author: W.H. “Dub” Arnold, Chief Justice.

text:
    Louis ETOCH v. STATE of Arkansas
    97-627
    964 S.W.2d 798
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998

      Louis A. Etoch and Edward W. Chandler, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

This case presents a

question regarding the discipHne of attorneys-at-law. The primary issue on appeal arises from the Monroe County Circuit Court’s order holding Louis Etoch in contempt of court and fining him $250.00. First, Etoch challenges this contempt order. Second, Etoch contends that the trial court erroneously prompted the State to move for a mistrial. Third, Etoch contests the trial court’s charging him $780.00 in juror fees after granting the State’s motion for mistrial. Finding no merit in appellant’s arguments, we affirm the trial court’s contempt order and its order assessing defense counsel juror fees.

Attorneys Louis Etoch and Edward Chandler represented Kimberly Whitaker in criminal charges relating to the death of Jamison Williams. Whitaker was initially charged as an accomplice to capital murder, but the charges were later reduced to accomplice to first-degree murder. During her trial before the Monroe County Circuit Court, which preceded Devrick “Dee” Meachum’s trial for the capital murder of Jamison, Whitaker’s defense attorneys suggested that if Whitaker was an accomplice to Meachum, Meachum was acting in self-defense.

In furtherance of its theory, defense counsel Etoch attempted to elicit certain testimony from the State’s first witness, Detective Tim Prestwood, the police officer in charge of the Jamison murder investigation. Prior to trial the State and defense counsel had agreed to stipulate to an autopsy report prepared by the state medical examiner. The medical examiner’s report included the following notation: “Recovered loosely on the right testicle a plastic bag containing multiple gray-white crystalline, irregular, drug-like material.”

Subsequently, the State filed a motion in limine requesting that the language, regarding what was determined to be 1.7 grams of crack cocaine, be struck from the medical examiner’s report. Defense counsel objected to the exclusion, arguing that the evidence was relevant to their theory of the case, particularly that the language demonstrated evidence of the victim’s violent character. Specifically, the defense contended that the evidence was relevant to the issue of who was the aggressor and whether or not the accused, Whitaker, reasonably believed she was in danger of suffering unlawful deadly physical force. After hearing counsels’ arguments, Judge L.T. Simes, II, held that the language regarding the drugs “does not come in” and that the defendant, Whitaker, could not have known at the time of the killing that Jamison had 1.7 grams of cocaine on his right testicle.

During the State’s direct examination of Detective Prestwood, Prestwood testified that his investigation indicated that the victim was entering Ned’s Café at the time of the shooting and that he had been shot from behind. On cross-examination, Etoch attempted to impeach Detective Prestwood’s statement by asking the following question:

You know Jamison Williams could not enter Ned’s Café because of those pictures right there (indicating). Ned does not allow anyone in his café who had drugs on them, and Jamison had 1.7 grams of crack on him when he died, didn’t he?

Etoch was referring to a sign by the front door of Ned’s Café that stated, “You cannot bring liquor or drugs inside” and the medical examiner’s discovery of the 1.7 grams of crack cocaine on the victim’s testicle.

Following the State’s objection to Etoch’s question, Judge Simes moved the discussion to his chambers, outside the presence of the jury. After allowing the attorneys an opportunity to respond on the record, Judge Simes recalled his ruling on the State’s motion in limine. He reiterated that he had examined the Arkansas Supreme Court rules and had advised the parties that he believed the stricken language to be extremely prejudicial. He advised the attorneys that he had ruled on the issue and now found that Etoch had disregarded that ruling.

Moreover, Judge Simes concluded that Etoch’s conduct was deliberate with respect to how the question was phrased, particularly in his reference to the items of cocaine. Judge Simes deduced that there was no misunderstanding about his ruling but that defense counsel disagreed with the court’s ruling and strategically decided to proceed. Judge Simes also noted that defense counsel did not seek further instructions from the court but specifically went into an area specifically prohibited. Accordingly, the trial judge found Etoch in contempt of court for intentionally disregarding the court’s order and fined him $250.00.

Where fines were imposed, as here, and the punishment could not be avoided by an affirmative act, the case is one of criminal contempt. The standard of review in a case of criminal contempt requires this Court to view the record in the light most favorable to the trial judge’s decision and to sustain that decision if it is supported by substantial evidence and reasonable inferences. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995). If an act interferes with the order of the court’s business or proceedings or reflects upon the court’s integrity, that act is deemed contemptuous. A court’s contempt power may be wielded to preserve the court’s power and dignity, to punish disobedience of the court’s orders, and to preserve and enforce the parties’ rights. Moreover, while an attorney may make a proper objection to a court’s ruling, once made, the attorney should abide by that ruling so long as it remains in effect. An attorney should not engage in conduct that offends the dignity of the court. Hodges, 321 Ark. at 14.

Significantly, where the failure or refusal to abide by a court’s order is the issue, this Court does not look behind the order to determine whether the order is valid. Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993). In Carle, the appellant argued that his constitutional and statutory rights were impinged because the judge conducting the contempt proceedings refused to consider, in defense of the appellant’s contempt charge, that the trial court abused its discretion in ordering appellant to proceed to trial. Responding to the appellee’s contention that the judge had made a finding that the trial court had not abused its discretion, this Court noted the long-settled law that we do not look at the validity of the underlying order. Carle, 311 Ark. at 480.

This Court’s decision in Carle recalled an earlier decision in Meeks v. State, 80 Ark. 579, 98 S.W. 378 (1906), where we upheld a contempt order and refused to review the underlying order. In Meeks, we declared that the fact that a decree was erroneous would not excuse disobedience on the part of those bound by its terms until the order was reversed. Meeks, 80 Ark. at 582. The United States Supreme Court agreed with this principle in United States v. Rylander, 460 U.S. 752 (1983), when it stated:

It would be a disservice to the law if we were to depart from the long-standing rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. The procedure to enforce a court’s order commanding or forbidding an act should not be so inconclusive as to foster experimentation with disobedience.

Rylander, 460 U.S. at 756-57 (quoting Maggio v. Zeitz, 333 U.S. 56, 69 (1948)).

Notably, there are exceptions to this general rule. If the contemnor was making a legitimate and successful challenge to the validity of the order, we may look beneath the order and recognize substantive error as a defense to contempt. See Carle, 311 Ark. at 481-82. However, where the contemnor merely refused to comply with an order that was clearly within the court’s jurisdiction and power, we will not look behind that order. Id. at 482.

A court order must be in definite, express terms, rather than implied, before a person may be held in contempt for violation of that order. Hodges, 321 Ark. at 17. Here, the trial court thoroughly visited, during the pre-trial discussion of the State’s motion in limine, the issue of the exclusion of the language regarding the crack cocaine. Again, at the time of the State’s objection to Etoch’s cross-examination of Detective Prestwood, the trial judge discussed in chambers his prior ruling and gave each party time to respond on the record before reiterating his ruling. The trial judge believed his order was clear and that Etoch deliberately disobeyed that order.

Viewing the record in the light most favorable to the trial judge, there is substantial evidence in the case at bar to support the holding of contempt when Judge Simes clearly instructed Etoch that the language from the state medical examiner’s report regarding the crack cocaine “does not come in” because he believed it was extremely prejudicial and that the defendant, Whitaker, had no knowledge that the drugs were on the victim’s person. In clear defiance of that order, Etoch proceeded to use the exact language during his cross-examination of Detective Prestwood. Accordingly, we find that the trial court did not err in holding Etoch in contempt and in fining him $250.00.

Etoch also assigns as error the trial judge’s comments made prior to the State’s motion for mistrial. Specifically, Judge Simes remarked, “I think you all are getting too involved in the defense of your case and making speculations and innuendoes before the jury. The prosecution has not asked for a mistrial, but I want you to know that I think I might grant one anyway.” Etoch argues that, in this manner, the trial court improperly prompted the State to move for a mistrial. However, Etoch lacks standing to raise this particular issue on appeal because he fails to explain how the trial court’s ruling granting the State’s motion for mistrial adversely impacted him, a necessary perquisite to standing. See Goodwin v. Harrison, 300 Ark. 474, 483, 780 S.W.2d 518 (1989). Neither does Etoch cite authority or make a convincing argument in support of his position, urging this Court to vicariously review the merits of the trial court’s order in the absence of the defendant as the real party in interest. Etoch merely asserts that the trial court erred by prompting the State’s motion for mistrial over the defendant’s objection, and he fails to demonstrate his personal stake in the outcome of the controversy. Accordingly, we decline to address appellant’s second point on appeal. See Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996).

In any event, the trial court’s order granting the State’s motion for mistrial cited Etoch’s deliberate violation of the court’s ruling regarding the crack cocaine reference and his continued improper comments and characterizations about testimony and evidence, in spite of the court’s rulings sustaining the State’s objections. Furthermore, the trial court found that Etoch’s responses to the State’s objections were not posed as legal arguments but constituted attempts to present the jury with objectionable and inadmissible information. The trial judge considered that the cumulative effect on the jury of defense counsels’ misconduct tainted the jury and deprived the State of a fair trial.

At the close of its order granting the State’s motion for mistrial, the trial judge concluded that the mistrial was a result of defense misconduct and assessed defense attorneys the costs of the trial, namely, juror fees in the amount of $780.00. In his third point on appeal, Etoch contends that this assessment constitutes error. However, Etoch fails to offer any authority or convincing arguments in support of his assertion, and it is not apparent without further research that his argument is well taken. Accordingly, we will not consider this point on appeal. See Williams, at 325 Ark.

In conclusion, we affirm the trial court’s contempt order, $250.00 fine, and its order assessing defense counsel juror fees in the amount of $780.00.


source: Caselaw Access Project

author: W.H. “Dub” Arnold, Chief Justice. Annabelle Clinton Imber, Justice,

license: Public Domain

text:
    PULASKI COUNTY v. JACUZZI BROTHERS DIVISION, Smith Fiberglass Products, Merico (Act 9 Industries) and City of Little Rock, Arkansas
    96-1333
    964 S.W.2d 788
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998

      Pat Crossley, for appellant.

      Thomas M. Carpenter and Melinda Raley, for appellee City of Little Rock.

      Friday, Eldredge & Clark, by: Barry E. Coplin and Clifford W. Plunkett, for appellees Jacuzzi Bros. Div. and Smith Fiberglass.

      Grobmyer, Ramsay & Ross, by: Robert R. Ross, for appellee Merico.
   W.H. “Dub” Arnold, Chief Justice.

Appellant, B.A. McIntosh, the Pulaski County Assessor, appeals from a judgment of the Pulaski County Circuit Court in favor of Appellees, (the City of Little Rock, Jacuzzi Brothers Division of Jacuzzi, Inc., Smith Fiberglass Products, Inc., and Merico, Inc.), holding that real property owned by the City and leased to Jacuzzi, Smith, and Merico should be removed from the ad valorem tax rolls because the property is exempt from taxation pursuant to Article 16, Section 5, of the Arkansas Constitution, and Act 9 of 1960, which implemented Amendment 49 to the Arkansas Constitution. Until 1991 McIntosh recognized that each of the City-owned properties was exempt from ad valorem taxes under Article 16, Section 5(b), of the Arkansas Constitution. Piowever, in 1991 McIntosh placed each of the properties on the Pulaski County tax rolls and challenged the continued exemptions, arguing that they were unwarranted after the City’s bonds, financing the acquisition of and improvements to the properties, have matured and been fully paid. The appellees sought to abate the tax assessment and prevailed in that action in the Pulaski County Court. On appeal, the Pulaski County Circuit Court agreed that the properties were entitled to the tax exemption. From that decision comes the instant appeal. Finding no merit in appellant’s arguments, we affirm.

The facts underlying this matter are not disputed. Pursuant to Amendment 49 to the Arkansas Constitution, Act 9 of 1960, and following voter approval, the City of Little Rock issued industrial development revenue bonds and used the proceeds to acquire and improve properties upon which Jacuzzi and Smith operate industrial plants, (and where Merico operated an industrial plant until December 31, 1995). Jacuzzi manufactures water pumps and other water systems equipment at its facility and employs approximately 200 people in its operations. Smith manufactures fiberglass pipe and related products and employs approximately 340 people.

In 1961 Jacuzzi was successfully recruited, as part of Arkansas’s industrial development program, to locate its manufacturing facility in Little Rock. Jacuzzi’s recruitment package included a financing plan to be achieved by the City’s issuance of its industrial development revenue bonds for the purpose of acquiring and improving certain real property for Jacuzzi’s use in its industrial operations, the execution of a lease by the City and Jacuzzi relating to that property, and the payment by Jacuzzi to the City of annual lease payments and specified payments in lieu of taxes, (PILOTs). The Jacuzzi lease provided for an initial twenty-year term, with five consecutive extension renewal options, each for a period of ten years. Jacuzzi exercised its renewal options under the lease, and since placed into service in 1961, the Jacuzzi facility has been continuously operated as an industrial plant. The lease also recites that the property is exempt from ad valorem taxes under the Arkansas Constitution. Since 1961 the property has remained exempt from ad valorem taxes, and Jacuzzi has made all required PILOTs to the City. The Act 9 bonds relating to the Jacuzzi facility matured and were fully paid on December 1, 1981.

Similarly, Smith was successfully recruited to locate in Arkansas in 1963. Smith’s recruitment package included low interest financing to be achieved through the issuance of Act 9 tax-exempt industrial development revenue bonds, the execution by the City and Smith of a lease of certain real property to Smith for Smith’s use in its industrial operations, and the payment by Smith to the City of PILOTs. Smith executed its lease in 1963 for an initial twenty-year term, with twenty consecutive extension options, each for a period of one year. Smith has continuously operated an industrial facility on the property, and, since 1963, the property has been exempt from ad valorem taxes, and Smith has made all required PILOTs to the City. The Act 9 bonds relating to the Smith facility matured and were fully paid on May 1, 1983.

Likewise, Arkansas’s industrial development program secured Merico’s industrial operations in the City of Little Rock. Merico opted to cease operation of its facility when its lease with the City expired on December 31, 1995. For purposes of this appeal, however, until December 31, 1995, the Merico facility presented a situation substantially identical to that of Jacuzzi and Smith.

It is well-settled that our standard of review in tax cases requires the taxpayer to establish an entitlement to an exemption from taxation beyond a reasonable doubt. Pledger v. C.B. Form Co., 316 Ark. 22, 25, 871 S.W.2d 333 (1994) (citing Pledger v. Baldor Int’l, 309 Ark. 30, 827 S.W.2d 646 (1992)). Moreover, a strong presumption operates in favor of the taxing power. C.B. Form, 316 Ark. at 25 (citing Ragland v. General Tire & Rubber Co., 297 Ark. 394, 763 S.W.2d 70 (1989)). Tax exemptions are strictly construed against the exemption, and this Court has held that “to doubt is to deny the exemption.” C.B. Form, 316 Ark. at 25 (citing Baldor, 309 Ark. at 33).

Article 16, Section 5(b), of the Arkansas Constitution provides that “public property used exclusively for public purposes” shall be exempt from taxation. Although Amendment 49 to the Arkansas Constitution is now repealed, it once provided the constitutional authority for industrial development bonds. Conceptually, Amendment 65 to the Arkansas Constitution has replaced Amendment 49 with respect to the issuance and purposes of revenue bonds. Amendment 65 also permits governmental units, like the City of Little Rock, to issue revenue bonds to finance all or a portion of the costs of facilities for the securing and developing of industry.

Act 9 of 1960, codified at Ark. Code Ann. §§ 14-164-201 to -224 (1987 & Supp. 1997), is known as the Municipalities and Counties Industrial Development Revenue Bond Law. These statutes are intended to “supplement all constitutional provisions and other legislation designed to secure and develop industry.” Ark. Code Ann. § 14-164-202. The statutes may also permit a municipality to issue bonds to accomplish that purpose. Ark. Code Ann. § 14-164-206. The Revenue Bond Law empowers municipalities and counties to develop industry by owning, acquiring, constructing, equipping, and even leasing facilities that can be used in securing or developing industry within or near the municipality or county. Ark. Code Ann. § 14-164-205.

Ark. Code Ann. § 14-164-701 (1987) declares and confirms that securing and developing industry is vital to the economic welfare of the State of Arkansas and its people. Significantly, that statute urges that “maximum flexibility” should be given to governmental entities in their efforts to “retain and expand existing, and locate new, industrial facilities.” Moreover, the statute explicitly applies to financings initiated under the Arkansas Constitution, Amendment 49, and provisions of the Revenue Bond Law. The statute embraces the exemption from ad valorem taxes of all industrial facilities which were exempt under Article 16, Section 5, of the Arkansas Constitution, as interpreted by this Court in Wayland v. Snapp, 232 Ark. 57, 334 S.W.2d 633 (1960). Further, section 14-164-701 contemplates that governmental entities and industrial concerns will negotiate and contractually agree to PILOTs.

Given the framework of Amendment 49 to the Arkansas Constitution and Act 9 of 1960, this Court first considered the issue of whether property was being used exclusively for a public purpose, in the context of a proposed Act 9 financing, in Wayland v. Snapp, 232 Ark. 57 (1960). According to our decision in Wayland, Section 1 of Amendment 49 clearly made the act of “secur ing or developing industry” a public purpose. Snapp, 232 Ark. at 65. This Court also noted that it has been liberal in its construction of constitutional amendments in order to carry out the obvious purpose of the people in adopting the amendments and that there is an “implied authority to employ reasonable means to carry out the purpose of the amendment.” Id.

The appellant in Snapp challenged a proposed bond issue under Amendment 49. The appellant reasoned that the county would not reap the benefits of the proposed project because the county issuing the bonds would not hold title to the building to be erected. In considering the purpose of Amendment 49, the Snapp Court recalled its determination in an earlier case that while others may benefit from a project, “the fact that benefits cannot be isolated, is no reason to preclude such benefits for those who properly come within the scope of the amendment.” Snapp, 232 Ark. at 65 (citing Myhand v. Erwin, 231 Ark. 444, 330 S.W.2d 68 (1950)). Further, the Snapp Court acknowledged that the prime objective of the people in that county in implementing the entire undertaking was not simply to erect a building but to alleviate unemployment. Id. The Snapp Court concluded that the county and the City of Batesville, where the industry was to be located, would reap the benefits of the project. The property in Snapp was used exclusively for a public purpose and, therefore, exempt from taxes under Article 16, Section 5(b), of the Arkansas Constitution.

The Snapp Court also held that the whole purpose for the adoption of Amendment 49, the passage of Act 9 of 1960, and the efforts of municipalities and counties in implementing those authorities was for the public welfare, which is “obviously and undoubtedly a ‘public purpose.’” Snapp, 232 Ark. at 72. The entire program was not meant for any other purpose, particularly not for the benefit of a private business. Any benefit a private business received from the entire undertaking was “entirely incidental.” Id. The analysis in Snapp addressed the entirety of a unique program —■ carved out by the people of this State by their adoption of Amendment 49 and created by our legislature by the passage of Act 9 of 1960 — designed for the purpose of developing and securing industry. The use of City-owned property in furtherance of this State’s industrial development program has been deemed a public purpose.

Like Snapp, the instant properties were all publicly owned at the times relevant to this appeal, and the City of Little Rock, like the City of Batesville, sought to secure and develop new industries to relieve unemployment. In that endeavor, the City of Little Rock initiated its industrial development program with respect to Jacuzzi, Smith, and Merico. The distinguishing fact in the instant case is that the bonds financing those projects have matured and been paid. The appellant contends that the City’s public purpose then ended.

However, even after the bonds financing the Jacuzzi, Smith, and Merico projects have matured and been paid, the City of Little Rock’s public purpose continues. The emergency clause of section 14-164-701 provides that the industrial development program of the State and her counties is “necessary for the achievement of the public benefits flowing from the retention or expansion of existing employment and the obtaining of additional employment and payrolls.” See Ark. Code Ann. § 14-164-701 (1987). Likewise, the City seeks to retain the existing industrial facilities, jobs, and payrolls that continue to be generated by Jacuzzi and Smith, (and by Merico until the end of 1995).

Certainly, the City of Little Rock was authorized to issue bonds in furtherance of its industrial development program. However, the issuance of bonds was but one component of the City’s program. Additionally, the City was empowered to execute leases and to enter into contracts, including PILOT agreements, to achieve its purpose of securing, developing, and retaining industry. Therefore, in the context of an Act 9 industrial development program, maturity and payment of bonds does not independently trigger the end of the public purpose and the end of the exemption from ad valorem taxes.

The appellant relies heavily on decisions of this Court involving the application and interpretation of Article 16, Section 5(b), of the Arkansas Constitution, where we have held that private use of public property was not for an exclusively public purpose. See Crittenden Hosp. Assoc. v. Board of Equalization, 330 Ark. 767, 958 S.W.2d 512 (1997); City of Little Rock v. McIntosh, 319 Ark. 423, 892 S.W.2d 462 (1995); B.D.T. v. Moore, 260 Ark. 581, 543 S.W.2d 220 (1976); Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960); and School District of Ft. Smith v. Howe, 62 Ark. 481, 37 S.W. 717 (1896). As the appellees correctly contend, these decisions are inapplicable in the instant case. None of these cases involved a municipality or county acting in furtherance of Amendment 49 or Act 9 of 1960 for the public purpose of securing and developing industry. These cases were decided outside the unique framework of authority underlying Act 9 industrial development programs and financings.

Our decision in City of Fayetteville v. Phillips, 306 Ark. 87, 811 S.W.2d 308 (1991), makes this distinction clear. The appellants in Phillips relied on the authority of Snapp to support their argument that a public entity’s construction of an arts center, to be used for a public purpose, was an exclusive public use under Article 16, Section 5(b). Rejecting that argument, we noted that Snapp concerned an industrial development project facilitated by Amendment 49 and Act 9 of 1960. We also stated that both the amendment and the act were intended to facilitate the procurement of industry, and that “the . amendment specifically describe[d] such an activity as a public purpose.” Phillips, 306 Ark. at 93. We further distinguished Phillips from Snapp by observing that, in Phillips, there was no comparable constitutional or statutory authority indicating that the proposed use would constitute an exclusive public purpose activity. Id.

We find that appellees have proved their entitlement to the exemption beyond a reasonable doubt and that the circuit court correctly held that the subject properties are entitled to an exemption from ad valorem taxes pursuant to Article 16, Section 5(b), of the Arkansas Constitution and consistent with our decision in Wayland v. Snapp. Accordingly, we affirm.

Newbern and Imber, JJ., dissent.

Special Justice Paul Lindsey, concurs.

Annabelle Clinton Imber, Justice,

dissenting. I must dis agree with the majority’s conclusion that property acquired under Act 9 of 1960 keeps its tax exempt status after the retirement of Act 9 bonds used to finance the acquisition of the property. The majority relies solely upon our language in Wayland v. Snapp, 232 Ark. 57, 334 S.W.2d 633 (1960), concerning the tax exempt status of Act 9 property. I am not persuaded, however, that Wayland supports the majority’s conclusions.

The majority correctly acknowledges the numerous decisions in which we have held that public property is not used exclusively for a public purpose under Article 16, § 5(b) of the Arkansas Constitution when that property has been used for a private purpose. See Crittenden Hosp. Assoc. v. Board of Equalization, 330 Ark. 767, 958 S.W.2d 512 (1997); City of Little Rock v. McIntosh, 319 Ark. 423, 892 S.W.2d 462 (1995); City of Fayetteville v. Phillips, 306 Ark. 87, 811 S.W.2d 308 (1991); Holiday Island Suburban Improvement Dist. #1 v. Williams, 295 Ark. 442, 749 S.W.2d 314 (1988); B.D.T. v. Moore, 260 Ark. 581, 543 S.W.2d 220 (1976); Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960); School Dist. of Ft. Smith v. Howe, 62 Ark. 481, 37 S.W. 717 (1896). The majority is also correct when it notes that the particular property in this case is tax exempt solely because of its unique status as property financed under Act 9. This court, in Wayland, carved out a specialized exception to our traditional Article 16, § 5(b) tax exemption analysis when we stated that “only where the title of property is acquired and the property itself is used by a city or county (or by both) pursuant to Act No. 9 and/or Amendment No. 49” is the property used exclusively for a public purpose. See Wayland, supra (emphasis added). It is the property’s unique characterization as Act 9 property that allows it to remain off the county tax rolls. The majority now seeks to expand the exemption perpetually. I cannot subscribe to such an outcome.

We noted in City of Fayetteville v. Phillips, supra, that Act 9 was intended to facilitate procurement of industry, and that Amendment 49 made the act of “securing or developing industry” a public purpose. In Wayland, we indicated that, together, Act 9 and Amendment 49 were designed for the purpose of developing and securing industry. Both of these goals have been accomplished. The bonds were issued, the land procured and leased out to private enterprises, and industry was secured. The bonds have now been retired. The property is no longer being “used by a city or county (or by both) pursuant to Act No. 9 and/or Amendment No. 49.” See Wayland, supra (emphasis added). Therefore, the property loses its tax exempt status under the limited exception carved out in Wayland for property financed under Act 9.

The property in this case has been leased to private industrial enterprises. The mere fact that the use of the property still alleviates unemployment, alone, is insufficient to grant tax exempt status. See Crittenden Hosp. Assn. v. Board of Equalization, supra; Holiday Island Suburban Improvement Dist. # 1 v. Williams, supra. In the Holiday Island case, concerning recreational property only open to property owners within an improvement district, we explained:

The District submits that “retirement” is an industry and Holiday Island promotes employment and other economic benefits to northern Arkansas. No doubt that is true, and if the issue here were tax exemption for the income from improvement district bonds, the public purpose might well be satisfied. But this is not the issue and it is clear the phrase “public purpose” is not an exact term .... [0]ur decision here deals only with a public purpose within the context of article 16 § 5(b).
Just as it is clear that ad valorem taxes could not be lawfully imposed upon the general public to maintain the cost of construction or maintenance of facilities used for private purposes, we can conceive of no valid reason why facilities restricted to private use should be exempted from payment of taxes assessed against other properties of a similar character.

I see no reason why property leased by Jacuzzi Bros., Smith Fiberglass, and Merico Inc. should be exempted perpetually from payment of ad valorem taxes. Once the benefit of Act 9 financing has been realized and the bonds have been fully retired, the property has ceased to be used by the City of Little Rock pursuant to Act 9 and Amendment 49. The property in question is now no different than any public property leased to a private enterprise that has not been financed under Act 9. Under these circumstances, we should follow our traditional analysis in determining the property’s tax exempt status and hold that the property is not exempt from taxation.

For the above reasons, I respectfully dissent.

Newbern, J., joins in this dissent.


author: Tom Glaze, Justice.

text:
    Jack GARRISON et al. v. CITY OF NORTH LITTLE ROCK
    97-642
    964 S.W.2d 185
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998

      David P. Henry, for appellants.

      Timoth Davis Pox, for appellee.
   Tom Glaze, Justice.

The appellants are North Little Rock property owners whose lots back up to and adjoin the northern boundary of a commercial development, Lakewood Village Subdivision. A platted forty-foot buffer zone divided the commercial property and the residential lots. Apparently the commercial development owner applied to the North Little Rock Planning Commission for a waiver of the buffer zone, and the request was granted. Immediately afterwards, the developer removed the trees and other greenery from the buffer zone, and built a retaining wall in place of the greenery.

Appellants filed suit in circuit court against the City of North Little Rock, alleging a wrongful taking of property. They asserted that the City’s action in granting the commercial developer a waiver was done without giving them notice and a hearing. This failure of notice and hearing, appellants alleged, violated city ordinances and represented a loss of a property right without due process and just compensation. The City answered, denying the appellants’ complaint, and subsequently moved for summary judgment. The City attached ten exhibits in support of its motion. After appellants filed their response, the circuit court granted the City’s motion, holding the appellants had no protected property interest in the platted buffer zone, so no due process rights were violated. Appellants brought this appeal, disagreeing with the trial court’s decision.

On appeal, the City initially argues the appellants have faffed to comply with this court’s abstracting requirements and submits this deficiency requires affirmance. We must agree. The transcript in this case is 395 pages, but 373 pages are omitted from the abstract. None of the ten exhibits to the City’s Motion for Summary Judgment were abstracted, which omissions include a “screening or buffering” ordinance exhibit and a planning commission regulation excerpt exhibit that dealt with buffer-zone strips located between commercial and residential properties. Nor have appellants provided us with the ordinance(s) that they claim give them a right to notice and a hearing before any waiver of buffer zones can be granted by the planning commission or City. And while the appellants claimed below that the planning commission’s regulations and the City’s “screening ordinance” gave them a property interest in the disputed forty-foot buffer zone, those regulations or ordinances are not a part of the abstract of record.

Appellants state in their reply brief that they did not abstract the ordinance establishing their entitlement to notice because such ordinance was not in the record. Such a concession, however, only suggests that the failure-of-notice issue they argue on appeal was not properly preserved at the hearing below. Also, while appellants attempt to justify the ordinance abstract omission by saying, “the City has not suggested appellants were not entitled to a notice or hearing,” their statement ignores the point that it is their burden to establish their due process argument and to demonstrate error.

In conclusion, the trial court below and the City on appeal point out that the appellants failed to cite any supporting legal authority for the proposition that the City’s action had deprived them of a constitutionally protected property interest in a buffer zone situated on adjoining real property. On this point, appellants mention only Ark. Const. Art. 2, § 13, which generally provides that every person is entitled to a remedy for all injuries or wrongs he may receive to his person, property, or character. They do cite Richardson v. City of Little Rock Planning Comm’n, 295 Ark. 189, 747 S.W.2d 116 (1988), but the Richardson decision does not involve the due process issue appellants attempt to raise here. Though appellants offer considerable factual discussion and argument bearing on this point for reversal, their supporting legal authority is severely lacking and requires further research.

Because appellants’ record, abridgement of record, and citation of supporting legal authority are so deficient that we cannot fully consider and decide their arguments on appeal, we must affirm. See Ark. Sup. Ct. R. 4-2(a)(6) and (b)(1) and (2) (1997); Stroud Corp., Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994); Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996).

       The abstract contains only the portion of the minutes of the September 20, 1994 meeting of the North Little Rock Planning Commission that shows the commercial development owner’s request for a waiver was approved. The application itself was not abstracted.


text:
    John E. MEDLOCK v. STATE of Arkansas
    CR 97-865
    964 S.W.2d 196
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998
    [Petition for rehearing denied April 16, 1998.]

      Michael Medlock, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant John E. Medlock brings this appeal following an earlier one decided in Medlock v. State, 328 Ark. 229, 942 S.W.2d 861 (1997). Both appeals involve his November 25, 1995 arrest for suspicion of driving while intoxicated (DWI) and refusal to submit to a chemical test. On June 25, 1996, he was tried on both charges; the trial judge found him guilty of the refusal-to-submit offense, but the jury trying Medlock on the DWI charge ended in a mistrial. Medlock appealed his refusal-to-submit conviction, and contended the trial court had erred in denying him a jury. We agreed, and on April 28, 1997, we reversed and remanded in Medlock I. However, before Medlock I was decided, the trial court retried Medlock’s DWI charge on January 24, 1997, and, this time, a jury found him guilty. Medlock now brings this second appeal, arguing three points for reversal.

In Medlock’s first argument, he submits the trial court erred in refusing his motion in limine in which Medlock sought to prevent the State from introducing evidence bearing on his having refused to take a breathalyzer test. Medlock argues such evidence violates Rules 609(a) and 404(b) of the Arkansas Rules of Evidence. We disagree. Regarding Medlock’s Rule 609 contention, we need say nothing more than that the State never mentioned at trial Medlock’s earlier refusal-to-submit conviction. Thus, because Rule 609 addresses impeachment by evidence of conviction of a witness offering testimony, the Rule simply is not an issue.

Medlock’s argument bearing on Rule 404(b), however, is a properly raised issue, but we conclude the trial court acted correctly when it ruled Medlock’s refusal to submit to a chemical test was admissible under the Rule. The State urged below, and the trial court agreed, that Medlock’s refusal to take the test was some evidence indicating guilt, and if such evidence had been excluded, the State would have been prejudiced, since the State would have been unable to show any blood-alcohol test results; nor could it have shown why such tests had not been taken.

Medlock’s response was somewhat confusing in places. Initially, he argued that his refusal charge should not have been admitted as evidence because that charge had been appealed, and was still pending. He suggested further that any prejudice that the State would have faced in the retrial of Medlock’s DWI offense could have been avoided by combining both charges (DWI and refusal to submit) in one trial after his appeal was decided.

Medlock’s point has been answered in the State’s favor by the court of appeals’ decision in Spicer v. State, 32 Ark. App. 209, 799 S.W.2d 562 (1990). There, Spicer was charged with DWI, speeding, and driving left of center. Prior to trial, he moved in hmine to prohibit the State from offering any evidence of his refusal to submit to a breathalyzer test. The trial court denied Spicer’s motion, and the appellate court affirmed on appeal. In doing so, the Spicer court stated that it appears a majority of courts in states without statutory authority have concluded that evidence of the refusal to take a chemical test is probative on the issue of intoxication, as a showing of guilt. In adopting this rule, our court of appeals looked to the Alabama Supreme Court case of Hill v. State, 366 So.2d 318 (Ala. 1979), which relied upon and quoted from the Ohio decision of City of Westerville v. Cunningham, 15 Ohio St.2d 121, 239 N.E.2d 40 (1968), as follows:

Where a defendant is being accused of intoxication and is not intoxicated, the taking of a reasonably reliable chemical test for intoxication should establish that he is not intoxicated. On the other hand, if he is intoxicated, the taking of such a test will probably establish that he is intoxicated. Thus, if he is not intoxicated, such a test will provide evidence for him; but, if he is intoxicated, the test will provide evidence against him. Thus, it is reasonable to infer that a refusal to take such a test indicates the defendant’s fear of the results of the test and his consciousness of guilt, especially where he is asked his reason for such refusal and he gives no reason which would indicate that his refusal had no relation to such consciousness of guilt.

While not directly in issue, our court cited the Spicer rule with approval in Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). Now, since that rule is in issue and bears on the circumstances before us, we adopt the rule as a sound one and find it dispositive of Medlock’s argument. Accordingly, we hold that evidence of Medlock’s refusal to submit to a chemical test can be properly admitted as circumstantial evidence showing a knowledge or consciousness of guilt, and that such evidence possesses independent relevance bearing on the issue of intoxication and was not being offered merely to show Medlock was a bad person. See Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980); see also Ark. Stat. Ann. § 5-65-206(b) (1987) (the provisions providing for chemical tests for determining the amount of alcohol in a defendant’s blood shall not be construed as limiting the introduction of any other relevant evidence bearing on the question whether or not the defendant was intoxicated).

Medlock’s second point for reversal is that the trial court erred in refusing to join his DWI and refusal-to-submit charges. Although he cites no authority for the proposition, Medlock urges that he had an absolute right to have the two charges joined. Medlock simply has failed to preserve this argument, since the record reveals no motion showing he requested a joinder of the two offenses. The rule is settled that joinder is not required of a prosecutor, Lockhart v. State, 314 Ark. 394, 862 S.W.2d 265 (1993), nevertheless, it is the duty of a party seeking relief to apprise the trial court of the proper basis upon which he relies in order to preserve an issue for appeal. Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992). Because the trial judge did not have a fair opportunity to rule on this severance issue, we will not consider it on appeal. Id. at 490.

Finally, we address Medlock’s third point wherein he assigns error to the trial court for allowing Officer Ron Keeling to testify as an expert in the area of hypoglycemic reactions. We first note that Medlock never objected to Officer Keeling’s credentials as an expert. The abstract reflects only that Medlock objected to Keeling’s testimony, without giving his reason. In any event, Keeling testified that he had received training with regard to DWI detection in connection with his law-enforcement training, and in addition served in the U.S. Army for twenty-three years, with eleven years as a special-forces medic. As part of his specialized training, Keeling testified that he was trained to detect signs or symptoms of diabetes, specifically hypoglycemic reactions. Keeling further testified as to the differences between intoxication and a hypoglycemic reaction, and stated that, at the time of Medlock’s arrest for DWI, Medlock did not exhibit the symptoms of an individual suffering from a hypoglycemic reaction.

Here, Keeling was qualified to testify as to the symptoms of a hypoglycemic reaction. Although Medlock contends Keeling’s testimony should have been excluded because he is not a doctor or a nurse, the rule is well settled that expert witnesses may be qualified by experience, knowledge, or training, and need not be licensed professionals. John H. Parker Constr. Co. v. Aldridge, 312 Ark. 69, 847 S.W.2d 687 (1993). Because the trial court did not abuse its discretion in allowing Keeling to testify as an expert, we affirm.

       Medlock’s position assumed that he would prevail in his appeal on the refusal charge, that his speedy-trial rights would not be violated as a result of the State’s delay in proceeding on the DWI charge, and that he was not entided to request a severance of the two charges on retrial. Of course, the trial court was not bound to make its ruling based on these contingent matters.

       Though not argued as a continuance motion, Medlock’s motion for joinder could only occur after Medlock I was decided and reversed for a new trial. We note as a passing reference Medlock’s inconsistency in argument to point one where he was seeking to keep the refusal-to-submit charge from the jury when trying the DWI offense.


author: Tom Glaze, Justice. Annabelle Clinton Imber, Justice,

text:
    David WILSON v. Arthur FULLERTON and Bradley Motor Company, Incorporated
    397-358
    964 S.W.2d 208
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998

      Bill G. Wells and Thomas D. Deen, for appellant.

      Epley, Epley, & Parker, Ltd., by: Tim S. Parker, for appellees.
   Tom Glaze, Justice.

Appellant David Wilson is a used car dealer who purchased three used trucks from appellees Bradley Motor Company, Inc., and its president, Arthur Fullerton. At the time of purchase, First State Bank of Warren held tide to two of the trucks that had been repossessed from a Mr. Thomas and Mr. Lephiew. Chrysler Credit Corporation possessed the title to the third truck, which is not at issue in this litigation. This appeal ensues horn Wilson’s suit against Bradley Motor and Fullerton wherein Wilson alleged the tort of deceit, claiming they willfully and wantonly refused to give him the titles to the Thomas and Lephiew trucks. Fullerton and Bradley Motor subsequently filed a third-party complaint against First State Bank, and asserted that the Bank was solely responsible for faffing to convey the two titles to Wilson. Wilson then brought suit directly against the Bank for the tort of conversion, alleging the Bank converted his titles after having been paid for them.

The parties’ dispute was tried to a jury which awarded Wilson a verdict against Fullerton for compensatory damages in the amount of $50,000.00 and $100,000.00 in punitive damages; against Bradley Motor for $25,000.00 in compensatory damages and $25,000 in punitive damages; and against First State Bank for $4,710.00 in compensatory damages. Afterwards on posttrial motions, the trial court found the verdicts inconsistent because the same jury instruction on compensatory damages was given against Fullerton and Bradley Motor, yet the jury returned different awards. Also, the court found that, because of the different theories of tort liability pursued against the Bank and Fullerton and Bradley Motor, Wilson had a potential for receiving a double recovery for the same economic loss.

The trial court, after reviewing the evidence, concluded that Wilson’s compensatory damages against both Fullerton and Bradley Motor amounted to $5,118.45. Because these same expenses incurred by Wilson involved the same economic loss attributed to First State Bank, the trial court ordered that Wilson could recover $4,710.00 on only one of the judgments against Fullerton, Bradley Motor, or the Bank, and not all three. In addition, the trial court reduced Fullerton’s punitive damages to $25,000.00 (the same amount awarded ágainst Bradley Motor), finding the jury’s larger amount resulted from passion and prejudice, likely due to Fullerton having failed to appear and defend his case. The trial court’s judgment was filed on August 30, 1996.

Unhappy with the trial court’s order reducing the jury verdict amounts for compensatory and punitive damages, Wilson filed this appeal on September 27, 1996, arguing that the trial court’s remittiturs were made in error. Since First State Bank satisfied its judgment on September 23, 1996, and filed it of record on October 7, 1996, in the full amount of $4,710.00, Wilson did not appeal from that judgment. However, Fullerton and Bradley Motor filed a timely cross-appeal, on October 2, 1996, asserting, as they did in their posttrial motions, that the evidence did not support the compensatory damages awarded. They further argue that, because compensatory and punitive damages are interwoven, any error made with respect to one award of damages requires a retrial of the whole case. Fullerton and Bradley Motor further argue that Wilson’s verdicts against them for deceit and against the Bank for conversion are mutually exclusive and amount to contradictory verdicts as well as double recovery.

After the parties filed their respective appeals and the Bank satisfied its judgment, Wilson, on May 21, 1997, caused a writ of execution to be issued against real and personal properties owned by Fullerton and Bradley Motor. Fullerton and Bradley Motor responded on May 22, 1997, by filing a corporate supersedeas bond in the amount of $25,749.84, and on May 23, 1997, the court stayed all executions, levies, and garnishments pending this appeal. Following Wilson’s action to execute on his August 30, 1996 judgment, Fullerton and Bradley Motor filed a motion to dismiss Wilson’s appeal. They first claim Wilson cannot appeal a judgment on the one hand and attempt to satisfy it on the other. Additionally, Fullerton and Bradley Motor submit that, under the election-of-remedies doctrine, Wilson’s acceptance of First State Bank’s satisfaction of Wilson’s conversion claim against the Bank requires the setting aside of his deceit claim against Fullerton and Bradley Motor. Because we agree with Fullerton’s and Bradley Motor’s first claim, we need not fully address their election-of-remedies argument at this stage. Instead, we will defer discussing that point when dealing with Fullerton’s and Bradley Motor’s cross-appeal.

In considering Fullerton’s and Bradley Motor’s dismissal argument, the rule is well established that the acceptance of benefits of a decree or judgment which are inconsistent with the relief sought on appeal, and detrimental to the rights of others, bars the appeal and requires its dismissal. See Shepherd v. State Auto Property & Casualty Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993); Anderson v. Anderson, 223 Ark. 571, 267 S.W.2d 316 (1954); Jones v. Rogers, 222 Ark. 523, 261 S.W.2d 649 (1953). Arkansas law is also well settled that the acceptance of an amount less than appellant contends is due him is an estoppel against his appeal only when, by seeking to gain more by the appeal, he risks a smaller recovery on reversal. Coston v. Lee Wilson & Co., 109 Ark. 548, 160 S.W. 857 (1913); see also Gate City Bldg. & Ass’n v. Frisby, 177 Ark. 252, 6 S.W.2d 537 (1928); Jones v. Hall, 136 Ark. 348, 206 S.W. 671 (1918).

Wilson argues that, if we affirm the trial court’s remittiturs, he will be entitled to no less than the reduced judgment. He is in error. In the present case, Wilson, by prosecuting his appeal, incurs the hazard of recovering less than was awarded him by the judgment appealed from. From the outset of this litigation, Fullerton and Bradley Motor have denied they owed Wilson any damages, including compensatory ones. Nonetheless, the jury awarded Wilson $25,000.00 compensatory damages and the trial court awarded such damages in the reduced amount of $5,118.45. Still, both Fullerton and Bradley Motor have continued their challenge to any compensatory damages by cross-appealing from the $5,118.45 judgment, as well as the punitive-damage judgment awarded against them. Clearly, when Wilson accepts the $5,118.45 judgment in compensatory damages against Fullerton and Bradley Motor, but seeks to gain more by his appeal, Wilson indisputably risks a smaller recovery.

Specifically, if Fullerton and Bradley Motor prevail in their appeal and obtain a new trial on the reversal and remand of this case, a jury on retrial could well determine no compensatory damages should be awarded. As a consequence, Wilson would not only risk the loss of the $5,118.45 judgment against Fullerton and Bradley Motor, but in this circumstance, he could also lose his reduced award of $25,000.00 in punitive damages. See Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988) (court held punitive damages are not recoverable unless compensatory damages are also awarded). At the very least, Wilson, on appeal, stands the possibility of having his $5,118.45 award against Fullerton and Bradley Motor reduced by the $4,710.00 payment made by the Bank, since Wilson accepted that payment during his appeal.

We add that, by filing a writ of execution in satisfaction of the remitted punitive damages, Wilson has also taken action that was detrimental to the rights of Fullerton and Bradley Motor. As a result of Wilson’s attempt at execution, Fullerton was forced to post a supersedeas bond and obtain a stay of execution. Had Fullerton not done so, Wilson could have successfully executed the writ, and thereby possibly accept and benefit from the full amount of the remitted judgment. Such action is entirely inconsistent with the claim of right Wilson seeks to establish on appeal.

In sum, when Wilson voluntarily accepted partial satisfaction of the judgment, and later issued a writ of execution in an effort to satisfy the entire judgment against Fullerton and Bradley Motor, he knew there was a dispute as to whether he would be entitled to the remitted’judgments he had obtained. He knew both Fullerton and Bradley Motor had challenged all amounts of damages owed, and was well aware that they intended to continue that challenge, since they had filed a cross-appeal. Wilson, has, therefore, waived his right of appeal by virtue of his execution efforts and the satisfaction of judgment against First State Bank. Consequently, his appeal must be dismissed.

We now turn to Fullerton’s and Bradley Motor’s cross-appeal. In doing so, we consider the two points they offer for reversal, dismissal, or for a new trial or directive as to the effect of the Bank’s satisfaction of Wilson’s $5,118.45 judgment against Fullerton and Bradley Motor. In their first point, they argue the evidence adduced at trial was insufficient to support compensatory damages, and because compensatory and punitive damages are interrelated, the entire damage award required reversal and a retrial. As previously mentioned, the jury returned a verdict against Fullerton and Bradley Motor for compensatory and punitive damages. However, Fullerton and Bradley Motor asked not only that the damage verdicts be set aside because of insufficient evidence, but also made the alternative request that the trial court reduce the amount of any judgment to the amount consistent with the proof presented. As discussed earlier herein, the trial court granted a reduction in damages, and Fullerton and Bradley Motor never objected. Because Fullerton and Bradley Motor asked for and received a reduction in the compensatory and punitive damages awarded against them, they cannot on appeal complain of a ruling in their favor. See Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993).

Fullerton’s and Bradley Motor’s second point for appeal is not as easily answered. Actually, this point encompasses several arguments. They initially argue that the trial court erred by permitting Wilson to pursue two mutually exclusive remedies. In sum, Fullerton and Bradley Motor urge that Wilson should not have been allowed to say they had committed the tort of deceit by fraudulently selling vehicles and willfully refusing to deliver the titles as promised, but at the same time, claim First State Bank had converted the titles after Fullerton and Bradley Motor paid the Bank to release the titles. Fullerton and Bradley Motor argue that, while a jury could have found against either Fullerton and Bradley Motor or the Bank, Wilson could not recover against all of them. Of course, the trial court recognized this inconsistency, and as we discussed previously, the trial court entered a judgment which avoided double recovery, ordering that Wilson could only recover $4,710.00 from one of the defendants, Fullerton, Bradley Motor, or the Bank, not all of them. Again, Fullerton and Bradley Motor never challenged that part of the trial court’s order below, and they may not do so now. See Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996).

However, Fullerton and Bradley Motor are quite right that they had no opportunity to raise their election-of-remedies doctrine at trial, because the Bank’s satisfaction of the trial court’s award of $4,710.00 in compensatory damages was not filed until after Wilson filed his notice of appeal. The election-of-remedies doctrine bars more than one recovery on inconsistent remedies. Cates v. Cates, 311 Ark. 627, 846 S.W.2d 173 (1993); see also Jones v. Ray, 54 Ark. App. 336, 925 S.W.2d 805 (1996). Here, the trial court recognized the double recovery possibility and eliminated that problem, ordering that Wilson could not collect the $4,710.00 judgment more than once. When Wilson accepted payment of this amount from the Bank, he precluded further recovery of that amount from Fullerton and Bradley Motor. Accordingly, we hold Fullerton and Bradley Motor are entitled to have the $5,118.45 judgment against them reflect its satisfaction in the amount of $4,710.00, leaving a balance owed in the smaller amount of $500.00.

For the foregoing reasons, Fullerton’s and Bradley Motor’s cross-appeal is affirmed in part and reversed and remanded in part, with instructions consistent with this opinion.

Newbern, Brown, and Imber, JJ., concur in part and dissent in part.

Annabelle Clinton Imber, Justice,

concurring in part and dissenting in part.

I.

I would deny Fullerton and Bradley Motor’s motion to dismiss appeal. Wilson’s attempt to execute on the reduced judgment while Fullerton and Bradley Motor had failed to obtain a supersedeas bond is consistent with the relief he seeks on appeal. Wilson’s sole argument on appeal is that the trial court erred in reducing the verdicts that the jury originally awarded. The only remedy that he requests from this court is that we reinstate the amount of the original verdicts. Thus, there is no risk that Wilson will receive a smaller recovery should we affirm or reverse on direct appeal.

Of course, the majority is absolutely correct in stating that if we accept the arguments put forth by Fullerton and Bradley Motor on cross-appeal, one possible outcome is the grant of a new trial, which obviously carries with it the chance that Wilson will receive nothing once the case is retried. However, I am not persuaded that we should delve into Fullerton’s and Bradley Motor’s cross-appeal to hold that Wilson has somehow run the risk of recovering less on appeal, or that he has accepted the benefits of a judgment inconsistent with the relief he seeks on appeal. In none of the cases relied on by the majority was a possible outcome on cross-appeal dispositive in dismissing a direct appellant’s appeal. See Anderson v. Anderson, 223 Ark. 571, 267 S.W.2d 316 (1954) (affirming dismissal of petition to set aside divorce decree following petitioner’s acceptance of $60,000 under decree); Jones v. Rogers, 222 Ark. 523, 261 S.W.2d 649 (1953) (dismissing appeal challenging trial court’s refusal to confirm commissioner’s sale after appellants “enjoyed the possession and use of the $5,000.00” that came to them by virtue of the order denying confirmation); Gate City Bldg. & Loan Assn. v. Frisby, 177 Ark. 252, 6 S.W.2d 537 (1928) (“overruling” motion to dismiss appeal where appellant claimed a right to contract rate of interest rather than statutory rate following foreclosure sale — “appellant incurred no hazard whatever of recovering a less amount on appeal.”); Jones v. Hall, 136 Ark. 348, 206 S.W. 671 (1918) (dismissing appeal that involved a review of the entire record to determine amount appellant was entitled to); Coston v. Lee Wilson & Co., 109 Ark. 548, 160 S.W. 857 (1913) (same). To the extent that there is language in our cases suggesting otherwise, see Delaughter v. Britt, 243 Ark. 40, 418 S.W.2d 638 (1967) (“There was no cross-appeal as to the amount of these damages.”) (Fogleman, J., dissenting) and McIlroy v. McIlroy, 191 Ark. 45, 83 S.W.2d 550 (1935) (“In the case at bar there is no cross-appeal challenging the amount of alimony to be paid each month.”), it is merely dictum. I think that the better course of action would be to look solely to the relief sought on direct appeal to determine whether an appellant has accepted the benefit of a judgment inconsistent with his appeal.

In Shepherd v. State Auto Property & Casualty Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993), the appellants argued, among other things, that the trial court erred in allowing an underinsurance carrier to offset from its policy-limits liability proceeds already paid by the tortfeasor’s carrier. The underinsurance carrier, which had voluntarily paid the judgment prior to the appeal, moved to dismiss the appellants’ appeal on the theory that the appellants had accepted the benefits of the judgment that they appealed from, rendering their appeal inconsistent with acceptance of the judgment. Relying on the governing law set down in Bolen v. Cumby, 53 Ark. 514 (1890) (“[H]e waives his right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the appeal.”), this court denied the motion to dismiss because the judgment that the appellants accepted belonged to them “in any event,” and “their claims on appeal expressly [went] to additional awards.” Shepherd, supra (emphasis in original). This was true despite the fact that the carrier had filed a cross-appeal, ultimately dismissed as moot, in which it argued that it was entided to the offset and that the trial court erred in not offsetting the judgment further with workers’ compensation benefits paid.

The Shepherd case is in line with cases from other jurisdictions which hold that an appellant, who has already accepted some benefit from a judgment, and who requests only a larger amount on appeal, has not sought relief inconsistent with the judgment appealed from, and that such an “inconsistency” cannot be garnered from a possible result on cross-appeal. Heacock v. Ivorette Texas, Inc., 26 Cal. Rptr.2d 257 (Cal. Ct. App. 1993) (“In deciding whether the plaintiffs appeal is inconsistent with having accepted the benefits of the judgment, we focus solely on the relief sought by the plaintiff, not on arguments made by a cross-appealing defendant.”); Stevens Const. Corp. v. Draper Hall, Inc., 242 N.W.2d 893 (Wis. 1976) (“As long as the party accepting the money has not put his right to that money in jeopardy in his own appeal, there is no waiver, even though his right to the money may be endangered by his opponent’s cross-appeal or notice of review.”); Schleicht v. Bliss, 532 P.2d 1 (Or. 1975), disavowed on other grounds, 688 P.2d 379 (Or. 1984) (“If a cross-appeal could prevent the original appellant from pursuing a valid appeal on the grounds the cross-appeal allows the appellate court to possibly reduce the award given the original appellant, the cross-appeal could be used as a vehicle to dismiss the original appeal.”); see also 1st Nat’l Bank v. Energy Equities Inc., 569 P.2d 421 (N.M. Ct. App. 1977) (reaching merits of cross-appeal that went only to additional awards despite direct appeal challenging the cross-appellant’s right to amounts already collected under the judgment). Because Wilson’s claim on appeal goes only to additional awards, I would reach the merits.

II.

I concur in the result reached by the majority on Fullerton’s and Bradley Motor’s cross-appeal. As to their argument that the relationship between the compensatory and punitive award is so disparate as to require a new trial, this argument was made below in their “Motion for Reconsideration” filed before the entry of judgment. In cross-appellants’ brief, and during oral argument, counsel for cross-appellants maintained that this “Motion for Reconsideration” was in fact a Rule 59 motion for new trial. Accepting the cross-appellants’ characterization of their own motion, I would hold that we are precluded from reaching the merits because their argument was raised in an ineffective Rule 59 motion for new trial. In cases discussing the timeliness of notices of appeal this court has routinely stated that under Ark. R. Civ. P. 59(b), which provides “[a] motion for new trial shall be filed not later than 10 days after the entry of judgment,” a motion for new trial must be filed after entry of judgment in order to be effective. See Benedict v. National Bank of Commerce, 329 Ark. 590, 951 S.W.2d 562 (1997) (“[Appellant] failed to file her motion within the ten-day period provided in ARCP Rule 59(b), so it was ineffective.”); Breckenridge v. Ashley, 55 Ark. App. 242, 934 S.W.2d 536 (1996) (“Because [the motion for new trial] was filed before the decree was entered, we are convinced that it was not timely.”). The Reporter’s Note to Rule 59 explains that “Section (b) marks-a significant departure from prior Arkansas practice. Under this section, a motion for new trial must be filed within ten days after entry or filing of the judgment.”

III.

Finally, I agree with the majority that we are precluded from reaching the merits of the cross-appellants’ election-of-remedies argument relating to the allegedly inconsistent jury verdicts because they failed to make such an objection below. However, I deem it unnecessary to reduce the compensatory award against Fullerton and Bradley Motor to reflect the payment by FSB, considering that the trial court specifically found that Wilson was entitled to “only recover the sum of $4,710.00 on one of the judgments, not against all of the party defendants.” This would appear to eliminate any double-recovery problem.

Newbern and Brown, JJ., join as to Part I.

       The difference between the $5,118.45 amount imposed against Fullerton and Bradley Motor and the $4,710.00 amount against the Bank appears to be attributable to the value of the Lephiew truck (without a tide), which Wilson has possession of.


author: Donald L. Corbin, Justice. Ray Thornton, Justice,

text:
    Jarrell E. SOUTHALL and Barbara J. Southall v. LITTLE ROCK NEWSPAPERS, INC., and Bobbi Ridlehoover
    97-400
    964 S.W.2d 187
    Supreme Court of Arkansas
    Opinion delivered March 5, 1998
    [Petition for rehearing denied April 16, 1998.]

      R. David Lewis, for appellants.

      Williams & Anderson, by: Leon Holmes, for appellee Little Rock Newspapers, Inc.

      Kaplan, Brewer & Maxey, P.A., by: Philip E. Kaplan, for appellee Bobbi Ridlehoover.

       Brown and Imber, JJ., not participating.

   Donald L. Corbin, Justice.

Appellants Jarrell E. and Bar bara J. Southall filed an action for defamation against Appellees Litde Rock Newspapers, Inc. (the Newspaper), and Bobbi Ridlehoover in the Pulaski County Circuit Court. The trial court granted summary judgment to both Appellees. Appellants raise three points for reversal, which necessarily involve questions on the law of torts. As such, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(15). We find no error and affirm.

Facts

Appellant Jarrell Southall was the executive director of the Arkansas Department of Pollution Control and Ecology (PC&E) from 1977 through January 28, 1983, though he had actually worked for PC&E as a chemist beginning in 1965. In 1983, Southall opened his own consulting service, during which time Ensco, Inc., was one of his main clients. In 1986, Southall went to work directly for Ensco until 1993. According to his deposition, Southall took the lead in trying to draft this state’s hazardous-waste legislation and in getting the issue into the public debate. He indicated that there was a lot of controversy surrounding the subject of hazardous waste. He stated that it was part of his responsibility as both a member and executive director of PC&E to attend legislative committee meetings and give testimony on these issues. He stated further that he had conducted interviews with the media, had talked to reporters on radio and television, had served as a registered lobbyist with the Arkansas General Assembly, and had been fairly prominent in the debate over the regulation of hazardous waste.

On December 16, 1990, the Newspaper ran several articles about Ensco, one of which Appellants argue defamed Jarrell Southall. The article, written by Appellee Ridlehoover, consisted of eighty-four paragraphs and was entitled “The watchers now watched in El Dorado.” The relevant portions are as follows:

[Jack] Forrest and other Ensco employees were able to name seven former state and federal regulators who now work for the company. Another former PC&E employee was at one time under contract with the company.
The list includes former PC&E director Jarrell E. Southall, who went to work for the company as a consultant in 1983. At the time, Southall said he approached Ensco for the job.
Southall has denied that he negotiated with Ensco for the job while he was the state’s top pollution control regulator.
Southall has since become a full-time Ensco employee. Fie is the contract administrator for the company’s proposal to build a hazardous waste incinerator facility in Arizona.
The Arkansas Democrat reported in 1983 that Southall had official dealings with Ensco less than a month before he went to work for the company.
In addition, Melvyn Bell, Ensco’s former president and now board chairman, provided Southall a private plane ride to Ensco on January 13, 1983 when hazardous material spilled at the plant. State Health Department officials trying to investigate the spill were not allowed past a locked gate.
Southall acknowledged that he flew down with Bell on his plane, and he blamed a “mix-up” in communication for Health Department officials Don Wise and Martin Tull not being admitted inside the gate.
The Health Department shares responsibility with PC&E for investigating such spills, but the PC&E official who should have notified the Health Department failed to do so.

The second article which Appellants argue is defamatory to Jarrell Southall was published in the Newspaper on July 13, 1992, and was entitled “Environmentalists see liquid-waste regulations as best bet.” The story consisted of twenty-eight paragraphs and described the work of Clyde Temple of Warren, Arkansas, in the area of environmental issues. The relevant portions of the article are as follows:

Temple, 62, has worked on environmental issues for more than a decade. He is past president and vice president of the Arkansas Wildlife Federation and has been chairman of the group’s water committee for 11 years.
He won one of his earliest battles •— which Arkansas environmentalists know is no small feat.
It was over water quality. The group he formed, the Committee for a Clean Saline, won a successful citizens’ suit in federal court in July 1981 against Jarrell Southall, then director of the state Department of Pollution Control and Ecology, and the City of Warren. The suit forced the cleanup of pollution in the lower Saline River.

On appeal, Appellants argue that the trial court erred in granting Appellees’ motion for summary judgment and in making the following findings: (1) that Jarrell Southall was a public official as well as a limited-purpose public figure with regard to environmental issues; (2) that the December 16, 1990 article contained no false or defamatory statement of fact of and concerning Jarrell Southall, and that there was not sufficient evidence showing that Appellees had acted with actual malice; and (3) that, as to the July 13, 1992 article, there was not sufficient evidence that Appellees had acted with actual malice.

We note that Appellants have failed to abstract the articles in their entirety, as is required for this court’s review of whether the articles are libelous. See Little Rock Newspapers, Inc. v. Fitzhugh, 330 Ark. 561, 954 S.W.2d 914 (1997); Pigg v. Ashley County Newspaper, Inc., 253 Ark. 756, 489 S.W.2d 17 (1973). Appellees have, however, supplied us with sufficient portions of those articles in their supplemental abstract. As such, we will address the merits of the arguments on appeal.

Public Figure/Public Official

For their first point on appeal, Appellants argue that Jarrell Southall was neither a public official nor a public figure at the time of the articles’ publication. We disagree.

Whether a person is a public official or a public figure is a mixed question of fact and law to be determined by the trial court. Fitzhugh, 330 Ark. 561, 954 S.W.2d 914 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) and Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987)). We recently discussed the issue of when an individual is considered to be a public figure:

In Gertz, the Supreme Court held that public figures normally enjoy greater access to effective channels of communication and, thus, have more realistic opportunities to counteract false statements than do private individuals. The Court described public figures as those persons who:
have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.
Id. at 345. A private individual, on the other hand, has not accepted public office nor assumed an “influential role in ordering society.” Id. (citing Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Warren, C. J., concurring in result)). A private individual has not relinquished his interest in the protection of his own good name, and consequently has a more compelling case for redress of injury inflicted by defamatory falsehood. Id. Holding that the designation of a public figure may rest on either of two alternative bases, the Court stated:
In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.
. . . Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.

Fitzhugh, 330 Ark. 561, 579-80, 954 S.W.2d 914, 924 (emphasis added) (quoting Gertz, 418 U.S. at 351-52). Since the Court’s decision in Gertz, courts have construed the term “public figure” narrowly, with an emphasis on the plaintiffs status in relation to the subject of the defamatory article. Id.

This court has held that neither a former United States Attorney nor a private attorney were public figures, (see Fitzhugh, 330 Ark. 561, 954 S.W.2d 914; Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979), cert. denied, 444 U.S. 1076 (1980) ). This court has, however, held that an assistant law school dean was a public figure (see Gallman v. Carnes, 254 Ark. 987, 497 S.W.2d 47 (1973)), as were a sheriff, a deputy sheriff a city police officer, (see Pritchard v. Times Southwest Broadcasting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982); Hollowell v. Arkansas Democrat Newspaper, 293 Ark. 329, 737 S.W.2d 646 (1987); Lancaster v. Daily Banner-News Publishing Co., Inc., 274 Ark. 145, 622 S.W.2d 671 (1981) ), and a chairman of the board of governors of a county memorial hospital (see Drew v. KATV Television, Inc., 293 Ark. 555, 739 S.W.2d 680 (1987)).

In Fitzhugh, 330 Ark. 561, 954 S.W.2d 914, the plaintiffs photograph appeared in an article about the Whitewater investigation in which it was reported that another man named Fitzhugh was indicted by a federal grand jury. We determined that the plaintiff, a former United States Attorney for eight years, was neither a public official nor a public figure, because the substance of the defamatory article bore no relation to his position as a federal prosecutor. We held that, as to the category of limited-purpose public figure, there was no evidence that Fitzhugh had “thrust himself into the vortex of the Whitewater controversy, or that he had engaged the public’s attention in an attempt to influence the outcome of the controversy.” Id. at 582, 954 S.W.2d at 926. We held further that Fitzhugh had not, “by virtue of his having been a federal prosecutor for eight years, occupied] a position of persuasive power and influence or one of especial prominence in the affairs of society, such that he could be labeled an all-purpose public figure.” Id. at 582-83, 954 S.W.2d at 926. We concluded that Fitzhugh had not achieved such general fame or notoriety throughout the area where the article was published that would render him a public personality for all purposes.

Here, in contrast to the factual situation presented in Fitzhugh, we conclude that, in the present context, Jarrell Southall was a limited-purpose public figure on the subject of environmental issues. The evidence demonstrated that he enjoyed a prominent role in the creation and enforcement of environmental legislation in this state. Southall himself stated in his deposition that he had conducted interviews with the media, had talked to radio and television reporters, had been a lobbyist at the state legislature, and had been fairly prominent in the public debate over the regulation of hazardous waste. By his own statements, Southall has demonstrated that he had thrust himself into the vortex of the public controversy surrounding the subject of hazardous waste. Accordingly, we conclude the trial court’s assessment of Southall as a public figure for the limited purpose of environmental issues was not erroneous. It is thus not necessary that we reach the issue of whether Southall is considered to be a public official for the purpose of construing the two articles in question.

Actual Malice

For their remaining two points for reversal, Appellants argue that the trial court erred in finding that the December 16, 1990 article was not defamatory and that there was not sufficient evidence that Appellees had published either article with actual malice. Appellees do not concede that the articles contained false information or that they were defamatory toward Jarrell Southall. Appellees do contend, however, that even if the articles were factually incorrect and were defamatory, Appellants’ claims must nonetheless fail because there was no evidence presented below showing that Appellees published the articles with actual malice.

An action for defamation turns on whether the communication or publication tends or is reasonably calculated to cause harm to another’s reputation. Fitzhugh, 330 Ark. 561, 954 S.W.2d 914; Thomson Newspaper Publishing, Inc. v. Coody, 320 Ark. 455, 896 S.W.2d 897, cert. denied, 116 S. Ct. 563 (1995). In order to establish a claim of defamation, a party must prove the following elements: (1) the defamatory nature of the statement of fact; (2) that statement’s identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault in the publication; (5) the statement’s falsity; and (6) damages. Fitzhugh, 330 Ark. 561, 954 S.W.2d 914; Minor v. Failla, 329 Ark. 274, 946 S.W.2d 954 (1997). Because Jarrell Southall was a limited-purpose public figure on environmental issues, Appellants have the additional burden of proving that such false statements were made by Appellees with actual malice. Coody, 320 Ark. 455, 896 S.W.2d 897.

In discussing the standard for actual malice, this court has observed:

[T]he plaintiff in such an action must prove that the defamatory publication “was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith.

Fuller v. Russell, 311 Ark. 108, 112, 842 S.W.2d 12, 14-15 (1992) (footnote omitted) (emphasis added) (quoting St. Amant v. Thompson, 390 U.S. 727, 728, 731, 732 (1968)).

Where a motion for summary judgment is made in a defamation case involving the “actual malice” standard, the trial court must determine whether the evidence presented could support a reasonable jury’s finding that actual malice was shown by clear and convincing evidence. KATV Television, Inc., 293 Ark. 555, 739 S.W.2d 680 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). Where the First Amendment is involved, we are “obligated to make an independent examination of the whole record to make sure the judgment does not constitute a forbidden intrusion on the field of free expression.” Fuller, 311 Ark. at 112, 842 S.W.2d at 14 (citing Bose Corp. v. Consumer’s Union of United States, Inc., 466 U.S. 485 (1984)). The question of whether the evidence in the record is sufficient to support a finding of actual malice is a question of law. Id. (citing Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989)). Accordingly, because Appellees’ First Amendment right to free expression is at stake in this case, we apply the heightened standard of review. This heightened standard only applies to a review of the issue of actual malice, not to the determination of libel. Coody, 320 Ark. 455, 896 S.W.2d 897 (citing Bose, 466 U.S. 485).

We consider first the December 16, 1990 article reporting Jarrell Southall’s connection with Ensco and his having received a plane ride to Ensco’s El Dorado location from the company’s president. Appellants do not contend that the story was factually false; rather, they assert that the implication from the story was defamatory. The portion of the article that Appellants find defamatory is as follows:

The Arkansas Democrat reported in 1983 that Southall had official dealings with Ensco less than a month before he went to work for the company.
In addition, Melvyn Bell, Ensco’s former president and now board chairman, provided Southall a private plane ride to Ensco on January 13, 1983 when hazardous material spilled at the plant. State Health Department officials trying to investigate the spill were not allowed past a locked gate.

Specifically, Appellants assert that the article is defamatory in that it implied that Southall, who was then director of PC&E, was at Ensco’s plant when health department officials trying to investigate the spill were not allowed past the locked gate, and that he had something to do with those officials being denied entrance to the plant.

Considering that Southall admitted the truth of the statements contained in the article, namely that he had accepted a plane ride from Melvyn Bell and that the health department officials were not allowed past the gate because of a “mix-up” in communication, we fail to see how such true statements amount to defamatory statements of fact concerning Southall. Nor do we view the article as having a defamatory implication. Instead, we agree with the trial court that the article implies nothing more than that Southall went to the plant on a private plane when the spill occurred and that the health department officials attempting to investigate the spill were not allowed past the locked gate; it does not imply that Southall was standing at the gate preventing the officials from entering or that he had conspired with Ensco to keep them out of the plant.

Furthermore, even assuming that those statements possessed a defamatory implication, Appellants have offered no clear and convincing evidence that Appellees published the article with actual malice. Appellants merely contend that Ridlehoover knew the implication of the article was false because she had reported in 1983 that Southall had said that he was no longer at the Ensco plant at the time that the health department officials had arrived. Appellants argue that the reason Ridlehoover only made this implication, rather than stating outright that Southall was at the plant at the time the officials were prohibited entrance, was to avoid a libel suit, which demonstrates actual malice. We are not persuaded by this argument. The fact that the statements were true and Southall was given the opportunity to state his view of the events that occurred at the Ensco plant refute the allegation that Appellees published the article with actual malice.

Appellants further argue that the words “in addition” contained in the December 16, 1990 article referred to more than one “official dealing” that Southall had with Ensco prior to his departure from PC&E. Appellants offer no convincing argument as to how the fact that Southall may or may not have had more than one “official dealing” with Ensco prior to his departure from PC&E is necessarily defamatory to him. Appellees contend, on the other hand, that even if there were some defamatory implication from those words, there was no evidence presented by Appellants that would show by clear and convincing evidence that they published the article with actual malice. In support of this contention, Appellees point to an article published in the Newspaper in 1983 reporting that Southall had some communication with Ensco president Melvyn Bell, either directly or indirectly through PC&E staff. The article, published on April 19, 1983, reflected:

Records on file at the department show ENSCO has had extensive dealings with the agency almost up to the time when Southall stepped down in January, and some of these dealings involve Southall personally.
For example, in December ENSCO sought permission to run a test burn of the hazardous waste in a mobile incinerator at the company’s El Dorado plant. The company had no permit, however, and the request was denied.
Sandra Perry, hazardous waste coordinator at the Pollution Control and Ecology Department, sent a memo on the ENSCO request to Southall and two other officials. Dated Dec. 13, the memo concludes:
“Mr. Bell can, however, burn natural gas or fuel oil ... in his new incinerator without a permit for a period of four hours in December. If his goal is to secure the tax break for pollution control equipment that expires in December, perhaps this would meet his needs.”
Beside this paragraph a handwritten note appears, which states: “Melvin (sic) said this was fine & would suit him OK. I told him to notify JES (Southall) before he began as per JES’s (request.)” The note wasn’t signed, but apparently was written by Ms. Perry.
A spokesman for the Pollution Control and Ecology Department said the agency wasn’t giving free tax advice to Ensco and never sent this memo to the company. “It was strictly an internal document,” the spokesman said.
When asked about the memo in a recent interview, Southall said he couldn’t recall the circumstances.

Appellants respond that this memo does not qualify as an “official dealing” between Southall and Ensco, and that the article is thus false and defamatory. Such contention does not advance Appellants’ position on appeal, because the fact that Appellees relied on this prior article in support of the December 16, 1990 article contravenes the argument that the article was published with actual malice. In short, there is no evidence that would permit the conclusion that Appellees in fact entertained serious doubts as to the truth of the December 16, 1990 article or that they published the article with a reckless disregard for the truth.

As to the July 13, 1992 article, Appellants assert that the statement that Clyde Temple won a suit against Jarrell Southall, then director of PC&E, was false and defamatory. Appellants assert that Southall had been dismissed as a party to the suit prior to the time that it was setded by the City of Warren. Appellants argue that actual malice is apparent from Ridlehoover’s failure to read the official court file prior to publishing the article in order to verify whether Southall was a party at the time of the suit’s disposition.

Appellees argue that even if the statement that Clyde Temple won a suit against Southall and the City of Warren is not substantially true, there is nothing defamatory about a statement that the director of a state agency was sued in his capacity as director of that agency. They argue further that Appellants’ argument regarding malice amounts to no more than an allegation of a failure to investigate, which does not meet the definition of actual malice. We agree with this argument.

The foregoing case law demonstrates that the failure to investigate information later published is not, without more, evidence of actual malice. There must be clear and convincing evidence to permit the conclusion that Ridlehoover and the Newspaper in fact entertained serious doubts as to the truth of the story. There was no such evidence presented below. In fact, Ridlehoover stated that her source for the information was the Newspaper’s “clip file.” Appellants do not rebut this assertion with any proof to the contrary. As such, the evidence does not rise to the level of demonstrating that Ridlehoover entertained serious doubts about the truth of the statements when she published the July 13, 1992 article. Accordingly, we affirm the ruling of the trial court.

Holly Lodge Meyer, Sp.-J., joins in this opinion.

Thornton, J., and Keith N. Wood, Sp. J., concur.

Brown and Imber, JJ., not participating.

Ray Thornton, Justice,

concurring. I concur in the deci sion to affirm, but, in my opinion, it is only necessary to decide whether the trial court erred in determining that Jarrell Southall was a limited-purpose public figure who failed to show that appellees published the allegedly inaccurate news stories about him with actual malice. Southall’s charges, if proven, would not reach the threshold of actual malice required by the landmark case of New York Times v. Sullivan, 376 U.S. 254 (1964). I agree with the majority that the trial court did not err in granting summary judgment and that the case should be affirmed.

Special Justice Keith N. Wood joins in this concurrence.

       Appellants’ complaint also named Walter E. Hussman Jr. as a defendant; however, the notices of appeal filed in this case indicate that Appellants do not appeal the grant of summary judgment in favor of Hussman.

       We note Appellants’ argument that malice is shown by the fact that, when asked about the existence of this “clip file,” the Newspaper responded that there was no such file. We do not address this argument, however, as such alleged response on behalf of the Newspaper is not contained in the abstract, nor is it apparent that Appellants ever raised this issue below prior to the time the trial court made its ruling. The abstract reflects that this argument was first raised in Appellants’ motion for new trial.