author: Tom Glaze, Justice.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. HILLSBORO MANOR NURSING HOME, INC.
    90-278
    803 S.W.2d 891
    Supreme Court of Arkansas
    Opinion delivered February 11, 1991

      Richard B. Dahlgren and Breck G. Hopkins, for appellant.

      Schackleford, Schackleford & Phillips, by: Teresa Wine-land, for appellee.
   Tom Glaze, Justice.

This is an appeal from the circuit court’s order reversing a decision by the Department of Human Services (DHS) refusing to issue appellee a license for an additional fifty-three nursing home beds. Appellee had sought these additional beds immediately after the General Assembly enacted Act 593 of 1987, a law that allowed nursing homes to expand their facilities without acquiring a certificate of need or permit of approval from the Health Services Agency, so long as the expansion cost less than $500,000. Appellee’s first request to the Office of Long Term Care (OLTC) was by letter dated April 30, 1987, wherein it asked for an inspection and the licensure of eighteen additional beds. These beds were the result of converting private rooms to semi-private rooms. By letter dated May 26, 1987, appellee indicated that it intended to add another thirty-five beds (for a total of fifty-three new beds) by way of new construction, with construction to begin on July 1, 1987.' It further requested guidance on how to proceed.

OLTC responded by letter dated July 10, 1987, notifying appellee that Act 40 of 1987 (enacted June 19, 1987) placed a two-year moratorium on the addition of any new nursing home beds and required a permit of approval from the Health Services Agency. Even so, on September 17, 1987, the Long Term Care Facility Advisory Board (Board) instructed OLTC to review all applications for new beds that had already been submitted during the period Act 593 was in effect. Accordingly, OLTC reviewed those applications, including appellee’s, but did so by applying the provisions of Act 40, not Act 593. On January 6,1988, OLTC denied both of appellee’s letter requests, stating (1) appellee had not completed a proper application for additional beds, (2) it had submitted no plans of the proposed construction and (3) Act 40 imposed a moratorium upon the issuance of licenses for new beds and after the moratorium, a permit of approval was necessary but not provided by the appellee.

After OLTC’s review, the Board provided for an administrative hearing on appellee’s requests, and while the officer at that hearing overruled OLTC’s ruling that appellee failed to submit a proper or completed application and plans for construction, he affirmed OLTC’s denial of appellee’s requests under Act 40. This hearing was held on January 17, 1989. The Board formally adopted the hearing officer’s findings and conclusions on August 10, 1989.

The Board’s decision was submitted to the deputy director of the Division of Economic & Medical Services for review and final determination pursuant to Ark. Code Ann. § 20-10-303 (Supp. 1989). The deputy director agreed that the Act 40 moratorium precluded licensing of appellee. However, he differed with the Board in that he found appellee should also be denied a license due to its failure to comply with the application and construction plan requirements. This decision by the deputy director constituted the “Final Agency Decision” for purposes of review and was issued on September 15, 1989.

Appellee appealed the “Final Agency Decision” to the Union County Circuit Court which reversed the decision and ordered that appellee’s additional bed requests be licensed under Act 593 without a certificate of need or a permit of approval which is required under Act 40. Appellants now appeal the trial court’s decision contending the court erred in applying the provisions of Act 593 rather than Act 40 and in finding OLTC arbitrarily and capriciously denied appellee a license for additional beds based on appellee’s failure to file a completed application and submit required construction plans.

The trial court was clearly correct that appellee’s requests for licensure of an additional fifty-three beds were controlled by Act 593 and the law in effect when such requests were submitted to the OLTC. See Scott v. Consol. Health Management, Inc., 297 Ark. 601, 764 S.W.2d 434 (1989); Arkansas Dept. Human Servs. v. Greene Acres Nursing Homes, Inc., 296 Ark. 475, 757 S.W.2d 563 (1988). In Scott, this court reemphasized our holding in Greene Acres that a nursing home which applied for additional beds when Act 593 was effective did not have to comply with any certificate of need or permit of approval requirements under Act 40, but it still was subject to Act 40’s two-year period of moratorium. Scott, 297 Ark. at 604, 764 S.W.2d at 436. Thus, after the moratorium expired under Act 40, appellants should have considered appellee’s requests for added beds under Act 593, which required no certificate of need or permit of approval. Accordingly, to the extent the trial court held appellee’s licensure requests should be reviewed and issued under Act 593, which was in effect when its requests were submitted, the court did not err.

We must, however, disagree with the trial court’s holding that DHS acted arbitrarily, capriciously or abused its discretion when it ruled appellee’s application for licensure of additional beds had failed to comply with licensure laws and regulations in existence when appellee submitted its requests under Act 593. As we pointed out in Greene Acres, Act 593 (or Act 40 for that matter) did not abolish the license application process. In this respect, DHS regulates any applicant or licensee that desires to make alterations or additions to existing facilities or the construction of new facilities, and an applicant must submit plans for such altered, expanded or new facility before construction is commenced. See Ark. Code Ann. § 20-10-225 (Supp. 1989). As previously mentioned, appellee, in its so-called applications or requests, informed OLTC that it intended to proceed with construction of its expanded facilities on July 1, 1987; nonetheless, appellant never submitted its construction plans or specifications to OLTC as was required under DHS regulations. See Long Term Care Provider Manual, §§ 421-445, and see in particular § 424.1.

And while appellee and appellants at times referred to appellee’s two letters to OLTC as applications, those letters in no way met the form or content requirements provided for license applications under DHS’s regulation § 202 of its Provider Manual. Among other things, § 202 requires license applications to be submitted on a notarized form provided by OLTC. The application must include a license fee and information relating to the applicant’s ownership interests in the nursing home. The applicant, under the form, must also provide the names of the persons in control of the home and a signed statement by a registered nurse indicating responsibility for nursing services of the home. Appellee’s letters were clearly deficient in this respect.

We acknowledge appellee’s contention that these DHS licensure regulations do not apply to new bed application requests by already licensed facilities. We disagree. As previously mentioned above, this court in Greene Acres held that Act 593 did not abolish the license application process and that, while Act 40 applied only to the issuance of permits of approval, that Act’s language provided in effect that no additional beds would be licensed for nursing homes during the moratorium period. We note also that DHS’s Long Term Care Provider Manual, § 100, defines “licensed bed capacity” as the exact number of beds for which a license application has been made and granted, and that such definition implies that any additional beds require a new application and license. Of course, DHS and OLTC have interpreted the applicable laws and regulations to require a new license for additional beds and regulations to require a new license for additional beds and as we have held in the past, an administrative agency’s interpretation of a statute or its own rules will not be overturned unless it is clearly wrong. Arkansas Contractor’s Licensing Board v. Butler Construction Co., 295 Ark. 223, 748 S.W.2d 129 (1988); Clinton v. Rehab. Hospital Services Corp., 285 Ark. 393, 688 S.W.2d 272 (1985).

Here, we are unable to say the appellants’ interpretation of the laws and its licensure regulations is clearly wrong, nor can we conclude the agency decision was arbitrary or capricious. Therefore, we reverse the trial court’s holding and remand with directions for it to reinstate and affirm DHS’s denial of appellee’s application for additional beds.


source: Caselaw Access Project

license: Public Domain

text:
    Bobby L. BUTLER v. Russell DOWDY
    90-357
    803 S.W.2d 534
    Supreme Court of Arkansas
    Opinion delivered February 11, 1991

      David J. Potter, for appellant.

      Dowd, Harrelson, Moore & Giles, by: Gene Harrelson, for appellee.
   Tom Glaze, Justice.

This is an appeal from a nonjury trial of an automobile accident case which occurred when the appellant and the appellee were both traveling eastbound on State Highway 4 in Hempstead County. Two other cars were following appellant’s vehicle when appellee negotiated his car into the westbound lane in an attempt to pass the three vehicles. As the appellee was passing, the appellant turned left onto a road intersecting the highway and collided with the appellee. At the hearing, Officer Rateliff, the investigating officer, was allowed to testify over the appellant’s objection that he found no wrongdoing on the part of the appellee but found that the appellant made an illegal left turn or failure to yield on a left turn. The trial judge found that the appellant’s negligence was the proximate cause of the collision and awarded a verdict of approximately $2,000 to the appellee.

On appeal, the appellant argues that the trial court erred in admitting Officer RatelifTs testimony into evidence under A.R.E. Rule 704 and in applying the law to the facts of this case. We find no reversible error and therefore affirm.

The rules of the road provide that an overtaken vehicle should yield to the passing vehicle when a proper audible signal is given. Ark. Code Ann. § 27-51-306(2) (1987). However, this court has held that this statute does not apply if. the overtaken vehicle is making a lawful turn — using proper signals. Downs v. Reed, 247 Ark. 588, 446 S.W.2d 657 (1969). A signal of intention to turn right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning. Ark. Code Ann. § 27-51-403 (1987).

At the hearing, there was disputed testimony as to whether the appellant used his left run signal and whether the appellee sounded his horn when he began to pass. As stated earlier, Officer Rateliff, the investigating officer, testified that he found no wrongdoing, on the part of the appellee but found that the appellant made an illegal left turn. Under Rule 704, opinion evidence is not objectionable because it embraces an ultimate issue to be decided by the trier of fact, if it is otherwise admissible under the Rules of Evidence. The appellant argues that Officer RatelifTs testimony was not admissible under Rule 701, which provides the following:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

We have allowed a police officer to testify about his or her opinion about the point of impact, or location of the vehicles based upon the officer’s examination of the skid marks, scuff marks, or debris. Sledge v. Meyers, 304 Ark. 301, 801 S.W.2d 650(1991). However, in the present case, the officer testified that the appellant made an illegal left turn based upon his investigation of the accident. The officer of course was not an eyewitness to the accident. And, there is no way to tell from investigating the scene of the accident whether the appellant used his left turn signal or whether the appellee sounded his horn before he attempted to pass. Therefore, the officer’s testimony did not help the fact finder determine the facts and reach his decision on who was responsible for the accident. Thus, the evidence was inadmissible under Rule 701.

While we agree with the appellant that the officer’s testimony was inadmissible, we do not hold that there is reversible error. It has been held that a nonjury case should not be reversed because of admission of incompetent evidence, unless all of the competent evidence is insufficient to support the judgment or unless it appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made. Joseph A. Bass Co. v. United States, 340 F.2d 842 (8th Cir. 1965); Builders Steel Co. v. Commissioner of Internal Rev., 179 F.2d 377 (8th Cir. 1950); see also C. Wright & A. Miller, Federal Practice & Procedure Civil § 2412 (1971). This rule of law is based upon the premise that rules of evidence are a product of the jury system where untrained citizens are acting as judges of fact; therefore, these rules should not apply with the same strictness to a nonjury case where the judge has training in evaluating the evidence.

Here, as previously mentioned, this case was tried to the court without a jury. Furthermore, our study of the record reflects competent evidence exists that supports the judgment against the appellant. The appellee testified that he did not see the appellant use a turn signal, and he testified that he properly gave an audible signal when he began to pass the vehicles. Under such facts, the appellant would be guilty of an illegal left turn, because as stated earlier, the passing vehicle has the right of way unless the overtaken vehicle is making a lawful turn using proper signals. Downs, 247 Ark. 588, 446 S.W.2d 657. While this evidence was contradicted by the appellant’s testimony, we give due regard to the opportunity of the trial court to judge the credibility of the witnesses and will not set aside those findings of fact unless clearly erroneous. ARCP Rule 52(a).

For the reasons stated above, we affirm.

       While we note that the appellee now attempts to also qualify the officer’s testimony as expert testimony under A.R.E. Rule 702, we see no indication from the record that he was qualified to testify as an expert at the trial. Cf. Scoggins v. Southern Farmers' Assoc., 304 Ark. 426, 801 S.W.2d 647 (1991).


text:
    Timothy GREEN v. Dr. Lynn WIGGINS and Dr. Albert H. Rusher
    90-121
    803 S.W.2d 536
    Supreme Court of Arkansas
    Opinion delivered February 11, 1991
    [Rehearing denied March 4, 1991.]

      Hamilton & Hicks, by: Charles R. Hicks and George R. Wise, for appellant.

      Friday, Eldredge & Clark, by: Laura Hensley Smith, for appellee.
   Tom Glaze, Justice.

This malpractice case arises from an automobile accident that resulted in injuries the appellant had treated at the St. Bernard’s Regional Medical Center (St. Bernard’s). During surgery on September 25, 1984, appellant had a cardiac/respiratory arrest, and because of this occurrence, he suffers from serious and permanent brain injury. Appellant gave proper notice of his intent to sue under Ark. Code Ann. § 1 fill 4-204 (1987), which extended his time to bring suit by seventy days. He then filed suit within the required statutory time on December 1, 1986, against the anesthesiologist, Dr. E. Barrett Sparks, the surgeons, Dr. Lynn Wiggins and Dr. Albert Rusher, along with their corporation, Jonesboro Surgical Associates, and St. Paul Fire and Marine Insurance Co. as liability carrier for St. Bernard’s.

Appellant stated that he filed suit to toll the two-year statute of limitations for medical malpractice which was about to expire. Ark. Code Ann. § 16-114-203 (1987). He admitted, however, that, at the time he filed suit, he needed more time to determine if Wiggins and Rusher were the correct doctors to sue. Appellant served his complaint and summons on Dr. Barrett and St. Paul, but made no attempt to serve Wiggins, Rusher or Jonesboro Surgical Associates. On March 15,1988, or about fifteen months after filing his complaint, appellant obtained an order dismissing his suit without prejudice. At this time, the two-year statute of limitations had run.

Appellant refilled suit against Wiggins, Rusher and Jonesboro Surgical on March 8, 1989, and while he made no effort to serve Jonesboro Surgical, he did attempt to serve the two doctors by certified mail, restricted delivery, but his mail was returned marked “unclaimed.” On August 3, 1989, or 148 days after the filing of his second complaint, appellant moved to extend his time to obtain service on the doctors. The trial court denied appellant’s motion finding that (1) the appellant did not serve Wiggins and Rusher within the 120 day period provided by ARCP Rule 4(i), so his complaint filed on December 1,1986 did not toll the statute of limitations; (2) the limitation period in which the appellant could bring suit against Wiggins and Rusher expired prior to the appellant’s voluntary March 8, 1988 order of dismissal without prejudice; and, therefore, any claim appellant had against the two doctors was barred.

The primary issue posed in this appeal is when is an action commenced under the Arkansas Rules of Civil Procedure as it relates to tolling the statute of limitations. Appellant cites ARCP Rule 3 and argues that the mere filing of his complaint on December 1, 1986, commenced the action and tolled the statute of limitations and that his failure to have obtained service on Wiggins and Rusher under ARCP Rule 4(i) had no consequence. We must disagree.

To consider appellant’s argument requires a comparison and analysis of Rule 3 and Rule 4(i) which provide as follows:

Rule 3
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.
Rule 4(i)
Time Limit for Service: If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause. If service is made by mail pursuant to this rule, service shall be deemed to have been made for the purpose of this provision as of the date on which the process was accepted or refused. . . .

Arkansas law prior to the above current Rule 3 provided that an action was commenced by filing a complaint and placing it and a summons in the hands of the sheriff. Ark. Stat. Ann. § 27-301 (Repl. 1962). Section 27-301 was subsequently changed by an earlier version of the above ARCP Rule 3 which contained a sentence providing that an action would not be deemed commenced unless service was actually obtained within 60 days of filing the complaint. That sentence, however, was deleted, leaving us with our present Rule 3 as set out above, and at the same time the deletion was made in Rule 3, the time requirement for service was moved to Rule 4(i). The Reporter’s Notes and comments on these changes are most helpful in interpreting and understanding-Rules 3 and 4(i); they read as follows:

1. This rule changes Arkansas law. The statute, Ark. Stat. Ann. § 27-301 (Repl. 1962), which is superseded by this rule provided, in part, that an action was commenced by filing a complaint and placing it and a summons in the hands of the sheriff of the proper County. Under this Rule, an action will commence without regard to receipt by the process server, subject only to the requirement that service be completed within [120] days from the filing of the complaint, unless the time for service has been extended by the Court.
2. This rule will do away with uncertainty in “race to venue” and statute of limitation cases as to where or when the action was first commenced. It will also do away with the need to decide whether the complaint and Summons have been placed in the hands of the sheriff with reasonable expectations of service or whether the Complainant has acted in good faith in trying to effect service. See Williams v. Edmondson and Ward, 257 Ark. 837, 250 S.W.2d 260 (1975). Instead, where service is in issue under the [120] days or extension proviso, actual service will be the standard. If actual service is not made within [120] days, the Court may extend the time for service, thus protecting the plaintiff against the running of the statute where there is good cause to do so. (Emphasis added.)

As is clearly explained in the foregoing Notes, an action is first commenced under Rule 3 by the filing of a complaint with the clerk of the proper court, and the establishment of venue and the tolling of a statute of limitations is based on the date the complaint is filed. However, that commencement date is subject to the plaintiff completing service within 120 days from the date of filing of the complaint, unless the time for service has been extended by the court under Rule 4(i). As is also duly noted above, a court, where there is good cause to do so, may extend the time for service beyond the 120 day period in order to protect a plaintiff against the running of a statute of limitations. Rule 4(i) requires the plaintiff to file his or her motion to extend within the 120 day period following the filing of the suit.

In the present case, the appellant failed to obtain service of Doctors Wiggins and Rusher within the 120 day period following the filing of either his December 1, 1986 complaint or his substituted complaint on March 8,1989; nor did he file within that period a motion to extend the time for completing service. Because the appellant failed to meet the service requirements contemplated or specifically provided for in Rules 3 and 4(i), he also failed to commence the action so as to effectuate the one-year savings provision provided in Ark. Code Ann. § 16-56-126 (1987). As a consequence, when the appellant voluntarily dismissed his original complaint on March 15, 1988, the statute of limitations had run, barring appellant from filing his second or substituted complaint.

While the appellant acknowledges his failure to comply with the service requirements in Rule 4(i), he points to the language in that Rule which provides that if service of summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice. Based on that proviso, he submits his March 15, 1988 dismissal order was without prejudice and therefore could not be barred from filing his second suit in March 1989.

Of course, appellant’s interpretation of Rule 4(i) is correct insofar as it goes, viz., if service of summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed without prejudice. Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990); see also Cole v. First Nat’l Bank, 304 Ark. 26, 800 S.W.2d 412 (1990). However, that dismissal without prejudice language does not apply if the plaintiffs action is otherwise barred by the running of a statute of limitations. As we discussed earlier, Rule 4(i) provides a procedure in cases where service has not been achieved within the 120 day period whereby the court may, upon motion or its own initiative, extend the time for obtaining service so as to protect the plaintiff from being barred by a statute of limitations. Under appellant’s interpretation of Rules 3 and 4(i), he would need only file his complaint within the period of limitations, never obtain service on the doctors and then dismiss and refile new or substituted complaints indefinitely — or at least until he decides to summon the doctors formally into court. Such an interpretation of Rules 3 and 4(i) is not a reasonable one, plus it totally ignores the purposes and objectives of these rules as we have carefully set out and discussed above.

For the foregoing reasons, we affirm.

       In the Reporter’s Notes the time requirement for service is 60 days, but in the current Rule 4(i) the time for service was extended to 120 days.

       Among other things, § 16-56-126 provides that if any action is commenced timely and the plaintiff suffers a nonsuit, the plaintiff may commence a new action within one year after the nonsuit.


author: Donald L. Corbin, Justice.

text:
    Gifford RAY v. STATE of Arkansas
    CR 90-207
    803 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered February 11, 1991
    [Rehearing denied March 11, 1991]

      Jeff Rosenzweig and Cliff Jackson, for appellant.

      John D. Harris, for appellee.
   Donald L. Corbin, Justice.

Appellant, Gifford Ray, was convicted of the first degree murder of Melvin Ward and was sentenced to life imprisonment. He raises the following points on appeal: 1) he was denied his fundamental constitutional right to present a defense; 2) his arrest was pretextual and the subsequent seizure of evidence was without constitutional justification; and 3) the trial court erred in denying his motion for continuance. We find no merit in these points, and we have determined, in accordance with Ark. Sup. Ct. R. 11 (f), that the trial court made no error prejudicial to the defendant. The judgment of conviction is affirmed.

The charge against appellant arose from the following undisputed facts. Melvin Ward was shot at approximately 10:30 p.m. on February 14,1990, as he was leaving Shari Ray’s trailer near Malvern. He was taken to the hospital by ambulance and died there a short time later. As he lay on the ground before the ambulance arrived he told Deputy Sheriff Kirk McClenahan of the Hot Spring County Sheriffs Department that he did not know who shot him.

Shari Ray, appellant’s former wife, lived next door to Doyle Wallis, her father. Although neither Ms. Ray nor Mr. Wallis saw appellant that night, they both told investigating officers that they thought appellant shot Ward. Ms. Ray said appellant called her about thirty minutes before the shooting and said if he could not have her nobody could. The investigating officers found prints in the leaves where the assailant knelt as he shot Ward. They also found a thermal knit shirt nearby. Mr. Wallis said that appellant had such a shirt.

Eyewitness testimony placed appellant on the road about fifty yards from Shari Ray’s trailer around eleven o’clock the night of the shooting. Henderson Bates, a resident of Malvern, testified that as he was driving home from being at the local hospital with his family he saw appellant jogging on the side of the road. He said appellant was not wearing a shirt and was carrying a single barrel shotgun in his right hand. Mr. Bates said that he had known appellant through his work for several years and that he was certain of his identification of appellant. He said appellant crossed the road at no more than fifty feet directly in front of his truck and, besides the truck’s headlights, there was a street light, which aided his vision.

Appellant argues in his first point that his federal and state constitutional rights of due process, fair trial, confrontation, and compulsory process were violated when the trial court granted the state’s motion in limine to exclude, among other evidence, alleged threats to the victim made by a third person. Appellant made an extensive offer of proof. He sought to present this admittedly circumstantial evidence to show that someone else had a motive to kill Melvin Ward and might have done so.

New rights are more fundamental than that of an accused to present evidence in his own defense. Washington v. Texas, 388 U.S. 14 (1967). In exercising this right, however, the accused not only must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence, Chambers v. Mississippi, 410 U.S. 284 (1973), but also must show that the evidence is both material and favorable to his case, United States v. Valenzuela-Bernal, 458 U.S. 858 (1982).

Other courts, in cases of circumstantial evidence, have held that threats to kill the victim made by other parties are relevant to prove motive to commit the killing on the part of some person other than the accused, and have allowed evidence of the threats. Smith v. State, 33 Ark. App. 37, 800 S.W.2d 440 (1990); Murphy v. State, 36 Tex. Crim. 24, 35 S.W. 174 (1896). See also McAdams v. State, 378 So. 2d 1197 (Ala. Crim. App. 1979). However, in those cases the proffered evidence involved more than just a threat.

The proffered evidence in the case at bar did not include any specific threats and certainly no threats to kill. It consisted of a March 1, 1989 incident report made by a security service at Chamberlain, Inc., a Hot Springs business, the transcript of an interview of Grace Bull conducted by the Hot Spring County Sheriffs Office, and the testimony of three other witnesses.

The incident report was dated March 1, 1989, nearly a year before Melvin Ward was shot. The report stated that a woman called Chamberlain, Inc., gave the name Grace and said, “if Mel Ward did not return her call she would blow the place up,” and “ [s] he also made some threat on Mel Ward’s person.” The report further stated that the message was given to Mel Ward.

Given the date of the call and its content, its relevance is questionable. But, the evidence here was excluded under Ark. R. Evid. 403, which provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

An exclusion of evidence under this rule is a matter within the sound discretion of the trial judge, and his decision will not be reversed absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988); Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618(1987). Considering the remoteness in time of the reported call and the absence of any subsequent calls or actions stemming from the call, we cannot say that the report was either material or particularly favorable to appellant’s case. Therefore, we cannot say the trial court abused its discretion in excluding it from evidence.

Grace Bull said in the interview with the sheriffs department that within the past month she left two letters for Ward at his house. She explained the content of the letters as being expressions of love and frustration, not threats to kill. She also said she was home with her son the evening of the shooting, and Jim Coster, a friend of hers, stopped by at about 9:30 to give her a valentine.

The trial court, in rejecting appellant’s attempt to introduce the transcript of the Grace Bull interview, said that it was collateral and would be excluded under Rule 403. He also stated her testimony was not material. Again, we cannot say the court abused its discretion in excluding this evidence.

The three witnesses whose testimonies were offered were Joyce Lynette Sevier, the woman with whom Ward lived until four days before his death; Anne Ward, Ward’s former wife; and Shari Ray, the woman whose house trailer Ward was leaving when he was shot. Ms. Sevier said that she knew of two letters that someone left for Ward at his house in the month preceding his death. She said she only read one of them and that it said, “it’s eleven o’clock Friday night and you’re not home and I think you’re the most vile, disgusting person I have ever met and you will pay for what you have done to me and it was signed Grace.”

Ms. Ward said that one night about a year before Ward was killed she received several calls from Grace Bull. She said Ms. Bull made irrational threats about putting articles in the newspaper concerning Ms.- Ward’s daughter being an unfit mother.

Shari Ray said that on January 27, 1990, while at Ward’s house, she saw a note, which she looked at only briefly. She said she did not know exactly what the note said or who wrote it, but it was something to the effect that whoever wrote it finally found where Ward lived and would get even with him.-

As there are no specific threats, we cannot say the trial court’s finding the proffered testimony .to be. collateral and excludable under Rule 403 to be an abuse of discretion. Appellant has not demonstrated that the proffered evidence is either material or necessary to his defense. His right to .present it, therefore, must give way to the trial court’s duty to conduct the trial in accordance with the rules of evidence. Based on the foregoing, we cannot say the exclusion of the proffered evidence denied appellant any right guaranteed by the constitution.

Appellant next argues that his arrest was pretextual and neither supported by probable cause nor justified as any other constitutionally acceptable deviation from the warrant requirement. He claims that because of this allegedly illegal arrest the following evidence was seized and eventually admitted at trial: a spent. 12 gauge shotgun shell, an unspent. 12 gauge shotgun shell, a statement he made that he shot a dog earlier that day, and the results of a trace metal examination.

We examined the law regarding pretextual arrests in Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986), and Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986). In finding a pretextual arrest in Richardson, we recognized that although no distinct rules for defining pretextual arrest had been articulated, pretext is a matter of the arresting officer’s intent, which must be determined by the circumstances of the arrest; where the intent of the officer is to make an arrest as an excuse for making a search for evidence of a different and more serious offense for which no probable cause to arrest exists, there is a pretextual arrest. In Hines we distinguished the facts in Richardson and stated:

Claims of pretextual arrest raise a unique problem in the law- — deciding whether an ulterior motive prompted an arrest which otherwise would not have occurred. Confusion can be avoided by applying a “but for” approach, that is, would the arrest not have occurred but for the other, typically the more serious, crime. Where the police have a dual motive in making an arrest, what might be termed the covert motive is not tainted by the overt motive, even though the covert motive may be dominant, so long as the arrest would have been carried out had the covert motive been absent.

Hines, 289 Ark. at 55, 709 S.W.2d at 68. In Hines, we held that, under the circumstances presented, the arrest was not pretextual and, thus, there was no reason to apply the fourth amendment exclusionary rule.

Appellant’s arrest resulted from the following circumstances. Deputy Sheriff Mike Collie, after being told by an investigating officer at the scene of the shooting that appellant was a suspect, drove to appellant’s house. As he passed the house he could see appellant inside through the living room window. Deputy Collie pulled in a driveway about a quarter of a mile down the road and observed appellant’s house. He saw appellant leave in his car; Deputy Collie followed him. When Deputy Sheriff Alvin Lee arrived in the area, Deputy Collie turned on his blue lights and appellant pulled over. After appellant got out, Deputy Collie saw a spent .12 gauge shotgun shell in the front seat of appellant’s car and picked it up. At that time Deputy Collie did not know what kind of gun was used in the shooting. Within two minutes of the initial stop, Henry Efird, an investigator with the Hot Spring County Sheriff’s Department, arrived and Deputy Collie gave him the spent shotgun shell. Investigator Efird told appellant he was under arrest as a suspect in the shooting, advised him of his Miranda rights, told him they wanted to do a gunshot residue test on his hands and administer a breathalyzer, and took him to the sheriff’s office.

Investigator Efird did not ask any questions while en route to the office, but appellant made the statement about shooting a dog earlier in the day. Upon arriving at the station, Investigator Efird administered a gunpowder residue test and Deputy Lee administered a breathalyzer test. During an inventory of appellant’s personal property, Raymond Crow, the jailer at the Hot Spring County Sheriffs Department, found the live .12 gauge Super X shotgun shell in appellant’s pocket.

Pursuant to Ark. R. Crim. P. 3.1, a law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects has committed a felony. See Beebe v. State, 303 Ark. 691, 799 S.W.2d 547 (1990). For purposes of this rule, “reasonable suspicion” means a suspicion based upon facts or circumstances which give rise to more than a bare, imaginary, or purely conjectural suspicion. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989); Ark. R. Crim. P. 2.1.

Deputy McClenahan, one of the first officers to arrive at the scene of the shooting, knew at the time there was an outstanding warrant against appellant for terroristic threatening, which was issued pursuant to an affidavit signed by Shari Ray. He also knew appellant caused disturbsances in the area on past occasions. When he was told at the scene that Gifford Ray had done it, he radioed in to the dispatcher that appellant was a possible suspect and personally related that information to Deputy Collie. A warrantless arrest is to be evaluated on the basis of the collective information of the police. Jackson v. State, 274 Ark. 317, 624 S.W.2d 437 (1981). Given the information the officers had at the time of the stop, it was reasonable for Deputy Collie to believe that appellant committed the shooting.

When he arrived at the location of the stop, Investigator Efird had already been to the scene of the shooting and to the hospital. At the scene of the shooting Deputy McClenahan told him that appellant was a “possible suspect.” Mr. Wallis told him that he thought appellant did it and that appellant wore thermal shirts like the one that was found. At the hospital emergency room the physician who treated Ward’s gunshot wounds gave Investigator Efird a shotgun pellet that had fallen from Ward’s body. Investigator Efird arrested appellant following Deputy Collie’s giving him the spent shotgun shell. Ark. R. Crim. P. 4.1 authorizes a law enforcement officer to arrest a person without a warrant if he has reasonable cause to believe that such person has committed, among other offenses, a felony or a traffic offense involving driving a vehicle while under the influence of any intoxicating liquor. Probable cause to arrest without a warrant does not require that degree of proof sufficient to sustain a conviction. Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986). Under the circumstances here, we cannot say appellant’s arrest was pretextual.

Appellant was arrested; the gunpowder residue test and breathalyzer were administered; and he was booked for driving a vehicle while under the influence of an intoxicating liquor. We determined the arrest was made in compliance with the law. Appellant raises no contention regarding the breathalyzer, but claims the gunpowder residue test was administered in violation of his constitutionally protected rights. Under the circumstances, we disagree.

The gunpowder residue test was administered because appellant was a suspect in the shooting. Under exigent circumstances, such as where the opportunity to make the test will exist only for a short time, certain warrantless instrusions have been held to be reasonable and not in violation of any protected rights. See Schmerber v. California, 384 U.S. 757 (1966); United States v. Bridges, 499 F.2d 179, cert. denied, 419 U.S. 1010 (1974). Appellant submitted to the test without protest and we find the test was reasonable in light of the exigent circumstance. Had appellant washed his hands, the chance to conduct the test would have been gone.

Although appellant was eventually charged and held for driving while under the influence of liquor, the police actions taken in regard to his being a suspect in the shooting did not violate his constitutionally protected rights.

Appellant next argues the court erred in denying his motion for continuance. The denial of a motion for continuance is within the discretion of the trial court and will be reversed only for an abuse of discretion. Wilson v. State, 297 Ark. 568, 765 S.W.2d 1 (1989). The appellant bears the burden of showing that the trial court’s denial of a continuance was an abuse of discretion, and, in order to show abuse of discretion, the appellant must show that he was prejudiced. Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990). In exercising its discretion concerning a request for a continuance to obtain the presence of a witness, the following factors should be considered by the trial court.: (1) the diligence of the movant, (2) the probable effect of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990); Ark. Code Ann. § 16-63-402 (1987). Furthermore, where there is no evidence that a witness can ever be procured, denial of a continuance is proper. Doles v. State, 280 Ark. 299, 657 S.W.2d 538 (1983).

Appellant contends that a proper defense at trial required the presence of Grace Bull and, as she made herself unavailable for service, the case should have been continued in order for him to locate her. Under the circumstances presented, we do not agree.

This case was originally set for trial on June 6,7, and 8,1990. One motion for continuance was granted because one of appellant’s co-counsel had a scheduling conflict. The trial was rescheduled for June 28, 1990. We note that no subsequent motion for continuance is found in the record. However, in a side bar conference immediately preceding the presentation of the state’s case-in-chief, appellant’s counsel stated, “we have previously, also, of course, moved for a continuance on the grounds that we are not able to find Ms. Bull.” The trial court denied the motion for a continuance finding there was nothing to show either that Grace Bull was a material witness or that there would be any assurance she would be found and produced if the trial were delayed.

Whether or not an appropriate motion for continuance was made, in light of the findings by the court, appellant has failed to show that he was prejudiced. Based on the foregoing, we cannot say the trial court erred in its ruling.

Appellant in a final point asserts a hodgepodge of “other claims.” Among these claims he lists his motions for directed verdict and to reduce the charge, the court’s refusal to excuse a juror for cause, the introduction by the state of an allegedly misleading photograph, and the admission into evidence of the photographs of Ward’s body. However, he presents no argument or authority regarding these “other claims.” This court does not consider arguments unsupported by convincing argument or authority. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989).

Affirmed.


author: Robert L. Brown, Justice.

text:
    Jeff MOBLEY v. John T. HARMON
    90-355
    803 S.W.2d 900
    Supreme Court of Arkansas
    Opinion delivered February 11, 1991
    [Rehearing denied March 4, 1991.]

      Robert E. Irwin, for appellant.

      Robert E. Adcock, for appellee.

      Dudley, J., not participating.

   Robert L. Brown, Justice.

The sole issue in this appeal is whether an accommodation maker who has paid off a promissory note owed a bank and been formally assigned that note can recover the amount paid against the co-maker of the note. The facts in this case are not in dispute, although the parties bitterly dispute the conclusions that can be drawn from those facts.

Appellant Jeff Mobley and appellee John Harmon had been friends for a long time, and in 1981 Harmon asked Mobley to cosign a promissory note and assist him in getting a $10,000 loan from First National Bank of Russellville. The bank loan officer preferred to lend the money to Mobley, whom he knew, and have Harmon co-sign the note. On October 20, 1981, both parties signed a note as makers in the amount of $ 10,000. The proceeds of the loan, in the form of a cashier’s check, went solely to Harmon as payee. The note was due and payable in full on April 20,1982. Also, on October 20, 1981, Harmon gave Mobley a note in the amount of $10,000 due and payable in six months and conditioned on Harmon’s failure to pay the Russellville bank. The bank note was not paid, and collection of the second note is not an issue in this case.

Harmon made payments on the loan and then defaulted, and Mobley subsequently assumed responsibility for the payments. These payments by both makers reduced the note principal to $6,776.77. The note was extended several times by the bank. The first four extension agreements were signed by both Harmon and Mobley and were dated April 23,1982; October 22, 1982; April 21, 1983; and October 31, 1983.

In January, 1984, Harmon moved to Texas. Also in 1984 Mobley had open heart surgery. After Harmon’s move, four additional extension agreements were signed by Mobley and the bank without Harmon’s consent: May 14, 1984; December 10, 1984; July 8, 1985; and January 7, 1986. In the case of each of those extensions, Mobley testified that he did not get Harmon’s signature because “I either couldn’t find him or he refused to come back [from Texas], one or the other.” Harmon testified that he refused to sign one of the extensions and “then he [Mobley] quit communicating with me.” While in Texas Harmon filed for bankruptcy but intentionally did not schedule the Russellville bank debt. Neither Mobley nor the Russellville bank filed claims in bankruptcy. Harmon returned to Arkansas in 1986.

The last extension agreement was signed by Mobley on January 7,1986, and it extended the due date on the note to July 8, 1986. However, Mobley decided to pay off the note two days after signing the last extension and did so on January 9,1986. On that same date the bank formally assigned its interest in the note to Mobley.

Mobley filed suit against Harmon on March 28, 1989, to recoup the amount paid to the Russellville bank. After a trial before the court, the judge held in favor of Harmon and dismissed Mobley’s lawsuit on the basis that Harmon’s liability was discharged under the Uniform Commercial Code.

We reverse the trial court’s decision.

We begin by noting that Harmon and Mobley claim the same status as accommodation maker, and each party fervently asserts that the other was the primary maker. It is true that the bank clearly wanted Mobley as the primary maker because it had had no dealings with Harmon. But Harmon received the full benefit of the loan, which was undoubtedly orchestrated for his benefit.

We have said in recent cases that the intention of the parties is the most significant element in determining accommodation status, and where a person receives no direct benefit from an executed note, it is likely that he will be regarded as the accommodation party. McIlroy Bank & Trust v. Maestri, 297 Ark. 130, 759 S.W.2d 808 (1988); Womack v. First State Bank of Calico Rock, 21 Ark. App. 33, 728 S.W.2d 194 (1987). We therefore agree that the total circumstances support the trial court’s determination that Mobley was the accommodation maker.

This case is then governed by the Uniform Commercial Code, and conflicting sections are involved. The Code first discusses liability between the accommodator and the person accommodated:

(5) An accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party.

Ark. Code. Ann. § 4-3-415(5) (1987). This section would appear to give Mobley clear recourse against Harmon.

Yet in a subsequent section the Code impairs that right of recourse and discharges certain parties to the note, including note holders, under facts which exist in this case. See Ark. Code Ann. § 4-3-606(l)(a) (1987). The particular defense that inures to Harmon’s benefit is discharged under the impairment-of-recourse section:

(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder:
(a) Without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, . . .

Ark. Code Ann. § 4-3-606(l)(a) (1987).

That is precisely what occurred in this case. The bank agreed to suspend the right to enforce its note against Harmon, when it looked only to Mobley to sign the last four extension agreements. Harmon in no way consented to any extension after October 31, 1983. The Commercial Code is clear that the last extension agreed to by Harmon “authorized a single extension for not longer than the original period” unless otherwise specified. Ark. Code Ann. § 4-3-118(f) (1987). That would authorize an extension for six months, or until April 30, 1984. Beyond that date Harmon and Mobley were in default, and when the bank chose to extend the obligation four more times with only Mobley’s agreement, it effectively released Harmon. This discharge defense was available to Harmon had the bank sought collection on the note.

We followed this same rationale in the Maestri case. There, the facts were different in that the bank (Mcllroy) sued the accommodation maker who raised the impairment-of-recourse defense. The law as stated in Maestri applies to this case:

The words “agrees to suspend the right to enforce” signify the granting of an extension of time for payment. Hence, the holder of the note, Mcllroy, discharged any party to the instrument, including accommodation makers, to the extent that Mcllroy granted an extension without the consent of the party or without an express reservation of rights.

297 Ark. at 134, 759 S.W.2d at 809. It makes no difference under section 4-3-606(l)(a) whether the holder of the note is suing the primary maker or the accommodation maker. Discharge under the circumstances still pertains and is a defense for Harmon against the bank. See also Rogers v. Merchants & Planters Bank, 302 Ark. 353, 789 S.W.2d 463 (1990).

This case, however, is distinguishable from Maestri and Rogers in one important respect. Here the Russellville bank assigned the note to the accommodator, Mobley, who became holder of the note. Ordinarily a holder takes a note assignment subject to all defenses which the maker had against the bank. See Ark. Code Ann. § 4-3-306 (1987); Richardson v. Girner, 282 Ark. 302, 668 S.W.2d 523 (1984). But the Code specifically gives an accommodation maker an independent cause of action against the party accommodated, as already shown in this opinion. See Ark. Code Ann. § 4-3-415(5) (1987). Mobley therefore is not suing Harmon merely in his status as note holder, but is suing him under the authority of a separate Code provision which empowers him to do so. Because of this independent status under section 4-3-415(5), Mobley’s right of recourse is unencumbered by any defenses Harmon held against the bank.

The policy behind this result is certainly sound and is best illustrated in the following commentary:

It also follows from the nature of the surety’s undertaking that he is entitled to recover from the debtor any payment he is called on to make to the creditor. If a friend agrees to sign another’s note and is ultimately made to pay that note to the creditor, curbstone equity tells us that he should have a cause of action against the person who actually benefited from the creditor’s loan.

James J. White and Robert S. Summers, Handbook of the Law Under the Uniform Commercial Code, 2d Ed., § 13-16, p. 529 (1980).

In light of this reasoning we cannot agree with the trial court that Harmon’s liability was automatically discharged against all parties when the note was extended without his consent. As already noted the discharge was a defense available to Harmon against the bank, and we have held in Maestri and Rogers that the defense is available to any nonconsenting party. But it was not a defense available against an accommodation party who is suing the party accommodated.

We reverse and remand the case to circuit court for judgment in favor of Mobley in accordance with this decision.

Reversed and remanded.

Dudley, Jr., not participating.


author: Per Curiam.

text:
    Kelly HUGGINS v. STATE of Arkansas
    RC 91-3
    803 S.W.2d 544
    Supreme Court of Arkansas
    Opinion delivered February 11, 1991

      Christopher Carter, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioner was convicted on May 30,1990, of theft of property and sentenced to five years in the Arkansas Department of Correction. He conducted his trial pro se and filed a timely notice of appeal pro se on June 29, 1990, albeit to the wrong court. His notice is directed to the Circuit Court of Marion County. He designated the entire record for appeal.

Upon filing his notice of appeal, the petitioner asked the court to appoint counsel for the appeal and to declare him indigent. The court did appoint counsel but effectively denied his request for indigency status by ordering the petitioner to pay for the transcript of his appeal. Thereafter, the petitioner’s counsel filed a motion for a new trial on July 9,1990, and a hearing was set for August 24,1990, which hearing the petitioner failed to attend. According to his counsel, this failure was due to an arrest in Florida.

On August 22, 1990, counsel filed a motion to extend the time for filing the transcript, and the trial court granted the extension until November 23, 1990. However, on October 1, 1990, which was prior to the transcript deadline, counsel moved to withdraw as attorney for the petitioner based on the unavailability of the petitioner and the petitioner’s request that he withdraw. That original motion to withdraw apparently was never submitted to this court for action, and counsel is still attorney of record for the petitioner. Petitioner’s counsel did file a second motion to withdraw on January 22,1991, and that motion is pending before this court.

The petitioner failed to file his transcript on November 23, 1990, or, more precisely, the circuit clerk of Marion County failed to file it with this court, because she had not been paid by him. However, the petitioner’s transcript has now been tendered to this court, and the petitioner’s counsel filed a Motion for Rule on the Clerk on January 5,1991, and further asked this court to find the petitioner to be indigent. Counsel states in the motion that the petitioner is now incarcerated in the Arkansas Department of Correction and has failed to respond to counsel on whether he wishes to continue his appeal or not. Apparently the petitioner does want to continue his appeal because he subsequently paid the cost of the transcript and the transcript was tendered to the clerk of this court on January 7, 1991.

We deny the motion. Though, admittedly, the communication between the petitioner and his counsel was strained, there is no doubt that the petitioner was under circuit court order denying his indigency status and requiring that he file the transcript. Counsel wanted to withdraw his representation, and the petitioner concurred. But until leave to withdraw was granted, counsel had an obligation to either 1) assure the transcript was filed on time or 2) obtain another extension of time to file the transcript. Neither of these actions apparently was taken.

Another avenue open to counsel was to have the appropriate court act on his motion to withdraw. Pursuant to Ark. Sup. Ct. R. 11(h):

Any motion by counsel for a defendant in a criminal case for permission to withdraw made after notice of appeal has been given shall be addressed to this Court [Arkansas Supreme Court] and is to contain a statement of the reason for the request, and shall be served upon the defendant appealing. . . .

Under this rule, the petitioner’s counsel should have addressed his original request for withdrawal to this court, not the circuit court.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See Shuffield v. State, 292 Ark. 185, 729 S.W.2d 11 (1987). Here, the attorney falls short of admitting error or neglect, but rather suggests that if this court finds counsel negligent, the Rule on the Clerk should be granted. We have held that a statement that it was someone else’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, the petitioner’s motion must fail.

If the petitioner’s attorney files a motion and affidavit in this case accepting full responsibility for not filing the transcript on time, then the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

MARCH 18, 1991

Appellant, pro se.

Winston Bryant, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.

Petitioner’s request for indigency status is denied for failure to comply with Ark. Sup. Ct. R. 28.

Counsel’s motion to withdraw which was filed in the court of appeals on January 22, 1991, is denied at this time, subject to further review by this court should negligence of counsel be admitted.

Justices Holt, Glaze, and Corbin would grant the Motion for Rule on the Clerk.

SUPPLEMENTAL OPINION ON DENIAL OF RECONSIDERATION

Per Curiam. The respondent/appellee Attorney General files a motion to reconsider denial of a motion for rule on the clerk. The Attorney General is concerned that petitioner/appellant Kelly Huggins will still be able to prosecute a direct appeal, if his attorney is to blame for failure to lodge the transcript in timely fashion. If the fault, however, lies with Huggins, according to the Attorney General, then Huggins will not be permitted a direct appeal which is what the Attorney General favors.

We said in our original per curiam opinion, where we denied Huggins’ motion for a rule on the clerk, that Huggins’ actions evidenced a desire to appeal: “Apparently the petitioner does want to continue his appeal because he subsequently paid the cost of the transcript and the transcript was tendered to the clerk of this court on January 7, 1991.” The Attorney General disputes this factual conclusion and attaches an affidavit to its motion that the Marion County Circuit Clerk had not been paid the cost of the transcript in the amount of $60.00.

In reviewing the court reporter’s transcript, we find that there is a typed notation with a dollar amount which the court reporter completed: “$269.10 cost paid by appellant.” This certificate was completed by the court reporter on October 10, 1990. The clerk’s affidavit relates to the clerk’s cost which is distinguishable from the cost of transcribing the record itself. Again, paying for the cost of transcribing the record evidences the fact that Huggins wanted to appeal.

We remain of the opinion that counsel for Huggins should have either extended time for filing the transcript one more time, or filed the transcript in timely fashion, or obtained leave from this court to withdraw as Huggins’ counsel prior to the time that the transcript was due. It appears from the information before us that none of these avenues was pursued by counsel.

The motion to reconsider is, therefore, denied.


text:
    Rodney McDUFFIE v. STATE of Arkansas
    RC 90-52
    803 S.W.2d 543
    Supreme Court of Arkansas
    Opinion delivered February 11, 1991

      John Wesley Hall, Jr., by: Craig Lambert, for appellant.

      Ron Fields, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant has asked us to enter an order granting him permission to file a belated appeal. We remanded the cause to the trial court for an evidentiary hearing. The trial court conducted a hearing as to whether the appellant waived his right of appeal and, if not, which counsel was responsible to proceed with the appeal.

Appellant’s conviction judgment had been entered on May 25, 1990. He had been represented by Mr. Christopher Mercer, who apparently also represented him on some other pending charges. After his conviction, appellant contacted the John Wesley Hall, Jr. Law Firm to represent him on appeal. At the conclusion of the trial court’s hearing on remand, the court concluded the Hall Law Firm had been paid to represent appellant in this appeal prior to the time appellant’s notice of appeal was due to be filed. Because the Hall Law Firm had been duly and timely paid to handle the appeal, the trial court ruled that firm should have filed the notice of appeal. We cannot say the findings of the trial court on this post-conviction motion were clearly against the preponderance of the evidence. Bogan v. State, 293 Ark. 370, 738 S.W.2d 94 (1987).

In view of the trial court’s findings, appellant’s motion for belated appeal will be granted upon appellant’s counsel, the Hall Law Firm, submitting a motion and affidavit accepting full responsibility for not timely filing the notice of appeal in this case. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1965), and Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).

       The trial court made reference to Mr. Mercer’s continuing duty as trial counsel to file an appeal, if requested, but ultimately found the Hall Law Firm had been retained for appeal purposes. See A.R.Cr.P. Rule 36.26.


author: Jack Holt, Jr., Chief Justice.

text:
    Michael Wayne WILLIAMS v. STATE of Arkansas
    CR 90-247
    804 S.W.2d 346
    Supreme Court of Arkansas
    Opinion delivered February 18, 1991.

      William R. Simpson, Jr., Public Defender, Thomas B. Devine III, Deputy Public Defender, by: Don Thompson, Deputy Public Defender, for appellant.

      Mary B. Stallcup, Att’y Gen., by: Sandra Bailey Moll, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Michael Wayne Williams, was convicted of murder in the first degree, kidnapping, and aggravated assault and was sentenced to prison terms of life, twenty years, and six years, respectively, to run consecutively.

Williams’ sole point of error on appeal is that the trial court erred in not granting his motion for a directed verdict on the charge of murder in the first degree. We disagree and affirm.

Sometime after midnight on August 13, 1989, Williams went to the home of the deceased, Virginia McGee, seeking his ex-girlfriend, Robin Jefferson. Ms. Jefferson had been living with Ms. McGee, who was her aunt.

Testimony at trial revealed that Williams and Ms. Jefferson had been boyfriend and girlfriend for approximately three years and had had a child together. A month before the murder, Ms. Jefferson ended the relationship, stating that Williams had been physically abusive. Ms. Jefferson testified that following their breakup, Williams repeatedly called and threatened her.

On one occasion, Williams fired a gun at Ms. Jefferson from his car and then ran his car into hers, causing her to run into a telephone pole. It was from this incident that Williams was convicted of aggravated assault. On another occasion, for which the jury convicted him of kidnapping, Williams forced Ms. Jefferson to leave her aunt’s house with him at gunpoint. After making her drive around for some time, while he threatened to kill Ms. Jefferson and himself, Williams finally allowed her to return home.

The night Williams came to Ms. McGee’s home, Robin Jefferson was staying with her grandmother. Ms. McGee was at home with her boyfriend, Willis Stewart. Mr. Stewart testified that they had fallen asleep in the back bedroom and awoke to find Williams standing in the doorway, holding a gun. Williams asked, “Where’s she at?” indicating Ms. Jefferson. At that point, Ms. McGee got up and told Williams to leave. She and Williams proceeded down the hall towards the front door, arguing all the while. Mr. Stewart testified that Williams kept asking where Robin was and that “he was just kind of in a rage.” Mr. Stewart heard the screen door slam and Ms. McGee walking back down the hall, at which point he heard gunshots. Williams then ran back down the hallway to the bedroom, again asking “Where’s she at?” Mr. Stewart stated that “at this time I realized that he either shot at her or shot her.” Williams then fled, and Mr. Stewart found Ms. McGee in the front bedroom, huddled beside a dresser. Mr. Stewart attempted to telephone for help but was unable to get a dial tone, whereupon he went to a pay phone and called the police and ambulance.

At trial, Williams’ counsel made timely motions for a directed verdict on the basis that the state had failed to meet “its burden of showing there was any purposeful action or conscious object on Mr. Williams’ part to kill Ms. McGee.”

A motion for a directed verdict is a challenge to the sufficiency of the evidence. On appeal, we review the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990). Evidence is substantial to support a conviction if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990).

The jury was properly instructed in accordance with Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1989), that to sustain the charge of murder in the first degree, the state must prove, beyond a reasonable doubt, that “with the purpose of causing the death of Virginia McGee, Michael Williams caused the death of Virginia McGee.” A person acts purposely with regard to his conduct or a result thereof when it is his “conscious object to engage in conduct of that nature or to cause such a result.” Ark. Code Ann. § 5-2-202(1)(1987).

We hold that there was substantial evidence from which the jury could have concluded that Williams purposely caused the death of Virginia McGee.

In addition to Mr. Stewart’s testimony, recounting the events as he heard them from the bedroom, Captain Randy Johnson, with the North Little Rock Police Department, testified concerning an interview he conducted with Williams. Williams’ account of the incident matched Mr. Stewart’s.

According to Captain Johnson, Williams told him and Sergeant Jim Chapman that he had experienced ongoing problems with the family because of his relationship with Robin Jefferson. He stated that he arrived at Ms. McGee’s home on August 13 looking for Ms. Jefferson armed with a handgun. Upon his arrival, Williams disconnected the telephone wires at the back of the house so that no one could call the police, as had been done upon his previous visits to the home. Sergeant Chapman verified this fact from his inspection of the telephone box at the residence.

After no one responded to the front door bell, Williams went around to the side of the house and gained entry there by forcing the door open. Williams told Captain Johnson he went to the back bedroom where he found Ms. McGee and Mr. Stewart asleep. Williams asked Ms. McGee where Robin was and the two began arguing as she escorted him down the hall, telling him to leave. Williams related that Ms. McGee opened the front door and a shoving match ensued, whereupon Ms. McGee stated something to the effect that “you’re not the only one who’s got a gun,” and started walking across the living room to the hallway. Captain Johnson testified that Williams said when Ms. McGee got across-the living room? he raised the gun and fired two shots, not knowing whether or not he had hit her.

Dr. Fahmy Malak, Chief Medical Examiner with the State Crime Laboratory, testified that an autopsy of the body revealed that Ms. McGee was shot once in the abdomen and once in the lower back. Dr. Malak stated that both wounds contained gunpowder residue, indicating a close shooting range of approximately three feet. Evidence reflects Ms. McGee was shot with a .45 caliber weapon.

Williams argues that the shots were fired in frustration and, while the evidence shows that he intentionally entered the home, it does not show that he intended to kill Ms. McGee since his quarrel was not with her but with her niece, Robin Jefferson.

Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). It is irrelevant that Williams’ initial quarrel was with Ms. Jefferson when he came to the house. The jury could reasonably have found that Williams became so upset with Ms. McGee that he raised his gun and fired, purposely intending to kill her. We have said that even premeditation and deliberation can be formed on the spur of the moment, see Salley v. State, supra, and the same is true of purposeful intent.

Furthermore, the intent necessary for first degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Garza v.State, 293 Ark. 175, 735 S.W.2d 702 (1987). It is reasonable to conclude that when the appellant fired shots from a .45 caliber pistol into the victim’s abdomen and back, from a distance of a few feet, he possessed a purposeful intent to kill.

Under Ark. Sup. Ct. R. 11(f), an examination has been made of all other rulings adverse to Williams, and none constitute prejudicial error. For the reasons above, we affirm.


author: Robert H. Dudley, Justice.

text:
    Tommy L. BRYANT v. STATE of Arkansas
    CR 90-204
    803 S.W.2d 546
    Supreme Court of Arkansas
    Opinion delivered February 18, 1991

      Henry H. Boyce, for appellant.

      Ron Fields, Att’y Gen., by: Sandra Bailey Moll, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Tommy Bryant was convicted of the offenses of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver. He was sentenced to a total of eighty (80) years in prison. We affirm the judgments of conviction. Since sufficiency of the evidence is not questioned, we need not recite the details of the crimes.

Appellant first contends that the trial court erred in refusing to grant his motion for a continuance. The trial court correctly ruled that, after three and one-half years of continuances, the public interest required that appellant’s case be tried.

Appellant was arrested on December 6, 1986, and was immediately released on bond. Soon afterwards he employed John Henry, of Harrisburg, as counsel. On January 7, 1987, appellant, through counsel, moved for a continuance. It was granted. On April 6, 1987, appellant was granted a second continuance. On September 21, 1987, appellant asked for a mental examination. That motion was granted. On December 4, 1987, appellant moved for another continuance. It was granted. On February 8, 1988, he was granted another continuance. On July 11,1988, he was granted a continuance. On July 22,1988, he moved for another mental examination, and that motion was also granted. On September 22, 1988, another continuance was granted at appellant’s request. Appellant requested, and was granted even another continuance. On May 22, 1989, the appellant discharged his attorney and another continuance was granted. The trial court subsequently appointed Joe James, of Newport, as appellant’s counsel, but soon allowed Mr. James to withdraw because of a conflict of interest between appellant and another of James’s clients. The trial court then appointed Phillip Hout, of Newport, as attorney for appellant. On September 7, 1989, another continuance was granted. The trial court allowed Phillip Hout to withdraw because of differences and lack of communication with appellant. Henry Boyce, of Newport, was then appointed to represent appellant. On February 17, and March 16,1990, additional continuances were granted on appellant’s motions. The trial court set June 4,1990, as the trial date.

On two occasions in the month before the scheduled trial, Mr. Boyce tried to talk to the appellant about his defense, but the appellant refused to talk to him. Boyce gave appellant a copy of his file. On the morning of trial the appellant again refused to talk to Boyce. At that point the trial court told the appellant that the trial was going to start that morning regardless of whether he talked to his attorney. The trial court asked the appellant if he wanted a short recess in order to talk to his attorney. The appellant again apparently refused to talk to his attorney and, instead, requested a continuance in order to hire an attorney. The judge asked where he would get the money, and appellant responded he would borrow it from his family. The trial court refused the motion, and the trial commenced. Appellant contends the trial court’s ruling denying another continuance was reversible error.

On numerous occasions we have pointed out that the right to employ counsel of one’s choosing is not a license to subvert or manipulate or obstruct the effective administration of justice. See, e.g., Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986). On one occasion we said an accused may not play a “cat and mouse game with the court” in choosing a new lawyer on the eve of a trial. Tyler v. State, 265 Ark. 822, 828-9, 581 S.W.2d 328, 331 (1979). Clearly, that is what appellant was seeking to do. The trial court correctly ruled that, after three and one-half years, it was time for a trial.

The appellant also argues that the trial court did not give counsel adequate time to prepare his defense since the trial court only allowed him a few minutes visitation on the morning of the trial. If counsel was unable to prepare for trial effectively, it was not counsel’s fault, but instead, was wholly the fault of appellant. Not every restriction on counsel’s time to consult with his client violates an accused’s sixth amendment right to counsel. Morris v. Slappy, 461 U.S. 1 (1983). Trial judges are responsible for assembling the accused, the lawyers, the jurors, the witnesses, and the court personnel at the same place and same time for the trial, and, once this process is set in motion, continuances should be granted only for compelling reasons. See Ungar v. Sarafite, 376 U.S. 575 (1964). An accused’s persistent, senseless, and contumacious refusal to assist his attorney in the preparation of his own defense is not a compelling reason for a continuance at the moment of trial. Morris v. Slappy, supra. Accordingly, the trial court did not err in refusing to give more than a few minutes delay in beginning the case.

Appellant’s final point of appeal concerns voir dire. The facts leading to the point are as follows. The State filed a motion stating that, in its case-in-chief, it would seek to show evidence of other deliveries of drugs in order to prove intent to deliver in this case. See Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987) and Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985). The State additionally submitted a proposed cautionary instruction. Subsequently, during voir dire, the following took place:

Mr. Stallcup [Prosecuting Attorney]:
Because of this problem in this type of case in proving intent, the law is going to allow me to show in a limited extent the defendant’s past history. And I’m going to put on proof that this defendant has two prior felony convictions.
BY MR. BOYCE: Objection, Your Honor.
BY THE COURT. Overruled.
That this defendant has two prior felony convictions for delivery of a controlled substance. And that evidence is going to be offered not to prejudice you against the defendant, but to show what his intent was on the date in question as a circumstance for you to consider. But I’m sure y’all understand that, you know, when I, after I put on that kind of proof that I still have the burden of proof to prove this case beyond a reasonable doubt and that the two prior felony convictions for delivery for this defendant are just so you can infer his intent on the date in question. Everybody follow that pretty well?

The appellant now appeals the ruling.

A.R.E. Rule 103(a)(1) requires that a timely objection appear of record, stating the specific ground of the objection if the specific ground is not apparent from its context. Here, a specific ground was not stated, and none is apparent from the context of the question, so we treat the objection as going to relevance and the general purposes of voir dire.

The purpose of voir dire examination is (1) to discover if there is any basis for challenge for cause, and (2) to gain knowledge for the intelligent exercise of peremptory challenges. A.R.Cr.P. Rule 32.2. The extent and scope of voir dire is generally within the sound discretion of the trial court. Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983). Unless the trial court clearly abused its discretion, in allowing voir dire, we will not reverse. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). Here, there was no argument that the question was a mere subterfuge to prejudice the jury, or that it was not asked in good faith. The question was not outside the scope of relevant voir dire, and accordingly, we will not reverse.

In this Court, appellant argues that the question should not have been allowed under a Rule 403 type of weighing. That argument was not made to the trial court, and we will not consider it for the first time on appeal.

Affirmed.


author: Steele Hays, Justice.

text:
    The BANK OF FAYETTEVILLE, N.A., et al. v. MATLIDA’S, INC., et al.
    90-282
    803 S.W.2d 549
    Supreme Court of Arkansas
    Opinion delivered February 18, 1991.

      Bassett Law Firm, by: Curtis L. Nebben and Gary V. Weeks, for appellant.

      Pettus Law Firm, by: E. Lamar Pettus, for appellee.
   Steele Hays, Justice.

The Bank of Fayetteville, N.A., John M. Lewis and Patricia Lewis brought this suit to quiet title to an easement to a common stairway at the rear of adjoining buildings which house the Bank of Fayetteville and Matilda’s, Inc., naming A.D. and Virginia McAllister as defendants. The stairway is in the McAllister building and provides access to the second floor of the bank building. The bank building is owned by plaintiffs, John M. Lewis and Patricia Lewis, and leased to the Bank of Fayetteville.

The petition alleged that the stairway entrance had been recently blocked, denying the plaintiffs the full enjoyment of their easement. The McAllister defendants filed a counterclaim alleging abandonment and adverse possession for more than fifteen years, asking that title to the disputed property be quieted in A.D. McAllister, Jr., Trustee.

Issues were joined and following a trial the chancellor found that the plaintiffs and their predecessors in title had as early as 1909 acquired the perpetual and unrestricted use of the stairway leading from the street to the second story and the right to rebuild or repair the stairway and hall in the event of destruction, injury or decay. The chancellor also found that the stairway had not been used by the plaintiffs or their predecessors in title for at least twenty-nine years and that the entryway at the head of the stairway has been sealed and bricked for at least twenty-nine years preceding this litigation; that even though various conveyances among members of the Lewis family over the years included a description of the easement, evidencing its existence, the subject of reopening the entry way to provide access was never raised until sometime in 1986; that the lack of use, combined with the passageway being sealed and bricked for more than twenty-nine years, constithtes an abandonment.

On appeal from the decree, the Bank of Fayetteville, John M. Lewis and Patricia Lewis maintain that the finding of the chancellor that the easement rights were abandoned was against the preponderance of the evidence. Finding no merit in the argument, we affirm the decree.

While we consider chancery appeals de novo, we will not reverse unless the chancellor’s findings are clearly erroneous. Wilson v. Wilson, 301 Ark. 80, 781 S.W.2d 487 (1989). The chancellor held that the combined lack of use and the sealing and bricking of the entryway over twenty-nine years ago constituted an abandonment of the easement because those were acts inconsistent with future enjoyment of it. We recognize the rule that an easement may be lost by abandonment. Drainage District No. 16 v. Holly and Roach, 213 Ark. 889, 214 S.W.2d 224 (1948). Abandonment in this context means “to relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in,. . .” Hendrix v. Hendrix, 256 Ark. 289, 506 S.W.2d 848 (1974). The one asserting abandonment has the burden of proving it by clear evidence. Id. An easement may not be lost by merely showing nonuse, however, “abandonment of an easement will be presumed where the owner of the right does or permits to be done any act inconsistent with its future enjoyment.” Drainage District No. 16 at 898, 214 S.W.2d at 229.

The evidence consistent with abandonment in this case included: (1) The doorway leading into the bank building had been bricked and sealed for at least twenty-nine years. (2) Members of the Lewis family have held title to the bank building since 1909, but there has been no demand or request to reopen the passage for at least twenty-nine years until appellant John Lewis began renovation of the bank building in 1989. (3) The Lewis family members have not used the stairway, even to have a utility meter read, for more than fifteen years.

In Drainage District No. 16 v. Holly and Roach, supra, the Arkansas Supreme Court held that the Drainage District abandoned its right-of-way for a levee because it destroyed the original levee and erected another on a new location. Also, the District did not exercise any control over the original right-of-way for at least seven years. Justice McFadden wrote for the entire court:

[wjhether or not an abandonment exists in any given case depends upon the particular circumstances of such case. A right-of-way is but an easement, which will be held to be abandoned with the intention to abandon and the acts by which such intention is carried into effect clearly indicate such abandonment. While nonuser does not alone constitute an abandonment, yet it is some evidence thereof, and when, in addition to such nonuser, facts are proved and circumstances shown in testimony evincing that intention, then the abandonment is established.

Id. at 897-98, 214 S.W.2d at 229 [quoting Gurdon & Ft. Smith Rd. Co. v. Vaught, 97 Ark. 234, 133 S.W.2d 1019 (1911)]. An Oklahoma court, under comparable facts, held that an easement providing access to an opera house by its third floor was abandoned. One of the factors relied on was that the owner of the opera house permanently eliminated access by bricking off the third floor access. Stillwater Columbia Assoc., Inc. v. Shepherd, 727 P.2d 596 (Okla. Ct. of App. 1986).

Though an easement of way is not lost by nonuser, evidence of nonuser may be admitted as interpretative of acts which in themselves might constitute an extinguishment of the easement. Moreover, obstructions rendering the user of an easement impossible and sufficient in themselves to explain the nonuser, combined with a great length of time during which no objection was made to their continuance and no effort was made to remove them, raises a presumption that the right was abandoned.

G. Thompson, Thompson on Real Property § 443 at 742 (1980).

In this case, the length of time of nonuse of the easement indicates an intent to abandon it. While nonuse alone may not be enough, it was accompanied by proof of the absence for an extended period of time of any objection to, or attempts to reopen, the brick obstruction of the passageway. That proof was incompatible with a desire to use the easement and leads us to conclude that the chancellor’s finding of abandonment was not clearly erroneous.

Affirmed.

Newbern and Brown, JJ., not participating.

       Additional party defendants owning beneficial interests under the A.D. McAllister, Jr., Trust were subsequently added.


author: Steele Hays, Justice. Robert L. Brown, Justice,

text:
    CREDIT GENERAL INSURANCE COMPANY v. ATLAS ASPHALT, INC.
    90-273
    803 S.W.2d 903
    Supreme Court of Arkansas
    Opinion delivered February 18, 1991.
    [Rehearing denied March 18, 1991.]

      Junius Bracy Cross Jr., for appellant.

      Bill W. Walmsley, for appellee.

      Newbern, J., not participating.

   Steele Hays, Justice.

By this appeal we are asked to decide whether a supplier of construction materials is barred under Ark. Code Ann. § 18-44-508 (1987) from bringing suit under a performance bond where the suit is not filed within six months from the date an interim payment is made on the contract.

The City of Harrisburg contracted with KLW, Inc., the prime contractor, for street and sewer improvements. Asphalt paving was performed by Fields Curbco, Inc., under a subcontract with KLW dated October 22,1986. The amount to be paid Fields Curbco under the subcontract was $87,910. Fields Curbco’s performance was assured, and its suppliers protected, under a surety bond issued by Credit General Insurance Company.

Fields Curbco ordered its materials — “hot mix,” oil and other products — from Atlas Asphalt, Inc. On June 4,1987, Atlas delivered the last materials to the job and on the following day KLW made a partial payment of $10,000 to Fields Curbco, no part of which was paid to Atlas. That proved to be the final advance made to Fields Curbco, leaving a balance of $55,595.27 due under the subcontract. In October 1987, Harrisburg paid the final payment to KLW under the prime contract.

On February 9,1989, Atlas filed suit against Fields Curbco, KLW and Credit General for $45,663.55 for some 1,660 tons of asphalt delivered by Atlas on the Harrisburg project for which it had not been paid. Fields Curbco admitted owing Atlas $49,071.65 and filed a cross complaint against KLW for $55,595.27. Credit General admitted the suretyship, denied that Atlas had delivered 1,660 tons of asphalt and affirmatively pled the statute of limitations as a defense. The trial court denied Credit General’s motion for summary judgment on the statute of limitations defense, and after a bench trial found that unbeknownst to Atlas, a portion of the asphalt delivered by it to Fields Curbco, 78 tons, had been used on a different project and was not chargeable to the Harrisburg job. On that basis the trial court awarded a judgment to Atlas against Fields Curbco in the amount of $45,663.50 and against Credit General in the amount of $43,752.50, plus a twelve percent penalty and an attorney’s fee of $10,701.

On appeal Credit General assigns error to three rulings by the trial court: the trial court erred in refusing to grant summary judgment on the statute of limitations defense, it was error to award statutory penalties and attorney’s fees since Atlas failed to recover the full amount sought from Credit General, and the trial court erred as a matter of law in failing to find on the evidence that Atlas was barred by the statute of limitations, Ark. Code Ann. § 18-44-508 (1987). We sustain the argument with respect to the penalty and attorney’s fee and otherwise affirm the judgment appealed from.

Credit General supported its motion for summary judgment with the deposition of Hal Fields of Fields Curbco, admitting that the last delivery of materials by Atlas was on June 4,1987, and that the last payment received by his company from KLW was the $10,000 partial payment on June 5, 1987. Credit General argues that since Fields Curbco received no further payments from KLW, the last payment, hence, the “final payment,” occurred on June 5, triggering the six months provided by § 18-44-508. That statute reads in part:

All persons, firms, associations and corporations who have valid claims against the bond may bring an action thereon against the corporate surety. No action shall be brought on the bond after six (6) months from the date final payment is made on the contract. . .

Appellant Credit General relies on a single authority — the case of Tucker Paving Corporation v. Armco Steel Corporation, 242 Ark. 49, 411 S.W.2d 888 (1967). But Tucker in fact refutes the appellant’s theory. There, the supplier, Armco, filed its suit on August 25, 1965, within six months of the payment of the five percent retainage which the owner had withheld (June 7, 1965), but not within six months of the date of payment of an amount which, with previous payments, amounted to ninety-five percent of. the contract price (February 9, 1965). Tucker, arguing that Armco was barred, contended that it was the custom in the construction industry to regard the last payment prior to the retainage as the “final payment.” Tucker claimed the practice among architects and engineers in the industry was to regard “final payment” as the date a job is accepted by the owner and the final estimate is paid — that the retainage is merely a safeguard. This court rejected that argument, saying that to call the February 9 payment “final” would be to say “black is white.” The opinion states:

In the generally accepted use of the word, “final,” the meaning is simply “last” — “nothing remains to be done.” — The matter is concluded.” We think that the adoption of appellants’ argument would do violence to our statute, and that such a holding would create uncertainty as to the beginning of the period of limitations where it presently appears to be quite clear.

Citing 16A Words & Phrases, Final Payment at 690, the Tucker court held that “A final payment is the last payment.”

While the statute may be clear in the context of the Tucker case, whether it is clear per se is debatable. It provides no clue as to whether the legislature, by using the words “the contract,” intended to refer only to the prime contract and not to subcontracts as well. In the absence of some clearer indication that such was the intent, we are unwilling to impose so stringent a limitation as six months on subcontractors and material suppliers and anchor it, as appellant would have us do, not to the final páyment on the contract, but to an interim payment which unfortuitously proved to be the last payment made. With that in mind, we limit our holding to the rejection of the specific point argued both here and below, that is, that the June 5 payment was the final payment within the meaning of the statute and, therefore, Atlas had six months from that date to file its suit.

As to the allowance of a penalty and attorney’s fee under Ark. Code Ann. § 23-79-208 (1987), we have held in several cases that a plaintiff must recover the amount claimed to be entitled to these statutory add-ons. Southwestern Insurance Company v. Camp, 253 Ark. 886, 489 S.W.2d 498 (1973). The proof in this case made it clear beyond doubt that seventy-eight tons of asphalt, which Atlas had consistently claimed, was not chargeable to the Harrisburg project and so not to Credit General. Atlas compares the facts to USAA Life Insurance Co. v. Boyce, 294 Ark. 575, 745 S.W.2d 136 (1988), where we declined to apply the rule categorically where it was within the ability of the insurer to determine the correct amount and impractical for the plaintiff to make such determination. But we cannot agree that the Boyce case governs. Here it is evident that Atlas knew (or is chargeable with such knowledge) as early as May 9,1989, that Mr. Hal Fields would confirm that seventy-eight tons of asphalt went to a private owner rather than to the Harrisburg project. It would have been a simple matter to make the necessary alteration in the amount claimed.

Appellant’s final point is an adaptation of its first argument, i.e., that even after a trial no facts were introduced that would toll the period of limitations beyond six months from June 5, 1987. We agree with that characterization of the proof, but for reasons already stated, we draw a different conclusion from those facts.

Affirmed as modified.

Holt, C.J., and Brown, J., concur in part and dissent in part.

Newbern, J., not participating.

Robert L. Brown, Justice,

concurring in part; dissenting in part. While I agree with the majority opinion in its analysis of the statute-of-limitations issue, I must dissent on the issue of statutory penalties and attorney’s fees. The majority opinion would penalize Atlas Asphalt, Inc. and its attorney for failure to amend its complaint to reduce the amount complained of against Credit General from $45,663.55 to $43,752.50. The discrepancy in the amounts, as the majority points out, results from the fact that 78 tons of the asphalt sold by Atlas had been diverted from the Harrisburg job to a different project unbeknownst to Atlas. The majority opinion says that it was evident Atlas knew, after a deposition was taken, that the asphalt had been diverted. That may be, but Atlas should not be required to reduce its claim against Credit General, when the diversion has not actually been proven at trial. It is not reasonable or practical to require Atlas to speculate on what it ultimately may recover, and Atlas should not be penalized when it was Credit General’s insured (Fields Curbco) that diverted the asphalt and therefore caused the credit against the amount Atlas claimed as damages.

We have previously held that where the amount claimed does not correspond to the ultimate amount recovered, we will apply the statutory penalty and attorney’s fees under Ark. Code Ann. § 23-79-208. USAA Life Ins. Co. v. Boyce, 294 Ark. 575, 745 S.W.2d 136 (1988). In Boyce we said:

.... even though appellee [complainant] was not as specific as he could have been in his amended complaint as to the amount of set-off under the various policies and the decreasing term benefit, he specifically made his claim to the insurance proceeds subject to these set-offs, and that is all the law requires.

294 Ark. at 581; 745 S.W.2d at 139. The opinion goes on to say that these set-offs were “facts within the peculiar knowledge of the insurance company.” Id. A concurring opinion in Boyce noted that to limit recovery to awards which are the exact amount claimed “reduces the law to a bingo game,” since variables at trial can often change the ultimate award. 294 Ark. at 583; 745 S.W.2d at 140. I agree.

The statute providing the penalty and attorney’s fees states that the 12 % penalty will be applied “upon the amount of the loss, together with all reasonable attorney’s fees for the prosecution and collection of the loss.” § 23-79-208 (1987). There is no statutory requirement that the amount awarded be the exact amount claimed. Moreover, in the case before us Credit General’s insured, Fields Curbco, diverted the asphalt, and Credit General should not benefit from the wrongdoing of its insured by escaping assessment for the penalty and fees.

In sum, I would award the statutory penalty against the amount of the loss, $43,752.50, and reasonable attorney’s fees as was done by the trial court and as required by § 23-79-208. To do otherwise does violence to the public policy considerations that led to the enactment of this statute in the first place. To the extent that Southwestern Ins. Co. v. Camp, 253 Ark. 886, 489 S.W.2d 498 (1973) and its progeny permit penalties and fees only when the exact amount is recovered, I would overrule those decisions.

Holt, C.J., joins.