchased, lack of the appellants’ knowledge concerning the misrepresentations, and statute of limitations. We conclude that the superiority requirement has been met.

d. Management

Because we hold that the contested Rule 23 criteria have been satisfied, we now address the appellants’ request for guidance from the trial court on how the trial of this matter will be managed.

We first observe that the trial court in this case has a firm grasp of what is involved in this class action as is evidenced , by its well-reasoned, twenty-four-page order granting class certification. The trial court determined that a class action was appropriate, after analyzing the Rule 23 factors that are at issue in this appeal. This court has recognized that the ability to manage and guide a class action is a necessary part of a trial court’s decision to certify. See International union of Elec., Radio & Mach. Workers v. Hudson, supra. We further have alluded to the substantial power in the trial court to manage a class action. Id.; see also Summons v. Missouri Pac., R.R., supra.

We have also noted the ability of the trial court to decertify should the action become too unwieldy. Rule 23 specifically contemplates that circumstance when it states: “An order under this section may be conditional and it may be altered or amended before the decision on the merits.” Ark. R. Civ. P. 23(b). In the recent case of Fraley v. Williams Ford Tractor & Equip. Co., supra, we quoted from Newberg On Class Actiorasregarding the decertification option and the fact that this flexibility in the trial court is vital to “judicious use of the class device.” See I Newberg On Class Actions § 7.47, at 146 (3d ed. 1992).

We have no hesitancy in placing the management of this class action in the trial court. That is what the rule contemplates, and, as already described, real efficiencies can be obtained by resolving common issues, both for the plaintiff class and the appellants. Were we, on the other hand, to speculate on class management or direct the trial court at this stage to present the parties with a management plan, we would be interfering in matters that clearly fall within the trial court’s bailiwick.

II. Statute of Limitations

The appellants next take the trial court to task for refusing to consider their statute-of-limitations defense to class member claims as a class certification issue. The trial court was correct. We have made it clear in our cases that any analysis of the limitations defense at the class-certification stage is a merits determination, and, therefore, inappropriate. See Fraley v. Williams Ford Tractor and Equip. Co., supra; see also Seeco, Inc. v. Hales, supra, quoting, I Herbert B. Newberg, Newberg On Class Actions § 4.26, at 104 (3d ed. 1992). The trial court was correct in stating that consideration of the limitations defense amounted to delving into the merits.

Ironically, after stating the law correctly in its order, the trial court proceeded to decide the limitations question. It was error for the court to do so, and we will disregard its discussion of this issue.

III. General Issues

The appellants conclude that the trial court’s certification order would require bifurcated trials. This raises, in their judgment, an issue under the Seventh Amendment to the United States Constitution. They contend that any process which contemplates using two different juries for one lawsuit to resolve common issues and individual issues violates this amendment.

We said in Seeco, Inc. v. Hales, supra, when a comparable issue was raised under Article 7, Section 2, of the Arkansas Constitution, that we did not know at the certification point whether more than one jury would ultimately be necessary. This continues to be our position. We will not speculate on the question of the inevitability of bifurcated trials or issue an advisory opinion on an issue that well may not develop.

The appellants also raise the issue of subject-matter jurisdiction in connection with their affirmative defense of laches. Raising this defense, they maintain, requires dismissal or a transfer of the entire case to chancery court. This is the same issue that was presented to the trial court in 1996 and denied. The appellants are incorrect in their conclusion. It is true that laches is a defense cognizable only in equity when equitable relief is sought. See Landreth v. First National Bank, 45 F.3d 267 (8th Cir. 1995); J.W Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 836 S.W.2d 853 (1992). It is not true, however, that a defendant can assert an equitable defense to a complaint at law and thereby divest a plaintiff of jurisdiction to have his claim heard in circuit court. The appellants draw our attention to Schultz v. Rector Phillips Morse, Inc., 261 Ark. 769, 522 S.W.2d 4 (1977), where we held that the affirmative defense of laches was applicable to a claim under the predecessor statute to § 23-42-106. But in Schultz, the plaintiffs initiated their suit in chancery court. That is altogether different from the situation we have before us.

We conclude that the trial court did not abuse its discretion in any respect in certifying this class.

Affirmed.

Thornton, J., dissents.

RAY THORNTON, Justice,

dissenting. I am concerned that the court has opened the door to class actions without requiring the careful analysis that should be given before certification. The court once held that “with regard to Rule 23 motions, we have specifically stated that we will follow the federal rules in class actions” Farm Bureau Mut. Ins. v. Farm Bureau Policy Holders, 323 Ark. 206, 918 S.W.2d 129 (1996). However, we have eliminated the requirement under federal rules that there must be a rigorous analysis for certification as oudined in General Telephone Company of South West v. Falcon, 457 U.S. 147 (1982). See Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997).

In my view, we are approaching the point that class actions have been so extended that they elevate efficiency over legal principles. While I respectfully dissent from the direction the majority is taking, I recognize that the grounds for my dissent are being eroded by the cases we have recently decided. I respectfully dissent.


author: ANNABELLE CLINTON Imber, Justice.

text:
    Lona McCASTLAIN v. Barbara ELMORE
    99-541
    10 S.W.3d 835
    Supreme Court of Arkansas
    Opinion delivered February 10, 2000

      Sloan-Rubens, by: Kent J. Rubens; and Stuart & McCastlain, by: J. Michael Stuart, for appellant.

      Appellee, pro se.
   ANNABELLE CLINTON Imber, Justice.

This is an election-contest case. On appeal, Lona Horne McCastlain argues that the trial court erred when it dismissed Barbara Elmore’s complaint without prejudice. Ms. McCastlain contends that the trial court should have dismissed Ms. Elmore’s election contest with prejudice because the statutory time for filing an election-contest complaint had expired. We agree that the complaint should have been dismissed with prejudice, and affirm the trial court’s order as modified.

Lona Horne McCastlain and Barbara Elmore were candidates in the 1998 general election for the office of Prosecuting Attorney in the Seventeenth Judicial District (West). On November 13, 1998, the Lonoke County Board of Election commissioners certified the election results and declared Ms. McCastlain the winner by a vote of 6,651 to 6,650, a margin of only one vote. Ms. Elmore filed an election-contest complaint on December 2, 1998, against Lona McCasdain, Myrde Finch in her official capacity as Lonoke County Clerk, the Lonoke County Board of Election Commissioners and Clayton Shurley, Mickey Stumbaugh, and Jimmie Taylor in their official capacities as Lonoke County Election Commissioners. The complaint signed by Ms. Elmore and her attorneys reflected the following jurat executed by the notary public: “Subscribed and Sworn to before me this 2nd day of December, 1998.”

Ms. McCastlain initially asserted that the court was without jurisdiction to hear the matter and moved for dismissal of the complaint pursuant to Ark. R. Civ. P. 12(b)(1). Specifically, Ms. McCastlain alleged that Ms. Elmore failed to timely file an affidavit in which she verified that she believed the statements in her complaint to be true, as required by Ark. Code Ann. § 7-5-801 (d) (Repl. 1993), thereby depriving the trial court of subject matter jurisdiction. The trial court held a hearing and ruled that Ms. Elmore’s notarized signature and the “statement of verification” quoted above satisfied the affidavit requirement in section 7-5-801(d) and denied Ms. McCastlain’s motion to dismiss.

The trial court scheduled the case for trial on May 18, 1999; however, on May 10, 1999, Ms. McCastlain’s attorneys were notified by Ms. Elmore’s attorneys that she wished to dismiss her complaint. That same day, the attorneys for both parties advised the trial court’s case coordinator that Ms. Elmore was dismissing her complaint and that an order of dismissal would be sent to the trial court for its signature. The attorneys also confirmed with the case coordinator that the two days scheduled for trial, May 18 and 19, 1999, were released. Later that day, Ms. McCastlain’s attorneys were notified that Ms. Elmore had changed her mind and would not dismiss her complaint. One of Ms. Elmore’s attorneys indicated that he would seek the court’s permission to withdraw, and her other attorney contacted the trial court’s case coordinator about keeping the trial dates previously released. Following a conference call with the attorneys on May 17, 1999, the trial court entered an order on May 20, 1999, in which it ruled that Ms. Elmore could not withdraw her request for a dismissal or nonsuit. However, the trial court dismissed Ms. Elmore’s complaint without prejudice and gave her the option to refile her election contest. Ms. McCastlain now appeals and asserts two grounds: (1) it was error for the trial court to dismiss Ms. Elmore’s complaint without prejudice; and (2) it was error for the trial court to deny the motion to dismiss for failure to comply with the affidavit requirement in section 7-5-801 (d). Because we find merit in Ms. McCastlain’s first assertion of error, we need not address her second argument.

The right to contest an election is purely statutory. Casey v. Burdine, 214 Ark. 680, 217 S.W.2d 613 (1949). Because election contests are special proceedings, the rules of civil procedure do not apply. See Ark. R. Civ. P. 81(1999); Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000); Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992). The provision requiring an election contest to be filed within a certain number of days of the certification is mandatory and jurisdictional. See Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998); Gay v. Brooks, 251 Ark. 565, 473 S.W.2d 441 (1971); Moore v. Childers, 186 Ark. 563, 54 S.W.2d 409 (1932); Gower v. Johnson, 173 Ark. 120, 292 S.W. 382 (1927). We have also held that “[T]he right to contest a[n] ... election is a statutory proceeding, the purpose of which is to furnish a summary remedy and to secure a speedy trial.” Gower v. Johnson, 173 Ark. at 122, 292 S.W. at 383. In light of the fact that such statutory proceedings are special and summary in nature, the statutory requirements to secure jurisdiction must be strictly observed, and the jurisdictional facts must appear on the face of the proceedings. Casey v. Burdine, supra.

The General Assembly has specifically mandated that election-contest proceedings be expedited with abbreviated deadlines for initiating an election contest and appealing a trial court’s determination of an election. See Ark. Code Ann. § 7-5-801 (Repl. 1993)(twenty-day time period for filing a complaint); Ark. Code Ann. § 7-5-810 (Supp. 1999) (seven-day time period for filing an appeal). Statutory provisions also require the trial courts and the Supreme Court to hear and decide election-contest cases promptly. See Ark. Code Ann. § 7-5-804 (Supp. 1999) (“It shall be the duty of the Supreme Court to advance the hearing of any such appeal.”); Ark. Code Ann. § 7-5-802 (Repl. 1993) (requiring circuit court to “proceed at once” to hear the case, and the case shall be given “precedence and be speedily determined”). In this regard, we have noted the legislature’s mandate for speedy determination and this court’s condemnation of “fishing expeditions” in the context of election contests. See Cartwright v. Carney, 286 Ark. 121, 690 S.W.2d 716 (1985).

Additionally, Arkansas law does not allow an election-contest complaint that was deficient when filed to be later amended and corrected to allege a cause of action after the twenty-day time period for filing the complaint has elapsed. Cowger & Stewart v. Mathis, 255 Ark. 511, 501 S.W.2d 212 (1973); Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306 (1967);Wheeler v. Jones, 239 Ark. 455, 390 S.W.2d 129 (1965); see also, King v. Whitfield, 339 Ark. 176, 5 S.W.3d 21 (Glaze, J., concurring). Furthermore, where a complaint fails to allege sufficient facts to state a cause of action in an election contest, it may not be subsequently amended by pointing to facts outside the complaint after the time for contesting the election has expired. King v. Whitfield, supra; Rubens v. Hodges, supra; see also Wheeler v. Jones, supra. These cases demonstrate a strict adherence to the statutory time constraints articulated for election contests.

Finally, we have previously addressed the applicability of the savings statute in the context of an election contest. Casey v. Burdine, supra. Pursuant to the savings statute, a claimant may refile an action within one year after taking a nonsuit upon the original action brought within the statutory limitations period. Ark. Code Ann. § 16-56-126 (1987). In Casey v. Burdine, we specifically held that the savings statute applies only to actions governed by a general statute of limitations, and not to proceedings, such as election contests, in which the right to file is limited to a very short period:

Both the continuity of administration, as well as the sanctity of the acts of a person holding office and exercising its powers, require the strict enforcement of a short period for contesting the right to hold the office.

Casey v. Burdine, 214 Ark. at 683, 217 S.W.2d at 615. Likewise, the election contest in this case must be governed by our holding in Casey v. Burdine because the statutory time limit for filing an election contest is jurisdictional. We also note that the case law cited by Ms. Elmore, Walton v. Rucker, 193 Ark. 40, 97 S.W.2d 442 (1936), does not address the applicability of the savings statute to election-contest proceedings, and is therefore inapposite.

We have also refused to permit nonsuits in analogous special proceedings where the legislature has expressly provided for expedited proceedings. See In re Adoption of Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997)(holding that a petition to set aside an adoption decree could not be dismissed without prejudice); and Screeton v. Crumpler, 273 Ark. 167, 617 S.W.2d 847 (1981)(holding that a will contestant could not take a nonsuit). In Screeton v. Crumpler, we stated:

The appellant’s brief implies that the dismissal should have been without prejudice, but we do not think that procedure . . . was available. A proceeding to probate a will is a special proceeding, not an “action” as that term is ordinarily used. It does not constitute a civil action within [the Arkansas Rules of Civil Procedure], Rules 2 and 3. A will contestant cannot take a nonsuit under Rule 41, because such a contest is not an independent proceeding in itself. It would seriously disrupt the administration and distribution of estates if a will contest could be dismissed, voluntarily or without prejudice, and refiled at some indefinite later date. Hence the dismissal in the probate court was necessarily with prejudice.

Screeton v. Crumpler, 213 Ark. at 168, 617 S.W.2d at 848 (citations omitted). While these cases involve probate proceedings, the principles enunciated therein apply equally to election-contest proceedings. If an election contest could be dismissed voluntarily or without prejudice, it would seriously disrupt the administration of government and would effectively subvert the time limitations established by the legislature. We therefore hold that Ms. Elmore’s complaint should have been dismissed with prejudice.

Affirmed as modified.

Thornton, J., not participating.

       Although not cited by the parties, our decisions in Spires v. Election Comm'n Union County Ark., 302 Ark. 407, 790 S.W.2d 167 (1990) (Spires I) and Spires v. Compton, 310 Ark. 431, 837 S.W.2d 459 (1992) (Spires II) are also inapposite for the same reason.