author: Darrell Hickman, Justice. Robert M. Ford,

text:
    Elsie ALEXANDER, Administratrix of the Estate of John Alexander, Deceased v. Jerry C. CHAPMAN, M.D., and Crestview Family Clinic
    88-63
    771 S.W.2d 744
    Supreme Court of Arkansas
    Opinion delivered June 12, 1989
    [Rehearing denied July 10, 1989.]

      Perroni, Rauls & Looney, P.A., by: Samuel A. Perroni', Wilson, Engstrom, Corum & Dudley, by: William R. Wilson, Jr., for appellant.

      Friday, Eldredge & Clark, by: Laura A. Hensley and Calvin J. Hall, for appellee.

      Glaze, J., would grant rehearing. Purtle, J., not participating.

   Darrell Hickman, Justice.

This is the second appeal in this medical malpractice case. For the second time, a jury returned a verdict for the defendant. In the first appeal, the only issue presented was whether the trial tactics used by the defense attorneys were so objectionable as to require retrial. We reversed and remanded on that basis. Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986).

At both trials, the judge used AMI 1501 to instruct the jury on a physician’s duty of care; but at the second trial, the appellant objected. AMI 1501 provides that a physician must possess and, using his best judgment, apply with reasonable care the degree of skill and learning ordinarily possessed by members of his profession in good standing in the same type of practice in the same or similar locality. The appellant argued that AMI 1501 has been superseded by the burden of proof provisions of the medical malpractice act. See Ark. Code Ann. § 16-114-206(a) (1987). The act does not use the “best judgment” language found in the model instruction. Appellant claimed this language constituted a subjective standard of care and imposed an unfair hardship on medical malpractice plaintiffs.

The trial judge instructed the jury using AMI 1501 and that is the error presented in this second appeal. The same instruction was given at the first trial, and the appellant could have made an objection but did not. The medical malpractice act, which appellant now claims superseded AMI 1501, was in effect at the time of the first trial. We find the law of the case doctrine bars an attempt to raise this issue on a second appeal.

The general rule is that, where the pleadings and issues are substantially the same, all questions which were actually presented or which could have been presented in the first appeal are barred in the second appeal. See 5B C.J.S. Appeal & Error § 1825; 5 Am. Jur. 2d Appeal & Error § 752. Some jurisdictions hold that only questions actually decided are barred from subsequent consideration. But Arkansas follows the general rule. We have said in a number of cases that an argument which could have been raised in the first appeal and is not made until a subsequent appeal is barred by the law of the case.

In First American National Bank of Nashville, Tennessee v. Booth, 270 Ark. 702, 606 S. W.2d 70 (1980), we affirmed a second appeal on that basis. At the initial trial, the court held that a loan made by the bank was usurious. On the first appeal, we reversed that finding and the case was remanded. The trial court then held that the bank’s lien was inferior to the appellee’s. The bank brought a second appeal questioning that ruling. We held the issue of lien priority could have been presented on the first appeal. In affirming, we said the following:

There is no reason why this Court could not have determined the issue had it been properly raised. Since, in the course of orderly procedure, appeals will not be allowed by piecemeal, no further relief is available.

In Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971), a car accident case, judgment was awarded against Woodward in the first trial, and he appealed. We reversed, saying there was not sufficient evidence that his negligence was the proximate cause of the accident. Woodward lost at the second trial and appealed again. One of his arguments on appeal was that it was error to give a certain jury instruction. We said the following:

Since this very same instruction was given at the initial trial over appellant’s objection and not complained of upon first appeal, the law of the case again must be applied and we are precluded from considering it now for the first time.

In Moore v. Robertson, 244 Ark. 837, 427 S.W.2d 796 (1968), there were three defendants in a wrongful death case. One defendant failed to answer. Default judgment was entered against him but was later set aside. The plaintiffs appealed, saying the default judgment should have been allowed to stand. We agreed and reversed and remanded.

After a new trial, plaintiffs prevailed but appealed the amount of the verdict and the defendant cross-appealed. The defendant’s argument was that the answers of the other two defendants should have operated to this benefit. We refused to consider that theory since it could have been raised on the first appeal but was not.

In St. Louis Southwestern Railway Co. v. Jackson, 246 Ark. 268, 438 S.W.2d 41 (1969), a case involving a car-train collision, the railroad appealed from a verdict against it and asserted several points of error. It unsuccessfully urged a particular theory that grandparents of the decedent should not recover for mental anguish. This case was reversed on other grounds. On retrial, the verdict was against the railroad. In its second appeal, it propounded a new theory for its argument that the grandparents should not recover mental anguish damages. We held that the law of the case barred consideration of that argument:

We would be less than honest if we did not agree with the appellant that the law of the case doctrine is a harsh rule, but when weighed on a scale of justice we find that the confusion and uncertainty which would result without use of the doctrine outweighs the harshness.

In a concurring opinion, Justice George Rose Smith addressed the contention raised in a dissenting opinion that the new theory could not have been raised in the first appeal because it had not been presented at the first trial. Justice Smith observed that the matter could have been brought to this court’s attention as an issue that could arise on retrial:

When we are affirming a case we customarily reject arguments that are vulnerable to technical procedural defects, such as a failure to make the proper objection in the trial court, a failure to include in the motion for a new trial an objection in a criminal case, a failure by the trial judge to give a requested instruction that was imperfectly drawn, a failure to save an exception in a criminal case, and a host of other procedural defects that must ordinarily be given effect in the orderly conduct of litigation.
When, however, we have already found reversible error and are remanding the case for a new trial, the situation is wholly different — quite as much so as night from day. It is then our practice — and rightly so — to consider on its merits any contention that may arise again when the case is retried, regardless of procedural defects that would otherwise compel us to reject the contention. The only requirement is that the point be brought to our attention in the briefs. . . .
Our practice is demonstrably right. It involves no unfairness either to the trial court or to the losing party, because the case is going back for a new trial in any event. Hence what we try to do is to prevent still a third trial as a result of some error that is called to our attention upon the first appeal. The view of the dissenting opinion, on the other hand, would encourage such unnecessary third trials by requiring us to reject, on procedural grounds, contentions that ought to be disposed of on their merits upon the first appeal.

We have the same situation in this case. Could the same objection to AMI 1501 have been made at the first trial? Yes. The same law was in effect and the same instruction was given. During oral argument, the appellant stated that, at the first trial, the judge was going to give her proffered instruction instead of AMI 1501. But when the appellee objected, the appellant decided not to press the issue. She withdrew her proffered instruction and allowed AMI 1501 to be given without objection. She was, therefore, precluded from challenging the instruction in the second trial.

It makes no difference that the appellant did not object to the instruction at the first trial. St. Louis Southwestern Railway v. Jackson, supra. See also Norris v. Bristow, 361 Mo. 691, 236 S.W.2d 316 (1951); 75 Am.Jur.2d Trial § 927. It also makes no difference that the trial court’s decision to overrule the appellant’s objection was not based on the law of the case doctrine. We will affirm the court’s ruling if it is correct for any reason. Sanders v. Newman Drilling Co., 273 Ark. 416, 619 S.W.2d 674 (1981). See also 5 C.J.S. Appeal and Error § 1464(6). The appellee was not bound to present to the trial court every conceivable reason for overruling the appellant’s objection. So even if we were to say it was error to give the instruction, we would not reverse. The appellant’s objection was correctly overruled because of the law of the case doctrine.

Finally, we point out that our reliance on the law of the case doctrine does not conflict with the general proposition that when a case is reversed and remanded for a new trial, all of the issues are opened anew. Overton Constr. Co. v. First State Bank, 285 Ark. 361, 688 S.W.2d 268 (1985); Sanders v. Walden, 214 Ark. 523, 217 S.W.2d 357 (1949). In cases in which there is a broad remand, we allow a party to amend its pleadings as necessary. Here, there was no amendment of pleadings. The law of the case doctrine prevents consideration of an argument that could have been made at the first trial.

The appellant also asks us to award costs of $1,336.10 to her for additional parts of the record designated by the appellees. The portions included by the appellees and paid for by the appellant were unnecessary to the consideration of the issues in this case. Costs are awarded to the appellant as requested.

Affirmed.

Purtle, J., not participating.

Holt, C.J., Glaze, J., and Special Justice Robert M. Ford dissent.

Robert M. Ford,

Special Justice, dissenting. The majority concludes that the burden of proof issues raised by this appeal cannot be reached on the theory of the “law of the case doctrine.” I disagree.

The first trial of this case in 1985 was so severely flawed by attorney misconduct, I am of the opinion that the case went back to the trial court on its all fours as a re-trial de novo. The court used the language “reversed and remanded” in Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986). I would allow all issues to be opened anew and not restrict the remand. The majority opinion following the first appeal in no way was a limited remand and is a new trial. I do not think the appellate court has to use the magic words “reversed and remanded for a new trial” to avoid the harsh ruling that results by applying the law of the case doctrine. Overton Constr. Co. v. First State Bank, 285 Ark. 361, 688 S.W.2d 268 (1985); Sanders v. Walden, 214 Ark. 523, 217 S.W.2d 357 (1949); Deason & Keith v. Rock, 149 Ark. 401, 232 S.W. 583 (1921). The court in Deason at page 402 stated,

Where the remanding of a cause for further proceedings is general and no specific directions are made by this court to the lower court in the mandate, the lower court may proceed further with any matter in the cause which was not inconsistent with the opinion of the court on appeal.

I contend Alexander v. Chapman, supra, was a broad remand. The cases cited by the majority in upholding the law of the case are in conflict with the cases that stand for the general proposition of a broad remand. There was no clarification by this court as to whether or not the case was broadly remanded and all issues were open for trial anew the same as if there had been no trial. The dictum by the majority does not clear up the confusion.

Appellant, Elsie Alexander, Individually and as Administratrix of the Estate of John Alexander, deceased, filed a medical negligence suit against Jerry C. Chapman, M.D. and Crestview Family Clinic, P.A., alleging that Jerry C. Chapman failed to diagnose and treat John Alexander who died of a heart attack secondary to arteriosclerotic heart disease. The date of death was October 1, 1979.

The second trial was concluded on August 10,1987, the jury finding for Jerry C. Chapman, M.D. and Crestview Family Clinic, P.A. This appeal by Elsie Alexander followed.

Appellant argues on appeal that the giving of jury instruction AMI 203 in conjunction with AMI 1501 is not a correct statement of the law as to the burden of proof in medical malpractice cases. Appellant contends that the proper statement of the law as to the burden of proof is found in the Arkansas Malpractice Act as codified in Ark. Code Ann. §§ 16-114-201' —16-114-209 (1987), particularly section 16-114-206 entitled “Burden of Proof.” The language in AMI 1501, which defines the standard of care applicable to a medical care provider within the context of “using his best judgment,” is at the heart of the appellant’s argument that the circuit court gave improper jury instructions.

Dr. Chapman and Crestview Family Clinic argue that AMI 1501 correctly states the standard of care required of a medical care provider. Further, the appellees argue that AMI 1501 does not create a subjective standard of care and that the instruction is not in conflict with or superseded by section 16-114-206.

The circuit court’s alleged error in the giving of AMI 203 in conjunction with AMI 1501 in the instructions given was preserved by compliance with the Arkansas Rules of Civil Procedure, Rule 51. See City of Little Rock v. Weber, 298 Ark. 382, 767 S.W.2d 529 (1989). Not only did the appellant give a timely objection to the instructions, with valid reasons, but offered proposed instructions on the burden of proof and standard of care issues. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986); Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984).

The appellant asked this court to set aside the common law language in AMI 1501 as outlined in the case of Dunman v. Raney, 118 Ark. 337, 176 S.W. 339 (1915). This I would do. The court in Dunman, at page 346, stated the following:

Appellant does not contend that the instruction was erroneous in other respects, and it was not. A physician or surgeon is not required to exercise the highest skill possible. He is only bound to possess and to exercise that degree of skill and learning ordinarily possessed and exercised by members of his profession in good standing, practicing in the same line, and in the same general neighborhood or in similar localities. He must use reasonable care in the exercise of his skill and learning, and act according to his best judgment in the treatment of his patients. (Emphasis supplied.)

The ARKANSAS MODEL JURY INSTRUCTIONS (Civil), now in its third edition, incorporated the language in Dunman. The first paragraph of AMI 1501 reads as follows:

In [diagnosing the condition of] [treating] [operating upon] [obtaining the informed consent of] a patient, a [physician] [surgeon] [dentist] [medical care provider] must possess, and, using his best judgment, apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing, engaged in the same [type of practice] [or] [specialty] in the locality in which he practices, or in a similar locality. A failure to meet this standard is negligence.

The Arkansas Supreme Court’s Committee on Jury Instructions stated in the comments to AMI 1501 that, “Although the phrase, ‘using his best judgment,’ is not included in the statutory definition of the standard of care owed by a medical care provider, the Committee has elected to retain it in this instruction pending resolution of the issue by the Supreme Court of Arkansas.”

The duty set forth in the first paragraph of AMI 1501 has been approved and has been well settled throughout the cases. See Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945 (1975); Dunman, supra; Walls v. Boyett, 216 Ark. 541, 226 S.W.2d 552 (1950).

AMI 203 and AMI 1501 given together had been court approved instructions as a correct statement of the law in medical malpractice cases until the Arkansas legislature passed Act 709 of 1979. Ark. Code Ann. § 16-114-206 (1987) (formerly Ark. Stat. Ann. § 34-2614). Subsection (a) of the statute reads as follows:

(a) In any action for medical injury, the plaintiff shall have the burden of proving:
(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality;
(2) That the medical care provider failed to act in accordance with that standard; and
(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

This court approved the language of section 16-114-206(a) in the cases of Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987), and Sexton v. St. Paul Fire and Marine Ins. Co., 275 Ark. 361, 631 S.W.2d 270 (1982). I would hold that this legislation, which is in derogation of the common law, should be strictly construed. Hackney v. Southwest Hotels, Inc., 210 Ark. 234, 195 S.W.2d 55 (1946). “Using his best judgment” modifies the standard of care outlined in section 16-114-206. Failure of a medical care provider, as defined in section 16-114-201(2), to meet the standard of section 16-114-206(a), is negligence. Deviation from this standard should not be excused by the exercise of the provider’s best judgment.

To avoid further confusion between the legislation, AMI 203 and AMI 1501, I would hold that in all future medical injury cases that come within the purview of the Arkansas Medical Malpractice Act (Act 709 of 1979) the court’s instruction in lieu of AMI 203 (burden of proof against damages based upon negligence) and AMI 1501 (duty of physician, surgeon, dentist or other medical care provider) should read as follows:

In an action for medical injury, the plaintiff has the burden of proving the following three elements:
(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which the — practices or in a similar locality;
(2) That the medical care provider failed to act in accordance with such standard; and
(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.
If you find by a preponderance of the evidence in this case that each of the elements has been proved, then your verdict should be for _, and against (Plaintiff (s)) _; but if, on the other hand, you find by a (Defendant(s)) preponderance of the evidence that any of these elements has not been proved, then your verdict should be for the __Ark. Code Ann. § 16-114-206(a)

I would further hold that the present “Note on Use” of AMI 1501, as outlined in the ARKANSAS MODEL JURY INSTRUCTIONS (Civil), Third Edition, Will apply for the burden of proof instruction as now covered by Ark. Code Ann. § 16-114-206(a). The second paragraph of AMI 1501 should be used where the facts and proof of a medical injury case so warrant. If no expert testimony is required in Plaintiffs proof, AMI 102 would be a correct instruction. See Prater, supra, and Sexton, supra.

I would reverse and remand.

Holt, C.J., and Glaze, J., join in this dissent.


source: Caselaw Access Project

author: John I. Purtle, Justice. Steele Hays, Justice,

license: Public Domain

text:
    Rick Allen STACKS v. ARKANSAS POWER AND LIGHT COMPANY
    89-77
    771 S.W.2d 754
    Supreme Court of Arkansas
    Opinion delivered June 12, 1989
    [Rehearing denied July 17, 1989.]

      Steve Kirk, for appellant.

      Chisenhall, Nestrud & Julian, P.A., by: Jim L. Julian and Janie W. McFarlin, for appellee.
   John I. Purtle, Justice.

The appellant, Rick Allen Stacks, filed a tort action against the appellee, Arkansas Power and Light Company, for injuries received on July 5,1983, when he came in contact with a sagging overhead power line while fishing on a pond in Plumerville, Arkansas. The appellee filed a motion for a summary judgment, and, after considering the affidavits and counter-affidavits, the trial court granted the motion. The sole argument for reversal is that there were genuine issues of fact to be determined. We agree and therefore reverse and remand.

The city of Plumerville formerly obtained its water supply through the use of water wells. The record reveals that there was a pump house on a well in the middle of a pond and another pump on the bank at another well. The city had not used the wells for several years prior to the appellant’s injury. In the meantime, the public has been using the impoundment with the consent of the city for fishing and other forms of recreation.

AP&L furnished power delivered to a pole near the facility. The city of Plumerville owned and maintained the line from the delivery point to the pump houses. However, the city relied exclusively on the appellee to supply its electricity.

The former mayor of Plumerville stated in an affidavit that he had requested AP&L to de-energize this station two or three years before the occurrence. He further stated that AP&L told him they had disconnected the power to the pump house on the pond. Two witnesses on behalf of AP&L filed affidavits in which they denied that the appellee had any interest, control, or right to maintain the lines going from their terminal to the pump houses. Further, their affidavits stated that the mayor had not requested them to de-energize the lines. An affidavit from Clyde Garrett stated that he had been with the water department since July, 1959, and that he personally knew that the fuses serving the pump on the island had been removed three or four years prior to 1983.

In granting the motion for a summary judgment the trial judge held that there was a lack of causal connection between AP&L’s delivery of electricity and the injuries suffered by the plaintiff; and that the city of Plumerville as owner of the sagging power line was responsible for the condition regardless of any statement made by any employee of the appellee. It is so fundamental as not to require citation of authority that summary judgment is not proper when a genuine issue of a material fact exists. We hold as a matter of law that a genuine issue of fact exists in this case. The complaint and affidavits alleged facts which, if believed by the jury, would support a verdict against the appellee.

An electric company has a duty to inspect and maintain its power lines in proper and safe working order. See Arkansas General Utilities Co. v. Shipman, 188 Ark. 580, 76 S.W.2d 178 (1934). The mayor’s affidavit that a representative of the appellee told him the power to the pump house had been terminated created a factual situation on the issue of negligence and breach of duty to the appellant which required a determination by the trier of facts. The alleged statement by AP&L’s representative was a sufficient allegation to present a genuine question as to whether the appellee had a duty to de-energize these lines. It will be up to the trier of facts to decide whether the occurrence was foreseeable and whether the negligence, if any, was a proximate cause of the appellant’s injuries.

The threshold question is whether the appellee owed a duty of any kind to the appellee. Whether a duty is owed between the parties is a question of law. Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983); Missouri Pacific Railroad Co. v. Harelson, 238 Ark. 452, 382 S.W.2d 900 (1964). The Keck opinion also stated that the question of foreseeability and causation may be a question of fact, depending on the circumstances. See also Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). Proximate causation is ordinarily a question of fact. Id.

This court recognized the degree of care required of an electric company to its customers or those in close proximity to its wires in City Electric Street Railway Co. v. Conery, 61 Ark. 381, 33 S.W. 426 (1895). The electric company had strung wires overhead to operate trolley cars. One of the wires came in contact with a telephone wire which led to a private residence. The telephone wire broke and fell across the electric wire and was energized as it touched the ground. A small child stepped on the electric wire and was seriously injured. The opinion in the Conery case stated: “In cases where the wires carry a strong and dangerous current of electricity, and the result of negligence might be exposure to death, or most serious accidents, the highest degree of care is required.” The opinion further stated: “[T]he injury was a result of the concurring negligence of the two parties, and would not have occurred in the absence of either. In that case negligence of the two was the proximate cause of the same, and both parties are liable.”

In Arkansas General Utilities Co. v. Shipman, supra, this court quoted from Conery, as follows: “This fact being established, the next question is, upon what duty of the appellant to the appellee can this action be based? The answer to it is, upon the duty enjoined by the rule which requires everyone to so use his property as not to injure another.” In Shipman, supra, suit was filed against an electric company when a customer of the utility was injured when she tried to unplug a radio inside her residence after a surge of electricity had shorted it out and started a fire. The surge in electricity resulted when a service line fell onto a high-powered transmission line which broke and fell on the service line. The electric company insisted that evidence might establish that the wire was struck by lightning and that the electric company did not have time to repair it before the injury occurred.

The Shipman opinion held that if electric companies “negligently allow their wires to fall or sag, or poles or other apparatus to fall, to the injury of another, they are responsible in damage for the wrong done, if the party injured is guilty of no culpable negligence contributing to the injury.” The question of whether the electric company was negligent when its high voltage line fell on a lower capacity line carrying electricity to a dwelling was held to be a matter of fact for the jury to decide.

The Shipman opinion included a discussion of the duty owed by an electric company:

The duty of an electric company in reference to keeping its appliances in safe condition is a continuing one. Not only must it exercise a high degree of care in the original selection and installation of its electric apparatus, but thereafter it must use commensurate care to keep the same in a proper state of repair. The obligation of repairing does not mean merely that the company is required to remedy such defective conditions as are brought to its actual knowledge. The company is required to use active diligence to discover defects in its system. In other words, an electric company is bound to exercise due care in the inspection of its poles, wires, transformers and other appliances.

The duties and responsibilities of the electrical companies that have established or maintained electricity has been an issue before the courts from the earliest days. In Arkansas Power & Light Co. v. Cates, 180 Ark. 1003, 24 S.W.2d 846 (1930), the court quoted from the case of Duncan Electric & Ice Co. v. Chrisman, 157 P. 1031 (Okla. 1916) and 1 Joyce on Electricity 735, where it was stated:

A company maintaining electrical wires, over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have a right to go, either for work, business, or pleasure, to prevent injury. It is the duty of the company, under such condition, to keep the wires perfectly insulated, and it must exercise the utmost care to maintain them in this condition at such places. And the fact that it is very expensive or inconvenient to so insulate them will not excuse the company for failure to keep their wires perfectly insulated.

Cates, an employee of an oil company, died when he touched an electrical wire which dropped across AP&L’s charged wire that extended to the ground. The negligent act committed by the electric company in that case was the failure to insulate a high voltage line which ran near the top of a two-story building owned and operated by the oil company. The power company in the Cates case had a contract with the city of Waldo to furnish electricity to the city’s residents. The electric company insisted that there was no negligence on its part in causing the death of Cates. In the Cates case it was held to be a question of fact as to whether the electric company was guilty of negligence that proximately caused the death of Cates.

Another case involving the same electric company involved in the present case is Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976). The Johnson opinion quoted the following language from Woodruff Electric Corp. v. Daniel, 251 Ark. 468, 472 S.W.2d 919 (1975); “We have long recognized the rule that the very nature of the business of an electric company requires it to use a high degree of care in the erection, maintenance, operation, and inspection of its equipment which is used in the transmission of its electric power, so as to prevent injury to one likely to come in contact with the power line.”

Different standards or degrees of care have been stated in several opinions of this court. These differing degrees of duty are reconciled in Arkansas Power & Light Co. v. Lum, 222 Ark. 678, 262 S.W.2d 920 (1954), where the court quoted from Morgan v. Cockrell, 173 Ark. 910, 294 S.W. 44 (1927):

It will be seen from these decisions that it has long been the settled law in this State that electric companies, in the stringing and maintaining of their wires in the streets of the cities to give service to the public, are only bound to the exercise of ordinary and reasonable care for the protection of all who have right to the use of the streets, such reasonable and ordinary care varying with the circumstances of each case, having in view the dangers to be avoided and the likelihood of injury therefrom, which may require a high or the highest degree of care under the particular circumstances.

Prior decisions involving actions against electric companies in Arkansas are fairly consistent in holding that it is the duty of those utilities to exercise ordinary and reasonable care in the erection and maintenance of power lines. It is at all times the duty of a company supplying electricity to use reasonable care depending upon the existing circumstances.

In the present case the appellee knew, or should have known, that members of the public were allowed to congregate around the city’s impoundments for the purposes of fishing, swimming, and engaging in other recreational activities. If the appellee had disconnected its power the injury would not have occurred. The affidavits reveal that, for a period of two or three years prior to the injury of the appellant, the public was using this area extensively. The mayor’s affidavit stated that he had been told by the electric company that the lines had been de-energized. He further stated that he would never have allowed the public to use the area for recreational activities if he had known that AP&L had not de-energized these lines.

The allegations in the pleadings and affidavits against the motion for summary judgment disclose that a critical question of material fact remained to be resolved at the trial: whether the appellee was guilty of negligence in continuing to send electricity through the unused lines to the city’s pump house after having told the mayor that the current had been disconnected. Therefore, the case is remanded with instructions to withdraw the order for summary judgment and to proceed as though the motion had been denied.

Reversed and remanded.

Hickman and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. I believe the order of summary judgment should be affirmed. The trial court held 1) that the line with which the plaintiff came in contact belonged to the City of Plumerville and was well beyond (by some 300 feet) the ownership and control of the appellee, and 2) that an alleged statement by an employee of the appellee that the lines were deenergized, even if made, lacked a causal connection with the injury because it was the duty of the City of Plumerville to inspect and maintain its lines in a safe condition. The first point is undisputed and the second point has not been shown by the appellant to be incorrect. Appellant cites only two cases, both for the general rule that summary judgment is an extreme remedy and should not be granted where issues of material fact exist. Hunt v. Brewer, 266 Ark. 182, 585 S.W.2d 12 (1979); Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981).

If the appellant is to prevail on appeal it must be on the strength of the affidavit of the mayor of Plumerville, 2that sometime after he was elected in 1979 he was told by someone at the Morrilton office of Arkansas Power and Light that “the power had long been turned off from the well house to the well f (my emphasis.) The affidavit is notably vague — it appears to have been a telephone conversation, is nonspecific as to time, does not identify the other party, and refers not to facilities of AP&L, but to facilities of the City of Plumerville. Finally, the mayor’s affidavit makes it clear he was not calling to determine that the lines were safely de-energized, but to see if power could be restored to the facilities of the city. Such a conversation could hardly afford a legal basis for thrusting liability elsewhere for the city’s failure to maintain its own facilities in a safe condition. Arkansas General Utilities Co. v. Shipman, 188 Ark. 580, 67 S.W.2d 178 (1934); Decatur v. Parham, 109 So.2d 692 (Ala. 1948); White v. Orlando Utilities Commission, 156 So.2d 879 (Fla. 1963); Kelley v. Public Service Company, 300 Ill. App. 354, 21 N.E.2d 43 (1939); Memphis Consolidated Gas and Electric Company v. Speers, 113 Tenn. 83, 81 S.W. 595 (1904).

Hickman, J., joins this dissent.

       The affidavit is in direct conflict with an affidavit of the superintendent of the Plumerville Water Department.

       This describes facilities belonging entirely to the City of Plumerville.

       The affidavit states, “I had called to see how hard it would be to have the power turned on again.”


author: Steele Hays, Justice.

text:
    Paul RUIZ and Earl Van Denton v. STATE of Arkansas
    CR 87-174
    772 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered June 12, 1989

      MarkS. Cambiano, P.A., for appellant Paul Ruiz; Robert S.

      Irwin, for appellant Earl Van Denton.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This capital murder case has followed a long and tortuous path. Appellants were charged with robbery, kidnapping and murder of Marvin Ritchie and Opal James. They were twice found guilty and given death sentences and in the latest trial, involying only the issue of punishment, death sentences were again imposed. Those proceedings have been reviewed three times by this court, twice by the Court of Appeals for the Eighth Circuit, and once by the United States Supreme Court. One conclusion which might well be drawn from the foregoing litigation is that appellants’ second trial was error free and our affirmance of those convictions and sentences in 1981 is now effectively reinstated. The state urges us to eschew that course, however, and to address appellants’ current appeal from the resentencing trial on the merits. We concur in that view.

Some overview of the prior proceedings is essential to an understanding of the arguments. Appellants were serving life sentences in the Oklahoma State Prison at McAllister — Ruiz for armed robbery, Denton for murder. On June 23, 1977, they disappeared from a work crew. On the morning of the 29th they were seen near the town of Magazine in Logan County, Arkansas, driving a car with Louisiana license plates.

When the marshal of Magazine, Marvin Ritchie, and two employees of the Corp of Engineers, David Small and Opal James, who were working in Logan County, were found to be missing, a search party was organized and that afternoon two of the men were found handcuffed together in the trunk of Ritchie’s car. Marvin Ritchie was dead and David Small was critically wounded. Ritchie had been shot in the back of the head and Small through the chest. Small survived to provide essential testimony against the appellants at all three trials. Two days later, the body of Opal James was found in a remote section of Montgomery County.

Appellants were tried and convicted in Logan County and sentences of death were imposed. Those convictions were appealed and the judgment was reversed upon a holding that the trial court erred in denying a motion for a change of venue and in seating a jury incapable of rendering a fair and impartial verdict. Ruiz and Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979).

Appellants were tried anew, this time in Conway County, and sentences of death were imposed. In the ensuing appeal the judgment was affirmed. Ruiz and Denton v. State, 273 Ark. 94, 617 S.W.2d 6, cert. denied, 454 U.S. 1093 (1981). State post conviction remedies were pursued and exhausted. Ruiz and Denton v. State, 275 Ark. 410, 630 S.W.2d 44 (1982), cert. denied, 459 U.S. 82 (1982).

Appellants next sought habeas corpus relief in the United States District Court for the Eastern District of Arkansas. That request was denied and appellants appealed to the Court of Appeals for the Eighth Circuit, where the judgment of the District Court was reversed on the grounds that the case was governed by Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985), holding that so-called “death-qualified” juries, being conviction prone, are unconstitutional. Ruiz v. Lockhart, 754 F.2d 254 (8th Cir. 1985). The United States Supreme Court granted certiorari and vacated the decision of the Court of Appeals in the light of Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758 (1986), which upheld the constitutionality of “death-qualified” juries, reversing Grigsby. See Lockhart v. Ruiz, 476 U.S. 1112, 106 S. Ct. 1964 (1986). The case was remanded for consideration of issues which had been reversed by the Court of Appeals and on November 20, 1986, that court again reversed the District Court, this time on the premise that robbery was used both as an element of the crime of capital murder and as one of the aggravating circumstances found by the jury to justify the death penalty, which the court had, in Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013, 106 S. Ct. 546, 88 L.Ed.2d 475 (1985), held to be an impermissible duplication, resulting in what has been referred to as “double counting.” The duplication issue had been preserved by appellants, but not reached by the Court of Appeals in view of its reversal on the Grigsby argument. The court upheld the validity of Ruiz and Denton’s convictions, but vacated the death sentences because of the use of pecuniary gain as an aggravating circumstance where robbery was an element of the underlying capital crime. The state was given a reasonable time to either retry the issue of punishment or reduce appellants’ sentences to life without parole. The state proceeded to retry the appellants without the use of pecuniary gain as an aggravating circumstance and again the jury imposed a sentence of death, resulting in the present appeal. Appellants assert nineteen errors by the trial court. We find no merit in the arguments for reversal.

I

The Resentencing Trial of the Appellants Violated the Ex Post Facto Provisions of the United States and Arkansas Constitutions and Denied Appellants Due Process and Equal Protection of the Laws.

The statutory authority for resentencing trials in capital cases is Act 546 of 1983, codified as Ark. Code Ann. § 5-4-616 (1987). The act became effective on March 19, 1983, but purports to apply to any defendant sentenced to death after January 1, 1974. Appellants point out that the murders of Opal James and Marvin Ritchie occurred on or about June 29, 1977, and thus, they contend, Act 546 operates as an ex post facto law in violation of federal and state constitutions. We disagree.

We note that the decision of the Court of Appeals in Ruiz v. Lockhart, 806 F.2d 158 (8th Cir. 1986), upheld the validity of the appellants’ convictions for capital murder, and specifically directed that the state have the option to either reduce the sentence to life without parole or retry the question of punishment. The state chose to retry the appellants.

Appellants have cited a number of our cases stating that sentencing provisions are substantive rather than procedural and that the sentencing provisions in effect at the time an offense occurs govern sentencing. Jennings v. State, 276 Ark. 217, 633 S.W.2d 373 (1982); Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981); Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). However, those cases, and others like them, deal with attempts to apply a harsher sentence than was provided by law at the time an offense was committed, rather than with changes in sentencing procedures. Act 546 in no way enlarges the punishment to which appellants were subjected, it simply permits that part of the trial which was not tainted by error, to survive, limiting the retrial to the issue of punishment. That change in the law is, we think, procedural rather than substantive. Moreover, it is enough to note that appellant’s identical argument was advanced and rejected in Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, 235, cert. denied, 108 S. Ct. 769, 98 L.Ed.2d 226 (1987). We reaffirm that position.

II

The Trial Court Erred in Failing to Grant Appellants a Severance of their Capital Murder Resentencing Trials.

Appellants submit that their motion to sever their trials was waived by them in reliance upon an assurance by the trial judge that if a conflict developed between defendants in the selection of jurors, a severance “would be mandated.” Appellants urge that in spite of a number of disagreements between them over the seating of certain jurors, the trial judge reversed himself and denied severance. They maintain they should not be penalized for relying on the court’s ruling.

We do not interpret the record in quite the same way. It is clear that appellants waived their motion for severance and no condition was tied to the waiver. Counsel for Paul Ruiz then argued that because the state would benefit by one trial rather than two, the defendants should each be allowed twelve peremptory challenges, rather than twelve between them, since they might disagree on which jurors would be good for the defense. That proposal was rejected, prompting defense counsel to ask if a conflict developed would a severance be granted. The trial court’s response was, “that’s the law.”

We do not regard that exchange as a binding commitment by the trial judge to order a severance merely upon a purported disagreement between defense counsel over whether to strike or accept a prospective juror. We believe he was simply alluding generally to the law as reflected in A.R.Cr.P. Rule 22.3 (b) (iii) and in the guidelines set out in McDaniel and Gookin v. State, 278 Ark. 631, 648 S.W.2d 57 (1983), indicating that the trial court should continue to be sensitive to the advisability of a severance as the trial evolves. Severances are to be determined by the trial court on a case by case basis in the light of all attendant circumstances. It is an exercise of judicial discretion. Spillers v. State, 268 Ark. 217, 595 S.W.2d 650 (1980). A.R.Cr.P. Rule 22.3. We have held that when more than one defendant is being tried for capital murder, the number of peremptory challenges allotted to a side remains at twelve. Wilkins v. State, 292 Ark. 596, 731 S.W.2d 775 (1987). Thus there was no error in refusing to enlarge the number of peremptory challenges nor any abuse of discretion in denying severance on that ground. Hallman and Martin v. State, 264 Ark. 900, 571 S.W.2d 688 (1979).

Ill

Arkansas Code Annotated § 5-10-101 (1987), Et. Seq. and Arkansas Code Annotated § 5-4-602 (1987) are Unconstitutional Both on their Face and as Applied to the Facts of this Case.

Appellants contend that Ark. Code Ann. § 5-10-101 (1987) [Ark.Stat. Ann. § 41-1301 (Repl. 1977)] under which appellants were charged, and Ark. Code Ann. § 5-4-602 (1987) [Ark. Stat. Ann. § 41-1501 (Supp. 1985)], under which they were tried, are: a) unconstitutionally vague and overbroad, b) permit the arbitrary imposition of the death penalty, c) do not make a proper distinction between capital murder and other types of murders, and d) abrogate the equal protection clause. Appellants point out that some thirteen states make no provision for the death penalty, whereas Arkansas and other states do. Therefore, the argument goes, the constitution’s recognition that inalienable rights include life, along with liberty and the pursuit of happiness, renders the death penalty an unequivocal abrogation of the equal protection clause of the Fourteenth Amendment.

Appellants concede that these arguments have been rejected in many previous cases, but they urge that we reconsider Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978), cert. denied, 449 U.S. 1057 (1980); Wilsonv. State, 271 Ark. 682, 611 S.W.2d 739 (1981); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Ruiz and Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981); Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Abernathy v. State, 278 Ark. 250, 646 S.W.2d 590 (1983); Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 73 (1980); Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977); and Pew v. State, 284 Ark. 234, 681 S.W.2d 307 (1984).

Appellants offer nothing in the way of new or compelling reasons why that array of case law should be overruled. That being so, we decline the invitation to change a position we regard as sound.

IV

This Third Trial of Appellants, Due Solely to Prosecutorial Misconduct and Error Violates Fundamental Fairness and Due Process, and is in Direct Contravention of Both the Spirit and Application of the Fifth Amendment’s Prohibition.

The fourth argument, reduced to its elements, is that when two previous convictions are overturned on appeal, a third trial violates the due process and double jeopardy clauses of the Constitution. The argument rests on fundamental fairness, as appellants conceive it.

We cannot sustain the argument. Appellants have cited a number of cases dealing with double jeopardy, but nothing which supports the premise that because a case is reversed a second time it becomes fundamentally unfair to try an accused a third time. Nor do we find the argument so convincing that no authority is required. As noted earlier in this opinion, appellants’ second trial was unanimously affirmed in this court and though twice reversed by the Court of Appeals (first on the Grigsby argument, then on the Collins argument) both reversals were based on constitutional theories which were rejected by the Supreme Court at the first opportunity. Thus we think it fair to say appellants have been the beneficiaries, rather than the victims, of a criminal justice system bent on providing exhaustive safeguards, especially where the ultimate penalty is involved. Numerous cases are cited by the state for the counter proposition that a successful challenge to a conviction on appeal does not give rise to a former jeopardy bar to retrial or resentencing.

V

The Trial Court Erred in Submitting Evidence of and Jury Instructions on Statutory Aggravating Circumstances.

Argument five renews the theory that it is impermissible for an aggravating circumstance to overlap with an underlying element of the capital offense so that “double counting” occurs as proscribed by Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 106 S. Ct. 546 (1985). While the current appeal was pending, the case of Lowenfield v. Phelps, 484 U.S. _, 108 S. Ct. 546 (1988), was decided by the Supreme Court, which effectively reversed Collins v. Lockhart, supra, by holding that the Eighth Amendment was not violated where a single aggravating circumstance found by the jury in imposing a death sentence duplicated one of the elements of the underlying offense of first degree murder. On April 10, 1989, the Court of Appeals for the Eighth Circuit decided Perry v. Lockhart, 871 F.2d 1384 (8th Cir. 1989), specifically holding that the Lowenfield case had overruled Collins and, rather than announcing a new rule, Lowenfield merely applied a rule enunciated in Jurek v. Texas, 428 U.S. 262 (1976). The Lowenfield case accordingly was held applicable to Perry, though Perry’s sentence preceded the Lowenfield decision.

Appellants concede that Lowenfield overruled Collins, but they contend that Lowenfield should not be retroactively applied to them.

We disagree with that proposition. The Collins rationale was never adopted by this court — in fact, we expressly rejected it in a number of cases, Starr v. State, 297 Ark. 26, 35, 759 S.W.2d 535, 546 (1988); Gardner v. State, 296 Ark. 41, 64-5, 754 S.W.2d 519, 529-30 (1988); O’Rourke v. State, 295 Ark. 57, 63-4, 746 S.W.2d 52, 55-6 (1988). Nor are the appellants entitled to preserve in place a principle of law which has been held to be erroneous. See Washington v. State, 278 Ark. 5, 643 S.W.2d 255 (1982); United States v. Sager, 743 F.2d 1261 (8th Cir. 1984).

We rej ect, as well, the argument that the state failed to prove the existence of the aggravating circumstances. The circumstances of the crimes and the testimony of David Small provided an adequate basis for submitting to the jury the aggravating circumstance that the murders were committed to avoid arrest. The evidence of prior felony convictions was sufficient to sustain the submission of the aggravating circumstance of a previous felony involving the use or threat of violence.

The final phase of the argument is that the aggravating circumstances are vague and overbroad. We have considered and rejected that argument previously without disagreement by the Supreme Court. Gregg v. Georgia, 428 U.S. 153 (1976); Gardner v. State, 296 Ark. 41, 55, 754 S.W.2d 518, 525 (1988); Snell v. State, 290 Ark. 503, 518, 721 S.W.2d 628, 634 (1986), cert. denied, 108 S. Ct. 202 (1987); and Collins v. State, 261 Ark. 195, 200-01, 548 S.W.2d 106, 119-20, cert. denied, 434 U.S. 878 (1977).

VI

The Trial Court Erred in Failing to Limit Prejudicial Pretrial Publicity and Subsequently Failing to Sequester the Jury.

Appellants maintain as a sixth point of error that the trial court should have granted a motion by the appellants to impose a gag order on the news media, attorneys, court officials and law officers and also, should have granted a request that the jury be sequestered during the trial. These are matters which are necessarily left to the sound discretion of the trial court. Henderson v. State, 279 Ark. 414, 652 S.W.2d 26 (1982). That decision will not be disturbed on appeal in the absence of a clear showing of prejudice. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

Undoubtedly, few trials have generated the interest of the public and news media to equal this one. That fact was amply illustrated by the reversal of the first trial by a unanimous court due to a pervasive climate which prevented a fair trial. But undoubtedly that environment has been altered by the lapse of twelve years and the removal of the trial to a locale well away from the county where the offenses occurred. We need not examine every item inveighing for or against sequestering the jury or for imposing a gag order; suffice it to say the evidence appellants point to gives little, if any, support for their motion and they have not demonstrated either prejudice or an abuse of the trial court’s discretion.

VII

The Trial Court Erred in its Sua Sponte Excusal of Almost One Half of Petit Jury Panel and Its Subsequent Failure to Provide Indigent Defendants With Funds to Investigate the Quashing of Said Panel.

Four hundred and three venire persons were subject to call as potential jurors for the resentencing trial of appellants. It appears that as many as 198 of that number were excused by the trial judge for various reasons — illness, vacation and the like. Some persons could not be contacted or were thought to be dead or unavailable. All of this resulted in some ninety prospective jurors appearing for service on the morning of trial. Appellants moved to quash the panel and for funds to investigate the panel’s composition from a constitutional standpoint. Appellants contend the mass excusáis constituted an abuse of the trial judge’s authority and deprived them of a jury representing a fair cross section of the community. The trial court denied the motions but granted a request that additional jurors be called as the process of jury selection began.

We note at the outset the absence of any suggestion that the discrepancy in the number of venire persons scheduled for jury service, some four hundred and three individuals, and the number actually appearing, around ninety, was the result of any attempt to influence the makeup of the jury panel. The explained absences, as well as the unexplained, are typical of the problems encountered in summoning large numbers of people to appear for jury service and the conflicts which they perceive as valid reasons not to serve. The record, in other words, presents nothing extraordinary with respect to the composition of this pool of potential jurors. Thus the ninety or so from which twelve were selected can be assumed to be as fairly representative of a cross section of the community as four hundred would have been, the only difference being quantitative. That being so, we find nothing compelling in the motion to quash the panel nor requiring deeper scrutiny into the matter. Ark. Code Ann. § 16-31-103 (1985) exempts certain professions and vocations from service on grand or petit juries and empowers the circuit judge to excuse anyone when for any reason the interest of such individual or the public will be materially impaired by attendance.

In Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1988), a case also involving alleged irregularities in the jury panel and its selection, we made it clear that the appellant must demonstrate prejudice as well as any error. Here appellant has not only failed to demonstrate prejudice, but any error as well. We find no showing of abuse by the trial court’s handling of these issues. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980); cert. denied, 450 U.S. 1035 (1981); Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied, 452 U.S. 973 (1981).

VIII

The Trial Court Erred in Failing to Grant Appellants’ Repeated Requests for a Mistrial Based on the Prosecutor’s Inadmissible and Prejudicial Remarks Throughout the Trial.

We find no abuse of discretion in the refusal by the trial court to order a mistrial on the basis of remarks by counsel for the state. The argument consists of a general discourse on the resentencing trial aimed in part at the defense position that the circumstances of the murders could not be given the jury in a resentencing trial. That contention is considered and rejected under Points IX and X.

As to improper remarks, appellants cite to a reference by the prosecutor to this “nightmare of a case” in opening statement. We have reviewed the bases for this argument and find nothing which would mandate a mistrial by the trial court. We have said that mistrial is a remedy so drastic and extreme that it must manifestly appear that the trial cannot proceed before a mistrial must be ordered. Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980).

Appellants also complain of a reference to both appellants being on “death row” which should, they maintain, have prompted a mistrial. There is no merit to this argument. The reference to death row by the prosecutor was an off-hand reference in a question to a witness, and the intimations were not entirely clear. But in any case, there was no objection when the reference was made and the defense in fact then examined the same witness, and twice made the same death row reference in its own examination. In was only when defense counsel was through examining the witness that an objection to the prosecutor’s reference was made. By failing to object at the first opportunity, and joining in the same alleged error, appellants waived any objection.

IX

The Trial Court Erred in Allowing Irrelevant and Highly Prejudicial Evidence and Testimony.

Appellants take the position that the proof at the resentencing trial should have been restricted to aggravating and mitigating circumstances. It was, they maintain, error to permit David Small, for example, to testify about the events surrounding the death of Marvin Ritchie and about the near fatal wound Small sustained. They equate Small’s testimony with a “victim’s impact statement” which, in Booth v. Maryland, 483 U.S. 1056, 107 S. Ct. 2529, 96 L.Ed.2d 440 (1987), was held to be inadmissible. They complain that such testimony and photographs of the body of Marvin Ritchie were irrelevant and prejudicial. In short, appellants contend the only information which can be given to the jury in a resentencing trial is that which concerns the issue of aggravation and mitigation and the details of the crime itself are irrelevant.

We disagree with that perception of a resentencing trial and hold that the circumstances of the crime or crimes are not beyond the scope of the jury’s inquiry. Such a concept of resentencing would be counter to the plain wording of the act itself. Ark. Code Ann. § 5-4-616(4) expressly provides that exhibits, testimony and other evidence from the prior trial and sentencing shall be admissible to the resentencing procedure. We think the state’s argument is compelling — that the nature of the crime itself is essential to the jury in determining whether death is an appropriate or inappropriate punishment, toward which the consideration of aggravating-mitigating circumstances are necessary guides.

Nor do we regard the testimony of David Small as comparable to the type of testimony which was rejected in Booth v. Maryland, supra. Booth was convicted of murdering an elderly couple who lived nearby. The motive for the crime was robbery and, since the couple could identify Booth, the victims were bound, gagged and stabbed repeatedly with a kitchen knife. Maryland, by statute, required the use of a presentence report in all felony cases which included a victim impact statement describing the effects of the crime on a victim and his or her family. Family members of the elderly couple described outstanding personal qualities of the victims and of the fear, lack of sleep and depression experienced by the family. A son said his parents were “butchered like animals,” a daughter concluded that she could not forgive the murderer and such a person could “never be rehabilitated.” Others described the effects of the crime on a wedding of one family member occurring a few days afterwards. The report concluded with an expression by the compiler that the murders posed a “shocking, painful and devastating memory to them that permeates every aspect of their daily lives. It is doubtful that they will ever be able to fully recover from this tragedy and not be haunted by the memory of the brutal manner in which their loved ones were murdered.”

We need not review the testimony in the light of this argument. It is enough to say that nothing comparable occurred in the resentencing trial of these appellants.

X

The Trial Court Erred in Allowing the Introduction of Irrelevant and Highly Prejudicial Photographs (Plaintiff’s Exhibits 12 and 13).

Appellants objected to the introduction of two black and white photographs of Marvin Ritchie lying in the trunk of the car where his body was found. The argument that they are inflammatory and irrelevant is renewed on appeal.

As to the photographs being inflammatory, we find no merit in the argument. There is nothing lurid or odious in them. No blood is visible and the face of Marvin Ritchie is turned away from the camera. The body is relaxed. A small bullet hole can be seen, but would easily go unnoticed if the viewer were not alert. The use of these photographs and others was upheld in both previous appeals.

As to the relevancy argument, we need not repeat what was said under Point IX concerning the introduction of evidence of the crimes at a resentencing trial. The evidence on resentencing is not wholly limited to the aggravating and mitigating circumstances.

XI

The Trial Court Erred in Allowing the Introduction of Unauthenticated Prison Records and in Subsequently Instructing the Jury as to Aggravating Circumstances Based Solely on Those Records.

The same three aggravating circumstances were submitted to the jury with respect to both appellants: 1. that at the time of the capital murder the defendant was unlawfully at liberty after being sentenced to imprisonment as a result of a felony conviction; 2. that the defendant previously committed another felony, an element of which was the use or threat of violence to another person, or creating a substantial risk of death, or serious physical injury to another person; and 3. that the capital murder was committed for the purpose of avoiding or preventing an arrest.

The jury found all three aggravating circumstances applicable to appellant Denton, but declined to find that appellant Ruiz had previously committed another felony involving the use or threat of violence to another person.

Appellants contend that the state relied upon the testimony of Ms. Bobbi Burns for the first and second aggravating circumstances. When Ms. Burns was called to the stand, appellants were granted permission to voir dire her concerning two documents she had brought with her from the Oklahoma State Prison, where she was the manager of prison records. Appellants objected to the two documents on the grounds that they were not certified and were hearsay. The arguments are wholly without merit. One document, state’s exhibit No. 2, purports to be a judgment of the District Court of Oklahoma County, Oklahoma, reciting that on April 13, 1971, Earl Van Denton entered a plea of guilty to the crime of murder, for which a sentence of life imprisonment was imposed. The judgment is signed by District Judge Harold C. Theis and attested to by Dan Gray, Court Clerk, by Mary Evelyn Moncrief, Deputy Clerk. Moreover, the judgment bears a more recent certificate by Tom Petusky, Court Clerk, dated July 8, 1987, declaring that the judgment is a true and correct copy of an original instrument which appears of record in the District Court of Oklahoma County, Oklahoma.

The other document, state’s exhibit No. 1, purports to be a copy of a judgment of the District Court of Custer County, Oklahoma, reciting that on August 9,1976, Paul Ruiz pled guilty to the crime of robbery with a firearm with a sentence of life at hard labor imposed. The judgment bears the signature of Charles M. Wilson, District Judge, and the “Filed” stamp of the Court Clerk, Irene Pruitt. Accompanying the judgment are three certificates: one signed by Irene Pruitt on April 12, 1978, and certifying that the judgment has not been set aside or annulled and is now in full force and effect; another by Charles M. Wilson, attesting to the fact that Irene Pruitt is the Court Clerk of Custer County and that her accompanying signature is genuine. The third certificate is by Ms. Pruitt attesting to the fact that Charles M. Wilson is the duly qualified and acting District Judge and that his signature appearing thereon is genuine. Thus, we find these documents to be certified and authenticated. Moreover, Ms. Burns testified that these documents accompanied appellants to the prison and were a part of their prison file, of which she was custodian. We conclude that these documents were not subject to a hearsay objection, A.R.E. Rule 803(22), McCormick on Evidence, § 318 (3rd Ed. 1984), and were properly received in evidence. Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982).

XII

The Trial Court Erred in Allowing a State Psychologist to Testify as to the Prior Criminal History and Potential Dangerousness of Appellants Where Such Testimony was Based on Appellants’ Admissions Contained in State Psychiatric Hospital Records.

Appellants offered the opinion testimony of Dr. Douglas Stevens, a clinical psychiatrist. Relying in part on the records of the Arkansas State Hospital, Dr. Stevens reviewed childhood and adult experiences of both appellants and expressed his opinion that they were mellowing with age. He pointed to a number of factors on the side of rehabilitation. He believed that neither had demonstrated significant behavioral problems in prison and both were capable of making a meaningful contribution to society.

To rebut this testimony the state called Dr. James Moneypenny, who had reviewed the records of several institutions (Arkansas State Hospital and prisons in California and Oklahoma), though he had not personally interviewed either appellant. Dr. Moneypenny’s testimony included reference to Paul Ruiz having run away from home as a teenager, and committing burglaries to support himself.

Appellants submit it was error to permit Dr. Moneypenny to testify “to the future dangerousness of the appellants,” citing Estelle v. Smith, 451 U.S. 454 (1981), that such testimony violated their Miranda rights, and was a breach of A.R.E. Rule 404(b), since other crimes were mentioned. Assuming, without deciding, that such testimony was improper in this context, it was stricken upon a motion for mistrial and the jury was instructed to disregard it. No explanation is offered as to how the appellant’s Miranda rights might have been affected by the information in these records and we will not attempt to respond to an argument lacking entirely in specificity.

The argument that Dr. Moneypenny’s testimony violates the rule against “future dangerousness” announced in Estelle v. Smith, 451 U.S. 454 (1981), appears to be raised initially in this court, probably for the reason that nothing in the testimony of this witness equates with the proof in Estelle. Dr. Moneypenny testified that the appellants had chronic behavioral problems and that while age produces some lessening of energy, or mellowing, the personality remains essentially the same. Except for such inferences as might be drawn from that testimony, which we think insufficient, Dr. Moneypenny’s testimony is devoid of any allusion to future dangerousness.

Another reason exists to distinguish this case from Estelle. In Estelle, the state called the psychiatric witness to testify to the future dangerousness of the accused, even though the defense had not first put such factors in issue. In this case, however, Dr. Moneypenny’s testimony was offered in rebuttal, a distinction which the court expressly noted in Estelle. See Buchanon v. Kentucky, 483 U.S. 402 (1987).

XIII

The Trial Court Erred in Allowing Testimony Concerning Post Conviction Bad Acts of One Appellant at a Joint Trial of Appellants.

Appellants’ argument on this point is an extension of the severance issue. They complain that Ruiz was prejudiced by proof which related only to Denton and Denton by proof relating only to Ruiz. To illustrate, they say there was no evidence of prior violence by Ruiz, whereas Denton had a prior conviction for murder.

We note initially that there was no contemporaneous objection below to the evidence now objected to, waiving any argument on appeal. Appellants however, would not prevail on this argument in any case. Appellants cite Bruton v. United States, 391 U.S. 123 (1968). But Bruton lends no support for their premise. The holding of Bruton is that a defendant’s Sixth Amendment right of confrontation forbids a state from introducing the confession of one defendant to implicate a co-defendant in the crime for which both are being tried. In that situation if the co-defendant whose confession is introduced declines to testify, the other defendant has no opportunity to cross-examine. Nothing similar occurred in this case.

It is worth noting that the trial court instructed the jury to consider the evidence against each defendant separately and to render its verdict as if each defendant was being tried separately. The verdict demonstrates that the jury understood and implemented that instruction in that aggravating circumstance No. 2 was found as against Denton but not as against Ruiz.

XIV

The Trial Court Erred in Refusing Appellants’ Proffered Jury Instruction Nos. 43 and 44.

The trial court rejected appellants’ proposed jury instructions which were altered versions of AMCI 1509, using instead the standard AMCI 1509 without modifications. The changes proposed by appellants substituted the word “may” for “will” in instructing the jury in choosing between death or a lesser penalty. Appellants contend that the wording of AMCI 1509 imposes a mandatory death penalty. We disagree.

The wording of the instructions is such, we believe, that a jury readily understands that it has the option of a lesser penalty. The instructions tell the jury that “in no event” will it return a verdict of death unless it unanimously makes three written findings which include a finding that “the aggravating circumstances justify beyond a reasonable doubt the sentence of death.” Thus a jury is told that it may reject the death penalty simply by declining to make that essential finding. This same argument, in varying shades, has been rejected repeatedly in prior cases: Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988); Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988); Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986); Clines, et al. v. State, 280 Ark. 77, 656 S.W.2d 684 (1983); Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977).

XV

The Trial Court Erred in Refusing Appellants’ Proffered Jury Instruction No. 41.

The trial court refused an instruction proffered by the appellants which told the jury it could consider in mitigation any lingering doubt it might have as to appellants’ guilt. It was not error to refuse this proposed instruction. See Franklin v. Lynaugh, 487 U.S. 164 (1988); Mitchell v. State, 527 So.2d 179 (Fla. 1988).

XVI

The Trial Court Erred in Denying Appellants’ Motions for a New Trial.

Appellants both filed motions for a new trial consisting of a reiteration of arguments previously advanced and rejected. There was no abuse of discretion in the trial court’s denial of these motions. Foster v. State, 294 Ark. 146, 741 S.W.2d 251 (1987).

XVII

The Trial Court Erred in Denying Motion to Dismiss Information as Violative of the Fifth Amendment’s Requirement of Indictment by a Grand Jury.

Appellants renew the contention that a defendant must be charged by an indictment returned by a grand jury instead of an information. The argument is not new and has never prevailed. McCree v. State, 266 Ark. 465, 476, 585 S.W.2d 938, 944 (1979); Ellinburg v. State, 254 Ark. 199, 208, 492 S.W.2d 904, 910 (1973); Davis v. State, 246 Ark. 838, 841, 441 S.W.2d 244, 246-7 (1969), cert. denied, 403 U.S. 954 (1971); Beckwith v. State, 238 Ark. 196, 379 S.W.2d 19 (1964); Moore v. State, 229 Ark. 335, 337-38, 315 S.W.2d 907, 908-09, cert. denied, 358 U.S. 946 (1959); and Penton v. State, 194 Ark. 503, 510-12, 109 S.W.2d 131, 135-6 (1937).

XVIII

The Trial Court Erred in Excusing for Cause Prospective Petit Jurors for Reasons Pertaining to their Views About the Death Penalty.

Appellants ascribe error to the excusal of two panelists from the venire: Ms. Grace Williams, excused for cause by the trial court, and Ms. Flo Hesselbein, excused by a peremptory challenge from the state. No error is shown. Ms. Williams made it clear that the death penalty was not an option for her and the state’s excusal of Ms. Hesselbein by peremptory challenge did not offend due process.

XIX

The Trial Court Erred in Refusing to Allow Appellants’ Counsel to Voir Dire Prospective Petit Jurors on the Presumption of Life Without Parole in this Capital Murder Resentencing Trial.

Appellants’ final point is that they should have been allowed to ask the jury panel on voir dire whether they could obey a presumption that appellants were entitled to life without parole unless the state proved beyond a doubt that they deserved the death penalty. We first note that appellants cited no authority to the trial court nor on appeal, to support such a proposition, and we could not say the trial court’s refusal to grant the request was an abuse of the sound discretion it is granted in these matters. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). In any case, the argument is waived. While ostensibly arguing that the issue was important enough that all jurors be voir dired on the matter, the request was not made until after the tenth juror was selected. Failing to make the request at the first opportunity, the argument is waived on appeal.

In conclusion it should be stated that nothing in this record bespeaks the faintest likelihood that justice has miscarried on the question of guilt. The evidence that the appellants are the perpetrators of these murders is overwhelming and irrefutable. Not a shred of evidence to the contrary has been presented at any trial. As to the propriety of the punishment, three juries in separate locales and in proceedings which have spanned a decade have determined that death is the appropriate sentence for each appellant. In short, the criminal justice system has given these appellants a full measure of due process.

Under Ark. Code Ann. § 16-91-113 (1987) [Ark. Stat. Ann. § 43-2725 (Repl. 1977)], as put into effect by our Rule 11(f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

AFFIRMED.

       The state concedes candidly that its failure to appeal that decision was attributable to a miscalculation of the time for appeal.

        Lockhart v. Nelson, 109 S. Ct. 285, 289-90 (1988); Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984); United States v. Tateo, 377 U.S. 463, 466 (1964); Green v. United States, 355 U.S. 184, 189 (1957); United States v. Ball, 163 U.S. 662, 671 (1896); and Timmons v. State, 290 Ark. 121, 126-27, 717 S.W.2d 208, 212 (1986); see generally, Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeal of Criminal Sentences, 78 Mich. L. Rev. 1001, 1034-44 (1980).


author: David Newbern, Justice.

text:
    Jack DEASON, J.W. Carden, and Virginia Ann Kistler v. FARMERS AND MERCHANTS BANK OF ROGERS, ARKANSAS, and Harris-McHaney Real Estate Co.
    89-14
    771 S.W.2d 749
    Supreme Court of Arkansas
    Opinion delivered June 12, 1989

      Jeff Slaton, for appellant.

      Hardy W. Croxton, Jr., for appellee.
   David Newbern, Justice.

Appellants Jack Deason and Virginia Ann Kistler are the children of Mavis Deason Carden, deceased, and appellant J.W. Carden is her widower. Jack Deason sued appellees Farmers and Merchants Bank of Rogers, Arkansas, and Harris-McHaney Real Estate Co., alleging breach of an obligation to exercise good faith with respect to the sale of property Mavis had mortgaged to the bank. J.W. Carden joined as a plaintiff in that action, alleging the tort of outrage, bad faith, and breach of contract because the bank had improperly withheld a certificate of deposit (CD), in which he had an interest, to assure payment of interest on the note which was secured by Mavis’s mortgage. Virginia Kistler brought a separate action, which was later consolidated for trial with the claims of Jack and J.W., alleging the tort of outrage against the bank. All three appellants sought damages for mental anguish caused by the bank’s conduct in forcing payment of interest on Mavis’s loan during a time when Mavis was dying of cancer and Virginia was handling her business affairs under a power of attorney. It was alleged that the bank and Harris-McHaney had sold the mortgaged property prematurely for less than its value just to assure payment of the note and interest before Mavis’s death and to avoid entanglement in probate.

The trial court found that Jack and Virginia lacked standing to sue the bank and Harris-McHaney for outage resulting from enforcement of a contract to which they were not parties, and summary judgment was granted with respect to those claims. J.W.’s claims went to trial. He amended his complaint to conform to the proof of conversion of the CD, and on that claim the jury awarded J.W. $17,000 compensatory damages and $10,000 punitive damages. The court directed a verdict as to J.W.’s claims of outrage and bad faith. A new trial was granted with respect to the conversion award in favor of J.W.

Jack, J.W., and Virginia appeal from the summary judgment and directed verdict orders. J.W. appeals from the order granting a new trial. W affirm the summary judgment and directed verdict orders because the proof offered in response to the summary judgment motions and during the trial did not demonstrate the tort of outrage or bad faith. We reverse the order granting a new trial because the trial court had lost jurisdiction to award a new trial when the motion was granted.

In 1981 Jack needed to borrow $45,000. Mavis had a longstanding credit relationship with the bank and could borrow the money more easily than Jack. She arranged to borrow $45,000 on her signature alone. A bank officer noted on the margin of the note that Mavis’s purpose was to lend the money to her son. The note was payable upon demand or in one year. Prior to the date of the loan Jack conveyed to Mavis a house and lot which she later mortgaged to the bank upon renewal of the note. Jack testified that he and Mavis had an understanding that the house would be sold and any proceeds in excess of the $45,000 he owed her would be his.

Mavis again renewed the note May 17,1983. Interest on the note had not been paid, and there is a conflict in evidence over whether the bank asked that interest be paid at that point. Mavis died of cancer January 17, 1984. Bank officers testified that during 1983 examiners had questioned the loan because of the lack of payment of principal or interest and had questioned whether the mortgaged property was adequate security despite the appraisal of the property at approximately $70,000.

The bank “flagged” a $15,000 CD owned jointly by Mavis, J.W., and Virginia. A bank employee testified that .“flagging” meant that before the money represented by the CD could be withdrawn or any action taken with respect to it, a bank officer would have to be consulted. J.W. attempted to renew the CD when it matured in December, 1983, but the bank refused to allow him access to the funds represented by the CD unless he paid approximately $3,300 in interest due on Mavis’s note. Virginia, who was living in Missouri and who was a former employee of the bank, was in Rogers at Christmas time shortly before Mavis’s death. She spoke with Mr. Reves, a bank officer, and was told the CD money was being held until the interest on the note was paid. Virginia and J.W. were told that the bank intended to foreclose on the note and hold the CD to assure payment of any shortage which might result.

On January 13, 1984, four days prior to Mavis’s death, the bank called J.W. and asked him to come in and pay the interest. When he asked what the bank wanted him to do, he was told $8,000 should handle it. Using the CD money, he paid interest on the loan of $7,373.60 and $629.40 was paid on the principal.

The mortgaged property had been listed with HarrisMcHaney. On January 7, 1984, an offer of $55,000, contingent on the buyer selling his present home and obtaining financing in the amount of $40,000, was received. Shirley Yost, a HarrisMcHaney employee testified that Virginia rejected the offer. Virginia testified it was not communicated to her. On January 10, 1984, an offer of $46,000, which was roughly the amount remaining due on the loan, was made and accepted by Virginia. It was alleged that Yost knew the amount the bank needed to cover the loan, but she denied having that knowledge.

1. New trial

As Jack’s and Virginia’s claims had been the subjects of summary judgments, the only claims which went to trial were J.W.’s. The jury returned a verdict for J.W. for compensatory damages of $17,000 and $10,000 punitive damages. The judgment was filed May 23, 1988. On June 3, 1988 a motion for judgment notwithstanding the verdict or alternatively a new trial or a reduction in damages was filed by the bank and HarrisMcHaney. No basis was asserted for the new trial. The grounds stated for judgment n.o.v. were the “failure to plead and prove facts sufficient to support the case,” and the request for reduction in damages was asserted “because the verdict is not based on the facts and is insufficient by the evidence.” An amended motion was filed on June 29 which stated the basis for a new trial as “irregularities or defects in the verdict.”

On July 21,1988, an order granting a new trial was entered. The trial court found that the verdict was contrary to the preponderance of the evidence and that the evidence does not support the amount of compensatory damages awarded, even if liability was supportable.

J.W. argues that the court lacked jurisdiction to grant the motion for a new trial. The basis for the argument is that the motion was not ruled on within 30 days of its filing. That is correct. In Street v. Kurzinski, 290 Ark. 155, 717 S.W.2d 798 (1986), we were presented with a motion for rule on the clerk requiring us to decide which of two notices of appeal was controlling. The appellant sought to overturn the decision of the trial court before a formal judgment had been entered. A second motion for judgment n.o.v. or new trial had been filed and no action was taken on the motion during the 30 days allowed by Ark. R. App. P. 4(c). Consequently, we held, the motion was deemed to have been denied at the expiration of the 30 days after the filing and the court lost jurisdiction to act on the motion. The opinion cited Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984), where we held it was mandatory that a written record be made of the trial court’s action in either taking the motion under advisement or setting a definite date for the motion to be heard. We also held that the making of the record was mandatory in Coking Cole v. Arkoma Coal Corp., 278 Ark. 446, 646 S.W.2d 12 (1983). These cases construed Rule 4 in light of questions of timeliness of the notice of appeal or tender of the record but all support the conclusion that the trial court, by operation of law, loses jurisdiction to rule on a motion for a new trial after the expiration of the 30 days if no written notation is entered either taking the motion under advisement or setting a hearing date.

The bank’s argument on this point is that it filed an application for stay of judgment and supersedeas “if applicable” on June 15, 1988, in which it mentioned that the post trial motions were pending, and that the granting of the stay order had the effect of taking the new trial motion under advisement. J.W. points out that the only purpose of the stay order was to stay the judgment in the face of a garnishment writ which had been filed. We agree that the staying of a judgment is no more than that and does not have the effect of taking post trial motions under advisement. There was nothing to prevent the trial court from ruling on the post trial motions during the time the judgment was stayed, and there is nothing to prevent the motions from being “deemed denied” as provided in Rule 4(c) during that time. The fact that the motions were mentioned as “pending” was no more than a statement of fact and thus had no effect in this context.

The record is very clear that the motion was not ruled on, taken under advisement, or set for a hearing prior to the close of business on July 5, 1988, the day the 30 days expired. Thus the motion was deemed denied, and the order entered on July 21 was void and of no effect. The court erred, and the order granting a new trial is reversed. The judgment based on the jury award is reinstated.

2. Outrage and bad faith

The complaints of J. W., Jack, and Virginia pleaded the tort of outrage in connection with the harm to Mavis caused by the assertedly malicious acts of the bank. The definition of the tort was set out in Counce v. M.B.M. Co., 266 Ark. 1064, 597 S.W.2d 92 (1980). We adopted the holding of the Massachusetts Supreme Judicial Court in the case of Agis v. Howard Johnson Co., 335 N.E.2d 315 (1976), which was derived from Restatement (Second) of Torts § 46 (1965).

One who, by extreme and outrageous conduct and without privilege, causes severe emotional distress to another is subject to liability for such emotional distress even though no bodily harm may result. However, in order for a plaintiff to prevail in a case for liability under this tort, four elements must be established. It must be shown (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct, . . . ; (2) that the conduct was ‘extreme and outrageous’, ‘utterly intolerable in a civilized community’, . . .; (3) that the actions of the defendant were the cause of the plaintiffs distress, . . . ; and (4) that the emotional distress sustained by the plaintiff was ‘severe’ and of a nature ‘that no reasonable man could be expected to endure it.’ [266 Ark. at 1068, 597 S.W.2d at 94.]

Jack, J.W., and Virginia assert that the restatement section cited above permits a cause of action to an immediate family member without the necessity of bodily harm where the actions of the alleged tortfeasor are directed at a third person, in this case their wife and mother. The restatement section supports their assertion that they have standing to sue; however, we have not adopted the language referring to conduct toward third persons contained in the section. Even if the trial court was wrong in granting summary judgment on the standing issue, it was correct in dismissing the claims because the conduct of the appellees in this instance falls far short of extreme and outrageous behavior which is utterly intolerable in a civilized community. The summary judgment motion questions whether the responding party has a claim and is an extension of the motion to dismiss for failure to state a claim. Joey Brown Interest, Inc. v. Merchants Nat’l Bank, 284 Ark. 418, 683 S.W.2d 601 (1985). While the bank may have been wrong in refusing to honor the CD, the facts, even when viewed from the perspective of Jack, J.W., and Virginia, fail to establish the sort of conduct described in the Counce case.

3. Breach of contract, bad faith

a. The summary judgments

Jack also asserted a claim as a third party beneficiary of the bank’s contract with Mavis and that he thus had a cause of action for breach and bad faith which was established because the bank sold the property for less than the appraised value. There are several reasons the court was correct in granting summary judgment with respect to this claim. Again, Jack did not have a claim to start with, thus there could have been no remaining material issues of fact.

The contract to which Jack’s complaint referred was the one between him and Mavis promising him the excess profit from the sale of the house in exchange for the deed to the house. The bank knew that Mavis borrowed the money to lend to Jack but the evidence does not show that the bank knew about the transfer of the house to Mavis and the ancillary agreement. The bank’s contract with Mavis was to lend the money with the house as security.

In Brown v. Summerlin Associates, Inc., 272 Ark. 298, 614 S.W.2d 227 (1981), we wrote that there is a presumption that parties contract only for the benefit of themselves, and a contract will not be considered as having been made for the use and benefit of a third party unless it clearly appears that such was the intention of the parties. A mere expectation of a benefit is insufficient to rise to the status of an intended beneficiary. The question of what the bank knew about the agreement between Mavis and Jack was not squarely addressed in these proceedings. There was some knowledge of his participation in the deal evidenced by the notation on the original note and the testimony of Reves to the effect that he knew he was dealing with Jack through Mavis in handling the property. There was nothing to show specific knowledge on the part of the bank of the agreement between Jack and Mavis.

b. The directed verdict

J.W. contends the court should not have directed a verdict against his claim of bad faith with respect to the CD contract with the bank. The tort of bad faith requires a showing of actual malice characterized by hatred, ill will or revenge. Aetna Casualty and Surety Company v. Broadway Arms Corporation, 281 Ark. 128, 664 S.W.2d 463 (1983). We recently held that the act of the alleged tortfeasor in merely enforcing an agreement with a debtor is not sufficient to support such a claim. Universal Security Ins. Co. v. Ring, 298 Ark. 582, 769 S.W.2d 750 (1989). Even if the bank’s actions in flagging the CD were wrongful, nothing in the evidence presented to the court supported a finding of actual malice, ill will, or revenge on the part of the bank or Harris-McHaney, therefore, the directed verdict on J.W.’s claim of bad faith was proper.

Nor was J.W.’s evidence on his tort of outrage claim any stronger than that of Jack and Virginia; therefore, it too was a proper object of the directed verdict ruling.

We affirm the summary judgments rendered with respect to the claims of Jack Deason and Virginia Kistler. We affirm the directed verdict rendered on J. W. Carden’s claims of outrage and bad faith. We reverse the granting of a new trial with respect to the jury verdict for damages on J.W. Carden’s claim for conversion of the certificate of deposit.


text:
    Richard GREEN v. Kerry YARBROUGH
    89-6
    771 S.W.2d 760
    Supreme Court of Arkansas
    Opinion delivered June 12, 1989

      Williams & Brinton, by: Charles N. Williams, for appellant.

      Jerome J. Paddock, Jr., P.A., for appellee.
   David Newbern, Justice.

On March 13,1985, the appellee Kerry Yarbrough filed a complaint against the appellant Richard Green alleging that Green had assaulted him and seeking personal injury damages. Yarbrough attempted to serve process pursuant to Ark. R. Civ. P. 4(d)(8)(A) which permits service upon an Arkansas resident by any form of mail addressed to the defendant with a return receipt requested and delivery restricted to addressee or agent. Green no longer resided in Arkansas. His sister, Sharon Green, signed the receipt, “Richard Green by SG.” We hold the service was improper and thus the trial court erred in refusing to set aside the default judgment which had been entered based upon that service.

As the motion to set aside the default judgment was not made until after 90 days from the date the judgment was entered, the trial court declined to set the judgment aside because Green had not shown a meritorious defense as required by Ark. R. Civ. P. 60(d). Rule 60 applies when the moving party attacks the service of process, presents evidence of a meritorious defense, and seeks to have a trial. That was our holding in White v. Ray, 267 Ark. 83, 589 S.W.2d 28 (1979). In that case we also pointed out that when a motion alleges that the judgment is void, and the challenge is based on what is now Ark. Code Ann. § 16-65-108 (1987), the movant who had no notice whatever of the suit against him need not allege a meritorious defense to have it set aside, citing Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 753 (1971).

The White and Halliman cases, along with Renault Central, Inc. v. International Imports of Fayetteville, Inc., 266 Ark. 155, 583 S.W.2d 10 (1979), imply that the person moving to have the judgment against him set aside for lack of proper service of process must show lack of actual knowledge of the service of process. In Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989), we made it clear that actual knowledge of a proceeding does not validate defective service of process. See also Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982).

Green argues on this appeal that the process was not properly served. We agree because, as we wrote in Wilburn v. Keenan Companies, Inc., supra, the “agent” to whom Rule 4(d)(8) refers must be an agent appointed pursuant to the applicable postal regulations. Not only was Sharon Green not such an agent, the receipt she signed did not even suggest that she was, although the postman who made the delivery testified she convinced him she had authority to receive Richard Green’s mail. She did not sign as Richard Green’s agent. She merely signed his name and her initials.

Yarbrough’s response to Green’s argument that service was improper and thus the judgment was void is twofold. First, he contends Rule 4(d)(1) applies and the service is valid'because it was left at Green’s “dwelling house or usual place of abode with some person residing therein who is at least 14 years of age.” That subsection of the rule does not apply for two reasons. This was service by mail which must be done in accordance with the separate provisions of Rule 4 regulating service by mail. Also, it was undisputed that the place where the mail was delivered was not then the “dwelling house or usual place of abode” of Richard Green.

Yarbrough’s second argument is that Sharon Green was Richard Green’s agent. As noted above, we settled that question in the Wilburn case.

Reversed and dismissed.


author: Per Curiam. John I. Purtle, Justice,

text:
    Kenneth DOKES and Beverley Ann Willis v. STATE of Arkansas
    CR 89-14
    772 S.W.2d 583
    Supreme Court of Arkansas
    Opinion delivered June 12, 1989

      Appellants, pro se.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant Kenneth Dokes was convicted of robbery, aggravated robbery and theft of property and found to be an habitual offender. His co-defendant Beverly Ann Willis was convicted of robbery. Their attorney has lodged the record in an appeal from those convictions and has filed the appellant’s brief. Dokes has now filed the motion before us seeking permission to file a pro se supplement to the brief filed by counsel. After the motion was filed, Willis joined in it. In the motion the appellants contend that their attorney has not adequately addressed the issue of whether Dokes was afforded a speedy trial in one of the cases. They also allege that there was a conflict of interest between Dokes and his co-defendant Willis and between Dokes and counsel. They also assert that the trial court was wrong to accept some of Willis’s testimony as credible while rejecting other parts of it. They allege that their attorney was ineffective at trial and on appeal.

Unless an appellant can clearly show that the brief filed by his attorney is lacking, he will not be permitted to file a supplemental brief. Wade v. State, 288 Ark. 94, 702 S.W.2d 28 (1986). A brief will not be held deficient merely because the appellant is dissatisfied with the arguments made or the issues raised. See Jones v. Barnes, 463 U.S.745 (1983). The appellants’ unsubstantiated allegation that there was a speedy trial violation is not sufficient to show that counsel has failed to raise some significant issue. See Patterson v. Smith, 289 Ark. 564, 712 S.W.2d 922 (1986). Likewise, appellants’ claim that the trial court erred in assessing Willis’s credibility does not constitute a showing that counsel omitted some significant point from the brief.

Appellants’ allegations are in essence claims of ineffective assistance of counsel which cannot be raised for the first time on appeal. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). If appellants’ convictions are affirmed, they may, if they desire, raise allegations of ineffective assistance of counsel in a joint petition or in separate petitions for post-conviction relief pursuant to Criminal Procedure Rule 37, which is the proper forum for such claims.

Appellant Dokes has also filed a separate pro se motion asking this court to compel counsel to provide him with a copy of the trial transcript. As an appellate attorney is not obligated to see to it that his client has a copy of the transcript, the motion is denied.

Motions denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. In all fairness and in the furtherance of justice, we ought to allow the petitioner to file a pro se brief. It would amount to very little inconvenience to this court for the time being and might well save a considerable amount of time and work later. Furthermore, allowing the brief at this time would most likely not delay a decision on his direct appeal.

If we deny the motion now we most certainly will have to consider these same allegations when a Rule 37 petition is filed. Even so, most of the allegations relate to matters which are ordinarily considered on direct appeal. It is these allegations which will form the basis for a claim of ineffectiveness of trial counsel at a later date. Perhaps this very common allegation relating to the effectiveness of trial counsel could be avoided if we consider the movant’s allegations while we are reviewing the case on appeal.