author: TOM GLAZE, Justice. DONALD L. CORBIN, Justice,

text:
    IGF INSURANCE COMPANY v. HAT CREEK PARTNERSHIP
    01-1267
    76 S.W.3d 859
    Supreme Court of Arkansas
    Opinion delivered June 6, 2002

      Shaver & Smith, by: J. Harmon Smith, III; and Henke-Bufkin, P.A., by: R. Jefferson Allen and W. Kurt Henke, for appellant.

      Butler, Hicky, Long, & Harris, by: Andrea Brock, for appellee.
   TOM GLAZE, Justice.

This appeal involves the application and interpretation of Arkansas’s statutes pertaining to the enforceability of an arbitration clause in an insurance contract, see Ark. Code Ann. § 16-108-201 (Supp. 2001); jurisdiction is therefore proper under Ark. Sup. Ct. R. l-2(b)(6).

On February 10, 1999, Hat Creek Partnership purchased from IGF Insurance Company a multiple peril crop insurance policy (MPCI) that covered Hat Creek’s crops planted during the 1999 crop year in Cross County, Arkansas. During the early part of March 1999, Hat Creek’s growing wheat was totally destroyed by wild geese. Hat Creek notified IGF in mid-March that wildlife had damaged its wheat crop, and on March 26, 1999, Robert Burns, an IGF adjuster, came to Hat Creek’s farm to meet with Paul McCain, a representative of the farm. McCain informed Burns that the wheat had not yet been fertilized, but that it needed to be fertilized, if the crop was not damaged to such a degree that it could not be saved. After examining the wheat fields, Burns represented to McCain that the crop was a total loss. Burns then advised McCain that he would be back in a few days to finish up the claim and pay the loss; based on Burns’s representations, Hat Creek did not fertilize the wheat crop.

When Burns did not return to the farm, McCain called to advise Burns that some of the wheat was trying to come back. Burns advised McCain not to worry about the crop because it had failed. On April 7, 1999, Burns came back to the farm to complete plant counts in connection with the wheat crop, and on April 8, 1999, Burns met with McCain and informed him, for the first time, that more than 1100 acres of Hat Creek’s wheat crop was not insured.

Hat Creek subsequently filed suit against IGF, alleging that IGF had breached the insurance contract and that the company and its agent, Burns, were liable for negligent misrepresentation. The complaint sought $120,000 in losses, and asserted that, due to Burns’s representations that the loss would be paid, the wheat was not fertilized. Burns’s representations came at a time when fertilization of the wheat was at a critical point, and Hat Creek claimed that, as a result of Burns’s statements that the wheat should not be fertilized and no money should be spent on it, Hat Creek lost all opportunity to salvage any portion of the wheat crop and the crop was a total loss.

IGF filed an answer in which it asked the trial court to stay the action, based on a written agreement to arbitrate contained in the MPCI policy. The arbitration clause read, in pertinent part, as follows:

20. Arbitration
(a) If you and we fail to agree on any factual determination, the disagreement will be resolved in accordance with the rules of the American Arbitration Association. Failure to agree with any factual determination made by FCIC must be resolved through the FCIC appeal provisions published at 7 C.F.R. Part 11.

Further, IGF specifically pled that Hat Creek’s claims for recovery-under state law were preempted and barred by federal regulations, particularly, 7 C.F.R. §§ 400.176 and 400.352. IGF argued that the complaint should be dismissed and referred to binding arbitration.

On March 27, 2000, IGF filed a motion to compel arbitration in which it argued that the arbitration agreement was enforceable under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. Hat Creek responded by citing Ark. Code Ann. "§ 16-108-201 (Supp. 2001), under which arbitration agreements contained in insurance contracts are not enforceable against insureds. Hat Creek additionally asserted that arbitration could not be compelled, because the Arkansas Uniform Arbitration Act preempts the FAA by virtue of the McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq. Hat Creek also contended that the dispute did not arise from the insurance contract, but from representations made by an employee of the insurance company, and as such, IGF should not be allowed to compel Hat Creek to arbitrate the tort action. After a hearing on July 18, 2001, the trial court denied IGF’s motion to compel arbitration. IGF brings this appeal from that order.

The denial of a motion to compel arbitration is an immediately appealable order. Ark. R. App. P. — Civ. 2(a)(12); Walton v. Lewis, 337 Ark. 45, 987 S.W.2d 262 (1999); Terminix Int’l Co. v. Stabbs, 326 Ark. 239, 930 S.W.2d 345 (1996); American Ins. Co. v. Cazort, 316 Ark. 314, 871 S.W.2d 575 (1994). Our review of the trial court’s denial of a motion to compel arbitration is de novo. Showmethemoney Check Cashers v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000); Walton v. Lewis, supra.

For its first point on appeal, IGF contends that the FAA, rather than the Arkansas Uniform Arbitration Act, applies to this dispute and calls for arbitration between the parties. IGF notes the strong federal preference for arbitration. In Allied-Bruce Terminex Companies, Inc. v. Dobson, 513 U.S. 265 (1995), the Supreme Court stated that “the basic purpose of the Federal Arbitration Act is to overcome courts’ refusals to enforce agreements to arbitrate,” and held that the Act was to have an “expansive interpretation” in order to reach all transactions or contracts that fall within the broad scope of Congressional powers relating to interstate commerce. Further, 9 U.S.C. § 2 states the following:

A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

(Emphasis added.) The Supreme Court has held that insurance policies are contracts “involving commerce” and are therefore subject to the Federal Arbitration Act. See United States Dep’t of the Treasury v. Fabe, 508 U.S. 491 (1993). Thus, IGF asserts, the arbitration clause in the MPCI policy issued to Hat Creek — a “contract evidencing a transaction involving commerce” — was enforceable, and the trial court should have granted its motion to compel arbitration.

Hat Creek responds that the Arkansas General Assembly has specifically exempted insurance policies from the kinds of contracts containing arbitration clauses that are generally held to be enforceable. Notably, Ark. Code Ann. § 16-108-201 (Supp. 2001) provides as follows:

(b) A written provision to submit to arbitration any controversy thereafter arising between the parties bound by the terms of the writing is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract; provided, that this subsection shall have no application to personal injury or tort matters, employer-employee disputes, nor to any insured or beneficiary under any insurance policy or annuity contract.

§ 16-108-201(b) (emphasis added). Hat Creek argues that, because its lawsuit was brought pursuant to its insurance policy with IGF, and because the complaint also contained tort allegations, the arbitration clause was not enforceable.

Additionally, Hat Creek contends that under the federal McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq., state statutes regulating insurance policies are superior to federal statutes. The McCarran-Ferguson Act was enacted in 1945 in response to the Supreme Court’s decision in United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944), wherein the Court held that an insurance company that conducted a substantial part of its business across state lines was engaged in interstate commerce and therefore was subject to federal antitrust laws. Prior to that time, “it had been assumed that issuing a policy of insurance [was] not a transaction of commerce subject to federal regulation” United States Department of the Treasury v. Fabe, 508 U.S. 491, 499 (1993) (citations omitted), and therefore the States “enjoyed a virtually exclusive domain over the insurance industry.” Id. However, after the Court’s decision in South-Eastern Underwriters, Congress enacted the McCarran-Ferguson Act in order “to restore the supremacy of the States in the realm of insurance regulation.” Fabe, 508 U.S. at 500. The Fabe Court stated that Congress “[made] its mission very clear” with the first section of the Act, which provides that “Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.” 15 U.S.C. § 1011. See Fabe, 508 U.S. at 500.

After the Congressional declaration of McCarran-Ferguson’s policy, the Act provides, in relevant part, as follows:

(a) State regulation
The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.
(b) Federal regulation
No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance [,]

15 U.S.C. § 1012. Thus, the McCarran-Ferguson Act bars the application of a federal statute if (1) the federal statute does not specifically relate to the business of insurance; (2) a state statute has been enacted for the purpose of regulating the business of insurance; and (3) the federal statute would invalidate, impair, or supersede the state statute. BankOklahoma Mortgage Corp. v. Capital Title Co., 194 F.3d 1089 (10th Cir. 1999) (citing Fabe, supra).

In the present case, the parties initially raise arguments about the applicability of the Federal Arbitration Act: IGF contends that the Act supersedes the Arkansas arbitration statutes, while Hat Creek asserts that the Act does not specifically relate to the business of insurance, and the Arkansas statutes therefore control. However, the federal act that forms the crux of this case is the Federal Crop Insurance Act, 7 U.S.C. § 1501 et seq., the act under which IGF reinsured its crop insurance policy with the Federal Crop Insurance Corporation. The crop insurance policy issued to Hat Creek by IGF states prominently the following:

This insurance policy is reinsured by the Federal Crop Insurance Corporation (FCIC) under the provisions of the Federal Crop Insurance Act, as amended (7 U.S.C. 1501 et seq.). All provisions of the policy and rights and responsibilities of the parties are specifically subject to the Act. The provisions of the policy are published in the Federal Register and codified in chapter IV of tide 7 of the Code of Federal Regulations (CFR) under the Federal Register Act (44 U.S.C. 1501 et seq.), and may not be waived or varied in any way by the crop insurance agent or any other agent or employee of FCIC or the company. In the event we cannot pay your loss, your claim will be settled in accordance with the provisions of this policy and paid by FCIC. No state guarantee fund will be liable for your loss. (Emphasis added.)

This policy language is taken from 7 C.F.R. § 457.8, which provides that an “Application for insurance on a form prescribed by the Corporation, or approved by the Corporation, must be made by any person who wishes to participate in the [federal crop insurance] program, to cover such person’s share in the insured crop as landlord, owner-operator, crop ownership interest, or tenant.” 7 C.F.R. § 457.8(a). This section then goes on to set out the language used in federal crop insurance policies, such as the one Hat Creek purchased from IGF in this case.

Because the Federal Crop Insurance Act specifically relates to the business of insurance, the McCarran-Ferguson Act is inapplicable, and the federal insurance statute preempts the Arkansas arbitration statute. This supersession of state law by the federal Act was recognized in a case from the Tenth Circuit, State of Kansas ex rel. Todd v. United States, 995 F.2d 1505 (10th Cir. 1993). In that case, the State of Kansas challenged the ability of the FCIC to promulgate regulations preempting state laws “not consistent with the purpose, intent, or authority of the Act,” 7 C.F.R. § 400.351, and applicable to insurance policies which are either insured or reinsured by the FCIC. The Todd court noted that the express purpose of the Federal Crop Insurance Act was to “promote the national welfare by improving the economic stability of agriculture through a system of crop insurance and providing the means for the research and experience helpful in devising and establishing such insurance.” Id. (citing 7 U.S.C. § 1502). The Tenth Circuit continued its discussion of the purpose and policy of the FCIC, stating that, under § 1516(b), the FCIC’s authority to set “the terms and conditions” of its government insurance contracts in order to carry out the purposes of the Act is plenary, as delegated by Congress. The FCIC relied upon its plenary authority and section 1506(k) of the Act when it promulgated the regulations which preempt state law for both its direct insurance contracts and its reinsurance contracts with private insurance companies. In addition, the Todd court pointed out, the FCIC adopted the regulations because it wanted to clarify its “long standing position on the preemption of inconsistent state laws and regulation” and equalize federal assistance between FCIC directly insured policies and FCIC reinsured policies. Todd, 955 S.2d at 1508 (citing 55 Fed. Reg. 4382 (1990)).

The court in Todd then proceeded to analyze whether or not Congress intended to supersede state laws with the FCIA and its attendant regulations. Noting first that Congress may intend to supersede all or only a part of a state’s laws, the court inquired first into whether or not Congress expressed an intention to preempt state law. Preemption occurs (1) when Congress expresses a clear intent to preempt in a federal statute; (2) when there is a conflict between federal and state law; (3) when compliance with both federal and state law is impossible; (4) when there is an implicit barrier in the federal statute to state regulation; (5) when Congress has comprehensively occupied an entire field and leaves no room for state law; or (6) when state law is an obstacle to the objectives and purpose of Congress. Id. at 1510 (citing Louisiana Pub. Serv. Comm’n v. Federal Communication Comm’n, 476 U.S. 355 (1986). The Todd court agreed with the FCIC’s assertion that the FCIA explicitly preempts state law regarding federal crop insurance contracts in § 1506(k) (now § 1506(1)). That section provides that “[s]tate and local laws or rules shall not apply to contracts or agreements of the [FCIC] or the parties thereto to the extent that such contracts or agreements provide that such laws or rules shall not apply, or to the extent that such laws or rules are inconsistent with such contracts or agreements.” See also Meyer v. Conlon, 162 F.3d 1264 (10th Cir. 1998) (holding that state law applies to FCIA contracts, with two exceptions: (1) when FCIC contracts provide that state law does not apply, and (2) when state law is inconsistent with FCIC contracts).

Further, 7 C.F.R.. § 400.352 states specifically that “[n]o state or local governmental body . . . shall have the authority to promulgate rules or regulations, pass laws, or issue policies or decisions that directly or indirectly affect or govern agreements, contracts, or actions authorized by this part unless such authority is specifically authorized by this part or by the Corporation.” Thus, it is clear that Congress contemplated that the FCIC’s reinsurance contracts should be able to provide that state law would be inapplicable to an insurance contract reinsured by the FCIC. The Arkansas statute purporting to prevent the enforceability of arbitration clauses in insurance contracts “directly or indirectly affect[s] or govern[s]” the crop insurance contract authorized by the FCIC, and it is therefore inconsistent with, and preempted by, the federal statute. The trial court erred in concluding otherwise, and we reverse its denial of IGF’s motion to compel arbitration.

Hat Creek raises two additional arguments regarding the enforceability of the arbitration clause, contending that the clause is narrow and the controversy between Hat Creek and IGF is outside its scope, and that the arbitration clause is unenforceable as it is contained in an adhesion contract. We decline to reach either of these issues, because it is not apparent from the record that the trial court considered and ruled on these questions in reaching its decision, which, as just noted, must be reversed in any event.

In sum, the McCarran-Ferguson Act does not apply, and the Federal Crop Insurance Act’s provisions mandating arbitration clauses in federal crop reinsurance policies preempts the Arkansas statute that would ordinarily render the arbitration clause unenforceable. The trial court is therefore reversed and the case remanded.

Corbin and Hannah, JJ., concurs.

DONALD L. CORBIN, Justice,

concurring. I agree that the federal law at issue in this case, the Federal Crop Insurance Act (FCIA), preempts our state law’s prohibition against enforcing arbitration clauses contained in insurance policies, set out in Ark. Code Ann. § 16-108-201(b) (Supp. 2001). I therefore concur in the majority’s conclusion that the trial court erred in denying IGF’s motion to compel arbitration. I write separately to emphasize that neither the contract nor the applicable federal regulations require the parties to arbitrate anything other than disagreements on “any factual determinations.” From my review of the federal case law on this issue, I believe that the parties must first submit to arbitration any factual determinations, but that Hat Creek may thereafter pursue its state-law tort claims in the circuit court.

Section 20(a) of the insurance contract in this case provides in pertinent part:.

If you and we fail to agree on any factual determination, the disagreement will be resolved in accordance with the rules of the American Arbitration Association. [Emphasis added.]

This contract provision is codified as 7 C.F.R. § 457.8 (2002). Clearly, from its face, this clause only requires arbitration of disagreements on factual determinations; it does not require the parties to arbitrate any and all disputes. This conclusion finds support in a related federal regulation, 7 C.F.R. § 400.176 (2002), which provides in pertinent part:

(b) No policy of insurance reinsured by the [Federal Crop Insurance] Corporation and no claim, settlement, or adjustment action with respect to any such policy shall provide a basis for a claim of damages against the Company issuing such policy, other than damages to which the Corporation would be liable under federal law if the Corporation had issued the policy of insurance under its direct writing program, unless the claimant establishes in a court of competent jurisdiction, or to the satisfaction of the Corporation in the event of a settlement, that such damages were caused by the culpable failure of the Company to substantially comply with the Corporation’s procedures or instructions in the handling of the claim or in servicing the insured’s policy, or unless the Company or its agents were acting outside the scope of their authority (apparent or implied) in performing or omitting the actions claimed as a basis for the damage action. [Emphasis added.]

Indeed, two recent federal decisions have acknowledged that Congress did not intend the foregoing arbitration provision to extinguish state-law causes of action arising from tortious conduct by private companies selling reinsurance contracts approved by the Federal Crop Insurance Corporation (FCIC).

In Nobles v. Rural Community Ins. Servs., 122 F. Supp. 2d 1290 (M.D. Ala. 2000) the federal district court determined that under the FCIA and the FCIC’s regulations, the insured farmer, Nobles, was required to arbitrate the factual determination whether its 5,000 acres were covered by the policy. Following arbitration, and assuming that Nobles was not satisfied with the arbitration result, it could pursue its remaining tort claims, including claims for misrepresentation and bad faith, in court. The court explained:

Using its rulemaking powers, [FCIC] has dictated the terms of the insurance contracts issued by Defendant and other companies. The terms and conditions preempt any contrary state laws that would apply to other insurance contracts normally issued by private insurance companies. At the same time, however, [FCIC] has never intended to extinguish state law causes of action that may arise from tortious conduct by private companies selling [FCIC]approved reinsurance contracts.

Id. at 1294 (citations omitted) (emphasis added). See also Williams Farms of Homestead, Inc., v. Rain and Hail Ins. Servs., Inc., 121 F.3d 630 (11th Cir. 1997). Relying primarily on section 400.176(b), set out above, the district court concluded that “by their very terms, the relevant regulations expressly envision litigation.” Nobles, 122 F. Supp. 2d at 1294. The court held:

Thus, there is no doubt that Congress has not preempted lawsuits based on state law claims against private insurance providers. But that does not mean that Congress did not intend for the parties to have some factual determinations and disagreements resolved through arbitration.

Id. at 1295. Based on the foregoing provisions, the district court concluded that Nobles was required to arbitrate the factual determination whether its 5,000 acres were covered, and that the arbitration must occur first, due to the strong federal policy favoring arbitration. After that dispute is resolved, the court concluded that Nobles could pursue its state-law tort claims against the insurer. To this end, the district court retained jurisdiction over the suit.

The same conclusion was reached by the Florida district court in Ledford Farms, Inc. v. Fireman’s Fund Ins. Co., 184 F. Supp. 2d 1242 (S.D. Fla. 2001). There, Ledford submitted a claim to Fireman’s, alleging that rain had destroyed its crop. Fireman’s denied coverage on the ground that Ledford had failed to replant the crop, although it was practical to do so. Ledford contended that the issue whether it was practical for it to replant was a legal determination, not a factual determination and, thus, was not subject to arbitration. The district court disagreed and granted Fireman’s motion to compel arbitration. The court held, however, that the arbitration clause was not applicable to all disputes between the parties. The court explained:

Fireman’s Fund denied coverage on the ground that it was practical for Ledford to replant its fresh market bean crop. Such a conclusion is clearly a factual determination. Accordingly, any dispute concerning the propriety of that conclusion is subject to binding arbitration. The arbitration clause, however, is not an absolute bar to suit. Rather, the arbitration clause is a condition, contained in every [multi-peril crop insurance] policy, that must be satisfied btfore an insured can commence legal action.

Id. at 1245 (emphasis added). The contract condition referred to by the Florida district court is the same condition present in the policy at issue here, section 25(a), which provides: “You may not bring legal action against us unless you have complied with all of the policy provisions.” (Emphasis added.) The district court concluded that this provision “contemplates litigation.” Id. at 1244.

In the present case, IGF denied Hat Creek’s claim on the ground that 1,100 of the 1,200 acres damaged were not insured under the policy. This is a factual determination that must be submitted to binding arbitration. Given the strong policy favoring arbitration, this determination must be made first. Thereafter, however, Hat Creek may pursue its state claims for negligent misrepresentation and deceit in the circuit court, as those claims are beyond the narrow scope of the arbitration clause. Accordingly, I conclude that although arbitration must take place first, Hat Creek may pursue its tort claims against IGF once arbitration is completed and it has complied with all of the policy provisions. Both the federal case law and the plain language of the contract support this conclusion.

Hannah, J., joins in this concurrence.

       The Act then goes on to provide that certain acts of Congress (specifically, the Sherman Act, the Clayton Act, and the Federal Trade Commission Act, as amended [15 U.S.C.A. 41 et seq.])} “shall be applicable to the business of insurance to the extent that such business is not regulated by State law.”

       Following amendments to the FCIA, 7 U.S.C. § 1506(k) is now codified at § 1506(1).


source: Caselaw Access Project

author: DONALD L. CORBIN, Justice.

license: Public Domain

text:
    Robert L. FAIRCHILD v. STATE of Arkansas
    CR 01-856
    76 S.W.3d 884
    Supreme Court of Arkansas
    Opinion delivered June 6, 2002

      John W. Cone, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   DONALD L. CORBIN, Justice.

Appellant Robert L. Fairchild appeals the order of the Jefferson County Circuit Court convicting him of attempted capital murder and possession or use of a weapon by an incarcerated person. Appellant raises two points for reversal: (1) there was insufficient evidence supporting his conviction on the attempted capital murder charge; and (2) the trial court erred in denying his motion to suppress statements made to a corrections officer. As Appellant was sentenced to a term of life imprisonment, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We find no error and affirm.

On the evening of June 17, 1999, Appellant was involved in an altercation with James Cannon. At that time, Appellant was an inmate in the Arkansas Department of Correction’s Tucker Maximum Security Unit, and Cannon was a correction’s officer at the prison. Appellant was transferred to Tucker from the Cummins Unit on August 23, 1990, where he was placed in administrative segregation until February 17, 1999. Fie was then assigned to be a barracks’ porter on April 28, 1999, meaning that he was responsible for cleaning and sweeping the barracks that housed some of the inmates.

On the night of the altercation, Cannon reported to work for the evening shift and was informed by another officer, Anthony Ward, that Appellant had come to him complaining about a disciplinary report Cannon filled out on Appellant. According to Ward, Cannon stated that he would look into the matter and then left to conduct a security check of the barracks. He entered the barracks area where Appellant was sweeping. According to Ward, who was monitoring the prisoners from a control booth adjacent to the barracks, Appellant suddenly started running toward Cannon. When Cannon turned around, Appellant began punching him in the stomach and eventually grabbed his flashlight. Thereafter, Appellant began striking Cannon repeatedly in the head with the flashlight. According to Ward, Appellant struck Cannon in the head at least ten times. When Appellant finally stopped hitting Cannon, he started to drag his body across the barracks’ floor, but then dropped him and began rummaging through Cannon’s pockets.

Ward requested backup assistance from other officers. The officers were initially unable to access the area where Appellant and Cannon were, because when Cannon entered the barracks he left an inner door slightly open, causing the prison’s security system to automatically lock the outer door. Once a supervisor arrived with an override key, officers gained access to Cannon and Appellant. Cannon was rescued and carried to the infirmary for medical treatment.

Two of the officers who responded to Ward’s request for assistance were Delma Goldman, building supervisor, and David Knott, a correction’s sergeant. According to Knott, when they arrived at the barracks, he witnessed Appellant running back and forth on the second level of the barracks. Then, Appellant approached Knott and Goldman, surrendering the flashlight that he had taken from Cannon, as well as a shank that he was carrying. Appellant was then handcuffed and initially taken to the infirmary as well, but was moved to a nearby office until Cannon was transported from the infirmary. Knott then attempted to place leg restraints on Appellant and was kicked by him in this process.

When Appellant was finally taken to the infirmary for treatment of injuries sustained while being restrained, he asked to speak with Goldman. Appellant initially asked Goldman if Cannon was dead, and Goldman replied that he did not know. Appellant then stated, “I’m tired of being here. I was trying to go out like my big brother. ... I was trying to kill him and the peckerwood wouldn’t die.” Appellant’s reference to his “big brother” was to Barry Lee Fairchild, another inmate who was executed by the State for the capital murder of Marjorie Mason.

Cannon was transported to the University of Arkansas for Medical Sciences in Little Rock for treatment of serious head injuries. He was rushed into emergency surgery, and according to his treating physician, Dr. Mark Linskey, Cannon was initially given a twenty percent chance of survival. Linskey explained that Cannon’s scalp was broken in several places, his brain was bruised and damaged, and he was in a “severe head injury comatose state.” Cannon survived this brutal ordeal, but suffered permanent damages as a result of his injuries. Doctors had to remove a portion of his brain in order to facilitate the brain’s healing process. This damaged some of Cannon’s cognitive abilities, leaving him sometimes unable to control his normal social inhibitions, which, in turn, causes uncontrollable and inappropriate outbursts. Cannon is also no longer able to see out of his right eye, and the left side of his body is extremely weak. He must walk with a cane, but fatigues easily and thus relies mostly on a wheelchair. He also requires assistance in completing daily living tasks.

Appellant was charged with one count each of attempt to commit capital murder; aggravated robbery; battery in the second degree; and possession or use of a weapon by an incarcerated person. A jury trial was held on November 21, 2000. During a recess in the trial, the court held a Denno hearing to consider Appellant’s pretrial motion to suppress. The motion sought to exclude the statements Appellant made to Goldman in the infirmary following his attack on Cannon. According to Appellant, the statements were inadmissible because he was not advised of his Miranda rights, despite the fact that he was in custody at the time the statements were made; he did not knowingly and intelligently waive his right against self-incrimination; and the statements were not made voluntarily.

At the Denno hearing, Appellant presented the testimony of Goldman in an attempt to prove that the statements were the result of a custodial interrogation. Goldman testified that he had known Appellant for several years and that the two “were as close, I think, as an officer could be to an inmate.” Goldman stated that Appellant had been seen by the infirmary staff and while waiting for further treatment, Appellant asked Goldman if he could speak with him. Goldman then removed the handcuffs that had been placed on Appellant following the altercation with Cannon. When questioned as to why he removed the handcuffs, Goldman responded:

We had just had a major incident. And inmates in the infirmary are required to be placed in handcuffs, but this inmate had made a request that he wanted to speak with me. And I thought that he would probably say something to me that would shed some light on the incident. And I thought that if I removed the handcuffs he would open up and probably say more than he would if he had remained in handcuffs.

Goldman then stated that Appellant made the statements about trying to kill Cannon and wanting to go out like his big brother. Goldman reiterated that Appellant made his statements without any questioning or encouragement on his part. Goldman admitted that he did not advise Appellant of his Miranda rights, and that Appellant was not free to leave the infirmary at the time that he made the incriminating statements. Goldman also stated, however, that he was not trying to investigate Appellant at the time the statements were made. He only asked him why he had done it in response to Appellant’s incriminating statements. Goldman also explained that the Arkansas State Police were called in that night to investigate the incident.

Goldman was the only witness to testify at the Denno hearing. Appellant did not testify, or put on any evidence regarding the events that occurred after the officers subdued him. The State argued that there was no Miranda violation because there had been no custodial interrogation. The State contended that the statements were spontaneously made and voluntary on Appellant’s part. The trial court agreed, ruling that the statements were admissible because they were initiated by Appellant.

During Appellant’s trial, witnesses recounted the events leading up to and surrounding the altercation. Goldman testified to the statements Appellant made in the infirmary. Officers Knott and David Westbrook, both of whom were involved in subduing Appellant after the altercation, testified that they were present in the infirmary when Appellant made the incriminating statements. Each of them testified that they heard Appellant state that he was trying to kill Cannon and go out like his brother.

At the close of the State’s case, Appellant moved for a directed verdict on each of the charges. The court directed a verdict in Appellant’s favor on the charges of battery in the second degree and aggravated robbery. As to Appellant’s argument that the State had failed to make a prima facie showing of premeditation and deliberation, the trial court disagreed and denied his motion on that charge, as well as on the weapons charge. The defense rested without putting on any evidence, and the case was submitted to the jury. The jury subsequently rendered a guilty verdict on the two remaining charges, and Appellant was sentenced to a term of life imprisonment. This appeal followed.

Sufficiency of the Evidence

For his first point on appeal, Appellant argues that it was error for the trial court to deny his motions for a directed verdict, as there was insufficient evidence to establish that he acted with premeditation or deliberation. Specifically, Appellant argues that if the incriminating statements made in the infirmary are excluded, as argued in his second point on appeal, there is no evidence to support the attempted capital murder charge. We disagree.

We are mindful of the well-established standard of review in cases challenging the sufficiency of the evidence. This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001); Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a fight most favorable to the State and consider only the evidence that supports the verdict. Id.; Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Id. Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).

Pursuant to Ark. Code Ann. § 5-10-101(a)(4) (Repl. 1997), a person commits capital murder if “[w]ith the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.” This court has held that premeditation is not required to exist for any particular length of time. Branscum, 345 Ark. 21, 43 S.W.3d 148; McFarland v. State, 337 Ark. 386, 989 S.W.2d 899, cert. denied, 528 U.S. 933 (1999). It may be formed in an instant and is rarely capable of proof by direct evidence, but must usually be inferred from the circumstances of the crime. Bangs, 338 Ark. 515, 998 S.W.2d 738; Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). Similarly, premeditation and deliberation may be inferred from the type and character of the weapon, the manner in which the weapon was used, the nature, extent, and location of the wounds, and the accused’s conduct. Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000).

Fiere, the State presented evidence that Appellant was upset with Cannon prior to the altercation. Ward testified that Appellant approached him and complained that Cannon had written a disciplinary against him. Appellant stated that he wanted Cannon to get rid of the disciplinary and leave him alone. Shortly after this discussion with Ward, Appellant attacked Cannon. Appellant used the flashlight that he grabbed from Cannon to inflict repeated blows to Cannon’s head. The jury also heard testimony that Appellant was armed with a shank, a type of homemade weapon, at the time of the attack. Moreover, the vicious nature of the attack alone establishes premeditation and deliberation on Appellant’s part. Ward testified that Appellant struck Cannon in the head at least ten times. Dr. Linslcey testified about the numerous fractures in Cannon’s scalp and the severe swelling of Cannon’s brain. Initially, Dr. Linskey rated Cannon’s chance of survival at only twenty percent.

In Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997), this court recognized that a jury could reasonably infer from the numerous blunt-force injuries to the victim’s head that the defendant had acted with the purpose of causing the victim’s death. Likewise, in the present case, this jury could infer from the repeated blows inflicted on Cannon and the severe blunt-force injuries to his head that Appellant acted with premeditation and deliberation when he attempted to murder Cannon.

Moreover, the jury’s verdict was supported by sufficient direct evidence in the form of Appellant’s incriminating statement that he tried to kill Cannon. As we will discuss in point two, these statements were properly admitted at trial. All of the foregoing evidence, viewed in a light most favorable to the State, supports the jury’s determination that Appellant acted with premeditation and deliberation when he attacked Cannon. Therefore, Appellant’s argument that there was insufficient evidence to sustain his conviction is without merit.

Motion to Suppress

For his second point on appeal, Appellant argues that the trial court erred in denying his motion to suppress the statements he made to Goldman in the infirmary, because he was in custody at the time the statements were made, but was not advised of his Miranda rights prior to making those statements. Appellant further argues that a custodial statement is presumptively involuntary, and the State failed to bear its burden of proving that his statement was given voluntarily. The State counters that the statements were spontaneous and voluntary, and not the product of a custodial interrogation. Thus, according to the State, Appellant’s statement was admissible. We find no merit in Appellant’s argument on this point.

In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, viewing the evidence in a light most favorable to the State, and we reverse only if the ruling is clearly against the preponderance of the evidence. Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001); Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the appellant’s in-custody confession is for the trial judge to determine, and we defer to the trial judge’s superior position in determining matters of witness credibility. Id.

As an initial matter, we address the State’s argument that Appellant, although in prison at this time, was not in custody for purposes of Miranda v. Arizona, 384 U.S. 436 (1966), and thus, it was unnecessary to advise Appellant of his rights. This argument is wholly without merit. This court has defined “in custody” as a person being deprived of his freedom of action by formal arrest or restraint on freedom of movement to a degree associated with a formal arrest. See Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996). The record reflects that Appellant was in the prison’s infirmary, surrounded by four officers, and was not free to leave; thus, there can be no dispute that Appellant was in custody at the time he made the incriminating statements to Goldman.

Flaving determined that Appellant was in custody at the time he made the incriminating statements, we now turn to our well-established principles regarding custodial statements. We have held that an accused’s statement made while in custody is presumed involuntary, and the State bears the burden of proving by a preponderance of the evidence that it was given voluntarily and was knowingly and intelligently made. Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001); Barcenas v. State, 343 Ark. 181, 33 S.W.3d 136 (2000); Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). “[W]henever the accused offers testimony that his confession was induced by violence, threats, coercion, or offers of reward then the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence.” Smith v. State, 254 Ark. 538, 542, 494 S.W.2d 489, 491 (1973). See also Brown, 347 Ark. 44, 60 S.W.3d 422; Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997); Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995); Remeta v. State, 300 Ark. 92, 777 S.W.2d 833 (1989); Williams v. State, 278 Ark. 9, 642 S.W.2d 887 (1982); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979), cert. denied, 446 U.S. 938 (1980); Gammel v. State, 259 Ark. 96, 531 S.W.2d 474 (1976); Russey v. State, 257 Ark. 570, 519 S.W.2d 751 (1975); Northern v. State, 257 Ark. 549, 518 S.W.2d 482 (1975); Smith v. State, 256 Ark. 67, 505 S.W.2d 504 (1974). A defendant’s failure to specifically raise the issue in the trial court or on appeal does not relieve the state of its burden to produce all material witnesses. See Brown, 347 Ark. 44, 60 S.W.3d 422; Smith, 256 Ark. 67, 505 S.W.2d 504. In Brown, this court stated:

[W]e held in the earlier Smith case that, whenever the accused introduced evidence of coercion, the burden of the state could only be met by calling all material witnesses or giving adequate explanation for the absence of any who did not testify. Nowhere in Smith does it appear that, in making an objection based upon a contention the state has failed to show a statement is involuntary, a defendant must point out, in precise words, that a material witness was not called.

Id. at 50, 60 S.W.2d at 426-27 (quoting Smith, 256 Ark. at 70, 505 S.W.2d at 507-08).

In the instant action, Appellant contends that the State failed to meet its burden of proof in the Denno hearing. Although Appellant does not specifically argue that the State failed to meet its burden to produce all the witnesses to the statement or explain their absence, we will address this issue in accordance with the long-standing ruling first announced in Smith.

Here, the trial court held the Denno hearing after the trial of this matter had begun. Goldman was the only witness to testify at the hearing, despite the fact that Knott and Westbrook were both present at the trial and both testified that they heard Appellant make the incriminating statement to Goldman. While we agree with Appellant that the State bears the burden of producing all material witnesses, it is also well established that such a burden does not arise where there is no evidence to controvert. See Tanner v. State, 259 Ark. 243, 532 S.W.2d 169 (1976);Gammel, 259 Ark. 96, 531 S.W.2d 474 (1976); Smith, 256 Ark. 67, 505 S.W.2d 504. In Tanner, this court explained that the requirement that the State produce all material witnesses connected with a controverted confession was in place because otherwise the evidence regarding threats, coercion, or promises of leniency would stand uncontroverted. Here, there was no such evidence to stand uncontroverted.

Goldman’s testimony centered on the fact that Appellant asked to speak with him and made the incriminating statement spontaneously. At the beginning of his testimony, Goldman explained that Appellant had been handcuffed and taken to an office until Cannon was removed from the infirmary. Goldman also stated that Appellant asked to speak with him in the infirmary after he had been treated by the staff. There was no testimony presented to indicate that Appellant made the incriminating statement as a result of violence, threats, coercion or offers of reward. In fact, Appellant did not testify at the Denno hearing and made no allegations regarding the taking of his statement. Moreover, even in his motion to suppress, Appellant simply states that his statement was the “result of coercion, physical intimidation, and/ or unauthorized promises of leniency[.]” There was no specific evidence submitted to support this assertion. In Gammel, 259 Ark. 96, 531 S.W.2d 474, this court refused to extend the requirement that the State produce all material witnesses where there was no testimony to refute. Likewise, we refuse to extend the requirement in this case, as there was no testimony from Appellant or any other witness that his statement was the result of coercion, threats, or promises of leniency. In sum, the State was not obligated to produce Knott and Westbrook or explain their absence. Notwithstanding, we cannot ignore the fact that both of these witnesses were present at the proceeding and were available to testify about the confession.

Our inquiry does not end here, however. The next issue to be resolved is whether Appellant’s statement was spontaneous or the result of a custodial interrogation. It is well settled that a suspect’s spontaneous statement, although made in police custody, is admissible against him. Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988); Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988). Where the statement was spontaneous, it is irrelevant whether the statement was made before or after Miranda warnings had been issued, and whether the defendant was in custody at that point. See Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996); Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995); Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992). A spontaneous statement is admissible because it is not compelled or the result of coercion under the Fifth Amendment’s privilege against self-incrimination. Stone, 321 Ark. 46, 900 S.W.2d 515. As we pointed out in Stone, the Miranda Court itself recognized this rule of law when it stated: “Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” Id. at 53, 900 S.W.2d at 519 (quoting Miranda, 384 U.S. at 478).

In determining whether a defendant’s custodial statement was spontaneous, this court focuses on whether it was made in the context of a police interrogation, meaning direct or indirect questioning put to the defendant by the police with the purpose of eliciting a statement from the defendant. Stone, 321 Ark. 46, 900 S.W.2d 515; Scherrer, 294 Ark. 287, 742 S.W.2d 884. In Weber, 326 Ark. 564, 933 S.W.2d 370, this court referred to the United States Supreme Court’s discussion of what constitutes an interrogation:

[T]he term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Id. at 569, 933 S.W.2d at 373 (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). Similarly, this court has stated that a statement made voluntarily while in custody does not become the product of a custodial interrogation where an officer asks the defendant to explain or clarify something he already said. Stone, 321 Ark. 46, 900 S.W.2d 515.

Here, Goldman testified that Appellant asked to speak with him and that he made the incriminating statements without prompting or questioning by Goldman. The evidence indicated that the two men had known each other for some time and had developed a close relationship. Goldman stated that he believed that Appellant trusted him. Goldman did not ask Appellant any questions until after Appellant made the incriminating statements. Goldman also testified that he was not investigating Appellant at the time the statements were made, and, in fact, the State Police were brought in that evening to conduct the investigation. The fact that Goldman removed Appellant’s handcuffs is of no consequence when Goldman did not question Appellant in an attempt to elicit incriminating statements. In sum, it was not necessary for Goldman to advise Appellant of his Miranda rights, as his statements were not the product of a custodial interrogation. Accordingly, we cannot say that the trial court abused its discretion in denying Appellant’s motion to dismiss.

Rule 4-3 (h) Review

In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the transcript of the record before us has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no reversible errors were found. Accordingly, the judgment of conviction is affirmed.


text:
    Sonny HOLMES and Murry Holmes v. Charlie McCLENDON Jr. and the Estate of Brenda Lee Holmes McClendon, Deceased

    01-1303
    76 S.W.3d 836
    Supreme Court of Arkansas
    Opinion delivered June 6, 2002

      Butler, Hicky, Long & Harris, by: Fletcher Long, Jr., for appellants.

      Easley, Hicky & Hudson, by: B. Michael Easley, for appellees.
   DONALD L. CORBIN, Justice.

This appeal involves an alleged conflict of interest resulting from one attorney’s representation of competing interests in a wrongful-death action. On August 21, 1999, Appellee Charlie McClendon Jr. was severely injured in a head-on collision that also took the lives of his wife, Brenda Lee Holmes McClendon, and his minor daughter, Kayla McClendon. Charlie was appointed as personal representative and administrator of his wife’s and daughter’s estates by the St. Francis County Probate Court. Charlie hired attorney B. Michael Easley to represent him, individually, in a personal-injury suit against the tortfeasors and to represent the beneficiaries of his wife’s and daughter’s estates in wrongful-death actions. Easley’s proposed contingency fee was subsequently approved by the probate court.

Easley was successful in procuring a total settlement of $1,100,000 from the tortfeasors and insurance carriers. Of the settlement, Charlie received $440,000 for his personal-injury claim. Brenda’s estate received an equal amount, $440,000, for her wrongful death, and Kayla’s estate received $220,000. Charlie was the sole beneficiary of his daughter’s estate; thus, he received the entire settlement, minus attorney’s fees. There were four additional beneficiaries of his wife’s estate, namely Brenda’s parents, Appellants Sonny and Murry Holmes, and Brenda’s sisters, LaNan Holmes Kennedy and Lou Holmes Blaylock. The setdement awarded to Brenda’s estate was eventually distributed by the St. Francis County Circuit Court, which presided over the wrongful-death action, one-half to Charlie and one-half to the Holmeses. Easley was awarded a fee from the total settlement by the probate court. The Holmeses objected to Easley receiving any fee from their portion of the setdement. They argued that Easley had not adequately represented their interests as beqeficiaries of Brenda’s estate, and that a conflict of interest had arisen as a result of Easley’s representation. The probate court found that there was no conflict of interest; however, the court reduced the percentage of Easley’s fee due from the Holmeses’ portion by twenty-five percent.

On appeal, the Holmeses argue that the probate court erred in finding that there was no conflict of interest and in ordering them to pay a portion of their settlement proceeds to Easley for his attorney’s fee. Charlie raises one point on cross-appeal, that the probate court erred in reducing the Holmeses’ portion of Easley’s fee by twenty-five percent. This appeal was certified to us pursuant to Ark. Sup. Ct. R. 1-2(a) (5), as it presents an issue regarding the practice of law. We review probate proceedings de novo, but we will not reverse the decision of the probate court unless it is clearly erroneous. See Mayberry v. Flowers, 347 Ark. 476, 65 S.W.3d 418 (2002); Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001). When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Id. We find no error and affirm.

Conflict of Interest

For reversal, the Holmeses argue that the probate court erred in awarding Easley attorney’s fees from their portion of the recovery for Brenda’s wrongful death. They claim that he is not entitled to any fee because he was representing conflicting interests. They allege two distinct conflicts. First they claim that a conflict arose during the procurement of the settlement, due to Easley’s simultaneous representation of Charlie, individually, and as personal representative of both Brenda’s and Kayla’s estates. They argue that because there was a finite amount of money available to pay all three claims, each dollar that Charlie received for his personal claim and as the sole beneficiary of Kayla’s estate would necessarily diminish the amount available for distribution to the other beneficiaries of Brenda’s estate. Second, they assert that a conflict arose during the distribution of the proceeds awarded to Brenda’s estate. They argue that Easley was not adequately representing the interests of all the beneficiaries.

Charlie argues that both conflict-of-interest arguments are unfounded. He contends that the arguments are merely an attempt by the Holmeses to relieve themselves of having to pay Easley’s fee on top of the contingency fee that they agreed to pay their separate attorney, Fletcher Long Jr. He points to the fact that from the outset of the probate case, the Holmeses have contended that they should be allowed to retain their own independent counsel to procure a separate settlement of the wrongful-death suit, and that they should only be responsible for paying their attorney’s fee. He further contends that no conflict, legal or factual, arose until after the settlement had been procured and distribution was begun. We agree.

Arkansas Code Annotated § 16-62-102(b) (Supp. 2001) provides that every wrongful-death action shall be brought by and in the name of the personal representative of the deceased person; if there is no personal representative, then the action shall be brought by the heirs at law of the deceased person. It is the duty of the personal representative, not the beneficiaries, to choose counsel to pursue a wrongful-death claim. Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990). The beneficiaries are free to select their own counsel to see that their interests are protected; however, they must bear this expense in addition to any fee awarded to counsel chosen by the personal representative. Id. In fact, the probate court lacks jurisdiction to award any attorney’s fees for services rendered to an individual beneficiary. Id. There are, however, alternative ways to protect the interest of the beneficiaries, without requiring them to pay for separate counsel:

Should the personal representative or chosen counsel fail to provide adequate representation, application can be made to the probate court to either not approve or disallow the contracts entered into by the representative. In fact, a representative can even be removed if the court finds him or her unsuitable. Ark. Code Ann. § 28-48-105 (1987).

Id. at 363, 784 S.W.2d at 159 (emphasis added).

It is inevitable that potential conflicts of interest frequently will arise between beneficiaries in wrongful-death actions. See Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991). This court has previously observed:

In view of the statutory priorities for selection of personal representative, it is likely that the personal representative will be a beneficiary who may have to share a limited recovery with others. Although counsel is hired by the personal representative, the wrongful death action is brought, in effect, on behalf of the beneficiaries. Clearly counsel owes a duty to present the claim of each beneficiary fairly and should not attempt to get a more favorable distribution for one at the expense of another.

Id. at 373, 803 S.W.2d at 501. Notwithstanding the potential for conflict in such situations, this court has previously recognized that simultaneous representation of the personal representative and the surviving relatives, in and of itself, does not amount to a conflict of interest, such that the beneficiaries would be entitled to separate representation in a wrongful-death claim. Brewer, 301 Ark. 358, 784 S.W.2d 156. Rather, there must be positive proof that the beneficiaries’ interests were not adequately represented by the personal representative. Id.

In Brewer, as an example of positive proof of inadequate representation, this court cited a decision from the Illinois Court of Appeals, Johnson v. Village of Libertyville, 150 Ill. App. 3d 971, 502 N.E.2d 474 (1986), overruled on other grounds in Mio v. Alberto-Culver Co., 306 Ill. App. 3d 822, 715 N.E.2d 309 (1999). In Johnson, the decedent’s surviving spouse, as personal representative, filed a wrongful-death suit; however, the complaint did not include a count for loss of society by the decedent’s parents. The parents filed a motion to intervene, alleging that there was a conflict between their interests and those of the personal representative, since his interest was in maximizing his degree of dependency and loss of consortium, while minimizing their claim for loss of society. The Illinois appellate court held that the parents had a right to intervene, because it was clearly shown that the personal representative, by failing to acknowledge the parents’ claim, had acted in a manner indicating that he would not adequately represent the interests of the parents.' The court held:

[T] he mere fact that the administrator as surviving spouse had a personal interest in the outcome of this Wrongful Death action is not so conflicting, nor an interest so adverse to that of the petitioners that both cannot be adequately represented by the plaintiff .... [W]e do not find that there is a conflict of interest simply because the heirs and the personal representative might have interests that conflict in the wrongful death award. In other words, intervention is permitted here only because there is positive proof that the next of kin will not be adequately represented.

Brewer, 301 Ark. at 364, 784 S.W.2d at 159-60 (emphasis added) (quoting Johnson, 150 Ill. App. 3d at 975-78, 502 N.E.2d at 477-79). With the foregoing precedent in mind, we review the relevant facts presented in this case.

On December 2, 1999, the probate court appointed Charlie as personal representative and administrator of his wife’s estate and authorized him to pursue a wrongful-death action on behalf of the beneficiaries. Charlie retained Easley as counsel to pursue the wrongful-death action. The Holmeses did not object to Charlie’s appointment, nor did they contest his right, as personal representative, to retain counsel to pursue the wrongful-death action. However, they asked the probate court to allow them to retain their own separate counsel, Long, to present their separate claims against the tortfeasors. They also asked to be allowed to have a separate compensation agreement with their counsel, such that they would only be responsible for paying Long’s fee and not Easley’s.

The probate court denied the Holmeses’ requests, concluding that it is the right and duty of the personal representative, not the beneficiaries, to choose counsel and pursue a wrongful-death claim. The court permitted the Holmeses, as statutory beneficiaries, to select their own counsel to see that their interests were protected, but the court ruled that they must bear those costs themselves. The order reflected that the attorney’s fees approved by the court would only address those fees for Easley, as he was the attorney chosen by the personal representative. The probate court later approved a contingency fee of twenty-five percent of any settlement to Easley, with the percentage increasing if the case was tried and appealed.

Some time in March 2000, Easley secured the maximum amount of recovery from the tortfeasors, in the amount of $1,000,000. He later succeeded in recovering the limits of Charlie’s and Brenda’s underinsured-motorist coverage, in the amount of $100,000. Easley proposed a settlement of the $1,100,000 as follows: Charlie would be awarded $440,000 for his injuries; Brenda’s estate would be awarded $440,000, for her wrongful death; and Kayla’s estate would be awarded $220,000, for her wrongful death. Easley also proposed that the amount awarded to Brenda’s estate be distributed three-fourths to Charlie and one-fourth to the Holmeses, with Easley’s fee being assessed on the entire settlement. The Holmeses rejected the distribution offer.

Because the Holmeses had rejected the proposed distribution, Easley filed a petition on March 17, 2000, asking the circuit court to distribute the settlement funds in Brenda’s estate amongst the statutory beneficiaries, pursuant to section 16-62-102(g). On April 11, 2000, Easley withdrew from his representation of Charlie individually and agreed not to participate in the circuit court hearing on the issue of distribution. Attorney Dan Felton then entered his appearance as counsel for Charlie.

On April 26, 2000, Easley filed in the probate court a petition for authority to settle the wrongful-death claim for Brenda’s estate. The petition sought approval to settle the wrongful-death claim for $400,000, payable from the tortfeasors, and $40,000, payable from the underinsured-motorist carrier. The petition also sought the preapproved attorney’s fee of twenty-five percent and costs of $1,396.87. The petition asked that the fee and costs be paid immediately, but that the remainder of the funds be used to purchase a certificate of deposit, so that it would draw interest until the circuit court could determine the amounts to be distributed to each of the statutory beneficiaries.

On May 5, 2000, the Holmeses filed in the probate court a petition to have Easley removed from his representation of Brenda’s estate on the ground that a conflict existed between the beneficiaries’ interests and Charlie’s personal interest. The petition did not allege any specific wrongdoing or misconduct on Easley’s part, only that:

There is a limited amount of money available for distribution among Mr. McClendon, individually, and the two McClendon Estates. There is a conflict of interest for any lawyer to try to represent all three entities as their interests compete.

On May 18, 2000, the probate court held a hearing on the petition to settle Brenda’s estate. During the hearing, counsel for the Holmeses informed the court that the Holmeses did not “have any objection to the settlement as such,” but that they would like for Easley to explain the requested costs and present “some proof of the reasonableness of the attorney’s fees.” The probate court then allowed Long to question Easley about his fees. At one point during the exchange, Long asked Easley what percentage of his time spent on Brenda’s wrongful-death claim was “devoted to maximizing the amount of money that Charlie is going to receive from that estate and at the same time minimizing the amount of money that your other clients, the Holmesfes], are going to receive as a result of that settlement?” Easley responded “Twenty percent. Something like that.” Long then suggested that the Holmeses were, in effect, being asked to pay Easley, out of their share of the recovery, for his efforts in actually diminishing what they were to recover. Easley responded that he supposed that was right. Later, the probate court allowed Easley an opportunity to explain the situation, wherein he stated:

[T]he position taken by the Holmesfes] in this matter has been unreasonable and has caused us huge delay .... All along, Your Honor, we have had to . . . butt up against arguments that flew in the face of the law. Fletcher and the Holmesfes], from the very beginning, have taken the position that they are entitled not to have a fee assessed on their portion of any settlement and the law is absolutely contrary. ... I would not have had to do virtually any of the work that I had to do in that 25% of the time that I [was] having to work versus them. . . . And so my testimony to you is, Your Honor, is that virtually every bit of the time that I have had to spend as Fletcher indicates in opposition to the Holmesfes]’ position has been because those positions of the Holmesfes] have been contrary to law and, in my opinion, unreasonable.

At the conclusion of the hearing, the probate court ruled that the overall contingency fee of twenty-five percent was appropriate. However, because Easley admitted that twenty-five percent of his time was spent in opposition to the Holmeses, his fee derived from their portion of the settlement would be reduced by twenty-five percent, such that the Holmeses would only pay Easley a fee of eighteen and three-fourths percent. A written order was entered on June 1, 2000, wherein the probate court authorized the settlement of the wrongful-death claim in the amount of $440,000 and awarded Easley a twenty-five percent fee, except that the fee assessed on the Holmeses’ portion would be reduced by twenty-five percent.

A hearing was subsequently held in the circuit court regarding distribution of the settlement awarded to Brenda’s estate. Initially, in January 2001, the circuit court awarded Charlie $200,000 and the Holmeses’ $240,000. However, the parties later agreed to split the settlement equally, with Charlie receiving $220,000 and the Holmeses receiving $220,000. An order reflecting this setdement was entered by the circuit court on February 20, 2001.

Despite the fact that the parties had agreed to the amounts distributed, the Holmeses still contested the issue of Easley’s attorney’s fees. On March 29, 2001, another hearing was held in the probate court, wherein the Holmeses again contended that their share of Brenda’s estate should not be reduced by any amount of attorney’s fees due Easley. They again claimed that Easley had not represented their interests in the same way that he had represented Charlie’s and that, accordingly, Easley’s representation of both Charlie, individually, and as the personal representative of Brenda’s estate, created a conflict of interest. They asserted that because there was a conflict of interest, Easley was entitled to no fee from them.

The probate court disagreed with the Holmeses and entered an order in favor of Charlie and Easley on July 26, 2001. The probate court found that Easley was entitled to a fee from the entire settlement for bringing the litigation to a successful conclusion and securing the maximum amount available from the tortfeasors and the insurers. The probate court ruled that no conflict of interest existed. In arriving at this conclusion, the court made the following findings: (1) Easley was successful in procuring a fair settlement with the tortfeasors; (2) the settlements of both Brenda’s and Kayla’s estates were approved by the probate court; (3) no factual conflict arose until after the settlement was procured and approved; (4) the conflict was only as to the distribution of the settlement amongst the beneficiaries; and (5) Easley removed himself from representing Charlie, individually, and advised Charlie to hire other counsel once the conflict over distribution of the proceeds became apparent. The. court’s order reflects in pertinent part:

9. This court cannot find sufficient evidence to support a finding that there was, or is, a conflict on the part of Mr. Easley. As stated, he was successful in securing a fair settlement on behalf of all three claimants. The controversy arose over the distribution of proceeds in Brenda’s estate. Mr. Easley stepped aside at that point. Mr. Long protected the interests of the Holmesfes].

Based on these findings, the probate court upheld its previous ruling that Easley was entitled to a contingency fee based on the entire settlement, except that the fee due from the Holmeses’ portion would be reduced by twenty-five percent.

We cannot say that the probate court’s findings are clearly erroneous. Our case law has consistently held that the personal representative, and only the personal representative, may bring a wrongful-death action and may choose an attorney to pursue such action. See Brewer, 301 Ark. 358, 784 S.W.2d 156; Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985). Our case law has also held that should the individual beneficiaries feel that their interests are not adequately protected by the personal representative and the attorney chosen by the personal representative, they may hire their own attorney, but at their own expense. Brewer, 301 Ark. 358, 784 S.W.2d 156. In accordance with our case law, the Holmeses were fully informed at the outset that, although they had the right to hire their own attorney to protect their interests, they would be responsible for paying him, above and beyond the fee that would be paid to Easley. Notwithstanding, the Holmeses chose to hire their own counsel. By later raising the conflict-of-interest issue, the Holmeses were apparently seeking to do indirectly that which they were not able to do directly.

On the issue of conflict of interest, the Holmeses have failed to present positive proof that Easley was not adequately representing all the beneficiaries in pursuing the wrongful-death claim. Unlike the example relied upon in Brewer, 301 Ark. 358, 784 S.W.2d 156, the wrongful-death suit filed by Easley on behalf of Brenda’s estate acknowledged the Holmeses’ claim and reflected that they had endured mental anguish, grief, and despair over the loss of their daughter and would continue to experience the same in the future. The Holmeses presented no proof showing that Easley was not acting on behalf of all the beneficiaries in procuring the settlement from the tortfeasors and insurers.

Indeed, they did not make any real assertion of a conflict of interest until after the settlement had been procured, when the dispute arose as to the distribution of the funds awarded to Brenda’s estate. Prior to that time, the Holmeses had merely taken the position that a potential for conflict existed. As stated above, the potential for conflicts is present in many wrongful-death cases, as the personal representative will often be a statutory beneficiary. We agree with the probate court, however, that the attorney’s fees awarded in this case were earned by Easley in the procurement of the favorable settlement on behalf of Brenda’s estate. Thus, by the time that the Holmeses actually alleged that a conflict of interest existed, Easley had already earned his fee. The fact that a dispute later arose as to distribution of the settlement proceeds in no way diminishes Easley’s efforts in securing the settlement. See Standridge, 304 Ark. 364, 803 S.W.2d 496 (holding that the fee was earned by the attorneys in pursuing the wrongful-death action, and not in the manner in which they proposed division or distribution of the recovery).

In sum, we affirm the probate court’s finding that no legal conflict of interest existed from Easley’s simultaneous representation of Charlie, individually, and as the personal representative of both his wife’s and daughter’s estates. Indeed, even when a factual dispute arose as to distribution of the settlement proceeds, the record is clear that Easley withdrew from his representation of Charlie and stepped aside so that the circuit court could fix the share of each beneficiary. Accordingly, we cannot say that the probate court erred in awarding Easley a contingency fee from the total settlement, including that portion distributed to the Holmeses. We thus affirm on this issue.

Cross-Appeal

For his point on cross-appeal, Charlie argues that the probate court erred in reducing Easley’s fee on that portion of the wrongful-death proceeds awarded to the Holmeses. The decision to award attorney’s fees and the amount of an award are discretionary determinations that will be reversed only if the appellant can demonstrate an abuse of discretion. See Boatmen’s Trust Co. v. Buchbinder, 343 Ark. 1, 32 S.W.3d 466 (2000); Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998); Security Pac. Housing Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). Due to the trial judge’s intimate acquaintance with the record and the quality of service rendered, we usually recognize and defer to the superior perspective of the trial judge in assessing the applicable factors. Id.

As discussed above, the probate court initially approved the fee proposal filed by Easley, wherein he would receive a contingency fee of twenty-five percent, if the matter did not go to trial; thirty-three and one-third percent, if the matter was tried; and forty percent, if the matter was appealed. A written order reflecting as much was entered in February 2000. In April 2000, Easley filed a petition seeking authority to settle the wrongful-death suit filed on behalf of Brenda’s beneficiaries for $440,000. Easley claimed that he was entitled to a fee of twenty-five percent of the settlement.

A hearing was held in the probate court on May 18, 2000, during which the Holmeses subsequently challenged the reasonableness of Easley’s twenty-five percent fee. It was during this hearing that Long elicited testimony from Easley to the effect that twenty-five percent of Easley’s time on the case had been spent in opposition to the actions taken by the Holmeses, which Easley contended was a direct result of the Holmeses taking positions that were contrary to the law.

Based on Easley’s testimony, the probate court ruled that the overaE contingency fee of twenty-five percent was appropriate. However, because Easley admitted that twenty-five percent of his time had been spent in opposition to the Holmeses, his fee derived from the Holmeses’ portion would be reduced and the Holmeses would only be required to pay a fee of eighteen and three-fourths percent from their portion. Given our standard of review of awards of attorney’s fees, we must affirm, as Easley has failed to demonstrate that the probate court abused its discretion in reducing that part of his fee due from the Holmeses. The probate judge was intimately acquainted with the record and the quality of service rendered, and we wiE defer to his superior perspective in assessing the fee.

Affirmed on direct appeal; affirmed on cross-appeal.

Glaze, J., would reverse on cross-appeal.

Imber, J., not participating.

       Although it is unclear from the record before us, it appears that Brenda’s sisters eventually withdrew any claims that they had to the wrongful-death settlement. Hence, they are not parties to this appeal.

       Interestingly, Easley had previously filed a petition in the circuit court seeking to have Long removed from the case on the ground that, for a period of several months, Long had represented Charlie in a custody matter while simultaneously representing the Holmeses in this matter.


author: ROBERT L. BROWN, Justice.

text:
    Teresa Ann COLE v. Allen LAWS, III, and Laws and Murdoch, P.A.
    01-1329
    76 S.W.3d 878
    Supreme Court of Arkansas
    Opinion delivered June 6, 2002
    [Petition for rehearing denied July 11, 2002.]

      Appellant, pro se.

      Wright, Lindsey & Jennings LLP, by: Bettina E. Brownstein, for appellees.

       Imber, J., not participating.

   ROBERT L. BROWN, Justice.

This is a legal malpractice case. Appellant Teresa Ann Cole is the former client of the appellees, Allen Laws, III, and his law firm, Laws and Murdoch, P.A. The two appellees will be referred to as Laws for purposes of this opinion. Ms. Cole appeals, pro se, the entry of partial summary judgment against her on her claim that Laws breached his fiduciary duty owed to her.

The present appeal arises from litigation commenced approximately eight years ago. On October 6, 1994, Terry Cole filed for divorce from his wife, Teresa Ann Cole. In March 1996, after firing prior counsel, Ms. Cole hired Laws to represent her. On June 4, 1996, the day of the final hearing 6n the divorce complaint, the Coles entered into a property settlement agreement.

On that date, the Coles and their attorneys met to reach a final agreement on the distribution of marital property, which was composed primarily of the Coles’ cattle ranch and livestock. According to Ms. Cole, the Coles’ accountant valued the real property at $269,000 and the livestock at $80,000. Thus, she maintained that the ranch was worth a total of $349,000. There were other marital assets as well. However, this appeal deals solely with the division of the ranch and the livestock.

The Coles decided to enter into a property settlement agreement in which they would share equally in the marital assets. To reach this equal division, Terry Cole would buy Ms. Cole’s interest in the ranch and livestock for half of the value. According to Ms. Cole, during the meeting, Terry Cole’s lawyer began negotiations by using an erroneous figure of $189,000 as the value of the ranch. His attorney apparently reached this figure by mistakenly subtracting the value of the cattle from the value of the ranch, instead of adding the two figures together. Again, the two figures added together amounted to $349,000. However, the value of the real property less the value of the cattle amounted to $189,000. Terry Cole’s attorney used this erroneous lower figure throughout the meeting. It is Laws’s alleged failure to correct this error that is the basis of this legal malpractice suit.

Terry Cole’s attorney first used the $189,000 figure when he asked Ms. Cole and Laws if half of this figure would amount to $90,500. Laws was busy with another matter, according to Ms. Cole, so Ms. Cole answered the question by pointing out that half of $189,000 would be $94,500, not $90,500. Thereafter, the parties agreed to a property settlement agreement based on the erroneous figure. Later that same day, at the hearing on the divorce complaint, both parties testified that they were satisfied with the property settlement agreement. Specifically, Ms. Cole answered the chancellor’s questions as follows:

Chancellor: You are aware — you are fully aware of the property settlement agreement entered in here today, is that correct; and, are you satisfied with it?
Ms. Cole: Yes, sir.
Chancellor: Is there anything that we have not discussed in this property settlement agreement that needs to be discussed that may bring this matter back in here?
Ms. Cole: No.
Chancellor: And are you satisfied with your attorney?
Ms. Cole: Yes, sir.
Chancellor: Okay. I have advised you on what you’re giving up, and we’ve gone — we’ve had numerous conversations about the assets and liabilities that were acquired during this marriage, is' that correct?
Ms. Cole: Yes.
Chancellor: Okay. You understand what your rights in this property, as well as your obligation under the debts are?
Ms. Cole: Yes.
Chancellor: Okay. Based on that you’re still — you still think this is a good property settlement agreement in your best interest?
Ms. Cole: Yes.

Following this exchange, the chancellor approved the property setdement agreement and entered the divorce decree.

Ms. Cole averred that she did not realize the mathematical mistake until the next morning, on June 5, 1996. She immediately contacted Laws and told him about the error. Laws recognized the mistake as well, according to Ms. Cole, and on June 6, 1996, he filed a motion to set aside the property settlement agreement. On June 24, 1996, he filed an amended motion to set aside. The chancellor denied these motions. Ms. Cole appealed this denial, and the court of appeals affirmed the chancellor’s decision in an unpublished opinion. See Cole v. Cole (Ark. App. No. CA 97-136 Dec. 17, 1997).

On May 28, 1999, Ms. Cole filed the present legal malpractice suit against Laws in which she alleged three theories of liability: negligence, breach of contract, and breach of fiduciary duty. She asserted in her action that she was pressured into a quick settlement by Laws. She further asserted that she tried to verify the numbers herself, but that she had difficulty doing so because Laws was talking to Terry Cole at the time when she was trying to do the mathematics. She also asserts that the chancellor pressured the parties to reach the agreement, which was finalized just before the hearing. She contends in her complaint that Laws should have discovered the mathematical mistake, and his failure to do so amounted to breach of fiduciary duty as well as breach of contract and negligence.

Laws moved for summary judgment on all three claims made in Ms. Cole’s complaint. The trial court granted Laws’s motion on the breach-of-fiduciary-duty count on March 23, 2000, but allowed the other two counts, breach of contract and negligence, to be tried to a jury. Following the trial, the jury returned a verdict in Laws’s favor on both counts, and judgment was entered on July 16, 2001. Ms. Cole appeals from the entry of partial summary judgment on March 23, 2000, but not from the judgment in Laws’s favor respecting the breach-of-contract and negligence counts.

I. Laws’s Alleged Procedural Bars

Laws raises two procedural bars to our consideration of the merits of this case. First, he contends that the notice of appeal was untimely. Secondly, he urges that the summary-judgment order appealed from was not a final, appealable order for purposes of Ark. R. Civ. P. 54(b). Neither of these arguments has merit.

Laws first argues that the notice of appeal was untimely. Fie points to the fact that the appeal was taken solely from the trial court’s March 23, 2000 order of partial summary judgment on breach of fiduciary duty. Thus, Laws argues, Ms. Cole’s notice of appeal dated September 12, 2001, was untimely under Ark. R. App. P. — Civ. 4(a), which requires the notice of appeal to be filed within thirty days of the entry of the order appealed.

Ms. Cole correctly counters with the fact that this argument has already been decided by this court, since we previously denied a motion to dismiss this appeal which raised the same issue of the lack of a timely notice of appeal. But more importantly, had Ms. Cole filed her notice of appeal after entry of the March 23, 2000 order granting partial summary judgment, the appeal would have been premature under Ark. R. Civ. P. 54(b), because that order appealed from did not resolve all claims involving all parties. See, e.g., Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998) (order granting partial summary judgment not a final appealable order under Rule 54(b)); Cordell v. Nadeau, 321 Ark. 300, 900 S.W.2d 556 (1995) (order granting partial summary judgment was a final appealable order only because trial court certified the order pursuant to Rule 54(b)). In the case before us, the trial court did not certify the partial summary judgment as appeal-able pursuant to Rule 54(b). Thus, Ms. Cole’s decision to wait to appeal until entry of a final judgment was correct. At that time, all claims involving all parties had been resolved.

II. Summary Judgment

Ms. Cole’s first argument is that the trial court erred in granting summary judgment on the fiduciary-duty issue as a matter of law. She asserts a number of legal points to support this allegation of error. Each point will be taken up individually, but several of her issues will not be addressed on the merits due to her failure to preserve those arguments for appeal by obtaining rulings from the trial court. Sturgis v. Skokos, 335 Ark. 41, 997 S.W.2d 217 (1998); Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997); Technical Serv. of Ark., Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995).

a. Reliance on Ms. Cole’s testimony at the divorce proceeding

She first asserts that the trial court erred as a matter of law if it relied on her testimony at the divorce hearing to find that she acquiesced in the mathematical mistake. Her theory is that reliance on this testimony constitutes an error of law because the testimony was taken before she realized the mistake. She devotes, however, a meager two sentences to this argument in her brief and cites no authority to support her contention that the trial court’s decision should be reversed on this basis. We will not address this argument due to her failure to obtain a ruling on this matter from the trial court, and, further, due to the fact that the argument is not supported by citation to authority. See Cadillac Cowboy v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002) (citing Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001); Perryman v. Hackler, 323 Ark. 500, 916 S.W.2d 105 (1996); Thomson v. Little-field, 319 Ark. 648, 893 S.W.2d 788 (1995)).

b. The chancellor’s affidavit

The chancellor in the divorce matter signed an affidavit in support of Laws’s motion for summary judgment that he was of the opinion that Ms. Cole had not made a mathematical mistake and that she was a woman who had merely changed her mind. Ms. Cole claims that it was error for the judge to rely on this affidavit in granting partial summary judgment on the fiduciary-duty claim and further that the chancellor inappropriately characterized her actions. This argument was not made to the trial court, and we will not consider it for the first time on appeal for the reasons stated above.

c. Court of Appeals’ opinion

Ms. Cole also urges that the trial court erred in granting partial summary judgment because he relied on the Court of Appeals’ decision in Cole v. Cole. There was no ruling obtained on this argument as well, and we will not address it.

III. Breach of Fiduciary Duty

Under her point that the trial court erred in entering partial summary judgment against her on the fiduciary-duty issue, Ms. Cole includes two subpoints and a total of eighteen subheadings. Those various subpoints and subheadings can be distilled down to three points:

• Her claim that Laws breached his fiduciary duty owed to her should have gone to the jury;
• Laws is liable to her because he breached a duty to follow the marital property statute, Ark. Code Ann. § 9-12-315 (R.epl. 2002);
• Laws is liable to her because he “failed to disclose” the error in the property settlement agreement.

Only the first argument was presented to the trial court. Hence, that is the only argument we will address.

The appropriate standard of review when reviewing a grant of summary judgment has often been announced by this court:

We have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998); Pugh, 327 Ark. 577, 940 S.W.2d 445. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Wallace v. [Broyles], 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. George, 337 Ark. 206, 987 S.W.2d 710.

Worth v. City of Rogers, 341 Ark. 12, 20, 14 S.W.3d 471, 475 (2000). See also Ark. R. Civ. P. 56(c)(2).

An attorney owes a client a fiduciary duty of undivided loyalty. Nofleet v. Stewart, 180 Ark. 161, 20 S.W. 868 (1929). Breach of fiduciary duty involves betrayal of a trust and benefit by the dominant party at the expense of one under his influence. 36A C.J.S., Fiduciary, pp. 388-389 (1961). Recently, this court set out the various aspects of the fiduciary relationship:

[A] person standing in a fiduciary relationship may be held liable for any conduct that breaches a duty imposed by the fiduciary relationship. Long v. Lampton, supra. It follows that, regardless of the express terms of an agreement, a fiduciary may be held Hable for conduct that does not meet the requisite standards of fair dealing, good faith, honesty, and loyalty. See Berry v. Saline Memorial Hosp., 322 Ark. 182, 907 S.W.2d 736 (1995); Texas Oil & Gas Corp v. Hawkins Oil & Gas, Inc., 282 Ark. 268, 668 S.W.2d 16 (1984); Yahraus v. Continental Oil Co., 218 Ark. 872, 239 S.W.2d 594 (1951). The guiding principle of the fiduciary relationship is that self-dealing, absent the consent of the other party to the relationship, is strictly proscribed. See Hosey v. Burgess, 319 Ark. 183 890 S.W.2d 262 (1995).

Sexton Law Firm, P.A. v. Milligan, 329 Ark. 285, 298, 948 S.W.2d 388, 395 (1997). Self-dealing breaches the fiduciary duty even when the action taken is innocent and unintentional. Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995).

The pivotal question therefore becomes whether, under the undisputed facts surrounding the June 4, 1996 meeting, Laws engaged in self-dealing. From our reading of the allegations, Ms. Cole asserts that Laws was sloppy, careless, and hurried on the morning when the property settlement agreement was finalized and that he made a mistake. Further, she claims that through his body language and his demeanor, he implicitly put pressure on her to sign the property settlement agreement. In so doing, she maintains that he put his own interest in reaching an agreement, and the chancellor’s interest in having a timely hearing, above her interest, which was to get a full and fair property settlement agreement.

Despite these contentions, we fail to discern any proof that Law’s action amounted to self-dealing. It is true that Laws acquiesced in what is alleged to be a mistake to the detriment of his client. That allegation falls more readily into the category of negligence, and the jury returned a verdict in Laws’s favor on this claim. However, at no time is it alleged that Laws attempted to procure assets for himself or obtain any benefit for himself at the expense of Ms. Cole. Nor did he bargain with an opposing party in order to make a personal gain. In fact, the undisputed facts give no indication whatsoever that Laws engaged in self-dealing on the day the property setdement agreement was agreed to. We cannot say that Laws’s interest in obtaining a property settlement agree-' ment for his client amounted to self-dealing or that the trial court erred in entering summary judgment in Laws’s favor.

IV. Prejudice To Subsequent Trial

In this point, Ms. Cole challenges the jury’s verdict by arguing that the jury trial itself was tainted by the trial court’s prior entry of partial summary judgment on the fiduciary-duty claim. This argument, however, is directed to the jury trial and the judgment resulting from the jury trial, and that judgment is not the subject of this appeal. The only order contested on appeal is the order of partial summary judgment. Clearly, this court will not set aside a judgment which is not the subject of the appeal. That is the reason we require a designation of the order appealed from in the notice of appeal as well as the relevant designation from the record. See Ark. R. App. P. — Civ. 3(e) (requiring designation of order appealed and portions of the record on appeal); Newton County v. Davidson, 289 Ark. 109, 709 S.W.2d 810 (1986). Moreover, were we to hold, as Ms. Cole urges, that jury trials held subsequent to an order of partial summary judgment are cast into doubt, the result would be to effectively halt the use of partial summary judgments, which we are not inclined to do. This point is meritless.

Affirmed.

Imber, J., not participating.

       Teresa Cole obtained her law license in 2000.