author: Ray Thornton, Justice. LAVENSKI R. Smith, Justice,

text:
    Bobby and Angie ULLOM v. ARKANSAS DEPARTMENT of HUMAN SERVICES
    99-816
    12 S.W.3d 204
    Supreme Court of Arkansas
    Opinion delivered March 9, 2000

      F. Lewis Steenken, for appellant.

      Frank Arey, Chief Counsel and Johnny E. Gross, Office of Chief Counsel, for appellee.
   Ray Thornton, Justice.

Appellants, Bobby and Angie Ullom, appeal from the judgment of the Benton County Chancery Court terminating their parental rights to their three-year-old child, D.U. For reversal, appellants argue that the chancellor’s findings were not supported by clear and convincing evidence. In a three-to-three decision, the court of appeals affirmed the chancellor. We accepted review of this case and affirm the trial court.

Facts and Procedural History

Appellants are the parents of D.U. born August 1, 1996. On August 21, 1996, D.U. was taken to St. Mary’s Hospital. While at the hospital, it was determined that she had a spiral fracture of her left arm. Appellants could not explain how the accident occurred. Suspecting that D.U. had been abused, the hospital contacted appellee, the Arkansas Department of Human Services, who took the child into custody.

On September 3, 1996, a probable-cause hearing was held in the matter. At the probable-cause hearing, Michelle Murphy, an employee of the Department of Human Services testified that on the evening of August 21, 1996, she saw D.U. at the hospital and investigated the circumstances surrounding her injury. Ms. Murphy noted that appellants were unable to offer an explanation as to how the injury occurred and, according to the doctor, a three-week-old child is not mobile enough to sustain a spiral fracture on her own.

Bobby Ullom also testified at the hearing, stating that on August 20, 1996, he was at his parents’ home along with his wife and daughter. He noted that while they were there his eighteen-month-old nephew and nine-month-old niece were “constantly coming up [to D.U.] and kissing on her and pulling on her...” Mr. Ullom further testified that they left his parents’ home between 8:30 and 9:30 because D.U. was “fussy” and that his wife was up with D.U. all night but that they thought the baby had “gas.” He also stated that the next day when he got home from work his wife said D.U. had been “fussy” all day. When he went to pick her up he heard a “pop,” D.U.’s arm fell, and she began to scream. Finally, Mr. Ullom stated that he had no explanation for the child’s injury.

On September 17, 1996, an adjudication hearing was held. Angie Ullom testified that she did not know how D.U. was injured on August 21, 1996, but that she knew D.U. could not have caused the injury herself. Mrs. Ullom further testified that the only people that had contact with D.U. on that day were she and Mr. Ullom. Finally, she noted that the broken arm caused D.U. intense pain.

Bobby Ullom reiterated his previous testimony from the probable-cause hearing at this hearing. Mr. Ullom also stated that he had had trouble controlling his anger when he was growing up and that he was abused by his stepmother when he was younger. Finally, Mr. Ullom, once again, noted that he did not know how D.U. was injured.

The chancellor determined that the preponderance of the evidence showed that the child’s injury was caused by abuse and the child was found to be dependent-neglected. Appellee retained custody of D.U., and appellants were granted supervised visitation.

Appellants attended parenting classes, participated in counseling, and continued supervised visitation with D.U. pursuant to the case plan developed by appellee. After completing the appellee’s requirements, and pursuant to a court order following a review hearing, appellants were allowed to have unsupervised visitation at their home.

On February 8, 1997, at the initial unsupervised visit with appellants, D.U. was again injured, sustaining extensive bruising on and around her face. Appellants claimed that a toy had fallen on her face causing the injury. D.U. was taken to Bates Hospital by her foster mother.

On February 18, 1997, appellee filed a petition to terminate appellants’ parental rights. Appellee sought termination of appellants’ parental rights pursuant to Ark. Code Ann. § 9-27-341 (Repl. 1997). Specifically, appellee alleged that:

(a) the parents of the juvenile have abandoned the juvenile, or have executed consent to termination of parental rights, subject to the court’s approval, or adoption of the juvenile or the juvenile court has found the juvenile victim dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, and which was perpetrated by the juvenile’s parent or parents.
(b) the minor child, D.U., has been adjudged to be a dependent-neglected child and currently resides in the care and custody of the Arkansas Department of Human Services pursuant to order of the Benton County Chancery Court, Juvenile Division.
(c) that, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that return of the juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors, or rehabilitate the parent’s circumstances, which prevents return of the juvenile to the family home.

A termination hearing was held on May 16, 1997. Dr. Barry Allen, who treated D.U. on eleven occasions, testified that he was called to the hospital to examine D.U. in August of 1996. He also testified that according to the x-rays she had a spiral fracture, and noted that this type injury is usually caused by a “twisting motion.” Dr. Allen further stated that D.U. was most likely not injured by the actions of a eighteen-month-old child or a nine-month-old child and could not have injured herself to this degree. He questioned the explanation given by appellants, that she had been passed around by relatives the night before they brought her into the hospital and that when they picked her up the next day they heard a popping sound, noting that this was not consistent with a spiral fracture. Dr. Allen also testified that the leading cause of this type of injury in children under the age of three was abuse and that a spiral fracture would be an injury causing severe pain. Finally, he testified that his primary diagnosis was maltreatment syndrome.

Next, Dr. O.L. Henderson testified that causing a spiral fracture would require a great amount of force and that most fractures of this nature occur in children because someone has twisted the child’s arm. He stated that this type of injury could have caused either nerve or blood vessel damage, a loss of the limb, and a remote possibility of death.

Finally, Dr. Charles Akin testified that he had seen D.U. on February 8, 1997, when she was brought in to the emergency room at Bates Hospital for treatment of her second injury. He stated that when he treated D.U., she had “fresh bruising” around her left brow, around her left eye, the left side of the nose, and the cheek, as well as bruising on the right side of her face. Dr. Akin noted that the explanation given for the injury was that a toy had been dropped on the child’s face. He expressed his opinion, after examining the toy, that merely dropping the toy could not have caused the type of bruising suffered by D.U. Dr. Akin further noted that if the injury had occurred as explained by appellants the injuries would not have been to both sides of the face.

The termination hearing was concluded on January 2, 1998. Bobby Ullom once again testified at this hearing. However, his testimony regarding the cause of the August 21, 1996, injury changed. Specifically, he testified that when he went to get D.U. from her seat her arm became entrapped in the safety strap and he thought that this could have caused the injury.

On January 23, 1998, the chancellor entered an order terminating appellants’ parental rights. The chancellor found:

(1) that it [is] contrary to the child’s best interest and welfare to return her to the parental care and custody of Bobby Ullom and Angie Ullom, and further finds that the Department of Human Services has proven by clear and convincing evidence that the minor child was dependent-neglected as a result of unexplained abuse or neglect that could endanger the life of the child and was perpetrated by the juvenile’s parents;
(2) that the Department of Human Services has shown by clear and convincing evidence that subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that the return of the juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and that, despite the offer of appropriate family services, the parents have manifested the incapacity or indifference to remedy the subsequent issues or factors, or rehabilitate the parent’s circumstances, which prevents return of the child to the family home.

It is from this order that appellants appeal. They raise one point on appeal and we affirm the chancellor.

Termination of Appellants’ Parental Rights

Appellants contend that the findings supporting the chancellor’s order terminating their parental rights was not based on clear and convincing evidence. We have held that when the issue is one involving the termination of parental rights, there is a heavy-burden placed upon the party seeking to terminate the relationship. J.T. v. Arkansas Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. The facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court’s evaluation of the evidence, we will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Baker v. Arkansas Dep’t of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding the allegation sought to be established. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the chancery court to judge the credibility of witnesses. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations. Id.

Appellants argue that the termination was not proper because D.U., was not “out of the home” for more then twelve months as required in Ark. Code Ann. § 9-27-341. Because this argument was not presented to the chancellor at trial, we need not address its merits on review. See Burke v. Strange, 335 Ark. 328, 983 S.W.2d 389 (1998). However, we do note that D.U. was removed from the home on September 17, 1996, the petition for termination of appellants’ parental rights was filed on February 18, 1997, and the termination order was not entered until January 23, 1998. Accordingly, the child had clearly been out of the home for more than twelve months at the time the termination order was entered.

Appellants also argue that termination of parental rights was not appropriate because appellee failed to pursue meaningful efforts to rehabilitate their home. We cannot agree with appellants’ contention. Appellee devised a plan in September of 1996 for reunification of the family which was followed until the second injury occurred in February of 1997. Specifically, appellee provided appellants with counseling and parenting classes and appellants were allowed visitation with D.U. However, following appellants’ participation in the counseling and parenting classes, D.U. suffered a new injury at her initial unsupervised visit with appellants. It was at that time that appellee changed the goal of its plan from reunification to termination of appellants’ parental rights. We also note that on both occasions in which D.U. was injured appellants were the only people with the child and neither parent had a plausible explanation for her injuries. Thus, we find that there was clear and convincing evidence that appellee pursued meaningful efforts to rehabilitate the home and that appellants chose to ignore or failed to benefit from the services provided by appellee. Thus, we find no error and affirm the chancellor.

Next, appellants argue that the chancellor erred when he found that appellants manifested an incapacity or indifference to remedy the subsequent issues or factors that demonstrate that return of D.U. to the family home would be contrary to her health, safety, or welfare pursuant to Ark. Code Ann. § 9-27-341. Once again we cannot agree with appellants. The evidence shows that appellants’ actions demonstrated a pattern of abuse that is contrary to the health and safety of D.U. Specifically, as the medical evidence revealed, when D.U. was only twenty-one-days-old appellants caused her to suffer a spiral fracture and then, even after receiving family services provided by appellee, on the very next occasion in which they were alone with D.U. she suffered bruising to both sides of her face, injuries for which no satisfactory explanation was provided. The chancellor found that return of D.U. to the family home would be harmful to her health and safety and that appellants manifested an indifference to remedy the situation. Under these circumstances, we cannot say that the chancellor’s findings were not based upon clear and convincing evidence. Therefore, we affirm.

Finally, appellants contend that the chancellor’s findings were erroneous because it was not established by clear and convincing evidence that D.U.’s injuries endangered her life. The medical evidence established that the injuries suffered by D.U. were severe and very painful. Further, Dr. Henderson testified that the spiral fracture could have been life-threatening. Because we give great deference to the chancellor on witness credibility we must assume that the chancellor found D.U.’s injuries to be life-endangering. Accordingly, we affirm the chancellor’s findings.

Affirmed.

Smith, J., concurs.

LAVENSKI R. Smith, Justice,

concurring. I join the court’s decision to affirm but for different reasons than the majority. The majority erroneously holds that Dr. O.L. Henderson’s testimony supports a finding that D.U. suffered injuries that endangered her life. To the contrary, Dr. Henderson, though certainly opining that the injury to D.U.’s arm was serious, stated on direct examination, “[t]he possibility of loss of life would be very remote.” On cross-examination, he acknowledged that he observed no life-threatening conditions involving D.U. No one testified the subsequent facial bruises to the child were life-threatening. At base, the trial court’s decision to terminate parental rights arose from its stated conviction at the close of testimony that it discounted the parent’s testimony explaining the injuries and was convinced the child’s injuries were not accidental but the results of intentional abuse. A return of custody to a parent or parents that the court is convinced purposely injured a child is clearly against their best interest.

In juvenile matters, the concern to which all others must yield is the best interests of the child. Baker v. Arkansas Dep’t of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). With the exception of a few weeks, D.U.’s entire life has been spent apart from her natural parents. She has now had little or no meaningful contact with them in the last two years. She has been out of their custody for almost three-and-one-half years. At this point, she no doubt, does not even know them as her parents. The need for stability and permanence weigh in favor of affirmance. Yet, I am troubled by the untenable position our law places the ADHS. The agency in this case, and no doubt others, simultaneously pursued reunification with the natural parents and termination of parental rights. The rights of parents to raise their natural children, though subordinate to the children’s welfare, remain precious and demand undistracted attention by a service provider that is not likely to become at cross-purposes with itself.

         See Ullom v. Arkansas Dep’t of Human Servs., 67 Ark. App. 77, 992 S.W.2d 813 (1999).

       We note that this statute has been amended numerous times since the beginning of this case. Specifically, the statute was amended in the 1995 replacement volume, in the 1997 replacement volume, and once again in the 1999 replacement volume. However, we also note that the substance of the statute has not been amended but that changes have been made to the numbering of the statutory provisions. We have used the text of the 1997 replacement volume because that was the statutory language relied upon by the chancellor in this case.


source: Caselaw Access Project

author: LAVENSKI R. Smith, Justice.

license: Public Domain

text:
    Sharlett CRAIG, Personal Representative of the Estate of Earle L. Berrell, Deceased v. Bonita CARRIGO and Edward J. Berrell
    99-878
    12 S.W.3d 229
    Supreme Court of Arkansas
    Opinion delivered March 9, 2000
    [Petition for rehearing denied April 20, 2000.]

      Kay L. Matthews and William F. Sherman, for appellant.
    No response.
   LAVENSKI R. Smith, Justice.

Attorney William Sherman appeals the order of the Pulaski County Probate Court disqualifying him as the attorney for the estate in an ancillary probate proceeding for decedent Earle L. Berrell, who died in Canada. The trial court disqualified Sherman after finding that Sherman appeared to represent not just the general interest of the estate but also the specific interest of one beneficiary to the detriment of other beneficiaries. Sherman argues three points on appeal. First, he contends that the legal arguments he made that were conducive to Arndt’s interests under the Canadian will did not justify disqualifying him from representing the estate in the ancillary proceeding. Second, Sherman argues that the trial court based its finding on insufficient evidence. Third, Sherman argues that he should be able to represent the personal representative in the appeal of this matter despite the fact that he testified below. We find merit in Sherman’s points and reverse.

Facts

Earle L. Berrell, age sixty-four, died on October 20, 1997, in Makepeace, Alberta, Canada. At the time of his death, Berrell possessed real and personal property in Canada and Pulaski County, Arkansas. Berrell executed his last will and testament on February 4, 1994, entirely in his own handwriting. This holographic will stated that Berrell had no children and named only one beneficiary, Erika Arndt. This wiE specificaEy stated:

This will makes null and void all previous wills and statements.
In the event of my death, I wish Erika Arndt of Makepeace Alberta to have all of my property both real and personal in both Canada and the State of Arkansas. This is to include the house at 24 Coolwood Dr. Little Rock, Ark. and all monies held by Craig-Crews Inc. Realty to the house, all insurance money — United States, Veterans Ins., Mutual of Minn. & Equitable Ins. Co. My interest in the house at Makepeace Alberta, and my profits derived from sale of my Plymouth Sundance and Delta Motorhome (unless she decides to keep them for personal use). She is to get my bank accounts and my death benefits that might be available. She is to further get my checks owing to me or cash. She is to get the proceeds from my RRSP and my stocks I have not sold held by Richardson-Greenshields — She is to pay my outstanding debts from these monies —
Signed this 4th day of February, 1994
/s/Earl L. BerreE
P.S. I am of sound mind and body and am not under any threat or coersion(sic).
/s/Earl L. BerreE

This will, unlike Berrell’s previously executed wills, did not mention Berrell’s two children from previous marriages, namely Edward James Berrell and Bonita Berrell Carrigo.

About four months after Berrell’s death, Arndt initiated Canadian probate proceedings, and the Canadian court appointed her the personal representative of the estate in Canada. She retained the Canadian law firm of Hoffinan Dorchik, which filed the necessary pleadings on February 13, 1998. In that a portion of Berrell’s estate was located in Arkansas, Arndt, through her Canadian attorneys, contacted Sherman, who had handled Berrell’s mother’s probate affairs in the 1980s, to open an ancillary probate proceeding in Arkansas. Upon being retained, Sherman filed the necessary papers with the Pulaski County Probate Court to open the ancillary probate. The original pleadings, filed on April 8, 1998, did not mention Berrell’s children. In those pleadings, Arndt requested that she be appointed the personal representative of the estate in Arkansas as well.

In a letter dated April 8, 1998, Sherman acknowledged receipt of a letter from Gordon Hoffman of Hoffman Dorchik in which Hoffinan apparently referred Arndt to Sherman to represent the estate in Arkansas. Sherman acknowledged that he had filed the ancillary probate, and detailed the filing and publication fees spent to date. In this letter, Sherman advised Hoffman that he had spoken to one of Berrell’s friends, Sharlett Craig, who managed Berrell’s property in Arkansas, and that Craig was holding $2,000 in escrow for the estate fees. Sherman also noted that he remembered that Berrell had a son, and requested that Hoffman find out whether this child had been adopted by Berrell. Sherman specifically advised Hoffman that the existence of a child not mentioned in the will could cause a problem in that Arkansas law allows a child pretermitted-heir rights to inherit when not specifically acknowledged in the will. Furthermore, Sherman indicated that his fees to handle the estate were $100 to $125 per hour, not to exceed the Arkansas statutory allowance to handle the estate. In this case, the Arkansas estate, valued at approximately $50,000, would not allow fees above $1,860.

Sherman filed an amended ancillary probate pleading on June 29, 1998, specifying that Berrell had two children who may be entitled to share in Berrell’s Arkansas estate property. Sherman followed up with a letter to the probate judge on July 18, 1998, in which Sherman advised the judge that Arndt was Berrell’s common-law wife in Canada, and that after the ancillary probate order is issued, he would send the statutory notice to Berrell’s son. Sherman also advised the judge that he was currently searching for the second child, a daughter, and would provide notice to her as well if she was located. Sherman further advised the judge regarding possible conflict-of-laws issues between Canadian and Arkansas law.

On August 4, 1998, the probate court issued an order granting and directing issuance of ancillary letters, but found that it would not be in the best interest of the estate in Arkansas to have Arndt remain as the personal representative for the ancillary probate because she resided in Canada. The court directed that an Arkansas citizen be appointed as personal representative. The court therefore appointed Craig personal representative in the Arkansas ancillary probate. Sherman continued as the ancillary estate’s attorney.

Once Berrell’s children were located, Sherman sent notice to them regarding the ancillary probate of their father’s estate in Arkansas. Sherman notified Edward Berrell and Bonita Berrell Carrigo by letters dated August 10, 1998, and December 14, 1998, respectively. Sherman included in the letters the necessary notice information required by Ark. Code Ann. § 20-40-111(c). Sherman also included additional information including copies of documents filed in the ancillary probate, and noted that Craig would take the position that Canadian law governs the disposition of the assets of the estate. Further, Sherman advised Edward and Bonita that they could have rights as pretermitted children because they were not mentioned in the will, and determination of this issue was up to the probate court.

On December 23, 1998, Craig filed a motion for determination of heirship and legal interests in assets. The pleading noted that Berrell’s holographic will did not mention his children and that under Arkansas law, this failure to mention the children could enable them to obtain rights to property in Arkansas as if Berrell had died intestate. Craig requested the court to determine what rights the children had to the property to advance the administration of the estate. Also on this date, Craig filed a motion to sell the real estate in Arkansas. Sherman sent a letter to Edward Berrell notifying him that he and Carrigo would probably be found heirs to the real estate, but not to the personal property, and that Arndt may have a dower interest in the real estate. As with the prior correspondence, Sherman informed Edward Berrell and Carrigo that the probate court would make these determinations.

On February 12, 1999, Carrigo, through her attorney Ann C. Donovan, filed her notice of intent to take against the will or to contest the validity of the will. She specifically requested to be a pretermitted heir and that the Arkansas court should determine Arndt’s status as a common-law wife. On March 3, 1999, the probate court issued an order requesting that the ancillary personal representative, Craig, file a trial brief laying out the issues which the court should address at the scheduled March 25, 1999, hearing to probate the estate. In response, Sherman wrote a letter to the probate judge on March 3, 1999, noting his concern that the issues involved might take more than two hours to address.

Craig, through Sherman, filed her trial brief as personal representative on March 10, 1999. In the brief, Craig identified the issues facing the court at the hearing, and opined that the personal property in Arkansas would probably be governed by the law of the domiciliary jurisdiction, namely Canada. However, the real property is subject to the law of Arkansas where it is located and would be subject to the pretermitted children’s rights because the will omitted them. In addition, Craig surmised that while Canada does not recognize common-law marriages, that case law in that province appears to be moving towards recognizing them. Craig contended that Arkansas law requires courts to construe the will to give effect to the testator’s wishes, and Berrell’s will wanted Arndt to have everything. Craig requested that the court consider whether she could testify about a conversation she had with Berrell in which he indicated that he wanted Arndt to have all of his property. In closing, Craig presented two alternative approaches for the court. One, the court could follow the strict language of the Arkansas statutes indicating that the domiciliary estate jurisdiction should govern, in which case Arndt should get all of the real estate or, two, the court could follow the common-law rule that the situs of the real property determines distribution, and the children should inherit the land.

Carrigo filed her response brief on April 7, 1999. In her brief, Carrigo noted that Canada does not have common-law marriages, but will recognize them from other locations, as will Arkansas. Furthermore, she noted that the Canadian probate court had not made a determination about Arndt’s status as a common-law wife. Carrigo also contended that the court should address additional issues. Specifically, Carrigo raised the issue of whether extrinsic evidence is permissible to show the intent of the testator, since the Uniform Rules of Evidence and Arkansas case law would prevent such evidence. Carrigo also questioned whether Sherman could represent both Arndt and the estate because he “filed the original application as attorney for Erika Arndt.” Carrigo asserted in this brief that this constituted a conflict of interest, and that the court should decide who Sherman represents. Craig, through Sherman, filed a reply brief on March 23, 1999, and attached the case of Pauliuk v. Pauliuk, [1986] 48 Alta. L.R.2d 25, for the proposition that common-law marriages are recognized in Alberta, Canada. Edward Berrell also questioned Sherman’s status.

Because of allegations of Sherman’s possible conflict of interest, the trial judge scheduled a phone conference with all of the parties and attorneys to settle the matter before the scheduled hearing. The phone conference began on April 13, 1999, but was postponed because of technical problems until the scheduled hearing. The judge also requested that the parties challenging Sherman’s representation submit formal motions which Carrigo did through her attorney on April 19, 1999. Carrigo also submitted proposed findings of fact, to which Sherman objected on April 19, 1999. Craig also filed a response to the motion to disqualify Sherman.

The court heard the matter on April 20, 1999, with all of the parties and attorneys present in the courtroom. During the hearing, Arndt, Sherman, Craig, and Carrigo testified. At one point, the court asked Sherman several questions regarding his perception of his duties and obligations as attorney for the estate. A portion of that dialogue follows:

The Court: Let me just ask you, Mr. Sherman, do you feel an obligation to the children, to Mr. Berrell’s children, as attorney?
Sherman: Of course, I do, Your Honor.
The COURT: And what is that obligation?
Sherman: My obligation, first and foremost is to show that they have complete notice of the proceeding and a chance to make their positions known, to be represented, and to have their issues, have their positions considered by the Court. I don’t think I have a duty to agree with them. In fact, I said to the Court in the briefs, this question, to me, is a very close question and it’s open. There’s no deciding precedent from the Arkansas Supreme Court.
The COURT: I guess I’m looking for something else from you. You have three people, two who may have the same interest, two children. Then you have Ms. Arndt. You seem to be advancing Ms. Arndt’s position with respect to the letters and so forth and what you’ve done in this case. Who is to advance the position of the children? Do you feel any responsibility to the children to advance their position, as well?
SHERMAN: I don’t think I can make — I’ve tried, as best I can, to show the Court the competing argument. I think, in general, Your Honor, I had concluded that the law of the situs would control the passage of realty. It wasn’t a final conclusion but it looked that way as I researched it. I was trying to notify Ms. Carrigo, just trying to locate her, so I could give her notice of the case. This evolved over time. The letters which have been introduced, most of them came in the spring of 1998 and I was not in touch with Ms. Carrigo or Mr. Edward Berrell. I wasn’t trying to keep them out. I was trying to locate them.
The COURT: Well, I’m not passing judgment on what you’ve done. I’m just trying to understand your intention with respect to what you’ve done thus far. Now, with respect to Erika Arndt, you’ve done more than simply notify her.
SHERMAN: She contacted me —
The COURT: But with respect to the children, you have not. Okay. Go ahead.
SHERMAN: She contacted me, her lawyers contacted me to handle the ancillary administration. Every case I’ve ever been involved in, it’s always ■—
The Court: When I speak of Erika Arndt, I mean Erika Arndt as a devisee or as a person who lived with Earle Berrell prior to his death. I’m not talking about her as the administrator in Canada. But when you look at the three of them as potential beneficiaries of this estate you’ve notified the children but with respect to Erika Arndt you’ve notified her and you have advanced her position.
Sherman: I think in the briefing, the positions I’ve taken as a lawyer concur with the position she has, yes. I think in the final analysis that’s where I am with the arguments.
The Court: Now, Ms. Arndt then didn’t have to hire a personal attorney to advance her position, but the children did, is that right? Because you’re representing the estate and not either of the potential beneficiaries of the estate. Now, you said that the children seem to have hired competent counsel to advance their positions. What about Ms. Arndt? She hasn’t had to hire a personal attorney to advance her position because it has been advanced by the attorney for the estate. Or has she? I don’t know of one.

After Sherman testified, Craig testified regarding her status as personal representative of the Arkansas ancillary probate. Carrigo also testified, stating that she received the letters from Sherman, and that Sherman had called her regarding the sale of the Arkansas real estate. Carrigo testified that she felt that Sherman was trying to pressure her into selling the property, and that she was concerned because Sherman had filed pleadings for Arndt. Sherman was then recalled to the stand by the trial judge, who again questioned him. The trial judge questioned Sherman’s use of the word “we” in the December 23, 1998, letter to Carrigo in which Sherman stated, “As you will see in the Motion to Determine Heirship, we have concluded that the Court will likely find that you and Edward James Berrell are heirs to the real estate, but not the personal property. Erika Arndt may have a dower interest in the real estate.” In response, Sherman answered that “we” included himself and Craig, the personal representative. The trial judge further questioned why Sherman seemed to communicate with Arndt, but not the children, regarding the sale of the property in Arkansas. Sherman testified that it was some time after the ancillary estate was opened before he actually found the children. Furthermore, Sherman responded that there was a concern that the house would deteriorate, but that the house could not and would not be sold without the concurrence of all interested parties.

After examination of the witnesses, the court issued its decision finding that Sherman should be disqualified as the attorney for the ancillary probate because “it would appear that his efforts have been directed toward advocating for Erika Arndt’s interests. The attorney for the estate has advanced the position of one potential beneficiary of the estate to the exclusion of the two children of the decedent.” The trial court entered this order on May 7, 1999. Sherman filed his Notice of Appeal the same day.

Standard of Review

We review a trial court’s decision to disqualify an attorney under the abuse-of-discretion standard. Seeco, Inc, v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1993); Berry v. Saline Memorial Hosp., 322 Ark. 182, 907 S.W.2d 736 (1995). An abuse of discretion may be manifested by an erroneous interpretation of the law. Seeco, supra. We have held that the Model Rules of Professional Conduct are applicable in disqualification proceedings. Berry, supra; See also, Saline Memorial Hosp. v. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995); Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998). Disqualification can be warranted in the absence of an ethical violation. It is an available remedy to a trial court “to protect and preserve the integrity of the attorney-client relationship.” Burnett v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990). Yet, it is a drastic measure to be imposed only where clearly required by the circumstances. Burnett, supra.

I. Ancillary Probate Under Arkansas Law

In the instant case, it must be borne in mind that the action below is an ancillary probate proceeding. An ancillary administration is a separate but related proceeding to the administration of the decedent’s estate in the jurisdiction where the decedent died. The primary administration of the decedent’s estate in this case is occurring in Alberta, Canada. The ancillary proceeding serves to collect assets and pay debts of the decedent in that locality. Ancillary administration of an estate in Arkansas is governed by Ark. Code Ann. §§ 28-42-101 — 28-42-111. Under these code provisions, a foreign personal representative such as Arndt may file for ancillary letters in Arkansas by filing an authenticated copy of his or her domiciliary letters with the proper Arkansas probate court. Ark. Code Ann. § 28-42-102(a)(l). This foreign personal representative shall be given preference to become the personal representative in Arkansas unless the probate court determines that such appointment would not be in the best interest of the estate. Ark. Code Ann. § 28-42-102(b). If such a determination is made, as it was here, the court may order the issuance of ancillary letters here to a qualified person, other than the domiciliary personal representative, pursuant to Ark. Code Ann. 28-48-101 (b). Under Ark. Code Ann. § 28-48-101 (a), a “hierarchy” of qualified people to act as personal representative of the estate in Arkansas exists. Under Ark. Code Ann. § 28-48-101 (a), this order of priority includes:

(a)(1) To the executor or executors nominated in the will;
(2) To the surviving spouse, or his or her nominee, upon petition filed during a period of thirty (30) days after the death of the decedent;
(3) To one (1) or more of the persons entitled to a distributive share of the estate, or his or her nominee, as the court in its discretion may determine, if application for letters is made within forty (40) days after the death of the decedent, in case there is a surviving spouse and, if no surviving spouse, within thirty (30) days after the death of the decedent;
(4) To any other qualified person.

In the instant case, the probate court appointed Craig, an Arkansas resident, as the ancillary personal representative. Craig managed Berrell’s property interests in Little Rock and was a logical choice as the ancillary personal representative under subsection (4) as “any other qualified person.” Sherman, who had filed the initial paperwork on Arndt’s behalf, continued as legal counsel for the appointed personal representative, Craig.

II. Sherman’s Duties to the Estate in the Ancillary Probate

Arkansas law requires the attorney retained by the personal representative to perform several legal tasks on behalf of the estate. Ark. Code Ann. § 28-48-108(d). One of the tasks is to give proper notice of the appointment of the personal representative to all persons having claims against the estate, including heirs and creditors, pursuant to Ark. Code Ann. § 28-40-111. The statute provides a form section (c) for that purpose. This form provides a basic notice of the proceedings, including the date of the will, the date of the death of the testator, the name of the personal representative, and notice of the time to file any objections to the will or claims against the estate.

The record reflects that Sherman provided this information and more to Berrefl’s children once they were located. In addition to the required notice information, Sherman informed them by letter that their father’s will was a holographic will that nominated Arndt as executrix and named her sole beneficiary of the assets of the estate. Sherman further explained that Craig, as ancillary personal representative, was taking the position that Canadian law applied to the will and distribution of the assets. However, Sherman indicated to both children and to the probate court that Berrell’s failure to mention either child in his will gave the children inheritance rights in the Arkansas estate as if Berrell had died intestate. Sherman concluded from his research that Arkansas inheritance law would apply to the real estate but not the personal property in Arkansas. Sherman opined in the letters to the children and the court that this would be an issue that the probate court would have to resolve.

Sherman also addressed the issue of whether Arndt, who had been identified in the Canadian probate as Berrell’s common-law wife and who was receiving retirement benefits from a Canadian state agency as Berrell’s common-law wife, would be recognized in Arkansas as Berrell’s common-law wife for purposes of dower and curtesy under the Arkansas statutes. If she is considered a common-law wife in Canada, Arkansas would recognize that and allow her dower rights of one-third of all the lands for life and one-third interest in any lands sold, as well as one-third of the personal estate. Sherman advised the court that he believed that Arndt had been identified as a common-law wife in Canada by the probate court there, and cited Pauliuk and the fact that she was receiving Berrell’s retirement benefits from a state agency in Canada for that proposition.

III. The Probate Court’s Order Disqualifying Sherman

In making its disqualification order, the probate court made specific findings in support of its ruling. In pertinent part, the court stated:

Mr. William Sherman, attorney, efforts were diligent, earnest and honest in this case. The efforts of Mr. Sherman have been directed towards advocating for Erika Arndt’s interest with the exception of ultimately providing notice to the children of these proceedings.
Mr. Sherman has advanced a position of one potential beneficiary of the estate to the exclusion of the two children of the decedent. The argument that Ms. Arndt should not have to hire or bear the expense of hiring separate counsel does not justify Mr. Sherman advocating for one potential beneficiary to the exclusion of the children. At the very least, the children have justifiably concluded their efforts are being prejudiced by the attorney’s actions and filings in this estate.

From statements in the hearing on March 3, 1999, wherein Sherman appeared on behalf of the estate, but no other parties appeared, it can be surmised that Sherman considered himself to be counsel for the estate rather than Arndt’s counsel. Sherman addressed payment to the personal representative of a fee for managing the decedent’s real estate and notified the court of the probable significant issues which could arise at the upcoming probate hearing. Sherman gave a brief overview of those issues, including the issue regarding Arndt’s status as a common-law wife in Canada and the effect of that on the property in Arkansas, and then stated:

I represent the estate, I think it’s my duty to show both arguments on that issue. I think that Ms. Donovan will do a good job of arguing her client’s position. And I’d just alert the court to the fact we do have that very unique question, which is both interesting and difficult.

After hearing the matter on April 20, 1999, the trial court felt Sherman’s representation of the estate disadvantaged the pretermitted children, though finding no conflict of interest.

As stated in Saline, supra, “[t]he primary reference in any modern day disqualification case is to Rule 1.7 of the Model Rules of Professional Conduct.” Rule 1.7 of the Arkansas Model Rules of Professional Conduct defines conflicts of interest. Generally under the rule, an attorney should not represent a client if the representation will be directly adverse to another client. In Arkansas, it is not necessarily a conflict of interest for an attorney to represent both the estate and the only devisee in the will. There must be an additional showing of prejudice. King v. King, 273 Ark. 55, 616 S.W.2d 483 (1981). In King, the testator died leaving a will in which he named and disinherited six of his seven children, but did not name the seventh or the seventh’s children. As such, they were pretermitted heirs under the statute, and were allowed to take that portion they would have been allowed had the deceased died without a will. Also in that case, the attorney for the executor of the estate filed a brief in opposition to the pretermitted heirs’ stance on an issue, and the court still did not find that a conflict of interest arose.

The trial court did not discuss conflicts of interest under Rule 1.7. While we could remand for consideration of the conflict-of-interest issue, it is well settled that we have the power to hear probate cases de novo. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000). When the facts have been fully developed, a remand would serve little purpose. Norman, supra. Apparently, attorney ethics was not a factor in this case. In fact, the trial court complimented Sherman’s honesty and diligence. Here, the core issue is whether the existence of parallel legal positions held by the personal representative for the estate, Craig, and one of the potential heirs of that estate, Arndt, has been shown to be prejudicial to the other potential heirs. In other words, did Sherman’s arguments on behalf of the personal representative charged with probating Berrell’s holographic will which happened to be consistent with the interests of the sole devisee under the will prejudice the remaining potential heirs? We hold they did not.

The actions taken by Sherman throughout the proceedings below reflect conscientious legal services consistent with the duties of counsel for a personal representative in an ancillary probate. Mr. Sherman fulfilled his obligations of notice and adequately advised the court of the issues confronting it. His obligations as estate counsel would not include advocacy for any individual heirs, but neither would those obligations prevent the estate from having positions that proved consistent with those of some individual heirs. Based upon the preceding analysis, we hold the trial court erred in disqualifying appellant, and, accordingly, we reverse.

Reversed.

       Ark. Code Ann. § 28-48~108(d) allows the personal representative to employ legal counsel in connection with the probate of the will or the administration of the estate. This attorney
      shall prepare and present to the probate court all necessary notices, petitions, orders, appraisals, bills of sale, deeds, leases, contracts, agreements, inventories, financial accounts, reports, and all other proper and necessary legal instruments during the entire six (6) months, or longer when necessary, while the estate is required by law to remain open.
      Ark. Code Ann. § 28-48-108(d). Section (d) also indicates that the attorney’s fee is based on the total market value of the real and personal property reportable to the probate court, regardless of who inherits the real and personal property.

       Sherman based his reasoning on several Arkansas statutes and cases. Under Ark. Code Ann. § 28-39-407(b), children not mentioned in the will have certain rights. Because the children were not mentioned in Berrell’s holographic will, they are considered under Arkansas law to be “pretermitted children” allowed to take Arkansas property under the intestate statutes. Ark. Code Ann. § 28-9-203 details the general rules of intestate succession. Under this section, any real property in Arkansas would pass to the children despite the language of the will. Personal property, however, is not as clearly dilineated for distribution because this statute seems to indicate that the personalty may pass to the heirs through the personal representative, although leading authorities indicate that distribution of personal property is governed by the domicile of the deceased. See Am. Jur. 2d Executors and Administrators § 1171 (1991). As such, if Canadian law governs the distribution of personal property, Arndt would take all the personalty because failure to mention adult children in a will created in Canada does not allow the children to take any of that property there.


author: Per Curiam.

text:
    Sonny EADS and Vicki Lynn Eads v. Bill (Rick) HALL; Jeanita Ives; Laura Bohannon; and Joyce L. Lindsey, d/b/a Century 21 Southgate Realty
    99-1247
    11 S.W.3d 562
    Supreme Court of Arkansas
    Opinion delivered March 9, 2000

      J. Hudson Shepard, for appellants.

      Mark W. Dossett, for appellees.
   Per Curiam.

On February 17, 2000, attorney Mark W Dossett filed an affidavit on behalf of the appellees in support of attorney’s fees and costs incurred by virtue of appellants’ motion for rule on clerk. This affidavit was filed in response to this court’s per curiam opinion dated February 10, 2000, wherein we found that the appellants had violated Rule 11 of the Arkansas Rules of Appellate Procedure — Civil, and that the appellees were entitled to costs and attorney’s fees. Mr. Dossett shows this court that he spent 5.40 hours on this matter and incurred costs of $33.60. We award the appellees attorney’s fees at a rate of $75 per hour for total fees of $405. The appellants are directed to pay the appellees $438.60 as attorney’s fees and costs forthwith.


author: PER CURIAM.

text:
    Wardell FRANKS v. STATE of Arkansas
    CR 00-205
    11 S.W.3d 561
    Supreme Court of Arkansas
    Opinion delivered March 9, 2000

      Bishop & Bishop, by: Eric T. Bishop, for appeUant.
    No response.
   PER CURIAM.

Warden Franks, by his attorney, has filed a motion for rule on the clerk.

His attorney, Eric T. Bishop, admits in his motion that the record was tendered late due to a mistake on his part.

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

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


author: ROBERT L. Brown, Justice.

text:
    BOB COLE BONDING v. STATE of Arkansas
    99-1327
    13 S.W.3d 147
    Supreme Court of Arkansas
    Opinion delivered March 16, 2000

      Wright & Van Noy, by: Herbert T. Wright, Jr., for appellant.

      Mark Pryor, Att’y Gen., by; C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

This appeal involves a bond forfeiture. The trial court awarded judgment to the State and against the appellant, Bob Cole Bail Bonds, Inc. (“the bonding company”), in the amount of $2,000. The court of appeals reversed and dismissed. Bob Cole Bail Bonds, Inc. v. State, 68 Ark. App. 13, 2 S.W.3d 94 (1999). This court granted review of the court of appeals’s decision on December 9, 1999. When we grant review of a case decided by the court of appeals, we treat the appeal as if it were originally filed in this court. See Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998).

The two major points raised by the bonding company in this appeal are (1) the trial court failed to give it statutory notice, and (2) the defendant, Lacey Dawn Helmert, was surrendered to the trial court before the bond was forfeited. Despite the points raised, we believe that resolution of this case turns on the absence of the bail bond in the circuit court’s file on Helmert and the issue of whose burden it was to introduce the bail bond at the bond forfeiture hearing.

According to her criminal docket, on July 16, 1997, Helmert was arrested on a petition to revoke her probation on drug offenses and bonded by “Bob Cole Bonding Agent Steve Outlaw.” On December 1, 1997, Helmert failed to appear at a scheduled hearing on that petition, and on that same date, statutory notice which begins the 120-day notice period for failure to appear was mailed by the circuit court administrator to “Cole Bonding, 1005 N. Center, Lonoke, Arkansas 72086.” See Ark. Code Ann. § 16-84-201(a)(1)(B) (Supp. 1999).

On May 5, 1998, the circuit court executed a Bond Forfeiture Summons ordering Helmert’s arrest and directing the bonding company to appear to show cause why the bail bond should not be forfeited and judgment entered against it. The summons stated that the bail bond was attached, but that was not done. The summons was served on the bonding company in Fort Smith.

On June 25, 1998, Helmert was arrested. On July 15, 1998, the bond forfeiture hearing was held. At the hearing, the bonding company argued that the original bond was not in the court file and that the 120-day notice was defective because it went to the wrong address. The circuit court entered judgment against the bonding company in the amount of $2,000. At no time during the hearing was the bail bond presented to the circuit court or introduced into evidence. The bail bond is not part of the record in this appeal.

Two points bear emphasis at the outset of this appeal. The first is that even though the bail bond at issue was attached to the bonding company’s brief in this appeal, it cannot be considered by this court because it is not part of the record. It is, of course, the appellant’s duty to bring up a sufficient record to enable this court to consider the issues raised. See, e.g., Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). The second point is the manner in which the bonding company framed the issue before the trial court. The bonding company did not contend that the State was not entitled to judgment because the State did not introduce the bail bond at the forfeiture hearing. See Hernden v. State, 865 S.W.2d 521 (Tex. Ct. App. 1993). Rather, the bonding company mounted a defense to forfeiture on the basis that the statutory notice was defective and, thus, the 120 days for notice never commenced running. Even in its appeal, the bonding company only makes passing reference without citation of authority to the necessity for there to be a bail bond presented to the circuit court in order for a forfeiture to occur. The focal point of the bonding company’s appeal is the circuit court’s failure to give it statutory notice. Again, the framing of the issue is important because the crucial question before this court is which party had the burden of introducing either an original or a copy of the bail bond into evidence at the bond forfeiture hearing.

The law regarding statutory notice to bonding companies is clear and precise:

(a)(1)(A) If the defendant fails to appear for trial or judgment, or at any other time when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court may direct the fact to be entered on the minutes, and shall promptly issue an order requiring the surety to appear, on a date set by the court not less than ninety (90) days nor more than one hundred twenty (120) days after the issuance of the order, to show cause why the sum specified in the bail bond or the money deposited in lieu of bail should not be forfeited.
(B) The one hundred twenty-day period begins to run from the date notice is sent by certified mail to the surety company at the address shown on the bond, whether or not it is received by the surety.

Arkansas Code Ann. § 16-84-201(a)(l)(A) and (B) (Supp. 1997) (emphasis added).

We have held that statutory service requirements, being in derogation of common law rights, must be strictly construed and that compliance with them must be exact. Holt Bonding Co. v. State, 328 Ark. 178, 182, 942 S.W.2d 834, 837 (1997); see also Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996). Substantial compliance will not suffice. Holt Bonding Co. v. State, supra; AAA Bail Bond Co. v. State, 319 Ark. 327, 891 S.W.2d 362 (1995). Nor can defective service be validated by actual knowledge. Wilburn v. Keenan Cos., 298 Ark. 461, 768 S.W.2d 531 (1989).

In the instant case, the bonding company contends that the statutory notice required under § 16-84-201(a)(l)(A) was defective because it was not sent to the “address shown on the bond.” This begs the question, however, of what address was shown on the bond and whose burden it was to present that proof. If the bonding company is raising the defense of defective service, in our view it had the burden to show that the circuit court administrator sent the notice to the wrong address based on the bail bond. This it failed to do.

Our conclusion in this regard is on all fours with statements made by this court and the court of appeals in previous cases. For example, the court of appeals has said that in a bail bond proceeding, “[o]nce the defendant has failed to appear, the entire amount of the bond is subject to forfeiture. The surety is given the opportunity to present evidence why the bond should not be forfeited, or why the full amount of the bond should not be forfeited....” M & M Bonding Company v. State, 59 Ark. App. 228, 232, 955 S.W.2d 521, 523 (1997). Along the same line, this court has said, “[t]he show-cause order did not abrogate the statutory forfeiture. It merely afforded the bondsmen an opportunity to be heard with respect to a total or partial remission of the forfeiture....” Craig v. State, 257 Ark. 112, 115, 514 S.W.2d 383, 385 (1974). That, of course, is the essence of a show-cause hearing — that the summoned bonding company should offer proof or argument as to why the bail bond should not be forfeited. In the instant case, the bonding company failed to present the circuit court with evidence of the bail bond itself which was the key to the bonding company’s defense of erroneous service. In failing to do so, it did not meet its burden of proof. We reverse the holding of the court of appeals in Bob Cole Bail Bonds, Inc. v. State, 68 Ark. App. 13, 2 S.W.3d 94 (1999), that the burden of proof in the instant case rested with the State.

The bonding company also argues that the notice it received of non-appearance was not prompt. This argument, however, was not addressed to the circuit court and, accordingly, is not preserved for our review. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). Nor was the argument made to the circuit court that the bonding company should not be Hable because Helmert was surrendered to the circuit court prior to judgment on the bond forfeiture. Accordingly, we will not address the issue. Id.

We affirm the judgment of the trial court.

       This statute was amended by Act 567 of 1999.


text:
    T & T MATERIALS, INC. v. Willie MOONEY and Northwest Paving Co., Inc.
    99-1425
    12 S.W.3d 635
    Supreme Court of Arkansas
    Opinion delivered March 16, 2000

      Hardin & Grace, PA, by: William T. Terrell, for appellants.

      James & Carter, PLC, by: Paul J. James, for appellees.
   ROBERT L. Brown, Justice.

This appeal concerns the ability of a plaintiff-garnishor (T & T Materials, Inc.) to bring a separate fraud action against a garnishee (Northwest Paving Co., Inc.) and the original defendant (Willie Mooney). The trial court dismissed the separate fraud action, and the court of appeals affirmed. T &T Materials, Inc. v. Mooney, 68 Ark. App. 77, 4 S.W.3d 512 (1999). We granted review on February 3, 2000. We conclude that T & T’s remedy lay within the framework of the garnishment statutes, and we affirm the dismissal of the fraud action.

On January 6, 1997, Mooney agreed to a consent judgment in favor of T & T in- the amount of $55,023.31 plus postjudgment interest and costs. The judgment was taken in Crawford County Circuit Court, Crawford County being Mooney’s residence. On May 29, 1997, Mooney answered T 8c T’s interrogatories and request for production of documents and stated that his present occupation was “Superintendent, Northwest Paving Co., Inc.,” which was located in Crawford County. On June 2, 1997, T & T sent a writ of garnishment to Mooney and to his employer, Northwest Paving, as garnishee, accompanied by allegations and interrogatories propounded to Northwest Paving.

On June 24, 1997, Northwest Paving answered the allegations and interrogatories and stated that it, as garnishee, held $200 payable to Mooney. Counsel for T & T next wrote three letters to counsel for Northwest Paving (dated July 9, 1997; August 11, 1997; and August 25, 1997), requesting information about payroll deductions resulting from the writ of garnishment. No response was forthcoming from Northwest Paving.

On September 11, 1997, counsel for T & T wrote the circuit judge in Crawford County and enclosed a precedent for an order of disbursement for Northwest Paving to pay over to T & T all garnished wages. On September 15, 1997, Northwest Paving filed an amended response to the writ of garnishment in which it stated that it was not Mooney’s employer and that it was not holding any money for Mooney and was not indebted to Mooney. The amended response further stated that Northwest Paving leased its employees from a Texas firm named Certified Systems, Inc. On April 15, 1998, the Crawford County circuit judge dismissed the writ of garnishment against Northwest Paving.

On March 17, 1998, T & T sued Mooney and Northwest Paving in Pulaski County Circuit Court and alleged that the named defendants had engaged in a pattern of fraud and deceit by providing false information relating to Mooney’s employment status and by not disclosing Mooney’s true employment. T & T sought compensatory damages in the form of uncollected garnishment proceeds and punitive damages. T & T later filed an amended complaint in its fraud action and added a claim for constructive fraud. Mooney and Northwest Paving moved to dismiss the amended complaint under Ark. R. Civ. P. 12(b) on six grounds. The Pulaski County circuit judge then transferred the fraud action to Van Burén County, which was T & T’s place of business. On October 20, 1998, the Van Burén County circuit judge dismissed the fraud action without prejudice, and in an accompanying letter opinion, concluded that the garnishment statutes covered the situation raised by T & T.

When this court grants a petition to review a case decided by the court of appeals, it reviews the case as if it had originally been filed in this court. Youngman v. State Farm Mut. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998). The pivotal point raised by T & T in this appeal is whether the Van Burén County circuit judge erred in finding that only the Crawford County Circuit Court had jurisdiction over this matter as part of the garnishment process. Specifically, T & T contends that because Northwest Paving was not Mooney’s employer and was not holding money for Mooney, it was not a garnishee and the garnishment statutes are inapposite. This left a separate fraud action as T & T’s only recourse, under its theory of the case.

We disagree with T & T’s characterization of this matter for several reasons. It is clear from the record that Northwest Paving first identified itself as a garnishee. It was not until some three months later that Northwest Paving amended its response to say that it was not Mooney’s employer. That was on September 15, 1997. T & T did not take the issue to the Crawford County circuit judge as part of the garnishment action but rather waited until March 17, 1998, to file a separate fraud action in Pulaski County Circuit Court.

The garnishment statutes that are applicable to this case are these:

The garnishee shall, on the return day named in the writ, exhibit and file, under his oath, full, direct, and true answers to all such allegations and interrogatories as may have been exhibited against him by the plaintiff.

Ark. Code Ann. § 16-110-404 (1987).

(a) If the garnishee files his answer to the interrogatories exhibited and the plaintiff deems the answers untrue or insufficient, he may deny the answer and cause his denial to be entered on the record.
(b) The court or justice, if neither party requires a jury, shall proceed to try the facts put in issue by the answer of the garnishee and the denial of the plaintiff.

Ark. Code Ann. § 16-110-405 (1987).

(a) If the issue is found for the garnishee, he shall be discharged without further proceedings.
(b) However, if the issue is found for the plaintiff, judgment shall be entered for the amount due from the garnishee to the defendant in the original judgment, or so much thereof as will be sufficient to satisfy the plaintiff’s judgment, with costs.

Ark. Code Ann. § 16-110-410 (1987).

Northwest Paving and Mooney contend that if T & T believed the response to its allegations and interrogatories to be untrue or insufficient, it should have “denied” or objected to the response under § 16-110-405 and submitted the matter to the circuit judge or a jury for determination. We agree. T & T claims that there was no garnishment jurisdiction because Northwest Paving was not an employer. But that was exactly the issue to be decided by the circuit judge. And the ancillary issue was if Northwest Paving and Mooney abused the garnishment process, in what amount was T & T damaged? T & T argues that § 16-110-410 limits its recovery against Northwest Paving to the amount it owed to Mooney and that no amount was due. Thus, it contends that the remedy afforded was an empty one. We disagree. T & T is correct that garnishment is purely a statutory remedy, and the garnishment statutes must be strictly construed. See Moory v. Quadras, Inc., 333 Ark. 624, 970 S.W.2d 275 (1998). But surely T & T could have claimed the amount Northwest Paving stated it owed as the garnishee prior to the time it reneged and filed an amended response denying Mooney’s employment. Again, this was an issue for the circuit judge to resolve within the context of the garnishment statutes. In sum, T & T failed to object to the amended response or otherwise to pursue its remedies under the garnishment statutes and instead waited six months and filed a separate fraud action in Pulaski County.

There are several reasons that militate against affirming T & T’s manner of proceeding in this matter. First and foremost, as already referenced, T & T had a remedy under the garnishment statutes. Also, were we to authorize T & T to forego that remedy and file a splinter action in a different venue, we would be sanctioning split causes of action, which is something we have expressly held we will not do. See Spickes v. Medtronic, 275 Ark. 421, 631 S.W.2d 5 (1982); Lisenby v. Farm Bureau Mut. Ins. Co., 245 Ark. 145, 431 S.W.2d 484 (1968); Eiermann v. Beck, 221 Ark. 138, 252 S.W.2d 388 (1952).

Moreover, there is no question in our minds that the real character of T & T’s cause of action is one involving abuse of the garnishment process and not fraud. We have been very clear in our decisions that when two or more actions are pled that lie in different venues, the proper venue is decided by the real character of the action and the principal right being asserted. See Bristol-Myers Squibb Co. v. Saline County Circuit Court, 329 Ark. 357, 947 S.W.2d 12 (1997) (per curiam); Fraser Bros. v. Darragh Co., 316 Ark. 297, 871 S.W.2d 367 (1994); Atkins Pickle Co., Inc. v. Burrough-Uerling-Brasuell Consult. Eng’rs, Inc., 275 Ark. 135, 628 S.W.2d 9 (1982). This was a garnishment proceeding and the proper remedy for any abuse of the garnishment process lay under the garnishment statutes.

In short, T & T had a remedy under the Garnishment Act and failed to pursue it. We affirm the dismissal of the fraud action by the Van Burén County Circuit Court. Because we do not countenance a separate action for fraud under these facts, we need not address T & T’s second point relating to proper venue for the fraud action.

Affirmed.

       On September 22, 1997, T & T did attempt a garnishment action against Certified Systems, Inc., but by that time Mooney’s wages had decreased and were insufficient for garnishment purposes.

       A second statute speaks in terms of rendering judgment against the garnishee in the amount the garnishee held for the defendant at the time the writ of garnishment was served, but the statute is limited to cases where the garnishee neglects or refuses to answer interrogatories. See Ark. Code. Ann. § 16-110-407 (Supp. 1999).


text:
    STATE of Arkansas v. Christina Marie RIGGS
    CR 98-1281
    12 S.W.3d 634
    Supreme Court of Arkansas
    Opinion delivered March 16, 2000

      Mark Pryor, Att’y Gen., by: O. Milton Fine, II, Ass’t Att’y Gen., for appellant.

      John Wesley Hall, Jr., for appellee.
   PER CURIAM.

On June 30, 1998, Christina Riggs was convicted in Pulaski County Circuit Court of capital murder and was sentenced to death by lethal injection. On November 4, 1999, this court affirmed her conviction. Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999).

On December 20, 1999, a hearing was held in Pulaski County Circuit Court pursuant to Ark. R. Crim. P. 37.5. At that hearing, Riggs was represented by her counsel, John Wesley Hall. The circuit court declared Riggs to be indigent and advised her of her right to have counsel appointed for her. Riggs informed the circuit court that she wished to waive appointment of counsel. The circuit court then ordered that a competency examination of Riggs be performed to determine her ability to waive counsel. A second hearing on Riggs’s competency was scheduled for January 14, 2000.

Biggs was evaluated by O. Wendell Hall, III, M.D., Forensic Medical Examiner, and by John K. Anderson, Ph.D., Forensic Staff Psychologist, of the Arkansas State Hospital. On January 7, 2000, they issued their report to the circuit court in which they concluded that Riggs was competent to waive her Rule 37.5 remedies.

On January 14, 2000, a hearing was held before the circuit court on Riggs’s competency to effect a waiver of her Rule 37.5 remedies. At that hearing, Dr. Hall and Riggs testified. Dr. Hall testified that Riggs had the capacity to knowingly and intelligently waive her postconviction remedies, and Riggs stated that that was her desire. Riggs testified specifically that she had read Rule 37.5 and did not want an attorney appointed to pursue her rights under that rule.

On January 21, 2000, the circuit court entered its order based on Dr. Hall’s examination of Riggs and his conclusion. The court found:

1. The defendant has been fully advised of her rights to seek post-conviction relief with the assistance of court-appointed counsel, at no cost to her.
2. The defendant has knowingly, intelligently, and voluntarily waived her right to appointed counsel in open court.
3. The defendant has rejected the appointment of counsel, and fully and completely understands the legal consequences of her decision.

The circuit court concluded that it would not appoint counsel to represent Riggs for the purpose of pursuing her Rule 37.5 remedies.

The State now petitions this court for a writ of certiorari for the purpose of accepting the record filed herein and for the further purpose of affirming the trial court’s findings. We grant the petition for writ of certiorari and hold that the trial court’s findings are supported by the transcript of the hearing held on January 14, 2000, and the record in this matter. We affirm the circuit court’s findings, as set out above.

Riggs further moves this court to issue its mandate forthwith and to expedite this motion. According to her motion, Riggs desires her execution “to move along and not be unnecessarily delayed,” and she further desires that intervenors not interfere “with her personal decision in this case.” Her motion is denied.


text:
    William D. TAYLOR, Sr. v. STATE of Arkansas
    CR 99-1471
    12 S.W.3d 238
    Supreme Court of Arkansas
    Opinion delivered March 16, 2000

      Hurst Law Offices, by; Q. Byrum Hurst, Jr., for appellant.
    No response.
   PER CURIAM.

This is a Rule 37 appeal. See Ark. R. Crim. P. 37. Appellant William D. Taylor, Sr., moves the court to supplement the record of the Rule 37 proceedings with the record prepared for appeal from the original judgment of conviction in case No. 97-01240. See Taylor v. State, 334 Ark. 339, 974 S.W.2d 454 (1998).

The motion is denied. It is not necessary to consolidate the Rule 37 record with the record of the original trial, because the record of the original trial is already on file with this court. See Dryman v. State, 327 Ark. 375, 938 S.W.2d 825 (1997). It is necessary, though, for the appellant in a Rule 37 appeal to abstract the material portions of the trial record. Id.

We note that the record in the Rule 37 appeal was lodged on December 16, 1999, and that appellant has been granted three extensions of time in which to file his brief. The first extension was granted on January 24, 2000, based on the heavy trial schedule of appellant’s counsel. The second extension was granted on February 22, 2000, based on an assertion that appellant’s counsel’s computer had “crashed” and that he had lost the abstract. The third extension was granted March 8, 2000, also based on the computer crash, with the deadline for the brief set for March 23, 2000. This means that appellant’s brief will be filed more than three months after the record was lodged in this appeal. There will be no more extensions for filing the appellant’s brief granted in this case.


text:
    Tracy YOUNG v. STATE of Arkansas
    00-225
    12 S.W.3d 239
    Supreme Court of Arkansas
    Opinion delivered March 16, 2000

      Ann Hill, for appellant.
    No response.
   PER CURIAM.

Appellant, Tracy Young, by his attorney, Ann Hill, has filed a motion for rule on the clerk. On September 30, 1999, the Garland County Juvenile Court determined that Young was a delinquent juvenile, based upon the underlying offense of aggravated robbery, and committed him to the Division of Children and Family Services, Youth Services Center. Young then filed a timely notice of appeal on October 15, 1999. On December 28, 1999, Young filed a motion for extension of time to docket the appeal, but the order granting the extension was not filed until January 14, 2000, one day past the ninety-day deadline for filing the record with the Supreme Court Clerk, as set forth in Ark. R. App. P. — Civil 5(a) (1999).

Ms. Hill admits in the instant motion that the record was tendered late due to a mistake on her part. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Accordingly, we grant the motion for rule on the clerk. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Id.


author: TOM GLAZE, Justice.

text:
    Issac A. COLBERT v. STATE of Arkansas
    CR 99-1101
    13 S.W.3d 162
    Supreme Court of Arkansas
    Opinion delivered March 23, 2000

      Christy M. Adams, for appellant.

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Ass’t Att’y Gen., for appellee.
   TOM GLAZE, Justice.

Isaac Colbert brings this appeal from his conviction for possession of a controlled substance with intent to deliver. He argues that the trial court erred in denying his motion to suppress evidence seized from his vehicle. We agree, because the initial stop of his car was constitutionally invalid, and because the admission of the cocaine seized from his car was not harmless error. Therefore, we reverse his conviction.

In the late afternoon of March 18, 1999, a warrant was issued for the search of Colbert’s house, located at 330 West Olive Street in Prescott, Arkansas. The warrant was based on information gained from a confidential informant who had purchased crack cocaine at Colbert’s house. The scope of the warrant covered the Colbert residence and all curtilage, vehicles, persons, and outbuildings on the premises.

Investigator Todd Daley of the Arkansas State Police and Investigator Wayne Kisselburg with the Nevada County Sheriff’s Office went to Colbert’s house at about 6:15 that evening to execute the warrant. However, when they drove up to his house, they saw that his car was not there, so they decided not to search the house at that point. Rather, they chose to drive around Prescott, looking for Colbert’s car, because they had a suspicion that if he was not at home, the drugs might be on him. The officers later testified that they chose to look for Colbert’s car because they wanted him to return home and allow them access to his house so they could avoid damaging it.

As they drove around looking for Colbert, Daley and Kisselburg spotted Colbert’s car turning onto Highway 67, heading away from town. Although Colbert was not speeding or committing any traffic violation, Daley instructed Deputy Danny Martin, who was driving a marked patrol vehicle, to pull Colbert over. Colbert stopped when Martin flashed his blue lights at him. Daley stopped his vehicle in front of Colbert’s and, as Daley departed his car and walked back to Colbert’s car, Colbert’s car began rolling towards Daley. Unsure whether Colbert’s foot had merely slipped off the brake pedal or if he was attempting to flee, Daley drew his gun and ordered Colbert to stop and get out of the vehicle.

As Colbert got out, a piece of plastic fell to the ground. Kisselburg picked it up and saw a substance that looked like crack cocaine. At that time, Daley placed Colbert under arrest for possession of cocaine, and proceeded to search the car. The officers found one rock of cocaine on the driver’s side floorboard, a plastic bag containing cocaine residue and three smaller rocks of cocaine (also on the driver’s side floor), and what appeared to be a crack pipe stuffed down between the passenger’s seat and the center console.

Once the search of the car was completed, Daley executed the search warrant at Colbert’s house around 7:15 p.m. The search turned up $110.00, a .22 pistol, approximately 45 rounds of .22 ammunition; a .22 rifle with scope; a 12-gauge shotgun; and a paper towel containing two rocks of cocaine totaling .576 grams in the butter tray of the refrigerator. The total amount of cocaine found, including that from the car, was a little over 1.3 grams.

After Colbert was charged with possession of a controlled substance with intent to deliver and simultaneous possession of drugs and a firearm, he filed a motion to suppress the evidence seized from the car. Colbert argued that he was stopped without any probable cause, and that the subsequent search of his car and seizure of the cocaine violated his Fourth Amendment rights. The trial court denied this motion, finding that the officers were acting in good faith. The case proceeded to trial, and Colbert was convicted and sentenced to life in prison on each of the two counts.

On appeal, Colbert argues that the trial court erred in denying his motion to suppress the evidence seized from his car because the traffic stop was illegal. He does not challenge the execution of the search warrant at his home or his conviction on the simultaneous possession charge.

When reviewing the denial of a motion to suppress, this court makes an independent examination based upon the totality of the circumstances and reverses only if the decision is clearly against the preponderance of the evidence. Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999); Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997). The facts and evidence are reviewed in the light most favorable to the state. Id.

Rule 14.1 of the Arkansas Rules of Criminal Procedure provides that a police officer “who has reasonable cause to believe that a moving ... vehicle ... contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is: (i) on a public way....” Reasonable cause, as required by this rule, exists when officers have trustworthy information which rises to more than mere suspicion that the vehicle contains evidence subject to seizure and a person of reasonable caution would be justified in believing an offense has been committed or is being committed. Reyes v. State, 329 Ark. 539, 954 S.W.2d 199 (1997) (citing Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996)).

Although Colbert does not explicitly rely on Rule 14.1, he bases a large part of his argument on Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980), in which this rule figured prominently. The court in that case held that “[t]he right of police officers to stop a vehicle on the public highway for the purpose of searching it exists when there is probable cause for that action, i.e., when the facts within the knowledge of the officers ... amounts to more than a mere suspicion that it contains something subject to seizure.” Id. at 557 (emphasis added).

The officers in this case admitted that at the time they obtained the warrant to search Colbert’s house, they did not have probable cause to search Colbert’s vehicle. Nevertheless, they chose to locate Colbert and his car because, as Officer Daley testified at the suppression hearing, they felt there might be a possibility that Colbert could have taken some or all of the drugs with him. Daley stated, “[although I suspected there may be some drugs, I had no probable cause to believe there was anything in the car.” Based on these facts, the officers appeared to have no more than possible or mere suspicion that Colbert possessed drugs when they stopped Colbert’s car. Consequently, we hold the officers failed to comply with Rule 14.1.

Rule 3.1 also governs police stops. That rule provides that “[a] law enforcement officer lawfully present in any place may ... stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit ... a felony. . . , if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.” (Emphasis added.) Ark. R. Crim. P. 3.1; see also Ark. Code Ann. § 16-81-204 (1987). Rule 2.1 of the Arkansas Rules of Criminal Procedure defines “reasonable suspicion” as “a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” See also Ark. Code Ann. § 16-81-202 (1987).

Again, investigators Daley and Kisselburg had only a “bare suspicion” that Colbert had taken the drugs with him in his car; they did not articulate a single reason why they might have thought that to be the case. It is worth noting that the search warrant was issued based upon an alleged controlled buy that took place in Colbert’s house, not his car. Although the State argues that the search warrant, obtained on the basis of a confidential informant’s purchase of cocaine from Colbert, gave the officers reasonable suspicion to stop Colbert’s car, the officers themselves admitted that the purpose of the stop was not to “determine the lawfulness of Colbert’s conduct,” as required by Rule 3.1. Rather, the reason they gave for stopping Colbert was to ask him to return to his house so they could search it when he was present. This, however, does not fall within the language of the rule.

When the initial “reasonable suspicion” is lacking, the stop itself is impermissible. See Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998). In that case, this court held that where the arresting officer’s suspicions were aroused only after he asked Stewart to approach his car, those suspicions could not form the justification needed for the initial stop. Stewart, 332 Ark. at 145, 964 S.W.2d at 797. Such is the case here, as well.

The State also attempts to analogize this case to that presented in Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995), in which this court affirmed the trial court’s denial of a motion to suppress for the reason that the police had reasonable suspicion to stop and search defendant Kilpatrick on the basis of a tip from a confidential informant. However, there, the case turned on the reliability of the informant, who had given detailed information about exactly who was involved in the drug sales and where the sales were taking place. In affirming the trial court, this court held that the prior reliability of the informant, combined with the accuracy of the informant’s information and the detective’s knowledge that the area was known for drug trafficking, “was enough to give the officers specific, particularized and articulable reasons indicating the person or vehicle may be involved in criminal activity.” Kilpatrick, 322 Ark. at 736, 912 S.W.2d at 921.

No such specific, particularized, or articulable reasons were present here. The traffic stop of Colbert’s car was unnecessary; the search warrant could have been executed any time, day or night, and the officers knew they could enter Colbert’s house regardless of whether he was there. The only lawful reason the officers could have stopped Colbert was if they reasonably suspected him of committing a felony, if the stop was reasonably necessary to determine the lawfulness of Colbert’s conduct. However, Colbert was not engaging in any apparent lawless conduct; instead, he was pulled over on the basis of the officers’ unreasonable suspicion that he might have drugs on him. Thus, the officers’ initial stop of Colbert was invalid under Ark. R. Crim. P. 3.1.

Although the stop cannot be justified under the Arkansas Rules of Criminal Procedure, the State argues that the inevitable discovery rule should validate the search of Colbert’s car. That rule provides that evidence otherwise subject to suppression can be admissible if the State proves by a preponderance of the evidence that the police would have inevitably discovered the evidence by lawful means. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998); Brunson v. State, 296 Ark. 220, 753 S.W.2d 859 (1988). The State urges that if Colbert’s car had been at his house when the officers first drove by, or had the officers merely waited for Colbert to come home, the warrant would then have permitted them to search the car. However, this argument ignores the fact that Colbert was not returning home when the officers spotted him. Because Colbert appeared to be leaving town when the officers decided to stop him, it is impossible to conclude the officers would have inevitably discovered drugs in Colbert’s car when he eventually returned home. Nor did the officers suggest they intended to stake out Colbert’s house to await his return. In short, the State fails to show how the inevitable discovery rule can be employed to validate the stop and search of Colbert’s car.

In its final argument, the State asserts that, even if the trial court erred in allowing the drugs seized from Colberts car, the error was harmless. Again, we must disagree.

As mentioned earlier, Colbert does not challenge his conviction of simultaneous possession of drugs and a firearm,. which resulted from the officers’ finding .576 grams of cocaine and firearms in their search of Colbert’s house. The State argues this contraband can be used also to prove Colbert violated Ark. Code Ann. § 5-64-401 (Supp. 1999), which makes it a felony to possess a controlled substance with the intent to deliver it. The State cites Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994), where the court held that, even where a criminal defendant possesses less than the presumptive amount, a conviction can stand where other proof of intent to deliver is present. In Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998), we held that when an accused is charged with possession of a controlled substance with intent to deliver, evidence of possession of firearms is relevant to prove intent.

The Hendrickson and Johnson holdings are good for the proposition that firearms evidence may be used to prove intent to deliver and can be substantial evidence to affirm a conviction for possession with intent to deliver. However, those cases are not otherwise applicable to the facts in the instant case. Here, the State was allowed to introduce inadmissible evidence taken from Colbert’s car to show he possessed 1.3 grams of cocaine, which, unlike the .576 grams found in Colbert’s house, was more than the presumptive amount Arkansas law established to prove intent to deliver. The prosecutor relied on the drugs seized from Colbert’s car and argued its significance to the jury, and the jury had a right to rely on the drugs taken from the car to find Colbert violated § 5-64-401, since the trial court allowed that evidence at trial.

The State cites Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994), in support of its harmless error argument, but there this court stated that illegally seized items from a motel room did not affect the defendant’s guilty verdict based upon other overwhelming evidence of defendant’s guilt. Here, although the jurors could have found Colbert had violated § 5-64-401 by inferring that he intended to deliver drugs, since firearms were found in his house, that sole factual issue was not presented to them. To the contrary, the State’s case, beginning with its opening argument, relied on the fact that Colbert had over 1.3 grams in his car and house and that the amount of cocaine the General Assembly had established to be sufficient to raise that legal presumption of intent to deliver is one gram. Harmless error is simply inapplicable to the evidence and facts now before us.

For the reasons above, we reverse and remand.