text:
    Ricky L. SCOTT v. STATE of Arkansas
    CR 01-1052
    96 S.W.3d 732
    Supreme Court of Arkansas
    Opinion delivered January 30, 2003

      DeeNita D. Moak, for appellant.

      Mark Pryor, Att’y Gen., by: Katherine Adams, Ass’t Att’y Gen., for appellee.
   Per Curiam.

Ricky Lee Scott was convicted by a jury of first-degree murder and was sentenced to life in prison. We affirmed his conviction and sentence in Scott v. State, 337 Ark. 320, 989 S.W.2d 891 (1999). Thereafter, Scott filed a Rule 37 petition. After a hearing, the circuit court denied Scott’s petition for relief.

On appeal, Scott raises three claims of ineffective counsel. He argues that: (1) trial counsel and previous appellant counsel were ineffective in their failure to abstract the criminal docket in this matter and preserve for appellate review violations of Scott’s constitutional rights; (2) trial counsel was ineffective in his failure to properly investigate and document inconsistent statements of a key witness and the circumstances regarding ballistics; and (3) trial counsel was ineffective in his failure to seek a mistrial after damaging and highly prejudicial testimony from a key witness regarding unsubstantiated allegations that Scott raped her daughter.

Scott raised each argument below, but the arguments were not individually addressed by the circuit court in its order denying relief. Instead, the circuit court provided the procedural history of the case, stated the legal standards for the analysis of an ineffective assistance claim, and issued the following conclusory findings:

After a full and complete review of the petition, legal arguments cited and case citation thereto, the Court finds that the evidence is insufficient to establish ineffective assistance of counsel warranting post-conviction relief. Cason v. State, 271 Ark. 803, 610 S.W.2d 891 (1981). Accordingly, the Rule 37 petition is respectfully denied.

In pertinent part, Rule 37.3(c) of the Arkansas Rules of Criminal Procedure provides that after a hearing, “[t]he court shall determine the issues and make written findings of fact and conclusions of law with respect thereto.” Without exception, we have held that this rule is mandatory and requires written findings. Dulaney v. State, 338 Ark. 548, 999 S.W.2d 181 (1999); Coleman v. State, 338 Ark. 545, 998 S.W.2d 748 (1999); Williams v. State, 272 Ark. 98, 612 S.W.2d 115 (1981). We have also held that the requirement of written findings of fact applies to any issue upon which a Rule 37 hearing is held. See Dulaney, supra (citing Bumgarner v. State, 288 Ark. 315, 705 S.W.2d 10 (1986)); Coleman, supra (citing Bumgarner, supra).

In Dulaney, supra, the court noted that without the circuit court’s sufficient written findings on the points raised in the appellant’s petition for postconviction relief, this court is “unable to effectively review the evidence and the court’s reasoning to determine if the court’s conclusions were clearly against the preponderance of the evidence.” Id. at 549. The case was remanded to the circuit court for fact-finding on the arguments raised in the appellant’s Rule 37 petition. .

In Coleman, supra, the court stated that the circuit court’s “findings of facts” were conclusory. The court stated:

Specifically, [the findings of fact] do not reflect how the trial court applied the standard for ineffective assistance of counsel claims, as set forth in Strickland v. Washington, 446 U.S. 668 (1984), to the allegations that were raised in Coleman’s petition and that were addressed during the postconviction hearing. Accordingly, we must . . . reverse and remand the case for findings that comply with the rule.

Coleman, 338 Ark. at 547.

In the present case, due to the circuit court’s failure to make sufficient written findings, this court cannot effectively review the evidence and the circuit court’s reasoning to determine if the circuit court’s conclusions were clearly against the preponderance of the evidence. We hereby remand the case in accordance with Rule 37.3(c) for fact-finding on the arguments raised in Scott’s Rule 37 petition.

Reversed and remanded.


source: Caselaw Access Project

author: WH. “Dub” Arnold, Chief Justice.

license: Public Domain

text:
    Gene McWHORTER v. Bernice McWHORTER
    02-492
    97 S.W.3d 408
    Supreme Court of Arkansas
    Opinion delivered February 6, 2003
    [Petition for rehearing denied March 13, 2003]

      Roscopf and Roscopf, P.A., by: Charles B. Roscopf, for appellant.

      Bernice McWhorter, Pro Se.
   WH. “Dub” Arnold, Chief Justice.

Appellant Gene McWhorter appeals to this court, asserting that the trial court’s finding that he had not proven his gambling losses was clearly erroneous and an abuse of discretion. We disagree and affirm the trial court. On cross-appeal, Appellee Bernice McWhorter asserts three points on appeal: 1) the trial court erred in allowing Appellant’s 1998 income tax return admitted into evidence; 2) the trial court erred in recalculating Appellant’s income for child-support purposes based on 1998 income tax return; and 3) the trial court erred by deviating from the child-support guideline chart. We affirm the trial court on the cross-appeal.

This is the third appeal of this child-support case. In the first appeal, the court of appeals reversed and remanded the case because the trial court had failed to comply with Rule 52(a) of the Arkansas Rules of Civil Procedure. McWhorter v. McWhorter, 70 Ark. App. 41, 14 S.W.3d 528 (2000). In the second appeal, the case was certified to this court as a case of first impression and of substantial public interest. McWhorter v. McWhorter,346 Ark. 475, 58 S.W.3d 840 (2001). This court reversed the trial court because it had included gambling winnings in computing income for child-support purposes, but failed to allow gambling losses to be deducted up to the amount of winnings. The case was also remanded for further proceedings to prove gambling losses and to recalculate disposable income based in previous years federal and state income tax returns and the quarterly estimates of the current year. On remand, the trial court found that Appellant failed to carry his burden of gambling losses for the period in question and refused to adjust Appellant’s income to give him credit for his losses.

In 1993, Appellant Gene McWhorter and Appellee Bernice McWhorter were divorced. Under the divorce decree, custody of the couples two children, Warren Jeffrey and Kimberly Jean, was awarded to Appellee, and Appellant was ordered to pay child support. In 1995, the trial court modified its order for child support and ordered Appellant to pay child support in the amount of $465.00 per month. On February 15, 1996, Appellee filed a motion for increase in child support. Two years later, a trial was held in April 1998, and on August 18, 1998, the trial court issued a letter opinion, including gambling winnings but not his gambling losses in the calculation of child support.

After a hearing on reversal and remand from this court, the trial court found that the Appellant “failed to carry his burden of his gambling losses for the period in question,” and did not allow for any losses. It is from that finding that Appellant brings this appeal and Appellee brings her cross-appeal. At the hearing, only two witnesses were heard, Appellant and his accountant, Deborah Norwood.

Appellee called Appellant as her only witness and offered no documentary evidence other than an excerpt from Appellant’s previous testimony.

Appellant testified as to the documents provided to his accountant to satisfy the Internal Revenue Service (IRS). His accountant, Norwood, testified as to the documents required to prove gambling winnings and losses. Appellant offered into evidence the W-2G for 1997 and 1998 (an IRS form required if a threshold amount of winnings was reached) to prove his winnings. Appellant also offered into evidence his ATM withdrawal slips for 1997 and 1998 to prove his gambling losses. Appellant also offered his federal and state income tax returns for 1998 and testified from his federal and state income tax returns for 1997. Appellant’s 1997 income tax return shows under line 21 — other income — his gambling income in the sum of $20,900.00, and as an itemized deduction — Schedule A — line 27 — his gambling losses in the sum of $20,900.00. Appellants 1998 income tax return shows under line 21 — other income — his gambling income in the sum of $12,040.00, and as an itemized deduction — Schedule A —■ line 27, his gambling losses in the sum of $12,040.00.

Norwood confirmed the documents that Appellant provided her regarding gambling winnings and losses, and stated Appellant gave her the W-2G forms and the ATM withdrawal slips. She further testified that the IRS will take wager tickets, cancelled checks, credit cards, bank withdrawals, statement of actual winnings, payment slips provided to the taxpayer by the gambling casino, and that the IRS would also accept an accurate diary to calculate losses. The trial court found that the ATM withdrawal slips were not sufficient to prove Appellant’s gambling losses, and entered its order that Appellant failed to carry his burden of proving his gambling losses.

We most recently set out our standard of review in child-support cases in McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001):

We review chancery cases de novo on the record, and we will not reverse a finding of fact by the chancery court unless it is clearly erroneous. Ark. R. Civ. P. 52(a); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). In reviewing a chancery court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Hunt v. Hunt, 341 Ark. 173, [15 S.W.3d 334]. As a rule, when the amount of child support is at issue, we will not reverse the chancellor absent an abuse of discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). However, a chancellor’s conclusion of law is given no deference on appeal. City of Lowell v. M & N Mobile Home Park Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).

McWhorter, 346 Ark. at 480, 58 S.W.3d at 843 (quoting Kelly v. Kelly, 341 Ark. 596, 599, 19 S.W.3d 1, 3 (2000)). The trial court did not abuse its discretion in this case, and its findings were not clearly erroneous; we, therefore, affirm.

Appellant contends that this case raises the question as to what rules of evidence are to be used in the proof of gambling losses, Arkansas Rules of Evidence or the requirements of the Internal Revenue Code and Regulations. Rule 102 of the Arkansas Rules of Evidence provides as follows:

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined.

Ark. R. Evid. 102. Rule 803(6) of the Arkansas Rules of Evidence provides:

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

Ark. R. Evid 803(6). Appellant argues that the ATM withdrawal slips show his gambling losses being a record made at or near the time by a person with knowledge and kept in the course of a regularly conducted business activity, and it was the regular practice to make the record.

Appellant further asserts that from Arkansas cases, as well as Administrative Order No. 10, it appears that the appellate courts rely on the IRS Code where a determination of income is involved in a child-support case, at least where a self-employed person is involved. Administrative Order No. 10, and Section 111(c) of this Order provides:

For self-employed payors, support shall be calculated based on last years federal and state income tax returns and the quarterly estimates for the current year.

Administrative Order No. 10, Sec. III(c).

The trial court’s letter opinion stated that the evidence of the ATM withdrawals demonstrates only that Appellant withdrew cash while at the casino. Appellant argues that by restricting evidence to prove gambling losses so severely the trial court arbitrarily ruled that the “best evidence” to prove gambling losses was a statement from the casino. Appellant contends that this “best evidence” standard is not mentioned in the IRS Code. Appellant states that the trial court’s ruling is grossly unfair and inequitable because it requires the child support obligor to pay child support based on money he never had. Appellant contends that the proof was undisputed that all of his winnings came from slot machines and it is manifest that a person does not win on every pull of the handle. Appellant cites a U.S. Tax Court case that recognized that in engaging in a gambling endeavor, a gambler always loses. Cohan v. Commissioner, 39 F.2d 540 (2d Cir. 1930). However, the trial court did not abuse its discretion. According to IRS Regulation 77-29, a gambler “must keep an accurate diary or similar record of your losses and winnings. Your diary should contain at least the following information: 1) the date and type of your specific wager or wagering activity; 2) the name and address or location of the gaming establishment; 3) the names of other person(s) (if any) present with you at the gaming establishment; and 4) the amount you won or lost. . . In addition to your diary, you should also have other documentation. Such as, but not limited to, wagering tickers. . . bank withdrawals, etc. ...” Also, for specific wagering transactions, such as slot machines, the IRS states, “[y]ou should have a record of the machine numbers and all winnings by date and time the machine was played.” Revenue Procedure 77-29.

Therefore, the trial court did not abuse its discretion because Appellant did not prove all of the above. Appellant did not maintain a diary, only ATM withdrawal slips, which are not sufficient alone to constitute a diary under the IRS Code. Further, these ATM withdrawal slips are not “records of regularly conducted business activity” under the Arkansas Rules of Evidence. The ATM withdrawal slips are simply proof that money was withdrawn from an account. They do not prove that the money was spent at a casino, or any exact location.

Appellant argues that as an alternative, the case should be reversed and remanded with directions to the trial court to take additional evidence regarding his gambling losses. This alternative was already taken when this court remanded the case back to the trial court. The trial court held a hearing on such matters and a ruling was made with no abuse of discretion.

Appellee contends in her cross-appeal that the trial court erred when it allowed Appellant’s 1998 income tax return into evidence over her objection. Appellee states that Appellant was mandated to return to court and bring documentary evidence of gambling losses for the years in question; therefore Appellee states that 1998 should not have been at issue. Appellee states that the expendable income of Appellant had already been determined by the trial court and affirmed on appeal by this Court and cannot be changed. Appellee asserts that the only years in question were 1995, 1996, and 1997, to the extent that Appellant could prove any such losses.

However, the previous mandate ordered that Appellant’s income for child-support purposes be recalculated using the previous year’s disposable income and quarterly estimates for the current year. The purpose of the child-support guidelines is to use the most current income information because it more accurately portrays the payor’s expendable income. The child-support guidelines direct the use of the previous year’s income and the quarterly estimates for the current year. This case was tried in April 1998, therefore the previous year’s income must refer to the 1997 and the current year refers to 1998.

Appellee’s argument regarding whether the trial court erred in deviating from the child-support guidelines cannot be considered because she did not preserve the point for appeal. The trial court made a finding in a letter opinion that Appellant had earnings of $53,317.66 in 1997 (without any adjustment from gambling losses) and $33,986.00 for 1998 (without any adjustment for gambling losses) in the final order. The trial court adjusted'the 1998 figure by allowing as deductions pursuant to Administrative Order 10 federal taxes in the sum of $3,581.00 and Arkansas taxes in the sum of $609.00, and arrived at the sum of $29,796.00 as Appellant’s income for 1998.

Appellee argues for the first time on appeal that the trial court should have added back into Appellant’s 1998 income the depreciation for a truck that was purchased in 1998, and that by not doing so, the trial court deviated from the child-support chart without making any written findings. It is well settled that this court will not consider arguments raised for the first time on appeal. Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002).

Therefore, the trial court did not abuse its discretion in finding that Appellant had not proven his gambling losses. The only evidence Appellant produced were ATM withdrawals from casinos, and this evidence was not enough. Regarding the cross-appeal, we affirm the trial court. The trial court did not abuse its discretion in using the 1998 income tax return for child-support purposes. Further, the point regarding whether the trial court erred by deviating from the child-support chart guidelines was not preserved on appeal.

For these reasons, we affirm.

       The children involved in this case are no longer eligible for child support. Jeffrey graduated from high school in May 1998 and Kimberly reached age 18 on August 16, 2001. Appellant has had no legally required support obligation for more than 14 months.


author: Donald L. Corbin, Justice.

text:
    Robert VANDERPOOL v. Jean PACE, Mayor of the City of Mammoth Spring; Jack Haney, Carol Howell, James Mills, and Bruce Green, Aldermen of the City of Mammoth Spring
    02-73
    97 S.W.3d 404
    Supreme Court of Arkansas
    Opinion delivered February 6, 2003
    [Petition for rehearing denied March 6, 2003]

      Larry J. Steele, for appellant.

      J. Denham, Arkansas Municipal League, and William T. Hass, Mammoth Spring City Attorney, for appellees.
   Donald L. Corbin, Justice.

Appellant Robert Vanderpool was formerly the city marshal of the City of Mammoth Spring. He filed suit in the Fulton County Circuit Court against Appellees Jean Pace, mayor of Mammoth Spring, and four city aldermen, Jack Haney, Carol HoweE, James MiEs, and Bruce Green. In his complaint, AppeEant asserted that the city owed him overtime pay for a period of three years, pursuant to certain provisions of the city’s municipal code. The trial court granted summary judgment in favor of the city officials, and this appeal foEowed. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2 (b)(6), as it involves the interpretation of a city ordinance. We find no error and affirm.

AppeEant’s complaint, filed on AprE 26, 2000, aEeged that he was employed as the city marshal from July 1, 1995, to June 30, 1998. He asserted that as city marshal, he was required to have a police-department telephone in his home and was required to be on caE at home twenty-four hours a day, seven days a week. He asserted further that during his employment, he also performed duties relating to the city’s fire department, specificaEy, that he maintained a separate telephone line in his home in order to receive caEs for the fire department. He aEeged that the time he spent at home was compensable, because the restrictions placed on him prevented him from using the time for personal pursuits, as provided under the Fair Labor Standards Act (FLSA). FinaEy, he claimed that he was entitled to $25,572.67 in overtime pay and $94,510.18 for the time he spent on caE at home.

AppeEees filed an answer on June 21, 2000, denying any wrongdoing and aE material aEegations made by AppeEant. On that same date, AppeEees also filed a notice stating that the case had been removed to federal court, due to the claim under the FLSA.

On March 19, 2001, the United States District Court, Eastern District of Arkansas, Northern Division, entered an order granting Appellees’ motion for summary judgment and dismissing Appellant’s federal claims. The district court dismissed the FLSA claims on the ground that the overtime provisions under the Act specifically exempt those agencies that employ less than five law enforcement personnel. At the time of Appellant’s employment as marshal, the city employed fewer than five law enforcement personnel. The district court found further that even if Appellant’s FLSA claims were valid, he would only be entitled to compensation for the period of April 26, 1998, to June 30, 1998, as the statute of limitations under the Act is two years. In an order issued on March 30, 2001, the district court remanded Appellant’s state claims to the Fulton County Circuit Court.

Following remand, both Appellant and Appellees filed motions for summary judgment. In support of their motion for summary judgment, Appellees stated that under the city’s ordinances, Appellant, as head of the police department, was not entided to receive overtime pay. Appellees also stated that even if he was entitled to overtime pay, Appellant could only collect for the period of April 26, 1997, through June 30, 1998, as the statute of limitations on his claim is three years, pursuant to Ark. Code Ann. § 16-56-105 (1987). In a letter order entered on October 24, 2001, the trial court granted Appellees’ motion for summary judgment and denied Appellant’s motion. This appeal followed.

At the outset, we note that summary judgment, although no longer viewed as a drastic remedy, is to be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entided to judgment as a matter of law. Monday v. Canal Ins. Co., 348 Ark. 435, 73 S.W.3d 594 (2002); Mississippi River Transmission Corp. v. Weiss, 347 Ark. 543, 65 S.W.3d 867 (2002). Summary judgment is appropriate when the facts are undisputed and both sides have filed motions for summary judgment. Id. Here, both sides sought summary judgment based on their interpretations of the city ordinances. As such, the case was decided purely as a matter of statutory interpretation.

In construing an ordinance, we apply the same rules of construction that we apply to statutes. Stricklin v. Hays, 332 Ark. 270, 965 S.W.2d 103 (1998); Tackett v. Hess, 291 Ark. 239, 723 S.W.2d 833 (1987). In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Turnbough v. Mammoth Spring Sch. Dist. No. 2, 349 Ark. 341, 78 S.W.3d 89 (2002); Monday, 348 Ark. 435, 73 S.W.3d 594. The statute must be construed so that no word is left void or superfluous and in such a way that meaning and effect are given to every word therein, if possible. Id. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no reason to resort to the rules of interpretation. Id. If, however, the meaning of a statute is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id.

Appellant contends that he is entitled to overtime pay because he was on call twenty-four hours a day, seven days a week. He relies on section 2.56.18 of the city’s municipal code, which provides for overtime pay for certain city employees. That section provides in pertinent part:

The standard work week for employees other than department heads shall be five (5) days or a total of forty (40) hours per week. Police officers shall work 50 hours per week. Department heads and supervisors should work those hours necessary to assure the satisfactory performance of their departments, but not less than forty (40) hours per week. The department head or supervisor shall not be entitled to overtime pay under the provisions of this section. [Emphasis added.]

Appeflees argue that under this section, Appellant was not entitled to overtime pay because, as city marshal, he was the head of the police department. We agree. Section 2.44.02 of the city’s municipal code provides in pertinent part: “ The marshal shall be the head of the department and shall be fully responsible for the operation of the department, and the equipment of the department.” (Emphasis added.) This section plainly and unmistakably designates the city marshal as a department head.

Appellant does not dispute the fact that he was a department head. Indeed, his complaint reflects that he was referred to as the department head. He argues, however, that for all intents and purposes, the mayor really ran things. This argument is misplaced. For purposes of this appeal, it is of no significance who actually ran the police department. Appellant’s position as marshal was plainly classified under city ordinances as a department head. Because of this classification, he was not entitled to overtime pay under section 2.56.18.

It is further of no significance that Appellant maintained in his home a separate telephone line to receive fire-department calls. The record reflects that Appellant’s duties were those of a law enforcement officer, not a firefighter. Indeed, in his deposition, Appellant admitted that he was never required to perform duties for the fire department. Rather, his duties, even as they related to the separate telephone line, were as a police officer. The following colloquy is illustrative.

Q. Did the mayor ever ask you to perform duties for the fire department such as notifying firemen about fires?
A. Well, as far as her personally saying, I have no recollection of her personally saying — telling me to do that, no.
Q. Did the city council every instruct you that you needed to perform duties for the fire department other than what you’ve already told me about, sir, you needed to patrol traffic —• control traffic?
A. Yes, yes. At one time I had a pager that they paged me just like they did the firemen, and I went and directed traffic. And then when they started getting more firemen, I gave them the pager and then I responded from the telephone.
Q. Did the city council ever direct you to fight fires?
A. No.
Q. Did the mayor ever direct you to fight fires?
A. No.

Based on these admissions, it is clear that any duties that Appellant performed in relation to the additional telephone line fell within the scope of his job as city marshal, not as a firefighter. As stated above, a city marshal is the head of the law enforcement department and is not entitled to overtime pay under city ordinance 2.56.18. Thus, Appellant’s claim to overtime pay for his fire-department duties is misplaced.

Also misplaced is Appellant’s reliance on this court’s holding in Stricklin, 332 Ark. 270, 965 S.W.2d 103. There, North Little Rock firefighters brought suit against the city and its mayor, seeking enforcement of an initiated ordinance that required firefighters and police officers in North Little Rock to receive salaries and benefits commensurate with their counterparts in Little Rock. The trial court found that the ordinance was valid, but that it had lapsed and the city was no longer obligated to provide parity pay. This court reversed the trial court’s ruling, on the ground that the ordinance did not contain a sunset provision and therefore had not expired or lapsed. We are at a loss as to how the holding in Stricklin aids Appellant in his lawsuit. There is no issue in the present case regarding the viability of the foregoing city ordinances. Stricklin is thus inapplicable to Appellant’s claim.

Finally, in his brief on appeal, Appellant raises the additional argument that he is entitled to overtime pay based on the fact that the city “arbitrarily” paid him overtime pay in some instances, thereby “setting precedent.” In other words, Appellant contends that the city paid him overtime pay on some occasions, and that Appellees should now be estopped from claiming that he, as a department head, is not eligible for overtime pay. We cannot reach the merits of this argument, however, as the record does not reflect that it was ever made below. This court has repeatedly stated that it will not consider an argument for the first time on appeal. See, e.g., Arkansas Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002); Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002); Hurst v. Holland, 347 Ark. 235, 61 S.W.3d 180 (2001).

In sum, the ordinances at issue here demonstrate that Appellant is not entitled to overtime pay. Section 2.56.18 plainly .states that department heads shall not be entitled to overtime pay. Accordingly, because Appellant’s position of city marshal is classified under section 2.44.02 as a “head of the department,” he is not entitled to overtime pay under section 2.56.18. The trial court was thus correct in granting summary judgment to Appellees.

Affirmed.

       This case was first submitted to this court last year; however, because the addendum was deficient, we returned the case to Appellant to comply with Ark. Sup. Ct. R. 4-2. See Vanderpool v. Pace, 350 Ark. 460, 87 S.W.3d 796 (2002) (per curiam).

       In his complaint, Appellant asserts that he performed duties relating to the fire department. However, he does not assert that he was required to perform these additional duties. In contrast, the complaint does reflect that Appellant was required to maintain a police-department telephone in his home and that he was required to be on call, at home, twenty-four hours a day, seven days a week.


author: Robert L. Brown, Justice.

text:
    Marcus G. CARTER and Commerce Alliance, Inc. v. FOUR SEASONS FUNDING CORPORATION
    01-1315
    97 S.W.3d 387
    Supreme Court of Arkansas
    Opinion delivered February 6, 2003

      Williams & Anderson LLP, by: Peter G. Kumpe and Stephen B. Niswanger, for appellants.

      Cuffman & Phillips, by: Stephen K. Cuffman, for appellee.
   Robert L. Brown, Justice.

Appellants Marcus G. Carter and Commerce Alliance, Inc., appeal a judgment in favor of Four Seasons Funding Corporation (Four Seasons) in the amount of $313,836.79 and the imposition of a constructive trust on various outstanding accounts receivable and proceeds. Appellants raise four points on appeal: (1) the circuit court erred when it held that the two agreements between the parties established purchases rather than usurious loans; (2) the circuit court misconstrued the agreements to permit Four Seasons to retain non-factored proceeds; (3) the circuit court erred when it awarded damages to Four Seasons that varied from the terms of the contract; and (4) the circuit court erred when it imposed a constructive trust on accounts receivable and proceeds when there was an adequate remedy at law. We affirm the circuit court.

The facts in this matter, which are undisputed, are taken largely from the memorandum opinion of the circuit court entered June 14, 2001. At all times relevant to this appeal, appellant Marcus Carter was the sole shareholder of several Arkansas corporations which he used in his business dealings, including Commerce Alliance, Inc. Commerce Alliance was an Arkansas corporation that contracted with customers to assist them in making bids to federal government agencies for the purchase of certain supplies. Commerce Alliance showed its customers how to submit bids which complied with the complicated and exacting procedures and formats required by the government agencies. If a government agency accepted a bid, the agency would then issue a purchase order to the customer which set out the supplies, purchase price, and delivery terms. Under the Commerce Alliance contract, customers assigned their rights in these purchase orders to Commerce Alliance, and Commerce Alliance contracted, in turn, with third-party suppliers to meet the terms of the purchase orders. In some cases, these third-party suppliers required an up-front payment before they would ship the supplies to the government agency, and Commerce Alliance advanced this payment on behalf of its customer. Upon receiving notification of the delivery of conforming supplies, Commerce Alliance issued an invoice to the government agency, instructing it to remit payment to Commerce Alliance or its designated agent. In accordance with its customer contract, Commerce Alliance kept a percentage of the profit on the invoice, paid any balance due to the supplier, and paid the rest to its customer.

The “designated agent” referred to in Commerce Alliance’s invoices was Alliance Escrow, Inc., another corporation where Mr. Carter was sole shareholder. Alliance Escrow was organized to serve as the escrow agent under the contract between Commerce Alliance and its customers. The government agencies typically paid on the purchase orders via electronic funds transfer to a checking account maintained at Pulaski Bank & Trust in Little Rock, although some payments were made by mail. When a payment was paid into the account, Alliance Escrow would pay the vendor for the supplies and then remit the appropriate amounts to Commerce Alliance and its customer, in accordance with the customer contract. At times, Commerce Alliance would not have enough funds on hand to advance payment to the third-party suppliers. The need for capital led to the financial arrangement between Four Seasons and Commerce Alliance that is the subject matter of this litigation.

a. The Purchase Agreement

On January 13, 1998, Four Seasons agreed to purchase accounts receivable from Commerce Alliance under the terms of a Purchase and 'Sale Agreement (“Purchase Agreement”), which Four Seasons prepared. The agreement provided that Commerce Alliance would sell, transfer, and assign “all of the seller’s rights, title and interest” in certain accounts receivable to Four Seasons. The purchase price that Four Seasons would pay for an account receivable would be equal to the face value of the account minus a discount, minus some adjustments for items like long-distance, copies, postage, and the like. The discount was calculated by using a “discount schedule,” which tied the amount of the discount to the length of time it took to collect the balance on the account. The discount schedule set the discount at three percent for accounts collected within fifteen days. The discount then increased by three percent for every subsequent fifteen-day period (6% for 16-30 days, 9% for 31-45 days, and so on).

The Purchase Agreement specified that the purchase price of the account receivable would be paid by Four Seasons by an initial payment of 65% of the face value of the account. Because the exact purchase price would not be known until the account was paid by the government agency and the discount schedule had been applied, payment of the remainder of the purchase price was held in abeyance. After the government agency paid the account receivable in full, Four Seasons would then make a final payment on the purchase price equal to the full amount of the account assigned to Commerce Alliance, minus the initial payment, minus the discount amount.

Commerce Alliance made certain warranties and representations in the Purchase Agreement regarding the accounts receivable. It represented that it was the sole owner of the accounts, that there were no set-offs applicable to the accounts, that there were no deductions or disputes with respect to the accounts, and that each account would be due and collectable within ninety days without the need to resort to litigation.

The Purchase Agreement also provided for a right of recovery against Commerce Alliance if any of the warranties or representations in the agreement were breached. The agreement stated that Four Seasons would have no such right against Commerce Alliance, unless an event defined as a breach elsewhere in the contract occurred. For example, the agreement stated that if an account turned out not to be collectable within ninety days for any reason except bankruptcy of the debtor, Commerce Alliance would be in breach. As a remedy for breach, Four Seasons was allowed to take a credit against the reserve of proceeds from other factored accounts, or it could require Commerce Alliance to repurchase the account. Additionally, Commerce Alliance granted Four Seasons a security interest and lien against all of Commerce Alliance’s existing and future accounts and proceeds, whether factored or not. Finally, the Purchase Agreement provided that Mr. Carter personally guaranteed all obligations of Commerce Alliance under the agreement.

b. The Addendum

Four Seasons’s normal practice, as a purchaser of accounts receivable, was to put account debtors on notice that it was the new owner of the accounts in question. After Commerce Alliance sold the accounts receivable to it, Four Seasons tried unsuccessfully to notify one government agency of the factoring arrangement. It then asked to notify all government agencies that payment on the account should be remitted to it instead of to Commerce Alliance. Commerce Alliance balked at this request. It gave as its reason the fact that it typically financed its accounts at a late stage in the business process and that the government agencies’ rather rigid policies would not. tolerate a change in payee at that late date.

To resolve the dilemma, Mr. Carter proposed that Four Seasons take control of the Pulaski Bank account, which was in the name of Alliance Escrow and to which the debtor government agencies would remit payment. On November 19, 1998, an agreement to that effect was memorialized in an Addendum to the Purchase Agreement. The Addendum was drafted by Mr. Carter and signed by Carter/Commerce Alliance and Four Seasons. Commerce Alliance agreed in the Addendum that two officers of Four Seasons would be signors on the account, that it would turn over all checks to Four Seasons, and that it would not malee any withdrawals from the Pulaski Bank account during the term of the factoring agreements. Proceeds from all Commerce Alliance accounts would flow into the bank account. Because of this, the Addendum provided that Four Seasons was not allowed to apply a discount fee to any account except accounts that Commerce Alliance had sold to Four Seasons and that Four Seasons would remit the proceeds of non-assigned accounts to Commerce Alliance.

The parties did business under the factoring agreement from November, 1998, to July, 2000. Commerce Alliance, however, did not sell all of the accounts paid into the Pulaski Bank account to Four Seasons. The parties followed this arrangement until May 1999. At that time, Mr. Carter shut down Commerce Alliance and transferred its assets to Alliance Escrow without formally giving notice of that fact to Four Seasons. For a time, all accounts that Mr. Carter factored were owned by Compusoft of Missouri, Inc., a corporation solely owned by Mr. Carter. Four Seasons records, however, continued to list the factored accounts under the name Commerce Alliance. Later, however, the assets of Cbmpusoft of Missouri were also transferred to Alliance Escrow.

Over time, several accounts receivable which had been assigned to Four Seasons under the Purchase Agreement became due and were uncollectable for a period of time longer than 90 days. As a result, beginning on September 21, 1999, Four Seasons applied the proceeds of non-factored accounts toward its delinquent accounts. No discount fee was assessed by Four Seasons against the proceeds from non-factored accounts.

On September 23, 2000, while there were proceeds in Pulaski Bank representing funds owed to Four Seasons for factored accounts, Mr. Carter removed Four Seasons’s officers as signors on the Pulaski Bank account. More money owed to Four Seasons came into the account, after Mr. Carter removed the Four Seasons officers. When Pulaski Bank became uncertain as to who was entitled to payment of a $27,000 check drawn on the account, it filed an interpleader complaint and named Four Seasons, Marcus Carter, Alliance Escrow, and Commerce Affiance as defendants.

On November 17, 2000, Four Seasons filed a third-party complaint against Commerce Alliance and Mr. Carter seeking: (1) an accounting of all proceeds received from accounts receivable sold to Four Seasons, which totalled $316,616.70, according to an attached exhibit; (2) a mandatory injunction requiring payment into the registry of the court for such accounts receivable paid; and (3) monetary damages. Mr. Carter and Commerce Alliance answered and counterclaimed on the basis that these financial transactions were, in reality, not sales but were disguised usurious loans and that Four Seasons’s attachment of proceeds from non-assigned accounts breached their agreements and constituted conversion. They sought damages from Four Seasons in an amount equal to the non-factored proceeds that had not been remitted, lost profits, and twice the amount of the usurious interest paid.

On March 21, 2001, Four Seasons moved for summary judgment based on the relief prayed for in its third-party complaint. It attached as an exhibit a spreadsheet which detailed the face amount of outstanding accounts, totalling $316,616.70, and also accrued discount fees of $248,636.68. The total of the 65% of the face value already paid to Commerce Alliance and accrued discount fees was shown as $441,339.23. On March 22, 2001, the parties argued their cross-motions for summary judgment. The circuit court denied the motions and the case proceeded to trial. On March 26 and 29, 2001, the case was tried to the circuit court in a bench trial.

At trial, Mr. Carter testified that the transactions had been loans “from day one.” He further testified about the Addendum, which, he said, he drafted to avoid giving notice to the government agencies that Four Seasons was now the payee on the sold accounts. He described the federal regulations that he had to comply with in order to sell accounts receivable and have the government pay the assignee directly. He stated that the government requires a novation agreement in order to accomplish this and testified that he did not enter into a novation agreement with Four Seasons. He admitted to closing down Commerce Alliance in Arkansas. Richard Schwartz, a CPA, then testified on behalf of Mr. Carter that if the transactions were loans, then the rate of interest would be well above the constitutional usury limit. The lowest interest rate, he contended, was 76.76% per annum.

Gregory Young, the Secretary of Four Seasons, testified that he learned only through discovery in the case that Commerce Alliance had been closed in May of 1999 and that its assets had been transferred to Alliance Escrow. He further testified that Four Seasons was not in the business of lending money and that Four Seasons treated the financial transactions with Commerce Alliance as sales, both on its books and in its tax returns. He added that Four Seasons would not have purchased accounts receivable without the warranty of collectability and the recourse provisions against the seller being included in its Purchase Agreement. He stated that if Four Seasons had agreed to eliminate the warranty and recourse provisions, the discount charge to Commerce Alliance would have increased because the risk would have been greater. He also testified that Four Seasons was seeking the face amount of the accounts receivable in its lawsuit. Michael Forehand, the president of Four Seasons, testified that Four Seasons had no control over when the purchase orders would be paid by the government agencies but that Commerce Alliance had some control. He also testified that Four Seasons was not seeking to collect accrued discount fees of $248,636.68, but only the face amounts outstanding on the factored accounts, which totalled $316,616.70.

Christopher Barrier, a Little Rock attorney, testified as an expert for Four Seasons on what was typically included in factoring contracts. He stated that he was experienced in the drafting and reviewing of transactions similar to the one at issue in this case and that the seller of accounts receivable will typically obtain a higher price if the seller agrees to buy back the accounts if they are not paid on schedule. He testified that it was common to have warranties of collectability and recourse provisions. He testified that these provisions will ordinarily net a seller of accounts receivable a higher price, because a factor is willing to pay more for an account if the factor has assurances that it will be paid by the seller if the debtor does not pay. He also testified that, based on the agreements he had reviewed during his career, a security agreement in the seller’s other accounts receivables was typical in the event of a breach of the warranty that the accounts could be collected within a certain period of time. He added that a discount schedule, where the purchase price rises if the account is collected over a longer period of time, was commonplace.

The circuit court issued an eighteen-page memorandum opinion in which the court awarded damages against Mr. Carter in the amount of $313,836.79. The court also directed that Alliance Escrow file an accounting of all accounts receivable with the court within ten days, whether the records had been assigned to Four Seasons or not. The court finally imposed a constructive trust on all accounts receivable and proceeds of Mr. Carter and his companies and directed that the proceeds be paid into the registry of the court to satisfy the judgment. With respect to Commerce Alliance’s counterclaim that Four Seasons first breached the Purchase Agreement and Addendum, had converted non-factored proceeds, and engaged in disguised usurious loans, the circuit court concluded that Commerce Alliance had failed to meet its burden of proof. Judgment was entered in favor of Four Seasons.

I: Usurious Loan or Sale

For their first contention on appeal, Mr. Carter and Commerce Alliance argue that the financial transactions between Commerce Alliance and Four Seasons were a subterfuge for usurious loans. Four Seasons, on the other hand, argues as it did before the circuit court that the transactions were factored sales of accounts receivable. We address, as an initial matter, our standard of review.

The appellants correctly point out that Amendment 80 to the Arkansas Constitution did not disrupt this court’s standard of review in chancery cases. As this court recently held:

This court has traditionally reviewed matters that sounded in equity de novo on the record with respect to fact questions and legal questions. Con-Agra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000); Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). We have stated repeatedly that we would not reverse a finding by a trial court in an equity case unless it was clearly erroneous. Con-Agra, Inc. v. Tyson Foods, Inc., supra. We have further stated that a finding of fact by a trial court sitting in an equity case is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Id. These common law principles continue to pertain after the adoption of Amendment 80 to the Arkansas Constitution, which was effective on July 1, 2001.

Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002).

a. Usury Law

Arkansas’s usury law is set out in the Arkansas Constitution: “The maximum lawful rate of interest on any contract. . . shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract.” Ark. Const. art. 19, § 13(a)(i) (1987). Usurious contracts are void as to the amount of usurious interest, Ark. Const. art 19, § 13 (a) (ii), and a party who has been subjected to usurious interest is entitled to recover double the amount of such interest. Id.

Courts in Arkansas are obligated to look beyond the four corners of the document in question to determine, considering all of the attendant facts and circumstances, if the contract is usurious in effect. State ex rel. Bryant v. R & A Inv. Co., Inc., 336 Ark. 289, 296, 985 S.W.2d 299, 303 (1999); see also McElroy v. Grisham, 306 Ark. 4, 8, 810 S.W.2d 933, 936 (1991) (“The law shells the covering and extracts the kernel. Names amount to nothing when they fail to designate the facts.” (quoting Sparks v. Robinson, 66 Ark. 460, 463-464, 51 S.W. 460, 462 (1899))); Standard Leasing Corp. v. Schmidt Aviation, 264 Ark. 851, 855, 576 S.W.2d 181, 184 (1976) (“In determining if a contract is usurious we look to its substance, not to its form.”). Accord General Electric Credit Corp. v. Robbins, 414 F.2d 208, 210 (8th Cir. 1969) (“The law will not tolerate any camouflage disguising a usurious transaction to make it seem innocent.”) (applying Arkansas law) (internal citations and quotations omitted).

Because the “penalty for a usurious transaction is indeed heavy,” the burden is on the plaintiff to show usury by clear and convincing evidence. Haley v. Greenhaw, 235 Ark. 481, 360 S.W.2d 753, 757 (1962). Clear and convincing evidence is that evidence which produces a firm conviction in the factfinder that the allegation at issue is true. Baker v. Arkansas Dept. of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). “[W]hen the intention is not apparent, it is a question for the jury to determine whether it was a bona fide credit sale, or a device to cover usury.” Haley, 235 Ark. at 488, 360 S.W.2d at 758 (quoting Hare v. Gen eral Contract Purchasing Corp., 220 Ark. 601, 249 S.W.2d 973 (1952)).

h. Usury Law and Factoring Contracts

Four Seasons contends that it is engaged in the business of factoring accounts, not lending, and that the Purchase Agreement was a factoring contract. Factoring is defined as: “The purchase of accounts receivable from a business by a factor who thereby assumes the risk of loss in return for some agreed discount.” Webster’s New Third International Dictionary (1961). A factor buys accounts receivable at a discount, the factor’s seller obtains immediate operating cash, and the factor profits when the face value of the account is collected. See Irving Kellogg, The Lawyer’s Use of Financial Statements 143 (Univ. of Calif. Press 1967).

We had occasion to discuss the sale of a promissory note at a discount and whether that was usurious in Haley v. Greenhaw, supra. In Haley, the plaintiff had tried to set aside the assignment of certain mortgages by her ex-husband. The question was whether the sale of a promissory note at a discount, with a general endorsement, for a sum greater than the maximum rate of interest was usurious. The court considered the behavior of the parties important, and found that there was “not one single shred of evidence that would indicate that the . . . transaction was actually a loan, rather than a sale.” Haley, 235 Ark. at 487, 360 S.W.2d at 757. The court also found it significant that none of the parties had tried to conceal the nature of the sale. Moreover, the language of the assignment was that of a sale, not a loan. Id. at 488, 360 S.W.2d at 757. (“The language of the written assignment . . . provides that [the sellers] ‘grant, bargain, sell, assign, transfer, set over, delivers, and convey ... all of their right, title, and interest in and to one certain mortgage together with the notes, debts, and claims secured by said mortgage.”). The court observed that these factors did not conclusively prove the absence of usury but noted that the burden was on the appellant to prove that issue to the jury by clear and convincing evidence if the intention was in doubt. This, she had not done, and the court affirmed the trial court.

(i) Other Jurisdictions

The issue of whether a factoring contract is, in fact, a disguised loan is an issue of first impression in Arkansas. Because of this, Mr. Carter and Commerce Alliance argue that there are a set of factors in general use by other courts that weigh in favor of classifying the factoring agreement in this case as a usurious loan rather than a sale.

For the most part, we are persuaded that this issue turns principally on the intent of the parties as well as other attending factors. As one legal publication has concluded: “examination of court decisions addressing the true sale question reveals the absence of any discernable rule of law or analytical approach in the courts, other than the vague standard that a transaction should be characterized according to the intent of the parties indicated by the surrounding facts and circumstances.” Robert D. Aicher & William J. Fellerhoff, Characterization of a Transfer of Receivables as a Sale or a Secured Loan Upon Bankruptcy of the Transferor, 65 Am. Bankr. L. J. 181, 206 (1991). In short, the opinions in other jurisdictions turn on their facts. Here, the circuit court examined the surrounding facts and circumstances as well as the critical criteria discussed above and concluded that the transactions were bona fide sales, not loans. We will discuss each of the critical criteria gleaned from foreign jurisdictions seriatim.

(ii) Control

Mr. Carter and Commerce Alliance first argue that unlike a typical factoring agreement, they had no control over when the government agency would pay a purchase order on an account receivable that had been factored to Four Seasons. They urge that this fact, combined with the fact that the discount fee under the factoring agreement grew larger over time, makes the fees equivalent to interest, thus pointing toward the existence of a loan, not a sale.

Four Seasons replies that Commerce Alliance had full control over when the purchase order would be paid. If Commerce Alliance performed its obligations to its customers in accordance with the contracts it negotiated with them, Four Seasons emphasizes, then the government agency would pay. The contracts that the government agencies made with Commerce Alliance’s customers specified delivery times, and the contracts that Commerce Alliance negotiated with its customers stated that Commerce Alliance would send the invoice to the government agency leading to payment of the purchase orders. Thus, Four Seasons concludes, Commerce Alliance was in control of when the goods were delivered to the government agency and when the payment would be sent.

The circuit court was persuaded by Four Seasons’s argument, and we conclude that this conclusion was not clearly erroneous. Based on the structure of the transaction in question, it is clear that even if Commerce Alliance did not have absolute control over the timing of the payment from the government agency, it had more control than did Four Seasons. Under the arrangement, Four Seasons could not even notify the government agency that it was the owner of the account in question, much less dictate to the government agency when to pay. The control factor, in sum, does not weigh in the appellants’ favor.

(iii) Recourse

The existence of recourse against Commerce Alliance is claimed by the appellants as perhaps the single most important factor in determining whether the transaction was a legitimate factoring arrangement or a loan. One article has described the recourse issue in these terms:

In several decisions courts have considered recourse to the seller for nonpayment of the transferred assets to be suggestive of a loan rather than a sale. This recourse can take the form of a repurchase obligation, a guarantee of collectability by the seller, a failure to extinguish or reduce an independent obligation for which an “absolute assignment” is made, or a hold back of reserves from the purchase price which are released to the seller only as receivables are paid.

Robert D. Aicher & William J. Fellerhoff, supra at 186. Compare, e.g., Major’s Furniture Mart, Inc. v. Castle Credit Corp., Inc., 602 F.2d 538 (3d Cir. 1979) (holding that account sold with “full recourse” with a reserve from the purchase price held back to be applied to future nonpaying accounts and a requirement that the seller repurchase delinquent accounts after sixty days was a loan) with In re Golden Plan of California, 829 F.2d 705 (9th Cir. 1986) (holding that an assignment of mortgage notes and a deed of trust “without notice” and no guarantee of repayment was a bona fide sale.).

The appellants strongly contend that the Purchase Agreement establishes full recourse against Commerce Alliance in that the only exception is for bankruptcy, a condition that would not be applicable to the federal government. Further, they contend that a provision of the agreement is entitled “No Recourse to Seller,” when in point of fact there is recourse for breach.

The circuit court concluded, nevertheless, that the provision for recourse against Commerce Alliance if the accounts were not paid in 90 days did not convert the arrangement into a loan. On this point, the court credited Christopher Barrier’s expert testimony that it was commonplace to include recourse provisions in factor agreements and that recourse had a direct impact on the sales price. In Mr. Barrier’s opinion, the extent of the recourse against the seller was an issue for negotiation between the parties.

We conclude that the circuit court was not clearly erroneous in finding that this recourse agreement did not convert the transactions into loans. Recourse arrangements appear to vary from contract to contract. In the case before us, recourse against Commerce Alliance was only triggered if the account did not exist or it proved uncollectable in 90 days. No recourse in this case occurred until the 90-day warranty was breached, but at that time, the parties agreed that there would be full recourse. No doubt, this resulted in a higher purchase price for the accounts receivable and, thus, more cash to Commerce Alliance. Such a circumstance does not indicate a sale rather than a loan.

This court has discussed the concept of recourse in Haley v. Greenhaw, supra, and analyzed whether the existence of fuE recourse converted the factoring arrangement into a loan. We consider the following quotation from Haley important to this issue, as did the circuit court:

To so hold [that the transactions were usurious as a matter of law] would have the same effect as saying that a note bearing ten percent interest can never be sold at a discount unless the seller sells without recourse. Such a holding would of course, seriously curtail commerce, and would impair the negotiation and sale of commercial paper. Certainly, negotiable notes and mortgages are the subject of bona fide sales in the usual course of business, and very frequently their sales are at a discount. Probably, most often the sales are with recourse, for many business concerns would not purchase the paper otherwise. We see no reason why an actual and bona fide sale and purchase of paper at a discount should be hampered by the ruling that appellant seeks.”

235 Ark. at 486, 360 S.W.2d at 756-757. We affirm once more the analysis in Haley and conclude that full recourse is not outcome-determinative for the issue raised in the instant case.

(iv) Notice

Mr. Carter also maintains that notice is a key factor to be considered in determining whether an agreement is a loan or a sale. As one commentator has put it: “When the seller retains control over the collection of transferred receivables, the failure to notify account debtors of the transfer is likely to be viewed as a factor contrary to the characterization of the transaction as a sale.” Reade H. Ryan, Jr., Trade Receivables Purchases, DS71 ALI-ABA 305, 373 (American Law Institute-American Bar Ass’n Continuing Legal Education 1999). The appellants argue that Four Seasons did not notify the government agencies of the sale of the accounts receivable, and in the one assignment when Four Seasons attempted to do so, it described itself as the “manager” of the account and not the owner operating under a factoring agreement.

Despite this contention, Mr. Carter testified that the parties discussed the notice issue and Four Seasons wanted to notify the government to pay it instead of Commerce Alliance. Indeed, a minor skirmish in this case was the attempt of Four Seasons, prior to the adoption of the Addendum, to give notice to the government agency.

Mr. Carter flared at the suggestion of notice, and instead proposed, as an alternative, that Four Seasons be given control of the Pulaski Bank account. This was done by the Addendum drafted by Mr. Carter. It is axiomatic that agreements are construed against the drafter. See Yellow Cab of Texarkana v. Texarkana Mun. Airport, 230 Ark. 401, 322 S.W.2d 688 (1959). The purpose of notice to the account debtor is to minimize the risk of nonpayment to the factor and assure that the account will be paid to it. In the instant case, the parties could not manage the risk in the traditional way but instead negotiated an alternative risk-managing scheme. Any lack of notice in this financial arrangement came about at Mr. Carter’s insistence. Nor do we view the reference to “managing” in the one letter Four Seasons wrote to a government agency as indicative of loan intent. Absence of notice, accordingly, does not militate for a holding in the appellants’ favor.

(v) Pricing Mechanism and Adequacy of Consideration

Mr. Carter and Commerce Alliance claim that when pricing is structured in a similar fashion to commercial loans, such as when it is based on a fluctuating interest index, the transaction is more likely to be characterized as a loan. Four Seasons answers that it did not employ a commercial fluctuating interest rate such as the prime rate and further that the price of the discount charge was fixed in advance by the discount schedule (3% per fifteen days), and was not retroactively calculated based on a changing interest rate in any respect.

Mr. Carter and Commerce Alliance advanced, in addition, the argument that under the agreements the discount percentage could be assessed against the purchase price without limit until the fees required disgorgement of part of the 65% of the sale price already advanced to Commerce Alliance and maybe more. They add that Four Seasons changed its argument before trial to purge its claim of usury.

It is true that Four Seasons attached an exhibit to its summary-judgment motion that included totals for discount fees on accounts that had accumulated for as many as 459 days. Yet, a witness for Four Seasons, Gregory Young, was steadfast at trial in testifying that Four Seasons was not seeking accumulated discount fees under its fifteen day formula but only the total of the face amounts outstanding on the accounts. This is what Four Seasons initially claimed in its third-party complaint, and those amounts totalled $316,616.70. Though Four Seasons did calculate discount charges based on the total time for which the accounts were unpaid in an exhibit for summary judgment, it asked for the face amount of the accounts in its third-party complaint and in testimony at trial. We hold that the circuit court did not err in the damages awarded based on the face amount of the outstanding accounts.

(vi) Intent

Mr. Carter claims that the parties consistently treated the transactions at issue as loans, and not as sales. He points again to the “manager” language in a letter written by Four Seasons to the government agency during Four Seasons’s unsuccessful attempt to put the government on notice that it was the new owner of the accounts, and to the language of federal regulations involving contracting with the federal government that require a novation contract be given to the government in order to effect an assignment.

The circuit court credited the testimony of Four Seasons officers that the corporation did not make loans and that the officers treated the transactions at issue in this case as purchases both in their business accounting and tax returns. We cannot say that these factual findings were clearly erroneous. Nor can we conclude that the circuit court clearly erred in finding the absence of loan intent on the part of Four Seasons.

(vii) Milana

As a final point, Mr. Carter’s and Commerce Alliance’s adducement to Milana v. Credit Discount Co., 163 P.2d 869 (Calif. 1945) is not helpful to their case. The California Supreme Court found that the transactions in Milana were identifiable as loans on their face:

From the evidence introduced by the plaintiff in the case at bar the trier of the facts could reasonably conclude that the contracts of the parties provided for a conditional transfer of title; that advances by the defendants were contemplated to be repaid within a specified time at a charge for the use of the money which was deducted in advance; that the essence of the agreements was the use by the plaintiff of the funds at prescribed rates of interest which were in excess of the constitutional rate; that the transactions were not sales of accounts receivable but loans secured by assignments of the accounts at usurious rates of interest; that the intent to accomplish such a result was discernible from the contracts themselves; and that the negotiations and the conduct of the parties under the contracts further tended to dissipate any doubt arising from the employment of sales terminology. A finding on the plaintiff s case alone to the effect that the sale form was used merely as a cover for the real intent would find support from the written contracts, the conduct of the parties and the surrounding circumstances.

Milana, 163 P.2d at 872 (emphasis added). Moreover, as the circuit court noted, it is unclear whether Milana is still the law in California.

In the case at hand, the primary agreement in dispute is entitled a “Purchase and Sale Agreement.” Moreover, the terms of the agreement detail a sales transaction throughout — not a loan. The Milana decision is clearly distinguishable.

(viii) Conclusion

The Purchase Agreement at issue was the result of negotiations between two sophisticated business entities. The terms of the agreement expressly contemplated the sale of accounts receivable at a discount — a common means of raising capital. Looking at the agreement itself and the actions of the parties, we discern no basis for a reversal of the circuit court on grounds that it clearly erred in finding that the parties agreed to a sale of accounts receivable. To us, it is clear that the parties intended a factoring agreement and an analysis of all relevant factors confirms our conclusion. Moreover, we agree with the circuit court that the appellants failed to meet their burden of proof by clear and convincing evidence that the financial arrangement was a subterfuge for usurious loans. To conclude as appellants would have us do under these facts would be to cast legal doubt on the business of factoring accounts receivable as a means of raising capital. This we are not inclined to do.

II: Security Interest in Non-factored Proceeds

Mr. Carter and Commerce Alliance next argue that even though Commerce Alliance may have breached the Purchase Agreement at some point, Four Seasons breached it first. He points to the fact that Four Seasons did this in September 1999, when it initially applied proceeds of non-factored accounts that would otherwise have been due to Commerce Alliance toward the collection of several delinquent factored accounts. If this appropriation of non-factored proceeds is classified as a material breach, the appellants argue, then Commerce Alliance’s obligation to perform was discharged and its subsequent behavior excused.

The parties agree that the Purchase Agreement only dealt with the assignment of the accounts. However, the Addendum, the appellants point out, deals with non-factored accounts and specifies that Four Seasons agrees that it will “transmit the proceeds of the non-factored contracts to Commerce Alliance without a factor fee applied.” Mr. Carter refers to his testimony that he negotiated this term of the Addendum to assure that he would be able to obtain the proceeds of non-factored accounts from the Pulaski Bank account even after he gave Four Seasons control over the account. He argues that since the Addendum affirmed that Four Seasons could not attach' non-factored accounts, Four Seasons breached the contract when it did just that in September of 1999. He concludes that the circuit court erred in finding that Four Seasons’s application of proceeds from non-factored accounts to delinquent factored accounts was not a breach. To read the agreements otherwise, he contends, nullifies the effect of the Addendum.

Four Seasons confronts this argument by underscoring that the parties contracted in the Purchase Agreement for Four Seasons to have a security interest in all of Commerce Alliance’s accounts receivable in the event of a breach. Four Seasons maintains that it merely followed the terms of that agreement by exercising its right to its security interest after it was unable to collect on the factored accounts within ninety days, as Mr. Carter had warranted it would be. The Addendum, Four Seasons maintains, does not change the grant of the security interest in the Purchase Agreement. It merely reflects the parties’ agreement about how the Pulaski Bank account would be managed.

The basic rules of contract interpretation are well known. See Pickens-Bond. Constr. Co. v North Little Rock Elec. Co., 249 Ark. 389, 392, 459 S.W.2d 549, 552 (1970) (“In construing a contract, the courts must endeavor to give meaning and effect to every word. . . .”); Bailey v. Whorton, 207 Ark. 849, 853-854, 183 S.W.2d 52, 54 (1944) (“In construing a contract every sentence, clause and word therein should, when it can be reasonably done, be given effect.”); Miller v. Dyer, 243 Ark. 981, 986, 423 S.W.2d 275, 278 (1968) (“A construction which entirely neutralizes one provision should not be adopted if the contract is susceptible of another which gives effect to all of its provisions.”).

We disagree with the appellants’ characterization of the two agreements. The subject of the Purchase Agreement was indeed the sale of accounts receivable. The Addendum, however, was negotiated as an alternative to giving notice to the government agencies that Four Seasons owned the accounts. Mr. Carter’s compromise measure — giving control of the Pulaski Bank checking account to Four Seasons — took away his ability to take money out of the account without violating the agreement. That account, however, was where the price for all purchase orders on all accounts, factored or not, was paid. Under the Addendum, Four Seasons was required to remit the proceeds from non-factored accounts to Commerce Alliance. In short, the Addendum was simply a negotiated way for Commerce Alliance to receive the money from non-factored accounts without a discount fee after it turned control to the Pulaski Bank account over to Four Seasons. It did not change Four Seasons’s security interest under the Purchase Agreement.

None of this changes, in our judgment, the fact that Commerce Alliance contracted to give Four Seasons a security interest in all of its accounts in the Purchase Agreement in the event that it breached the agreement regarding the factored accounts’ collectability. Had Mr. Carter, who drafted the Addendum, intended to change the security interest in non-factored accounts, it would have been an easy matter for him to have included such language in that agreement. But he did not.

The circuit court did not clearly err in finding that certain factored accounts were delinquent for longer than 90 days as of September 21, 1999. This compels the legal conclusion that Commerce Alliance was in breach of the warranty under the Purchase Agreement that accounts would be collectable within 90 days, which triggered Four Seasons’s rights in its security. We conclude, as did the circuit court, that the language in the Addendum requiring Four Seasons to remit the proceeds of non-factored accounts in Pulaski Bank to Commerce Alliance did not alter Four Seasons’s right to a security interest in the non-factored accounts in the event of breach. We affirm the circuit court on this point.

III. Damages

The circuit court found that the damages due to Four Seasons’s unpaid factored accounts totalled $316,616.70. The appellants, however, argue that this damage award is erroneous and that Four Seasons changed the damages that it was seeking just before trial in an attempt to purge the contract of usury. In any event, the appellants argue, the agreement does not entitle Four Seasons to the face value of the accounts receivable, because the purchase price as defined by the Purchase Agreement is calculated only on the discount fees.

We disagree. First, we have already concluded in this opinion that the Purchase Agreement was a sale of accounts, not a loan based on those accounts. But, in addition, the Purchase Agreement contemplates a sale of accounts that will be collectable in ninety days. The discount fee affects the amount of profit that Four Seasons realizes on a factoring transaction. But it does not change the fact that Four Seasons desired to collect the face value of purchased accounts under the agreement. Four Seasons emphasizes in its brief that, at some point, the amount of the initial payment (65% of the face value) plus the discount fee will equal the face value of the account. The full face value on outstanding accounts is all Four Seasons sought as damages. That was its objective from the beginning — to buy accounts receivable with a certain face value with a goal of collecting the full face value of the accounts. The circuit court’s finding on this point was not clearly erroneous.

IV. Constructive Trust

For his final point, Mr. Carter argues that the circuit court mistakenly imposed a constructive trust on all funds in the Pulaski Bank account. The circuit court found that Four Seasons was entitled to equitable relief on the basis that Mr. Carter and his corporation blocked Four Seasons’s access to the Pulaski Bank account. Mr. Carter and Commerce Alliance contend that a constructive trust is inappropriate, because Four Seasons has an adequate remedy at law, damages, and they cite this court to a court of appeals case, Mitchell v. Mitchell, 28 Ark. App. 295, 773 S.W.2d 853 (1989), in support of their contention.

A constructive trust is an implied trust arising by operation of law to service equitable needs. Betts v. Betts, 326 Ark. 544, 932 S.W.2d 336 (1996). The fundamental purpose of a constructive trust is to prevent unjust enrichment. Id. This court has written:

A constructive trust is imposed where a person holding tide to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. The duty to convey the property may arise because it was acquired through fraud, duress, undue influence or mistake, breach of a fiduciary duty, or wrongful disposition of another’s property. The basis of the constructive trust is the unjust enrichment that would result if the person having the property were permitted to retain it. Ordinarily a constructive trust arises without regard to the intention of the person who transferred the property.

Id. at 547, 932 S.W.2d at 337-338 (quoting Edwards v. Edwards, 311 Ark. 339, 343-344, 843 S.W.2d 846, 849 (1991) (quoting Scott on Trusts § 404, 2 (1989)).

Because we agree that the financial arrangement between the parties was for a sale of accounts and not a loan on those receivables, a constructive trust was an appropriate remedy. In this regard, we cannot say that the circuit court’s factual findings regarding the closing of Mr. Carter’s businesses and his appropriation of funds that were paid to the account to satisfy factored accounts are clearly erroneous. Under these facts, to the extent that Mr. Carter and Commerce Alliance wrongfully disposed of Four Seasons’s property and will be unjustly enriched if he keeps the money, a constructive trust is an appropriate remedy to make sure he disgorges ill-gotten gains.

The appellants cite one lone case in support of their position that a constructive trust is an inappropriate remedy, Mitchell v. Mitchell, supra. In Mitchell, the controversy involved an equitable lien, not a constructive trust. Apart from the fact that imposition of equitable liens and constructive trusts are governed by different legal principles, the Mitchell case clearly turned on its facts. For that reason and the fact that the decision is not binding precedent on this court, the case is not controlling authority. We hold that a constructive trust was the appropriate remedy under these facts, and we affirm the circuit court in this regard.

V. Alternative Reasons to Affirm

Four Seasons argues estoppel, unclean hands, and lack of capacity to sue as alternative reasons to affirm the circuit court. We find it unnecessary to address the issues of estoppel or unclean hands. On the capacity issue, Four Seasons claims that Commerce Alliance no longer exists, due to the revocation of its corporate charter and, thus, lacks the capacity to pursue this appeal.

Four Seasons did raise the capacity issue as one of several grounds for its motion for summary judgment, but the motion was denied without a specific ruling. Furthermore, this issue was not sufficiently developed at the trial-court level, either factually or legally. As a result, we do not know what date the charter was revoked, because there was no court finding on that point. Indeed, the parties conflict in their briefs on when Commerce Alliance’s charter was forfeited. Four Seasons asserts this happened on December 31, 1999, while Mr. Carter asserts it occurred on December 31, 2000. Also, it is clear under our Tax Code that a revoked charter may be reinstated within seven years of the forfeiture date. See Ark. Code Ann. § 26-54-112(a)(B)(2) (Supp. 2001). The effect of this statute on the capacity issue was not discussed by Four Seasons.

We will not develop an issue for a party at the appellate level. City of Benton v. Arkansas Soil and Water Conservation Com’n, 345 Ark. 249, 45 S.W.3d 805 (2001); Union Nat. Bank v. Barnhart, 308 Ark. 190, 823 S.W.2d 878 (1992).

Affirmed.

       The circuit court did find that Four Seasons had constructive notice of this closing by virtue of the fact that after May 1999, the fax transactions were done by Alliance Escrow and the telephone was answered in Alliance Escrow’s name.

       Bank of America was also an original defendant but was dismissed from the case at an early stage.

       The circuit court offset the amounts Four Seasons held in reserve on unpaid accounts ($13,500 and $603.42) against the $316,616.70 claimed. The court then awarded $13,735.39 in prejudgment interest and $25,088.12 in attorneys’ fees and credited the amount originally interpled of $27,000 to arrive at the total judgment amount. The court is aware that the judgment appears to reflect a $500 discrepancy, the source of which is not apparent from the record. The parties do not dispute the computation of damages and so we uphold the circuit court’s calculation.

       Alliance Escrow was named as a defendant in Pulaski Bank’s interpleader action, but was not a party to Four Seasons’ third-party complaint or Commerce Alliance’s counterclaim. Nor is it a party to this appeal.

       The circuit court found that Four Seasons never applied a factor fee to a non-factored account in Pulaski Bank.


text:
    Joy Danielle DOSS v. STATE of Arkansas
    CR 02-599
    97 S.W.3d 413
    Supreme Court of Arkansas
    Opinion delivered February 6, 2003

      James Law Firm, by: William O. James, Jr. and Clay T. Buchanan, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges and KaTina Hodge, Law student admitted to practice pursuant to Rule XV(E)(l)(b) of the Rules Governing Admission to the Bar under supervision of Darnisa Evans Johnson, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Joy Doss appeals from her capital-murder conviction and her sentence of life in prison without the possibility of parole. Her sole point on appeal is that there was insufficient evidence to convict her. We hold that the issue is not preserved for our review, and we affirm the judgment of conviction and sentence.

In the early morning hours of December 6, 2000, Doss, together with her roommate, James Pugh, murdered their third roommate, Keith Van Maren. Doss was twenty-one years of age and weighed approximately 300 pounds. Following her arrest, Doss provided both a written statement and oral statement to law enforcement, which was transcribed. Her statements, which were admitted into evidence at trial over her objection, detailed the events of the murder. Doss also described the events that transpired that evening when she took the stand in her own defense. The following description of events is taken from those statements and her testimony.

On the evening of December 5, 2000, Doss visited with Sheila Uptegrove, a mutual friend of Doss, Pugh, and Van Maren, in the apartment that she shared with Pugh and Van Maren. The four individuals had had an ongoing friendship and, according to Doss, had engaged in bondage activity and other sexual “games.” Doss testified that they sometimes would engage in holding each other down and forcing sex upon one another. They would also cut each other with knives and drink each other’s blood. Doss further described “wrestling matches” in which “there would be a lot of knives involved, strangling ... a lot of mock strangling especially with the bondage[.]” Additionally, Doss testified that Uptegrove, on prior occasions, had discussed killing Van Maren with Pugh and her. Doss stated that she did not take these discussions seriously.

The evening of December 5, at about 10:45 p.m., Pugh took Uptegrove home, and Doss went into Van Maren’s bedroom to use his computer. Van Maren lay on the couch in another room and watched television. Sometime later, Doss turned the computer off and went in to wake up Van Maren. When she did so, Van Maren was abusive, both physically and mentally, to her. After that occurred, the telephone rang, and Doss answered it while Van Maren went to bed. Uptegrove was on the phone, and Doss told her that when she woke Van Maren, he and she “got into a little bit of an argument and he pushed [her] around a little bit[.]” Doss then told Uptegrove that if Uptegrove was going to kill Van Maren, as she had previously talked about, “tonight would have to be the night.” At that point the conversation turned to a discussion of one plan Uptegrove had to kill Van Maren, which was to strangle him in his sleep and pretend he was laundry by placing him in a green duffel bag. The telephone conversation ended, and Doss stayed up watching television.

At approximately 1:30 a.m., Pugh returned to the apartment and said he was going to bed. He asked Doss to wake him in about an hour and a half which she did. When she woke Pugh, he informed her that they were going to kill Van Maren. She testified that she did not take Pugh seriously and believed that this was going to be another one of the mock strangulations in which the group had previously engaged. Doss stated that she grew concerned when Pugh handed her a pillow and told her that she should hold the pillow over Van Maren’s face, not to suffocate him, but to “muffle the noise.” At that point, Doss said she protested, but Pugh responded: “[Y]ou know what I’m capable of . . . .” At trial, she testified that Pugh added that “if you don’t want to be next, you’ll go along.” Doss testified that she continued to believe that this would be one of their mock murders.

Pugh next directed Doss to pop the lock on Van Maren’s bedroom door which she did. Upon entering the room, Pugh told Doss: “I’m going to strangle him and then you put the pillow over his face[.]” After Pugh forced Van Maren’s hands underneath his legs, Doss put the pillow over Van Maren’s face, and Pugh began to strangle him. Van Maren struggled and moaned. Pugh told Doss to get a belt which she did. Upon her return, both Pugh and Doss sat on top of Van Maren, and Pugh proceeded to strangle Van Maren with the belt, while Doss also straddled him and held him down. Doss testified that until that point, she had not realized that Pugh was serious.

While Pugh was strangling Van Maren, Doss left the room to get a knife to give to Van Maren for selDdefense. According to Doss, Pugh wrestled the knife away from Van Maren. She then attempted to pull Pugh off of Van Maren without success. At some point, Doss testified, she did hold onto one end of the belt around Van Maren’s neck, but she said she did not pull on it; only Pugh did. Later, Doss checked Van Maren’s pulse and found none. Uptegrove called again at 3:09 a.m., and Doss confirmed that Pugh was finishing Uptegrove’s “laundry” but that he was having complications. Next, Doss found a duffel bag, at Pugh’s request, in which Pugh tried to put Van Maren’s body. Uptegrove later called the Fayetteville Police Department to alert law enforcement that Van Maren’s life might be in danger.

Police officers arrived at the apartment, saw that Van Maren was dead, and requested that Doss and Pugh accompany them to the police station for questioning. They agreed. Detective Timothy Franklin arrived at the police station shortly after 4:45 a.m. and observed Doss lying on the floor of the interrogation room. When he entered the room, she stood up, and Detective Franklin noticed a blood stain on her pants. She consented to turning the pants over to Detective Franklin for analysis, and it was later determined that Doss’s own blood was on her pants.

Detective Franklin next filled out an information form and read Doss her Miranda rights. After reading the form, Doss initialed each response and signed the form at the bottom. Detective Franklin proceeded to ask her about the events of the evening, to which Doss basically denied any involvement. Detective Franklin left Doss and gathered information about Pugh’s separate interrogation. Doss contended that at this point she requested a lawyer several times, but the detective disputed this claim. Detective Franklin returned to Doss’s room and informed her that Pugh had implicated her. Doss, however, continued to deny that she had been involved in the murder.

The detective then placed Doss under arrest. After handcuffing her and while transporting her to the jail, Doss asked Detective Franklin whether she would get the opportunity to speak with him again. She also asked him how she could get a lawyer. Detective Franklin responded to each question and told her that he was not interested in talking to her anymore if she was just going to continue lying to him. He also told her that she could either call a lawyer or one would be appointed for her on her court date. At her suppression hearing, Doss testified that Detective Franklin “took hold of [her] handcuffs and pushed [her] — kind of pulled [her] down the stairs.”

At about 8:10 a.m., Detective Franklin received a call from the matron at the jail informing him that Doss wanted to speak with him. A few minutes later, the jailer called again and told the detective that Doss wanted a pencil and paper to write him a letter. Detective Franklin approved the request. At around 10:00 a.m., the detective went to the jail and took Doss to the detective division for further interrogation. Doss handed him part of a letter which she had drafted about the killing, which Franklin read while Doss completed it. He then mirandized her a second time and proceeded to tape record another interview with Doss. This statement was later transcribed and entered into evidence at trial. At the end of the interview, she stated that she wanted an attorney, at which time Franklin stopped the interview.

Prior to the ensuing jury trial, Doss moved to suppress her statements on the basis that they were obtained without legal counsel and by psychological ploys and promises by police officers which resulted in overcoming Doss’s will. A lengthy suppression hearing was held before the circuit court, and the motion was denied. At trial, Doss’ statements were admitted into evidence, and testimony was taken. Each police officer involved in the investigation as well as the criminal investigators from the state crime lab testified. Additionally, the State presented testimony from Stacey Cooper, who had been in a jail cell with Doss following her arrest. Cooper testified that Doss had told her and a third cellmate that she had killed her roommate by smothering him with a pillow and later had strangled him with a belt. She also testified that Doss’s only regret was that Uptegrove had called the police before she did and implicated her. The medical examiner testified that Van Maren died of asphyxia due to a combination of strangulation and suffocation. Doss presented a defense of duress due to Pugh’s threats and a general lack of scientific evidence connecting her to the crime. She took the stand in her own defense. Doss was convicted of being an accomplice to capital murder and was sentenced to life imprisonment without parole.

On appeal, Doss argues that the State failed to provide sufficient evidence to prove her guilt as an accomplice to capital murder. We conclude, nevertheless, that we are precluded from reviewing her allegation of error. Following the State’s evidence at trial, Doss’s attorney made a motion for directed verdict which was denied by the circuit court. That motion was renewed at the conclusion of Doss’s case and was again denied. The State then offered a rebuttal witness. No renewal of the motion for directed verdict was made by defense counsel following the State’s rebuttal testimony.

Arkansas Rule of Criminal Procedure 33.1(a) provides that in a jury trial, “if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all the evidence.” Ark. R. Crim. P. 33.1(a). The rule further provides that a failure to renew the motion constitutes a waiver of the question of sufficiency:

(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. ... A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal.

Ark. R. Crim. P. 33.1(c). Indeed, where an appellant failed to renew his motion for directed verdict at the close of the State’s rebuttal, which was “the close of all the evidence,” we have said in several cases that we were precluded from appellate review of the sufficiency argument. Grady v. State, 350 Ark. 160, 167, 85 S.W.3d at 531, 534 (2002). See also Smith v. State, 347 Ark. 277, 61 S.W.3d 168 (2001); King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994).

Accordingly, because appellant failed to renew her motion for directed verdict following the State’s rebuttal, we cannot consider her sufficiency argument on appeal.

4-3(h) Review

In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found. We note as part of our review that Doss contended before the circuit court that her statement to Detective Franklin was taken in violation of her right to counsel. She does not raise this issue on appeal. It is clear to this court, however, that Doss was mirandized before each interrogation by Detective Franklin and that he ceased questioning her when counsel was requested. It further appears clear that Doss initiated contact with Detective Franklin which led to the second interview. See e.g., Lacy v. State, 345 Ark. 63, 44 S.W.3d 296 (2001) (holding that when an accused requests an attorney, a police interrogation must cease until counsel has been made available to him; however, if the accused initiates further communication, exchanges, or conversations with police officers, any resulting statement may be admissible). We conclude that the circuit- court correctly refused to suppress her statements.

Affirmed.

       This court affirmed James Pugh’s judgment of conviction as an accomplice to capital murder and his sentence in Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002).


author: Per Curiam.

text:
    Richard Harold MAXWELL v. STATE of Arkansas
    CR 03-55
    97 S.W.3d 418
    Supreme Court of Arkansas
    Opinion delivered February 6, 2003

      David L. Chambers, for appellant.
    No response.
   Per Curiam.

Appellant Richard Harold Maxwell, by and through his attorney, David L. Chambers, has filed a motion for rule on clerk. Mr. Chambers, states in the motion that his motion to extend the time to file the record was not filed in timely fashion due to a mistake on his part.

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

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


text:
    Randy Ladon ANDERSON v. STATE of Arkansas
    CR 01-1131
    100 S.W.3d 48
    Supreme Court of Arkansas
    Opinion delivered February 10, 2003

      Thomas Deen, for appellant.

      Perroni & James Law Firm, by: Samuel A. Perroni and Arnold Davis, for appellee.
   Per Curiam.

Appellant was convicted of capital murder and sentenced to death by lethal injection. Among his points of error is a claim that the jury failed to consider mitigating circumstances in the sentencing phase of his trial in violation of Ark. Code Ann. § 5-4-603 (Repl. 1997). The verdict forms identified as Forms 1 through 4 (presumably as specified under AMCI 2d 1008) were specifically discussed by the trial judge during the trial and are referenced in the trial court’s order denying appellant’s motion for a new trial. Those forms, however, are not included in the record presented to this court. At oral argument, counsel for the appellant and for the State represented to this court that they have been unable to locate the forms.

Ordinarily we w ould leave it to the parties to move that the record on appeal be supplemented under Ark. R. App. P. — Civ. 6(e) (2000), which the appellant has not done. However, inasmuch as this is a capital murder case in which the death penalty was imposed, we order that the record on appeal be supplemented to include Verdict Forms 1, 2, 3, and 4 from the sentencing phase of appellant’s trial within fifteen days hereof. See Ark. R. App. P. — Civ. 6(e) (2000); Snell v. State, 290 Ark. 184, 717 S.W.2d 818 (1986); Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986).