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

text:
    IN THE MATTER of ESTATES of J.I. SEAY, Sr., and Hilma R. Seay, Deceased, George L. Seay and James Irby Seay, Jr. v. Helen S. QUINN and Bancorpsouth (Formerly First National Bank in Stuttgart, Arkansas)
    02-650
    98 S.W.3d 821
    Supreme Court of Arkansas
    Opinion delivered February 28, 2003
    [Petition for rehearing denied April 10, 2003.]

      Charles J. Lincoln, P.A.; and Richard H. Wootton, for appellants.

      Malcolm R. Smith, P.A., for appellees.
   WH. “Dub” Arnold, Chief Justice.

Before us now is the fifth appeal of this case and the second appeal of the November 29, 1999, order entered by the trial court. We hold that appellants have not filed a sufficient record to consider the issues appealed. As such, the case is affirmed.

The underlying facts leading to this case involve a dispute over the distribution of the assets of a liquidating trust which contained approximately 1,600 acres of land previously held by a closely-held family corporation called Wild Life Farms, Inc. (hereafter “WF”) and the resulting tax and asset issues that ensued once James Irby Seay, Sr., died and his will was admitted into probate in September of 1981.

In the initial appeal of this matter, appellants George Seay and James Seay, Jr., had originally filed suit against the trustees, alleging the Seays were entitled to the trust assets and the trustees had no power to have conveyed the title to the acreage to WF. Eventually, the chancellor granted partial summary judgment in favor of WF. A trial was then held in the matter from October 5, 1998, to October 12, 1998; and, on December 18, 1998, the chancellor entered an “interim decree” dismissing the Seays’ complaint “except as to matters and things hereby reserved as set out in the court’s findings of fact and conclusions of law.” The Seays appealed the chancellor’s earlier September 28th order granting WF partial summary judgment, but their appeal was later dismissed by the court of appeals on October 27, 1999, because the chancellor’s order was not final. See Seay v. Wildlife Farms, Inc., CA-99-122, slip op. at 4 (Árk. App. October 27, 1999). The court of appeals further held that the Seays failed to comply with Ark. R. Civ. P. 54(b) under which they could have acquired an express determination that they could appeal the non-final order because there was no reason to delay an appeal. Id.

After the Seays’ appeal was dismissed, the parties returned to the chancellor, and he entered a final order on November 29, 1999, resolving the issues against the Seays that had been previously reserved in the chancellor’s “interim decree” dated December 18, 1998. The Seays then appealed the November 29, 1999, order, which this Court dismissed as untimely due to the Seays’ failure to obtain a timely extension to file the record under Ark. R. App.—Civ. 5(b). Seay v. Wildlife Farms, Inc., 342 Ark. 503, 29 S. W.3d 711 (2000).

The trial court entered three orders dated after this Court’s 2000 decision, which the Seays now appeal. In our 2000 decision, we held that the Seays, by filing a brief dealing only with the summary-judgment issue, had waived or abandoned any other issues they could have raised. Id. at 510. We, therefore, now hold that all issues and orders entered before November 29, 1999, are moot based upon this Court’s 2000 decision dismissing the appeal of the November 29, 1999, order; as such, the only three issues before us are: an October 3, 2001, order denying a motion for reconsideration; an October 30, 2001, order denying discovery; and, an order of final distribution filed February 27, 2002, granting attorneys’ fees. Appellants have failed to file a sufficient record before us to decide these issues; as such, the case is affirmed.

I. Order Denying Motion for Reconsideration

The trial court’s order denying appellants’ motion for reconsideration does not appear in the addendum, and it was not abstracted. The order does appear in the record; however, the order only denies the motion and does not tell us what was before the court. Further, the motion for reconsideration itself does not appear in the addendum, abstract, or record, either as a written motion or as an oral motion set out in a transcription of a hearing. It is impossible for us to know what the motion entailed.

II. Order Denying Discovery

Likewise, as with the motion for reconsideration, we have only the order denying discovery and nothing else abstracted or included in the addendum. It is unclear what the discovery was even about, other than it related to attorneys’ fees that were granted after this Court’s 2000 opinion; we only know this from the transcription included in the record of a discussion that states that the motion was about attorneys’ fees.

III. Final Order of Distribution

Appellants contend that the probate court lacked jurisdiction to grant attorneys’ fees, which were granted in the February 27, 2002, order of final distribution. Appellants argue that the fees were granted based upon work done with respect to the trusts created by Mr. Seay, Sr.’s will and that only a chancery court has jurisdiction over construction, operation, and interpretation of trusts. Appellants argue that this is a question of subject-matter jurisdiction and attempt, in their argument, which is extremely broad, to revert back to issues litigated in the 1980s on this issue. As stated above, appellants are limited by our prior opinion to fees granted after the November 29, 1999, order. As such, the only period for which the Seays can contest this issue is from the November 29, 1999, order involved in our 2000 decision and the closing of the estate on February 27, 2002.

The only order after November 29, 1999, granting fees is the November 15, 2001, order which, like the other orders discussed above, is not included in the addendum, abstract, or even in the record. The only copy appears as an exhibit to the appellants’ response to appellees’ motion to dismiss this appeal. This copy does not comply with our rules. See Ark. R. App. P. — Civ. 6, 7. Moreover, the final order of distribution merely confirms that final distribution has been made “in accordance with previous orders,” which are not included for this Court’s consideration.

We have stated time and time again that it is the appellant’s burden to produce a record on appeal sufficient for our review. Gibbs v. Hensely, 345 Ark. 179, 44 S.W.3d 334 (2001); Lee v. Villines, 328 Ark. 189, 942 S.W.2d 844 (1997); Ozark Auto Transp., Inc. v. Starkey, 327 Ark. 227, 937 S.W.2d 175 (1997); see also Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999); SD Leasing Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). The record simply does not place the matters argued before this Court. Issues outside the record will not be considered on appeal. Gibbs v. Hensely, supra; Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992).

For all of the foregoing reasons, we do not have a sufficient record before us to consider the issues appealed. As such, the case is affirmed.

Affirmed.

       The Seays alleged many counts setting out their claims for damages and relief, but it is unnecessary for purposes of this opinion to discuss those claims here.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Arkansas v. $258,035 U.S. CURRENCY; $195,320 U.S. Currency; Arkansas State Highway and Transportation Department
    02-1041
    98 S.W.3d 818
    Supreme Court of Arkansas
    Opinion delivered February 28, 2003

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellant.
    One brief only.
   WH. “Dub” Arnold, Chief Justice.

Appellant State of stibrings cappeal e. an amended order finding that seized monies under the Arkansas Drug Forfeiture Act be awarded to the Crawford County general fund. The State brings two points on appeal: 1) whether the trial court lacked the authority to set aside the May 16, 2002, judgment in the absence of a request by an opposing party and a showing of grounds for setting aside a default judgment pursuant to Arkansas Rule of Civil Procedure 55; and, 2) assuming that the trial court was permitted to set aside a default judgment in the absence of a request to do so, whether the trial court nonetheless erred by ordering the subject money forfeited to the County instead of the State. For the reasons that follow, we reverse and hold that the trial court lacked authority to set aside the judgment.

On January 21, 2002, Arkansas Highway Patrol Officer Timothy Gushing seized currency totaling $258,035.00 from a truck driven by Ramkumar Naraine. Officer Gushing observed Naraine filling out his log book after Officer Gushing requested it from Naraine. Officer Gushing conducted an inspection of the truck and the truck’s equipment. Officer Gushing asked Naraine if Naraine had any problems with the searching of the inside of the truck, and Naraine stated that he did not mind. Once inside of the cab of the truck, Officer Gushing observed a large suitcase with large amounts of cash wrapped in several bags. At the scene, Naraine advised the officers orally and in writing that the money was not his, that he had no interest in the money, and that he had no claim for its return to him.

On February 13, 2002, Officer Gushing stopped a truck and made contact with the driver, Parkin, and another driver, Fitzroy Brown. While Officer Gushing was visiting with Parkin, Parkin appeared to be nervous and in a hurry to get out of the station. Parkin gave Officer Gushing his log book and Officer Gushing noticed that Parkin had not driven for a week. Officer Gushing believed that there might be a second log book inside of the truck and obtained consent to search the truck. While searching the •truck and trailer, Officer Gushing discovered a bag filled with United States currency totaling $195,320.00. Both Parkin and Brown advised officers orally and in writing that the money was not theirs, that they had no interest in the money, and that they had no claim for its return.

The State filed in rem forfeiture complaints against the currency in the two separate cases, and the circuit clerk issued summons. The State filed affidavits in each case, requesting that the warning orders issue pursuant to Ark. R. Civ. P. 4(a); those warning orders were issued and duly published. After more than thirty days had passed, no answer had been filed; therefore, the State filed an affidavit requesting default judgments in each case.

The trial court granted the State’s motion, and default judgments were entered on May 16, 2002. The trial court found by a preponderance of the evidence that the subject currency was subject to forfeiture pursuant to Ark. Code Ann. § 5-64-505 (Supp. 2001) and ordered that the money be forfeited to the State for distribution pursuant to that statute.

When a local bank requested that the judgments be amended to reflect the amounts actually seized, the trial court instead set the matter for an “inquiry hearing.” On June 12, 2002, the trial court conducted a hearing at which the officers testified regarding the seizure of the property. After the hearing, the trial court, over the State’s objection, ordered the money forfeited to the Crawford County general fund. On July 9, 2002, the trial court entered amended orders that contained no findings of fact or conclusions of law, but merely noted that the monies were seized and would be awarded to the Crawford County general fund. At the conclusion of the hearing, the following dialogue occurred:

The Court: All right, the court having heard the testimony, they’re going to forfeit this money to the County General Fund. I don’t think there’s sufficient evidence on that, that will be the order of the court.
Mr. Medlock: Judge, I don’t know if there’s any authority to do that?
The Court: I don’t know either, but we’ll find out.

The State filed timely notices of appeal from each judgment.

Default judgments are governed by Rule 55 of the Arkansas Rules of Civil Procedure. That Rule provides, in pertinent part, “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, judgment by default may be entered by the court.” Ark. R. Civ. P. 55(a) (2002). Although default judgments are not favored in the law, a default judgment is just as binding and enforceable as a judgment entered after a trial on the merits. B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). Additionally, according to Arkansas Rule of Civil Procedure 55(c):

The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud, misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.

Ark. R. Civ. P. 55(c) (emphasis added). Furthermore, a party seeking relief from a default judgment must demonstrate one of the four grounds set out in Rule 55(c), and, unless the judgment is absolutely void, demonstrate a meritorious defense. Tharp v. Smith, 326 Ark. 260, 930 S.W.2d 350 (1996). Under these standards, the trial court erred by setting aside the May 6, 2002, judgments and entering the amended judgments.

Although a trial court has the authority to set aside a default judgment, it may not do so in the absence of a request to do so. Rule 55(c) contemplates that a request to set aside a default judgment be made by an adverse party. Rule 55(c) qualifies a trial court’s ability to set aside a default judgment by providing that it may do so “upon motion.” Ark. R. Civ. P. 55(c). It does not permit the trial court to act upon its own initiative. Other rules that contemplate actions by the court specify that the court may act upon its own initiative. See Ark. R. Civ. P. 4(i) (2002)(the action shall be dismissed as to that defendant without prejudice upon motion or upon the request of a party or on its own initiative); Ark. R. Civ. P. 6(b)(1) (2002)(the court, for cause shown, may at any time in its discretion . . . with or without motion or notice, order the period enlarged); Ark. R. Civ. P. 21 (2002)(par-ties may be dropped or added by order of the court on motion of any party or on its own initiative); Ark. R. Civ. P. 39(a)(2) (2002) (. . .the trial of all issues so demanded shall be by jury unless . . . the court upon motion or on its own initiative finds that a right of trial. . .); Ark. R. Civ. P. 39(c) (2002)(In all actions not triable of right by a jury, the court upon motion or of its own initiative may try any issue. . .); Ark. R. Civ. P. 40(a) (2002) (the court may assign a trial date on its own motion even though neither party has requested a setting); and Ark. R. Civ. P. 60(a) (2002)(the court may modify or vacate judgment, order, or decree on motion of the court or any party. . .). Rule 55(c) further provides that, to obtain relief from a default judgment, the moving party must demonstrate grounds and must demonstrate a meritorious defense. Thus, the Rule clearly requires a pleading filed by an adverse party setting forth the grounds for relief. See Ark. R. Civ. P. 7(b)(1) (2002) (an application to the court for an order shall be by motion which . . . shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought).

Here, the trial court acted on its own initiative, conducted a hearing, and, over the State’s claim that it lacked authority to do so, set aside the default judgment and entered an order forfeiting the appellee property to the county general fund. Because the trial court lacked authority to set aside the original default judgment in the absence of a motion by an adverse party, we reverse. Therefore, we do not need to address the State’s second point on appeal.

Reversed.

Imber, J., not participating.


text:
    Joyce WHALEY and Keith Whaley v. KROGER COMPANY
    02-874
    98 S.W.3d 824
    Supreme Court of Arkansas
    Opinion delivered February 28, 2003

      McCullough Law Firm, by; R.S. McCullough, for appellant.

      Barber, McCaskill, Jones & Hale, P.A., by: Michael J. Emerson and Christine A. Cryer, for appellee.
   WH. “Dub” Arnold, Chief Justice.

This appeal arises ticpersonal-injury e. arising out of an alleged electrical shock at a Kroger store in Dewitt, Arkansas, in August 1997. The case was tried before a jury on January 22, 2002, which resulted in a unanimous defense verdict. In this appeal, appellants do not question anything about the trial, evidence, rulings of the trial court, the jury verdict, or the sufficiency of the evidence in support of the defense verdict. Rather, appellants’ sole ground for appeal is whether the trial court committed reversible error in failing to disqualify appellee Kroger’s counsel on the basis of a September 19, 2001, letter concerning settlement negotiations. In that letter, appellee expressed a desire to continue negotiating, but would do so only if appellants withdrew a motion for sanctions which was based upon an order compelling discovery, which appellee argues it never received. There was a hearing on the matter on September 25, 2001, but the trial court did not rule on the motion to disqualify at that time. Appellants renewed the motion to disqualify on the morning of trial, and the trial court denied the motion.

Appellants argue that during attempts to settle this case before trial, appellee took the position that it would not settle with appellants unless and until appellants withdrew a motion for sanctions which was filed based upon appellee’s failure to timely answer discovery demands. Appellants state that while appellee, at times, tried to refute the fact that it had received communications relative to the same and the trial court’s order in regards to the same, appellee had filed replies and made responses that indicated that it had received the materials. Appellants assert that the difficulty in this case is based upon the fact that a motion to disqualify appellee’s counsel was filed by appellants after appellee’s counsel personally integected himself into the litigation by taking certain matters personally, rather than professionally, and decided that not only would the instant matter not be settled, but that in the future other cases that he might have with appellants’ counsel would also be subject to “non-settling,” based on appellee’s counsel being upset by the filing of the motion to compel.

Appellants contend that the conduct of appellee’s counsel went beyond zealous representation, and became personal conduct with a “vent of personal animus that went beyond the bounds of the authorized and desired practice of law.” Appellants assert that appellee’s counsel should have been disqualified from this matter based upon the conduct that appears to violate the Model Rules of Professional Conduct in that counsel was placing his own personal interest into the matter. Appellants contend that when counsel becomes personally involved in a matter where judgment is likely to be clouded or he has an interest in the matter, the same should recuse or be disqualified. Model Rule of Professional Conduct 1.7. According to appellants, appellee’s counsel allowed himself to become personally involved due to the terms of his letter, pleadings, and comments in regard to the problems appellants perceived in this matter. Based on all of the above, appellants state that appellee’s counsel should have removed himself from this matter, and when that did not occur, the trial court should have disqualified appellee’s counsel. Appellants assert that the trial court committed error relative to this matter by not removing appellee’s counsel. Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1998); American Carriers Inc. v. Kroger, 302 Ark. 86, 787 S.W.2d 669 (1990).

Appellants argue that, based on the above, this court should enter an order reversing this matter and directing that appellee’s counsel be disqualified, and that this matter should be restored to the trial court’s calendar. Otherwise, the prohibitions and sanctions relative to the Model Rules of Professional Conduct violations will not be perceived by appellee and appellee’s counsel to have any “teeth” or remedy, and any violations that occur will not and cannot be otherwise addressed. We disagree and affirm the trial court.

Appellants do not provide this court with any factual basis or legal authority for the proposition that Kroger’s counsel should have been disqualified. The only evidence having any bearing on the motion to disqualify is a September 19, 2001, letter from appellee’s counsel to appellants’ counsel. That letter expressed appellee’s desire to continue settlement negotiations, provided that appellants’ counsel withdraw a motion for sanctions which was based upon an order compelling discovery, which appellee’s counsel states he never received.

Furthermore, appellants do not show how appellee’s counsel placed his personal interests over the interests of his client. The jury verdict attests to the fact that appellee’s counsel adequately looked after the interests of Kroger, and the trial of the case went forward without any problems. Appellants do not allege any defect or irregularity in any phase of the trial, argument or conduct of counsel, the introduction of evidence, or the sufficiency of the evidence.

This is not a situation where there is a conflict of interest, former representation, or even the appearance of impropriety. Appellants do not allege any former relationship or representation by appellee’s attorney or his firm; rather, the record in this appeal contains one letter that referenced a settlement offer and a desire to continue negotiating, but requested that appellants withdraw a baseless motion for sanctions as a prelude to further negotiations. This letter evidences no personal animus or how such animus, even if true, was prejudicial to the fair and impartial administration of justice.

This court has stated:

Disqualification is an absolutely necessary measure to protect and preserve the integrity of the attorney-client relationship; yet it is a drastic measure to be imposed only where clearly required by the circumstances. We must never forget that a disqualification, though aimed at protecting the soundness of the attorney-client relationship, also interferes with, or perhaps destroys, a voluntary relationship by depriving a litigant of counsel of his own choosing oftentimes affecting associations of long standing. The role of the court is to balance the current client’s right to counsel of choice with the former client’s right to protection of confidences transmitted, or likely to have been acquired, during the prior representation.

Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990). Therefore, disqualification would be appropriate in a case where appellee’s counsel or firm has had a former relationship with appellants, and this is not the case here and has not even been alleged. Thus, this is not a conflict of interest or situation where appellee’s counsel or his firm obtained confidential or proprietary information from appellants.

Appellee further submits that it has been required to go to the time and expense of defending this frivolous appeal in a motion for sanctions before this court. Appellee contends that this appeal has been prosecuted with absolutely no factual or legal support, and for these reasons and pursuant to Rule 11 of the Rules of Appellate Procedure — Civil, it filed a motion for sanctions for the imposition of costs and a reasonable attorney’s fee to be assessed against appellants’ counsel personally. We agree, and grant appellee’s motion for sanctions.

A review of this case confirms that there is no violation of any of the Model Rules of Professional Conduct by appellee’s counsel. Further, there is no factual or legal support for this appeal. For these reasons, sanctions are appropriate and are assessed against appellants’ counsel, personally. Appellee certified that it took ten hours to review the record, conduct research, draft and finalize its appeal brief in this case. Appellee’s counsel’s hourly fee is $150.00; therefore $1,500.00, plus costs, is assessed against appellants’ counsel to be paid to appellee.

Affirmed.


author: Tom Glaze, Justice.

text:
    David COLBURN v. STATE of Arkansas
    CR 02-731
    98 S.W.3d 808
    Supreme Court of Arkansas
    Opinion delivered February 28, 2003

      William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

This case ensues from a domestic dispute ice. the appellant, David Colburn, and his wife, Donna Colburn. On August 14, 2001, and on August 15, 2001, David caused physical injury to Donna, and he later was charged separately on both counts with committing domestic battering in the third degree under Ark. Code Ann. § 5-26-305 (Supp. 2001).

The record reflects that, on August 16, 2001, David pled guilty in Little Rock Municipal Court to the Class A misdemeanor third-degree domestic battering of Donna, which occurred on August 15. On October 17, 2001, the State filed an information in Pulaski County Circuit Court against David in connection with the August 14 battering of Donna, charging him with a Class D felony offense of third-degree battering. Section 5-26-305 (b)(2) (A) (iii) provides a third-degree battering charge is a Class D felony if, within the past five years, the person has committed a prior offense of domestic battering in the third degree. Otherwise, third-degree domestic battering is a Class A misdemeanor. § 5-26-305 (B)(1).

At trial, the State moved to introduce a certified copy of David’s municipal court guilty plea. In response, David contended that his conviction for domestic battering in municipal court was not relevant, and therefore could not be used to enhance the felony third-degree battering charge in circuit court. He reasoned that, since the August 15 offense was subsequent, not prior, to the August 14 offense charged in circuit court, felony third-degree domestic battering could not be established, and he was entitled to a directed verdict. The circuit court denied David’s motion to dismiss, and David rested his case without presenting a case-in-chief. The court found David guilty of Class D felony third-degree domestic battering and subsequently sentenced him to eighteen months’ imprisonment. David brings this appeal, raising two points for reversal.

David’s first argument is that the trial court erred in admitting the State’s exhibit of the certified copy of his municipal court guilty plea to the misdemeanor domestic battering charge which occurred on August 15, 2001. He refers to § 5-26-305(a) and (b)(2)(A)(iii) (Supp. 2001), and asserts that to prove a Class D felony domestic battering in the third degree, the State must prove a person committed a prior offense of third-degree domestic battering within the past five years. David argued below and in this appeal that the certified copy of his guilty plea in municipal court to the August 15 offense was not relevant because he committed that offense subsequent, and not prior, to the felony battering offense which occurred on August 14. David asserts that, to be relevant, the municipal court’s prior conviction would have had to show the added element that, within five years before the August 14 felony battering charge in issue here, he committed an offense of domestic battering. In other words, David submits that there is a distinction between a prior conviction and having committed a prior offense.

David further adds that the language of § 5-26-305 referring to “within the past five years” is ambiguous in that the provision does not specifically state a date to be used in determining when the “past five years” begins. He suggests that two possible beginning points áre (1) the date the defendant committed the domestic battering in issue, or (2) the date the defendant stands trial for having committed the offense. Citing Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002), David argues that, when an ambiguity exists in a criminal statute, this court strictly interprets the statute in the defendant’s favor. The State’s view of § 5-26-305 is that the legislature intended to allow enhancement with convictions occurring within five years prior to the trial of the August 14 enhanced offense, regardless of the chronological order in which the offenses were committed.

The State agrees with David that we must interpret § 5-26-305 (b)(2) (A) (iii) and determine whether the five-year backward calculation of offenses begins on the date David committed the enhanced offense or the date the enhanced offense is tried. However, the State submits that the legislative intent supports the interpretation to allow enhancement with all offenses that occur five years prior to trial of the enhanced offense. In other words, the State argues David’s August 16 conviction shows he had committed another battering offense within five years of his trial for the August 14 offense; therefore, the August 16 conviction involving the August 15 offense was relevant for enhancement purposes. The State offers several theories in support of its position.

First, the State argues that we should interpret the term “prior offense,” as employed in § 5-26-305(b)(2)(A), to mean a defendant who has been previously convicted, regardless of the chronological order in which the offense or misconduct occurred. The State claims such an interpretation is consistent with case law. It cites Nail v. State, 225 Ark. 495, 283 S.W.2d 683 (1955), for the proposition that, without any statutory language indicating that the dates the defendants commit their offenses are determinative, “offense” is synonymous with “conviction.” In Nail, the prosecuting attorney filed an information against the defendant simply by following the language of the statute by charging Nail with a second offense committed within one year of the “first offense,” which latter term the Legislature clearly meant to be synonymous with the first, or prior “conviction.” The Nail court further stated the following:

While the fact of conviction should be sufficiently averred in an information or indictment seeking to charge an accused as a second or subsequent offender, it is not essential to use the word “convicted” if its equivalent is otherwise sufficiently alleged. The term “second offense,” as it is used in habitual criminal statutes, has been generally defined by the courts as, “one committed after conviction for a first offense.” It cannot be legally known that an offense has been committed until there has been a conviction. A second offense, as used in the criminal statutes, is one that has been committed after conviction for a first offense.

Nail, 225 Ark. at 495 (citations omitted).

Our court explained the Nail decision in the later case of Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987). In Rogers, this court interpreted the Omnibus DWI Act, and decided when, under that Act, a prior offense occurred for purposes of penalty enhancement. There, the defendant was charged with the “offense” of DWI for operating his vehicle while intoxicated on May 11, 1986; he had two prior DWI “convictions,” one on June 22, 1984, and the other on July 17, 1985. There was no proof or stipulation as to the dates on which the two prior offenses were committed. However, the trial court found the defendant, Rogers, guilty of “the third offense occurring within three years of the first offense.”

This court reversed the trial court because the State did not show that all three “violations” (offenses) occurred within three years of the first violation; instead, it only showed that all three “convictions” occurred within three years. The court rejected the State’s contention' that an “offense” occurs on the date of the conviction, because the word “offense” is often equated with the word “conviction.” The Rogers court cited the Nail decision and acknowledged it is true that “offense” is often held to mean “conviction.” However, the Rogers court went on to explain Nail and similar cases as follows:

The State contends that an offense occurs on the date of the conviction, because the word “offense” is often equated with the word “conviction.” It is true that “offense” is often held to mean “conviction.” [S]uch cases deal with the problem that an act cannot be considered an “offense” until there has been a conviction, and they simply do not address the issue of when an “offense” occurs. There are two different concerns, and the distinction is best illustrated by employing a two-step analysis. The first step is that the act in issue is not elevated to the status of an “offense” until there is a conviction. The second step is that once a conviction is shown, it must relate back and the act is deemed an “offense” from the moment of commission. Therefore, the offense occurs when the criminal act is committed.

Rogers, 293 Ark. at 414 (citations omitted) (emphasis added).

When we apply the rationale in Rogers to the present case, David’s August 15 battering of Donna was not elevated to the status of an “offense” until there was a conviction. Here, once David was convicted on his August 15 battering charge under § 5-26-305(b)(2)(A), that criminal misconduct was deemed an “offense” from the moment of its commission. That being true, David’s offense occurring on August 15 was not a prior offense since it occurred after the August 14 battering charge.

The State also compares the enhancement provision in § 5-26-305 (b) with cases involving Arkansas’s Habitual Offender Statutes. See Ark. Code Ann. § 5-4-501 (Supp. 2001). For example, it cites Beavers v. State, 345 Ark. 291, 47 S.W.3d 222 (2001), where the court held the Habitual Criminal Statutes are not deterrent, but punitive in nature, so that a prior conviction, regardless of the date of the crime, may be used to increase punishment. However, in Beavers, the enhancement statute plainly spoke in terms of the conviction date of the offenses and not the dates of the actual crimes. See also Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981). As already thoroughly discussed, the statute here speaks in terms of a prior offense of domestic battering in the third degree. Our case law, like the Nail and Rogers decisions, has given meaning to the interplay between such terms as “prior offense” and “prior convictions,” and when interpreting a statute, we construe it just as the statute reads. See Hager v. State, 341 Ark. 633, 19 S.W.3d 16 (2000). Moreover, the Legislature is presumed to know the decisions of the supreme court, and it will not be presumed in construing a statute that the Legislature intended to require the court to pass again upon a subject where its intent is not expressed in unmistakable language. Books-A-Million, Inc. v. Ark. Painting & Specialities Co., 340 Ark. 467, 10 S.W.3d 857 (2000).

In conclusion, we believe § 5-26-305 is, at the very least, ambiguous because it is subject to more than one interpretation. As David is quick to point out, this court strictly construes criminal statutes and resolves any doubt in favor of the defendant. Williams, 347 Ark. 728, 67 S.W.3d 548.

David’s second and final argument is related and dependent upon our ruling in the first. Defense counsel moved for dismissal because the State had not proved David had committed a “prior offense” to the August 14 offense by introducing the August 16 conviction of the August 15 offense. Since we agree with David that the State’s evidence did not amount to substantial evidence, we must reverse and remand.

       The record is not clear why the August 15 charge was filed in municipal court and the August 14 charge was later filed in circuit court.

       Section 5-4-501(d)(l) reads as follows:
      A defendant who is convicted of a felony involving violence enumerated in subdivision (d)(2) of this section and who has previously been convicted of two (2) or more of the felonies involving violence enumerated in subdivision (d)(2) of this section shall be sentenced to an extended term of imprisonment, without eligibility except under § 16-93-1302 for parole or community punishment. (Emphasis added.)

       It is noteworthy to point out the phrasing of the previous version of § 5-26-305. That version also defined domestic battering in the third degree as a Class A misdemeanor. However, the statute continued, “if the person has previously been convicted or found guilty of domestic battering in the first, second, or third degree, or wife battering in the first, second, or third degree, domestic battering in the third degree is a Class D felony.” (Emphasis added.)


author: Annabelle Clinton Imber, Judge.

text:
    Raymond A. MARTINEZ v. STATE of Arkansas
    CR 01-1114
    98 S.W.3d 827
    Supreme Court of Arkansas
    Opinion delivered February 28, 2003

      Patrick J. Benca; and Hampton & Larkowski, by: Mark P. Hampton, for appellant.

      Mark Pryor, Att’y Gen., by: David J. Davies, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Judge.

Appellant Rayudge. aggravated robbery and sentenced to imprisonment for ten years. On appeal, he challenges the circuit court’s order denying his motion to suppress on three separate grounds. Martinez argues that the officer who detained him was outside his territorial jurisdiction and without statutory authority to arrest him. He also contends that neither his arrest nor the subsequent search of his vehicle was supported by probable cause. This appeal was certified to us by the Arkansas Court of Appeals pursuant to Ark. R. Sup. Ct. l-2(b)(4), (5) (2002). We find no error and affirm.

Shane Williams was shot and killed by Pam Sowell on January 21, 2000, when he attempted to rob Buddy’s Place, a convenience store in the City of Ward owned by Pam and her husband, Alan Sowell. Mr. Sowell, who was also on the premises at the time of the attempted robbery, called 911 after the shooting at 8:39 p.m. He told the operator that a suspect had been shot and was in need of an ambulance. Mr. Sowell also stated that someone else was in the parking lot and a kid was outside the store.

Officer Don Sims of the Austin Police Department was on a routine traffic stop when he heard the radio report that somebody had been shot at Buddy’s Place. Officer D. Sims immediately responded to the call and asked if the Ward Police Department needed his assistance. His brother, Eric Sims, who was a police officer with the neighboring City of Ward, answered affirmatively. According to the 911 operator’s call logs, Officer Eric Sims was the first officer to arrive at Buddy’s Place. He checked in from the store at 8:41 p.m. — just two minutes after the 911 call was received. Meanwhile, his brother was en route to the store. At the suppression hearing, Officer D. Sims testified that he was three minutes away from Buddy’s Place. Upon arriving at the scene, he did not see any police vehicles. He also testified about hearing that another suspect armed with a pistol and disguised with a ski mask was still at the scene.

As Officer D. Sims approached Buddy’s Place, he saw a white Mazda leaving the store’s parking lot. He radioed to dispatch that he was going to stop the vehicle. Another police officer with the Ward Police Department, Patty Andolina, also responded to the initial 911 call. While nearing the scene, she happened to be right behind Officer D. Sims and approved his request to make a stop. Officer D. Sims proceeded to make the stop, and ordered the driver to exit the vehicle and walk slowly back toward him. Next, the police officer ordered the driver, Raymond Martinez, to get down on the ground. Martinez complied, whereupon Officer D. Sims handcuffed him and did a pat-down search for weapons. No weapons were found, and Martinez was placed in the back of the officer’s patrol car.

According to the radio logs, Officer D. Sims reported at 8:45 p.m. that he had a subject in his vehicle. He asked Martinez what he was doing at Buddy’s Place and whether he knew what was going on. Martinez responded that he was going into the store to get a coke, but a man told him to leave. Officer D. Sims advised Martinez that he would be released as soon as everything was straightened out. Then, the officer drove back to Buddy’s Place and informed Officer E. Sims that he had a suspect in his vehicle.

In the meantime, after Officer Andolina approved the stop by Officer D. Sims, she continued to the crime scene. At the scene, Officer Andolina interviewed an eyewitness, Terry Colbert. This interview took place within ten minutes of her arrival on the scene. Additionally, Officer D. Sims had already returned to the store with Martinez in the back seat of his patrol car. Colbert gave the following description of the fleeing suspect: A darlc-headed male, wearing dark clothes and baggy pants. Colbert further stated that he saw the suspect leave like “a bat out of hell” in a white vehicle. With that information, Officer Andolina approached Officer D. Sims’s patrol car, opened the door, and visually confirmed that Martinez matched the description given by Colbert.

Shortly thereafter, at 8:53 p.m., Chief Deputy Mike Coffman of the Lonoke County Sheriffs Department arrived on the scene. He began to take pictures of the crime scene, including the white Mazda driven by the subject. When Deputy Coffman got to the Mazda, he reached through an open window and picked up a wallet lying on the passenger seat. The deputy opened the wallet and saw a picture ID that resembled Shane Williams — the victim-perpetrator. According to the radio logs, Deputy Coffman called in the name shown on the ID to check for warrants at 9:18 p.m. The wallet was seized and turned over to a Ward police officer.

Deputy James Kulesa of the Lonoke County Sheriffs Department also assisted in the investigation of the attempted robbery at Buddy’s Place. He interviewed Martinez at the Ward Police Department beginning at 10:47 p.m., or about two hours after the initial 911 call. During the interview, Martinez made statements implicating himself in the crime.

Subsequently, Martinez entered a negotiated plea of guilty and was sentenced to a term of twenty-five years imprisonment. The circuit court, however, allowed him to withdraw his guilty plea due to a claim of ineffective assistance of counsel. Prior to trial, Martinez moved to suppress all evidence obtained after he was arrested, including the incriminating statements made at the police station. He argued that Officer Don Sims was without statutory authority to make the arrest and that the arrest and search were made without probable cause and in violation of the United States and Arkansas Constitutions. After a hearing, and subsequent briefing, the circuit court denied Martinez’s motion to suppress and a jury trial ensued. Martinez was convicted of aggravated robbery, and this appeal followed.

When a trial court’s denial of a motion to suppress is challenged on appeal, our court makes an independent examination of the issue based on the totality of the circumstances and views the evidence in the light most favorable to the State. Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000). The trial court’s ruling will only be reversed if it is clearly against the preponderance of the evidence. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998).

It is well settled in Arkansas that a law enforcement officer cannot make a warrantless arrest outside of the territorial limits of his jurisdiction without statutory authority. Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000). This court has announced the four instances where the General Assembly has delegated authority for law enforcement officers to make an arrest outside of their jurisdiction: (1) “fresh pursuit” cases under Ark. Code Ann. §16-81-301 (1987); (2) when the police officer has a warrant for arrest, as provided by Ark. Code Ann. § 16-81-105 (1987); (3) when a local law enforcement agency requests an outside officer to come into the local jurisdiction and the outside officer is from an agency that has a .written policy regulating its officers when they act outside their jurisdiction, as stated in Ark. Code Ann. § 16-81-106(3), (4) (Supp. 2001); and (4) when a county sheriff requests that a peace officer from a contiguous county come into that sheriffs county and investigate and make arrests for violations of drug laws pursuant to Ark. Code Ann. § 5-64-705 (Repl.1993). See Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997) (citing Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990)). According to Martinez, and conceded by the State, only the third exception is applicable to this case.

Pursuant to Ark. Code Ann. § 16-81-106(c)(B)(3), (4) (Supp. 2001), an officer may make an arrest outside his jurisdiction if (1) he is acting “at the request of or with the permission of the municipal or county law enforcement agency having jurisdiction in the locale where the officer is assisting or working by request,” and (2) the extrajurisdictional officer’s agency has a “written policy on file regulating the actions of its employees relevant to law enforcement activities outside its jurisdiction.” Under this two-pronged analysis, Martinez concedes that the Austin police officer was acting at the request and with the permission of the local agency. He maintains, however, there was no evidence that the Austin Police Department had a written policy regulating its officers when they act outside their jurisdiction.

Martinez is mistaken in his argument under this point. The circuit court made a specific finding in its written opinion attached to the order denying the motion to suppress that the “[Austin police officer’s] city does have a policy and procedure about law enforcement assistance to and from his city.” The record in this case also reflects that the State produced a copy of the Austin Police Department’s written policy and procedure on extrajurisdictional activities. Here, the local law enforcement agency requested the assistance of an outside officer, and that officer’s law enforcement agency had the statutorily mandated written policy. See Ark. Code Ann. § 16-81-106(3), (4). Under these circumstances, we cannot say that the Austin police officer was acting outside his territorial jurisdiction without the requisite statutory authority. Thus, we conclude that the circuit court’s denial of the motion to suppress was not clearly against the preponderance of the evidence.

For his second point on appeal, Martinez contends that his arrest was not supported by probable cause and amounted to an illegal seizure in violation of both the United States and Arkansas Constitutions. Specifically, he asserts that the “first credible evidence that officers had that the Appellant had any involvement in the incident” developed forty-five minutes after Martinez was detained, when “Chief Deputy Coffman reached into the appellant’s vehicle and discovered a wallet belonging to the decedent Williams.” We disagree.

Probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that a crime has been committed by the person suspected. Howell v. State, 350 Ark. 552, 89 S.W.3d 343 (2002); Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). In assessing the existence of probable cause, this court’s review is liberal and is guided by the rule that probable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. Howell v. State, 350 Ark. 552, 89 S.W.3d 343 (2002); Baxter v. State, 324 Ark. 440, 922 S.W.2d 682. However, mere suspicion is not enough to support a finding of probable cause to arrest. Howell v. State, 350 Ark. 552, 89 S.W.3d 343 (2002); Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986)(citing Beck v. Ohio, 379 U.S. 89 (1964)). Probable cause to arrest without a warrant exists when facts and circumstances within the officers’ collective knowledge are sufficient in themselves to warrant a person of reasonable caution in believing that an offense has been committed by the person to be arrested. Howell v. State, supra.

In this case, Officer D. Sims stopped Martinez within a couple of minutes of the 911 call. At the time of that stop, it was dark and law enforcement officers already knew that there had been an attempted aggravated robbery at Buddy’s Place. They also knew that there were at least two suspects, one having been shot by the store owner. The officers were told the second suspect was armed and wearing a ski mask. When Officer D. Sims arrived at the store, the only vehicle seen leaving the crime scene was a white Mazda driven by Martinez. Additionally, ten minutes after the stop, Officer Andolina took a statement from an eyewitness who described the second suspect and the suspect’s car. The eyewitness’s description matched Martinez and his vehicle.

The information outlined above, which is sufficient to constitute probable cause, was available to police officers prior to the search of Martinez’s vehicle. Because the record reflects that probable cause developed before Chief Deputy Coffman found the wallet in Martinez’s vehicle, we conclude that the second argument on appeal is without merit.

In his third and final point on appeal, Martinez contends that the search of his vehicle was not supported by probable cause. Specifically, he argues that the moment Chief Deputy Coffman’s “hand breached the interior of that vehicle and grabbed that wallet probable cause had to exist.” As we have already concluded in connection with his second point, probable cause developed before the search of Martinez’s vehicle. Accordingly, Martinez’s last point is also without merit.

Affirmed.

       Buddy’s place was previously known as “Dude’s Place.”

       This situation is to be contrasted with one where an officer is acting outside his or her territorial jurisdiction and none of the statutory grounds for making an extraterritorial arrest appear to apply to the facts of the case. In the latter situation, the issue becomes whether the local officer is present in his or her capacity as a law enforcement officer and participates in making the arrest. See Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979).


author: Annabelle Clinton Imber, Justice. Per Curiam. 28, Jim Hannah, Justice, dissenting. disagree with the majority’s be in this case.

text:
    U.S. BANK, N.A., Individually and as Trustee for Empire Funding Home Loan Trust 1997-1; U.S. Bank, N.A., Individually and as Trustee for Empire Funding Home Loan Trust 1997-2; U.S. Bank, N.A., Individually and as Trustee for Empire Funding Home Loan Trust 1997-3; U.S. Bank, N.A., Individually and as Trustee for Empire Funding Home Loan Trust 1997-4; U.S. Bank, N.A., Individually and as Trustee for Empire Funding Home Loan Trust 1997-5; U.S. Bank N.A., Individually and as Trustee for Empire Funding Home Loan Trust 1998-1; U.S. Bank, N.A., Individually and as Trustee for Empire Funding Home Loan Trust 1998-2, Appellant v. Wilma MILBURN, Appellee; Wilma Milburn v. U.S. Bank, Individually and as Trustee
    01-1318/01-1008
    100 S.W.3d 674
    Supreme Court of Arkansas
    Opinion delivered February 28, 2003

      Rose Law Firm, by: Herbert C. Rule III, Garland J. Garrett, and Stephen N. Joiner, for appellant.

      Joe Holifield; and McMath, Vehik, Drummond, Harrison & Led-better, P.A., by: Mart Vehik, for appellee.
   Annabelle Clinton Imber, Justice.

The instant matstice. interlocutory appeals by Appellant U.S. Bank, N.A., stemming from a Rule 23 class-action proceeding. In conjunction with this matter, a motion to dismiss U.S. Bank’s appeal was filed in this court by Appellee Wilma Mil-burn. Because no appeal is properly before us, we must dismiss this set of interlocutory appeals, thereby rendering Milburn’s motion to dismiss appeal moot.

Rosslare Funding, Inc., made loans to several individuals. Empire Funding Corporation bought the loans from Rosslare and pooled them together. Empire then transferred the pooled loans into trusts with U.S. Bank named as trustee. Empire sold interests in the pooled loan trusts to investors. U.S. Bank as trustee received and distributed the loan collections to the investors.

The loans Rosslare sold to Empire became the subject of a class-action lawsuit filed by Wilma Milburn in Greene County Circuit Court on August 20, 1998. The original complaint alleged usury, Truth in Lending Act (TILA)/Home Ownership and Equity Protection Act (FIOEPA), and common-law fraud claims against several defendants including Rosslare and Empire. On September 21, 1998, the case was removed to federal court where it remained until April 2, 1999, when the case was remanded to state court. In late 1999 and early 2000, Milburn filed motions for class certification on the usury and fraud claims pursuant to Arkansas Rule of Civil Procedure 23. She also filed a motion for partial summary judgment on the usury claims contending that Arkansas law should apply to the loans. Empire responded with its own motion for summary judgment on the choice-of-law issue.

On April 20, 2000, Milburn filed a third amended complaint that named additional defendants, including U.S. Bank, N.A., individually and as trustee for certain loan trusts created by Empire. Shortly thereafter, Empire filed for bankruptcy under Chapter 11 of the U.S. Bankruptcy Code. A hearing on the motions for class certification and summary judgment originally set for June 12, 2000, was postponed until June 8, 2001. In the interim, U.S. Bank filed responses to Milburn’s class-certification and summary-judgment motions. At the June 8, 2001 hearing, U.S. Bank objected to the court hearing arguments on Milburn’s summary-judgment motion because her motion was not filed against U.S. Bank. Both parties agreed that the summary-judgment motion regarding the choice of law was the “core issue” in the case and that it would be generally dispositive of the merits. The court proceeded to hear the arguments on the issues of class certification and summary judgment. Milburn argued that Arkansas law should apply and thus the loans originating with Rosslare were usurious, while U.S. Bank argued that California law should apply, thereby rendering the interest on the loans below the legal maximum. After the hearing, in an order entered on June 11, 2001, the circuit court certified the class pursuant to Rule 23 of the Arkansas Rules of Civil Procedure. Milburn then filed a motion for approval of the class-action notice on July 17, 2001.

Meanwhile, the circuit court had deferred ruling on Mil-burn’s summary-judgment motion and allowed the parties to file additional briefs on the choice-of-law issue. After U.S. Bank and Milburn filed their respective briefs, the circuit judge sent a letter to counsel on July 30, 2001, advising them that “the court . . . hereby finds for the plaintiff in its Motion for Summary Judgment. It is the court’s belief that Arkansas law should be applied in this case.” Counsel for Milburn was directed to prepare the precedent for an order.

On that same day, the circuit judge signed an order approving the class-action notice, which order was filed on August 1, 2001. The notice advised each class member that the court would exclude the member from the class only if the member so requested within 20 days of the date of the notice. Subsequently, the notice was sent to each class member at his or her last known address in successive mailings on August 3, 2001, and August 9, 2001.

On August 23, 2001, which was twenty days after the first mailing of the class-action notice, the circuit court entered partial summary judgment in favor of Milburn. In its order, the court ruled that Arkansas law applied; and, thus, the mortgage loans were usurious. U.S. Bank’s local counsel then filed a motion to be relieved as counsel, which the court granted on September 6, 2001. In the meantime, U.S. Bank had hired new counsel who filed a notice of appeal on September 4, 2001, designating an appeal from three separate orders: (1) the class-certification order; (2) the order approving the class-action notice; and (3) the order granting partial summary judgment. Also, on September 4, U.S. Bank filed a motion requesting reconsideration of the class-certification and partial summary-judgment orders. The motion asked the court to decertify the class, or in the alternative, to set aside the summary judgment, because Milburn obtained partial summary judgment on the merits of the issues in the case prior to completion of notice to the class.

On September 7, 2001, an order was entered appointing the Circuit Clerk of Greene County to act as a receiver, and directing U.S. Bank to pay all principal and interest received from the members of the class into the registry of the court during the pendency of this action. Milburn objected to U.S. Bank’s September 4 notice of appeal and on September 17, 2001, filed a motion to dismiss the appeal for lack of jurisdiction. We deferred ruling on the motion until the submission of this appeal. U.S. Bank filed another notice of appeal on October 9, 2001, designating an appeal from the order appointing a receiver. See Ark. R. App. P. — Civ. 2(a)(7) (2002). The record was subsequently filed in this court on December 3, 2001.

In its original brief filed on January 22, 2002, U.S. Bank raised four separate points on appeal and requested oral argument. However, the fourth point, which challenged the circuit court’s entry of partial summary judgment, was abandoned in the reply brief filed by U.S. Bank on April 16, 2002. U.S. Bank has therefore recognized that the partial-summary-judgment order is not a final order, and, thus, not properly appealable.

At oral argument, U.S. Bank’s counsel conceded that the notice of appeal was untimely with respect to the class-certification order and the order approving class notice. Moreover, counsel for the bank admitted that at the time the orders were entered, there was no fundamental error. Nonetheless, while recognizing in its reply brief and at oral argument that the partial summary-judgment order was not a final appealable order, U.S. Bank contends that the entry of partial summary judgment on August 23 “impacted” the prior orders, thereby subsuming or bootstrapping those orders into the partial summary-judgment order. Under the so-called “impact theory” proposed by U.S. Bank, an order may become appealable at a later time when subsequent facts develop relating to that order. Thus, U.S. Bank suggests that the class-certification and class-action notice orders became appealable on August 23 when Milburn’s motion for partial summary judgment was granted and entered of record. In other words, August 23 became the date from which to calculate the deadline for filing a timely notice of appeal with respect to the earlier class-certification and class-action notice orders. We decline to adopt the “impact theory” suggested by U.S. Bank.

The jurisdiction of this court depends upon the calculation of filing deadlines pursuant to the Arkansas Rules of Appellate Procedure-Civil. The relevant dates in this case are as follows:

June 11, 2001 Class-certification order entered
August 1, 2001 Order approving class-action notice entered
August 23, 2001 Partial-summary-judgment order entered
September 4, 2001 U.S. Bank filed its notice of appeal from the following orders: (1) class-certification order; (2) order approving class-action notice; and (3) order granting partial summary judgment.
September 4, 2001 U.S. Bank filed its motion for reconsideration of class certification and partial summary judgment
September 7, 2001 Order appointing receivership entered
October 9, 2001 U.S. Bank filed its notice of appeal from the order appointing receiver
October 9, 2001 U.S. Bank filed its motion to reconsider order appointing receiver
December 3, 2001 Record filed with the Supreme Court Clerk

Class-Certification Order

U.S. Bank’s notice of appeal filed on September 4, 2001, designated the original class-certification order as an appealable order. That order was entered on June 4, 2001. Pursuant to Rule 2(a)(9) of the Arkansas Rule of Appellate Procedure — Civil, the class-certification order was immediately appealable. U.S. Bank therefore had thirty days from the entry of the order on June 11, 2001, to file a timely notice of appeal. See Ark. R. App. P. — Civ. 4(a) (2002). The notice of appeal filed on September 4, 2001, or almost three months after entry of the order, was clearly outside the prescribed thirty-day period.

Initially, in response to Milburn’s motion to dismiss appeal, U.S. Bank argued that the class-certification order was an intermediate order to the August 23 partial summary-judgment order. Rule 2(b) of the Arkansas Rules of Appellate Procedure— Civil provides that “[a]n appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.” See Ark. R. App. P. — Civ. 2(b) (2002). That argument, however, has been abandoned. As we have already stated, U.S. Bank concedes that the partial summary-judgement order is not a final order. Appellate Rule 2(b) is therefore not applicable.

The deadline for filing a notice of appeal that is set forth in Ark. R. App. P. — Civ. 4(a) — thirty days from the entry of the order appealed from — may be extended under the provisions of Ark. R. App. P. — Civ. 4(b):

(b) Extension of time for filing notice of appeal.
(1) Upon timely filing in the circuit court of. . . any . . . motion to vacate, alter or amend the judgment made no later than 10 days after entry of judgment, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the circuit court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.

Ark. R. App. P. — Civ. 4(b)(1) (2002). Additionally, if a notice of appeal is filed prior to the disposition of the motion, a party who seeks to appeal from the denial of the motion shall within thirty days amend the previously filed notice of appeal. Ark. R. App. P— Civ. 4(b)(2) (2002).

First we must point out that U.S. Bank’s motion for reconsideration was not filed within ten days of the class-certification order as required by appellate Rule 4(b). Thus, as to any appeal from the June 11 class-certification order, the time for filing a notice of appeal was not extended by the timely filing of any of the motions fisted in Ark. R. App. P. — Civ. 4(b)(1), and the deemed-denied rule is not applicable.

While the notice of appeal filed on September 4 was untimely with respect to the class-certification order, U.S. Bank could have appealed the denial of its motion for reconsideration by filing a notice of appeal within thirty days from the entry of such an order. Yet, the record does not reflect any such ruling by the court, or the filing of a notice of appeal that designated the order appealed from as the denial of U.S. Bank’s motion for reconsideration. See Ark. R. App. P. — Civ. 3(e) (2002). In any event, U.S. Bank admits that no appeal was taken from any ruling by the circuit court on its motion for reconsideration.

The timely filing of a notice of appeal is jurisdictional. Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). Thus, this court lacks jurisdiction to address U.S. Bank’s point on appeal challenging the class-certification order.

Approval of Class-Action Notice

Our rules of appellate procedure allow an interlocutory appeal from “[a]n order granting or denying a motion to certify a case as a class action in accordance with Rule 23 of the Arkansas Rules of Civil Procedure.” Ark. R. App. P. — Civ. 2(a)(9) (2002). We have held that an order prescribing notice to class members is fundamental to the further conduct of the action and, thus, immediately appealable as a matter of right. See Union Nat'l Bank v. Barnhart, 308 Ark. 190, 823 S.W.2d 878 (1992). Such an interlocutory appeal must be filed within thirty days from entry of the order. Ark. R. App. P. — Civ. 4(a) (2002).

In this case, the order approving class-action notice was entered on August 1, 2001, so the deadline for filing a notice of appeal was Friday, August 31, 2001. Once again, the notice of appeal filed on September 4, 2001, was clearly outside the prescribed thirty-day deadline. For the reasons previously stated in connection with U.S. Bank’s attempted appeal of the class-certification order, we conclude that the bank’s appeal from the order approving the class-action notice is not properly before this court.

Order Appointing Receiver

For its third point on appeal, U.S. Bank argues that the circuit court erred in appointing a receiver pursuant to Ark. R. Civ. P. 66(a) (2002). We start by noting that an interlocutory order appointing a receiver is immediately appealable. See Ark. R. App. P. — Civ. 2(a)(7) (2002). However, U.S. Bank failed to timely file its record with our clerk. The untimely filing of the record procedurally bars the appellant from pursuing an appeal. See Mitchell v. City of Mountain View, 304 Ark. 585, 803 S.W.2d 556 (1991) (per curiam). On September 7, 2001, the circuit court entered an order directing the circuit clerk to act as a receiver in this case. U.S. Bank filed a timely notice of appeal on October 9, 2001. Appellate Rule 5(a) provides that when “an appeal is taken from an interlocutory order under Rule 2(a)(6) or (7), the record must be filed with the clerk of the Supreme Court within thirty (30) days from the entry of such order.” Ark. R. App. P. — Civ. 5(a) (2002) (emphasis added).

The instant interlocutory order appointing a receiver was entered on September 7, 2001. Thus, the deadline for filing the record was October 9, 2001, which happened to be the same day that U.S. Bank filed its notice of appeal. U.S. Bank did not file the record with this court until December 3, 2001. By failing to timely file the record, U.S. Bank is barred from pursuing this point on appeal.

Request for Sanctions Under Appellate Rule 11

At oral argument, Milburn’s counsel asked this court to sanction U.S. Bank pursuant to Rule 11 of the Arkansas Rules of Appellate Procedure — Civil:

I think the act of claiming this to be a final judgment has caused me and my client considerable harm in this case . . . [T]he final order never was a final order and they knew it. Everybody knew it, and they admitted it. They admitted it as soon as they filed the notice of appeal. They were back before the trial court contending it was not a final order because it did not determine damages. Of course, it never determined them. It was not certified as a final order. ... I ask this court not to permit these defendants, because of the manner in which they brought this appeal up, to raise . . . any issue in the future litigation that they didn’t raise in this litigation. I ask the court to award costs for having to respond to an argument ....

U.S. Bank’s counsel responded by suggesting that such a request would require that a motion be filed in order for there to be an opportunity for presentation of a full explanation by both sides.

Appellate Rule 11 provides in relevant part:

(b) The Supreme Court or the Court of Appeals shall impose a sanction upon a party or attorney or both for (1) taking or continuing a frivolous appeal or initiating a frivolous proceeding, (2) filing a brief, motion, or other paper in violation of subdivision (a) of this rule, (3) prosecuting an appeal for purposes of delay in violation of Rule 6-2 of the Rules of the Supreme Court and Court of Appeals, and (4) any act of commission or omission that has an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. For purposes of this rule, a frivolous appeal or proceeding is one that has no reasonable legal or factual Basis.

Ark. R. App. P. — Civ. 11(b) (2002). Sanctions that may be imposed for violation of this rule are identified in Ark. R. App. P— Civ. 11(c):

(c) Sanctions that may be imposed for violations of this rule include, but are not limited to, dismissal of the appeal; striking a brief, motion, or other paper; awarding actual costs and expenses, including reasonable attorneys’ fees; imposing a penalty payable to the court; awarding damages attributable to the delay or misconduct; and, where there has been delay, advancing the case on the docket and affirming.

Ark. R. App. P. — Civ. 11(c) (2002). If this court on its own initiative determines that a sanction may be appropriate, a show-cause order may be issued. Ark. R. App. P. — Civ. 11(d) (2002).

In the instant matter, as already noted, U.S. Bank filed its notice of appeal on September 4, 2001 from (1) the class-certification order; (2) the order approving the class-action notice; and (3) the order granting partial summary judgment. Then, in a pleading filed with the circuit court on September 6, 2001, U.S. Bank states, “[t]here has been no proof of fraud or insolvency on the part of US Bank that would endanger its capacity to respond to any final judgment which may be entered in this case.” In that same pleading opposing the appointment of a receiver, U.S. Bank states, “[t]he holders of beneficial interests in the trusts, of which US Bank is trustee, will be damaged if a receiver is appointed, since they will not receive the payments they contracted for, even though monetary judgement on each claim has not been entered.” In a memorandum filed on the same day, U.S. Bank asserts that “[t]here is no danger that it is going to hide its assets to put them beyond reach of a final judgment” and that “the Plaintiffs will not be losing anything by continuing their payments as before, but that the trust beneficiaries would be; all this before a final determination of the amounts that might be due.”

On September 27, 2001, Milburn filed a motion to dismiss the appeal in this court. In that motion, Milburn alleges that the notice of appeal is untimely with respect to the class-certification order and the order approving the class-action notice. Milburn also asserts in her motion that the appeal from the partial summary-judgment order should be dismissed, as that ruling by the circuit court is not a final order, and it was not certified as final pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure. U.S. Bank responded to the motion, contending first that the partial summary-judgment order was final because the only remaining issues were “collateral and ministerial.” Moreover, U.S. Bank suggested that both the class-certification order and the order approving the class-action notice were appealable as intermediate orders. Finally, in its reply brief filed on April 26, 2002, U.S. Bank conceded that the partial summary-judgment order is not a final appealable order. However, U.S. Bank continued to assert its “impact theory” as a basis for the appeal.

In order for a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). We have on numerous occasions held that a judgment or order is not final and appealable if the issue of damages remains to be decided. Sevenprop Assoc. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1998); John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991); Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 338 (1998); Kilgore v. Viner, 293 Ark. 187, 735 S.W.2d 1 (1987).

Delivered April 10, 2003

From the record before this court, it appears that U.S. Bank was arguing on appeal that the partial summary-judgment order was final, while at the same time arguing in the circuit court that no final order had been entered. Additionally, Milburn, through her motion to dismiss the appeal, notified U.S. Bank as early as September 17, 2001, that the appeal was not properly before this court. Because U.S. Bank continued to prosecute the instant appeal, we conclude that sanctions may be appropriate. Pursuant to Ark. R. App. P. — Civ. 11(d), we order U.S. Bank and its counsel to show cause in writing why a sanction should not be imposed against them. Such writing shall be filed no later than seven days after the date of this opinion. If U.S. Bank files a writing, Milburn shall have four days to respond.

Appeal dismissed; motion to dismiss appeal moot.

Supplemental Opinion Imposing Rule 11 Sanctions

100 S.W.3d 674

The Rose Law Firm, by: Herbert C. Rule III, Garland Garrett, and Stephen-Joiner, for appellant.

Joe Holifield and McMath, Vehik, Drummond, Harrison & Lebdetter, P.A., by: Mart Vehik, for appellee.

Per Curiam. 28,

In this appeal, we issued our opinion on February 28, 2003, wherein we dismissed a set of interlocutory appeals by U.S. Bank stemming from a Rule 23 class-action proceeding. U.S. Bank v. Milburn, 352 Ark. 144, 100 S.W.3d 674. We did so because the notice of appeal filed by U.S. Bank was untimely with respect to the class-certification order and the order approving class notice, and U.S. Bank eventually conceded that the partial summary-judgment order was not a final order and, thus, not properly appealable. U.S. Bank also admitted that no appeal was taken from any ruling by the circuit court on its motion requesting reconsideration of the class-certificadon and partial summary-judgment orders. Finally, as to the appeal of an interlocutory order appointing a receiver, the untimely filing of the record procedurally barred U.S. Bank from pursuing that point on appeal.

Upon pointing out that U.S. Bank continued to prosecute the appeal, even though it appeared from the record before this court that U.S. Bank was arguing on appeal that the partial summary-judgment order was final, while at the same time arguing in the circuit court that no final order had been entered, we concluded sanctions under Rule 11 of the Arkansas Rules of Appellate Procedure — Civil might be appropriate. Pursuant to Ark. R. App. P.— Civ. 11(d), we directed U.S. Bank and its counsel to show cause in writing why a sanction should not be imposed against them, and we also allowed Milburn to respond. Both U.S. Bank and Milburn have filed their writings.

In its response to the order to show cause, U.S. Bank posits three reasons why sanctions are inappropriate. First, U.S. Bank asserts that it had a good-faith belief that the partial summary-judgment order was final and appealable. Specifically, it maintains that a trial court’s order need not always establish the amount of damages in order for the order to be final and appealable. U.S. Bank directs this court to Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991); Ives Trucking Co. v. Pro Transportation, 341 Ark. 735, 19 S.W.3d 600 (2002); Hartwick v. Hill, 77 Ark. App. 185, 73 S.W.3d 15 (2002); and Smith v. Smith, 51 Ark. App. 20, 907 S.W.2d 755 (1995). None of those cases, however, are apposite. In fact, we have on numerous occasions held that for an order to be final, it must establish the amount of damages. Tri-State Delta Chemicals, Inc., v. Crow, 347 Ark. 255, 61 S.W.3d 172 (2001); Sevenprop Assocs. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1998); String v. Kazi, 312 Ark. 6, 846 S.W.2d 649 (1993).

The test of finality and appealability of an order is whether the order puts the court’s directive into execution, ending the litigation or a separable branch of it. Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286. The Pledger case was a class action in which we concluded that the order at issue was appealable where it ended all issues except the amount of attorney’s fees and the details of notice to the class of their rights to a refund. Id. The members of the class in Pledger asked for a declaration that certain provisions of the income tax laws of the state were unconstitutional, an injunction against using the funds illegally collected, a refund to the class, and attorney’s fees. The trial court’s order granted the prayer in favor of the members of the class on all of those issues. Id.

Here, the partial summary-judgment order is just what it says it is — partial. The order did not adjudicate all claims against all parties (the complaint as amended also alleged common-law fraud claims against U.S. Bank, Real Estate Title & Services, Inc., and the other defendants), and the circuit court did not certify the partial summary judgment as final pursuant to Ark. R. Civ. P. 54(b). Furthermore, Milburn’s Rule 23 class action sought relief in the form of monetary damages as provided by the usury laws of Arkansas. The partial summary-judgment order did not decide the issue of damages so as to make it enforceable by execution. In contrast, the class members in Pledger v. Bosnick sought the recovery of funds illegally collected by the State of Arkansas, not monetary damages. Likewise, as we reiterated in Ives Trucking Co. v. Pro Transportation, 341 Ark. 735, 19 S.W.3d 600, the award of attorney’s fees is a collateral matter that does not affect the appealability of the underlying order.

The Hartwick case involved a landowner’s claim to a roadway across a neighbor’s property. Hartwick v. Hill, 77 Ark. App. 185, 73 S.W.3d 15 (2002). The trial court’s order adopted the report of the viewers who had been appointed to examine the land and lay out the location of the roadway, described the location of the roadway to be granted, ordered the Hills to conduct a survey of the land to determine the precise acreage of the roadway, and established that Hartwick would incur damages in the amount of $6,000 per acre due to the loss of the land for the roadway. Id. The Arkansas Court of Appeals held that the future action contemplated by the trial court’s order (obtaining a survey reflecting the precise acreage in the roadway and applying the $6,000 per acre formula that was ordered by the court as damages) was collateral to the main issues decided by the court — that the Hills were entitled to a roadway across the Hartwick’s land and the amount of damages to be paid. Id. Unlike the order in Hartwick, the order at issue here set out no formula or specifics as to the amount of damages.

Finally, in Smith v. Smith, 51 Ark. App. 20, 907 S.W.2d 755, the Arkansas Court of Appeals correctly characterized accrual of interest on a judgment as a collateral matter. The instant case does not concern an order to pay interest on a judgment.

In sum, none of the cases cited by U.S. Bank undermine our prior holdings that a judgment or order is not final and appealable if the issue of damages remains to be decided. Tri-State Delta Chemicals, Inc. v. Crow, 347 Ark. 255, 61 S.W.3d 172; Sevenprop Assocs. v. Harrison, 295 Ark. 35, 746 S.W.2d 51; John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991). Indeed, U.S. Bank eventually conceded that the partial summary-judgment order was not final. Accordingly, we must disagree with U.S. Bank’s assertion that it acted in good faith, when in fact it waited until the last possible moment to abandon that point on appeal.

Next, U.S. Bank asserts that it did not make inconsistent arguments before this court and the circuit court on the issue of finality. It points to three excerpts from pleadings filed in the circuit court after U.S. Bank filed its notice of appeal. However, in each of those excerpts, U.S. Bank suggests that the trial court had not entered a final judgment. The first excerpt states, “[t]here is no danger that [U.S. Bank] is going to hide its assets to put them beyond the reach of a final judgment.” In the second excerpt, U.S. Bank states that all loan payments by class members should continue to be made to U.S. Bank “before a final determination of the amounts that might be due.” Lastly, U.S. Bank directs us to the following language in its response to Milburn’s motion for receiver filed in the circuit court:

There has been no proof of fraud or insolvency on the part of U.S. Bank that would endanger its capacity to respond to any final judgment which may be entered in this case. The plaintiff, by her motion for appointment of receiver, is, in effect, seeking to levy execution before final judgment in favor of class members, establishing whatever their rights and entitlements are, has been entered.

(Emphasis added.) We find that this language is in accord with our opinion where we stated “it appears that U.S. Bank was arguing on appeal that the partial summary-judgment order was final, while at the same time arguing in the circuit court that no final order had been entered.”

For its last argument against the imposition of Rule 11 sanctions, U.S. Bank maintains it acted in good faith in proposing the so-called “impact theory” as the basis for the appeal. The bank states that making a good-faith argument and losing is not grounds for sanctions. Essentially, U.S. Bank contended on appeal that interlocutory orders — such as class-certification orders or orders approving class-action notices that are immediately appealable pursuant to Ark. R. App. P. — -Civ. 2(a)(9) •— may become appealable at a later time when the entry of any subsequent order “impacts” those prior orders. Under the “impact theory” proposed by U.S. Bank, the appeal is not from a ruling by the circuit court on the alleged “impact” of a subsequent order; rather, it is the mere assertion on appeal of such an “impact” that would automatically make a previous order appealable at any time. In other words, U.S. Bank attempted to prosecute an appeal before the circuit court had an opportunity to rule on the issue. Such a proposition is not supported by our Rules of Appellate Procedure— Civil. Moreover, our case law is clear that we will not address issues for the first time on appeal. Jones v. Jones, 347 Ark. 409, 64 S.W.3d 728 (2002). Thus, we cannot agree that U.S. Bank acted in good faith in proposing the so-called “impact theory.”

Based on the foregoing, we agree with Milburn that U.S. Bank and its counsel should be sanctioned pursuant to Ark. R. App. P. — Civ. 11. The interlocutory set of appeals prosecuted by U.S. Bank has already been dismissed. See U.S. Bank v. Mil-bum, 352 Ark. 144, 100 S.W.3d 674. In addition, we determine a fair sanction in these circumstances would be the award of costs and reasonable attorney’s fees to appellees for requiring them to go forward in defending' this appeal. See Ark. R. App. P. — Civ. 11(c), see also Stilley v. Hubbs, 344 Ark. 1, 40 S.W.3d 209 (2001); Jones v. Jones, 329 Ark. 320, 947 S.W.2d 6 (1997). Therefore, we order that U.S. Bank and its counsel pay appellees attorney’s fees in the amount of $3,000, plus costs for this appeal as provided by Ark. Sup. Ct. R. 6-7, and do so within twenty days from the issuance of this supplemental opinion.

Rule 11 sanctions issued.

Thornton and Hannah, JJ., dissent.

Jim Hannah, Justice, dissenting. disagree with the majority’s be in this case.

I respectfully dissent. I disagree with the majority’s holding that Rule 11 sanctions should be imposed in this case.

The majority dismisses U.S. Bank’s argument that it had a good-faith belief that the trial court’s order granting summary judgment was a final and appealable order. The majority held that all the cases cited by the bank in support of its argument that a trial court need not always establish the amount of damages in order for the order to be final and appealable were inapposite.

The majority distinguishes the cited cases from the present case. It is common for this court to distinguish cases cited in the parties’ brief from the case at hand. We often disagree with parties’ contentions that the cases cited in their briefs are on point with the case before the court. Our disagreement with the parties’ contentions does not warrant sanctions.

The majority also notes that the trial court did not certify the partial summary-judgment as final pursuant to Ark. R. Civ. P. 54(b). While it is true that the bank did not attempt to obtain partial certification from the trial court, a review of our case law indicates that we have not imposed Rule 11 sanctions when we have not addressed the merits of an appeal due to a party’s failure to have a judgment certified pursuant to Rule 54(b). See, e.g., Fisher v. Chavers, 351 Ark. 318, 92 S.W.3d 30 (2002); Chapman v. Wal-Mart Stores, Inc., 351 Ark. 1, 89 S.W.3d 906 (2002); Dodge v. Lee, 350 Ark. 480, 88 S.W.3d 843 (2002); Sharp v. State, 350 Ark. 529, 88 S.W.3d 848 (2002); City of Corning v. Cochran, 350 Ark. 12, 84 S.W.3d 439 (2002); Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002); Eason v. Flannigan, 349 Ark. 1, 75 S.W.3d 702 (2002); Tri-State Delta Chems., Inc. v. Crow, 347 Ark. 255, 61 S.W.3d 172 (2001).

In addition, the majority states:

Indeed, U.S. Bank eventually conceded that the partial summary-judgment order was not final. Accordingly, we must disagree with U.S. Bank’s assertion that it acted in good faith, when in fact it waited until the last possible moment to abandon that point on appeal. (Emphasis added.)

The majority appears to be implying that if U.S. Bank had maintained until the end that it believed the partial summary judgment order was a final judgment, then there would be no Rule 11 sanctions.

Counsel for U.S. Bank was acting as an officer of the court in admitting in its reply brief that the partial summary judgment was not a final order. Are we imposing sanctions because counsel was being honest and candid with this court and properly acting as an officer of the court? The majority is sending the wrong message to the bar.

It should be noted that Milburn previously filed a motion to dismiss the appeal because the partial summary judgment was not a final appealable- order, and this court declined to rule on that motion. If the appeal was frivolous, and if it was so clear that the partial summary judgment order was not a final appealable order, would not this court have granted Milburn’s motion to dismiss?

Rule 11 provides, in part:

(a) The filing of a brief, motion or other paper in the Supreme Court . . . constitutes a certification of the party or attorney that, to the best of his knowledge, information and belief formed after reasonable inquiry, the document is well grounded in fact; is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and is not filed for an improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. A party or an attorney who files a paper in violation of this rule, or party on whose behalf the paper is filed, is subject to a sanction in accordance with this rule.
(c) Sanctions that may be imposed for violations of this rule include, but are not limited to, dismissal of the appeal; striking a brief, motion, or other paper; awarding actual costs and expenses, including reasonable attorneys’ fees; imposing a penalty payable to the court; awarding damages attributable to the delay or misconduct; and, where there has been delay, advancing the case on the docket and affirming.
(d) A party may by motion request that a sanction be imposed upon another party or attorney pursuant to this rule, or the court may impose a sanction on its own initiative. A motion shall be in the form required by Rule 2-1 of the Rules of the Supreme Court and Court of Appeals, with citations to the record where appropriate, and will be called for submission three weeks after the filing. ... If the court on its own initiative determines that a sanction may be appropriate, the court shall order the party or attorney to show cause in writing why a sanction should not be imposed on the party or attorney or both.

Ark. R. App. P— Civ. 11 (2002).

It should be noted that Milburn’s counsel argued that sanctions should be imposed on the bank, inter alia, because the bank violated procedural rules, i.e., failing to obtain the trial court’s certification of the partial summary judgment order, pursuant to Rule 54(b); however, Milburn’s counsel failed to follow procedure in requesting sanctions. Motions to request sanctions must comply with Rule 2-1. Rule 2-1 provides, in part, that “[a]ll motions must be in writing,” and that “[i]n cases pending before the Supreme Court, eight (8) clearly legible copies must be filed . . . .” Ark. Sup. Ct. R. 2-1 (2002). While it is true that this court on its own initiative may determine that sanctions are appropriate and issue a show-cause order, there is nothing in the record to indicate that this court, prior to the oral request by Milburn’s counsel, determined that sanctions may be appropriate.

At oral argument, the following colloquy took place between the court and counsel for Milburn:

Counsel for Milburn: ... I would like to address one more thing before we leave. I think the act of claiming this to be a final judgment has caused me and my client great harm in this case. . . . What have they gained in the process? Number one, by claiming it is a final judgment, what they have gained is I had to respond to it. . . . They managed to get an appeal before this court. The next thing is, because summary judgment is crucial.... I spent a huge amount of time responding to that. ... So, they have now heard what I am going to do. They have taken advantage of it, and they gain advantage by a false claim that this is a final judgment. I am going to ask the court to dismiss this case with appeal, or, in the alternative, that they be prohibited from raising any new arguments should they bring this case up again, and to pay for the time and money I had to spend responding to something they knew they were going to drop when it was all over. . . .
Justice Brown: You seem to be raising a Rule 11 violation under the appellate rules.
Counsel for Milburn: That is exactly what I am suggesting, but this court has inherent authority to do that, as well, I believe.

Later, the court requested a response from U.S. Bank’s counsel.

Justice Brown: What is the response to that? He said that there is no question that you knew it was not a final order and there was not Rule 54(b) certification. That has put him to the expense of having to reply to an appeal.
Counsel for U.S. Bank: Well, I would first say, your honor, that I believe such a request would require a motion and an opportunity for presentation of a full explanation by both sides with us in response.
* * *
Justice Glaze: Your response on the sanction 11 rule, then, is this has not been posed to you prior to today?
Counsel for U.S. Bank: Yes, that is correct, I believe your honor.

Milburn requested that the court impose sanctions. As such, Milburn should have complied with Rule 2-1 and submitted a motion explaining why sanctions should be imposed on the bank. Instead, Milburn ignored Rule 2-1 and orally requested sanctions. After hearing Milburn’s oral request, which was raised at oral argument without notice to the bank, the court, in U.S. Bank, N.A., et al., v. Milburn, 352 Ark. 144, 100 S.W.3d 674, ordered U.S. Bank and its counsel to show cause in writing why a sanction should not be imposed against them.

In addition, the majority rejects the bank’s argument that it acted in good faith in proposing the so-called “impact theory” as the basis for appeal. The bank argues that making a good-faith argument and losing is not grounds for sanctions. I agree. In Crockett & Brown, P.A. v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995), the court discussed the requirements of Rule 11. We stated:

. . . Rule 11 does not require that the legal theory espoused in a filing prevail. The essential issue is whether signatories of the document fulfilled their duty of reasonable inquiry into the relevant law, and the indicia of reasonable inquiry into the law include the plausibility of the legal theory espoused and the complexity of the issues raised. CJC Holdings, Inc. v. Wright & Lato, Inc., 989 F.2d 791 (5th Cir. 1993). The CJC Holdings decision admonished that a trial court should not impose Rule 11 sanctions for advocacy of a plausible legal theory, particularly when the law is arguably unclear. Id. at 794.

Crockett & Brown, 321 Ark. at 155-56.

The present case, a class action, involved complex issues. Throughout the appeal, the bank argued that there was a question about whether an appealable order had been entered by the trial court. At oral argument, the bank’s counsel stated:

... [W]e struggle with that question ourselves and with counsel for U.S. Bank from Minnesota, as to whether that was a final order. We talked .... Well, what we had in mind was, if it were a final order, we had better appeal it.

In its response to the order to show cause, the bank stated that, in determining that there was a final order, it reasonably relied on existing law and, that by appealing the order, “it . . . avoided the trap faced by U.S. Bank if it did not appeal — that it would be barred from litigating any further issues of law or fact by failing to appeal the order.” The majority’s determination that sanctions were proper in the present case could have a far-reaching effect on the attorney’s role as an advocate for his or her client. In a case where an attorney is unsure about the finality of the order, is he or she now going to be faced with the choice of either: (1) filing an appeal of an order which may not be final, thereby risking sanctions by this court; or (2) failing to file an appeal of an order which may indeed be final, thereby risking a malpractice action from a client who loses the right to an appeal?

In the present case, the bank’s counsel acted as an advocate for his client. Of course, an attorney may not shield himself or herself from sanctions stating that he or she was merely acting as an advocate. Indeed, Rule 11 provides that sanctions may be imposed upon a party or counsel or both for taking or continuing a frivolous appeal. However, for the purposes of Rule 11, “a frivolous appeal or proceeding is one that has no reasonable legal or factual basis.” The appeal in the present case was not frivolous. The issues were complex, and the record indicates that there was a reasonable question concerning the finality of the order. I agree with the bank that sanctions should not be imposed.

For the foregoing reasons, I respectfully dissent.

Thornton, J., joins this dissent.

       The other defendants are not pertinent to this appeal.

       The federal court granted Milburn’s motion to dismiss the TILA / HOEPA claims without prejudice.

       Milburn’s fourth amended complaint filed on February 27, 2001, identified one additional loan trust as a defendant.

       In opposing Milburn’s motion, U.S. Bank requested the court to find that California law applies to the loans and U.S. Bank adopted all factual allegations and legal analysis set forth in Empire’s earlier responses.

       U.S. Bank had filed no response to Milburn’s motion for approval of the class-action notice.

       We note that a copy of an order entered by the circuit court on December 28, 2001, is attached as Exhibit A to U.S. Bank’s response to Milburn’s supplement to its motion to dismiss appeal. In that order, the circuit court denied U.S. Bank’s motions for reconsideration of the class-certification and partial summary-judgment orders and the order appointing a receiver.

       Even under Ark. R. App. P. — Civ. 4(b)(2), if a notice of appeal is filed prior to the disposition of the motion, a party who seeks to appeal from the denial of the motion must amend the previously filed notice so as to comply with Ark. R. App. P. — Civ. 3(e).

       “What is sought in an illegal-exaction case is return of taxes wrongfully collected. Relief may be an order that the taxes be refunded. A personal judgment is not entered.” Worth v. City of Rogers, 351 Ark. 183, 192, 89 S.W.3d 875, 881 (2002) (citations omitted).

       With respect to the good-faith argument, U.S. Bank also asks this court to consider documents outside the record. Essentially, U.S. Bank suggests that Milburn made inconsistent arguments on the issue of finality before this court and the lower court, which caused U.S. Bank to continue prosecuting the appeal. We do not consider matters outside the record on appeal. Black v. Steenwork, 333 Ark. 629, 970 S.W.2d 280 (1998). In any event, nothing in the record indicates that Milburn argued to the circuit court that the partial summary judgment was a final order.

       I note that the majority’s holding does not address the issue of whether U.S. Bank will be precluded from raising any new argument should the bank file a subsequent appeal.