text:
    Cochise MILES v. STATE of Arkansas
    CR 01-867
    85 S.W.3d 907
    Supreme Court of Arkansas
    Opinion delivered October 3, 2002

      Craig Lambert and Richard L. Hughes, for appellant.

      Mark Pryor, Att’y Gen., by: • Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

Appellant Cochise Miles was tried and convicted of capital-felony murder and two counts of aggravated robbery, resulting in a sentence of life without parole for capital-felony murder plus two consecutive thirty-year sentences for the two counts of aggravated robbery. He now appeals his convictions and challenges the sufficiency of the evidence, the trial court’s refusal to strike a juror for cause, the trial court’s denial of his motions for a mistrial and a new trial, and the trial court’s refusal to enforce the terms of a negotiated plea agreement. We find no error and affirm.

On February 17, 1997, Cochise Miles and Tommy Phillips entered Freight Damaged Foods in southwest Little Rock armed with hand guns. The two hid in back of the store until it closed at 6:00 p.m. Meanwhile, the manager of Freight Damaged Foods, Van Dean Clouse, was unaware of the two men’s presence. After the store closed, he moved to the front of the store to close out the registers. Carr Stalnaker, a Frito-Lay employee, was stocking shelves in the rear of the store. At about 6:25 p.m., Phillips went to the front of the store to rob Clouse while Miles stayed in the back to control Stalnaker. Both men were wearing knit caps and bandanas to conceal their identities.

While at the front of the store, Phillips demanded that Clouse give him all the money in the store. Clouse complied and gave him about $200. Phillips then ordered Clouse into a cooler at the rear of the store. He also directed Miles to take Stalnaker to the cooler. As they walked toward the cooler, Stalnaker heard Phillips saying repeatedly, “if there’s not any more money than this, somebody’s gonna die.” Shortly after Clouse and Stalnaker were ushered into a cooler, Phillips and Miles moved them to a second cooler. At that point, Stalnaker and Clouse informed the robbers that they had families and asked the men to just leave with the money. Phillips told them to shut up, and then repeatedly raised and lowered his gun, each time .pointing it at Clouse’s head. Stalnaker realized that Phillips was “psyching himself up” to kill Clouse. Phillips shot Clouse in the head, killing him. Stalnaker then ran out of the cooler, out the back door, and down an alley. During Stalnaker’s escape' Miles fired his weapon twice. Stalnaker escaped uninjured. Phillips and Miles then ran through the woods to a nearby equipment rental business where Miles’s bandana and cap were discovered the following day, along with live 9mm and .22 caliber rounds similar to those found at the Freight Damaged Foods store.

Phillips and Miles were arrested and each charged with capital-felony murder and two counts of aggravated robbery. The cases were severed, and Miles entered into a plea agreement with the State. In exchange for Miles giving testimony. against his accomplice, Tommy Phillips, the State agreed to reduce the charges against Miles to first-degree murder and to recommend a twenty-year sentence.

The State elected to try Phillips first. At that trial, Miles testified truthfully that he and Phillips were involved in the aggravated robbery. However, during closing arguments the trial court declared a mistrial. Phillips was then retried and Miles testified again. This time, however, he stated that neither he nor Phillips had anything to do with the crimes. Despite this testimony, Phillips was convicted at the second trial. The State subsequently claimed it was not bound by the plea agreement negotiated with Miles because he had not testified truthfully at his accomplice’s second trial. As a result, the State proceeded to trial on the original charges, and Miles was convicted of capital-felony murder and two counts of aggravated robbery. On appeal, Miles seeks to have his convictions set aside.

I. Sufficiency of the Evidence

In his first point on appeal, Miles asserts that the evidence submitted at trial is insufficient to support the capital-felony murder conviction and that the court erred in denying his motions for a directed verdict at the close of the State’s case and at the close of all the evidence. As a threshold matter, we note that Miles admits his involvement in the aggravated robbery but asserts that the evidence submitted at trial, when viewed in light of the capital-felony murder affirmative defense, was insufficient to support the capital-felony murder conviction. We disagree.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the fight most favorable to the appellee and consider only the evidence that supports the verdict. Id.

Capital murder under section 5-10-101 of the Arkansas Criminal Code provides in pertinent part that:

(a) A person commits capital murder if:

(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit . . . robbery . . . and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to human life;
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(b) It is an affirmative defense to any prosecution under subdivision (a)(1) of this section for an offense in which the defendant was not the only participant that the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission.

Ark. Code Ann. §§ 5-10-101(a)(l), (b) (Repl. 1997). Miles bases his sufficiency challenge solely upon the affirmative defense set forth in section 5-10-101(b). Miles was therefore required to prove his affirmative defense by a preponderance of the evidence. Ark. Code Ann. § 5-1-111 (d) (Repl. 1997). As previously noted, Miles admits he participated in the aggravated robbery that culminated in the murder of Clouse. However, he asserts that he did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission, and was in fact surprised by it.

We have previously ruled on this issue in a similar case. In Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000), the defendant was convicted of capital-felony murder. She argued that the trial court erred in denying her motion for a directed verdict where she asserted an affirmative defense because she was merely present at the murder and took no part in it. Id. We stated that to sustain a conviction of capital-felony murder, it is not necessary that the defendant be shown to have taken an active part in the killing as long as she was an accomplice to, and had the requisite intent for, the underlying felony. Id. (citing Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998)). In this case; the defendant admits committing and being an accomplice to the underlying felony, that is, to the aggravated robbery. That admission alone is adequate grounds to affirm. Nonetheless, the result would be no different had Miles argued that the evidence viewed as a whole was insufficient to support the verdict. The evidence presented at trial shows that Miles and Phillips agreed to rob Freight Damaged Foods armed with weapons. They both hid in the back of the store until it closed. They then covered their faces with bandanas and their heads with caps and used their weapons to control Clouse and Stalnaker in the store. After Phillips took money from Clouse, Miles helped usher the two victims back into a cooler under gun point. In the cooler, Miles continued to help Phillips keep control of the victims. Phillips then shot and killed Clouse, and Stalnaker escaped out the door.

The evidence set out above is sufficient to convict Miles of capital-felony murder, as well as aggravated robbery. The affirmative-defense provision in section 5-10-101 (b) does not relate to the intent of the accomplice in relation to the murder; rather, it refers to the accomplice’s actions leading up to the murder: “[T]hat the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission.” Ark. Code Ann. § 5-10-101(b). Thus, in this case, a jury could reasonably conclude from Miles’s actions during the robbery that he induced, procured, or aided in the murder of Clouse. We therefore affirm the trial court’s denial of the motion for a directed verdict.

II. Challenge for Cause of Prospective furor

Miles next asserts that the trial court erred in refusing to strike a prospective juror for cause. The juror, Judy Kaye Mason, is an Assistant City Attorney for the City of Little Rock. Following the court’s adverse ruling, Miles utilized one of his peremptory challenges to excuse Ms. Mason. On appeal, he does not challenge the impartiality of the jury that was in fact selected, but instead contends that the prospective juror should have been excused for cause.

We have continually stated that the loss of a peremptory challenge cannot be reviewed on appeal and that the appeal focuses specifically on those who were seated on the jury. Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001); Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). Judy Kaye Mason was not seated on the jury and, therefore, Miles presents no cognizable claim for relief. Furthermore, a challenge must show that the appellant was forced to accept a juror who should have been excused for cause. Branstetter v. State, supra. Miles makes no claim on appeal that he was forced to accept any juror. Accordingly, his argument on this point is wholly without merit.

III. The State’s Use of Inconsistent Factual Theories

For his third point on appeal, Miles contends that the trial court erred when it denied his motion for a mistrial. Miles maintains that the State took contradictory positions at his trial and the trials of his accomplice, Tommy Phillips. In so doing, he concludes that his right to due process and a fair trial were violated. This argument, however, assumes facts not in evidence; thus, we must affirm without reaching the merits.

Miles failed to properly preserve the record below. His assertion that the prosecutor’s theories changed between trials is not supported by the record before us. The pertinent parts of the record in the Phillips trials were neither made a part of the record below, nor were they properly made a part of the record on appeal. Indeed, defense counsel improperly suggested otherwise by including an abstract of portions of the Phillips record in the appellant’s abstract and brief. It is well settled that the appellant bears the burden of producing a record that demonstrates error, and thus we do not consider matters outside of the record on appeal. Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000); Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992). As we cannot tell from the record before us under what theory the prosecutor proceeded at the Phillips trials, we do not address the merits and affirm the trial court.

IV. Rule 606(b)

After Miles was convicted, his defense counsel, aided by a private investigator, interviewed eight jurors and recorded their statements. Based upon these interviews, counsel filed a motion for a new trial that suggested the jury improperly considered the evidence and jury instructions. Miles submitted transcripts of the interviews with jurors as exhibits to the motion. The trial court neither granted nor denied the motion within thirty days of the date the motion was filed. Therefore, pursuant to Ark. R. App. P. — -Crim. 2(b)(1) (2002), the motion was deemed denied. Miles asks this court to hold that, in light of the interviews with jurors, his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution have been violated. Pie also challenges the constitutionality of Ark. R. Evid. 606(b) (2002).

Pursuant to Rule 606(b) of the Arkansas Rules of Evidence, the evidence submitted by Miles in support of his motion is clearly not admissible. See, e.g., McIntosh v. State, 340 Ark. 34, 8 S.W.3d 506 (2000); State v. Osborn, 337 Ark. 172, 988 S.W.2d 485 (1999). Specifically Rule 606(b) provides as follows:

(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought upon any juror.

Ark. R. Evid. 606(b) (2002) (emphasis added). The purpose of this rule is to balance the freedom of jury deliberations with the ability to correct an irregularity in those deliberations. Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997). We have unequivocally stated that any effort by a lawyer to gather information in violation of Rule 606(b) to impeach a jury’s verdict is improper. Garner v. Finch, 272 Ark. 151, 612 S.W.2d 304 (1981); Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981).

Nonetheless, Miles challenges the constitutionality of Ark. R. Evid 606(b) “to the extent that [it] bars consideration of the evidence that supports [his] claim for relief.” As support for his argument, he refers to various federal constitutional amendments and then cites to a string of unrelated cases: Griffin v. California; 380 U.S. 609 (1965); Washington v. Texas, 388 U.S. 14 (1967); Rock v. Arkansas, 483 U.S. 44 (1987); and Ross v. Moffitt, 417 U.S. 600 (1974). None of these cases supports his claim that Rule 606(b) should be declared unconstitutional. We have frequently stated that “we will not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research the argument is well taken.” Hollis v. State, 346 Ark. 175, 179, 55 S.W.3d 756, 759 (2001).

In any event, the United States Supreme Court has held that a defendant has no right to present inadmissible evidence and has thereby condoned the bar of certain types of evidence. See Taylor v. Illinois, 484 U.S. 400 (1988). Further, we have maintained that Rule 606(b) serves the important functions of securing private, frank jury deliberations, and protecting the finality of judgments. State v. Osborn, 337 Ark. 172, 988 S.W.2d 485 (1999).

V. Specific Performance of a Plea Agreement

For his final point on appeal, Miles argues that the trial court erred in refusing to enforce the terms of a negotiated plea agreement. Miles entered into a plea agreement with the State whereby he agreed to testify truthfully at his accomplice’s trial in return for a reduced charge of first-degree murder with a sentence recommendation of twenty years. At the accomplice’s first trial, Miles testified truthfully that he and Phillips committed the aggravated robbery. That trial, however, ended in a mistrial. At the accomplice’s second trial, which resulted in a conviction, Miles changed his testimony, claimed that his former statement was coerced, and testified that neither he nor Phillips had anything to do with the crime. The State maintained that Miles’s testimony at the second trial constituted a breach of the plea agreement and refused to honor it.

Miles cites the Supreme Court’s decision in Santobello v. New York, 404 U.S. 257 (1971), as support for specific enforcement of the plea agreement. However, in that case the State conceded its inadvertent breach of the plea agreement. Id. In the case before us, the State maintains that Miles was the breaching party. Thus, Santobello v. New York, supra, is inapposite.

The crux of the disagreement between the parties focuses on the interpretation of the word “trial.” Miles suggests that “trial” means only the first of his accomplice’s trials and does not necessarily include subsequent trials on the same issue. The State, on the other hand, contends that “trial” means a full determination of the claims brought into court ending in a judgment that has legal force. Miles also claims that under contract principles, any ambiguity should be construed against the drafter — the State in this case.

When a dispute arises over the meaning of a plea agreement, this court will discern the intent of the parties “as expressed in the plain language of the agreement viewed as a whole.” United States v. Taylor, 258 F.3d 815 (8th Cir. 2001) (citing United States v. Kelly, 18 F.3d 612 (8th Cir. 1994)). Under the circumstances of the plea agreement in this case, we are not persuaded that the word “trial” applies solely to the first trial that ended in a mistrial. Clearly, the intent of the parties was for the testimony to be used in a trial deciding the issue of guilt. Viewing the plain language of the agreement as a whole, we conclude that Miles was obligated to give truthful testimony in a proceeding leading to an adjudication of the legal issues.

Phillips was convicted at the second trial; that is, the issue of guilt was decided at the second trial. By testifying falsely at the accomplice’s second trial, Miles breached the plea agreement, and the State was no longer obligated to abide by its terms. Based upon these facts, we conclude that Miles was not entitled to specific enforcement of the plea agreement under the Supreme Court’s holding in Santobello v. New York, supra.

For the foregoing reasons, the judgment of convictions and sentences are affirmed. The record has been reviewed for other reversible error, as required by Supreme Court Rule 4-3 (h), and none has been found.

Affirmed.

       The factual theories as to Miles’s purpose in firing the weapon are disputed. Miles testified he fired the weapon into the air; whereas, the State argued at trial that he shot at Stalnaker.

         The Phillips conviction was affirmed by this court. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001).


source: Caselaw Access Project

author: Jim Hannah, Justice.

license: Public Domain

text:
    Ada WEBB v. Michael S. BOUTON, M.D., Holt-Krock Clinic, PLC
    01-920
    85 S.W.3d 885
    Supreme Court of Arkansas
    Opinion delivered October 3, 2002

      Law Offices of Charles Karr, P.A., by: Charles Karr and Shane Roughley, for appellant.

      Warner, Smith & Harris, PLC, by: Wayne Harris and G. Alan Wooten, for appellee.
   Jim Hannah, Justice.

Appellant Ada Webb filed this medical malpractice suit against appellees Dr. Michael S. Bouton, a board certified general surgeon, and the Holt-Krock Clinic, the clinic where Dr. Bouton was employed at the time of the alleged malpractice. Webb raises three points on appeal. She argues: (1) that the trial court erred in allowing Dr. Bouton to testify as to the standard of care; (2) that the trial court erred when it allowed Dr. Fengler to testify; and (3) that the jury’s verdict was against the preponderance of the evidence. We find no reversible error, and accordingly, affirm. We have jurisdiction of this matter under Ark. Sup. Ct. R. l-2(a)(l), (b)(1), and (b)(3) (2002).

Facts

On December 29, 1998, Appellant Ada Webb brought suit against Dr. Michael S. Bouton and Holt-Krock Clinic, PLC, for medical malpractice relating to hemorrhoid surgery Dr. Bouton performed on Webb on December 30, 1996.

Webb first saw Dr. Bouton on September 26, 1996, for pain from hemorrhoids. At a follow-up visit on October 10, 1996, Dr. Bouton performed a suction hemorrhoid banding procedure. On October 31, 1996, Webb again saw Dr. Bouton for a follow-up visit. At this visit, she complained of leg pain and back pain, and she spoke to Dr. Bouton about some external skin tags with the hemorrhoids. Webb was still experiencing pain on November 21, 1996, and Dr. Bouton referred her to Dr. Waijh Istanbouli, an internist, for further evaluation.

On December 5, 1996, Dr. Bouton recommended hemorrhoid surgery, which he performed on December 30, 1996. Webb saw Dr. Bouton for follow-ups on January 9, 1997, January 21, 1997, January 27, 1997, and February 24, 1997. Webb complained of persistent pain at all of these visits. Noting that the examination was very painful for Webb on the February 24 visit, Dr. Bouton recommended to Webb that he examine her under anesthesia. Dr. Bouton scheduled the examination for the next day, and Webb failed to appear for the visit.

Webb next went to see Dr. David Flunton. On February 28, 1997, he performed a proctoscopy, sphincterotomy, and cauterization of skin tags. On April 28, 1997, Dr. Hunton excised an anal fistula and external skin tags.

Webb was also evaluated by Dr. John Tedford, a colorectal specialist in Little Rock, and by physicians at the Mayo Clinic in Rochester, Minnesota. Webb alleges that she has continued to suffer from pain, incontinence, and other problems since the December 30, 1996, surgery.

Webb alleged that Dr. Bouton committed malpractice because he performed unnecessary surgery, which exacerbated her pain and problems, and because Dr. Bouton did not consult with a colorectal surgeon before he performed the surgery. The case proceeded to a jury trial, and the jury returned a verdict in favor of Dr. Bouton and the Holt-Krock Clinic.

Dr. Bouton’s Testimony Concerning the Standard of Care

Webb contends that the trial court erred when it allowed Dr. Bouton to testify as an expert witness as to the standard of care because she was prevented from exploring Dr. Bouton’s opinions in discovery. Whether a witness is qualified to testify as an expert upon a particular question is a matter to be decided within the discretion of the trial court. Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986). On appeal, the appellant has the burdensome task of demonstrating that the trial court has abused its discretion. Sims v. Safeway Trails, Inc., 297 Ark. 588, 764 S.W.2d 427 (1989).

Webb alleges that Ark. Code Ann. § 16-114-207(3), under the Medical Malpractice Act, is in conflict with Rule 26 of the Arkansas Rules of Civil Procedure. Webb argues that since a physician cannot be compelled to give expert testimony at trial against himself, a defendant physician should not be allowed to give expert testimony in his favor because a plaintiff cannot discover these opinions. Webb contends that even though Ark. Code Ann. § 16-114-207(3) does not apply to discovery, Ark. R. Civ. P. 26(b)(1) “prohibit[s] the exploration of any expert opinions that a defendant physician might have during discovery.” We note that the record indicates that this argument was not raised at the trial level. We have often stated that an argument not raised below will not be considered for the first time on appeal. Arkansas Blue Cross and Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002); Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001). Accordingly, we do not address the merits of Webb’s argument regarding the alleged conflict between Ark. Code Ann. § 16-114-207(3) and Rifle 26(b)(1) of the Arkansas Rules of Civil Procedure.

Likewise, Webb’s argument that Ark. R. Civ. P. 26(b)(4)(A) would require her to compensate Dr. Bouton for his time spent responding to the discovery was not raised below. Accordingly, we will not address the merits of Webb’s argument regarding Ark. R. Civ. P. 26(b)(4)(A).

Webb further contends that Ark. Code Ann. § 16-114-207 (3) is unconstitutional because it is “fundamentally unfair and violates equal protection because it extends to physicians a privilege which is not extended to any other professional.” She states that “there is no rational basis for allowing defendant physicians the privilege of ‘hiding’ their opinions only to surprise a plaintiff at trial with an additional expert opinion,” and that there is “no opportunity for plaintiffs to prepare for what opinions the defendant may render.” It is impossible for us to address these arguments because Webb failed to include responses to interrogatories in the record, and she failed to include a transcript of Dr. Bouton’s deposition testimony. We can hardly determine whether Dr. Bouton and the Holt-Krock Clinic were able to “hide” their opinions and “surprise” Webb at trial when the record contains no information to support the argument.

In Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989), the court addressed the appellant’s argument that the Medical Malpractice Act was unconstitutional. The court wrote:

Appellant next contends that the entire Arkansas medical malpractice act, Ark. Code Ann. § 16-114-207 to-209 (1987), is unconstitutional. She does not explain how the entire act has adversely impacted upon her, a necessary prerequisite to standing, nor does she cite any authority or make a convincing argument to support her position. She merely takes her position that the act is unconstitutional because it violates various listed provisions of the federal and state constitutions. As we have said many times, assignments of error which are unsupported by convincing argument or authority, will not be considered on appeal unless it is apparent without further research that they are well taken. Knoles v. Salazaar, 298 Ark. 281, 766 S.W.2d 613 (1989).

Goodwin, 300 Ark. at 483. Like the appellant in Goodwin, Webb does not show how Ark. Code Ann. § 16-114-207(3) has adversely impacted upon her. She contends that the statute is unconstitutional, but she neither cites authority nor makes a convincing argument to support her contention. As this court has stated many times, arguments that are unsupported by convincing argument or authority will not be considered on appeal, unless it is apparent without further research that the arguments are well-taken. Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002); Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000).

Testimony of Dr. Fengler

Webb argues that Dr. Fengler’s testimony should have been excluded as cumulative evidence because he, like Dr. Bouton, testified that Dr. Bouton had met the required standard of care. Under Rule 403 of the Arkansas Rules of Evidence, relevant evidence may be excluded if it is deemed to be a needless presentation of cumulative evidence. Ark. R. Evid. 403. The trial court has broad discretion in decisions of admissibility, and we will not reverse its ruling absent an abuse of discretion. National Bank of Commerce v. Beavers, 304 Ark. 81, 802 S.W.2d 132 (1990).

In determining whether expert testimony is cumulative, the court will compare the testimony of the two experts who are presented. See Skokos v. Skokos, 332 Ark. 520, 968 S.W.2d 26 (1998). If the expert witnesses are not so similar in their credentials and approach to the issues, testimony of both experts will not be considered cumulative. Id. Dr. Bouton is a general surgeon, and Dr. Fengler is a colon and rectal surgeon. The two doctors have varied educational and professional backgrounds. Dr. Bouton and Dr. Fengler agree on the issue of whether or not Dr. Bouton met the standard of care. We do not find that Dr. Bouton and Dr. Fengler are so similar in their credentials and approach to the issues that their testimony should be considered cumulative. Even if the evidence were cumulative, we have stated that merely cumulative evidence is not prejudicial. Threadgill v. State, 347 Ark. 986, 69 S.W.3d 423 (2002). An appellant is required to show that cumulative evidence is prejudicial. Id. Webb has failed to show any prejudice that resulted from Dr. Fengler’s testimony. The was no abuse of discretion by the trial court in allowing Dr. Fengler to testify as an expert.

Substantial Evidence

Webb argues that the verdict was against the preponderance of the evidence. Under Ark. R. Civ. P. 59, an appellant may be granted a new trial if “the verdict... is clearly contrary to the preponderance of the evidence or is contrary to the law.” Ark. R. Civ. P. 59(a)(6). A motion for a new trial is not necessary to preserve for appeal an error which could be the basis for granting a new trial. Ark. R. Civ. P. 59(f). Where a motion for a new trial is made for the first time before this court, the standard of review is whether there is substantial evidence to support the verdict. Hall v. Grimmet, 318 Ark. 309, 885 S.W.2d 297 (1994). In Hall, we explained the standard of review for determining whether there was substantial evidence to support the jury verdict. Id. We noted:

Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture. In determining the existence of substantial evidence, we view the evidence in the light most favorable to the party on whose behalf the judgment was entered and give it its highest probative value, taking into account all reasonable inferences deducible from it. In reviewing the evidence, the weight and value to be given the testimony of the witnesses is a matter within the exclusive province of the jury.

Id. at 311 (citations omitted).

We have noted that generally, a defense verdict will always be supported by substantial evidence because the plaintiff has the burden of proof and the jury is the sole judge of credibility of witnesses and the weight and value of the evidence. Anderson v. Graham, 332 Ark. 503, 966 S.W.2d 223 (1998); Morton v. American Med. Int’l, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985). In Morton, we quoted with approval this language from United States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542 (8th Cir. 1958):

Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.

Morton, 286 Ark. at 90. We then went forward in Morton and stated:

The Supreme Court of Missouri correctly stated the common law rule, which also governs in Arkansas, in Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558 (1931): The burden was not on the defendant, but was on the plaintiff to make out the case stated in his petition. In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached.

Morton, supra. We added that we were “not aware of any Arkansas case in which a verdict for a party not having the burden of proof has been set aside in a negligence case solely because it was not supported by substantial evidence.” Id.; see also Anderson v. Graham, 332 Ark. 503, 966 S.W.2d 223 (1998).

There was a dispute between Dr. Bouton’s expert witness, Dr. Fengler, and Webb’s expert witness, Dr. Michael Hellinger, as to whether Dr. Bouton met the standard of care. Also, Dr. Hellinger testified that Webb’s problems were exacerbated by the hemorrhoidectomy performed by Dr. Bouton. On the other hand, Dr. Fengler testified that the problems Webb experienced after the surgery were not directly related to the hemorrhoidectomy. It is well-settled that the weight and value of testimony is a matter that is in the exclusive province of the jury. D.B. Griffith Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d 254 (2002); Ersy v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). There was extensive testimony on both sides and substantial evidence for the jury to find in Dr. Bouton’s favor.

Webb further contends that Dr. Fengler’s testimony caused the jury to speculate, and that he “only offered possibilities which are not evidence at all.” She argues that Dr. Fengler’s testimony that fissures “can happen based upon constipation that may happen after any surgery” is speculation as to causation because Dr. Fengler could not state with any degree of medical certainty what was causing Webb’s problems.

To support her proposition, Webb cites Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993), where the Tennessee Supreme Court held:

Thus, proof of causation equating to a “possibility,” a “might have,” “may have,” “could have,” is not sufficient, as a matter of law, to establish the required nexus between the plaintiffs injury and the defendant’s tortious conduct by a preponderance of the evidence in a medical malpractice case. Causation in fact is a matter of probability, not possibility, and in a medical malpractice case, such must be shown to a reasonable degree of medical certainty.

Kilpatrick, 868 S.W.2d at 602 (citations omitted).

Webb is mistaken as to who has the burden of proof. In a medical malpractice action, the plaintiff must prove the applicable standard of care, that the medical provider failed to act in accordance with that standard, and that such failure was a proximate cause of the plaintiffs injuries. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996); Ark. Code Ann. § 16-114-206 (Michie 1987). Dr. Bouton contends, and we agree, that it was not up to him, as a defendant, or Dr. Fengler, as a defense expert witness, to establish causation at trial. The burden of proof to establish causation was upon Webb, the plaintiff. This argument has no merit.

Affirmed.


author: Per Curiam.

text:
    Rickey NEWMAN v. STATE of Arkansas
    CR 02-811
    85 S.W.3d 883
    Supreme Court of Arkansas
    Opinion delivered October 3, 2002

      Robert C. Marquette, for appellant.
    No response.
   Per Curiam.

Robert C. Marquette, a state-salaried, full-time public defender for the Twenty-First Judicial District, was appointed by the trial court to represent Appellant Rickey Newman, an indigent defendant, on the charge of capital murder. Following a trial, Newman was convicted of the charge and sentenced to death. A timely notice of appeal was filed by the circuit clerk, pursuant to Ark. R. App. P. — Crim. 10, and the record was timely lodged in this court.

On August 9, 2002, Mr. Marquette filed a motion to be relieved as attorney for Newman on appeal, pursuant to this court’s holdings in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), and Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000) (per curiam). We denied the motion because Mr. Marquette failed to indicate whether he is provided a state-funded secretary. Fie has since filed a new motion stating that he does have a full-time, state-funded secretary, which would prevent him from receiving compensation for appellate work. See Ark. Code Ann. § 19-4-1604(b)(2)(B) (Supp. 2001). Accordingly, we now grant Mr. Marquette’s motion to be relieved for good cause shown. See Jones v. State, 349 Ark. 734, 82 S.W.3d 827 (2002) (per curiam); Williams v. State, 347 Ark. 369, 65 S.W.3d 401 (2002) (per curiam).

We hereby appoint Linda Scribner to replace Mr. Marquette in this appeal. Appointed counsel does not serve as a representative of Newman, but rather, will assist this court in its mandatory review, pursuant to Rule 10. See State v. Robbins, 340 Ark. 255, 9 S.W.3d 500 (2000) (per curiam). Specifically, appointed counsel shall abstract the record and assist this court in determining: (1) whether, pursuant to Ark. Sup. Ct. R. 4-3(h) and Ark. Code Ann. § 16-91-113(a) (1987), any errors raised in the trial court are prejudicial to the defendant; (2) whether the trial court failed in its obligation to bring to the jury’s attention a matter essential to its consideration of the death penalty; (3) whether the trial judge committed prejudicial error about which the defense had no knowledge and therefore no opportunity to object; (4) whether the trial court failed in its obligation to intervene without objection to correct a serious error by admonition or declaring a mistrial; (5) whether the trial court erred in failing to take notice of an evidentiary error that affected a substantial right of the defendant; (6) whether the evidence supports the jury’s finding of a statutory aggravating circumstance or circumstances; and (7) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. See Rule 10.

Motion granted.


text:
    Antonio Dewayne WALKER v. STATE of Arkansas
    CR 02-955
    85 S.W.3d 919
    Supreme Court of Arkansas
    Opinion delivered October 3, 2002

      Robert L. Scull, for appellant.
    No response.
   Per Curiam.

Antonio DeWayne Walker, by his attorney, has filed a motion for rule on the clerk. His attorney, Robert L. Scull, admits in his motion that the record was tendered more than seven months beyond date of the original judgment due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.

       The notice of appeal was not filed before entry of the original judgment. Thus, the notice of appeal would not be treated as filed on the day after judgment is entered pursuant to Ark. R. App. P. — Crim. 2(b)(l)(2002).


author: Tom Glaze, Justice.

text:
    Brandy STEPHENS and Linda Hensley v. Robert PETRINO, M.D., Jack Alston, M.D., and Richard McVay, M.D.
    01-1082
    86 S.W.3d 836
    Supreme Court of Arkansas
    Opinion delivered October 10, 2002
    [Petition for rehearing denied November 21, 2002.]

      Taylor Law Firm, by; Timothy L. Brooks, for appellant.

      Roy, Lambert & Lovelace, by; Robert J. Lambert, Jr. and James H. Bingaman, for appellees Robert Petrino and Jack Alston.

      Bassett Law Firm, by: Walker Dale Garrett and Shannon L. Fant, for appellee Richard McVay.
   Tom Glaze, Justice.

This is a medical malpractice action in which we are called on to further develop and interpret the relationship between Ark. R. Civ. P. 15, governing the relation back of amendments to pleadings, and Ark. Code Ann. § 16-56-125 (1987), the so-called “John Doe” statute. Jurisdiction is proper in this court under Ark. Sup. Ct. R. l-2(b)(6).

The appellants in this case are Brandy Stephens and her mother, Linda Hensley. Brandy suffered from a growth on her thyroid, and underwent a thyroid lobectomy surgery to correct the situation. The surgery took place on October 26, 1994. After the surgery, Brandy began having trouble swallowing, and her face and throat began swelling. A barium swallow study indicated that she had a leak in her esophagus. Her surgeons, Dr. Robert Petrino and Dr. Jack Alston, immediately performed emergency surgery on October 28, 1994, to correct the condition, and discovered during the surgery that Brandy’s esophagus had been perforated during the earlier surgery, although the perforation had not been discovered at that time.

On October 24, 1996, Brandy and her mother filed a lawsuit against Drs. Petrino and Alston, as well as their clinic, Northwest Arkansas Surgical Clinic (NASC), Siloam Springs Memorial Hospital, and “John Doe.” In her original complaint, Brandy alleged that Dr. Petrino had been negligent in perforating Brandy’s esophagus during the surgery, in failing to detect the perforation both during surgery and for a reasonable time afterward, and in failing to inform Brandy of the risks of the procedure. Brandy alleged alternatively that, if Dr. Petrino did not admit to being the person who perforated Brandy’s esophagus, Dr. Alston, as Dr. Petrino’s assistant, was the person responsible. Further, Brandy also stated that, if Drs. Petrino and Alston denied liability, then “in the alternative, an employee, agent, or other member of the hospital staff in the operating room, must have been responsible for perforating [Brandy’s] esophagus.” Finally, Brandy’s complaint named “John Doe” defendants pursuant to Ark. Code Ann. § 16-56-125 (1987), alleging that there were persons “presently unidentified and unknown . . . [who were] ultimately attributed, during the course of discovery, to have been the personfs] or parties] responsible for the perforation of [Brandy’s] esophagus.”

Following a period of discovery, Brandy filed a third amended complaint on November 15, 1999, naming, for the first time, Richard McVay, the Certified Registered Nurse Anesthetist (“CRNA”) who provided anesthesia services to Brandy during her surgery. In her third amended complaint, Brandy averred that she and her mother were substituting McVay for one of the pseudo-named John Doe defendants. Brandy specifically alleged that Drs. Petrino and Alston denied that they perforated Brandy’s esophagus, and had, during the course of discovery, “alluded to or opined that the tear in the esophagus occurred during, or is at least consistent with, a perforation that can occur during the course of intubation prior to surgery. Mr. McVay, the CRNA, was responsible for the intubation of Ms. Stephens immediately prior to her surgery.” Brandy also asserted that her surgeons had testified that some unknown third party, presumably a medical student, was present in the operating room and was apparently learning how to intubate a patient; both doctors had stated that this person •“appeared to be having some difficulty with the intubation process.” Brandy’s complaint further asserted that she never consented to the student’s participation in her surgery, and she additionally alleged that Dr. Petrino, as the primary surgeon, was vicariously liable for the conduct of any students or other observers in the operating room whose conduct injured her.

Pleading in the alternative, in her third amended complaint, Brandy alleged that, if Drs. Petrino and Alston were not responsible for perforating Brandy’s esophagus, then McVay, the CRNA, was negligent for the following: 1) perforating her esophagus; 2) failing to detect the perforation during surgery or afterwards; 3) failing to inform Brandy of the risk of esophageal perforation; or 4) failing to obtain Brandy’s consent for the participation of the medical student, for whom McVay was vicariously liable.

McVay answered Brandy’s amended complaint by asserting that his identity and involvement in the provision of anesthesia had been known to Brandy since the time of her surgery, because his name was on Brandy’s medical records and the operative report that was produced on October 26, 1994. For this reason, McVay rejoined that he was not properly a “John Doe” defendant, and the two-year statute of limitations had expired as to him. McVay also specifically denied liability for perforating Brandy’s esophagus, and he denied that anyone acting under his control or supervision failed to meet the applicable standards of care.

On December 13, 1999, McVay filed a motion for summary judgment, asserting that the two-year statute of limitations for medical malpractice actions had expired as to him, since Brandy had delayed naming him as a defendant for more than five years from the date of the surgery. McVay contended that, under Ark. R. Civ. P. 15, which permits the relation back of claims when the party to be added has received notice within the statute of limitations, he received no such notice and was entitled to a judgment as a matter of law. ‘ The trial court agreed, and granted McVay’s motion for summary judgment on April 10, 2000, finding that at the time of Brandy’s surgery, Brandy and her mother were aware of the identity and participation of both McVay and the medical student, so their complaint against him was barred by the statute of limitations.

On June 19, 2000, Drs. Petrino and Alston filed a motion for partial summary judgment, alleging there was no genuine issue as to any material facts regarding their liability based upon the actions or inactions of Greg Millnamow, the medical student who had been one of the unnamed John Doe defendants. The two surgeons argued that, since Millnamow’s identity had been known since the operative report was filed, he could not be an unnamed John Doe defendant, and the statutes of limitations had expired as to him. Further, because Brandy alleged that the surgeons were vicariously liable for Millnamow’s actions, and since the statute had expired, there could be no supportable cause of action against the surgeons for Millnamow’s actions. In addition, the doctors contended that Brandy’s original pleadings did not impute any of McVay’s negligence to them, or argue that they were negligent in their supervision of McVay, so any new allegation that they were liable via McVay would be barred by the statute of limitations, and by the fact that McVay had been dismissed from the lawsuit.

In response, Brandy filed a fourth amended complaint on June 28, 2000, specifically alleging that the surgeons were vicariously liable for the conduct of McVay and any medical student who had been in the operating room. The doctors filed a motion to dismiss this complaint on July 5, 2000, urging that the new vicarious liability allegations constituted a new cause of action that could not relate back to the original complaint. The trial court initially denied this motion, finding that the fourth amended complaint did not raise a completely new cause of action.

Drs. Petrino and Alston then filed a third-party complaint against McVay, seeking contribution and indemnification in the event a jury should determine that McVay was guilty of negligence and that negligence should be imputed to the doctors. In his answer, McVay denied that he was in any way responsible for Brandy’s injuries, and asserted that the statute of limitations constituted an affirmative defense to any third-party claims. McVay also moved for summary judgment on the third-party complaint, contending that Brandy’s cause of action for vicarious liability was barred by the statute of limitations. The doctors also filed a motion for partial summary judgment on February 15, 2001, in which they argued that McVay’s earlier dismissal from the lawsuit eliminated Brandy’s theory of vicarious liability.

Following a hearing, the trial court granted McVay’s motion for summary judgment, dismissed the fourth amended complaint as it related to the issues of vicarious liability, and dismissed the third-party complaint of the surgeons against McVay. Specifically, the court found that Brandy’s allegation of vicarious liability was a separate and distinct cause of action from the original allegations, and it was not brought against the defendants within the applicable statute of limitations. Further, since McVay had previously been dismissed as a party, the court found the surgeons could not be held vicariously liable for McVay’s acts.

The case proceeded to jury trial on March 5, 2001, and the jury found in favor of Drs. Petrino and Alston. From that jury verdict, Brandy brings this appeal. For her first point, Brandy asserts that the trial court erred in granting McVay’s motion for summary judgment on the grounds that he could not be substituted for a John Doe defendant under § 16-56-125. Our standard of review for summary judgment cases is well-established. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. City of Barling v. Fort Chaffee Redev. Auth., 347 Ark. 105, 60 S.W.3d 443 (2001). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001).

Here, the trial court granted McVay’s motion for summary judgment upon finding that Brandy had known of McVay’s involvement since the day of the surgery. In addition, the court found that McVay’s participation and role in the surgery were such that they could have been discovered during the two-year statute of limitations period. Therefore, the trial court concluded that, because the John Doe statute does not apply to situations where a plaintiff knows the identity of persons involved in the incident, Brandy made a strategic decision not to name McVay in the original complaint, and thus, the statute of limitations had expired as to him. The trial court was correct.

The John Doe statute provides as follows:

(a) For the purposes of tolling the statute of limitations, any person, firm, or corporation may file a complaint stating his cause of action in the appropriate court of this state, whenever the identity of the tortfeasor is unknown.
(b) (1) The name of the unknown tortfeasor shall be designated by the pseudo-name John Doe or, if there is more than one (1) tortfeasor, John Doe 1, John Doe 2, John Doe 3, etc.
(2) Upon determining the identity of the tortfeasor, the complaint shall be amended by substituting the real name for the pseudo-name.
(c) It shall be necessary for plaintiff or plaintiff’s attorney to file with the complaint an affidavit that the identity of the tortfeasor is unknown before this section shall apply.

Brandy asserts that the surgeons answered the complaint by accusing some third party over whom they had no control, and never attempted to name that third party throughout discovery, until their depositions in August of 1999 — nearly five years after Brandy’s surgery. Only at that time did Drs. Petrino and Alston suggest that Brandy’s esophagus had been perforated by an unknown medical student who was learning how to intubate a patient. Therefore, it was not until the third amended complaint, filed on November 15, 1999, that Brandy named McVay as a defendant and substituted him for one of the John Doe defendants.

In her appeal, Brandy frames the issue as being whether or not the John Doe statute applies to persons whose “identities” are unknown, or whether the statute applies to persons whose identity as a “tortfeasor” is unknown. She states that, while she knew McVay as a softball coach, and as the person who would be responsible for anesthetizing her during her operation, she did not know that McVay was a “tortfeasor,” or an individual who had committed a tort upon her. Because she did not know that he was a “tortfeasor,” and did not find out that he might have been a “tortfeasor” until she took the depositions of Drs. Petrino and Alston, after the statute of limitations had expired by three years, then she should have been permitted to substitute McVay for one of the unknown, unnamed John Doe defendants listed in her original complaint.

The only Arkansas case on the subject of the John Doe statute is Harvill v. Community Methodist Hospital Assn, 302 Ark. 39, 786 S.W.2d 577 (1990). In Harvill, the plaintiff Harvill sued her employer, Arkansas Methodist Hospital, for breach of contract and the tort of outrage. The hospital moved to dismiss, contending that it was a non-profit entity and therefore immune from suit. Harvill responded, stating that if the hospital were immune, she would amend her complaint to sue the hospital’s insurer directly. During discovery, Harvill learned that the hospital was insured by St. Paul Fire & Marine Casualty Co. St. Paul moved for summary judgment on the basis that there was no contract for the hospital to have breached. The trial court granted this motion, Harvill appealed, and the court of appeals affirmed.

On remand, Harvill amended her original complaint and readopted her earlier pleadings, but directed them against the insurer. St. Paul moved to dismiss the complaint, maintaining that the action was barred by the statute of limitations; the trial court granted the motion. On appeal, Harvill argued that the trial court erred in failing to allow her amended complaint to “relate back,” pursuant to Rule 15, to the filing of her original complaint. Alternatively, she argued that she should have been able to substitute St. Paul because she filed a John Doe pleading in her original complaint. This court rejected Harvill’s argument, stating the following:

John Doe pleadings are for actions against a tortfeasor whose identity is unknown. John Doe pleadings, however, are of no assistance to the appellant because before a real party can be substituted for a “Doe” defendant in the original complaint, such pleadings must still meet the requirements of [Ark. R. Civ. P.] 15(c).

Harvill, 302 Ark. at 46.

In order for a party to avail herself of Rule 15(c)’s relation-back provision, the facts must show four things: (1) that the claim must have arisen out of the conduct set forth in the original pleadings; (2) the party to be brought in must have such notice of the institution of the action that it would not be prejudiced in maintaining a defense on the merits; (3) the party must have known, or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against it; and (4) the second and third requirements must have been filled within 120 days of the filing of the original complaint. Harvill, supra (citing Schiavone v. Fortune, 477 U.S. 21 (1986)) (emphasis added); see also George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999).

In George, the plaintiff sued Jefferson Hospital Association in a medical malpractice action. She also filed a direct action against the hospital’s insurer, St. Paul, but did so by amending her original complaint against the hospital after the statute of limitations had expired. The trial court granted St. Paul’s motion for summary judgment, finding that the action was time-barred because the complaint did not relate back under Rule 15(c). George, 337 Ark. at 215.

In affirming, the George court concluded that the plaintiff, George, had met the first and second requirements, because the events leading to both claims were identical, and because the hospital’s insurer, against whom an amended claim was asserted, had notice of the action since its inception. Id. at 216. However, this court concluded that George had not established that St. Paul knew that George’s omission of it from the complaint was a mistake of identity as to the proper party, holding as follows:

[I]t is apparent that [George’s] mistake . . . was not as to St. Paul’s identity but in her decision to not file immediately against the insurer as well as the hospital. [George] does not contend she did not have the correct identity for the insurance company. [George] argues instead that she believed suing St. Paul prior to judicial determination of its charitable status ivas legally perilous. [George] believed it could have resulted in the dismissal of both actions in a kind of legal “catch-22. ” This argument is meritless. [George] could have sued both initially and through alternative pleading and not have jeopardized [her] claim against either the hospital or its insurer. This court’s decision in Harvill v. Community Methodist Hosp. Ass’n, 302 Ark. 39, 786 S.W.2d 577 (1990), is dispositive of this issue. There, as here, [plaintiff Harvill] sought relation back under Rule 15(c) contending a mistake of identity had occurred. The court construed the meaning of “mistake concerning identity” relying on federal cases construing the similar federal provision. This court held that what [Harvill] contended ivas a mistake of identity was really a conscious and deliberate strategical decision. Id. at 43. In the instant case, St. Paul had no reason to believe that George was mistaken as to its identity as JRMC’s insurance company. It could only presume that [George’s] litigation decision not to sue it was a purposeful calculation, mistaken perhaps, as to its consequence but not as to its choice of parties.

Id. at 216-17 (emphasis added).

The situation described in George is almost exactly the same as that presented in the instant case. Brandy knew of McVay’s existence when she originally filed her lawsuit: he spoke to her before the procedure and explained that he would be the one intubating her for the anesthesia, and his name was on the operative report prepared on the day of the surgery. Further, Brandy’s mother, Linda, testified at deposition that she had asked Dr. Petrino whether or not the anesthetist had torn open her esophagus. Thus, it is clear that Brandy and her mother were aware that McVay could — and should — have been specifically named as a defendant from the outset of this case, and the failure to name McVay in the original complaint was not a mere “mistake of identity.” Brandy’s reading-of the John Doe statute is incorrect — the statute allows a complaint to be filed when the plaintiff cannot identify the tortfeasor, and does not know his name.

Brandy attempts to raise an argument that, pursuant to Ark. R. Civ. P. 11, she could not, in good faith, have named McVay as a defendant, because she could not have named as a defendant every person who came into contact with her in the operating room. However, given the facts of this case, there was a reasonable, good-faith basis for naming McVay in the original complaint, and it is unlikely counsel would have faced any Rule 11 sanctions for so naming him. In any event, even if the John Doe statute were to apply in this case, Brandy failed to comply with the strictures of Rule 15 so as to permit the amended complaint to relate back to the time of the filing of the first complaint. Therefore, the trial court did not err in granting McVay’s motion for summary judgment on the basis of the statute of limitations.

For her second point on appeal, Brandy contends that the trial court erred in granting the summary judgment motions of both McVay and the surgeons on the basis of a finding that the vicarious liability count did not relate back to the original complaint. Rule 15(a) vests broad discretion in the trial court and the exercise of that discretion will be sustained unless it is manifestly abused. Thompson v. Dunn, 319 Ark. 6, 889 S.W.2d 31 (1994).

Although the parties focus their arguments on the question of whether or not vicarious liability constitutes a new and distinct cause of action from direct liability, and whether the same conduct that gives rise to direct liability can also lead to a claim of vicarious liability, we believe that this issue is more easily answerable in the following way. The trial court had previously dismissed McVay from the lawsuit when it granted his motion for summary judgment and found that any complaint against McVay would be time-barred. It is well-settled that when an employee has been released or dismissed, and the employer has been sued solely on a theory of vicarious liability, any liability of the employer is likewise eliminated. Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999); see also Baker v. Radiology Assocs., P.A., 72 Ark. App. 193, 35 S.W.3d 354 (2000); Rhodes v. Progressive Cas. Ins. Co., 36 Ark. App. 183, 820 S.W.2d 293 (1991). Therefore, the trial court did not err in granting summary judgment on the issue of vicarious liability.

Finally, Brandy contends that the trial court erred in granting a motion in limine, filed by Drs. Petrino and Alston, whereby Brandy was precluded from introducing any testimony that could have led to an inference that the surgeons were vicariously liable for the actions of anyone else in the operating room. At the hearing on the motion, counsel for the doctors argued that, since the court had already granted the motion for summary judgment with respect to the vicarious liability allegation, it would be improper for Brandy to elicit any testimony regarding the doctors’ responsibility to supervise McVay. In response, Brandy’s attorney conceded that he could not delve into anything regarding vicarious liability, but counsel insisted that he should still be able to raise the issue of whether or not the doctors had a responsibility to supervise McVay and whether or not they had negligently supervised him. However, the trial court agreed with defense counsel that negligent supervision had never been raised or pled, and therefore concluded that it would grant the motion in limine.

We will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 162 (2000); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). Under Ark. R. Evid. 402, irrelevant evidence is inadmissible. Here, the trial court had already dismissed Brandy’s theory of vicarious liability, as well as any claims of liability on the part of McVay. Therefore, any question concerning the doctors’ supervision of McVay was irrelevant, and the trial court clearly did not abuse its discretion in excluding any testimony on this issue. Negligent supervision had never been raised or pled in any of the pleadings.

At the conclusion of her brief, Brandy raises two additional arguments that 1) the trial court erred in denying her motion in limine, regarding the deposition testimony of her expert, Dr. Gerald Kaufer, wherein she sought to exclude his statement that he did not learn until just before his testimony that McVay had been dismissed from the lawsuit; and 2) the court erred in rejecting her res ipsa loquitur instruction. However, she offers no real argument, and certainly no authority on these questions, nor does she demonstrate how she was prejudiced by these alleged errors. Therefore, we do not consider them further.

Affirmed.

       For simplicity, only Brandy is mentioned on occasion, when both she and her mother are intended.


author: Donald L. Corbin, Justice.

text:
    Linda STROMWALL, Ken Sauer, Don McIntosh, and Wilma McIntosh v. CITY of SPRINGDALE PLANNING COMMISSION
    01-1324
    86 S.W.3d 844
    Supreme Court of Arkansas
    Opinion delivered October 10, 2002

      The Evans Law Firm, P.A., by: Karen Pope Greenaway, for appellants.

      Ernest B. Cate, Deputy City Attorney, for appellee.
   Donald L. Corbin, Justice.

Appellants Linda Stromwall, Ken Sauer, Don McIntosh, and Wilma McIntosh appeal the order of the Washington County Circuit Court dismissing their appeal of the April 3, 2001, action by Appellee City of Springdale Planning Commission. The trial court found that Appellants lacked standing to appeal the Commission’s action. This case was certified to us from the Arkansas Court of Appeals pursuant to Ark. Sup. Ct. R. l-2(d). For the reasons set out below, we dismiss the appeal because the Commission’s action was not final.

The record reflects that on April 3, 2001, Appellee City of Springdale Planning Commission approved a large scale development and preliminary plat on a proposed mobile-home park called “The Commons.” The meeting was open to the public. During the meeting, the Commission heard comments and made motions regarding particular details of the development. The record does not contain any formal order reflecting what action the Commission took during that meeting; however, the record contains a certified copy of the minutes of the meeting. Those minutes reflect that the Commission discussed various aspects of the development, including the width of the streets; whether the streets would be private or public; the width and location of a sidewalk; the number of single and double-wide units; and the distance between the mobile homes. Following the discussion on each particular item, motions were made to adopt the developer’s proposal, and the motions were seconded. Each of the motions were then put to a vote of the members, and each motion was approved. At the conclusion of the meeting, member Bob Collins moved to approve the large scale development subject to staff recommendation. Collins’s motion was seconded and approved by a majority of the members, with one member abstaining.

Appellants brought their appeal pursuant to Ark. Code Ann. § 14-56-425 (R.epl. 1998), which provides:

In addition to any remedy provided by law, appeals from final action taken by the administrative and quasi-judicial agencies concerned in the administration of this subchapter may be taken to the circuit court of the appropriate county where they shall be tried de novo according to the same procedure which applies to appeals in civil actions from decisions of inferior courts, including the right of trial by jury. [Emphasis added.]

Under this section, only final actions taken by a planning commission are appealable. Thus, as a threshold matter, we must determine whether the action taken by the Commission on April 3, 2001, is a final action subject to appeal. Although neither side has raised this issue, we must raise it on our own because it concerns the circuit court’s jurisdiction to hear the case and, in turn, our jurisdiction. See, e.g., Harold Ives Trucking Co. v. Pro Transp., Inc., 341 Ark. 735, 19 S.W.3d 600 (2000) (per curiam); Barclay v. Farm Credit Servs., 340 Ark. 65, 8 S.W.3d 517 (2000).

Section 14-56-425 does not define the term “final action.” However, this court has previously addressed that term in the context of a civil-rights claim. In Ford v. Arkansas Game & Fish Comm’n, 335 Ark. 245, 979 S.W.2d 897 (1998), this court held that the appellant’s claim was not ripe because the commission had not taken any final action regarding his hunting and fishing licenses. This court relied on the Supreme Court’s discussion of final administrative action in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). There, the Court wrote that “the finality requirement is concerned with whether the initial decision maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury[.]” Ford, 335 Ark. at 253, 979 S.W.2d at 901 (quoting Williamson, 473 U.S. at 193).

In other contexts, this court has held that the test of finality and appealability of an order is whether the order puts the court’s directive into execution, ending the litigation or a separable branch of it. Farm Bureau Mut. Ins. Co. v. Running M Farms, Inc., 348 Ark. 313, 72 S.W.3d 502 (2002). Thus, for an order or action to be final, it must terminate the action, end the litigation, and conclude the parties’ rights to the subject matter in controversy. Id; Beverly Enters.-Ark., Inc. v. Hillier, 341 Ark. 1, 14 S.W.3d 487 (2000). Where further proceedings are contemplated, which do not involve merely collateral matters, the order or action is not final. Harold Ives Trucking Co., 341 Ark. 735, 19 S.W.3d 600. Based on these principles of finality, we conclude that the action taken by the Commission was not a final action subject to appeal under section 14-56-425.

During the April 3, 2001, meeting, several comments were made by Planning Director Patsy Christie indicating that the Commission’s actions had yet to become final or adopted as to the proposed development. The minutes of the meeting reflect the following discussions:

Patsy Christie: Ok, so your proposing that you would make part of this development plan that that agreement with the police department would be in place for assistance in regulating parking on streets. That is gona [sic] be part of your agreement? . . .
Lynn Williamson: This is written into the draft of our agreement of our agreements.
Patsy Christie: Ok, and that would be submitted to go in as the Final Development Plan?
Lynn Williamson: That’s right.
Patsy Christie: It would remain a private street. That’s what they’re proposing and that would be a means of addressing the parking problems and those kind of things.
Bob Collins: I think I would feel better if we had a Bill of Assurance or a bond that their gona [s/c] perform their duty.
Patsy Christie: Well, when we adopt the Final Development Plan with the plat it sets the conditions of what has to take place in this Planned Unit Development. . . .
Patsy Christie: Ok, the next item is the model home temporary marketing office. It’s a little bit early to be dealing with that yet because they haven’t even started the infrastructure, they’ll come back with a Conditional Use request for a model home temporary marketing office when we get to that point and so that one just stays on the table.
Patsy Christie: . . . Now the drainage issues still haven’t been addressed. You haven’t submitted a final drainage report?
Lynn Williamson: We have made the, we have made the corrections to allow the drainage, the final. . . .
Patsy Christie: You’ve put easements on there but you don’t, the drainage hasn’t been decided.
Lynn Williamson: We don’t know what size they’ll be.
Patsy Christie: And they would not get final plat approval until the drainage has been installed, designed and approved.
Patsy Christie: . . .The street names, as we discussed yesterday, we need to revisit the issue of the street names and make sure we get approval by planning and police and fire and the postal service.
And then, the Final Plat has to be approved before you get any permits to set any manufactured homes out there.
Lynn Williamson: That’s right.
Patsy Christie: I think that’s everything on the list.
Secretary Schneider: Think that’s everything?
Patsy Christie: Now we’re gona [he] take comments before we accept the whole thing. [Emphasis added.]

The secretary then asked if anyone present had any comments on the issue. There were none. At that point, Commission member Collins made “a motion to approve the Large Scale Development subject to staff recommendations.” (Emphasis added.) That motion was seconded and approved by all but one of the Commission’s members.

The foregoing record demonstrates, at a minimum, that the Commission did not believe that it was taking final action in regard to plat approval for the development. The minutes reflect that further action in this matter is contemplated by the Commission, and that there are still outstanding issues to be determined before the developers receive final plat approval. Accordingly, the action taken by the Commission on April 3, 2001, is not a “final action” within the meaning of section 14-56-425. Were we to conclude otherwise, we would be effectively approving the piecemeal appeal of every preliminary or conditional decision made by a planning commission. This was clearly not the intent of the legislature when it provided for appeals only from a “final action” taken by administrative and quasi-judicial agencies. Because the Commission’s ruling on April 3, 2001, was not a final action within the meaning of section 14-56-425, the circuit court lacked jurisdiction of the appeal and, consequently, this court lacks jurisdiction. We therefore dismiss the appeal.


author: Annabelle Clinton Imber, Judge.

text:
    NATIONAL FRONT PAGE, LLC, and Curtis E. Venn, Individually, and in His Capacity as Owner and Operator of National Front Page, LLC, Jointly and Severally v. STATE of Arkansas, ex rel. Mark Pryor, Attorney General
    01-1079
    86 S.W.3d 848
    Supreme Court of Arkansas
    Opinion delivered October 10, 2002

      Hampton & Larkowski, by: Jerry Larkowski, for appellant.

      Mark Pryor, Att’y Gen., by: James DePriest, Senior Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Judge.

This case calls into question a circuit court’s authority under Ark. R. Civ. P. 37(d) (2002) to issue sanctions, including a default judgment, based on a party’s failure to timely respond to discovery requests. The appellants, National Front Page, LLC, and Curtis E. Venn, individually and as owner and operator of National Front Page (hereinafter referred to as “NFP”), contend that the circuit court abused its discretion in granting default judgment after they not only failed to respond to interrogatories and requests for production, but also after they (a) failed to appear at the hearing on the State’s motion to compel discovery and (b) refused to appear on the date set for trial. We disagree and affirm.

On April 13, 1999, the Attorney General for the State of Arkansas filed suit against NFP alleging violation of the Arkansas Deceptive Trade Practices Act, the Arkansas Telemarketer Registration Act, and common law fraud in connection with NFP’s practice of soliciting businesses to purchase advertising for sports-related activity calendars. On February 4, 2000, the State served NFP with interrogatories and requests for production of documents. When NFP failed to respond to the State’s discovery requests by March 16, the State sent a letter to NFP’s attorney in which it expressed a willingness to consider settlement if specified disclosures and admissions were made. The State then filed a motion to compel discovery on June 14, 2000, pursuant to Ark. R. Civ. P. 37(a)(2) (2002). During June, July, and August 2000, NFP filed its own requests for discovery, and the State responded to those requests. Meanwhile, NFP had not yet responded to the State’s discovery requests.

A hearing on the State’s motion to compel discovery was set originally for July 18, 2000, but NFP requested and obtained a postponement. The hearing was rescheduled for August 29, 2000, with the trial being set for November 20-21, 2000. Because of a conflict with another hearing scheduled in a separate action pending in Missouri, NFP requested a second postponement that was granted, and the circuit court rescheduled the hearing on discovery for September 29, 2000. Once again, the hearing was postponed a third time at NFP’s request until three days before the scheduled trial date. Shortly before the November 17 hearing date, NFP conferred with the Attorney General’s office about securing a continuance. Although both parties requested a continuance, the circuit court denied the request and notified them by letter dated November 15, 2000, that the hearing would still be held on November 17, followed by the trial previously scheduled to begin on November 20. On the same day that the trial court sent the above written notice to the parties, NFP faxed the following message to the court and the Attorney General’s office: “The attorney I hired has backed out on me and I will not face the big bad boys without attorney representation on Friday 17th or Monday 20th.” NFP did not appear at the November 17 hearing on the State’s motion to compel, whereupon the State made an oral motion for default judgment pursuant to Rule 37(d) of the Arkansas Rules of Civil Procedure.

The circuit court granted the State’s motion and entered default judgment against NFP on November 22, 2000. In striking NFP’s original answer and entering a judgment by default pursuant to Ark. R. Civ. P. 37(b)(2)(C) and 37(d), the court noted that NFP had failed to respond to any of the State’s discovery requests, that NFP’s counsel had been allowed to withdraw in June, that the motion-to-compel hearing had been postponed three times at NFP’s request, and that NFP had advised the court it would not appear at the hearing on November 17, 2000, or at the trial on November 20-21, 2000. The default judgment enjoined NFP from engaging in certain business activities in Arkansas and set a hearing on March 8, 2001, to determine the amount of restitution, civil penalties, and attorney’s fees and costs. NFP then filed a pro se notice of intent to appeal on December 22, 2000. Later, after retaining counsel, NFP moved to set aside the default judgment.

After the March 8, 2001 hearing, the circuit court entered its final judgment and permanent injunction on April 3, 2001. The circuit court (1) denied NFP’s motion to set aside the default judgment; (2) permanently enjoined NFP from doing business of any kind in Arkansas; (3) ordered restitution in the amount of $2,497.45; (4) awarded $14,000 in attorneys fees; and (5) assessed civil penalties totaling $26,000 that would be reduced to $5,000, provided NFP paid restitution within ten days. NFP filed a notice of appeal on April 30, 2001.

On appeal, NFP contends it had a justifiable excuse for failing to appear at the motion-to-compel hearing because it did not have counsel and mistakenly thought that the November hearing and trial would be postponed. Furthermore, NFP contends the State did not comply with Rule 55 of the Arkansas Rules of Civil Procedure because no order compelling discovery was ever issued and NFP was not given notice that a default judgment could result from its failure to comply. As an initial matter, NFP did not argue any Rule 55 violations to the trial court. It is well settled that an appellant may not change the basis for its arguments or raise issues for the first time on appeal. Grandjean v. Grandjean, 315 Ark. 620, 869 S.W.2d 709 (1994). Furthermore, we have held that Rule 55 requirements do not apply to Rule 37 sanctions. Viking Ins. Co. of Wisconsin v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992). Therefore, NFP’s arguments based on Ark. R. Civ. P. 55 are not preserved for appeal and are not relevant to the Rule 37 sanctions at issue in this case.

I. Standard of Review

The imposition of sanctions for the failure to make discovery rests in the trial court’s discretion. Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989). We have repeatedly upheld a trial court’s exercise of discretion in granting severe Rule 37 sanctions for flagrant discovery violations. Viking Ins. Co. of Wisconsin v. Jester, supra. The circuit court need not find a willful or deliberate disregard of discovery rules before imposing Rule 37 sanctions. Calandro v. Parkerson, 333 Ark. 603, 970 S.W.2d 796 (1998).

II. Authority to Issue Rule 37(d) Sanctions

The first question is whether the circuit court had the authority to issue sanctions, including default judgment, under Rule 37 (d) of the Arkansas Rules of Civil Procedure. The answer to this question requires interpretation of our rules of civil procedure. We construe rules using the same means, including canons of construction, that are used to interpret statutes. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002); Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000). The first rule in considering the meaning and effect of a statute or rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. When the language is plain and unarm biguous, there is no need to resort to rules of statutory construction. Yamaha Motor Corp., U.S.A. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001).

Rule 37 of the Arkansas Rules of Civil Procedure provides in pertinent part as follows:

Rule 37. Failure to make discovery; sanctions.
(a) Motion for Order Compelling Discovery. A party, upon reasonable notice to all parties and all persons affected thereby, may apply for an order compelling discovery as follows:
* * * *
(2) Motion. If ... a party fails to answer an interrogatory submitted under Rule 33, . . . the discovering party may move for an order compelling an answer[.]
* * * *
(b) Failure to Comply with Order.
* * * *
(2) Sanctions By Court In Which Action Is Pending. If a person . . . fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
;jc % #
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; •
>fc # ^ #
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party . . . fails ... (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B) and (C) of subdivision (b)(2) of this rule. . . .

Ark. R. Civ. P. 37 (2002). Rule 37 provides two methods of imposing sanctions. First, sanctions may be imposed for failure to comply with an order compelling discovery. Ark. R. Civ. P. 37(b). Second, sanctions may be imposed for failure to respond to interrogatories or other discovery requests. Ark. R. Civ. P. 37(d). Sanctions issued under Rule 37(d) do not require an order compelling production as a prerequisite.

Indeed, this court has upheld Rule 37(d) sanctions without an order to compel production where a defendant has failed to answer interrogatories or otherwise failed to comply with discovery. In Cook v. Wills, 305 Ark. 442, 808 S.W.2d 758 (1991), the appellant refused to produce tax returns; so, on the day of trial, the trial court imposed sanctions under Rule 37(d) and struck appellant’s third-party complaint even though no order to compel had been issued. Likewise, in Harper v. Wheatley Implement Co., Inc., 278 Ark. 27, 643 S.W.2d 537 (1983), the appellants failed to complete answers to questions on deposition and failed to answer interrogatories. The appellees filed a motion to compel, but the court never issued an order compelling discovery. Id. On the day of trial, the court struck the appellants’ pleadings relating to certain claims. Id.

Thus, we hold that the circuit court had the authority to issue sanctions, including default judgment, without an order compelling discovery. The only question remaining is whether, under the facts of the instant case, the circuit court abused its discretion.

III. Discretion to Issue Rule 37(d) Sanctions

On November 17, 2000, the circuit court was faced with the following situation: NFP had refused to answer the State’s discovery requests even after it had been advised by counsel that NFP’s failure to respond to discovery could result in severe sanctions, including the striking of its answer. In an attempt to obtain discovery, the State had filed a motion for order compelling discovery. The circuit court allowed NFP to postpone the motion-to-compel hearing three times, with the fourth hearing date set for November 17 — only three days before trial was scheduled to begin on November 20. Over nine months passed between the service of the interrogatories and requests for production of documents on February 2 and the hearing on November 17; yet, the State was faced with trying the case in three days without NFP having complied with a single discovery request. NFP had been informed in April by its attorney that he intended to ask the court for permission to withdraw as attorney of record in the case. The circuit court granted the attorney’s petition to be relieved on June 26, 2000.

According to the record, another attorney conveyed a settlement offer to the Arkansas Attorney General by letter dated June 28, 2000; however, NFP proceeded pro se between June and November 2000. The only other indication in the record of NFP retaining counsel is a letter from yet another attorney dated November 7, 2000, that informed the circuit court he would not be representing NFP. As previously noted, NFP advised the circuit court by fax on November 15 that it would not appear for either the November 17 hearing or the November 20-21 trial. At the November 17 hearing, NFP did not appear in person or by counsel.

Thus, the circuit court was faced with a defendant that refused to answer any requests for discovery, that failed, after three postponements, to appear at a hearing on a motion to compel discovery three days before trial, and that stated it would not appear for trial. Under these facts, we cannot say that the circuit court abused its discretion in granting the State’s motion for default judgment. The trial court was in a superior position to judge the actions and motives of the parties, and we will not second guess the circuit court in the instant case. Calandro v. Parkerson, supra.

NFP contends that it would have been unfair to face the “big bad boys” without counsel. However, a party’s failure to retain counsel is not sufficient, by itself, to defeat a default judgment. Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974). NFP also contends that it was unfair to proceed after he informed the circuit court that he would not attend the hearing or trial on the dates scheduled, and especially after NFP and the State had agreed to a continuance. “[I]t is crucial to our judicial system that trial courts retain the discretion to control their dockets.” Calandro v. Parkerson, 333 Ark. at 609, 970 S.W.2d at 800. In addressing the trial court’s exercise of its discretion in setting the court docket, we have stated:

The court controls the trial calendar and provides for the scheduling of cases upon the calendar, Ark. R. Crim. P. 27.2, the setting of which is tantamount to a direct order of the court. Recendy, in Sphere Drake Ins. Co. v. Bank of Wilson, 307 Ark. 122, 817 S.W.2d 870 (1991), we noted that although Ark. R. Civ. P. 55(c) authorized a trial court to set aside a default judgment upon a showing of excusable neglect, unavoidable casualty, or other just cause, where the appellant in that case was faced with a court order to answer interrogatories within ten days or face default, it was irrelevant whether appellee’s counsel objected to the appellant’s stated intention not to file responses because the appellee’s attorneys did not have the authority to authorize the appellant to flaunt a court order. The same holds true in this case, regardless of an agreement, if any, between the attorneys as to a different date for trial. Simply put, attorneys do not have the authority to vary a trial date set by the court.

Rischar v. State, 307 Ark. 429, 431, 821 S.W.2d 25, 26 (1991). The same reasoning would apply to hearing dates. Because the trial court controls its docket, parties do not have the power to change a hearing date set by the court.

Finally, NFP argues that a default judgment was too harsh a sanction in this case. We disagree. The finality or severity of the sanctions imposed by the trial court is of no consequence because Rule 37 specifically provides for dismissal of the action in the case of a flagrant failure to comply with discovery. Calandro v. Parkerson, supra.

Rule 37 (d) of the Arkansas Rules of Civil Procedure authorizes a circuit court to impose sanctions, including default judgment, for noncompliance with the rules of discovery without first issuing an order compelling discovery. Under the circumstances of this case, we cannot say that the circuit court abused its discretion in granting default judgment in favor of the State.

Affirmed.

       Letters included in the State’s addendum to its brief indicate that on April 6 and April 11, 2000, NFP was advised by its attorney that he intended to request permission to withdraw as attorney of record in the case, and that NFP’s continued failure to answer the State’s requests for discovery could result in severe sanctions, including the striking of its answer to the complaint.


text:
    Gary Lee DAYBERRY v. STATE of Arkansas
    CR 02-301
    86 S.W.3d 855
    Supreme Court of Arkansas
    Opinion delivered October 10, 2002

      Chris Flanagin, for appellant.
    No response.
   Per Curiam.

Attorney Chris Flanagin was appointed on approximately September 12, 2002 to represent appellant, Gary Lee Dayberry, on his appeal. On September 16, 2002 Flannigan was hired as Jackson County Deputy Prosecutor, 3rd Judicial Circuit, presenting a conflict of interest in his representation of appellant. Due to his subsequent employment, Flanagin filed a motion with this court to be relieved as counsel, to substitute counsel and to stay the briefing schedule.

We grant appellant’s motion to be relieved as counsel. We appoint attorney James Píensley as substitute counsel in this matter and direct our clerk to remove Chris Flanagin’s name as attorney of record in this case. The new briefing schedule will be set by our clerk.

Motions granted.


text:
    Brian GOODEN v. STATE of Arkansas
    CR 00-845
    86 S.W.3d 853
    Supreme Court of Arkansas
    Opinion delivered October 10, 2002

      Gene McKissic, for appellant.
    No response.
   Per Curiam.

By per curiam order dated April 18, 2002, this court appointed Hon. John Lineberger as a master to determine the facts on why attorney Gene McKissic should not be held in contempt for failing to file appellant’s brief on behalf of Brian Gooden by the final extension date of February 27, 2002.

Judge Lineberger has now submitted his Report and Findings of Fact. In pertinent part, Judge Lineberger found:

The evidence is clear that McKissic did not obey this Court’s Order directing him to file Gooden’s brief by February 27, 2002. The evidence is also clear that the brief was not filed due to a mistake on McKissic’s part. McKissic did not ask for a hearing to dispute these facts. He asked for this hearing to describe to the Court the difficulty he found himself to be in trying to defend someone who:

(1) Had accused him (wrongfully, he felt) in three different forums of fraud, conspiracy and other evils.
(2) Was requiring him to breach a plea agreement he had reached with a prosecuting attorney.
(3) Was accusing him of taking money for an appeal when he had never been paid for any work he had ever done for the person.
(4) Was accusing him of being ineffective and incompetent.
(5) Was calling him. regularly and demanding that he make allegations in the brief which he considered to be ridiculous.

McKissic found himself in what he considered to be a no win situation, but he understood his obligation. From the Record: (R.35)

Q. Can you understand, though, why the Court would be getting upset at not getting a brief from you?
A. Their job — once they tell a lawyer to do something, a lawyer’s job is to do that. And I don’t have a quarrel with that no matter what they find. My responsibility is to do it. What I’m asking them to understand, though is that I can’t take directions from both the court and the client and satisfy both. And it was very hard knowing the agreement we had made with the State and knowing what the truth was to be writing a brief about something I know is not what the truth is.

It is the opinion of the undersigned that Mr. McKissic is entitled to consideration in mitigation of his mistake.

On October 24, 1995, the appellant was convicted of four felony offenses and sentenced to six years’ imprisonment. Two days later, Mr. McKissic filed a notice of appeal and an order was entered releasing the appellant on an appeal bond. Since that time, the appeal has either been dormant or Mr. McKissic has sought to be relieved as counsel. Ill,will clearly exists between counsel and the appellant. Nevertheless, we directed Mr. McKissic to remain as counsel for the appellant and to lodge the record and file the brief. Gooden v. State, 344 Ark. 291, 40 S.W.3d 271 (2001). The appellant then sought to stay his appeal and hold Mr. McKissic in contempt. We denied the stay of appeal in part but ordered Mr. McKissic to give the appellant a copy of the brief when filed. Gooden v. State, 2001 WL 1388839 (Nov. 8, 2001). We denied the motion for contempt. Id.

Mr. McKissic was given a final extension to file the appellant’s brief as of February 27, 2002. That deadline was missed. Mr. McKissic eventually tendered the appellant’s brief to the clerk of this court on April 11, 2002, the day he appeared before this court to show cause why he should not be held in contempt.

While we understand the apparent breakdown in communication between counsel and client, Mr. McKissic owed an obligation to the criminal justice system and to this court to prosecute this appeal in a timely manner. That was not done.

We direct the clerk of this court to file the appellant’s brief. We find that Mr. McKissic is in contempt of court and fine him $250. A copy of this per curiam order will be sent to the Professional Conduct Committee.


text:
    John J. HARDIN v. STATE of Arkansas
    CR 02-85
    86 S.W.3d 384
    Supreme Court of Arkansas
    Opinion delivered October 10, 2002

      Appellant, pro se.
    No response.
   Per Curiam.

In 1996, John J. Hardin was found guilty by a jury of rape and sentenced to 216 months’ imprisonment. The court of appeals affirmed. Hardin v. State, CACR 97-265 (Ark. App. March 4, 1998). Hardin subsequently filed in the trial court a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37 that was denied. We affirmed the trial court’s order. Hardin v. State, CR 99-563 (May 10, 2001) (per curiam).

In October 2001, Hardin filed in the trial court a petition pursuant to Act 1780 of the 2001 Acts of Arkansas. The act amended Arkansas’s state habeas corpus statute to provide that a writ could issue to any person “who has alleged actual innocence of the offense or offenses for which the person was convicted .... in accordance with § 16-112-201 et seq.” Ark. Code Ann. § 16-112-103(a)(l). Hardin claimed that the writ should be issued in his case because there was no conclusive scientific evidence adduced at his trial to prove that he was guilty of rape. The court denied the petition, and Hardin has lodged an appeal from that order here. He now asks that counsel be appointed to represent him on appeal and that an extension of time be granted to file the appellant’s brief.

Because it was recently enacted, this court has not had the opportunity to consider the constitutionality of the act, whether it conflicts with other postconviction remedies available to the convicted defendant, or otherwise to address the provisions of the statute. At this time, we address only whether appellant Hardin has demonstrated that he is entitled to appointment of counsel and conclude that he has not.

Act 1780 of 2001 provides for a postconviction challenge to a judgment of conviction. Like Criminal Procedure Rule 37.1, which is the primary vehicle for convicted defendants in Arkansas desiring to raise postconviction attacks on a judgment, it is civil in nature. Both the United States Supreme Court and this court have held that there is no constitutional right to an attorney in state postconviction proceedings. Coleman v. Thompson, 501 U.S. 722 (1991); Hammon v. State, 347 Ark. 267, 65 S.W.3d 853 (2002). We have further held that the right to counsel ends in this state after the direct appeal of the original judgment of conviction is completed, and the State is not obligated to provide counsel in postconviction proceedings. Hammon, supra, citing Fretwell v. State, 290 Ark. 221, 718 S.W.2d 109 (1986) (per curiam).

We have said, however, that both the circuit court in which a postconviction pleading pursuant to Rule 37.1 was filed and this court have the discretion to appoint attorneys for indigent appellants in Rule 37.1 cases. On appeal, the exercise of this discretion depends on whether the pro se appellant makes a substantial showing that the appeal has merit and that he cannot proceed without appointment of counsel. Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986). We hold today that the same showing must be made by appellants seeking appointment of counsel on appeal of an order denying relief pursuant to Act 1780. As appellant has failed to meet this burden, the motion for appointment of counsel is denied.

The motion for extension of time to file the appellant’s brief is granted. Appellant’s brief will be due forty days from the date of this opinion.

Motion for appointment of counsel denied; motion for extension of time granted.

Arnold, C. J., not participating.

       Because appellant’s petition to the trial court was filed in his criminal case, the appeal from the order denying relief was assigned to this court’s criminal docket.

       This requirement that the pro se appellant in an appeal in a civil matter make a substantial showing of merit before being granted the relief sought has also been applied to motions to file a handwritten brief — see Miner v. Furman, 318 Ark. 883, 887 S.W.2d 310 (1994); Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986); Howard v. Lockhart, 300 Ark. 144, 777 S.W.2d 223 (1989); Hayes v. Lockhart, 288 Ark. 419, 706 S.W.2d 179 (1986) — and to motions for duplication of the appellant’s brief at public expense. See Maxie v. Gaines, 317 Ark. 229, 876 S.W.2d 572 (1994).

       Pursuant to Section 10 of Act 1780, now codified at Ark. Code Ann. §16-112-207(a)(1), “[a] person financially unable to obtain counsel who desires to pursue the remedy provided in this subchapter may apply for representation by the Arkansas Public Defender Commission or appointed private attorneys.” (Emphasis added).


text:
    Ralph Nelson WELLS v. STATE of Arkansas
    CR 02-996
    86 S.W.3d 844
    Supreme Court of Arkansas
    Opinion delivered October 10, 2002

      Johnson & West, by: B. Kenneth Johnson, for appellant.
    No response.
   Per Curiam.

Appellant Ralph Nelson Wells, by and through his attorney, B. Kenneth Johnson, has filed a motion for rule on the clerk. On June 13, 2002, a notice of appeal was filed. The record on appeal was due to be filed with the Supreme Court Clerk on September 11, 2002, although it was not tendered until September 13, 2002. Appellant’s attorney admits responsibility for tendering the record late.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam)).

The motion for rule on the clerk is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).