author: David Newbern, Justice.

text:
    Larry C. CHRISTIAN v. STATE of Arkansas
    CR 94-293
    889 S.W.2d 717
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      Jeffrey C. Rogers, for appellant.

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

The appellant, Larry C. Christian, was convicted and sentenced as an habitual offender to two life imprisonment terms for two counts of delivery of crack cocaine. He contends the Trial Court erred in denying his motion for a directed verdict. He also argues the Trial Court erred in refusing to instruct the jury on justification and agency arising from his claim that he was only facilitating a drug buy by a law enforcement officer. Other points of appeal are that the Trial Court erred in concluding that he had three prior felony convictions and in denying an oral continuance motion. We find no merit in any of these contentions and affirm.

On December 30, 1992, Officer Fred Witherspoon and a confidential informant drove to an area of El Dorado known as the “Thunder Zone” where many illegal drug transactions have occurred. Larry Christian approached their car and began speaking with the informant, a person with whom he was acquainted. The informant requested $100.00 worth of crack cocaine. Mr. Christian took the money, an act which was videotaped by a camera hidden in the car, and walked away from the car. He returned to the car with a “rock” of crack cocaine which he handed to Officer Witherspoon who then gave Mr. Christian an additional ten dollars.

Officer Witherspoon testified that the next day he and the informant returned and asked Mr. Christian to get them two hundred dollars worth of crack cocaine. Mr. Christian took the money and returned with a larger rock-like substance which turned out to be cocaine. Officer Witherspoon also testified that at no time during these transactions was there any mention of the fact that he was a police officer.

Mr. Christian was charged with two counts of delivery of a controlled substance. Some months later the information was amended by adding an accusation that Mr. Christian was an habitual offender with two prior felony convictions. Still later, on the morning of the trial, the State orally amended the information to allege three prior felony convictions.

1. Directed verdict

Mr. Christian testified, but he did not rebut the evidence contained on the videotape of the first drug transaction or the direct testimony of Officer Witherspoon with respect to the second one. He nonetheless contends there was not sufficient evidence of his guilt to have gone to the jury and thus the Trial Court should have granted his motion for directed verdict. He made the motion at the conclusion of the State’s case-in-chief and at the end of the evidence he presented, but he failed to renew the motion after the rebuttal testimony presented by the State.

The failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case waives any question pertaining to the sufficiency of the evidence. Ark. R. Crim. P. 36.21(b). Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993); Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992); DeWitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991). Cases in which rebuttal evidence has been presented by the State and in which we have declined to consider a sufficiency of the evidence argument due to failure to renew a directed verdict motion at the conclusion of the case include Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994), and Walker v. State, 240 Ark. 441, 399 S.W.2d 672 (1966). Although we have not previously had before us a case in which the motion was renewed at the conclusion of the defendant’s case-in-chief but not after rebuttal evidence, the plain language of the rule requires the latter, and we interpret the rule strictly. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). Accordingly, we decline to consider the argument.

2. Instructions

a. Justification

Mr. Christian argues he was entitled to an instruction based on the defense of justification as provided in Ark. Code Ann. § 5-2-603 (Repl. 1993). The statute provides a defense to one who reasonably believed the accused conduct was required or authorized to assist a public servant in the performance of his or her duty.

The Trial Court denied the instruction on the ground that it was not correct or proper. One reason was the testimony of Mr. Christian. He was asked if he knew prior to the first transaction that Fred Witherspoon was a police officer. He answered, “No, I did not.” Later, during the State’s cross-examination, Mr. Christian stated it wasn’t until later that he “had found out that [his] nunches [concerning the fact that Mr. Witherspoon was a police officer] were right.” Mr. Christian also stated that he was trying to accommodate a friend, the informant, and that “it wasn’t against the law for me to get him a rock.” In a letter written by Mr. Christian while he was in jail, he referred to Officer Witherspoon as the informant’s brother.

Neither his own testimony nor any other evidence supported Mr. Christian’s claim of justification. His testimony tended, instead, to refute that defense. Thus, it was not error for the Trial Court to refuse to give the instruction. When the evidence does not support the giving of an instruction, it is not error to refuse it. See Smith v. State, 308 Ark. 603, 826 S.W.2d 256 (1992).

b. Agency

As to the requested agency instruction, Mr. Christian relies primarily on Daigger v. State, 268 Ark. 249, 595 S.W.2d 653 (1980). In that case, the evidence showed only that police officers tried to buy LSD from the defendant but could not agree on a price. At that point, the defendant introduced them to a couple from whom the officers did purchase LSD. We held the defendant’s conduct could not be considered “delivery” of LSD as contrasted with the facts in Curry v. State, 258 Ark. 528, 527 S.W.2d 902 (1975), where we held that a defendant who took money and returned with drugs was not erroneously convicted of delivery. We stated that under the definition of “deliver” contained in Ark. Stat. Ann. § 82-2601 (f) (Supp. 1973), “it makes no difference, on a motion for directed verdict, whether the transferor acts as an agent of the purchaser or the seller. The act is condemned anytime the transfer is ‘in exchange for money or anything of value.’ ”

The current definition of “deliver,” found in Ark. Code Ann. § 5-64-101 (Repl. 1993), is the same in every respect material to this case as in the earlier statute, the later version having added only a reference to delivery of a “counterfeit [drug] substance.” We conclude it would not matter if Mr. Christian was Officer Witherspoon’s agent. There was no error in refusal of the agency instruction.

3. Prior felonies

Mr. Christian contends the Trial Court erred by finding he had been convicted of a felony on three prior occasions. He also argues the Trial Court erred by allowing the State to amend the information to add the allegation of the third prior felony just before his trial and then declining his request for a continuance.

Mr. Christian disputes the use, for habitual offender purposes, of a 1985 conviction for possession of marijuana with the intent to distribute for which he received a sentence of ten years imprisonment and a $10,000 fine. He contends that conviction was not of a felony because the Trial Court which convicted him of that offense found it was an unclassified misdemeanor, and the law of the case doctrine precludes any further consideration of it.

The law of the case doctrine would preclude a trial court on remand or this Court on further review from reconsidering earlier decisions made in the case before it. Washington v. State, 278 Ark. 5, 643 S.W.2d 255 (1982). It does not, however, preclude this Court from recognizing in this separate case its decision in Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985), that the offense of possession of marijuana with intent to deliver was, in 1985, a felony.

Mr. Christian also disputes the use against him for sentencing purposes of his 1969 conviction of illegal possession of beverages and drugs for which he was sentenced to five years imprisonment, suspended on good behavior, and one year probation. His argument is that he received “court probation” in that case and we held in English v. State, 274 Ark. 304, 626 S.W.2d 191 (1981), that such a proceeding did not qualify as a conviction for purposes of the habitual offender law.

The English case involved a question whether a prior proceeding in which the Trial Court refused to accept the defendant’s plea of guilt but placed him on probation without adjudication could be counted as a conviction for purposes of the habitual offender law. The decision there is not applicable here, as in this case the asserted prior conviction involved a finding of guilt and a sentence as noted above. Mr. Christian offers no authority or explanation as to how the prior conviction under consideration in this case was like the “court probation” under consideration in the English case. We find the distinction to be obvious.

4. Amendment and continuance

A continuance was sought on the basis that counsel for Mr. Christian did not know of the 1969 conviction until informed of it by the prosecution shortly before the trial. He argues it was error to permit the information to be amended to show three convictions rather than two and to refuse his request for a continuance.

An information may be amended after the jury has been sworn but prior to submission of the case to the jury as long as the amendment does not change the nature or degree of the crime charged or result in surprise to the accused. Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993). As to surprise, we find it difficult to accept the argument that an accused may be surprised by an amendment alleging an additional felony conviction if evidence later produced supports the allegation. Who but the accused is in a better position to know of his past convictions? Prior to the second amendment, the information alleged two previous felony convictions. According to Ark. Code Ann. § 5-4-501 (1987), that implicated a punishment range predicated upon “more than one (1) but less than four (4)” prior felony convictions. The next range for increased punishment for an habitual offender is “more than four.” Thus, the increase in allegations from two to three prior felony convictions did not increase the statutory punishment range and did not result in prejudice sufficient to warrant a new trial. See Malone v. State, 292 Ark. 243, 729 S.W.2d 167 (1990).

It was not error to allow the complaint to be amended and to refuse the continuance. The denial of a motion for a continuance is within the sound discretion of a trial court, and such a ruling will be reversed only upon a showing of an abuse of discretion. Kilgore v. State, supra; Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). There was no abuse in this instance.

4. Rule 4-3(h)

The record has been examined pursuant to Ark. Sup. Ct. R. 4-3(h), and no error has been identified that would warrant reversal.

Affirmed.


source: Caselaw Access Project

author: Tom Glaze, Justice. Donald L. Corbin, Justice,

license: Public Domain

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES, Division of Children and Family Services, Special Nutrition Program v. ARKANSAS CHILD CARE CONSULTANTS, INC.
    94-289
    889 S.W.2d 24
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      Richard B. Dahlgren, DHS Office of Chief Counsel, for appellant.

      Howell, Trice & Hope, P.A., by: William H. Trice 111, for appellee.
   Tom Glaze, Justice.

Arkansas Child Care Consultants, Inc. (ACCCI) was an enrolled sponsor for the Child and Adult Care Food Program (CACFP) for fiscal year 1991-92 when it learned of another lunch food program named the Summer Food Service Program (SFSP). On April 13, 1992, ACCCI submitted an application to be a sponsor in the SFSP as well, but in doing so, it supplied false information to the qualifying agency, Special Nutrition Program (SPN) of the State Department of Human Services. Because of the false information, SPN, by letter dated May 7, 1992, denied ACCCI’s application, listing the reasons and concluding the misrepresentations constituted a “serious deficiency” under the federal law. SPN informed ACCCI of its right to appeal the denial and enclosed a copy of the appeal procedures. ACCCI received this correspondence on May 11, 1992. On June 2, 1992, SPN further notified ACCCI that its 1991-92 CACFP contract would be terminated effective June 30, 1992 because its SFSP application had been found seriously deficient. Under 7 CFR § 226.6(c), ACCCI had fifteen days within which it could challenge by appeal SPN’s May 7 denial decision, but it failed to do so. Actually, ACCCI had fifty days (May 11 to June 30) to correct or explain the false information it had given SPN, but it never did so within that period.

ACCCI did ultimately appeal SPN’s termination of ACCCI’s participation in the 1991-92 CACFP program, and on August 7, 1992, an administrative hearing was held on that issue. ACCCI’s executive director testified and basically acknowledged that false information had been supplied on its SFSP application, but blamed it on the lack of time within which ACCCI had to complete the application. She also claimed officials told her an appeal of ACCCI’s termination would be “in vain.” SPN’s official testified that SPN had supplied ACCCI with the appeal procedures, stating federal regulations required such information when the state denies an application or termination of an institution.

By order dated August 25, 1992, the hearing officer found, among other things, that (1) ACCCI admitted it had supplied false information on its SFSP application, (2) ACCCI’s SFSP application had been denied by letter dated May 7, 1992, (3) ACCCI had been informed of its right to appeal the May 7 denial which it did not do, and (4) ACCCI had been notified that federal regulation, particularly 7 CFR 226.6(c), required ACCCI’s termination in the 1991-92 CACFP program because of the “serious deficiency” found in ACCCI’s SFSP application.

ACCCI appealed to circuit court the hearing officer’s August 25,1992 decision upholding the agency’s denial of ACCCI’s participation in CACFP’s 1991-92 program. The circuit court agreed ACCCI had been notified of its rights to appeal the May 7 SFSP termination. However, the court concluded that SPN unlawfully terminated ACCCI before ACCCI had an opportunity to submit corrected information. The court was wrong.

By its own finding, the circuit court determined ACCCI had been notified of SPN’s May 7, 1992 denial of ACCCI’s SFSP application, and the reasons for the denial. The court also found ACCCI had been sufficiently informed as to its right to appeal. As previously mentioned, ACCCI was provided fifty days, not just the fifteen days under 7 CFR § 226.6(c) within which to appeal, to explain or correct the false information made a part of its SFSP application; nonetheless, it failed either to appeal or correct the information. Clearly, ACCCI was given a reasonable opportunity to correct its problems before it was officially terminated for being seriously deficient. See 7 CFR 226.6(c). If ACCCI had appealed the SFSP denial, it could have continued, under appeal procedures, to participate in the lunch program while the appeal process was pending. Because ACCCI did not appeal, the doctrine of res judicata, which forbids reopening of matters once judicially determined by competent authority, applied to the agency’s decision. See Mohawk Tire & Rubber Co. v. Brider, 259 Ark. 728, 536 S.W.2d 126 (1976); Given v. R. D. Hall Tank Co., 10 Ark. App. 12, 660 S.W.2d 947 (1983). In other words, SPN’s finding of “serious deficiency” and its factual underpinnings became conclusive when ACCCI failed to appeal the May 7, 1992 denial.

Even though ACCCI could have been precluded by law from explaining the falsehoods or “serious deficiencies” contained in its SFSP application at the August 7, 1992 hearing on its CACFP denial, ACCCI still was afforded that opportunity by the administrative hearing officer when that officer permitted ACCCI’s executive director to testify. The executive director thoroughly related why false information was provided. After that hearing, the hearing officer found the information on ACCCI’s SFSP application was false and unverified, and further found the executive director had listed food service sites in ACCCI’s application which she admitted ACCCI had not visited. In sum, ACCCI had every opportunity to explain why its SFSP application was submitted with false information, and if failed to give a valid or convincing explanation. Certainly, the record reflects the agency decision was not arbitrary or capricious in holding against ACCCI as it did. Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 885 S.W.2d 863 (1994); Douglass v. Dynamic Enter., Inc., 315 Ark. 575, 869 S.W.2d 14 (1994).

As another reason for reversing the hearing officer’s decision, the circuit court held that false information submitted in an application in one food service program cannot be construed as a “serious deficiency” which disqualifies an institution in another program. Again, the trial court was in error.

Under 7 CFR § 226.6(c), the state agency (SPN) shall terminate the program agreement with any institution which it determines to be seriously deficient. The state agency must then notify the Federal Food and Nutrition Service (FNS) that the state denied an institution’s application or participation in a program and that seriously deficient institution is placed on a list of ineligible institutions. A state agency shall not enter into an agreement with an ineligible institution and shall terminate any participating institution on that list. “Serious deficiencies” under 7 CFR § 226.6(c) is defined to include, but is not limited to, (1) noncompliance with applicable bid procedures and contract requirements of federal child nutrition program regulations and (2) the submission of false information to the state agency.

In the present case, ACCCI’s misrepresentations or falsehoods constituted disqualifying “serious deficiencies” under federal law. Again, although given ample opportunity, ACCCI never sufficiently explained or corrected those deficiencies. Consequently, it became an ineligible institution which could not participate in any federal child nutrition program — at least until FNS and the state agency determine otherwise. 7 CFR § 226.6(c).

For the reasons above, we reverse the circuit court and reinstate the agency’s decision.

Corbin and Brown, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. The issue presented for our review is whether appellant correctly construed and applied the terms of the applicable federal regulations, in particular, 7 C.F.R. § 226.6(c) (1992) (“Regulation”), when it terminated its annual contract with appellee for the fiscal year ended September 30, 1992, pursuant to which appellee was participating as a local sponsor of the federally-funded and locally-administered child nutrition program entitled Child and Adult Care Food Program (“CACFP”).

The rules governing judicial review of decisions of administrative agencies are the same for both the circuit and appellate courts. Arkansas Alcoholic Bev. Control Bd. v. Muncrief, 308 Ark. 373, 825 S.W.2d 816 (1992). Our review is not directed toward the circuit court but toward the decision of the agency, recognizing that administrative agencies, by specialization, insight through experience, and more flexible procedures, are better equipped than courts to determine and analyze legal issues affecting those agencies. Enviroclean, Inc. v. Arkansas Pollution Control & Ecology Comm’n, 314 Ark. 98, 858 S.W.2d 116 (1993). Our review is limited in scope; we will uphold the administrative decision if it is supported by substantial evidence and is not arbitrary, capricious or characterized by an abuse of discretion. Arkansas St. Bank Comm’r v. Bank of Marvell, 304 Ark. 602, 804 S.W.2d 692 (1991). An administrative decision is invalid as arbitrary or capricious if it lacks a rational basis or relies on a finding of fact based on an erroneous view of the law. Enviroclean, Inc., 314 Ark. 98, 858 S.W.2d 116. To determine whether a decision is supported by substantial evidence, we review the record to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id.; Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).

In this case, by letter dated June 2, 1992, appellant notified appellee that the CACFP contract was terminated effective June 30, 1992. The letter informed appellee that, on the basis of the Regulation, appellant was required to terminate its program agreements with any institution that had been declared seriously deficient in any federal child nutrition program, then specifically identified that the serious deficiency was based on the false information submitted by appellee in its April 1992 application to participate as a local sponsor in a different federal child nutrition program entitled the Summer Food Service Program (“SFSP”) for the summer of 1992. On June 15, 1992, appellee timely appealed the termination decision at the agency level in accordance with federal regulation and later sought judicial review of the final agency decision in accordance with the Ark. Code Ann. § 25-15-212 (Repl. 1992).

On appeal, the trial court reversed the August 25, 1992 final agency order affirming the termination decision. The trial court found that, with respect to the termination of the CACFP contract, appellant had acted in error on two grounds: first, by erroneously interpreting the Regulation to require termination of the CACFP contract on the basis of the SFSP application denial, thereby acting in excess of its administrative authority; and second, by acting upon an unlawful procedure by not providing petitioner every reasonable opportunity, as required by the Regulation, to correct the deficiencies prior to termination. On appeal to this court, appellant argues both of those trial court findings are erroneous. Contrary to the conclusion of the majority, I agree with the trial court as to the second ground for its reversal of the final agency order and, therefore, would affirm the trial court judgment.

The language of the Regulation, in pertinent part, is as follows:

(c) Denial of applications and termination of institutions. The State agency shall not enter into an agreement with any applicant institution which the State agency determines to have been seriously deficient at any time in its operation of any Federal child nutrition program. . . . The State agency shall terminate the program agreement with any institution which it determines to be seriously deficient, However, the State agency shall afford an institution every reasonable opportunity to correct problems before terminating the institution for being seriously deficient. .. . Serious deficiencies, which are grounds for disapproval of applications and for termination include, but are not limited to, any of the following:
(2) The submission of false information to the State agency [.]

The trial court concluded appellant failed to comply with the Regulation’s requirement that “the State agency shall afford an institution every reasonable opportunity to correct problems before terminating the institution for being seriously deficient.”

I note initially that the August 25, 1992 final agency order contained no express finding of fact or conclusion of law regarding the adequacy of the pre-termination proceedings prescribed by the Regulation. A review of the evidence presented at the administrative hearing reveals that the hearing officer questioned Mr. Grady Maxwell, appellant’s program manager, on this point, as follows:

MS. SPAULDING [the hearing officer]: Ok, uh, what does that say, over here that somebody’s highlighted, it says something about uh, State agency shall afford the institution every reasonable opportunity to correct problems before terminating the institution from being seriously deficient. I just want to know how did you all determine this?
MR. MAXWELL: If you, if she had been declared deficient in the area of the child and adult care food program. We’re going to say this is the problem, alright? If it is a fraudulent information as I, as we told her in the letter from the summer food service application, these sites aren’t there. I mean, those telephone numbers belong to someone else. These cites [sic] aren’t here. I don’t know how you can correct fraud. So that was in another program. After she is declared seriously deficient in that program, then the basis of this
MS. SPAULDING: If she was declared seriously deficient in the summer'food program?
MR. MAXWELL: That’s correct.
MR. MAXWELL: And then at that point, when she sends that in we send her a letter saying you have 10 days to appeal, or you have, you know in the appeal procedure here, I believe the summer is 7 days, I don’t know, I’ll have to look at the appeal procedure. I believe it’s 7 days for the summer. Ms. Cobb [appellee’s administrator] is correct at that time that she got that letter I was on vacation and I did go to New Orleans the following week. I did not talk to her and I have no personal knowledge of her conversation with Mr. Harrison [an officer in appellant’s office], but the appeal procedures is like a 7 or 8 page booklet that tells her to contact the hearing officer you know that’s outside of our purview. It’s completely separate.

Appellant’s argument on this point, I conclude, is that the appeals procedures available with respect to the denial of the SFSP application accorded appellee reasonable opportunity to correct its problems prior to termination of its CACFP contract.

In this case, the problems to be corrected were the submission of false information regarding the proposed SFSP food service sites and the false certification that each such site had been visited by appellee’s representatives. Certainly, these deficiencies could have been corrected by appellee. However, the evidence introduced at the hearing indicated that appellant never contacted appellee about the false information in the SFSP application during the application review process, did not return the SFSP application to appellee for corrections or clarification, did not provide technical assistance to appellee in completing the SFSP application, and did not otherwise provide appellee with an opportunity to correct the false information prior to denying the SFSP application.

The evidence presented at the administrative hearing also indicated that appellant did not expressly inform appellee that a consequence of its failures to correct the false information submitted in the SFSP application and to appeal the denial of that application would be termination of its CACFP contract. Based on the record, appellee’s right to appeal the SFSP application denial expired on May 18, 1992, 7 days after appellee’s receipt on May 11, 1992 of appellant’s letter denying the application. Disputed testimony was offered on the issue of whether appellee understood or should have understood that expiration of its right to appeal the denial of the SFSP application meant that the serious deficiency had been finally determined, and that termination of the CACFP contract was then mandatory. Although appellant provided to appellee the standard information regarding the SFSP appeals procedures, including a copy of the Regulation, it is obvious that those rules do not present clear guidance in this matter. In any event, the evidence showed that the first timé appellant plainly informed appellee of the connection between its failure to appeal the denial of the SFSP application and the termination of its existing CACFP contract was appellant’s advice to appellee, by letter dated June 2, 1992, that the CACFP contract was can-celled effective the end of that month.

Based upon my review of the record, I would hold that appellant did not afford appellee “every reasonable opportunity to correct problems before terminating institution for being seriously deficient” in the language of the Regulation. Consequently, appellant’s action in terminating the CACFP contract did not comport with that requirement of the Regulation, and, therefore, was made in error.

For these reasons, I respectfully dissent.

Brown, J., joins in this dissent.

      Under 7 CFR § 225.6(b)(l I), the state agency shall not approve the application of any applicant sponsor which submits fraudulent information or documentation.

      By letter dated October 12, 1992, SPN aNo denied ACCCI’s CACFP application for fiscal year 1992-93, citing the May 7, 1992 denial as the reason. We need not address ACCCI’s appeal to circuit court of the 1992-93 denial, since ACCCI did not first exhaust its administrative remedies. Even if ACCCI had exhausted its administrative remedies, SPN’s denial of ACCCI’s 1992-93 CACFP application would be upheld for the same reasons we uphold SPN’s denial of its 1991-92 CACFP contract.

      Comparable provisions for the SFSP lunch program are found in 7 CFR § 225.1 et seq.

       Both CACFP and SFSP are programs created under the auspices of the National School Lunch Act, and are regulated by the federal Department of Agriculture at the national level and by the Arkansas Department of Human Services at the state level. The SFSP application required appellee to list proposed food service sites and to certify, by signing the application, that those sites had been visited by appellee. In processing appellee’s signed SFSP application, appellant determined that: (a) the list of food service sites contained incorrect information concerning the site locations, contact persons and telephone numbers, and (b) appellee had in fact not visited all the proposed sites listed. Appellant disapproved the SFSP application by letter dated May 7, 1992 informing appellee that none of the food service sites could be identified and that “[s]ubmission of false information in this agency is a SERIOUS deficiency,” enclosing information regarding appeals procedures. Appellee did not appeal the denial of its SFSP application.


author: Tom Glaze, Justice.

text:
    Robert Lewis ROCKETT v. STATE of Arkansas
    CR 94-510
    890 S.W.2d 235
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is an appeal from appellant Robert Rockett’s conviction of capital murder and aggravated robbery for which he was sentenced to life without parole. Rockett brings this appeal and raises the following four points for reversal: (1) the trial court erred by denying Rockett’s motion to suppress evidence; (2) the trial court erred when it allowed into evidence Rockett’s uncounseled statements after he invoked his right to have an attorney present during questioning; (3) the trial court’s finding that the state offered a racially neutral reason to strike a prospective juror was clearly against the preponderance of the evidence; (4) the trial court erred by not allowing Rockett to produce evidence that someone else had confessed to the homicide. We affirm.

On March 10, 1993, at approximately 10:30 p.m., three women were adding oil to their car at the Stax convenience store in Jacksonville when two of the women witnessed a car occupied by two men enter the parking lot and stop behind the women’s car. The driver was seen to exit his car, look toward the store, and then re-enter his car. He retrieved a ski mask, pulled it over his head and again exited the car. The man forced the three women into the store, and once inside, he demanded the clerk, Stacie Summers, to put money in a sack. He then shot Ms. Summers in the throat and fled. Ms. Summers dialed 911, and members of the Jacksonville Police Department arrived shortly thereafter. Efforts to save Ms. Summers’ life were unsuccessful.

Fifteen days after the Jacksonville crimes, a police officer in Jonesboro discovered a stolen car parked in the Motel 6 parking lot. The officer, Greg Baugh, called for backup, exited his vehicle, and hid under an outside stairway of the motel.

After a period of time, Baugh saw in the window of his patrol car three or four reflections of individuals walking in a normal fashion on the balcony above him. When the individuals were in a position to see the patrol car, they stopped, began to whisper and continued quietly along the second floor balcony. When they reached a room,.all entered except for one man.

Officer Baugh stepped out from hiding, and asked the man to step down and speak with him. The man stated that he would go inside and get his shoes and then come down to talk. Baugh insisted the man come down immediately, and the man became nervous and reached into his pockets a couple of times. The officer, fearing the suspect might be reaching for a weapon, drew his own weapon and pointed it at the suspect, who then fled. Officer Baugh, believing he could not catch the man, ran up the stairs to room 221 where the other individuals had entered. He found the door open and three people were sitting inside. At gunpoint, Baugh arrested the three individuals, and a search of one of the individuals revealed a loaded .380 clip. Other officers arrived and the room was searched, producing a motel receipt indicating Robert Rockett had paid for the room and a map. The search of the room where the subjects were arrested revealed two handguns, three pairs of gloves, ammunition, and a ski mask. Another ski mask was later discovered in the search of the stolen vehicle.

Approximately two hours after Officer Baugh’s initial arrival, the man, who fled the scene, returned to the motel; the man was arrested and identified as Robert Rockett. The next day he was transported to Jacksonville as a suspect in the Jacksonville murder of Stacie Summers.

On March 27, Janice Blanchard, one of the women who witnessed the Stax robbery and Summers’ murder, identified Rockett from a photo spread as the man who committed those crimes. Later that same day, Rockett allegedly confessed to a Jacksonville police officer. The state subsequently charged Rockett with the Jacksonville robbery and murder crimes with which he was convicted.

On appeal, Rockett first argues the trial court erroneously denied his motion to suppress the items the police officers recovered from Rockett’s motel room in the Jonesboro search, seizures and arrests. He claims that search violated his fourth amendment rights, and the evidence seized was inadmissible at his murder and robbery trial.

It is well settled that one registered at a motel or hotel as a guest is protected against unreasonable searches and seizures by the fourth amendment to the United States Constitution. Scrog-gins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982). Here, the record reflects that the three men who were arrested and the items that were seized were in room 221. The motel clerk stated that a Robert Rockett was the one registered to room 221, and a receipt was found in that room, reflecting Rockett had paid for the room. Given these circumstances, it was the state’s burden to prove that Rockett’s motel room was not subject to constitutional protection. Id. In this respect, the state argues Rockett abandoned any expectation of privacy he may have had when he fled from Officer Baugh.

In State v. Tucker, 268 Ark. 427, 597 S.W.2d 584 (1980), this court stated that abandonment is a fact question generally determined by a combination of acts and intent. The Tucker court, quoting from U. S. v. Colbert, 474 F.2d 174 (5th Cir. 1973), explained abandonment in these matters as follows:

The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. See also Abel v. United States, 362 U.S. 217 (1960).

While the evidence reflects Rockett may well have had a fourth amendment protectable interest in room 221, it also shows he abandoned any such interest. Rockett was stopped by Officer Baugh and was not free to leave. He asked to go get his shoes, and when his request was denied, he fled from both Baugh and the motel. At this point, Rockett had abandoned not only his associates, but also any interest he may have had in room 221. Rockett argues that he did return to the motel within two hours, and apparently asked to get into the room. However, he told the officers that his mother had just dropped him off, and he was staying in room 219. The officers checked with motel personnel and determined someone else, not Rockett, occupied room 219. In sum, Rockett fled the motel when stopped by Officer Baugh, and upon his return two hours later, he claimed he occupied another room. Obviously, Rockett’s actions exhibited that, by fleeing and later telling authorities he occupied room 219, he wished to separate himself from room 221 and not reclaim any interest in it. Accordingly, Rockett abandoned any legitimate expectation of privacy he might have had in room 221 where his associates were arrested and certain items were seized.

Because we hold Rockett had no standing to challenge the motel search or the items seized and admitted into evidence at his trial, we need not address the probable cause and exigent circumstances issues he argues in this appeal. Nonetheless, we conclude that, even if the trial court had erred in admitting those items, it would not have constituted reversible error. Testimony at trial revealed that neither of the two guns retrieved from the Jonesboro motel room had been used in the killing of Stacie Summers. Nor was there testimony indicating Rockett had worn gloves at the Stax store robbery and murder. Although a ski mask similar to the one worn at the Stax store was found in motel room 221, another similar ski mask had been legally seized from the stolen vehicle at the Motel 6. In sum, the evidence obtained from the motel search was not directly connected to the state’s case against Rockett and, even if error had occurred in its having been admitted into evidence, no harm occurred.

When the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). The items from the motel room did not affect the verdict of guilt as the overwhelming evidence of capital murder that was the basis in determining Rockett’s guilt was the following: (1) eyewitness trial testimony reflecting in-court and out-of-court identification of Rockett as the man who donned a ski mask, and the one who forced three women into the Stax store before robbing and killing Ms. Summers; (2) trial testimony by Antonia Kennedy (the sister of Rockett’s girlfriend) revealing that Rockett had confessed to her about the events and killing at the Stax store; and (3) testimony from Detective Smiley of the Jacksonville Police Department recounting Rockett’s detailed statement of what transpired that evening at the Stax store, including the statement that he did not mean to kill the store clerk. In light of the overwhelming evidence of guilt and the consequential lack of prejudice caused by the introduction of the motel evidence, the error was slight and harmless.

Next, Rockett argues that his uncounseled custodial statement, after he invoked his right to have an attorney present during questioning, was erroneously accepted into evidence. However, after invoking the right of counsel or to remain silent, an accused person may initiate contact with law enforcement and waive those constitutional rights. Bussard, v. State, 295 Ark. 72, 747 S.W.2d 71 (1988). The trial court held that the interview with Detective Smiley was initiated by Rockett knowingly, intelligently and voluntarily, therefore was not contrary to Miranda. On appeal, whether or not such initiation and waiver has taken place is determined from the totality of the circumstances, taking the evidence in a light most favorable to the state and the trial court’s determination will not be reversed unless it is clearly against the preponderance of the evidence. Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994).

Here, we hold the record supports the trial court’s ruling admitting Rockett’s statement. Detective Smiley testified that Jazmar Kennedy, Rockett’s girlfriend, came to the jail to visit Rockett. Smiley admitted that he told Ms. Kennedy that maybe if Rockett showed some remorse the jury might give him life instead of the death penalty. After visiting with Rockett, Ms. Kennedy told Detective Smiley that Rockett wanted to talk to him. Although Detective Smiley knew that Rockett had an attorney at this point, he agreed to hear what Rockett had to say. He introduced himself to Rockett and asked if he had wanted to talk. Rockett responded in the affirmative. The two went to another room, and before Smiley said anything, Rockett said that he did not mean to kill the clerk and began to tell the whole story. Detective Smiley interrupted, Rockett’s rights were read and a Miranda form was completed, and Rockett gave a complete confession of the events at the Stax store. Both Rockett and his girlfriend denied that Rockett requested to speak to Smiley. However, it is for the trial court to decide questions of credibility and conflicts in testimony, and we will not reverse unless the decision is clearly erroneous. Everett v. State, 316 Ark. 213, 871 S.W.2d 568 (1994). Having reviewed the record, we are satisfied that the trial court’s decision was not clearly erroneous, and we affirm.

Next, juror James, the first black person questioned during the voir dire, was struck by the state. Rockett objected, and the court held that a prima facie case was made. Under Batson v. Kennedy, 476 U.S. 79, 106 S.Ct. 1712 (1986), the Equal Protection Clause forbids prosecutors from challenging potential jurors solely on the basis of race. In Arkansas, the procedures to be followed when a Batson objection is raised are as follows:

First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the state has the burden of showing that the challenge was not based on race. Only if the defendant makes a prima facie case and the state fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.

Franklin v. State, 314 Ark. 329, 338, 863 S.W.2d 268, 273 (1993).

On appeal, “[t]he standard of review for reversal of the trial court’s evaluation of the sufficiency of the explanation must test whether the court’s findings are clearly against the preponderance of the evidence.” Colbert v. State, 304 Ark. 250, 255, 801 S.W.2d 643, 646 (1990).

The state’s racially neutral reason to strike was based on the fact that Ms. James had been the foreperson of a jury which had just acquitted a defendant the state had prosecuted. The prosecutor stated that he had been extremely disappointed in that verdict of acquittal because he thought that it was “wholly against the proof.” The trial court accepted this racially neutral rationale, and we cannot say the court was clearly wrong. We add that Ms. James was not the only potential minority juror, and another minority did sit as a juror.

The last point on appeal by Rockett is that the trial court erred when it did not allow him to produce evidence that someone else had confessed to the homicide. When Rockett’s counsel attempted to elicit a response from Detective Smiley regarding a person who had heard that someone else had admitted to the shooting, the trial court sustained the deputy prosecutor’s hearsay objection. The court stated that the question injected collateral issues that are outside the court and that there is a need to have the people who made those statements in court. Moreover, a sufficient proffer of the evidence sought to be offered is required to allow an appellate court to evaluate the exclusion of that evidence. Munn v. Munn, 315 Ark. 494, 868 S.W.2d 478 (1994). Without a proffer, this Court cannot evaluate any alleged error argued by Rockett.

As required by Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for other reversible error, and none is found. Therefore we affirm.


text:
    Bob SHUMPERT, O. H. Clopton, and Glenn Dickson v. ARKO TELEPHONE COMMUNICATIONS, INC.
    93-1236
    888 S.W.2d 646
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      Womack, Landis, Phelps, McNeill & McDaniel, by: Tom D. Womack, for appellant.

      Welch & Adcock, by: L. Ashton Adcock, for appellee.
   Tom Glaze, Justice.

Arko Telephone Communications, Inc. brought suit against Bob Shumpert, O. H. Clopton, Glenn Dickson and Roy Browning, d/b/a Shumpert Sound Systems (SSS), alleging SSS breached the parties’ August 5, 1977 contract. Under that ten-year contract, Arko was to supply telephone equipment and engineering support, and SSS was to pay Arko five percent of its gross sales on all telephone equipment sold. In addition, SSS granted Arko the first option to purchase its assets, if SSS opted to sell its business. Arko claimed that, on March 5, 1982, it learned SSS had sold its business on July 10, 1981, without having notified Arko. As a consequence, Arko filed this lawsuit on February 27, 1986.

In its pretrial motion for summary judgment, SSS asserted Arko’s claim was barred by the five-year statute of limitations. SSS contended that it had repudiated the parties’ 1977 agreement on March 6, 1980, when SSS sent Arko two checks, indicating the checks were its final payments under the parties’ agreement. Citing Dupree v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989), SSS relied on the general rule that the true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion. Under this rule, SSS argues Arko could have first filed suit after March 6, 1980, thus Arko was time barred when it waited until 1986, or nearly six years, to bring its claim. The trial court rejected SSS’s statute of limitations argument by denying its motions for summary judgment and directed verdict. We affirm the trial court’s rulings.

SSS’s reliance on Dupree is misplaced. There, Dupree (and other plaintiffs) alleged Twin City Bank orally agreed it would forego deficiency judgments against the plaintiffs, if the plaintiffs would find purchasers to buy the property against which the Bank was seeking foreclosure. Dupree contended that he and the other plaintiffs kept their end of the agreement, but the Bank breached the parties’ oral agreement when it refused to release them from its judgment liens. The trial court determined Dupree had delayed filing suit longer than the applicable three-year statute of limitations period which commenced at the time the Bank failed to approve an order satisfying the plaintiffs’ deficiency judgments. This court upheld the lower court, based upon the undisputed evidence reflecting the Bank and plaintiffs entered their oral agreement in December 1983, the Bank breached it soon after October 21, 1984, when it failed to satisfy plaintiff’s judgment liens and the plaintiffs delayed bringing suit until April 1, 1988, which was outside the three-year limitation period.

In the present case, while SSS claims it breached the parties’ 1977 contract on March 6, 1980, the parties continued to do business with one another. Thus, even though SSS on March 6, 1980 may have breached its original contract with Arko, Bob Shumpert testified at trial as follows:

So after cancelling the contract March 6, 1980,1 still had to have some arrangement to do business with Arko. I set about negotiating with Mr. Prody [Arko] to come up with some agreement. . . The final agreement that I operated under was to continue to order the equipment ... at cost plus five percent. This new agreement was not in writing.

Shumpert also testified that, during negotiations, Arko first submitted a written agreement to amend the parties’ 1977 contract. Under that proposed agreement, the parties’ original agreement would have effectively continued, but SSS would pay only two and one-half percent of its gross sales rather than five percent. In fact, while SSS ultimately decided not to execute the proposed new agreement, it did make one payment under that new agreement. Furthermore, Shumpert said that SSS pursued the spirit of the newly drafted agreement, and he stated further, “We worked on a basic agreement and we did agree in principle.”

It is well settled that a written contract may be modified by a later oral agreement. O’Bier v. Safe-Buy Real Estate, 256 Ark. 574, 509 S.W.2d 292 (1974). In view of this evidence, including the testimony of Mr. Shumpert, we cannot sustain SSS’s insistence that the parties’ original 1977 contract is absolutely controlling. At the least, a fact issue existed concerning whether the parties’ original contract had been orally amended and when SSS breached that amended agreement. See O’Bier, 256 Ark. at 576, 509 S.W.2d at 293; cf. Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 833 S.W.2d 366 (1992). SSS had the burden to establish that, as a matter of law, it came within the terms of the statute of limitations. Alston v. Bitely, 252 Ark. 79, 477 S.W.2d 446 (1972). SSS simply failed to do so, and the trial court’s denying SSS’s summary judgment and directed verdict motions must be upheld.

SSS next argues that the court erred in allowing Arko to introduce proof of damages which Arko purportedly sustained after the fall of 1982 because Arko ceased doing business after that time. In sum, it contends that after 1982, Arko could no longer perform under the parties’ contract and damages sustained by Arko after that date were inadmissible. SSS’s argument is wholly without merit.

Without objection, the trial court gave the jury an instruction concerning lost profits. Among other things, the court instructed the jury that the law provides that Arko was to be fairly compensated for all damages, if any, to its business or property, which was proximately caused by SSS’s conduct, including lost profits. The court further instructed that Arko’s recovery should not be affected because of the difficulty in ascertaining a precise amount, particularly if SSS caused that difficulty. The jury was cautioned against awarding speculative damages and was told some reasonable basis in the evidence must be considered when determining if Arko had in fact suffered a loss of profits. Finally, the trial court concluded that in arriving at the amount of loss of profits sustained by Arko, the jury was entitled to consider any past earnings of Arko in the business in question, as well as any other evidence in the case bearing upon the issue. See Jim Halsey Co. v. Bonar, 284 Ark. 461, 688 S.W.2d 275 (1985); First Service Corp. v. Schumacher, 16 Ark. App. 282, 702 S.W.2d 412 (1985).

The record reflects Arko showed that its revenues under its agreement with SSS were approximately twenty-five percent of Arko’s net profits. Arko also indicated it would have been able to continue in business had SSS honored its obligations under the contract. In short, the mere fact that Arko ceased doing business as a result of SSS’s failure to meet its contract obligations was reason enough to permit Arko’s evidence bearing on its loss of profits. Certainly, Arko’s profits or revenues before SSS’s breach and its proof of damages afterwards are admissible.

Finally, Arko on cross-appeal seeks certain costs and litigation expenses that it says are recoverable under the parties’ 1977 contract even though such costs or expenses are not authorized by statute. Arko claims entitlement to costs and expenses in the amounts of $4,551.97 and $1,480.00, but does not abstract an itemization of these totals. Nor does the trial judge’s letter opinion attached to Arko’s brief reflect those items. In fact, the judge stated that he “will not address the issue of costs” and concluded costs are a creature of statute and may not be taxed unless they are provided by statute. The judge was entirely correct. Darragh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804 (1988). To the extent the trial judge considered this issue and the issue was preserved and abstracted by Arko in this appeal, we affirm.

For the reasons above, we affirm on both direct and cross appeals.

       We note that the general rule is that a material modification of a contract within the Statute of Frauds must be in writing in order to be valid and binding. Such a contract cannot be modified in essential parts by parol agreement so as to be valid against a plea of invalidity under the Statute of Frauds. Reynolds v. Havens, 252 Ark. 408, 479 S.W.2d 528 (1972); Ferguson v. The C. H. Triplett Company, 199 Ark. 546, 134 S.W.2d 538 (1939); Valley Planing Mill Co. v. Lena Lumber Co., 168 Ark. 1133, 272 S.W. 860 (1925). No objection was interposed in the present case to invoke this rule, thus we need not discuss these cases further.

      The three-year statute of limitations controlling oral agreements was not raised below.


text:
    Desoto WILLIAMS v. STATE of Arkansas
    CR 94-470
    887 S.W. 2d 530
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      Jan Thornton, for appellant.

      Winston Bryant, Att’y Gen., by; Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Tom Glaze, Justice.

Desoto Williams was charged with four felonies alleged to have occurred in 1993. On January 10, 1994, Williams was convicted by jury on all four counts. On appeal, Williams’s sole argument is that, in sentencing him, the trial court erroneously employed Arkansas’s new bifurcated sentencing laws, Ark. Code Ann. §§ 5-4-103 (Repl. 1993) and 16-97-103 (Supp. 1993). Both of these statutes became effective January 1, 1994. Williams argues that, instead of using these new amendatory statutes, the trial court should have applied the sentencing laws that were in effect in 1993 — when he committed the crimes. He urges that, because one of the new statutes, § 16-97-103, permits the state to introduce evidence not previously admissible under the 1993 sentencing laws, he was disadvantaged by § lb-97-103’s application, which subjected him to a harsher sentence. In sum, Williams contends the trial court’s retroactive employment of §§ 5-4-103 and 16-97-103 subjected him to substantive prejudice in violation of the Ex Post Facto Clause of the United States Constitution. We must disagree.

Citing Easley v. State, 214 Ark. 215, 623 S.W.2d 189 (1981), Williams argues that sentencing provisions are substantive rather than procedural and that sentencing provisions in effect at the time an offense occurs governs sentencing. However, in Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989), this court explained that Easley, and cases like it, dealt with an attempt to apply a harsher sentence than was provided by law at the time an offense was committed, rather than with mere changes in sentencing procedures. Stated another way, this court in Ruiz held that the retroactive application of amendments to laws setting forth the procedure governing sentencing in criminal cases does not violate the Ex Post Facto Clause. Id.; Pickens v. State, 292 Ark. 362, 369, 730 S.W.2d 230, 236, cert. denied, 484 U.S. 917 (1987).

Relying on Dobbert v. Florida, 432 U.S. 282 (1917), the Pickens court stated that the Supreme Court held that a procedural change in a state’s death-sentencing law is not an ex post facto violation. The Supreme Court in Dobbert concluded that the newly-enacted law there, simply altered the methods employed in determining whether the death penalty was to be imposed, and no change occurred regarding the quantum of punishment attached to the crime.

(a) If a defendant is charged with a felony and is found guilty of an offense by a jury, the jury shall fix punishment in a separate proceeding . . .

In the present case, Arkansas’s new bifurcated sentencing laws do not violate the Ex Post Facto Clause because they do not criminalize conduct that was previously non-criminal, do not increase the severity or harshness of the punishment for the offenses that Williams committed and do not deprive him of a defense that was available to him at the time he committed the offenses with which he was charged. See Beazell v. Ohio, 269 U.S. 167 (1985). Statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. Id.; see also Cog-burn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987). Nor is a statute prohibited which changes the rules of evidence after an indictment so as to render admissible against the accused evidence previously held inadmissible. Id.

Because the penalty or sentence authorized under the prior and new sentencing statutes remains the same as applied in Williams’s situation, we conclude any change was merely procedural and not substantively prejudicial or an ex post facto violation. The trial court is affirmed.

       In relevant part, these amendatory provisions read respectively as follows:


author: Robert Shults, Special Chief Justice.

text:
    Richard Earl GRIFFIN v. FIRST NATIONAL BANK of Crossett
    93-1302
    888 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994

      Hopkins & James, P.A., for appellant.

      Arnold, Hamilton & Streetman, by: Thomas S. Streetman, for appellee.
   Robert Shults, Special Chief Justice.

On May 1, 1986, First National Bank of Crossed (the “Bank”) loaned Bearhouse, Inc. (“Bearhouse”) $490,000 and took a promissory note as evidence of the debt. Payment of the note was secured by a mortgage on real estate. In connection with the loan, Richard Earl Griffin (“Griffin”) executed a guaranty “limited to 25% of the outstanding debt” plus “all expenses, legal and/or otherwise (including court costs and attorney’s fees, paid or incurred by said Bank in endeavoring to collect such indebtedness, obligations and liabilities, or any part thereof, and in enforcing this guaranty).”

Bearhouse defaulted on its note and was placed in involuntary bankruptcy. In the bankruptcy proceeding, the trustee in bankruptcy challenged the validity of the Bank’s mortgage securing payment of the note. In the meantime, the Bank had sued Griffin on his guaranty and Griffin answered alleging that the Bank had impaired the collateral for the Bearhouse loan because the mortgage securing the loan was not valid and the Bank had failed to realize on its collateral in a commercially reasonable manner, thereby releasing Griffin of liability on his guaranty. Griffin also filed a counterclaim alleging misrepresentation, negligence, and breach of fiduciary duty. All of the counts in the counterclaim were based on the Bank’s alleged failure to obtain a valid mortgage on the real estate securing the Bearhouse loan. Subsequently, the Bankruptcy Court found that the Bank’s mortgage was in fact valid.

Thereafter, the case between the Bank and Griffin was tried to the court without a jury on February 13, 1990. Griffin was allowed to testify, over the objection of the Bank, that he had discussions with an officer of the Bank prior to execution of his guaranty in which he agreed to guarantee only 25% of any deficiency in the debt to the Bank after credit for the amount the Bank realized from sale of the mortgaged real estate. He also testified that the value of the real estate was such at the time of the Bearhouse bankruptcy that, if it had been sold at that time, 25% of the resulting deficiency would have been $17,000. The trial court accepted Griffin’s arguments and entered judgment in favor of the Bank for $17,000. The Bank appealed from that judgment, and this Court reversed and remanded the case to the Ashley County Circuit Court. First National Bank v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992), cert. denied, 113 S.Ct. 1280 (1993).

In the above opinion, this Court held that Griffin’s guaranty agreement was clear and unambiguous and that parol evidence should not have been admitted to vary it. Consequently, judgment should have been entered against Griffin for 25% of the outstanding Bearhouse debt and not 25% of the deficiency. This Court also held in that opinion that the defense of impairment of collateral was not available to Griffin under the terms of his guaranty.

In the first appeal of this case, the Bank had also appealed from the refusal of the trial court to award the Bank appropriate attorney’s fees. In First National Bank v. Griffin cited above, this Court reversed and remanded the case for a new trial and directed the trial court to “award an appropriate attorney’s fee pursuant to the agreement of the parties.” Id., 310 Ark. at 174, 832 S.W.2d at 821.

After the case was remanded to the Ashley County Circuit Court, the Bank filed a motion for partial summary judgment with accompanying affidavits setting out the amount of the outstanding debt to the Bank on the Bearhouse loan. Griffin responded by arguing that he should be able to have a trial on his counterclaim after the case had been remanded. The trial court (Hon. Samuel H. Bird, Circuit Judge on Assignment) rejected Griffin’s argument, holding that this Court in the first appeal of this case had decided all issues related to the Bank’s suit against Griffin on his guaranty adversely to Griffin. The trial court held Griffin was barred by res judicata from trying his counterclaim after the case had been remanded and consequently granted the Bank a partial summary judgment against Griffin in the amount of 25% of the outstanding Bearhouse debt.

It is from this partial summary judgment that Griffin brings this appeal which is now before this Court.

After the trial court granted the partial summary judgment in favor of the Bank, there remained the issue of attorney’s fees to be awarded to the Bank. A hearing was held to determine the appropriate amount of such fees. The trial court concluded that the amount of the fees should conform to the agreement of the parties to the extent not prohibited by law. The trial court grouped services rendered by the Bank’s attorney in the following categories.

1. Services in U. S. Bankruptcy Court proceedings against Bearhouse.
2. Services in the trial court against Griffin.
3. Services in appellate court against Griffin.
4. Services to be rendered in trial and appellate courts in the future in the collection of the judgment against Griffin.

The trial court determined that reasonable attorney’s fees and expenses chargeable to Griffin for services rendered in the trial court were $24,994.56 and awarded the Bank a judgment against Griffin in that amount. In making this determination, the trial court held that it had no authority to award fees for services rendered in the Bankruptcy Court or in the appellate court, or for services to be rendered in the future. The Bank cross-appealed asking for reversal of the trial court’s decision disallowing attorney’s fees for services in the Bankruptcy Court and in the appellate court.

APPEAL

In his appeal, Griffin contends that after the case was remanded by this Court in the first appeal, the trial court erred in not granting him a trial on his counterclaim. That counterclaim had been filed and was pending when the trial court entered its judgment in the first trial of this case awarding the Bank $17,000. The court did not enter any finding on Griffin’s counterclaim and no cross-appeal was taken by Griffin on the court’s failure to do so.

In a well reasoned opinion by Judge Bird, after the case had been remanded, he held that res judicata barred Griffin from litigating his counterclaim. That decision was correct.

In Bailey v. Harris Brake Fire Protection District, 287 Ark. 268, 269, 697 S.W.2d 916, 917 (1985), the Court said:

Our decision in this case is based upon the well established law of the claim preclusion facet of res judicata. It bars relitigation of a subsequent suit when: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies.

In the first trial of this case before the Ashley County Circuit Court, all matters relating to Griffin’s counterclaim were fully contested in good faith. The court entered judgment in favor of the Bank without making any reference to the counterclaim. This was tantamount to denial of the counterclaim, and, when no cross-appeal was taken in regard to the counterclaim, this had the effect of a final judgment denying it. We note that what constitutes a final judgment for res judicata purposes is not necessarily the same as what constitutes a final judgment for other purposes. See Restatement (Second) of Judgments §13 (1982). Accordingly, all factors making res judicata applicable in this case are present.

The clearly established Arkansas law regarding res judicata is also set out in Wells v. Arkansas Public Service Commission, 272 Ark. 481, 483, 616 S.W.2d 718, 719 (1981):

We first consider the question of res judicata and when it is applied. Generally speaking, it applies when there has been a final adjudication on the merits of an issue, without fraud or collusion, by a court of competent jurisdiction, on the matters litigated or which might have been litigated. ... It is res judicata even though not adjudicated if the matters were necessarily within the issues and might have been litigated in the former suit.

In this case, the issues raised in Griffin’s counterclaim were clearly within the issues involved in the first trial and the first appeal of this case. By not asking the trial court to rule explicitly on his counterclaim in the first trial and failing to raise that issue in the first appeal of this case, Griffin was barred by res judicata from having a trial on his counterclaim when the case was remanded to the Ashley County Circuit Court.

We also hold that Griffin was barred from having a trial on his counterclaim after the case was remanded by the doctrine of law of the case. Mercantile First National Bank v. Lee, 31 Ark. App. 169, 790 S.W.2d 916 (1990), involved an issue similar to the one in this case. There the Court stated:

“On second appeal, as in this case, the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented.”

Id., 31 Ark. App. at 173, 790 S.W.2d at 919 (citations omitted).

Griffin’s counterclaim was based solely on the allegation that he was entitled to a judgment against the Bank because of alleged impairment of collateral in failing to obtain from Bear-house a valid mortgage on real estate. The question of impairment of collateral was before this Court in the first appeal of this case, and any question of fact or law on that issue either was or might have been presented to this Court at that time. Accordingly, this Court’s decision in the first appeal in this case regarding Griffin’s allegation concerning impairment of collateral was adverse to Griffin and became the law of the case and bars any further consideration of Griffin’s counterclaim.

For all of the above reasons, Griffin’s appeal is denied and the partial summary judgment entered by the Ashley County Circuit Court in favor of the Bank is affirmed.

CROSS-APPEAL

The Bank takes the position in its cross-appeal that the trial court erred in failing to award the Bank attorney’s fees for services rendered in the Bearhouse bankruptcy litigation and for services and expenses incurred in the two appeals to this Court. For reasons set out below, we hold that the Bank is correct.

Griffin specifically agreed in his guaranty “to pay all expenses, legal and/or otherwise (including court costs and attorney’s fees, paid or incurred by said Bank in endeavoring to collect such indebtedness, obligations and liabilities, or any part thereof, and in enforcing this guaranty).”

In the first appeal of this case, this Court stated:

Upon remand, the trial court should award an appropriate attorney’s fee pursuant to the agreement of the parties.

First National Bank v. Griffin, supra, 310 Ark. at 174, 832 S.W.2d at 821.

The agreement between the Bank and Griffin obligated him to pay all expenses and attorney’s fees in connection with collection of the Bearhouse debt and enforcement of Griffin’s guaranty. If the agreement is given effect, it includes attorney’s fees and expenses in the Bearhouse bankruptcy, the first appeal of this case, the petition for certiorari to the United States Supreme Court, and the present appeal to this Court.

When the trial court addressed the question of appropriate attorney’s fees to be awarded the Bank, Judge Bird held that Ark. Code Ann. § 16-22-308 (1994) was the basis on which he had to determine an award of fees in this case. That statute authorizes a court to award attorney’s fees in an action to enforce a contract and the trial court correctly found that the action to enforce Griffin’s guaranty was covered by that statute. Having made that finding, the trial court then held that, under that statute, attorney’s fees could be awarded only for services rendered in the trial court. The trial court based this constraint on holdings of this Court in 215 Club v. DeVore, 311 Ark. 309, 843 S.W.2d 317 (1992), and Mosley Machinery Company, Inc. v. Gray Supply Company, 310 Ark. 448, 837 S.W.2d 462 (1992).

Those cases, however, did not involve written agreements specifically providing for the payment of attorney’s fees. They do not control the award of attorney’s fees in this case, since such an award need not depend on Ark. Code Ann. § 16-22-308 (1994). Here Griffin agreed with the Bank to pay all of the Bank’s attorney’s fees and expenses incurred by the Bank in collecting the Bearhouse debt and in enforcing Griffin’s guaranty. We hold now such an agreement is enforceable in accordance with its terms. This is independent of the statutory authorization providing for attorney’s fees under the circumstances covered by Ark. Code Ann. § 16-22-308 (1994). See Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988).

It should be noted that Justice Glaze dissented in the Damron case. He pointed out that the opinion in that case allowed parties to enter into private agreements under which they could agree to the award of attorney’s fees and expenses even though no statute specifically provided for such an award. He then stated:

If this court now adheres to the rule that parties, by agreement or bylaws, may authorize attorneys’ fees as costs or expenses, we should plainly adopt that view.

Id., 295 Ark. at 540, 750 S.W.2d at 406.

Justice Glaze correctly pointed out the need to give parties, attorneys, and judges a clear statement of the law regarding the award of attorney’s fees when parties enter into agreements such as the one between the Bank and Griffin. The holding of this Court herein is intended to do so.

Implicit in our holding is a requirement that any attorney’s fees awarded should be reasonable. There are established principles which a court should use in determining the reasonableness of an attorney’s fee and, among others, these should include consideration of whether or not the actions taken by a party seeking such fees were meritorious and successful. In this and similar cases, determination of what are reasonable fees should be made by the trial court.

In this case, the trial court has made a careful analysis of the reasonable fees allowable to the Bank for legal services and expenses incurred by the Bank in the trial court. That determination governs that award.

We find the Bank’s actions in the Bearhouse bankruptcy litigation, in the first appeal of this case to this Court, in the petition for certiorari to the United States Supreme Court, and in this second appeal of this case to this Court to have been meritorious and successful. We, therefore, remand this case to the trial court with directions that the trial court also award to the Bank reasonable attorney’s fees and expenses incurred by the Bank in the Bearhouse bankruptcy litigation, in the first appeal of this case to this Court, in the petition for certiorari to the United States Supreme Court, and in this second appeal of this case to this Court.

Holt, C.J., Dudley, Glaze and Brown, JJ., not participating.

Special Justice W. S. Miller joins in this opinion.

Special Justice Jerry Pinson concurs.


author: William S. Arnold, Special Justice.

text:
    Jennings and Mitzi OSBORNE v. Arleta POWER, Dick Wallace, Joe H. Smith, Dennis Lucy, Tom Fiser, Catherine Cockrill
    93-1303
    890 S.W.2d 570
    Supreme Court of Arkansas
    Opinion delivered December 5, 1994
    [Rehearing denied January 23, 1995.]

      The Perroni Law Firm, P.A., by: Samuel A. Perroni and Mona J. McNutt, and Robert “Bob” Lowry, for appellants.

      Wilson, Engstrom, Corum, Dudley & Coulter, by: Gary D. Corum, for appellees.

      Special Justices William S. Arnold and Ernie E. Wright, join. Ncwbcrn, Brown, and Roaf, JJ., nol participating.

   William S. Arnold, Special Justice.

This case is before the court on direct appeal from the chancellor’s decree finding that a Christmas lights display at the residence of appellants creates a public and private nuisance and violates an applicable bill of assurance.

Appellees cross-appeal on grounds the chancellor erred in dismissing the complaint of two plaintiffs and in her failure to abate the nuisance by entering an absolute injunction against conducting the display. We modify and affirm on direct appeal and reverse and remand on cross-appeal.

This case comes to this court with significant notoriety attached and upon a very sizable record consisting of four thick volumes of testimony plus a number of photographs, video tapes and other recordings of traffic and debris collection and similar matters in the vicinity of the residences of parties to the action during the Christmas season of 1992. A number of issues have been raised by both the direct appeal and the cross-appeal from the determination by the chancellor that private nuisances and a public nuisance existed, along with a violation of a bill of assurance.

Recusal of Chancellor

Appellants assert that the chancellor should have recused from presiding in this case because of having seen the display. The chancellor followed the procedures required by Canon 3 of the Code of Judicial Conduct by disclosing these facts. She followed the procedures and mandates from prior opinions of this court and determined that it was her duty not to recuse unless her failure would be prejudicial to the litigants. There is a duty not to recuse where no prejudice exists. U.S. Term Limits, Inc. v. Hill, 315 Ark. 685, 870 S.W.2d 383 (1994). The decision on whether to disqualify is of particular difficulty where the judicial officer is both the trier of fact and applies the law. See City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478 (1990); Patterson v. R.T., 301 Ark. 400, 784 S.W.2d 777 (1990). The standard of review on appeal is whether the trial judge abused his or her discretion in the matter. Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). We cannot say the chancellor abused her discretion in determining that she was not disqualified from hearing this case.

Finding of Nuisance

The trial court, after exhaustive review of all of the testimony and exhibits and careful consideration of all of the facts, concluded that certain of the plaintiffs had suffered injury greater than that suffered by the public at large and that the effect of appellants’ massive and commercial size display was such as to constitute a nuisance under the recognized definitions of nuisance in Arkansas. Appellants, on direct appeal, contend that the findings of fact and conclusion of law are erroneous. On appeal, chancery cases are reviewed de novo, but the findings of fact by the chancellor will not be reversed unless they are clearly erroneous, and the burden is upon the appellant to show that the findings are erroneous. Leathers v. W. S. Compton Co., 316 Ark. 10, 870 S.W.2d 710 (1994). The findings of fact by the chancellor were not clearly erroneous, and we find on direct appeal that she did not err in applying the law to those facts.

Among many things considered by the chancellor in reaching that conclusion were evidence (1) of periods of extreme traffie congestion on public streets in the area of appellants’ residence for protracted periods of time; (2) that the backup of traffic and slow movement of traffic presented a risk of physical danger to pedestrians in the area; (3) that the display attracted many pedestrians in the area; (4) the foot traffic in the area was not confined to the public streets but indeed trespassed upon private property of property owners living nearby the site of the display; (5) that motor vehicle accidents had occurred; (6) that pedestrians attempting to cross public streets in the area were endangered by the mass of motor vehicles moving in both directions; (7) that there was a reasonable basis to believe that, if an emergency occurred in the residential area served by the adjoining streets, emergency vehicles would encounter difficulties in accessing the site where service was required.

Appellants contend that appellees suffered no direct physical damage, and, consequently, it was error to issue the injunction abating the nuisance. The argument is without merit. We have numerous cases in which nuisances have been found to exist that did not cause direct physical damage to the premises of other property owners; instead, the property owners’ use and enjoyment of their property was made much more difficult, and the offensive activity was abusive to senses of hearing and smell. Examples are found in Southeast Ark. Landfill, Inc. v. State, 313 Ark. 669, 858 S.W.2d 665 (1993) (smells from landfill); Higgs v. Anderson, 14 Ark. App. 113, 685 S.W.2d 521 (1985) (noise from dog kennel); Baker v. Odom, 258 Ark. 826, 529 S.W.2d 138 (1975) (noise from motorcycle race track).

Violation of Bill of Assurance

The chancellor also found that the operation of the massive light display is prohibited by the bill of assurance of the subdivision in which the appellants’ home is located. The relevant language from the-bill of assurance reads: “Nor shall anything be done thereon which may be or become an annoyance or nuisance to adjacent residents or the neighborhood.”

Appellants contend on direct appeal that the chancellor erred in her holding because the language of the bill of assurance is vague and uncertain. The language is not vague or uncertain. A condition which constitutes a nuisance as found by the chancellor also constitutes a violation of the quoted language in the bill of assurance and the findings to that effect by the chancellor are not clearly erroneous.

Dismissal of Parties

Our examination of the record persuades us the chancellor erred in finding that Catherine Cockrill and Arleta Power did not have sufficient evidence of special damages to establish a private nuisance as distinguished from a public nuisance.

The deprivation of freedom of access to and from their residences which resulted from the traffic snarls and crowding at the intersection of Cantrell and River Ridge Road was a private nuisance not shared by the general public. Accordingly, on direct appeal, we affirm the holding of the chancellor that the operation of the massive light display constitutes a nuisance, but we modify the chancellor’s decree to reinstate Catherine Cock-rill and Arleta Power as parties plaintiff.

PART II

Having concluded, for the reasons stated above, that the operation of the lights display, if continued in substantially the same magnitude as has been the case up to now, is a nuisance, we now take up the cross-appeal and look to means of abatement which are the least restrictive considering the contrasting requisites of protecting rights of free speech and the public interests at stake.

The court is of the opinion that the restraints imposed by the chancellor are insufficient to abate the nuisance in order to protect “the well being, tranquility and privacy of the home [which] is certainly of the highest order in a free and civilized society,” Carey v. Brown, 447 U.S. 455, 471 (1980); see also Frisby v. Schultz, 487 U.S. 474 (1987). The Supreme Court has stated that ensuring public safety and order, promoting the free flow of traffic on public streets and sidewalks, protecting citizens’ property rights and assuring residential privacy is sufficient to justify an appropriately tailored injunction. Madsen v. Women’s Health Ctr., Inc., 114 S. Ct. 2516, 2526 (1994).

As appellants admitted in their testimony, there is nothing about their religious beliefs which dictates that they must celebrate the Christmas season by a massive display of electric lights. Consequently, to place limitations upon such activity does not constitute an impermissible burden upon the practice of religion. Clearly, any injunctive relief by way of restricting the scope or magnitude of the display is “content-neutral” and, accordingly, is subject to reasonable restraint that burdens no more speech than necessary to protect the rights enumerated above.

In Western Presbyterian Church v. Board of Zoning Adjustment, 63 U.S.L.W. 2169 (1994), a recent case involving feeding the homeless pursuant to a church program, the Court held that the zoning ordinance was unconstitutional in its total prohibition and allowed the feeding to be conducted. However, the Court noted that this license was limited to circumstances that did not otherwise become a nuisance, thus recognizing that the Religious Freedom Restoration Act, of itself, would not bar restrictions on activities that are nuisances.

Abatement

This court has sought to find a solution that would alleviate sufficiently the problems that now exist arising from the display in its present context and magnitude without totally prohibiting any form of Christmas lighting display at this location. The court has considered a variety of things that might be prohibited or restricted in connection with the display that would minimize its adverse impact upon the residences and the residential area where it is located. The court is mindful that the courts generally recognize that the peace and quiet of a residential neighborhood and the protection against obnoxious encroachments are important rights in civilization. Madsen, 114 S. Ct. at 2526.

For example, the court has considered whether it might limit the power supply sources to the display to those usually and customarily found in residential areas, and it has considered that the display might be operated at random times without prior public notice of any kind as to the times when it would be lighted, and, of course, it has given consideration to the chancellor’s ruling limiting the hours of the day and the number of days in which the display could be operated.

The Louisiana Supreme Court was confronted with a similar situation and the result reached there is applicable to the case here. See Rodrigue v. Copeland, 475 So.2d 1071 (La. 1985). In Rodrigue, Alvia C. Copeland had erected and operated an annual Christmas display, and a number of his neighbors sought injunctive relief to enjoin the display as a nuisance because the display caused an enormous influx of visitors to their limited access, residential neighborhood. Copeland’s Christmas display had grown in size and popularity over a seven-to-eight year period. The Louisiana Supreme Court declared Copeland’s display was a nuisance and enjoined Copeland from erecting and operating the Christmas exhibition which was calculated to attract an unusually large number of visitors to the neighborhood. The court added the following instructions, concerning how to abate the display as a nuisance:

Plaintiffs’ injury stems from the nature and size of the display which render it incompatible with a restricted access, residential neighborhood. Defendant is enjoined from erecting and operating a Christmas exhibition which is calculated to and does attract an unusually large number of visitors to the neighborhood.
In complying with our order, defendant is specifically enjoined from placing oversized lighted figures, such as the reindeer and snowman, in his yards or upon the roof of his residence. The proper place for these “commercial size” decorations is not within a quiet, residential neighborhood. Defendant is also specifically ordered to reduce the volume of any sound accompanying the display so that it is not audible from within the closest homes of his neighbors.
In limiting his display, the burden is placed on defendant to reduce substantially the size and extravagance of his display to a level at which it will not attract the large crowds that have been drawn to the neighborhood in the past.
Of course, defendant is free to maintain his display unrestricted, at a location which is appropriate. The injunction granted herein is limited to activity at defendant’s premises on Folse Drive.

Id. at 1079.

This court has concluded that it is not the appropriate medium to either craft the exact restrictions or to monitor the results. Accordingly, on de novo review, we hold that the current restrictions are insufficient to abate the nuisance and, much as was done by the Louisiana court in Rodrigue, we enjoin crossappellees, the Osbornes, from placing massive Christmas light displays on and about their home that are calculated to and do attract an unusually large number of visitors to the neighborhood. Further, cross-appellees are ordered to reduce the volume of any sound accompanying the display so that it is not audible from within the closest homes of neighbors.

In ordering the nuisance abated, we place the burden on the cross-appellees, the Osbornes, to reduce substantially the size and extravagance of the display at and about their home to a level which will not attract the large crowds that have been drawn to the neighborhood in the past. Of course, this injunction only applies to the cross-appellees’ residence, and they are free to maintain a massive display in an unrestricted manner at a location where it is appropriate. See Baker v. Odom, 258 Ark. 826, 579 S.W.2d 138 (1975).

We remand the case to the chancery court for enforcement of the injunction and such further proceedings as might be necessary.

Modified and affirmed on direct appeal.

Reversed and remanded on cross-appeal.

Special Justice Ernie E. Wright joins.

Newbern and Brown, JJ., not participating.