text:
    CONWAY CORPORATION, et al. v. CONSTRUCTION ENGINEERS, INC.
    89-34
    782 S.W.2d 36
    Supreme Court of Arkansas
    Substituted Opinion on Denial of Rehearing December 11, 1989.

      Friday, Eldredge & Clark, by: Michael G. Thompson and Guy Alton Wade, for appellants The Conway Corporation, M.D. Limbaugh Construction Co., Jim Brewer, John Doe I, John Doe II, and defendants Larry Graddy, Frank Robbins III, Lou Gardy, Bill Pate, Bob Clifton, and Leo Crafton III, as Members of the Board of Directors of the Conway Corporation.

      Wright, Lindsey & Jennings, for appellant Bennie J. McCoy.

      Zachary D. Wilson, for amicus curiae Arkansas Water Managers Association.

      David A. Orsini, for appellee Construction Engineers, Inc.

      Jim Rhodes, for appellee Michael Sutterfield and Catherine N. Rushing.

      Wallace, Dover & Dixon, by: Janice W. Vaughn, for intervenor Associated General Contractors of America, Arkansas Chapter.

      REPORTER’S NOTE: Original opinion was delivered October 30, 1989.

   Darrell Hickman, Justice.

Construction Engineers, Inc., (CEI), the low bidder on a municipal construction contract, sued the appellants for wrongfully rejecting its bid and awarding the contract to the second lowest bidder, Limbaugh Construction Company. Appellants are the Conway Corporation, a nonprofit corporation which, under contract, operates the utilities owned by the City of Conway; the Corporation’s directors; Jim Brewer, the general manager of the Corporation; and Bennie McCoy, the engineer on the construction project. The chancellor found the appellants wrongfully rejected CEI’s bid. Because that finding was clearly erroneous, we reverse and dismiss this case.

CEI filed suit in Pulaski County Chancery Court on August 20,1986, seeking injunctive and declaratory relief and damages. The complaint alleged the contract was awarded in violation of the law, and that the appellants had conspired to interfere with CEI’s business expectancy. The appellants answered that they were immune from tort liability, and that they had exercised good faith discretion in carrying out their public duties.

After the lawsuit was filed, and without objection by the appellants, CEI requested a special master to hear evidence on the issue of temporary injunctive relief. In determining whether CEI had a probability of success on the merits, the master found there was a reasonable basis for the rejection of CEI’s bid and that the appellants had acted in good faith.

Those findings were presented to the chancellor. He did not immediately accept or reject the findings, but held a hearing to receive additional evidence. He concluded that an injunction should not issue because construction on the project was already 43% complete, but he rejected the remainder of the master’s findings. He determined that the Corporation’s rejection of CEI’s bid was arbitrary and without cause and that Brewer and McCoy acted in bad faith in urging rejection of the bid. The appellants were held jointly and severally liable for $ 194,295, the profit CEI would have made had it received the contract. Ratepayers, who had intervened with an illegal exaction suit, were awarded the $66,100 difference in CEI’s and Limbaugh’s bids.

The appellants seek reversal on a myriad of issues, including immunity, lack of jurisdiction, due process, improper remarks by the chancellor, and insufficiency of the evidence. CEI cross-appeals, asking for attorney fees, prejudgment interest and punitive damages. Amicus curiae briefs have been filed by the Arkansas Water Managers Association and by the Associated General Contractors of America. The case is resolved most readily by examining the evidence and the chancellor’s findings.

In May of 1986, the Conway Corporation solicited bids on the expansion of Conway’s water treatment plant. Jim Brewer asked Bennie McCoy to contact CEI and dissuade it from bidding on the project. The basis for Brewer’s concern was CEI’s performance in 1980-1981 as general contractor on another local project, the construction of an elementary school for the Conway School District. According to Brewer’s information (which was received from his close friend and school superintendent Carl Stuart, as well as from local newspaper articles), there had been serious problems with the school’s plumbing, cabinetwork, and windows as a result of faulty construction. When a dispute arose among CEI, the architect, the school district and the subcontractors as to who was responsible for the problems, a lawsuit was brought, resulting in lengthy delays. The school’s problems were apparently well known throughout Conway and Brewer described the project as a “fiasco.”

Following Brewer’s instructions, McCoy called Steve and Danielle Smith, the husband and wife engineers who owned CEI, on May 19 and May 29 and wrote them on June 3 to express Brewer’s reservations about their ability to perform the work. He told Steve Smith, “I understand you got a bit of a black eye in the Conway community over the Conway school you built.” Smith admitted he had gotten “cross-ways” with the architect on that project. McCoy also asked about rumors that CEI was behind schedule on one of its current projects, the construction of a sewage plant in nearby Morrilton. Smith said he was behind because of late equipment deliveries but expected that his completion schedule would be extended. CEI was not dissuaded from submitting a bid.

Bids were opened on June 26. CEI’s bid was lowest and Limbaugh’s the next lowest. Brewer immediately ordered McCoy to conduct a post-bid investigation of both CEI and Limbaugh (neither Brewer nor McCoy was familiar with Limbaugh). In the meantime, Brewer obtained legal advice on the propriety of awarding the contract to the second lowest bidder.

Between June 30 and July 3, McCoy spoke with various references who gave excellent reports on Limbaugh, but gave CEI, at best, mixed reviews. One reference reported that CEI did good, quality work, and CEI’s surety gave a favorable report. But damaging references were given by the engineers on the Morrilton project who spoke of supervisory problems and a “paper war” which resulted when CEI missed a critical milestone, and by the architect on the Conway school who said the project was the worst he had ever experienced.

These matters were presented to the board of the Corporation at its next meeting. The board was concerned that the improvements be completed on time to avoid an anticipated water shortage. After hearing Brewer’s information and recommendation, the members were unanimous in their conviction that the job could be completed on time with Limbaugh, but not with CEI. They also noted that, while CEI had never completed a project of this magnitude, Limbaugh had constructed ten water and sewage treatment plants in the past five years.

The first question we must answer is, did the Corporation have the discretion to award the contract to anyone other than the lowest monetary bidder? The answer is yes.

CEI and the Associated General Contractors rely on Ark. Code Ann. §§ 19-11-403 and 404 (1987), arguing that the Corporation had no discretion to award the contract to anyone other than the lowest bonded bidder. Section 19-11-403 provides that bids submitted on public construction contracts must be accompanied by a surety bond. Section 19-11-404 provides as follows:

All bidders being made responsible in the manner stated in § 19-11-403, it shall be the duty of persons empowered to accept bids to accept no other bid than the lowest, except upon default of the lowest bidder.

The appellants urge the application of Ark. Code Ann. § 22-9-203 (1987), which governs the award procedure on public improvement contracts, including municipal improvements costing over $ 10,000. Section 22-9-203 (d) provides that the awarding authority shall:

[Ojpen and compare bids, and thereafter award the contract to the lowest responsible bidder, but only if it is the opinion of the authority that the best interests of the taxing unit would be served thereby.

We find the legislature did not intend §§ 19-11-403 and 404 to apply to contracts like the one here. Numerous public contracts are specifically exempted from the requirements of those statutes under Ark. Code Ann. § 19-11-402(b) (1987):

The provisions of this subchapter shall not be applicable to:
(1) Highway maintenance and construction contracts;
(2) Any contracts let by the Office of State Purchasing;
(3) Any contracts let by counties of this state;
(4) State agency contracts for commodities and services subject to other appropriate law;
(5) Cities and towns having boards of public affairs operating public utilities, auditoriums, airports, or other city owned properties; or
(6) Commissions appointed by cities operating public utilities, auditoriums, airports, or other city owned properties.

In light of these many exceptions, it is apparent the legislature intended this law to apply only to a limited class of public contracts. In fact, a recent amendment exempts any contract let by a municipality. See Ark. Code Ann. §19-11 -402(b) (3) (Supp. 1987).

The statute particularly exempts contracts let by municipal utility commissions. Although the Conway Corporation is not, strictly in name, a utility commission, that is what it is; it performs the same duties as a commission in managing and operating a municipal waterworks. See Ark. Code Ann. § 14-234-306 (1987).

Finally, § 22-9-203 applies to specific types of public contracts — major repairs or alterations, erection of buildings or other structures, or permanent improvements, costing over a certain dollar amount. Since this specific statute governs the subject, its application is favored over the more general provisions of §§ 19-11-401 to 405. Williams v. City of Pine Bluff, 284 Ark. 551, 683 S.W.2d 923 (1985).

We find the Corporation, under § 22-9-203, had the discretion to reject CEI’s bid so long as the rejection was for good cause and in good faith. Worth James Constr. Co. v. Jacksonville Water Comm’n, 267 Ark. 214, 590 S.W.2d 256 (1979).

So, the next question we must answer is whether the chancellor’s finding of bad faith is clearly erroneous. We find it is.

Chancery cases are tried de novo on appeal, but we will not reverse the chancellor’s findings unless clearly erroneous, giving due deference to the chancellor’s superior position in determining the credibility of the witnesses. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); ARCP Rule 52(a). In applying that standard of review in this case, it is important to remember that the master, not the chancellor, heard the testimony of appellant McCoy and that the chancellor should accept the master’s findings unless clearly erroneous. ARCP Rule 53(e)(2). Three factors were crucial to the chancellor’s decision: (1) he called McCoy’s investigation cursory and biased, and said that negative information had been deliberately solicited; he specifically questioned McCoy’s truthfulness, saying his July 3 notes on CEI referred to incidents that did not happen until the following August; (2) between the time of the school project and this project, CEI had done satisfactory work on another job for the Corporation; and (3) there was evidence that Brewer had decided, even before the bids were opened, not to award the contract to CEI.

Bad faith consists of dishonest, malicious or oppressive conduct with a state of mind characterized by hatred, ill will or a spirit of revenge. Stevenson v. Union Standard Ins. Co., 294 Ark. 651, 746 S.W.2d 39 (1988). The chancellor’s determination that McCoy’s investigation was biased and dishonest is not supported by the evidence. McCoy received both positive and negative comments on CEI and duly reported both. Nothing indicates he manufactured the negative comments or reported them in a manner that obscured the truth.

The allegation that McCoy’s notes referred to an event that had not yet taken place is also unfounded. The notes show he spoke with an engineer on the Morrilton project on July 3 and was told that there were problems with a small structure erected by CEI. The chancellor was convinced by CEI’s argument that problems with the structure did not occur until August 1, but Billy Joe Roper, a foreman on the project unequivocally testified he spoke with the engineer about problems with the structure 30 to 45 days before August 1. If the engineer did mention the structure to McCoy (a fact which the engineer could not recall, but did not flatly deny), it could have happened on or before July 3. It is also important that the notes containing the information were written by McCoy for his own personal use in preparing for a deposition in this case.

The chancellor also referred to the fact that CEI was allowed to bid on two Conway Corporation projects in 1984. One job involved the same water treatment plant, but did not require CEI to perform as a general contractor, only a subcontractor on a job costing less than $35,000. The other project was construction of an office building for the Corporation. CEI was an unsuccessful bidder on that project, and Brewer testified he was not aware CEI had submitted a bid. It is clear that neither of these projects involved CEI operating as a general contractor on a crucial municipal project on which time was of the essence.

Finally, the chancellor found that Brewer made his decision to reject CEI’s bid before any investigation took place. There is a reasonable basis for that finding. The efforts to dissuade CEI from bidding took place a month and a half before bids were opened. Brewer even used Limbaugh’s bid figure in his budget tabulation, compiled on the day of the bid opening. But there is no evidence that this action was taken with any motive other than the desire to avoid the same delays and problems that plagued the last local municipal project on which CEI performed as a general contractor.

The record is simply void of any evidence that the Corporation, Brewer or McCoy acted with improper motives or with hatred, ill will or a spirit of revenge. Because the chancellor’s findings were clearly erroneous, and because he gave no reason for rejecting the master’s findings as clearly erroneous, we find the Corporation did not exercise its discretion in bad faith. Therefore, the award to the ratepayers and the award of lost profits against the Conway Corporation are reversed.

This does not resolve the issue of Brewer’s and McCoy’s liability because bad faith need not be proven to recover for tortious interference with a business expectancy. Walt Bennett Ford Inc. v. Pulaski County Spl. School Dist., 274 Ark. 208, 624 S.W.2d 426 (1981), supp. opinion on denial of rehearing. However, the defendant may show his interference was privileged. Privilege means a defendant will not be liable if he acts, without bad faith, to protect the public interest or a third person to whom he stands in a relation of responsibility. The evidence, as stated above, shows Brewer and McCoy should have the benefit of the privilege. They acted without bad faith in the interest of those to whom they were responsible and should not be held liable for interference with a business expectancy. Therefore, the award of damages against them is reversed.

We do not reach the issue of whether the appellants are immune from liability as municipal agents or employees. See Ark. Code Ann. § 21-9-301 (1987); Matthews v. Martin, 280 Ark. 345, 658 S.W.2d 374 (1983). Nor do we reach the question of whether the claim against appellant McCoy should have been transferred to circuit court. See McCoy v. Munson, 294 Ark. 488, 744 S.W.2d 708 (1988). Having reversed the award of damages, we do not address CEI’s issues on cross-appeal.

One issue does merit discussion. This case was tried prior to our decision in Klinger v. City of Fayetteville, 297 Ark. 385, 762 S.W.2d 388 (1988). In Klinger an unsuccessful bidder sued the city for lost profits. We said the following:

We find the general rule to be that statutes requiring competitive bidding for government contracts are enacted for the benefit of the taxpayers rather than for the benefit of those who would sell goods and services to governmental entities. Although violation of a competitive bidding statute may create a right to an equitable remedy or mandamus, it does not give rise to a claim for damages. (Cites omitted.)

The appellants claim this language requires reversal of the award of damages against them.

The appellee counters this argument by citing Walt Bennett Ford Inc. v. Pulaski Spl. School Dist., supra. There, a disappointed bidder sued to set aside a contract between the school district and the successful bidder and also sued various individuals for the tort of interference with a contract. We held that “an unsuccessful bidder does have standing to sue for alleged wrongs” in the bidding process.

Prior to the Walt Bennett Ford case, our law was that a disappointed bidder had no standing to sue for a violation of competitive bidding statutes. In Bank of Eastern Ark. v. Bank of Forrest City, 94 Ark. 311, 126 S.W. 837 (1910), and Arkansas Democrat Co. v. Press Printing Co., 57 Ark. 322, 21 S.W. 586 (1893), we held that injunctive relief was not available to the unsuccessful bidder because he had no standing. Those cases were expressly overruled in Walt Bennett Ford. We held the appellant, who had not asked for an injunction or lost profit damages, had standing to seek voidance of the contract. We recognized the tort action against , the individuals as being a separate and distinct cause of action in which standing was not an issue.

The two cases are not irreconcilable. An unsuccessful bidder may challenge the legality of the authority’s action by way of injunctive or declaratory relief or mandamus for example, but he may not recover lost profit damages from the authority. Even so, according to Walt Bennett Ford, he is not prevented from pursuing a tort action and damages against individual defendants, such as Brewer and McCoy in this case. But that statement is without regard to the question of immunity, which was not an issue in Walt Bennett Ford.

Reversed and dismissed.

Purtle, J., not participating.

       The suit was filed in Pulaski County because McCoy, the engineer, is a resident there.

       There was some confusion over the subject matter of the hearing held by the chancellor. The appellants understandably thought it concerned injunctive relief only and McCoy was actually excused from the hearing. The only testimony he gave was at the hearing before the master. All appellants asked the chancellor for another opportunity to present evidence concerning their liability. The chancellor refused but allowed additional testimony to be proffered through affidavits. It is not clear whether we may consider those proffered affidavits in our de novo review, but we will not do so here. Our decision is based on the evidence considered by the master and the chancellor.

       We do not address the question of whether CEI had a valid business expectancy, nor do we decide whether Brewer and McCoy, as agents of the Corporation, interfered with CEI’s contract with a “third party.” See Navorro-Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (1989).

       Ark. Code Ann. § 16-120-102 (Supp. 1987), which grants immunity to nonprofit corporations, was not in effect at the time this cause of action arose.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Rosie P. ADAMS, Individually and as Administratrix of the Estate of Bill D. Adams, Deceased and B-R Adams, Inc. v. FIRST STATE BANK, Beebe, Arkansas
    89-143
    778 S.W.2d 611
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      Hopkins & Erwin, P.A., by: Joseph M. Erwin, for appellant.

      Friday, Eldredge & Clark, by: William H. Sutton and Kevin A. Crass, for appellee.
   John I. Purtle, Justice.

This is an appeal from a decision of the White County Circuit Court granting summary judgment to the appellee, First State Bank of Beebe, in an action for a wrongful set-off of the appellant’s bank accounts and a wrongful dishonor of the appellant’s checks. The appellant presents three arguments for reversal: (1) the trial court erred in holding that Ark. Code Ann. § 28-50-114 (1987) is inapplicable to the present case; (2) the trial court erred in finding that it was not obvious to the appellee that the accounts in question were fiduciary accounts; and (3) the trial court erred in finding that the bank did not exercise bad faith in claiming a set-off in the accounts. For the reasons stated below, we find that no reversible error was committed by the trial court.

The appellant, Rosie P. Adams, and her husband, Bill D. Adams, operated a truck stop and a connected restaurant. In 1984, Bill D. Adams borrowed money from the appellee bank in his capacity as owner of the truck stop and operator of the restaurant. Both Adams and his wife signed as guarantors on the notes. After Bill D. Adams committed suicide in December 1986, the appellant was appointed administratrix of her husband’s estate. The bank then filed a claim against the estate for collection on the notes. The January 1987 payments were not made on time.

The appellant’s attorney sought and obtained the approval of the probate court for a loan modification agreement, entered upon by the appellant and the appellee on April 10, 1987. That agreement provided that the loans were to be an obligation of the estate as well as of the appellant. Some payments were made following execution of the agreement, but they were not timely.

The May payments were not received by the appellee until June 15,1987; no further payments were made after that date. In late August 1987, the bank became aware that the businesses operated by the appellant were being closed. The bank also learned that the appellant was attempting to transfer $15,000 from the administratrix’s account to that of her attorneys. The appellee refused to make the transfer, claiming impairment of security, and offset the balance of the appellant’s account against the amount owed. After exercising its right of set-off on August 24,1987, all presented checks drawn on the appellant’s accounts were dishonored.

In part, the loan modification agreement between the parties provides:

Your [i.e.,the appellee’s] right to setoff will not apply to an account or obligation if it is obvious that my [i.e., the appellant administratrix Rosie P. Adams’] rights in the obligation are solely as a fiduciary for another, or to an account which, by its nature and applicable law. . . must be exempt from the claims of creditors.
Your right to setoff may be exercised upon default (except when prohibited by law):
(1) without prior demand or notice; and (2) without regard to the exercise or value of any property securing this note; and (3) without regard to the number of credit standing of any other persons who are obligated on this note.
You will not be liable for wrongful dishonor of a check or other requests for payment when there is insufficient funds in the account (or other obligation) to pay such requests arising as a result of your exercise of this right of setoff. I agree to hold you free from liability from the claims of any person arising as a result of your exercise of this right.

The businesses were operated out of the administratrix’s account and all types of expenses were paid from it. The appellant admitted that, in transferring the money to her attorney’s account, she was trying to place the money out of the appellee bank’s reach. After the appellee exercised its right of set-off and dishonored the checks, the appellant filed a complaint for dishonor and wrongful set-off, praying for compensatory and punitive damages on the grounds of bad faith.

Rosie P. Adams, as administratrix of the estate of Bill D. Adams, filed a motion for partial summary judgment against the bank for offsetting the accounts of a fiduciary in violation of both the law and the agreement between the parties. The bank filed a motion for summary judgment, alleging that by law it had the right to offset the accounts. The trial court granted the appellee’s motion.

The first argument for reversal is that the court erred in finding that Ark. Code Ann. § 28-50-114 (1987) was inapplicable to the facts in the present case. This provision of the code reads as follows:

(a) No execution shall issue upon nor shall any levy be made against any property of the estate under any judgment against a decedent or a personal representative.
(b) However, the provisions of this section shall not be construed to prevent the enforcement of mortgages, pledges, or liens upon real or personal property in an appropriate proceeding.

As noted earlier, the modification agreement between the parties was obtained by the appellant’s attorney with the approval of the probate court. The contract provided that the appellee could offset against any accounts which were not entirely fiduciary in character. This part of the contract, excluding the right of set-off, was made applicable to accounts that were obviously solely fiduciary in nature.

In reaching the decision that the statute did not apply in this case and that it was not obviously a fiduciary account, the trial court considered such matters as the appellant having operated the businesses out of the estate account despite the fact that a business account had been established prior to the death of Mr. Adams. Suppliers and employees, as well as other business expenses, had been paid from the estate account. Further, the estate was an obligor on the debt, and claims against the estate had been filed by the appellee bank.

There is no dispute that the note payments were in default. The modification agreement provided that the bank, upon default, could exercise its right of set-off without prior demand or notice.

The appellant argues that, because the accounts were assets of the decedent’s estate, the probate court rather than the circuit court had jurisdiction over the funds. While it is true that probate courts have jurisdiction over estate funds, circuit courts are not prevented from using transactions involving an estate as evidence in deciding other matters properly before them.

The circuit court here did not make a decision based upon matters subject to probate court jurisdiction; instead, it relied on probate matters as evidence in reaching its decision to grant summary judgment. Under the facts of this case, we are unable to find error in the trial court’s decision that Ark. Code Ann. § 28-50-114 was inapplicable.

The appellant next argues that the court erred in finding that it was not obvious that the accounts named “Adams Enterprises” and “Rosie P. Adams, administratrix of the estate of Bill D. Adams, deceased,” were solely fiduciary when the appellee had actual and constructive notice of their fiduciary nature. The appellant chose to operate the businesses through the estate account. The bank had actual knowledge of the purpose of the account when it was established. Moreover, it had knowledge of the day-to-day operation of the businesses by means of the presentation and payment of checks or drafts for supplies and other expenses.

Although the name of the account may clearly suggest a fiduciary character, it is equally clear that the accounts were not solely fiduciary. The appellee’s observation of account activity, for instance, suggested another conclusion. From the facts before the judge, we cannot say that he was clearly erroneous in holding that the accounts were not solely fiduciary. Therefore, the bank had a right to offset the funds in these circumstances.

The final question presented is whether there were material issues of fact to be determined by a jury. The complaint alleged that the bank acted in bad faith. Arkansas Code Annotated §4-1-203 (1987) states: “Every contract or duty within this subtitle imposes an obligation of good faith in its performance or enforcement.” Good faith is defined by Ark. Code Ann. § 4-1-201(19) (1987) as “honesty in fact in the conduct or transaction concerned.”

The facts of this case clearly reveal that both the appellant and the appellee were reaching out to help themselves in any manner legally possible at the time. The appellant correctly argues that it is prejudicial error to grant a motion for summary judge when an issue of material fact exists. Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986). Also, generally speaking, the question whether a party has acted in good faith in a commercial transaction is a matter of fact to be determined by the jury. Gleghorn v. Ford Motor Credit Co., 293 Ark. 289, 737 S.W.2d 451 (1987).

The loans were in default at the time the appellee exercised the set-off. When construing the meanings of “good faith” and “honesty,” we must of necessity employ a subjective test. For a case concerning similar issues, see Farmers Cooperative Elevator, Inc. v. The State Bank, 236 N.W.2d 674 (Iowa 1975).

The appellee claimed that it was concerned about its security and that it believed it had the right to set-off. We have nothing in the record directly contradicting the allegation of the bank that it was not acting in anything other than good faith. It can be seen that the appellee was attempting to rely on the agreement in its actions.

In Gleghorn, supra, we reversed and remanded the trial court’s order granting a motion for summary judgment. However, the crux of that case was an allegation that the appellants had relied upon a decision of another chancery court in forming the disputed contract. The Gleghorn decision simply stated that there was nothing in the record to indicate that the appellants had relied upon the other chancellor’s decision, which was attached to their brief. The appellants alleged that they relied on the opinion to show that they had “acted in good faith.”

The long-established rule of this court is that evidence submitted in favor of granting a motion for summary judgment must be viewed most favorably to the party resisting the motion. Gleghorn, supra. The decision of the trial court is affirmed.


text:
    Glenda BROWN, et al. v. ST. PAUL MERCURY INSURANCE COMPANY
    89-180
    778 S.W.2d 610
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      Hani W Hashem, for appellant.

      Mitchell, Williams, Selig & Tucker, by: T. Scott Clevenger, for appellee.
   John I. Purtle, Justice.

The trial court granted a summary judgment in favor of the appellee. We agree with the appellants’ argument for reversal that the court should have allowed a nonsuit.

This is the second appeal in this case. In Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987), we reversed and remanded the case to the trial court on a point concerning the statute of limitations.

On April 26,1989, the appellee filed a motion to dismiss. The appellants’ attorney mailed the trial judge a letter on May 4, 1989, which states in part: “In light of the defendant’s recent motion to dismiss, the plaintiffs would like to take voluntary dismissal without prejudice before a ruling by the court on the motion to dismiss.” The attorney included a draft of an order of dismissal, which the judge never signed. An amended order of dismissal stated: “That Plaintiff moved for alternative relief by Order of Dismissal without prejudice and this is denied.”

Arkansas Rules of Civil Procedure, Rule 41(a), in part states: “[A]n action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court____”

A similar issue has been decided by this court in Duty v. Watkins, 298 Ark. 437, 768 S.W.2d 526 (1989), where we stated: “James Duty’s request for a nonsuit should have been granted. The rule is clear that the privilege to take a nonsuit before final submission of a case is absolute.” This matter is therefore reversed and remanded to the trial court with directions to grant the appellants’ motion for the nonsuit without prejudice.

Reversed.


author: Robert H. Dudley, Justice.

text:
    CHARLESTON SCHOOL DIST. NO. 9 v. SEBASTIAN COUNTY BD. OF EDUC.
    89-52
    778 S.W.2d 614
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      Thompson, Paddock & Llewellyn, P.A., by: William P. Thompson; and Parker & Parker, by: Way land A. Parker II, for appellant.

      Stephen A. White, for appellee.
   Robert H. Dudley, Justice.

These consolidated cases involve a territorial dispute between the Lavaca and Charleston School Districts. The circuit court declined to decide the issues joined by the pleadings and, instead, ordered that the case be decided by a special election. We reverse and remand.

We recite only those facts which are necessary for an understanding of this opinion. In 1929, the Sebastian County Board of Education ordered that Mays Chapel School District No. 20 and Ursula School District No. 31, which together comprise the disputed 3,886 acres, be consolidated with the Lavaca School District No. 3. There was no appeal from that order.

The Lavaca School District joins the west side of the disputed tract. The Charleston district joins the east side. Beginning in 1949, at the latest, the school taxes collected on the disputed land were paid by the county treasurer to the Charleston district, rather than to the Lavaca district.

On November 2, 1987, the Lavaca district sought and obtained a chancery court restraining order which temporarily enjoined the distribution of taxes from the disputed area and set a hearing on the merits to determine the lawful distributee of the tax money. On November 19,1987, the Sebastian County Board of Education reaffirmed its consolidation action taken in 1929. Charleston then filed a cross-complaint and a counterclaim in the chancery action. Concurrently, in circuit court, Charleston gave a notice of appeal and filed a petition for a writ of certiorari to quash the county board of education’s 1929 order. The chancery action was transferred to circuit court.

At trial, Lavaca pleaded, offered proof, and argued that the board of education’s order of 1929 was a valid and final order and, pursuant to it, Lavaca was entitled to the tax revenues. Charleston pleaded, offered proof, and argued that the 1929 order was void, and alternatively that Lavaca should be estopped from claiming the disputed territory. The trial court did not rule on any of these matters but, instead, ordered a special election to decide the case.

The creation, abolition, or consolidation of school districts is a function of the legislative branch of government. Beard v. Albritton, 182 Ark. 538, 31 S.W.2d 959 (1930). “This court has several times held that a school district is the creature of the Legislature, or of some governmental agency named by the Legislature.” School Dist. No. 25 v. Pyatt Spec. School Dist., 172 Ark. 602, 289 S.W. 778 (1927). The General Assembly has vested the county boards of education with the authority to form or consolidate school districts. Lyerley v. Manila School Dist. No. 15, 214 Ark. 245, 215 S.W.2d 733 (1948); Ark. Code Ann, § 6-13-201 (Supp. 1987). The authority to call an election lies exclusively with the county board. Fomby School Dist. No. 26 v. Williams, 203 Ark. 235, 156 S.W.2d 220 (1941). “Discretion to form new districts is vested by the law in the several boards of education and not in the circuit court.” Bledsoe v. McKeowen, 181 Ark. 584, 26 S.W.2d 900 (1930). The trial court was without any lawful basis to call the special election and, accordingly, we must reverse.

Both the Lavaca and Charleston districts agree that the court erred in calling the special election, and both ask us to hear this appeal de novo and rule on the issues which were not ruled upon by the trial court. We do not try circuit court cases de novo. Accordingly, we must remand the case for retrial, with the parties being in the same position they were immediately before rendition of the judgment. See supplemental opinion, Clark v. Arkansas Democrat Co., 242 Ark. 497, 413 S.W.2d 629 at 633 (1967), and Lowe v. Morrison, 270 Ark. 668, 606 S.W.2d 569 (1980).

Reversed and Remanded.


text:
    Guy P. SMITH and Lora L. Smith v. Joshua PETTIT
    89-186
    778 S.W.2d 616
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989

      James O. Strother, for appellants.

      Huckaby, Munson, Rowlett & Tilley, P.A., by: Beverly A. Rowlett, for appellee.
   Robert H. Dudley, Justice.

Appellant Guy Smith sought damages for an alleged permanent neck and back injury, loss of earnings and earning capacity, past and future pain and suffering, and past and future medical expenses as a result of a car wreck. His wife, appellant Lora Smith, additionally sought damages for loss of consortium. The jury assessed damages in the amount of $1,711.64, the amount of the medical bills. We affirm the judgment.

In the first point of appeal, appellant Guy Smith argues that the trial court abused its discretion in refusing to grant a new trial because of the inadequacy of his award. ARCP Rule 59(a)(5) provides: “A new trial may be granted. . .for any of the following grounds materially affecting the substantial rights of such party: ... (5) error in the assessment of the amount of recovery, whether too large or too small;. . . .’’In this case the appellee admitted liability. When the primary issue is the alleged inadequacy of the award, rather than a question of liability, we will sustain the trial judge’s denial of a new trial unless there is a clear and manifest abuse of discretion. Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983). As explained in Warner, supra, in a review of the trial court’s discretion in denying a new trial because of alleged inadequacy, an important consideration is obviously whether a fair-minded jury might reasonably have fixed the award at the challenged amount. Here, viewing the facts in the light most favorable to appellee, there was evidence from which a fair-minded jury might reasonably have concluded that the amount of the medical bills was the only damage suffered by appellant Guy Smith.

With regard to his alleged injuries and pain and suffering, appellant admitted that he did not miss any work as a result of the accident, except for the time at the doctor’s office; that he had been involved in at least three previous automobile collisions; and that he had previously fallen off a telephone pole. He further testified that he was promoted from an hourly position to one in management approximately one month following the accident; there was some stress associated with his new position; and he works longer hours now than he did in his hourly job. His doctor testified that anyone who is under stress can have stress headaches and neck pain; there were no real objective findings except an MRI test which possibly showed a spur-like condition; there was no way of determining if the spur was a result of the collision; spurs can occur as a result of trauma or as a result of routine wear and tear; he did not find arthritis in the place you normally see it in whiplash injuries; that his rating of 5 % permanent disability for appellant was not based upon American Medical Association guidelines; and appellant had continued to improve.

With regard to his claim of loss of earnings and earning capacity, appellant testified that his promotion to management had increased his pay.

Based upon the foregoing, we cannot say the court abused its discretion in denying appellant Guy Smith’s motion for a new trial.

The appellant also argues under this point that counsel for appellee made remarks which might be interpreted as an indication that appellee did not have insurance. However, there was no objection to the remarks and, therefore, the issue was not preserved for appeal.

Next, appellant Lora Smith argues that the trial court abused its discretion in refusing to grant her a new trial because the verdict that she take nothing for loss of consortium was clearly contrary to the preponderance of the evidence and law. The trial court ruled correctly.

The only evidence concerning the alleged loss of consortium came from the appellant Lora Smith, appellant Guy Smith, and Lora Smith’s mother. In a comparable case, Waterfield v. Quimby, 277 Ark. 472, 476, 644 S.W.2d 241 (1982), the injured wife was awarded $1,000.00, but her husband was awarded nothing for loss of consortium. In language applicable to the case at bar, we wrote:

With respect to the issue of whether the verdict is inconsistent because no loss of consortium recovery is awarded to the spouse of the injured party, we agree with the cases holding that the jury need not, as a matter of law, give a pecuniary award for loss of consortium where damages are awarded to the injured spouse. It appears there is no fixed standard for ascertaining compensatory damages for loss of consortium, [citations omitted] Further, the only testimony on the loss of consortium was that of the appellants. The jury is not required to believe the testimony of any witness, particularly interested parties, since the testimony of interested parties is considered disputed as a matter of law.

Last, appellants argue that the trial court erred in ruling that statements made by appellee’s attorney did not constitute a golden rule argument. Again, the trial court ruled correctly.

A golden rule argument suggests to jurors that they place themselves in the position of a party. See Annotation, Prejudicial Effect of Counsel’s Argument, in Civil Case, Urging Jurors to Place Themselves in the Position of Litigant or to Allow Such Recovery as They Would Wish if in the Same Position, 70 A.L.R.2d 935. An example of such an argument is, “Would you take $15,000 for your father’s life?” Mo-Pac R.R. Co. v. McDaniel, 252 Ark. 586, 483 S.W.2d 569 (1972). Or, conversely, “How would you like to have $15,000 taken out of your pocket?”

The appellant contends the last two sentences of the following argument constitute a golden rule argument:

When we talk about the strain/sprain syndrome and it seems strange to me that on the day of the accident the man says I really didn’t think I was hurt. The next day he says I really didn’t think I was hurt. The next day he says I didn’t think I was hurt. He has gone to work two straight days and finally on the 27th he has decided he’s hurt. Ladies and gentlemen, some of you have sprained or strained your ankles; how bad did it hurt right then? These are all bones and muscles and ligaments; it’s the same thing.

The argument is one which asks jurors to use their own experiences in every day life to decide when a sprain or a strain begins to hurt; it is not one which urges the jurors to deny recovery as they would wish if they were in the same position.

Affirmed.


author: Steele Hays, Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    Vince DILDAY v. STATE of Arkansas
    CR 89-56
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989
    [Rehearing denied December 4, 1989.]

      Jeff Duty and Tim Morris, for appellant.

      Steve Clark, Att’y Gen., by: Kay J. Jackson Demailly, Asst. Att’y Gen., for appellee.

      Purtle, J., would grant rehearing.

   Steele Hays, Justice.

This appeal from a conviction for DWI questions whether the original arrest was valid and, if not, whether the conviction is void under Brewery. State, 286 Ark. 1, 688 S.W.2d 736 (1985).

The appellant, Vince Dilday, was arrested for a DWI offense by two Bella Vista patrolmen. Appellant moved to quash the arrest on the contention that the Bella Vista officers had no authority to arrest. The patrolmen in question were appointed as deputies by the Benton County Sheriff, pursuant to Act 237 of 1977 [Ark. Code Ann. § 14-15-503 (1987)], which provides that individuals possessing the minimum qualifications required by law may perform all the standard duties and possess the same powers as all other deputies, while in the course of their employment for planned community property owners associations.

Bella Vista is a “planned community” and was paying the salaries of the patrolmen in this case. The statute in question does not mention the method of payment of such appointed deputies, or to whom they are responsible. The parties entered into a stipulation and the record is sparse. It tells us only that the two patrolmen were appointed by the Benton County Sheriff and their salaries were paid by the Bella Vista Property Owners’ Association.

The trial court found the Benton County Quorum Court had authorized the sheriff to appoint sixty-seven uncompensated deputies, specifying that they meet state minimum requirements for law enforcement officers, that although the Bella Vista police were funded by private means, they were appointed, supervised and could be fired by the sheriff, that they were empowered to make arrests and had the same authority as other deputies, and that appellant’s arrest was valid.

Appellant argues that the Bella Vista officers were unauthorized to act because they are paid by private funds and are “unaccountable to the public.” Therefore, appellant argues, any arrests by such officers are ineffective as official actions. We find no merit in the argument. First, it is clear that the deputies in this case were authorized to arrest. Amendment 55, § 4 of the Arkansas Constitution empowers the quorum court to . . fix the number and compensation of deputies and county employees.” The Benton County Quorum Court enacted an ordinance on March 3,1981, authorizing the Benton County Sheriff to appoint and commission a maximum of sixty-seven uncompensated deputies. The ordinance further provided that all deputies appointed under this ordinance must “comply with all state law requirements regarding minimum standards for law enforcement officers.”

The reference to the appointed deputies complying with the requirements for “minimum standards for law enforcement officers,” is obviously a reference to Ark. Code Ann. §§ 12-9-100 et seq. (1987), the Law Enforcement Officer Training and Standards Act, which provides for minimum training and standards that must be met by all individuals acting as law enforcement officers. See Ark. Code Ann. § 12-9-106 (1987). In addition to the quorum court’s requirement, Ark. Code Ann. § 14-15-503 (1987) supra, under which the deputies were appointed, authorizing deputies employed by property owners associations to make arrests for misdemeanor and felonies, requires that such deputies possess the minimum requirements prescribed by law. If there were any doubt on this point, the emergency clause to an amendment of that statute, Act 171 of 1983, makes it clear that deputies so employed are required to meet the Law Enforcement Standards Act.

The trial court found the deputies in this case met the minimum requirements and therefore were authorized to make arrests. There is no evidence in the record to the contrary, nor has appellant pointed out any evidence that would support a different conclusion. The Benton County Quorum Court authorized only qualified deputies to be appointed by the sheriff, and absent evidence to the contrary, we will presume that public officials will follow the law in performance of their duties. Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973); Arkansas Pollution Control Comm’n v. Coyne, 252 Ark. 792, 481 S.W.2d 322 (1972).

As to the accountability of the deputies, while we have no statute outlining the relationship between sheriff and deputy, it is clear under the common law that by the nature of the two offices, a sheriff is liable for the actions of his appointed deputies and has control over their selection and retention. 70 Am. Jur. 2d Sheriffs § 13(1987). The trial court found the facts in this case in accordance with the common law authority of the sheriff, holding that the deputies were under the control and supervision of the Benton County Sheriff. Again, there is nothing in the record to the contrary and on appeal we have only appellant’s bare allegation that these deputies were not accountable to the public. Absent evidence to the contrary, we will presume public officers performed their duties as prescribed by law. Arkansas Pollution Control Comm’n v. Coyne, supra; Williams v. State, supra. And see, Neapolitan v. U.S. Steel, 149 N.E.2d 589 (Ohio Ct. App. 1956); City of Cleveland v. Kurfrin, 3 Ohio Misc. 2d 18, 446 N.E.2d 230 (1982).

Appellant maintains that Act 237 gives private corporations the power to hire “private armies,” comparable to the feudal system of another era and another hemisphere. The argument is wholly abstract, as there is no evidence whatever in this record of a misuse of power under the act. Certainly the appellant cannot seriously contend his arrest was an abuse of power. It took no small effort by two police cars (narrowly avoiding a collision) to bring him to a stop. He was too inebriated to speak clearly or to stand on his own. Beyond that, if it can be argued that Act 237 creates a potential for abuse, that argument is more appropriately addressed to the legislative branch, from whence the enabling legislation came. These officers are commissioned by the sheriff pursuant to an ordinance of the Benton County Quorum Court. They serve at the pleasure of the sheriff and their authority is terminable at the will of either the legislature or the quorum court. Should abuses arise, it seems unlikely that all of those governmental entities, plus the electorate, would tolerate it for long.

Another contention is that the officers are paid by the property owners association and, therefore, can have no authority to arrest. The law is to the contrary. In Meyers v. State, 253 Ark. 38, 484 S.W.2d 334 (1972), a Little Rock policeman was employed as a security guard for a motel when he arrested an individual on the motel’s premises. The appellant was charged with resisting arrest but argued that he could not be found guilty because the policeman was not an officer authorized to make arrests, but only an employee of the motel. We held that a policeman was a peace officer under our criminal code and that his authority was not dependent on his working a designated shift and no exception was made for working for a private employer. We noted that other jurisdictions have held that, “the fact that a peace officer is employed and paid by public or private agencies other than those having direct responsibility for law enforcement at the time an offense is being committed, or is about to be committed, neither impairs his right to make an arrest or take appropriate action . . . .” This excerpt from the opinion is followed by cites from several jurisdictions.

The case before us presents an even stronger argument than Meyers for finding authority to arrest. For while the officer in Meyers was being paid by a private concern, given the circumstances of his employment, he was presumably also under its supervision. Here, while the deputies were being paid by the property owners association, they were nevertheless under the control and supervision of the sheriff.

It was stipulated by the parties that the Bella Vista police were not bonded and appellant argues that because of this lack of bonding the officers had no authority to arrest, citing Brewer v. State, supra. This case is easily distinguishable from Brewer, where we held a DWI conviction invalid because the only charge against the defendant was by an auxiliary officer who was not acting in compliance with Ark. Code Ann. §§ 12-9-100 et seq. (1987), supra, the minimum standards act. However, we recognized in Davis v. State, 296 Ark. 524, 758 S.W.2d 706 (1988), that under the general rule, an illegal arrest won’t void a valid conviction: “It goes almost without saying that a defendant, after having been fairly tried in a court of competent jurisdiction and found guilty... is not entitled to be set free on the basis of some flaw in the manner of his arrest,” citing from Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974). We then noted that the holding in Brewer was a limited exception to that rule which applied when a non-qualified officer issued the only charges in the case, since pursuant to Ark. Code Ann. § 12-9-108 (a) (1987), “any action” taken by such officer “shall be held as invalid.”

Here, the trial court found the Bella Vista officers were qualified under Ark. Code Ann. §§ 12-9-100 et seq. (1987), and there is no requirement under that act that officers be bonded in order to lawfully execute their duties. Because Brewer is an exception to the general rule as defined by the language of Ark. Code Ann. § 12-9-1.08(a) (1987), we find no basis to expand that limited exception, nor does appellant cite us to any authority that would favor its expansion. Such a finding would in fact be contrary to the general rule which holds that a lack of bonding or similar deficiency which might affect an officer’s official status, will nevertheless authorize him to act as a de facto officer and his actions as to third parties are valid. 70 Am. Jur. 2d Sheriffs § 16 (1987).

The dissenting and concurring opinions question the prudence of Act 237. But the wisdom and efficacy of legislation are not the concern of this branch of government and we have not found either constitutional or statutory authority with which this legislation is at variance, the citations of the dissenting opinion notwithstanding. The dissent implies that the bylaws of a planned community may be enforced by the “armed bands” authorized under Act 237. Nothing in the act nor in the record validates that assumption. The dissent cites Article 7 § 46, providing that a county will have but one sheriff. How is that relevant to our deliberations? Does anyone suggest that this legislation enables Benton County to have more than one sheriff? Clearly not. Of what purpose is the reference to other provisions of law in the dissenting opinion, absent any attempt to show wherein those laws are applicable to the problem before us? Of what relevance is the cited language from the case of State ex rel. Dingess v. Scaggs, 195 S.E.2d 724 (W.Va. 1973), interpreting a section of the West Virginia Code, or Amendment 55, that all county officers shall be bonded “as provided by law,” absent any showing those laws affect these individuals and, coupled with other provisions of law, require that they be bonded? Or to Ark. Code Ann. § 21-2-114 (1987) providing that public officials who appoint deputies and others “w/zo handle funds” (our emphasis) shall bond those individuals, in view of the utter lack of evidence that these deputies handle any funds belonging to the public?

We need not wrestle with those disputations concerning a clash between “K-Mart’s private army” and “Wal-Mart’s private army,” conjured up by the dissenting opinion, since the legislature has not seen fit to authorize either and we do not render advisory opinions.

AFFIRMED.

Holt, C.J., Hickman, J., and Newbern, J., concurring.

Purtle, J., dissents.

Darrell Hickman, Justice,

concurring. I agree with the result reached, that is, the charges should not be dismissed because of the questionable authority of the officers.

There are broad and serious questions that arise from the Bella Vista retirement community’s use of ostensibly public law enforcement officers for its private purposes. But this case is not here for declaratory judgment, nor in any way that I feel will allow us to reach these questions. I think the officers were cloaked with enough official power to arrest a person for violation of the traffic laws. In any event, the appellant should not be exonerated for any lack of authority by these deputies.

What distinguishes this case from those cited in the majority opinion is that in those cases an off duty regular police officer is acting for a private individual or firm. Meyers v. State, 253 Ark. 38, 484 S.W.2d 334 (1972). Some would say, and without serious argument from anyone, a policeman is on duty 24 hours a day; that is, he or she has the official power of the office at all times. Meyers v. State, supra. But these “deputy sheriffs” were essentially created by the legislature to serve a private community, and the local sheriff’s office has opted to give them some semblance of official stature. That is a horse of a different color. I would not examine that practice in this case. It should wait until the private police force, if that is what it is, is properly challenged.

Dudley, J., joins in the concurrence.

David Newbern, Justice, concurring.

The result reached by the court is correct. I disagree with the statement that the rule of Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985), is an exception to the rule followed in Davis v. State, 296 Ark. 524, 758 S.W.2d 706 (1988). In the Brewer case we held an officer’s act in charging a defendant with a crime by citation was ineffective, and, absent a valid charge, the conviction was invalid. In the Davis case, we held an invalid arrest does not invalidate an otherwise valid conviction. To be an exception, the Brewer case would have to be one to which the rule in the Davis case does not apply. The rule in the Davis case would have applied in the Brewer case, but it was simply not the issue decided. We should avoid confusing the two rules.

John I. Purtle, Justice,

dissenting. The same people who voted to retain Lord Mansfield’s antiquated rule have now brought you this opinion approving the medieval practice of allowing private persons to hire private armies. No doubt the feudal barons were satisfied with a system that allowed them to hire their own police enforcement officials, or private armies, as they were called. The Constitutions of the United States and the state of Arkansas do not provide for private armies, and such armed bands have never been recognized as valid until this time.

The General Assembly has passed some more special legislation which could be interpreted as granting property owners associations the privilege of hiring their own sheriffs. If property owners associations are authorized to hire private law enforcement officials to enforce state laws and the by-laws of their associations, then there is no reason why any individual who can afford it should not be allowed the same privilege. Such an arrangement permits several sets of de facto deputies to operate within the same county, in addition to the actual sheriff and his oath-bound deputies. This simply cannot be the law.

The Constitution of Arkansas, article 7, section 46, reads in part:

The qualified electors of each county shall elect one sheriff

Amendment No. 55, section 6, provides:

All County Officers shall be bonded as provided by law.

Ark. Code Ann. § 21-2-114 (1987) provides:

Each public official or employee of this state, or political subdivision thereof, who has appointed deputies or employed individuals who handle any funds for the performance of their duties shall bond the deputies and employees in those amounts which he deems necessary to indemnify the state or political subdivision for any loss or mishandling of funds by the deputies or employees.

Ark. Code Ann. § 14-14-1201(e) (1987) provides:

The county judge of each county shall purchase all surety bonds for county and township officers, and employees thereof, in the amounts fixed by ordinance of the county quorum court pursuant to the purchasing laws governing county government. A bond may cover an individual officer or employee, or a blanket bond may cover all officers and employees, or any group or combination of officers and employees.

Section (g) of the same Code provision requires that all official bonds must be signed and executed by the county court of each county and one or more surety companies licensed to do business in the state.

In State ex rel. Dingess v. Scaggs, 195 S.E.2d 724 (W.Va. 1973), it was said: “Taking the oath of office and posting bond are the two necessary preparatory acts to qualify for office.”

If these security guards are ever to qualify as deputies, they must follow the provisions of the law. If they are county officers or employees, they must be bonded. A county employee is defined under the Code as “any individual or firm providing labor or services to a county for salary or any other form of compensation.” So far as I am able to determine from the record, these security guards for Bella Vista Village, a private corporation, have not qualified as county employees. Certainly the sheriff did not see fit to include them under his bond or any other bond. Since “all county officers shall be bonded as required by law” these persons do not qualify as officers of the county pursuant to Amendment 55, Section 6, of the Constitution of Arkansas. They have the same law enforcement rights, duties, and responsibilities as other security guards and private citizens.

I agree with the appellant that these persons are employees of the Property Owners Association of Bella Vista Village in Benton County, Arkansas. They have not qualified as deputies or special deputies, and they are not bonded as required by law. Nor have they qualified as auxiliary officers pursuant to Ark. Code Ann. § 12-9-301 (1987).

The statute under which they apparently believe they are operating is Ark. Code Ann. § 14-15-503 (1987). This law provides that every deputy sheriff appointed under the provisions of the act shall possess all the powers of his principal and may perform any of the duties required by law to be performed by the sheriff. The “deputy sheriffs” in this case were employed by the Property Owners Association of Bella Vista. They were not employed by the sheriff, and he either does not consider them deputies as such or he is violating the law by not posting bonds for them. They are receiving no benefits from the county. No doubt the surety bonding company will be interested in finding out that these people are actually deputy sheriffs. The act provides that these “deputy sheriffs” may be allowed to exercise their powers as deputy sheriffs while in the course of their employment for Bella Vista, but nowhere else in the county. If this is the intention of the legislation, then it is unconstitutional. On the other hand, the legislation makes perfectly good sense if it is intended to allow legal deputy sheriffs to moonlight for private individuals and property owners associations. In such cases, the moonlighters would actually be deputies and not mere pretenders.

A deputy sheriff is in reality the alter ego of the sheriff. He possesses all of the powers of the sheriff — except the power to appoint deputies. See Tanner v. McCall, 625 F.2d 1183 (5th Cir. 1980).

The appellees in this case have no more right to special application of the law than do grocery stores and other retail establishments or manufacturing concerns. Up until this time, such organizations or institutions have merely hired regular police officers or sheriffs’ deputies during their off-duty time. However, if I understand the ruling in this case, they may now hire anybody they please and clothe them will all the powers and authority of deputy sheriffs, provided the sheriffs will give them honorary deputies’ titles.

Suppose Wal-Mart’s private army decides to overthrow K-Mart’s private army? On which side will the real sheriff and his deputies fight? In the event of resulting damage, which sheriffs surety will pay for the damages?


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Phillip Carl WRIGHT v. STATE of Arkansas
    CR 89-89
    778 S.W.2d 944
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989
    [Rehearing denied December 4, 1989.]

      Greene Law Offices, by: Omar Greene and John Ogles, for appellant.

      Steve Clark, Att’y Gen., by: Kelly Procter, Asst. Att’y Gen., for appellee.

      Purtle, J., would grant rehearing.

   Steele Hays, Justice.

Phillip Carl Wright appeals from his conviction of possession of cocaine with intent to deliver, resulting in a sentence of life imprisonment. He advances two assignments of error: one, that a motion to suppress evidence should have been granted and, two, testimony of the arresting officers should not have been admitted. We reject the arguments and affirm the judgment.

At about 9:30 p.m. on May 4, 1988, Officer Kelly Martin observed appellant driving east on Interstate 630 in Little Rock at a high rate of speed. The officer turned on his blue lights and appellant pulled over and got out of his vehicle. Moments later another police vehicle driven by Officer Kenneth Temple stopped, responding to Officer Martin’s call for assistance. Appellant got back into his vehicle and Officer Martin called to him repeatedly to get out of his car. After approximately fifteen or twenty seconds appellant emerged but with his back to the officers and with his hands concealed. It appeared to the officers that he was placing something inside the front waistband of his pants as he turned toward them. Officer Martin drew his pistol, ordered appellant to put his hands against the vehicle, and proceeded to search him, removing from his pants a packet enclosed in aluminum foil which proved to be a solid mass of rock cocaine.

Appellant contends the mere fact that a person is validly arrested does not mean that he may be subject to any search which the arresting officer feels is necessary, citing Tinetti v. Whittloe, 479 F. Supp. 486, aff'd, 620 F.2d 160 (7th Cir. 1980). We take no exception to that expression of the law, other than to note the search in Tinetti consisted of a custodial strip search of a female traffic violator, where there was no evidence to suggest she was concealing weapons or contraband. We see little comparison between Tinetti and the case at bar.

Appellant also submits that the officers used the speeding factor as a pretext for stopping the appellant so that they could conduct a search for contraband, citing Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986). But here, too, we find material differences in the facts. There were circumstances in Richardson which arguably supported the conclusion that the arrest for public intoxication was merely a guise to gain evidence in connection with a homicide of which Richardson was suspected. But here the proof is unchallenged that appellant was driving 75 miles an hour in a 55 mile an hour zone, which provided ample basis for his being stopped. Nor is there any evidence that the police had a dual purpose in mind in stopping appellant. See Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986).

Appellant maintains there were no specific and articulable facts giving Officer Martin cause to fear for his safety, and thus no basis for conducting a protective Terry search. Officer Martin could have lawfully arrested the appellant for speeding. Had he done so it would have been proper for him to perform a thorough search incidental to a lawful arrest. Presumably Officer Martin intended only to issue a citation for the traffic offense, but when appellant’s behavior raised safety concerns, a protective search was in order. The officer testified that he became fearful for his safety when the appellant first emerged from his car, reentered the car and then failed to respond to directions to get out. Additionally, when he did get out, appellant kept his hands out of sight as he proceeded to conceal something on his person before turning around.

Officer Martin conducted a pat-down search of the appellant, and only after feeling an unidentifiable hard object in the appellant’s waistband was there an incursion into the appellant’s clothing. The officer removed a ball of aluminum foil and testified that he opened the aluminum ball because there are weapons small enough to be concealed by this object, although he believed that the foil probably contained contraband. The basis for the officer’s search was one of safety, and not of searching for drugs. In Johnson v. State, 21 Ark. App. 211, 730 S.W.2d 517 (1987), the police officer received a tip from an informant that Donnell Johnson possessed and was selling drugs. Officer Timmons testified that he proceeded to location and frisked Johnson to check for a weapon and to see if Johnson had drugs on him. Here, the officer inadvertently discovered the contraband while conducting a lawful Terry search. Just as a full search incident to a lawful arrest requires no added justification, a limited search incident to a lawful stop must at times be performed expeditiously. Terry v. Ohio, 392 U.S. 1 (1968) (Justice Harlan concurring).

In determining the lawfulness of a search of this kind, two considerations arise: (i) whether the officer is properly in the presence of the party “frisked” so as to be endangered if that person is armed; and (ii) whether the officer has a sufficient degree of suspicion that the party frisked is armed and dangerous. LaFave & Israel, Criminal Procedure § 3.8 (1984). In this case, unlike Terry v. Ohio, supra, there is no question about the propriety of the initial restrictions on the appellant’s freedom of movement. The appellant was observed flagrantly violating a traffic ordinance. As for the second consideration, the officer pointed to specific facts available to him at the moment of the search which would warrant a person of reasonable caution to search for weapons.

As to the evidentiary use of the cocaine, we held in Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980), that evidence discovered as the fruit of a reasonable and lawful pat-down search is properly admissible. Likewise, the Supreme Court has failed to adopt a special exclusionary rule for frisk situations to the effect that only weapons are admissible. LaFave & Israel, Criminal Procedure § 3.8 (1984). In fact, that court has expanded the legitimate scope of a Terry search to include the interior of an automobile and noted that “if the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.” Michigan v. Long, 463 U.S. 1032(1983). The trial court properly admitted the cocaine.

The appellant also contends that the police reports of Officers Martin and Temple were diametrically opposite to their trial testimony and thus should not have been accepted by the court. Officer Martin wrote in his report the appellant placed a ball of aluminum foil down the front of his pants, yet at trial Officer Martin testified the appellant placed an unknown object in his pants. When asked about this discrepancy, Martin explained that he wrote the police report after he had searched and arrested the appellant and knew the nature of the object. Similar inconsistencies concerned what the officers included or failed to include in their police reports. But these were not matters of consequence and substantively the reports and the testimony of the officers were consistent. Minor discrepancies, conflicts and inconsistencies are for the jury to assess in weighing the testimony. Hurvey v. State, 298 Ark. 289, 766 S.W.2d 926 (1989).

AFFIRMED.

Purtle, J., and Glaze, J., dissent.

John I. Purtle, Justice,

dissenting. The appellant was stopped for speeding. The officers drew their weapons and ordered him to stand spread-eagled with his hands on the vehicle he had been driving. They then searched him and found a small, soft packet of drugs concealed in the front of his trousers.

The mere fact that the appellant was searched after having been stopped for speeding compels suppression of the evidence. There was no justification for a search under the circumstances. Traffic violations, in themselves, do not give rise to a right for the police to search every driver stopped. If so, the need for search warrants has been greatly reduced.

One of the reasons offered by the majority in support of the search is that the appellant got out of the car with his hands in front of him and his back to the police. My observation is that most drivers get out of their vehicles with their hands in front of their bodies and their backs toward the rear of their vehicles.

The officer’s own statement concerning the actual search in this case is revealing. He said: “What I felt was an unknown object to me. At the time it did not feel like a weapon. Immediately I removed it from his waistband.” The officer did not believe that the small, soft object in the front of the appellant’s trousers was a weapon and did not fear that he would be injured by it. When the small, soft object appeared to contain drugs, the officer apparently forgot about the traffic ticket idea.

Arkansas Rules of Criminal Procedure, Rule 3.4 reads:

If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.

Not only did the arresting officer not “reasonably” suspect that the appellant was armed and “presently” dangerous — according to his testimony, he did not suspect it at all. Compare the present situation, involving a small, soft object, with the glass pill bottle in Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980), which this court determined to be similar enough in size and shape to a knife to warrant further examination by the arresting officer.

Traffic violations do not necessarily entail the use of weapons or drugs. To allow the police routinely to search for weapons in all such instances would constitute an intolerable and unreasonable intrusion into the privacy of the vast majority of peaceable citizens who travel by automobile. It follows that a warrantless search for weapons in traffic violation cases must be predicated on specific facts or circumstances giving the officer reasonable grounds to believe that such weapons are present on the person or in the vehicle he has stopped. See Sibron v. New York, 392 U.S. 40 (1967). See also People v. Superior Court of Yolo County, 478 P.2d 449 (Calif. 1970), where the California Supreme Court held that, when a police officer observed the passenger in an automobile stopped for speeding bend down and the driver walk toward the patrol car without waiting for the officer to approach, such behavior did not justify a belief that the two were in possession of weapons.

The evidence in this case was obtained on a pretexual basis and was completely unwarranted by law or precedent. I would reverse and remand with instructions to suppress the evidence produced as a result of the illegal search.


author: Steele Hays, Justice.

text:
    Robert FINDLEY v. STATE of Arkansas
    CR 89-48
    778 S.W.2d 624
    Supreme Court of Arkansas
    Opinion delivered October 30, 1989
    [Rehearing denied December 4, 1989.]

      Val P. Price, for appellant.

      Steve Clark, Att’y Gen., by; Kay J. Jackson Demailly, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Robert Findley appeals from his capital felony murder conviction resulting in a sentence of life without parole. We find merit in one of the assignments of error and, accordingly, the case is reversed and remanded.

In March, 198 8, the Trumann, Arkansas Police Department began an investigation into the disappearance of David Phillips. Phillips had withdrawn $1,800 in cash from his savings account on Wednesday, March 2. Phillips told co-workers on the night shift at the plant where he worked that he had given $1,700 in cash to Robert Findley to buy a 1987 Tempo automobile through a Memphis contact of Findley’s. The car was to be delivered to Phillips by Findley that evening during the 10:00 p.m. break. Because Phillips had neither a bill of sale nor a receipt the others teased him for having been “ripped off.” When Findley had not arrived with the car by 11:00 p.m. Phillips left work early to investigate. Next day Phillips told his co-workers there had been some problem about getting title to the car, but that he was to get delivery on Friday. Phillips was last seen by his co-workers on Thursday, March 4.

On March 9 and again on March 10, at the request of the Trumann police, Findley went voluntarily to police headquarters. He was questioned informally on March 9 and returned on the 10th for a taped interview. He was not under arrest. After his Miranda rights were explained, Findley told Lt. Toddy he and Phillips had gone to Memphis on Wednesday, March 2, to look at cars being sold by Ron Davis, an acquaintance of Findley’s. Phillips saw a Tempo that he wanted so they came back to Trumann, where Phillips made a withdrawal from his savings account and gave $1,700 to Findley to buy the car while Phillips was at work. Findley said he agreed ,to bring the car to the plant that night but because of a flat tire he decided to go the following day. He said that sometime after midnight Phillips came to his house and wanted his money back, which Findley said he gave him; that on Friday afternoon he and Phillips went back to Memphis but were unable to contact Ron Davis and Findley said he told Phillips to “forget it.” Findley dropped Phillips off at his house in Trumann and later that evening, at his wife’s urging, he went back to invite him over to play cards. Phillips declined and Findley said that was the last time he saw him. Findley denied any knowledge concerning Phillips’s whereabouts or disappearance. After the taping Findley left the station.

On Thursday, March 24, the body of David Phillips was discovered in a drainage ditch in Craighead County, weighted with concrete blocks. Death was attributed to multiple bullet wounds in the upper torso from a weapon which later proved to be Findley’s. On the following day Robert Findley was arrested on ■ an outstanding hot check charge and taken first to Trumann Police Headquarters and then to the Craighead County Sheriffs Office. Between March 27 and March 29, Findley gave the police three statements. In the first he implicated James Moore, who had, he said, told him he had robbed and killed Phillips with a pistol belonging to Findley, which Moore had stolen. In the second Findley said that Ron Davis had robbed and then killed Phillips in Findley’s presence, that Findley had then brought the body back from Memphis and Moore had helped him dispose of it. In the final statement Findley said that he and Moore had planned to rob Phillips, though not to murder him, but that Moore had shot Phillips in the course of the robbery.

Findley’s first assignment of error and the one that necessitates reversal concerns the denial of his motion to suppress the statements he gave after he was taken into custody. Appellant argues that once an accused asserts the right to refuse interrogation by police officers any statements obtained thereafter are inadmissible, unless it is the accused who initiates further conversation with the officers. That principle of law was expressed in Edwards v. Arizona, 451 U.S. 477 (1981):

“. . .we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold, that an accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him. . . .” [451 U.S. at 484-485].

This court has adhered to that standard in a number of cases: Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988); Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985); Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985).

Applying that principle to this case, we are reminded that custodial statements are presumed to be involuntary and thus the burden rests upon the state to prove Findley’s statements were properly obtained, freely and intelligently given, without fear or favor. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988); Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). Moreover, while we concede the trial judge is better able to assess credibility, we review the proceedings below independently of the trial court and base our conclusions on the totality of the circumstances. Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985); Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981). Viewed in that light, if we find the evidence to preponderate against the findings of the trial court, then it is our duty to reverse.

At the suppression hearing Robert Findley insisted that he asked to have a lawyer present during interrogation and at other times for the questioning to stop until a lawyer was present. He contends these requests were disregarded or brushed aside with the comment that he did not need a lawyer. He maintains that he was alternately threatened by intimations of being “taken out in the country” or enticed by assurances of assistance. Believing that the officers intended to help him, he testified that he eventually agreed to give a taped statement which included an assertion that he was speaking voluntarily and without the desire for a lawyer.

If those contentions were unsupported, we would have little hesitancy in adopting the trial court’s view that Findley’s testimony lacked credibility. But they are not. In fact, we find persuasive corroboration from a number of factors in the record. Ed Barry, a Jonesboro attorney, testified that about a week before being arrested Findley consulted him about representing him and Barry quoted a fee and retainer which, he understood, Findley was trying to raise. Then on the morning of March 25, Findley called Barry in an excited state to say that he had learned he was about to be arrested and Barry said he told Findley what to expect and what to say in regard to having an attorney present before being questioned.

When Barry learned an hour or two later that Findley had been arrested, he called the Craighead County Sheriffs Office and spoke to Lt. Brogden, telling him that Findley should not be questioned without a lawyer. He said about 3:30 or 4:00 p.m. Findley called him from the sheriffs office and Barry said he told Findley to hold the telephone away from his ear and repeat the following words so that Barry could hear them being spoken, “I don’t want you to talk to me until my lawyer is present.” Findley told him Officer Bud Moxley was in the room with him as he repeated the message. Neither Lt. Brogden nor Officer Moxley denied Barry’s testimony and Barry’s contact in Findley’s behalf is further evidenced by the fact that Barry’s name and telephone number were written by one of the officers at the top of the Miranda form signed by Findley. Curiously, another Miranda form signed by Findley in conjunction with the statement dated March 28, was missing and could not be produced.

The state’s response to Barry’s testimony is that Findley was merely “parroting” what Barry told him. Assuming that to be an accurate characterization of the proof, it does not alter the result. Findley was expressing, whether spontaneously or by rote, the constitutional privilege afforded him under the Fifth Amendment. He was entitled to have the privilege respected.

From what has been said, it should be clear we find Barry’s testimony credible. But there is additional corroboration. At least five officers were involved in the interrogation of Findley. Three of them stoutly denied that Findley ever requested counsel, but the testimony of two, Lt. Toddy and Jerry Bland, Chief of the Trumann Police Department, makes it clear Findley made known his desire for an attorney. During his testimony in chief, the prosecutor asked Chief Bland:

Q: Did Mr. Findley appear to understand his rights?
A: Yes, sir.
Q: Did he ever ask Officer Howell to stop, that he wanted an attorney present?
A: Yes, he did.
Q: Okay. Let me back up. Did he tell Officer Howell to stop, that he didn’t want to answer any questions, that he wanted an attorney present?
A: No he did not. He just made a statement that he thought he needed an attorney. Then he went on to say, well, I will talk to you. [Our emphasis.]

While that testimony appears ambivalent, it is clear that at the very least Findley voiced the need for an attorney. The testimony of Lt. Toddy adds credence to that conclusion. At two separate points in the suppression hearing Lt.Toddy testified unequivocally that Findley told him he wanted a lawyer present.

Q. And did he ever at the beginning of this or at any time ever tell you that he wanted an attorney present or he wanted to remain silent, he wanted to do anything in those that are outlined in those rights which are contradictory with giving a statement?
A: Between /io and somewhere — let me look in my file for a minute (witness examining file). On March 12th he indicated that he wanted an attorney and I ceased talking to him. [Our emphasis.]

Recalled to the witness stand at a later point, Lt. Toddy again testified, “As I stated earlier he indicated to me on the 12th of March that he wanted an attorney and I didn’t talk to him anymore.”

Plainly Lt. Toddy was mistaken as to the date, as Findley was not in custody on March 12. Nor is it likely that Lt. Toddy could have been referring to March 10. At that point all the police knew was that David Phillips was missing, and while they may have suspected Findley of foul play, he was not under arrest, had come to the station voluntarily and left after supposedly telling the police all he knew. Thus it is implausible that Findley would have requested a lawyer on March 10 and nothing in the statement itself suggests that the questioning was terminated because Findley wanted an attorney. After some six pages of questions and answers the recorded interview simply states, “End of statement.” Thus we think Lt. Toddy’s testimony, while faulty as to the date, is substantively accurate and supports the conclusion that Findley did, as he maintains, request counsel during the course of his custodial detention.

When the facts and circumstances established at the suppression hearing are examined in their entirety, and weighed against the rule that custodial statements are presumed to be involuntary, Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985), we cannot avoid the conclusion that Findley made it clear that he was invoking his rights under the Fifth Amendment and that he never thereafter initiated any renewal of the interrogation process so as to permit the resumption of questioning. Edwards v. Arizona, 451 U.S. 477 (1981). Indeed, the state does not even contend that Findley initiated renewed questioning.

In reaching this decision, we are not relying on Ed Barry’s status as an attorney acting on behalf of Robert Findley. He candidly admitted that he had not been retained by Findley, that his employment was entirely prospective. It is enough that in his role as a participant or witness to the events surrounding the arrest, custody and interrogation of Robert Findley, Barry’s testimony undergrids the conclusion that Findley himself made known his desire to assert his Fifth Amendment right to counsel. That alone is sufficient here.

We note, too, that Findley’s argument that his statements were given in hope of reward is not entirely unfounded. Chief Bland testified he told Findley:

. . .We don’t want you to do anything except tell the truth. We are not here to make any deals with you. We are not here to make any promises that we can’t fulfill. All we want is the truth. I am not going to tell you something and this is all being taped and we can’t deny it and you can’t deny it. You are getting yourself in bad, bad business if you don’t tell the truth. You are facing some serious trouble if you don’t lay all of the stuff out here. You may be facing some anyway, but we cannot promise you anything. We can try to help you in a lot of ways and can give you a lot of help and advice providing that you lay this thing out here. But again, I don’t want you to get hemmed up and say that we are going to make a deal with you. That is not the point. The point that I am trying to get across is to tell the truth, tell the truth now. (T. 249.) [Our emphasis.]

We do not decide whether those comments per se would invalidate a confession; it is enough to note they come perilously close. Promises of “a lot of help and advice” to an accused undergoing interrogation are seldom rooted in fact and, more often than not, prove to be a false hope.

While reversal on the foregoing point of error renders the remaining arguments moot, we mention two other assignments of error. One concerns the denial of a motion for a mistrial. During the state’s case the taped statements of Robert Findley were played for the jury to hear. The state had agreed to omit portions of the recording which referred to a polygraph examination Findley had taken. However, in the process of playing the tape the references were not deleted and the jury may have heard the word “polygraph” mentioned twice. It seems unlikely that this inadvertent mistake would recur on retrial.

Lastly, Findley submits the trial court should have granted his motion for a directed verdict at the close of the state’s case based on insufficiency of the evidence of a robbery, the underlying felony of the capital felony murder charge. We disagree with the argument.

Robbery is defined in Ark. Code Ann. § 5-12-102(a) (1987):

A person commits robbery if with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

In determining the sufficiency of the evidence, we review the proceedings before the trial court without first excluding evidence which may have been erroneously admitted. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). There are several theories by which the jury could have inferred from the evidence that David Phillips was murdered in conjunction with a robbery as defined in the statute. For one thing, one of Findley’s statements to the police explained that he and Moore planned a robbery, but Moore went further than Findley intended and shot Phillips with Findley’s gun. Another statement was that Findley had returned the money to Phillips on Wednesday night and the evidence in its entirety supports an inference that Phillips was murdered a few days later to recover the funds which Findley knew Phillips was carrying.

Findley also argues that at most the state’s proof established no more than a theft by Findley of Phillips’s $1,700 followed by a murder four days later, too distant, he maintains, for compliance with the requirement of the robbery statute that the use of force occur “immediately thereafter.” But, as we have noted, the evidence was such that the jury could infer that Findley killed Phillips either to obtain the funds or to silence Phillips when he demanded the return of his money. In Hall v. State, 299 Ark. 209, 772 S.W.2d 317 (1989), we considered an analogous challenge to the applicability of the first degree murder statute, Ark. Code Ann. § 5-10-102 (1987), which defines the offense as including a death occurring during “immediate flight” from the commission of a felony. Hall was seen by the police driving a car which had been stolen five days earlier. Hall sped away and in the ensuing chase he struck and killed a pedestrian. Hall was convicted of first degree murder, theft by receiving and fleeing. His arguments on appeal included the proposition that because the theft had occurred five days earlier, he was not in “immediate flight” from the commission of a felony. This court rejected that premise on the reasoning that theft by receiving was a continuing offense, citing State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1978).

For the reasons stated, the judgment is reversed and the case remanded to the trial court.

       Record, p. 153.

       Record, p. 173.

       Record, p. 266.