author: Tom Glaze, Justice.

text:
    Gary SKELTON v. CITY OF ATKINS, Arkansas
    93-502
    875 S.W.2d 504
    Supreme Court of Arkansas
    Opinion delivered May 9, 1994

      Robert E. Irwin, for appellant.

      William S. Swain, for appellee.
   Tom Glaze, Justice.

On January 16, 1991, Rodney Cozort was convicted in the Atkins Police Court of DWI, second offense. Among the provisions of his sentence was an order to pay $805.00 as fine and costs. Cozort did not appeal his conviction and failed to pay the $805.00. Sometime later — not clear from the record — the trial court issued a warrant, and Cozort was arrested. On March 8, 1992, Cozort was released from jail on the payment of $805.00 by his friend, the appellant Gary Skelton. The record reflects that a factual dispute resulted as to whether Skelton’s payment was intended as a loan or gift to Cozort or a cash bond paid on Cozort’s behalf.

On June 30, 1992, the police court held a hearing to allow Cozort to show cause why he should not be imprisoned for nonpayment of the $805.00 fine and costs. On July 24, 1992, the police court entered an order finding the $805.00 paid by Skelton was the property of Cozort. The court further held the city acquired a lien on the $805.00 cash funds, and the court ordered foreclosure on those funds in satisfaction of Cozort’s debt for fine and costs.

On July 24, 1992, the same date of the police court’s order, Skelton filed suit in chancery court, naming the City of Atkins and its mayor as defendants and requesting an injunction to enjoin the city from using Skelton’s money for the payment of Cozort’s fine. The mayor answered, askiñg that he be dismissed from the suit, since he had no control over the police court, and therefore was not a proper party. The city attorney later filed an amended answer on the city’s behalf, generally and specifically denying the relief sought by Skelton. One month later, the chancery court dismissed the mayor from the lawsuit, leaving no official of the city as a party to the lawsuit. Nonetheless, the city attorney and Skelton both filed respective motions for summary judgment, and the chancellor granted the city attorney’s motion. The chancellor then entered an order in the city’s behalf, dismissing Skelton’s suit with prejudice. Skelton appeals from that order.

Skelton’s primary argument is that the chancery court erred in granting the city’s summary judgment motion because the record shows that, throughout the police court and chancery court proceedings below, Skelton disputed the fact that the $805.00 was Cozort’s. Skelton always contended that he had posted the $805.00 as an appearance bond, and Cozort had made all court appearances. Skelton claimed ownership and return of his cash bond. Consequently, Skelton argues the city had no lien on the disputed $805.00 upon which it could collect Cozort’s fines or costs under Ark. Code Ann. § 5-4-204 (Repl. 1993). In sum, Skelton submits that a dispute of a material fact exists as to the ownership of the $805.00, and therefore, the chancellor erred in granting the city’s summary judgment motion.

The city also claimed entitlement to the $805.00 as a deposit in lieu of bond paid by Skelton under Ark. Code Ann. § 16-84-115 (Supp. 1993). More particularly, the city relied on § 16-84-115(3) which provides that, upon judgment being rendered against a defendant for fine and costs, the court rendering the judgment may order any money deposited agreeably to this section to be applied to the payment thereof. Skelton says that he did not deposit his $805.00 under § 16-84-115 and in fact, he posted the funds long after Cozort’s conviction and after Cozort was ordered to show cause why he should not be jailed for failure to have paid his fine as directed by the court’s earlier conviction judgment. Whether Skelton and his posting of a bond comes within the language of the bail jprovisions set out in Ark. Code Ann. §§ 16-84-101 through 16-84-203 (Supp. 1993) is quite questionable, but we simply are unable to decide that issue because we must hold the chancery court did not have subject matter jurisdiction of this cause.

Neither party-addressed the question of jurisdiction of the chancery court, but jurisdiction is a question'we can address at any time. Head v. Caddo Hills School District, 277 Ark. 482, 644 S.W.2d 246 (1982); Bratcher v. Bratcher, 36 Ark. App. 206, 821 S.W.2d 481 (1991) (subject matter jurisdiction is always open, cannot be waived, and can be raised by this court sua sponte). The court has held that it is not only the right but the duty of this court to determine whether there is jurisdiction of the subject matter. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976).

The city police court has exclusive jurisdiction of all prosecutions and actions for infractions of the city’s bylaws or ordinances and concurrent jurisdiction with, the circuit courts and justices’ courts of prosecutions for. misdemeanors committed in the city. Ark. Code Ann. § 16-88-101(a)(3)(A) (1987); see also Ark. Code Ann. § 16-18-110 (1987) (which among other things provides the judges of the police court shall have within the limits of the city all the jurisdiction and power of a justice of the peace in all civil or criminal matters). Section 16-18-110(d) further provides that the police court judge has the exclusive jurisdiction of all prosecutions for violations of any city ordinance and may award and issue any process or writs that may be necessary to enforce the administration of justice throughout the city, and for the lawful exercise of his jurisdiction according to the usages and principles of law. The judge of the police court is also statutorily required to account for all penalties, fines, and forfeitures imposed by the court, in city cases, to the city council and pay into the city treasury the amount received. Ark. Code Ann. § 16-18-104 (1987). And lastly, any final conviction or sentence of the police court may be examined into by the circuit court.of the county and proceedings may-be stayed on such terms as may be reasonable. Ark. Code Ann. § 16-18-107 (Repl. 1994).

Rather than appealing to the circuit court the police court’s decision foreclosing on and attaching the disputed funds and applying them to Cozort’s-fine, Skelton filed suit in chancery court attempting to countermand the police court’s order by enjoining the city’s use of Skelton’s funds. We know of no authority by which the chancellor could grant Skelton such relief. In oral argument, Skelton suggested chancery court had such authority, assuming the city’s conversion of the funds amounted to an illegal exaction under Article 16, Section 13 of the Arkansas Constitution. However, our response to such suggestion is twofold: (1) appellant-Skelton’s record on appeal is limited to that which is abstracted, Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994), and nothing appears in either his abstract or argument that mentions illegal exaction; (2) while the transcript (not the abstract) contains Skelton’s complaint which, in one paragraph, does allege the city’s action amounted to an illegal exaction, nowhere in the record do we find that contention argued to or ruled on by the chancery court. Nor does Skelton even now indicate how the police court’s (or for that matter the city’s) action resulted in an illegal exaction.

Because the record fails to reflect the chancery court had jurisdiction of this cause, we must reverse and dismiss.

       Section 5-4-204 provides as follows:
      (a) When a defendant sentenced.to pay a fine or costs defaults in the payment thereof or of any installment, the fine or costs may be collected by any means authorized for the enforcement of money judgments in civil actions.
      (b) A judgment that the defendant pay a fine or costs shall constitute a lien on the real and personal property of the defendant in the same manner and to the same extent as a money judgment in a civil action.

       The transcript does reflect that some person (name illegible) did post a cash bond in the amount of $805.00 after Cozort’s arrest and before he was tried and convicted of the DWI 2nd violation.

       We note (hat, although Skelton claims ownership of the disputed funds and argues the funds were posted as a cash bond, he never formally intervened in the police court proceeding to assert his claim.


source: Caselaw Access Project

license: Public Domain

text:
    Charles B. STANLEY v. STATE of Arkansas
    CR 93-1023
    875 S.W.2d 493
    Supreme Court of Arkansas
    Opinion delivered May 9, 1994

      Green & Henry, by: J. Bradley Green, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Charles B. Stanley was arrested after two DeWitt police officers stopped a vehicle in which Stanley was a passenger. Lawrence Stanley, Charles’s brother, was the driver of the vehicle. The officers viewed some speakers and a stereo in the back seat of the car. The policemen subsequently obtained a warrant, searched the Stanley vehicle and recovered several items of what were determined to be stolen property. Afterwards, Lawrence and Charles’s nephew, William Stanley, were also placed under arrest. All three men were each charged in separate informations with two counts of burglary and two counts of theft of property. Lawrence gave a tape recorded statement on the same day he was arrested in which he claimed to have been the only participant in the burglaries. However, after William’s arrest, William gave two written custodial statements wherein he admitted that he, Charles and Lawrence participated in the burglaries of two DeWitt churches from which they took certain stereo equipment and speakers. Later, William wrote several letters to the prosecuting attorney, attempting to recant the portion of his prior statements implicating Charles’s involvement. Eventually, however, William entered a negotiated guilty plea, and received a sentence of seven years imprisonment in exchange for his testimony against Charles.

At Charles’s trial, William testified that he, Charles and Lawrence were staying at Elizabeth Hill’s house when they came up with the idea of burglarizing the two churches. Mrs. Hill is William’s grandmother and CharlesVand Lawrence’s mother. According to William, he, Charles and Lawrence broke into the first church, removed two Peavey amp speakers, a portable radio/cassette player, a dual cassette player, and other stereo equipment. They placed these stolen items in Lawrence’s car. The Stanleys then proceeded to the second church, w-here they broke in with a crowbar. After gaining entry, they located and placed a VCR and other equipment on the floor when they discovered a safe. They then attempted to break into the safe. William stated that he and his uncles abandoned most of the property they found in the second church because they had no room for it in the car.

Angela Fischer, William’s ex-girlfriend, also testified against Charles, stating that she was at the Hill residence where she witnessed Charles, Lawrence and William gathering up stolen items such as stereo equipment and speakers and preparing to dispose of the items by throwing them off of a bridge in DeWitt. Fischer also testified that the Stanleys gave her a Sony “jam-box,” which she later gave to the police.

Bob Paxton, a DeWitt police officer, who was present when Lawrence’s vehicle was stopped and searched, testified for the state. Paxton stated that, on the date of the arrests, he and another officer had stopped a red 1979 Ford Thunderbird which was driven by Lawrence, and they observed a large quantity of speakers and stereo equipment in the back seat of the car. He then arrested Charles, who was a passenger in the car, and transported him to the police station “for investigation.” The officers ordered Lawrence to drive his car to the county jail, where the car was impounded. After the officers obtained a search warrant, they recovered the items in the car that were later identified as being property that had been reported stolen from the two DeWitt churches.

For his defense, Charles called, as witnesses, Rebecca Brown, Elizabeth Hill, and Barbara Nash. Ms. Brown, Charles’s former girlfriend, stated that she, Charles and his mother, Mrs. Hill, were at Hill’s residence the entire night the two burglaries took place. Mrs. Hill corroborated Brown’s testimony. Hill stated that, because of the configuration of her house, it would be impossible for anyone to come in or go out of the door without Mrs. Hill being aware of it. Barbara Nash, William’s mother, testified that William “had been known to lie,” and in fact, “never tells the truth.” Nash went on to state that her son “doesn’t know how to tell the truth” and called him “a pathological liar.”

Based upon the foregoing evidence, Charles was found guilty of the burglary and theft counts with which he was charged, and was sentenced as a habitual offender. Charles Stanley filed a pro se notice of appeal and was allowed to proceed in forma pauperis. He also filed motions to replace counsel, to secure records, and a motion to reappoint counsel, alleging his attorney’s efforts on his behalf at trial were ineffective. Charles’s motions were denied.

For reversal, Charles Stanley’s counsel, appointed on appeal, argue eight points, but only one has been properly preserved. His first three arguments concern accomplice testimony and its insufficiency. He claims (1) that Angela Fischer was an accomplice as a matter of law, or at least a fact issue existed as to this issue, (2) that the corroborating evidence was insufficient to sustain the accomplice testimony and (3) that Fischer’s testimony should not be given any more weight than William Stanley’s. In considering these three matters, we note that it was Charles Stanley’s burden to establish at trial that Fischer was an accomplice to the crimes with which Charles was charged. Charles failed to meet that burden. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). He also has failed to produce a record sufficient to support his contentions on appeal. Jones v. State, 314 Ark. 383, 862 S.W.2d 273 (1993).

Charles Stanley’s other points not preserved include (1) his list of a dozen acts or omissions of trial counsel which he claims made counsel ineffective, (2) the prosecutor’s reference during sentencing to Stanley’s parole eligibility, (3) two undisclosed state witnesses being allowed to testify, and (4) a juror, who was a member of one of the burglarized churches, being permitted to serve. To raise his charge of ineffective assistance of counsel on direct appeal, Stanley was required to raise the issue at trial or by a motion for new trial, which he failed to do. See Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). Concerning Stanley’s arguments as to the prosecutor’s parole eligibility remarks and the state’s undisclosed witnesses being allowed to testify, Stanley again failed to make contemporaneous objections at trial which were required for appellate review. Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992). And finally, we cannot reach Stanley’s assertion that the juror who was a member of one of the burglarized churches was improperly selected because, again, he failed to object. In fact, Stanley voiced acceptance of the juror. Id. In addition, in order to preserve for appeal an objection to an empaneled juror, Stanley was required to have exhausted his peremptory challenges and show that he was forced to accept the juror who should have been excused for cause. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). Here, neither the record nor Stanley’s abstract reflects Stanley had exhausted his peremptory strikes when he accepted the juror.

We now discuss the one point for reversal which Stanley, at least in part, did preserve for review. In that point, he contends the trial court erred by denying his motion for mistrial after two witnesses’ testimony revealed to the jury that Stanley had prior incarcerations. The first witness, William Stanley, testified on re-cross examination that he was afraid of Charles because, “He’s been in the Army, [and] he’s been down to the penitentiary before.” After the court denied his mistrial motion, Charles stated that he did not want the court to admonish the jury. The second witness, Rebecca Brown, answered the state’s, question concerning when had the authorities questioned her, and she replied that she had been questioned once right before “they got arrested,” and “once during the parole hearing.” Stanley never objected to Brown’s comments, so we are unable to address that part of Stanley’s point on appeal. He did, however, object to William’s comments, so we do consider that portion of his argument.

We have recognized that any reference to a defendant’s prior convictions during the guilt phase of a bifurcated criminal trial always results in some prejudice. Strawhacker v. State, 304 Ark. 726, 729, 804 S.W.2d 720, 722 (1991). Trial courts, however, are granted wide latitude of discretion in granting or denying a motion for mistrial, and the court’s decision will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. Id.; Bennett v. State, 284 Ark. 87, 679 S.W.2d 202 (1984). Among the factors we consider on appeal are whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice. Id., Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993).

Here, William’s statement that Charles had been to the penitentiary was made in response to a question asked by defense counsel, and consequently, no argument can be made that the state in any way elicited the prejudicial response. Also, the trial court offered to admonish the jury, but Charles declined the offer. Charles Stanley’s failure to request a cautionary instruction or admonition may not inure to his benefit on appeal. Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993); Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). Based on the facts presented, it cannot be said that the trial court abused its discretion in denying Claries’s motion for mistrial.

For the reasons set out above, we affirm.


author: Robert L. Brown, Justice.

text:
    Steven BIRCHFIELD v. NATIONWIDE INSURANCE
    93-731
    875 S.W.2d 502
    Supreme Court of Arkansas
    Opinion delivered May 9, 1994

      Smith, Norwood & Martin, P.A., by: Holly L. Smith, for appellant.

      Joe Benson, for appellee.
   Robert L. Brown, Justice.

Steven Birchfield, the appellant, raises two points in his appeal. He first contends that the trial court erred in granting summary judgment in favor of the appellee Nationwide Insurance because the contractual language relied on by the court to deny benefits is ambiguous. Secondly, he argues that the court’s decision violates the public policy of the State. We are not persuaded by either point, and we affirm.

On May 21, 1989, Steven Birchfield, a minor, was a passenger in a car driven by Mr. Holliman. Mr. Holliman was involved in an accident with Mr.- Stines. Holliman had liability coverage with policy limits of $25,000. Stines’s liability coverage set a limit of $100,000. Birchfield sustained injuries in the accident and claimed damages from Holliman and Stines in excess of $250,000. At the time of the accident, Birchfield had underinsured motorist coverage (UIM) under a policy that Nationwide had issued to his mother, Wanda Birchfield. That policy limited underinsurance coverage as follows:

No payment will be made until the limits of all other liability insurance and bonds that apply have been exhausted by payments.

Birchfield filed a lawsuit against the liability companies for the two drivers, Holliman and Stines. He settled the joint lawsuit for $75,000, which was substantially less than the policy limits of $125,000 available from the liability insurance of Holliman and Stines. Following that settlement, Birchfield filed a complaint against his carrier, Nationwide, for the policy limits of his underinsured coverage which totaled $25,000. He claimed that since his injuries resulted in damages of $250,000 and that this amount was greater than the combined policy limits of the tortfeasors, Nationwide should honor his claim. Nationwide refused to do so.

Nationwide then moved for summary judgment and contended that because Birchfield settled with the tortfeasors for less than their policy limits, he was not entitled to UIM benefits. Birchfield responded that the limiting UIM language in the insurance contract was ambiguous and, therefore, a question of fact remained unanswered and summary judgment was not appropriate. In the alternative, he urged that if the policy were construed as Nationwide advocated, it would be void as against public policy. The circuit judge entered an order granting summary judgment.

Birchfield first claims that summary judgment was not proper because the UIM language in the policy, which purports to deny coverage unless the limits of all other liability insurance that apply have been “exhausted by payment,” is ambiguous. We do not agree. Birchfield is quite correct that summary judgment is a remedy which should only be granted when there are no genuine issues of fact to litigate and when the case can be decided as a matter of law. Ark. R. Civ. P. 56(c); Forrest City Mach. Works, Inc. v. Mosbacher, 312 Ark. 578, 851 S.W.2d 443 (1993). The burden of sustaining a motion for summary judgment is on the moving party with all doubts and inferences resolved against the moving party. Forrest City Mach. Works, Inc. v. Mosbacher, supra; Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992).

Here, however, the plain meaning of the language “exhausted by payments” regarding limits of other liability insurance is that all other available liability insurance must be paid in full before Birchfield is entitled to receive UIM benefits from Nationwide. The language is clear that it is the limits of the liability policies that must be paid and “exhausted.” As the trial court stated: “the only, logical, reasonable and unambiguous definition of ‘exhausted by payments’ is the payment of money by the insurer of the liability limits and not the action by the insured in compromising and settling at less than the liability limits. . ..” We hold that there is no genuine issue of material fact remaining as to the meaning of this policy language. Because we conclude that there is no ambiguity in the language, it is unnecessary to resort to rules of construction. Arkansas Kraft Corp. v. Boyed Sanders Constr. Co., 298 Ark. 36, 764 S.W.2d 452 (1989); Southern Farm Bureau Casualty Ins. Co. v. Williams, 260 Ark. 659, 543 S.W.2d 467 (1976).

Birchfield’s second issue is that permitting Nationwide to avoid paying UIM benefits because the insured has settled with the tortfeasors’ carriers for less than the tortfeasors’ policy limits is against public policy. See Shelter Gen. Ins. Co. v. Williams, 315 Ark. 409, 867 S.W.2d 457 (1993). More precisely, Birchfield’s argument is that to construe the contract, as Nationwide suggests, results in his being undercompensated for injuries rather than receiving the assistance that UIM coverage was designed to provide. He points out that even if he had insisted that the two carriers pay their policy limits, Nationwide would still be in the position of having to pay him UIM benefits due to his damages of $250,000. And, finally, because liability here is not clear, he contends that he easily could have received less than the settlement amount had the matter gone to a jury.

The UIM statute in effect at time of the accident was established by Act 335 of 1987 and read in pertinent part:

Coverage limits shall be equal to the limits of liability provided by the underinsured motorist coverage to the extent the coverage exceeds thé limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.

Ark. Code Ann. § 23-89-209(a) (1987) (emphasis ours). Act 1180 of 1993 changed the section to read in part as follows:

The coverage shall enable the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injuries to or death of an insured which the insured is legally entitled to recover from the owner or operator of another motor vehicle whenever the liability insurance limits of such other owner or operator are less than the amount of the damages incurred by the insured.

Ark. Code Ann. § 23-89-209(a)(3) (1993) (emphasis ours).

Hence, under both Act 335 of 1987 and Act 1180 of 1993 the legislative intent is clear that the inability to obtain the limits of liability coverage is what triggers the availability of under-insured benefits. With respect to Act 1180 of 1993, we are mindful that the accident in this case occurred in 1989. But we have looked to subsequent legislation in the underinsured motorist area to guide us in our interpretation of legislative enactments. See American Cas. Co. v. Mason, 312 Ark. 166, 848 S.W.2d 392 (1993); Shepherd v. State Auto Property and Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993). We choose to do so again in this case, and look to the expression of legislative intent as set out in Act 1180. We conclude that the public policy of this State was not violated by the trial court’s decision.

Affirmed.


author: Per Curiam.

text:
    Ricky FRANKLIN v. STATE of Arkansas
    CR 94-407
    875 S.W.2d 836
    Supreme Court of Arkansas
    Opinion delivered May 9, 1994

      Appellant, pro se.
    No response.
   Per Curiam.

In 1992 petitioner Ricky Franklin was found guilty by a jury of two counts of burglary and sentenced to two consecutive terms of imprisonment of twenty years. A fine of $20, 000.00 was also imposed. Petitioner was represented at trial by his retained attorney, C.P. Christian, who filed a timely notice of appeal of the judgment. The appeal was not perfected, and petitioner has now tendered a partial record of the lower court proceedings with a motion for rule on clerk, asking that the appeal be allowed to proceed.

Criminal Procedure Rule 36.26 provides that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout appeal, unless permitted by the trial court or this court to withdraw. Once the notice of appeal is filed with the circuit clerk only the appellate court can relieve counsel of the obligation to proceed with the appeal. Sup. Ct. Rule 4-3 (j) (1). A convicted defendant can waive his right to appeal by not informing counsel that he desires to appeal, but the timely filing of a notice of appeal in the instant case clearly demonstrates that petitioner did not waive his appeal right. See Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989). Attorney Christian did not receive permission from the appellate court to be relieved of his obligation to proceed with the appeal and thus appears to have abandoned the appeal. The direct appeal of a conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to consider his first appeal when his counsel has failed to follow mandatory appellate rules. See Reagan v. State, 316 Ark. 511, 872 S.W.2d 396 (1994), citing Evitts v. Lucey, 469 U.S. 387 (1985). To cut off a defendant’s right to appeal because of his attorney’s failure to follow rules would violate the Sixth Amendment right to effective assistance of counsel. Evitts v. Lucey, supra. See also Pennsylvania v. Finley, 481 U.S. 551 (1987).

Mr. Christian shall be directed by a separate Per Curiam order to appear before this court on June 6, 1994, at 9:00 a.m. and show cause why he should not be held in contempt of this court for failure to lodge the record on appeal in a timely manner, or in the alternative, to file a motion to be relieved as counsel in the appeal in accordance with the prevailing rules of procedure in a criminal case. The pro se motion for rule on clerk filed by petitioner will remain pending until the show cause hearing is completed.

Motion pending.

       When petitioner was convicted in 1992, Supreme Court Rule 11 (h) was in effect. Rule 11 (h) in all pertinent respects was identical to Rule 4-3 (j) (1) in its requirement that counsel be relieved by the appellant court once notice of appeal had been given.


author: C. P. Christian,

text:
    Ricky FRANKLIN v. STATE of Arkansas
    CR 94-407
    875 S.W.2d 836
    Supreme Court of Arkansas
    Opinion delivered May 9, 1994

      Appellant, pro se.
    No response.
   C. P. Christian,

attorney for petitioner Ricky Franklin, is

directed to appear before this court on June 6, 1994 at 9 a.m. and show cause why he should not be held in contempt of this court for failure to perfect an appeal of a judgment of conviction rendered against petitioner Ricky Franklin.

Order issued.


text:
    Dennis Wayne JOHNSON v. STATE of Arkansas
    CR 94-257
    875 S.W.2d 510
    Supreme Court of Arkansas
    Opinion delivered May 9, 1994

      George J. Stone, for appellant.
    No response.
   Per Curiam.

We treat this motion for rule on the clerk as a motion for a belated appeal. Appellant filed his notice of appeal on October 5, 1993, whereas the judgment was not entered until December 1, 1993. Under our rules the notice of appeal was of no effect. Ark. R. App. P. 4; Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 249 (1991).

We grant the motion for a belated appeal and direct that a copy of this opinion be forwarded to the Committee on Professional Conduct.


text:
    Franklin Allen ROWE v. STATE of Arkansas
    CR 94-261
    874 S.W.2d 375
    Supreme Court of Arkansas
    Opinion delivered May 9, 1994

      Gene O’Daniel, for appellant.
    No response.
   Per Curiam.

We treat this motion for rule on the

clerk as a motion for a belated appeal. Appellant filed his notice of appeal on October 7, 1993, whereas the judgment was not entered until December 21, 1993. Under our rules the notice of appeal was of no effect. Ark. R. App. P. 4; Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 249 (1991).

We grant the motion for a belated appeal and direct that a copy of this opinion be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Sherry HARMON v. STATE of Arkansas
    CR 93-695
    876 S.W.2d 240
    Supreme Court of Arkansas
    Opinion delivered May 16, 1994

      Robert C. Marquette, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal involves the interpretation of statutory provisions pertaining to the suspension of imposition of sentence in criminal cases. The appellant, Sherry Harmon, advances a single point on appeal, arguing that the circuit court erred in revoking the suspended imposition of sentence because the state failed to prove by a preponderance of the evidence that she had violated the conditions of her suspended sentence. The state responds that the circuit court did not revoke Ms. Harmon’s suspended imposition of sentence but merely modified its conditions. We hold, sua sponte, that the modification of the sentence by the trial court was not permitted by statute, that it was illegal, and that the trial court lacked jurisdiction to impose an illegal sentence.

Appellant Sherry Harmon and her husband, John Harmon, have experienced a turbulent marriage punctuated by periodic separations and violent altercations. On August 31, 1992, Ms. Harmon entered a plea of guilty to a reduced, class-A misdemeanor charge of first-degree assault against her husband.

The Crawford County Circuit Court’s “Judgment,” dated August 31, 1992, and filed October 5, 1992, noted that imposition of sentence was suspended for one year, “conditioned upon the Defendant’s good behavior and other written terms and conditions as set out by the Court. . . .” The judgment order specifically mentioned payment of a $500 fine and $107.75 court costs at the rate of $50 per month. Other “terms and conditions,” such as not violating any federal, state, or municipal law, and refraining from frequenting beer taverns or associating with persons with criminal records or bad characters, were listed in a separate document that Ms. Harmon signed.

On November 9, 1992, the state filed with the circuit court an amended petition to revoke Ms. Harmon’s suspended imposition of sentence. The petition alleged that Ms. Harmon had committed the misdemeanor offenses of disorderly conduct and public intoxication — both instances being in violation of the terms and conditions of her suspended sentence.

A hearing was held in the matter on December 4, 1992. The circuit court received municipal court transcripts showing Ms. Harmon’s convictions on the misdemeanor offenses that occurred on October 19, 1992. Ms. Harmon testified that, on the evening in question, she had not been drinking but had called the police twice to report abusive behavior by her husband, who was drunk.

The circuit court explained to her that “The State is trying to take care of you, ... I mean in kind of an odd way, but .. . you understand we’ve got to use the only methods available to us.” The court subsequently ruled that Ms. Harmon’s suspended sentence would remain in effect but that it would be modified by the addition of another $500 fine and a sentence of “two weeks in the Crawford County Detention Center.”

On appeal, Ms. Harmon argues that the circuit court erred in sentencing her to a two-week jail term because the state failed to produce evidence, other than the transcripts of her two convictions in municipal court, that she had violated the terms and conditions of her suspended sentence. Instead, she insists, her uncontradicted testimony at the hearing “proved that not only was she not guilty of intoxication, but that she also was not guilty of the offense of disorderly conduct.”

This argument, of course, is meritless. The convictions entered in evidence speak for themselves. Judgments are generally construed like other instruments, and Ms. Harmon was not entitled to an independent determination by the circuit court of matters already resolved by the municipal court. DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993).

But the question is not so simply settled, for the state, being aware that this court might question, for the first time on appeal, the trial court’s loss of jurisdiction over a defendant, shifts the focus of the issue. See Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989). The state contends that, rather than revoking Ms. Harmon’s suspended imposition of sentence, the circuit court merely modified the conditions of the suspension, as it had a right to do under Ark. Code Ann. § 5-4-306(b) (Repl. 1993). That statute provides that: The state concedes that neither a period of incarceration nor a fine explicitly appears in the list of possible conditions of suspension of imposition of sentence set forth in Ark. Code Ann. § 5-4-303(c) (Repl. 1994). Nevertheless, according to the state, both incarceration and fines are comprehended by the provision in subsection (c)(10) that requires a defendant to “[s]atisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.”

During the period of suspension or probation, the court, on motion of a probation officer or the defendant, or on its own motion, may modify the conditions imposed on the defendant or impose additional conditions authorized by § 5-4-303.

Under Ark. Code Ann. § 5-4-304(a) (Repl. 1994), a court, when suspending the imposition of sentence:

may require, as an additional condition of its order, that the defendant serve a period of confinement in the county jail, city jail, or other authorized local detentional, correctional, or rehabilitative facility, at whatever time or consecutive or nonconsecutive intervals within the period of suspension or probation as the court shall direct.

This procedure, however, may be accomplished only when the suspension of imposition of sentence is given effect. A trial court loses jurisdiction to modify or amend the original sentence once a valid sentence is put into execution. DeHart v. State, supra; Jones v. State, supra.

In the Jones case, the defendant, Starla Jones, had entered a guilty plea to a theft-by-deception charge. The trial court fined her and suspended imposition of sentence for five years. In addition, the court ordered restitution and costs to be paid. Subsequently, the state sought to set aside the suspended sentence. Following a hearing, the trial court ordered that the original suspension of imposition of sentence remain in effect and that Jones be sentenced to sixty days in jail and be required to pay a higher amount in restitution.

This court, noting Jones’s failure to raise the jurisdictional question below, pointed out that the trial court’s loss of jurisdiction over a defendant is always open, cannot be waived, and may be raised by the Supreme Court on its own motion. Jones v. State, supra. We then examined Ark. Code Ann. § 5-4-301(d)(1) (Repl. 1993), which states:

(d) When the court suspends the imposition of sentence on a defendant or places him on probation, the court shall enter a judgment of conviction only if:
(1) It sentences the defendant to pay a fine and suspends imposition of sentence as to imprisonment or places the defendant on probation. . . .

In our analysis, we quoted the commentary to the identical predecessor statute, Ark. Stat. Ann. § 41-1201(3):

Subsection (3) excepts two situations from the general rule that a judgment of conviction is not to be entered when a court orders suspension or probation. The first is when the court fines the defendant and suspends or probates him only as to imprisonment. The court must enter a judgment of conviction if it is to have a basis for imposing a fine. Furthermore, the defendant who is found guilty of an offense and sentenced to pay a fine only has clearly been “convicted” of the offense. The result should not be different when the court suspends imposition of sentence or places him on probation as to imprisonment.

Id., 297 Ark. at 486-487, 763 S.W.2d at 82.

“Clearly,” we noted, “a plea of guilty, coupled with a fine and a suspension of imposition of sentence of imprisonment constitutes a conviction.” 297 Ark. at 487, 763 S.W.2d at 82. We held, further, that a sentence by a circuit court to pay a fine is put into execution when the judgment of conviction is entered. In that light, we declared the attempted modification of the original order erroneous.

The state attempts to distinguish Jones v. State on the basis that, here, the Crawford County Circuit Court did not directly impose a fine on Ms. Harmon when it originally suspended imposition of her sentence but instead conditioned the suspension on her payment of a $500 fine. According to the state, the language of Ark. Code Ann. § 5-4-301(d)(l) denotes two separate sentencing dispositions through the use of the conjunction “and” in the phrase “sentences the defendant to pay a fine and suspends imposition of sentence as to imprisonment.” If, the state urges, the circuit only suspends imposition of sentence and conditions that suspension on the payment of a fine, there is no judgment of conviction to be put into execution, and the court had jurisdiction to modify the terms of the suspension under Ark. Code Ann. § 5-4-306(b).

This somewhat circular argument, however, ignores both the fact that the order issued by the circuit court was explicitly titled “Judgment” and the fact that Jones v. State, supra, dealt with the same statutory section at issue in the present case, i.e., Ark. Code Ann. § 5-4-301(d)(l). The state’s reliance on § 5-4-306(b), which authorizes modification of conditions, and Palmer v. State, 31 Ark. 97, 788 S.W.2d 248 (1990), which deals with that section, is misplaced because, in Jones v. State, supra, we interpreted § 5-4-301(d)(1) to mean that a guilty plea, a fine, and suspension of imposition of sentence amount to a conviction, which, in turn, entails execution -— which precludes a court from proceeding under the auspices of § 5-4-306(b).

We recognized in DeHart v. State, supra, the validity of a court’s ordering the payment of fines in unrelated cases as a condition of suspension. A separate, unsatisfied, existing fine, though, is not the sort of contemporaneous “fine” mentioned in § 5-4-301(d)(1) and imposed in the present case.

In sum, Ms. Harmon’s original sentence had been put into execution, and the court below lost jurisdiction to amend or modify it. The order modifying the original sentence is reversed.

Reversed and remanded.


text:
    Nora PARMLEY v. J.I. MOOSE, M.D.
    93-1400
    876 S.W.2d 243
    Supreme Court of Arkansas
    Opinion delivered May 16, 1994

      Sexton Law Firm, P.A., by: Stephen H. Meeh, for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard, by: Richard L. Angel and Amelia Mosley Russell, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal raises issues concerning the scope of our holding in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), a medical malpractice case, in relation to Ark. Code Ann. § 16-114-204 (Supp. 1993)(“Notice of intent to sue”)- In the present case, the trial court correctly dismissed appellant Nora Parmley’s medical malpractice action with prejudice, ruling that the statute was invalidated in its entirety by Weidrick and that the two-year statute of limitations set forth in Ark. Code Ann. § 16-114-203(a) (Supp. 1993) is controlling.

We addressed this matter dispositively in Thomas v. Cornell, 316 Ark. 366, 872 S.W.2d 370 (1994), a recent opinion handed down after the trial court had entered its findings in this case and counsel had submitted their briefs in this appeal. In the light of our holding in Thomas that the entire statute in question was in conflict with and superseded by Ark. R. Civ. P. 3, we affirm the decision of the trial court.

On April 7, 1993, the appellant, Nora Parmley, filed a medical malpractice action against the appellee, J.I. Moose, M.D., alleging that Dr. Moose had been negligent in rendering medical care between April 21, 1988, and February 7, 1991. She stated in her complaint that, during the course of her treatment by Dr. Moose, she experienced progressively worsening pulmonary problems. These, Ms. Parmley averred, eventually deteriorated to the point where she developed cyanosis, a condition defined as a “dark bluish or purplish coloration of the skin and mucous membrane due to deficient oxygenation of the blood. .. .” Steadman’s Medical Dictionary, 383 (25th ed., 1990).

According to the complaint, Ms. Parmley’s condition began gradually to improve only after she discontinued treatment by Dr. Moose in February 1991, when she was admitted first to the intensive care unit at the Siloam Springs Memorial Hospital and then to the St. Francis Hospital in Tulsa, Oklahoma. Ms. Parmley stated that her serious condition resulted directly from the failure of Dr. Moose to provide a correct diagnosis and to employ a regimen of treatment consistent with generally accepted methods in the medical community. She requested compensation for her pain, anguish, mental and physical distress, and permanent heart damage.

On January 8, 1993, eighty-eight days before she filed her complaint, Ms. Parmley served a “Notice of Intent to Sue” upon Dr. Moose, pursuant to Ark. Code Ann. § 16-114-204 (Supp. 1993). That section states:

(a) No action for medical injury shall be commenced until at least sixty (60) days after service upon the person or persons alleged to be liable, by certified or registered mail to the last known address of the person or persons allegedly liable, of a written notice of the alleged injuries and the damages claimed. Provided, service of the written notice of the alleged injuries and damages claimed may also be made by hand delivery.
(b) If the notice is served within sixty (60) days of the expiration of the period for bringing suit described in § 16-114-203, the time for commencement of the action shall be extended ninety (90) days from the service of the notice. When service is by certified or registered mail, the date of service of the notice shall be the date of the mailing of the written notice.

Under Ark. Code Ann. § 16-114-203(a), except for cases involving obstetrical care or incompetents, “all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.” Subsection (b) provides that “The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.”

The final date on which Ms. Parmley alleged negligence, February 7, 1991, became, for the purposes of the lawsuit, the “date of the accrual of the cause of action.” The statute of limitations expired on February 7, 1993, and the January 8, 1993 notice of intent to sue was served within sixty days of the end of the statutory period. A grace period of ninety days was provided under such circumstances by Ark. Code Ann. § 16-114-204(b), extending the time for commencement of the action, and the filing on April 7, 1993, occurred, as noted above, eighty-eight days after service of the notice of intent to sue.

Dr. Moose filed a motion to dismiss on April 30, 1993, contending that this court’s decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), abolished the sixty-day notice requirement and the ninety-day extension. We held in Weidrick that Ark. R. Civ. P. 3, which states that “[a] civil action is commenced by filing a complaint with the clerk of the proper court who shall note thereon the date and precise time of filing,” directly conflicts with and supersedes Ark. Code Ann. § 16-114-204. Hence, Dr. Moose urged, the two-year limitation of Ark. Code Ann. § 16-114-203(a) was applicable, and the action, filed on April 7, 1993, two months after the expiration of the relevant period, was barred by the statute of limitations.

On September 2, 1993, following a hearing, the circuit court entered an order finding that Weidrick v. Arnold, supra, “effectively reduced the applicable statute of limitations in medical negligence cases to two (2) years” and invalidated Ark. Code Ann. § 16-114-204 “in its entirety,” precluding Ms. Parmley from taking advantage of the ninety-day extension under subsection (b). The complaint was “dismissed with prejudice based upon the applicable statute of limitations.” From that decision, this appeal arises.

I. Validity of Ark. Code Ann. § 16-114-204(b)

In her first point for reversal, Ms. Parmley argues that the trial court erred in dismissing her complaint on the basis that Ark. Code Ann. § 16-114-204 had been invalidated in its entirety. She contends that subsection (b), containing the authorization for the ninety-day extension for commencement of a malpractice action, was not affected by this court’s holding in Weidrick v. Arnold, supra, and that its provisions may still be given effect.

As previously stated, this issue recently was settled conclusively in Thomas v. Cornell, supra, where we explicated our holding in Weidrick v. Arnold, supra, and determined that the two sections of Ark. Code Ann. § 16-114-204 “are dependent upon one another, and, accordingly, to have held in Weidrick that section (a) is superseded in its application is to render the entire statute superseded.” 316 Ark. at 371, 872 S.W.2d at 373. Our rationale was grounded in the well-established principle that when the purpose of a statute is to accomplish a single object, and some of its provisions are invalid, the whole must fail unless sufficient language remains to effect the object without the aid of the invalid portion. Thomas v. Cornell, supra; Allen v. Langston, 216 Ark. 77, 224 S.W.2d 377 (1949).

In short, we have already decided this issue.

II. Applicable statute of limitations

For her second point for reversal, Ms. Parmley asserts that, because the trial court below noted that this court had specifically invalidated only Ark. Code Ann. § 16-114-204(a), there was reasonable doubt regarding whether the ninety-day extension was available to her. Of course, our decisions in Thomas v. Cornell, supra, and Weidrick v. Arnold, supra, render this issue moot.

III. Strict construction of Ark. Code Ann. § 16-114-204

Ms. Parmley urges, in her third point on appeal, that the trial court erred in finding that Ark. Code Ann. § 16-114-204 is invalid in its entirety because the statute is in derogation of the common law and must be strictly construed in favor of those upon whom the burden sought to be imposed. See Hartford Ins. Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971). Again, the question is mooted by Thomas v. Cornell, supra, and Weidrick v. Arnold, supra.

Moreover, the question was not specifically raised below, and no ruling was obtained on the issue. Arguments not raised at trial are not considered on appeal. Gilliam v. Thompson, 313 Ark. 698, 856 S.W.2d 877 (1993).

IV. Constitutionality of Act 709 of 1979

In her fourth and final point for reversal, Ms. Parmley argues that, if Ark. Code Ann. § 16-114-204 is invalid in its entirety, then Act 709 of 1979, which addresses actions for medical injury, is unconstitutional, and the trial court erred in not declaring it so. She raised the constitutional question in her response to Dr. Moose’s motion to dismiss but neglected, initially, to give notice to the Attorney General as required by Ark. Code Ann. § 16-111- 106(b) (1987). Subsequently, the trial court ordered her to raise the issue properly within twenty days or waive it.

Ms. Parmley notified the Attorney General of her constitutional challenge within the allotted period. However, she failed to pursue the issue further, neither filing motions with the trial court on the question nor requesting a ruling on her previous challenge. As a result, the trial court never ruled on the constitutional issue. The burden of obtaining a ruling is on the movant; matters left unresolved are waived and may not be raised on appeal. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991).

Affirmed.


author: Robert H. Dudley, Justice. Robert L. Brown, Justice,

text:
    PURINA MILLS, INC. and Jack Price v. Jimmy R. ASKINS and Robin Askins
    93-1050
    875 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered May 16, 1994

      The Rose Law Firm, A Professional Association, for appellants.

      Wilson, Engstrom, Corum, Dudley & Coulter, by: Stephen Engstrom, for appellees.
   Robert H. Dudley, Justice.

Robin and Jimmy Askins own and operate a small dairy farm near Subiaco. Before March 1990, the Askinses fed their cows small amounts of Tank Topper and Maxi Tech, two kinds of cattle feed manufactured by Purina Mills, Inc., but they principally fed a brand manufactured by another company. A Purina salesman told them that Purina products would work better in their computerized feeding system. He gave them a booklet entitled Purina Dairy Facts Booklet, co-authored by various nutritionists and veterinarians, that discusses the importance of vitamins A and D and lists some of the symptoms of illnesses caused by deficiencies of these two vitamins. He told them that Tank Topper and Maxi Tech would meet all of the cows’ nutritional needs. The tags on both Tank Topper and Maxi Tech stated that they contained a “guaranteed analysis” of “vitamin A not less than 5000 IU/lb,” or 5000 international units per pound, and “vitamin D not less than . . . 1000 IU/lb.” In March 1990, in reliance on the representations by the Purina salesman, the Askinses began feeding their cows Tank Topper and Maxi Tech feeds exclusively. The Askinses bought the feed from the Price Milling Company, which is owned by Jack Price.

After switching wholly to the Purina feeds, the Askinses noticed that the cows began to have problems. First, they saw a drop in milk production. Next, they saw that some of the cows were listless, some had dull or runny eyes, others had rough, dull coats and a bad general appearance, some lost their appetites, and some had diarrhea. Later, some showed evidence of reproductive problems such as spontaneous abortions, retained placentas, inability to conceive, and irregular heat periods. Six cows died and five had to be sold because of low productivity. The Askinses sought to find the cause of the problems. In May 1990, they asked a Purina salesman to take a fecal sample and conduct a fecal worm egg count. The sample was taken, but the analysis showed that this was not the problem. The Askinses sent six blood samples to the Iowa Testing Laboratories, and four of the samples tested positive for bovine leukemia virus, but all were negative for leptospirosis, a parasitic infection. Milk tests for iodine content were negative. A blood sample from one of the dead cows revealed low zinc, copper, and cobalt contents, deficiencies which could cause anemia. On another cow, a test for brucellosis, a bacterial infection, was returned negative.

In June 1990, the Askinses called a representative of Purina and requested that the Purina feed be taken back. When a Purina employee came to their farm to pick up the remaining feed, both he and Jimmy Askins removed a sample of Maxi Tech and each placed his sample in a plastic bag. Jimmy Askins stored his sample in a freezer. The Askinses began using a different manufacturer’s brand of feed that contained twice the vitamin A the Purina feed was purported to have. They soon saw an increase in milk production and, over a longer period of time, saw a decrease of the other symptoms. After consulting with a veterinarian, Jimmy Askins began to suspect the cows’ illnesses had been caused by a vitamin A deficiency. In December 1990, he sent his sample, which had been stored in the freezer, to the Iowa Testing Laboratory. The laboratory tested for the content of vitamins A and D and found that the sample contained 2,611 IU/lb. of A and 802 IU/lb. of D. The test seemed to confirm his suspicion that vitamin A deficiency was the cause of the problems. He gave some of the cows vitamin A injections and immediately noticed a further improvement.

The Askinses subsequently filed this suit against the manufacturer of the feeds, Purina Mills, Inc., and the supplier of the feeds, Jack Price. Their complaint alleged that Purina and Price were liable under the alternative theories of strict liability and breach of express and implied warranty. Price filed a counterclaim against the Askinses for the amount they owed on an open account for feed and other merchandise. A jury awarded the Askinses $80,045 and awarded Price $3,837 on his counterclaim. Purina and Price appeal, contesting the judgment in favor of the Askinses, and Price appeals separately, alleging the verdict on his counterclaim was inadequate. The Askinses do not cross-appeal. We reverse and remand on the appeal by Purina and Price. We affirm on Price’s appeal of his counterclaim.

Purina and Price’s assignment of error that requires us to reverse and remand is the assignment that the verdict was excessive. Over Purina and Price’s objection, the trial court instructed the jurors that if they found for the Askinses on the issue of liability, they were to then fix the amount of damages, and that would include, among other things, “the difference in fair market value of dairy cattle, dead or culled, from the herd.” Purina and Price had earlier objected to the instruction, arguing in part that there was no substantial evidence any cows had died or were culled because of a vitamin deficiency. The testimony on the issue was as follows. The Askinses testified that during the time the cattle showed the various symptoms, six mature cows died, five had to be culled from the herd, and the remaining cows were listless, had dull, rough coats, runny eyes, a poor general appearance, and produced noticeably less milk. They testified that the remaining cows demonstrated improvement after injections of vitamin A. Jimmy Askins testified about the market value of each of the dead or culled cows, the income lost from each, the value of aborted calves, and the losses for the increase in calving interval and, considering all of those factors, concluded that they had suffered $80,045 in damages.

Next, the Askinses presented two expert witnesses, Dr. Glen Krumme, a doctor of veterinary medicine who specializes in cattle reproduction, and Dr. Wayne Kellogg, a professor of animal science who specializes in management and nutrition of dairy cattle. Dr. Krumme testified that it was highly probable that a vitamin A deficiency was the cause of the problems, and he agreed that the symptoms were consistent with those described in Purina’s booklet Dairy Cattle Feeding and Nutrition. However, he also stated that he could not “testify one way or another that the dead cows died because of a vitamin A deficiency.” Dr. Kellogg testified that the most common symptoms of vitamin A deficiency are reproductive problems and that it is rare for a cow to die from such a deficiency. He testified that there was no evidence that the six cows died from a vitamin A deficiency. The Askinses offered no other proof about the cause of the deaths of the six cows. This proof, given its highest probative value and drawing all possible inferences in favor of appellees Askinses, fails to objectively link the vitamin A deficiency with the deaths of the six cows. The jury returned a general verdict that unquestionably included damages for the dead cows, the loss of milk from them, and the loss of reproduction from them. The verdict was accordingly excessive, and we must reverse. Since there was substantial evidence of other damages, we remand for another trial.

In arguing that the verdict was excessive, Purina and Price additionally contend that “there can be no recovery for future milk and calf production of a cow which has been disposed of, after a replacement of comparable capacity has been or could have been acquired.” Essentially they are arguing that the jury should have been instructed to reduce damages for failure to mitigate, but they did not submit such a proposed instruction to the trial court. We will not consider such an argument for the first time on appeal. Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 317 (1992).

Purina and Price also contend that we should dismiss this case because there was no substantial evidence that the feeds failed to contain the amount of vitamins represented and even if the feed did not contain those amounts, it was not the proximate cause of the cows’ problems. We reject these arguments. The laboratory test showed vitamin deficiencies in the feed, and the test constituted substantial evidence of vitamin deficiencies. Purina’s booklet describes symptoms of vitamin deficiencies, and the herd showed many of those symptoms. Drs. Krumme and Kellogg testified that a vitamin A deficiency could have caused any of the cows’ problems except for the death of the mature cows. Thus, there was substantial evidence that the feeds were inadequate and caused injury to the cows. Purina and Price point out that their feed was fed exclusively for only three months, and that both their experts agreed, and common sense dictates, that the various illnesses could not be caused by a vitamin A deficiency over such a short period. They argue that cattle got along without vitamin supplements from Biblical times until thirty years ago, and, therefore, as a matter of common sense, a vitamin deficiency over a three-month period could not cause the illnesses. There was a valid dispute over the issue, and the Askinses presented substantial evidence that the illnesses were caused by the deficiency, so it was a matter for the jury. Similarly, it was for the jury to determine whether the sample was sufficient to show that the feed was defective, whether it was adequately stored, and whether the test was performed in a timely manner.

We now address those assignments which will likely arise again upon retrial. Purina and Price contend the proof was insufficient to justify submitting the case to the jury on both the warranty theories and strict liability. It is not error per se to submit a case to the jury on alternative theories of recovery. DuPont DeNemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 759 (1983). Assuming the proof is the same upon remand as it was in the first trial, the trial court may again correctly give the same instructions on breach of warranties. At the first trial, the Askinses presented testimony that the cows became sick soon after eating the feed, and an analysis of the feed later showed it to be vitamin-deficient. The implied warranty of merchantability is breached when a product is not suited for its ordinary purpose. See Ark. Code Ann. § 4-2-314 (Repl. 1991). Feed that makes cows sick is not fit for its ordinary purpose, and the trial court correctly instructed on the issue of breach of warranty of merchantability. Purina and Price contend that there was no proof that Purina knew of any particular purpose for which the Askinses intended to use the feed. To the contrary, there was proof that the Purina salesman made specific recommendations for the Askinses’ dairy operation. Purina and Price contend the Askinses were not entitled to the instruction on breach of express warranty because there was no proof that the feed was unfit at the time of the sale. Again to the contrary, there was testimony that the cattle were fed the food shortly after it was purchased, that they became ill shortly after eating it, and that the feed was later proven to be deficient. The proof, and its reasonable inferences, constituted substantial circumstantial evidence .that the feed was deficient at the time of the sale. Again, assuming the proof is the same, all of the instructions on breach of warranties may again be correctly given.

For the case to be correctly submitted to the jury on strict liability, the Askinses will have to offer proof that the feed was in a “defective condition which rendered it unreasonably dangerous” and that the “defective condition was a proximate cause of harm” to the cattle. Ark. Code Ann. §§ 4-86-102(a)(2) & (3) (Repl. 1991). The concept of strict liability is not intended to apply to all products supplied in a defective condition, but rather is to apply to products which are both defective and unreasonably dangerous. See Purvis v. Consolidated Energy Prods. Co., 674 F.2d 217 (4th Cir. 1981); Two Rivers Co. v. Curtiss Breeding Serv., 624 F.2d 1242 (5th Cir. 1980); Texsun Feed Yards, Inc. v. Ralston Purina Co., 447 F.2d 660 (5th Cir. 1971); Hart Eng’g Co. v. FMC Corp., 593 F. Supp. 1471 (D.C.R.I. 1984); Berkeley Pump Co. v. Reed-Johnson Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983); Brown v. Western Farmers Ass’n, 521 P.2d 537 (Or. 1974); Continental Ins. v. Page Eng’g Co., 783 P.2d 641 (Wy. 1989).

Our law is patterned after the Restatement (Second) of Torts § 402A, the comments to which define “unreasonably dangerous” as requiring something beyond that contemplated by the ordinary and reasonable buyer, taking into account any special knowledge of the buyer concerning the characteristics, propensities, risks, dangers, and proper and improper uses of the product. The possibility that manufactured feed for livestock might not contain the nutritional constituents recited on its labels, or that such levels might be affected by time, weather, or methods of storage, would hardly be beyond the contemplation of the ordinary buyer. See Berkeley Pump Co., 279 Ark. at 394, 653 S.W.2d at 133.

We recognize the Askinses may have stronger proof on this issue upon remand. If the proof on retrial shows that the feed was simply supplied in a defective condition, the instruction should not be given. However, if the proof shows that the feed was defective and unreasonably dangerous, for example, that it was toxic, the instruction should be given.

Price separately argues that, the amount awarded on his counterclaim was insufficient. He testified that the Askinses owed $9,918.89 for the Tank Topper and Maxi Tech feeds and other supplies. The price of the other supplies amounted to $3,837.02, the exact amount that the jury awarded Price on his counterclaim. The jurors were instructed that Price was entitled to recover the full sale price of the feed and the other supplies, unless the jury found that the feed had “less than full value at the time of sale by reason of a deficiency of vitamins A or D,” in which case Price would get “only the fair market value of the feed actually delivered.” The jury apparently determined that the Tank Topper and Maxi Tech were worthless, and such a finding, under the instructions given, was within the jury’s province.

Affirmed in part and reversed and remanded in part.

Brown, J„ dissents.

Robert L. Brown, Justice,

dissenting. The majority holds

that there was substantial evidence that the Purina feed caused serious illness in the Askins herd of dairy cows but that there was no evidence of a causal link between the deficient feed and the deaths of six cows. What the majority has failed to do is to examine all reasonable inferences from the evidence introduced and then to view the total proof in the light most favorable to the Askinses. That is the test. John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993). In my judgment, if the feed caused aborted calves, listlessness, diarrhea, loss of appetite, and inability to lactate and these conditions continued and progressed over a period of time, death was the inevitable result. The vitamin deficiency need only be a proximate cause of death — not the sole reason for the cows’ demise. Missouri Pacific R.R. v. Mackey, 297 Ark. 137, 760 S.W.2d 59 (1988); see also Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987).

One of the cows’ owners, Jim Askins, described the progression of the disease and the demise of his cows with these words:

I didn’t have any health problems that I considered [on] a herd basis in 1989. In 1990, after feeding the Purina feeds I had a whole herd health problem. I had cows that got very sick, cows that pushed themselves to come in the barn, they didn’t want to, but they knew that that was the routine. Those cows, some of those cows eventually just laid down and could not get up and come in the barn. They died. Other cows dropped dramatically in production and those cows that dropped so dramatic, based on that the breeding performance, cows that I could not get bred back, I had to cull some cows. They were not profitable to keep there.

The other owner, Robin Askins, described the cows’ illnesses and deaths this way:

The milk production fell off. The longer into it that it went, the thinner they became. A number of them eventually were down and were not able to get up.

The correlation between illness and death in this combined testimony is clear.

The majority states that the Askins expert witness, Dr. Glen Krumme, a practicing veterinarian, could not testify that the Vitamin A deficiency caused the cows to die. Yet he did not dismiss this conclusion out of hand. What Dr. Krumme actually testified to was that it was “highly probable” that the bad feed caused the problems to the cows. He then answered on cross-examination that he did not do the autopsies on the cows, and because of that he did not know exactly what caused the deaths:

Q. Are you able to testify that these cows that died, died because of a Vitamin A deficiency?
A. I have — I can’t testify to that one way or another.
A. Okay.
A. I wasn’t present around the cows to see them autopsied or anything. There’s lots of things that could have killed some of those cows. Some of them may have and some of them may not. I can’t testify to that for certain.

That is a far cry from the majority’s suggestion that Dr. Krumme dismissed the vitamin deficiency as a cause of death.

The same holds true of the animal nutritionist, Wayne Kellogg, who was called to testify for the Askinses and concluded after reviewing the records and reports on the Askins herd that there was an unusual loss of cows during the critical period of time. He was not called to testify about cause of death and did not do so. Yet, the majority extrapolates from Kellogg’s absence of testimony on this point positive proof that the Vitamin A deficiency did not cause the cows to die. On cross-examination when Kellogg was asked about cause of death, he answered as follows:

DEFENSE COUNSEL: Do you find that the results of the laboratory test show that the cow died because of a Vitamin A deficiency?
KELLOGG: There’s no evidence there that that was the case. The — in fact the Vitamin A was not even run.

Failure to run tests cannot translate into evidence that a Vitamin A deficiency was not linked to the death of the cows.

In 1990, this court reversed a summary judgment which had been entered in favor of the sellers of hog feed. Baggett v. Bradley County Farmers Cooperative, 302 Ark. 401, 789 S.W.2d 733 (1990). The buyers who operated a hog feeding business contended that the negligent mix of hog feed with cattle feed caused their hogs to become ill and die. Both sides moved for summary judgment. The sellers submitted the affidavit of a nutritionist stating that the feed did not cause the disease. The buyers attached part of the deposition of a veterinarian who testified that the mixed feed could change the hogs intestines and cause an eruption of illness but that he could not be certain of the precise cause of illness without knowing what else the hogs had eaten. We reversed the summary judgment in favor of the sellers and held that even though the veterinarian did not know what exactly caused the illness, this was a fact question for the jury to decide.

Similarly, in this case cause of death was for the jury to determine, and the jury did so based on substantial evidence. What the jury had before it was the testimony of the owners of the cows who presented their first-hand observations of the cows’ illnesses and, in some instances, their deaths. These empirical observations on a day-to-day basis were coupled with the testimony of Dr. Krumme that it was “highly probable” that the bad feed caused the problems. Krumme did not examine the dead cows post mortem and could not state with medical certainty precisely what caused their death, which is reminiscent of the veterinarian in the Baggett case, but he could testify that the deficient feed made them very sick. And, again, the majority concludes that there was enough evidence to support the jury verdict that the Purina feed caused the serious illnesses. We should not require an expert witness to tell the jury that serious illness which goes untreated and unchecked may well lead to death.

I would view the proof favorably to the Askinses, as we are required to do, consider the inferences arising from that proof, and affirm the verdict.


author: Robert H. Dudley, Justice.

text:
    Lawrence MYERS v. STATE of Arkansas
    94-16
    876 S.W.2d 246
    Supreme Court of Arkansas
    Opinion delivered May 16, 1994

      Frances Morris Finley, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was seventeen years of age when he was charged in the juvenile division of chancery court with the crime of robbery. At appellant’s first appearance in chancery court, the State moved to transfer the case to circuit court. A hearing was held, and the chancellor transferred the case. Appellant appeals. We affirm.

Appellant first contends that the chancellor committed error in admitting into evidence proof of prior adjudications of guilt in juvenile court. He contends the ruling violated the hearsay rule and was in violation of the best evidence rule. See A.R.E. Rules 803 & 1002, 1003. We do not reach the issue because appellant did not raise either of these objections at the trial level. See Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993). At trial, he objected on the basis that the records kept by the Administrative Office of the Courts were more reliable than the chancery clerk’s records. On appeal, an appellant cannot make an argument that is different from that made at trial. Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993). In addition, appellant is the one who offered the records that he now contends were erroneously admitted into evidence. A party cannot complain of a favorable ruling. Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990).

Appellant next contends that the chancellor erred in considering the availability of state rehabilitative programs. There is no merit in the argument. Appellant’s date of birth was November 30, 1975. He is now eighteen years old and cannot be committed to a youth services center if convicted. See Ark. Code Ann. §§ 9-27-331(a)(1) & 9-28-209(a)(1) (Repl. 1993). In Bright v. State, 307 Ark. 250, 819 S.W.2d 7 (1991), we affirmed the denial of a transfer to chancery court, in part, on the fact that the juvenile had turned eighteen and, therefore, could no longer be committed to a youth services center. We said this fact, among others, indicated that the juvenile was “beyond rehabilitation under existing . . . programs” as provided by Ark. Code Ann. § 9-27-318(e)(2) (Repl. 1993). Appellant additionally argues that the chancellor erred in allowing the testimony of a psychological examiner as to the possibility of rehabilitation at a youth services center. It is irrelevant whether the ruling was in error, and we do not address the argument, because appellant cannot now be committed to a youth services center.

Appellant’s final argument is that the chancellor erred in transferring the case to circuit court. The factors to be considered in deciding a transfer are the seriousness of the alleged offense, whether violence was involved, and whether the alleged offense is part of a pattern of adjudicated offenses, along with the prior history, character traits, mental maturity, and any other factors that reflect upon the juvenile’s prospects for rehabilitation. Ark. Code Ann. § 9-27-318(e) (Repl. 1993). As the party moving for transfer, the State had the burden of producing evidence of the statutory factors. See Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied, 304 Ark. 402-A, 805 S.W.2d 80 (1991). In making its decision a court need not give equal weight to each of the factors, nor does the State have to produce evidence relevant to each factor. Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). We will not reverse a trial court’s decision on a motion to transfer unless it is clearly erroneous. Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993).

Robbery is the crime with which appellant is charged. A person commits robbery if, with the purpose of committing a felony or misdemeanor theft, he employs or threatens to employ physical force upon another. Ark. Code Ann. § 5-12-102(a) (Repl. 1993). The crime of robbery is serious, and violence is generally involved. In the present case, the affidavit of the police officer that supported the arrest warrant indicated that appellant and others beat a man with their fists and with rocks, while demanding and then taking his money. The evidence presented by the State at the hearing also indicated that appellant had two prior adjudications as a juvenile for robbery and one for failure to appear and that he had been placed at the Children’s Center. Appellant had been placed on probation for his previous crimes, and the testimony of his probation officer indicated that appellant never showed up for his initial appointment.

In summary, the crime alleged to have been committed is serious in nature and involved violence. Appellant has been subject to previous rehabilitative efforts and, obviously, had not responded appropriately. The alleged offense, if proved, would be part of a repetitive pattern of offenses. We have no hesitancy in holding that the ruling of the chancellor was not clearly in error.

Affirmed.


text:
    Carl WILBURN v. STATE of Arkansas
    CR 93-1070
    876 S.W.2d 555
    Supreme Court of Arkansas
    Opinion delivered May 16, 1994

      Gary Vinson, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Carl Wilburn, appellant, and Malone Burns were jointly charged with aggravated robbery of the Super 8 Motel in Batesville. Appellant filed a motion for severance, which was granted, and the two men were tried separately. The jury found appellant guilty and fixed his sentence, as a habitual offender, at fifty years. We affirm the judgment of conviction.

Appellant first argues that the trial court erred in denying his motions to suppress. He contends that Thomas Henderson, a deputy sheriff, lacked probable cause to stop his car and that Henderson’s subsequent identification of appellant was not reliable. The facts surrounding the stop were as follows. The deputy sheriff was on State Highway 167 near Pleasant Plains when he received a radio alert that the motel in nearby Batesville had been robbed by two men, one tall and one slim, approximately 5*7” to 5’9”, who were wearing ski masks and armed with a shotgun and a handgun. The deputy testified that while his police car was in a well-lighted area he observed a blue and white Cadillac travelling south. The deputy followed the car, checked its license plate by police radio, and learned that the license plate was issued for a Chevrolet. He turned the police car’s blue lights on and continued to follow the Cadillac. The Cadillac continued on south for about a half mile before it pulled over. The deputy turned on his take-down lights and his spotlights, turned his headlights on bright, and stopped about ten feet behind the Cadillac. The deputy got out of his car, stood by the front left wheel of the police car, and called to the driver of the Cadillac to get out of his car. The driver of the Cadillac turned, looked over his shoulder, and sped off. The deputy later testified that his proximity to the Cadillac and the brightness of his lights had enabled him to get a clear view of the driver.

The deputy pursued the Cadillac for two miles, where it turned into a driveway, went into a yard, and struck a tree. Two men got out of the car and ran behind a house. One was carrying a shotgun and the other was holding a handgun.

The next morning, after learning that the State Police were pursuing a stolen car, the deputy sheriff went to the area of the chase. Shortly after the State Police stopped the stolen car, the deputy sheriff observed the man they had arrested, and immediately identified him as the man he had stopped the night before.

Appellant sought to suppress the evidence incident to the initial stop, and the later arrest, on the ground that the stop was invalid. The trial court correctly refused to grant the motion to suppress. The deputy sheriff had discovered that the Cadillac bore a license plate which was issued for a Chevrolet before he made the initial stop. It is a misdemeanor to display a license plate on a vehicle when the license plate is not issued for that vehicle. See Ark. Code Ann. § 27-14-306 (Repl. 1994). Thus, the officer had reasonable cause to believe that the driver of the Cadillac was committing a violation of the law in his presence. In addition, when appellant was arrested the next morning, he was driving a stolen vehicle. When an officer has reasonable cause to believe that a person has committed a violation of the law in his presence, he may make a warrantless arrest. Therefore, the trial court correctly ruled that both the stop and the arrest were valid. A.R.Cr.P. Rule 4.1 (a)(iii).

The motion to suppress the officer’s identification of appellant is a reliability argument. In determining whether an identification is reliable, a trial court should consider the following factors: (1) the witness’s opportunity to view the suspect when the crime was committed, (2) the witness’s degree of attention, (3) the accuracy of the prior description, (4) the level of certainty, and (5) the time which lapsed between the crime and the subsequent identification. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993). In reviewing a trial court’s decision to admit an identification, we make an independent review of the totality of the circumstances, and we will not reverse the trial court’s ruling unless it is clearly erroneous. Id. at 570, 853 S.W.2d at 261.

We find that the totality of the circumstances supports the admission of this identification. During the initial stop, the deputy sheriff observed appellant from a distance of about fifteen feet, aided by take-down lights, spotlights, and high-beam headlights shining from the police car. Only twenty-four hours lapsed between this observation of appellant and his arrest, at which time the deputy immediately identified appellant.

Appellant next argues the trial court erred in allowing the State to introduce records that belonged to the motel. The facts are as follows. The State sought to show by Mary Gilpin, who had been the manager of the motel at the time of the robbery, the exact amount of money taken. Her testimony was important because it would show that $465 was taken in the robbery, which was the exact amount of money appellant and Malone Burns together had when they were arrested. Gilpin testified that she had been the manager of the motel on the night of the robbery and that a few hours after the robbery she took the motel’s money verification records and determined the amount taken in the robbery. Appellant objected, arguing that the State was unable to lay a proper foundation because Gilpin was no longer the manager of the motel and no longer the custodian of the records. Appellant also argued that the records were inadmissible hearsay. The trial court overruled the objection, finding that Gilpin was qualified to testify about the foundation, as she had made the notations on the records, and finding that the records were admissible under the business records exception to the hearsay rule. On appeal, appellant argues Gilpin “had no knowledge as to the status of the records from the time she left the . . . motel.”

The records are hearsay because they are written assertions made out of court, which were offered in evidence to prove the date and the amount of money which was taken. See A.R.E. Rules 800 and 801. Rule 803(6) of the Arkansas Rules of Evidence provides an exception to the hearsay rule and defines admissible documents as follows:

Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph indicates business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

A.R.E. Rule 803(6) (emphasis added). As the Rule indicates, a foundation must be laid for the admission of a business record, and the elements of the foundation must be shown by testimony of the custodian or other qualified witness. Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989). Appellant’s argument that Gilpin had “no knowledge of the records from the time she left Super 8 motel” is an assertion that she was not a qualified witness. The law of this State reflects Professor Weinstein’s observation regarding the interpretation of this Rule, that “[t]he phrase ‘other qualified witness’ should be given the broadest interpretation; he need not be an employee of the entity so long as he understands the system.” 4 Jack B. Weinstein and Margaret M. Berger, Weinstein’s Evidence f803(6)[02] at 803-178 (1984). See also Mitchael v. State, 309 Ark. 151, 828 S.W.2d 351 (1992); Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (Ark. App. 1979).

The State established that Gilpin was the manager of the motel at the time she determined the amount of cash taken in the robbery, that she was the custodian of the records at that time, and that they fairly and accurately represent all of the records from which she figured the loss. A trial judge has discretion in determining the qualification of witnesses, and we will not disturb the trial court’s ruling absent a showing of abuse of that discretion. Cates, 267 Ark. at 728, 589 S.W.2d at 599. The trial court did not abuse its discretion in this ruling.

In his final assignment, appellant contends that the trial court erred when it refused to grant a mistrial after the prosecutor referred to Malone Burns as a co-defendant. The argument is without merit. It was undisputed that two men committed the robbery. The prosecutor referred to Burns as a defendant or co-defendant four times during the State’s opening statement. There was no objection. A fingerprint examiner testified without objection that he did not find any evidence of fingerprints of either “defendant.” An employee of the motel testified that “two defendants” robbed the motel. The eighth time Burns was referred to as a “co-defendant,” appellant objected and asked for a mistrial. The trial court sustained the objection, but refused to grant a mistrial.

The argument is procedurally barred. A party who does not object to the introduction of evidence at the first opportunity waives such an argument on appeal. Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991). The policy reason for the rule is that a trial court should be given an opportunity to correct any error early in the trial, perhaps before any prejudice occurs. See John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993). A party cannot sit back and allow a reference or statement to be made seven times without objection, and then on the eighth time the reference or statement is made, seriously contend that, all at once, the statement is so harmful that a mistrial is mandated.

Affirmed.


author: Steele Hays, Justice.

text:
    The LIMITED STORES, INC. v. Perrylyn WILSON-ROBINSON
    93-1349
    876 S.W.2d 248
    Supreme Court of Arkansas
    Opinion delivered May 16, 1994

      Wright, Lindsey & Jennings, by: Alston Jennings, Jr., for appellant.

      J. Sky Tapp, for appellee.
   Steele Hays, Justice.

The Limited Stores, Inc. (Stores) appeals from a judgment awarding damages to Ms. Perrylyn Wilson-Robinson for false imprisonment. The jury awarded $6,850 in compensatory damages and $23,650 in punitive damages. Stores contends the trial court erred in denying motions for a directed verdict and in submitting the issue of punitive damages to the jury. We agree with those contentions and, accordingly, we reverse and dismiss.

Ms. Wilson-Robinson testified that she was shopping in The Limited Stores in North Little Rock. As she left the store the alarm on the sensormatic device sounded. Although she heard the alarm she continued out into the mall, thinking the alarm did not pertain to her. Two female employees from the store approached her. Ms. Wilson-Robinson testified “[t]hey asked if I would return to the store because when I left out the buzzer went off.” “I said, ‘Well, sure,’ because I hadn’t done anything.”

When the two employees and Ms. Wilson-Robinson reentered the store the alarm did not go off. One of the employees then asked if she had a calculator in her bag. She said, “Yes, I have a calculator,’ and I opened up my bag. I said, ‘See, you know, here’s the calculator.’” At that point one of the employees waved the calculator in front of the device but the alarm did not go off. The employee then said: “Well, okay, you know, it is fine. You can leave now.” Ms. Wilson-Robinson asked to meet with the store manager and, after speaking with her, she left.

Ms. Wilson-Robinson testified there were other people leaving the store when she heard the alarm and she felt she was stopped because “I’m a heavy set black female, and I carry a large purse.” In explaining why she returned to the store, she testified:

When they stopped me on the mall, my impression was that they were accusing me of taking something, so I really didn’t have a choice, so I said, ‘Sure, I will go back,’ because I knew I hadn’t done anything. And, if I hadn’t gone back, then the consequences was saying, well, maybe she is guilty. So I went back to the store because I didn’t do anything.

Other testimony, viewed in the light most favorable to Ms. Wilson-Robinson, is as follows: Ms. Patsy Stalter, a witness for the appellee, testified one of the store employees informed her “they thought she [Ms. Wilson-Robinson] had taken something because the buzzer went off, and they were just trying to find out what she had taken.” Ms. Stalter also testified the employees “were just asking her to see in her purse” and Ms. Wilson-Robinson agreed to let them look inside the purse. Joe Yasinski, District Manager for Stores, testified the company had no written policy for instances where the sensormatic alarm is triggered. In addition, he testified new employees attend an orientation course which lasts approximately sixty to ninety minutes; however, only one percent of the orientation addresses shoplifting procedures.

At the conclusion of the plaintiff’s proof and at the end of the trial Stores moved for a directed verdict on the issues of false imprisonment and punitive damages. These motions were denied.

In determining whether a directed verdict should have been granted, we view the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993). A motion for a directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Id. In reviewing the evidence, the weight and value to be given the testimony of the witnesses is a matter within the exclusive province of the jury. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993). Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and a directed verdict should be denied. Mankey, supra.

A merchant may detain, for a reasonable length of time, a person he or she has reasonable cause to believe is shoplifting. See Ark. Code Ann. § 5-36-116 (Repl. 1993); 7 Speiser, Krause and Gans, The American Law of Torts §27.18 (1990). However, whether Stores had grounds to detain Ms. Wilson-Robinson pursuant to the statute is not the issue. Rather, Stores contends Ms. Wilson-Robinson was not detained. Simply put, Stores contends the detention or imprisonment requirement of the tort was not met.

False imprisonment has been defined as the unlawful violation of the personal liberty of another, consisting of detention without sufficient legal authority. Headrick v. Wal-Mart Stores, Inc., 293 Ark. 433, 738 S.W.2d 418 (1987). Any express or implied threat of force whereby one is deprived of his liberty or compelled to go where one does not wish to go is an imprisonment. Pettijohn v. Smith et al, 255 Ark. 780, 502 S.W.2d 618 (1973). Stores submits there was no detention, imprisonment or arrest. Ms. Wilson-Robinson contends there was a detention because two employees went after the appellee and there was an “implied threat of arrest.”

It is well established that the restraint constituting a false imprisonment may be by threats of force which intimidate the plaintiff into compliance with orders. Restatement (Second) of Torts § 40 (1965); Prosser and Keeton, Prosser and Keeton on Torts § 11 (5th ed. 1984). Although the plaintiff is not required to incur the risk of personal violence by resisting until force is actually used, it is essential that the restraint be against the plaintiff’s will. Prosser and Keeton, supra; 1 Harper, James and Gray, The Law of Torts § 3.8 (2nd ed. 1986). Submission to the mere verbal direction of another, unaccompanied by force or threats of any character, does not constitute false imprisonment. Faniel v. Chesapeake & Potomac Telephone Co., 404 A.2d 147 (D.C. 1979); Grayson Variety Store, Inc. v. Shaffer, 402 S.W.2d 424 (Ky. Ct. App. 1966); 7 Speiser, Krause and Gans, The American Law of Torts § 27.9 (1990). If one agrees of one’s own free choice to surrender freedom of motion, as by accompanying another voluntarily to clear oneself of suspicion, rather than yielding to the constraint of a threat, then there is no imprisonment. Prosser and Keeton, supra; Harper, James and Gray, supra; Martinez v. Goodyear Tire & Rubber Co., 651 S.W.2d 18 (Tex. App. 4 Dist. 1983); J.C. Penney Company v. Romero, 318 S.W.2d 129 (Tex. Civ. App. — San Antonio 1958, writ ref’d n.r.e.).

Stores cites Faulkinbury v. U.S. Fire Ins. Co., 247 Ark. 70, 444 S.W.2d 254 (1969) for the point that much stronger actions are required to meet the test of an actionable detention. Faulkinbury operated a grocery and carried a public liability policy insuring against damages for false arrest. Faulkinbury settled such a claim for $5,000 and sued his insurance carrier. The issue was whether the claim was actually one of false arrest, i.e., within Faulkinbury’s coverage. The trial court held the action did not constitute an action for false arrest and directed a verdict for the insurance company. On appeal, we affirmed. Factually, a young man allegedly made an insulting remark to Mr. Faulkinbury’s daughter in the parking lot adjacent to his store. When Faulkinbury went to investigate he saw a car occupied by several youths and called to them to stop, and they did so. He asked them if they had said something to the girl standing in the door. They said they had not. He told them to stop two or three times while he questioned them regarding the incident. He testified that at one point he was leaning inside the car and “had my arm inside the car, holding on to the car, and him gradually trying to drive off.” Finally, “after telling him to stop two or three times,” Faulkinbury pulled a pistol and fired two shots into the car. Although the driver’s legs were struck by the shots, the vehicle left the parking lot. We wrote:

Giving [Faulkinbury’s] testimony its most favorable construction, we find no substantial proof of a false arrest. During the occurrence Faulkinbury made no statement even suggesting that he was attempting to make a citizen’s arrest. Although the group of young men in the car at first stopped, they did so voluntarily rather than under any semblance of compulsion. Thereafter their freedom of movement was wholly uninhibited. They made their departure despite Faulkinbury’s demands that they stop and despite his eventual resort to gunfire in a vain effort to bring the car to a halt. Upon the undisputed proof the trial court was right in holding that the injured driver’s asserted cause of action against the appellants was for the tort of assault and battery rather than for that of false arrest. It was therefore not within the coverage of the policy.

The appellee would distinguish Faulkinbury on the ground that Ms. Wilson-Robinson was afoot whereas the Faulkinbury group was in an automobile. But there is no evidence that Ms. Wilson-Robinson was threatened. She simply responded voluntarily to a request occasioned by the alarm. Nor is the testimony of Ms. Stalter that the employees believed Ms. Wilson-Robinson had shoplifted telling, so long as she was not forcibly detained.

Although the appellee contends there was an “implied threat of arrest,” threats of future action, such as calling the police and having the person arrested, are not ordinarily sufficient in themselves to effect an unlawful imprisonment. Morales v. Lee, 668 S.W.2d 867 (Tex. App. 4 Dist. 1984); Prosser and Keeton, supra. Even where the confinement is attributable to the threat of physical force, the submission must be responsive to a threat to apply “physical force to the other’s person immediately upon the other’s going or attempting to go beyond the area in which the actor intends to confine him.” Restatement (Second) of Torts § 40. Submission to the threat to apply physical force at a time appreciably later than that at which the other attempts to go beyond the given area is not confinement. Restatement (Second) of Torts § 40, comment b. Consequently, even if the store employees had threatened to call the police in the instant case, there would not have been a confinement.

We find the appellee failed to establish the detention element of false imprisonment. Although it is generally a jury question as to what was reasonably to be understood and implied from the defendant’s conduct, the appellee did not testify or allege that she had any fear of force. See Prosser and Keeton, supra. In fact, she testified repeatedly that she was “asked” if she would return to the store, responding, “Well, sure.” When she returned to the store, she was not detained by any threat of force, she was “asked” if she had a calculator. There is no imprisonment when one agrees to surrender her freedom of motion. Pounders v. Trinity Court Nursing Home, 265 Ark. 1, 576 S.W.2d 934 (1979).

In sum, there is insufficient evidence to establish a tort of false imprisonment. Consequently, we find the trial court erred in denying the motions for a directed verdict. The issue as to punitive damages is moot.

Reversed and dismissed.

Glaze, J., concurs.