author: Tom Glaze, Justice.

text:
    Diarl NOLAND v. FARMERS INSURANCE COMPANY, INC., et al.
    94-772
    892 S.W.2d 271
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995

      John I. Purtle, P.A., for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Elizabeth Fletcher Rogers, for appellee.
   Tom Glaze, Justice.

On or about January 29, 1989, Diarl Noland and his wife, Debra Noland, purchased a homeowner’s policy from appellee Farmers Insurance Co., Inc. The policy covered the Nolands’ dwelling for a twelve-month period ending January 29, 1990. On the night of December 31, 1989, a fire destroyed the Noland house and its contents. As a result of the fire loss, Farmers paid the mortgagee, First Commercial Mortgage Company, the sum of $46,011.99 and under the terms of the policy, advanced the Nolands $2,000 for living expenses. Later, Farmers refused to make further payments under the policy because a question arose concerning whether the Nolands may have committed arson. Debra’s cousin was also implicated. The Nolands subsequently were charged in federal court with conspiracy to commit arson and mail fraud, aiding and abetting arson and six counts of aiding and abetting in a mail fraud scheme. On December 17, 1990, Diarl Noland was found innocent, but his wife was convicted of the charges and is currently in prison.

On May 15, 1993, Noland filed a complaint against Farmers, seeking to collect under the homeowner policy as an innocent spouse. He also sought damages for the tort of bad faith. Farmers filed a counterclaim to Diarl Noland’s suit and a third-party complaint against Debra Noland. Farmers asserted that the Nolands should reimburse Farmers the monies it had paid under the policy. The trial court granted Farmers’s motion for summary judgment, holding that, under the terms of the policy, Diarl Noland could not recover as an innocent spouse. By its judgment, the court also dismissed Farmers’ counterclaim and third-party suit against the Nolands. Diarl Noland appeals from that judgment.

Diarl Noland first argues that a homeowner’s insurer should not be able to deny coverage benefits to an innocent spouse because of the wrongdoing of the other spouse. This court has never decided that exact issue. However, in Bryan v. Employers Nat’l Ins. Corp., 294 Ark. 219, 742 S.W.2d 557 (1988), the court did consider a similar question. There, a business partner was convicted of setting fire to the insured premises, and his co-partner brought suit against the insurer of the property in an attempt to recover proceeds for the fire loss under the policy. The trial court denied recovery under the policy terms, and concluded that, as a matter of law, the co-partner could not recover as an innocent partner. On appeal, this court affirmed, agreeing that the exclusionary provisions prohibited the innocent partner’s recovery for the loss. Quoting the policy language, the Bryan court pointed out that the policy terms did not insure against a loss caused by any criminal act done by any insured or partner of any insured. The court determined that because the insured partner committed arson, the policy’s explicit language precluded any recovery.

The court’s decision in Bryan is in keeping with Arkansas law. This court has said that intent to exclude coverage in an insurance policy should be expressed in clear and unambiguous language, and an insurance policy, having been drafted by the insurer without consultation with the insured, is to be interpreted and construed liberally in favor of the insured and strictly against the insurer. Nationwide Mutual Ins. Co. v. Wor thy, 314 Ark. 185, 861 S.W.2d 307 (1993). It is also a longstanding rule that, where the terms of the policy are clear and unambiguous, the policy language controls; and absent statutory strictures to the contrary, exclusionary clauses are generally enforced according to their terms. See State Farm Mutual Ins. Co. v. Cartmel, 250 Ark. 77, 463 S.W.2d 648 (1971). Like Bryan, a number of other jurisdictions have similarly held that, whether an innocent coinsured, regardless of the relationship, is able to recover under an insurance policy is dependent upon the language of the policy. See Spezialetti v. Pacific Employees Ins. Co., 759 F.2d 1139 (3rd Cir. 1985) (innocent spouse was barred from recovery under the terms of an exclusionary provision); Vance v. Pekins Ins. Co., 457 N.W.2d 580 (Iowa 1990) (determination of whether coinsured spouse could recover under policy depended on contract analysis); State Farm Fire & Casualty v. Walker, 157 Wis.2d 459, 459 N.W.2d 605 (Wis. App. 1990) (under terms of policy, actions of insured barred recovery by other innocent insured); Amick v. State Farm Fire & Casualty Co., 862 F.2d 704 (8th Cir. 1988) (under Missouri law, exclusionary clause barring recovery by innocent coinsured was not void as against public policy); Bryant v. Allstate Ins. Co., 592 F.Supp. 39 (E.D.Ky. 1984) (insurer is required to pay solely for those losses it insured and not for those which were clearly excluded by unambiguous language); Ryan v. MFA Mutual Ins. Co., 610 S.W.2d 428 (Tenn. App. 1980) (insurer is bound by the language it unilaterally drafted into the insurance contract).

In the present case, the Nolands’ homeowners policy, paragraph 11, provides:

Intentional Acts. If any insured directly causes or arranges for a loss of covered property in order to obtain insurance benefits, this policy is void. We will not pay you or any other insured for this loss. (Emphasis added.)

Diarl and Debra were insureds under the policy and the policy terms explicitly excluded payment of insurance benefits to “any other insured” for the act of “any insured” causing or arranging for a loss. Consequently, Diarl Noland, as an “other insured,” is precluded from receiving any benefit under these clear terms of the policy. Cf. Spezialetti, 159 F.2d 1139 (where exclusionary provision denied coverage when fraudulent act was commited by “any insured,” court stated it had no difficulty in finding “any insured” means one covered by the terms of the policy and therefore barred recovery by the innocent coinsured spouse).

Diarl Noland also suggests that the exclusionary terms in his homeowners policy are contrary to public policy. He offers no Arkansas law or convincing argument to support his suggestion. In fact, the General Assembly has stated its intent to reduce the loss of life and fire damage to property caused by the crime of arson and to control the incidence of arson fraud. See Ark. Code Ann. § 23-88-201 (Repl. 1992). In sum, Mr. Noland has failed to show any contravention of public policy.

Finally, while Mr. Noland fails to make it a separate point for reversal, he also suggests Farmers failed to prove that Debra Noland caused the fire and resulting loss of the insured premises. We note that evidence of a final judgment adjudging a person guilty of a felony is admissible to prove any fact essential to sustain a civil judgment. Ark. R. Evid. 803(22). Here, Farmers’ proof included a copy of Debra’s judgment of convictions for the felony arson and fraud crimes relevant in the circumstances here, but Diarl offered no evidence to rebut or disprove the convictions. He was required to meet proof with proof which he failed to do. See Dillard v. Resolution Trust Corp., 308 Ark. 357, 832 S.W.2d 387 (1992).

For the reasons above, we affirm.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Arkansas v. Edward SPENCER
    CR 94-1055
    892 S.W.2d 484
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995

      Winston Bryant, Att’y Gen., by; Clint Miller, Senior Asst. Att’y Gen., for appellant.
    No response.
   Tom Glaze, Justice.

The state brings this interlocutory appeal pursuant to Ark. Sup. Ct. R. l-2(a)(12) and A.R.Cr.P. Rules 16.2(a)(3) and 36.10(a) and (c). In doing so, the state’s sole contention is that the trial court erred in granting Edward Spencer’s pretrial motion to suppress the statement he gave to Officer Steve Wallace on April 22, 1993. About one week after Spencer gave his statement, the state charged Spencer with having committed the felony offense of carnal abuse in the first degree as defined under Ark. Code Ann. § 5-14-104 (1993).

In deciding the correctness of the trial court’s pretrial suppression decision, we first review the evidence that was before it. The trial court’s ruling was made after a hearing on Spencer’s motion. Officer Wallace was the only witness, and testified as follows;

I contacted Mr. Spencer on the phone and advised who I was, what I was investigating. Told Mr. Spencer I would need to get with him and talk to him. He would not be under arrest and he had no obligation to come in but I would like to talk to him. He agreed to do so. At that time he came in and on that date and time was real cooperative. I advised him .he was not under arrest, we would just talk. We talked about the case and his involvement. Mr. Spencer was honest to the extent with me we wrote out a statement of things he told me. We agreed that it was correct and he signed the statement. I advised Mr. Spencer I would have to get with the prosecutor on the case for any possible charges and would get back to him at a later date. With that I left. There did not appear to be a problem with his mental faculties. No problems with drugs or alcohol. I did not advise him of his rights.
I explained he did not have to come in and talk with me but I would like it if he would. He was not under arrest. He agreed. At the Sheriff’s office he was advised he was not under arrest so he would not be under any pressure and he again understood that and spoke to me. Had he told me he did not want to come in and see me, that would have ended it.

On cross-examination, Wallace further stated the following:

Scan workers requested a statement from the victim. At the time I requested Mr. Spencer come in and talk to me I had talked with Anita Hammons. I could not say I had a report on a referral report from Scan. I knew what had taken place one way or the other for the interview. Ms. Hammons had given me some details of the interview with the alleged victim. I did not have any other suspect in this case. It is true Ms. Hammons had told me that the alleged victim had stated to her that her grandfather had improperly touched her.
I could not say without talking to the prosecutor if I had enough to seek a warrant. I had not talked to the prosecutor before talking to Mr. Spencer.
* * *
I did not inform Mr. Spencer that what he said to me could be used against him. Not at all. I simply told him he was not under arrest. I told him he had the right to leave. I had advised him it was to be turned over to the prosecutor after we talked and did the statement I told him I would get with the prosecutor and it would be up to him at which time I would get back to him.

Upon conclusion of Wallace’s testimony, the trial judge suppressed Spencer’s statement, finding that Officer Wallace knew Spencer had been “identified” and that no other suspect was under investigation. Under those circumstances, the judge ruled Spencer should have been advised of his rights. We hold the trial court was in error.

The trial court erred in its misconception that Miranda warnings are required whenever the state’s investigation focused on Spencer as a suspect notwithstanding a complete absence of the compulsive aspect of custodial investigation. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 440 (1984), citing California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam). Stated another way, the Supreme Court defined custodial interrogation as meaning the questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of action in any significant way. Miranda v. Arizona, 384 U.S. 436, 444 (1965); see also Stansbury v. California, 114 S.Ct. 1526 (U.S. 1994) (per curiam); and Oregon v. Mathiason, 429 U.S. 492 (1977) (per curiam). The Supreme Court further explicitly recognized that Miranda warnings are not required simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Beheler, 463 U.S. at 1125. In resolving the question of whether a suspect was “in custody” at a particular time, the only relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation. The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being interrogated. Stansbury, 114 S.Ct. at 1529.

The facts and setting in Mathiason are similar to those before us now and illustrate the Supreme Court’s application of the foregoing controlling principles when determining if a custodial interrogation occurred. There, a police officer investigating a burglary was given Carl Mathiason’s name as an only suspect. Mathiason agreed to meet the officer at the state patrol office. The officer informed Mathiason that he was not under arrest and then the two of them went into a closed room. The officer told Mathiason that he wanted to talk to him about a burglary and Mathiason’s truthfulness would possibly be considered by the district attorney or judge. The officer advised that the police believed Mathiason was involved in the burglary and [falsely stated that] Mathiason’s fingerprints were found at the scene. Mathiason sat for a few minutes and then conceded he had taken the property. This interview between the officer and Mathiason occurred within five minutes after Mathiason had come to the office.

All evidence in Mathiason resulted from the officer’s testimony since he was the only witness. In reviewing that testimony, the Mathiason court found there was no indication that the questioning took place in a context where Mathiason’s freedom to depart was restricted in any way. The court related that Mathiason came voluntarily to the police station, where he was immediately informed that he was not under arrest, and it further pointed out that after the one-half hour interview ended, Mathiason left the police station without hindrance. The Court then concluded that, based on the facts, Mathiason was not in custody or otherwise deprived of his freedom of action in any significant way. The court summarized its holding as follows:

Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of an formal arrest or restraint on freedom of movement, the questioning took place in a “coercive environment.” Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.

Oregon v. Mathiason, 429 U.S. at 495.

Like in Mathiason, the record before us in the present case fails to reflect the suspect’s freedom of action had been restrained to such a degree as that associated with a formal arrest. Officer Wallace told Spencer that he would like to talk with him, but that Spencer was not under arrest and he had no obligation to talk to Wallace. Wallace stated that if Spencer had said that he would not come in, that would have ended it. However, Spencer went to the police station on his own volition. Upon Spencer’s arrival, Wallace again informed Spencer that he was not under arrest, and told him he had a right to leave. Afterwards, the two men talked, which led to Spencer giving a statement. Wallace advised Spencer that he would turn Spencer’s statement over to the prosecutor and it would be up to him (the prosecutor) at which time he would get back to him (Spencer). The interview ended, and the two men departed. Spencer was not arrested until eight days later.

Based upon the announced legal principles and testimony set out above, we conclude that the interview conducted as described hereinabove would not cause a reasonable person in Spencer’s position to think his freedom of action was limited so as to lead him to believe he was in custody. Therefore, we reverse and remand this cause for proceedings consistent with this opinion.


author: Donald L. Corbin, Justice.

text:
    Roy Eldridge DAVIS v. STATE of Arkansas
    CR 94-521
    892 S.W.2d 472
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995

      A.J. Kelly, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

This court previously granted a motion for belated appeal filed by appellant, Roy Eldridge Davis. Davis v. State, 317 Ark. 322, 877 S.W.2d 93 (1994) (per curiam). Thus, appellant appeals a judgment of the Pulaski County Circuit Court entered in 1988 pursuant to a jury verdict convicting him of first degree murder and sentencing him as a habitual offender to life imprisonment in the Arkansas Department of Correction. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). For reversal, appellant asserts four points of error. We find no merit and affirm.

SUFFICIENCY OF THE EVIDENCE

The third of the four arguments raised in appellant’s brief is that the trial court erred in denying his motion for directed verdict. This argument is a challenge to the sufficiency of the evidence. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). Preservation of an appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Id.; Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

Appellant moved for a directed verdict at the close of the state’s case and again at the close of all the evidence. Both motions, however, were general motions and did not state a specific basis for the motion. The first motion did not even state that it was based on insufficiency of the evidence.

[PROSECUTOR]: The state rests, your Honor.
THE COURT: All right.
[DEFENSE]: Your Honor, I move for a directed verdict.
THE COURT: That will be denied.
[DEFENSE]: I call Gary Lawrence.

The second motion was simply a renewal of the first motion, although counsel and the court did engage in a review of some of the evidence.

This court has stated repeatedly that a motion for directed verdict is treated as a challenge to the sufficiency of the evidence and therefore requires that the movant apprise the trial court of the specific basis on which the motion is made. See, e.g., Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995); Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994). This court has held “[i]f a motion for directed verdict is general and does not specify a basis for the motion, it will be insufficient to preserve a specific argument for appellate review.” Walker, 318 Ark. at 109, 883 S.W.2d at 832. In so holding, this court reasoned that ‘“when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.’ ” Id. at 109, 883 S.W.2d at 832, (quoting Brown, 316 Ark. at 726, 875 S.W.2d at 830).

The motions made by appellant in the instant case were wholly inadequate to apprise the trial court of the basis of the motion. Indeed, no basis was given at all. Appellant has therefore not preserved this argument on appeal.

MISTRIAL

Appellant moved for a mistrial on the grounds that the jury was deadlocked. The trial court denied the motion and instructed the jury in accordance with AM Cl 2d 8103, sometimes referred to as the “Allen instruction” or the “dynamite instruction.” Appellant argues a deadlocked jury is an “overruling necessity” that compels the granting of a mistrial pursuant to Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991). While recognizing that a mistrial is an extreme and drastic remedy within the trial court’s discretion, appellant contends a mistrial is appropriate in his case because justice could not be served by continuing the trial.

Appellant’s argument is wholly without merit. The decision whether to declare a mistrial due to a jury’s inability to reach a verdict is discretionary with the trial court, and is not reversed absent an abuse of that discretion. Shaw, 304 Ark. 381, 802 S.W.2d 468 (citing McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986)). Contrary to appellant’s argument, Shaw does not mandate that a mistrial be declared in every case where the jury indicates it is deadlocked.

The jury in the instant case deliberated for two hours and sent a note to the judge that they were locked. Appellant moved for a mistrial at this point. The trial court inquired of the jury foreperson as to the numerical count of the vote, instructing the foreperson not to indicate whether the numbers were for guilty or not guilty. The vote was ten to two, and the foreperson indicated the minority view was firm. The trial court then asked the foreperson if there was anything he thought the court could do, or any instructions the court could give, to encourage the jury to reach an agreement. The foreperson responded he was unsure since he did not know what the instructions would be. The trial court then read AMCI 2d 8103 to the jury. The jury retired again to deliberate and returned a guilty verdict 15 minutes later.

On these facts, we cannot say the trial court abused its discretion in denying the mistrial. “Determining when the jury cannot agree is a matter over which the trial court has considerable discretion.” McGirt v. State, 289 Ark. 7, 13, 708 S.W.2d 620, 623 (1986). Rather than granting a mistrial, the trial court gave the Allen instruction. It is well-settled that a trial court may give the Allen instruction. Walker v. State, 276 Ark. 434, 637 S.W.2d 528, cert. denied, 459 U.S. 975 (1982). In Walker, this court stated that it is not error to instruct the jury to perform its duty to return a verdict or to comment on the ills attendant upon a disagreement, so long as the trial court does not comment on the weight of the evidence, change the prior instructions, or instruct a juror to yield his convictions.

It was within the trial court’s discretion to determine if the jury could not agree. McGirt, 289 Ark. 7, 708 S.W.2d 620. Here, the trial court made the determination to deny the mistrial and to give AMCI 2d 8103. There is nothing on this record to indicate justice required a mistrial be granted. Therefore, we find no abuse of discretion in denying the mistrial.

EVIDENTIARY RULINGS

Because we did not review the sufficiency of the evidence, we recite the gist of the evidence here to allow an understanding of the evidentiary points raised herein. Appellant was convicted of the first degree murder of Joseph Brown. Brown died from gunshot wounds he suffered at the residence of his girlfriend, Audrey Palmer. Audrey Palmer testified appellant was her ex-boyfriend and telephoned her at her house on the night of the murder threatening to burn down her house. When the lights went out at Palmer’s house later that evening, she reported a prowler at her home. The police responded to her call and witnessed appellant acting in a suspicious manner about two blocks from Palmer’s house. Brown was in the backyard of Palmer’s house near the breaker box when Palmer’s son Kevin witnessed appellant also in the backyard. Kevin Palmer testified he heard shots and then saw appellant jump the backyard fence. Appellant makes three basic assignments of error under this point: (1) the exclusion of testimony by defense witnesses Joann Milton and Evelyn Lamar concerning impeachment of state’s witnesses Audrey and Kevin Palmer; (2) the allowance of leading questions of Audrey Palmer concerning her description of a gun she saw in appellant’s possession; and (3) the. exclusion of a police officer’s opinion testimony concerning gunshot residue test results.

As for the testimony of Joann Milton, appellant does not identify the testimony that was excluded by the trial court. Our law is well established that in order to challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so this court can review the trial court’s decision, unless the substance of the evidence is apparent from the context. ARE Rule 103(a)(2); Patterson v. State, 318 Ark. 358, 885 S.W.2d 667 (1994). In the instant case, appellant made no proffer of what Ms. Milton’s testimony would be and we cannot tell what the specifics of her testimony would be from the context of the questions. Accordingly, this argument is not preserved for our review. We observe, however, that even assuming arguendo that any error occurred, we cannot say appellant suffered any prejudice. Ms. Milton disobeyed the trial court’s sustaining of one objection and stated that “Kevin didn’t like Roy.” Obviously then, the jury heard testimony of Kevin Palmer’s possible bias against appellant.

As for the excluded testimony of Evelyn Lamar, the trial court sustained the state’s objection to the form of a question that called for hearsay, although appellant’s counsel stated he was offering the testimony for credibility purposes. Appellant’s counsel never rephrased the question into an acceptable form and cannot complain of his failure to do so now. Moreover, appellant could not have impeached Audrey Palmer with the testimony of Lamar as to any alleged prior inconsistent statement by Palmer because Palmer never testified to making any statements to Lamar. ARE Rule 613. Appellant argues he should have been allowed to recall Palmer for the purpose of opening the door to Lamar’s impeaching testimony. The record does not contain a proffer from which we can determine the statements appellant alleges Palmer may have made and whether she would have denied making them; nor can we determine what Lamar would have said that would have impeached Palmer. Accordingly, this argument is not preserved for our review. Patterson, 318 Ark. 358, 885 S.W.2d 667.

With regard to Palmer’s testimony concerning the gun she alleged appellant to have possessed, the trial court permitted a very few leading questions on re-direct examination in order for her to determine that the gun was a revolver. Palmer was asked what kind of gun it was, and she stated she did not know because she did not know anything about guns. The trial court then allowed the prosecutor to “lead a little bit” by asking if the gun had a round cylinder where the bullets went. Rulings on evidence are within the broad discretion of the trial court and are not reversed absent a manifest abuse of that discretion. White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990). Rule 611(c) of the Arkansas Rules of Evidence permits leading questions on direct examination only “as may be necessary to develop [witness’s] testimony.” Given Palmer’s admission she did not know anything about guns, we cannot say the trial court abused its discretion in allowing the very few leading questions to develop her testimony by determining what kind of gun she testified she saw.

With respect to the police officer’s opinion as to the results of the gunshot residue test, the trial court ruled appellant could not question the police officer because he did not perform the test. The test was performed by Gary Lawrence of the Arkansas State Crime Laboratory; the police officer gathered the evidence so that Lawrence could perform the actual test. Lawrence was available to testify at trial, and indeed did testify as a witness called by appellant. Lawrence was thus available to appellant for testimony on the test results. We cannot say the trial court abused its discretion in refusing to allow the police officer’s testimony as to the results of a test the officer did not conduct.

HABITUAL OFFENDER STATUS -

Approximately two months prior to trial and after appellant refused a negotiated plea, the trial court allowed the state to amend the information to charge appellant as a habitual offender. Appellant objected to the amendment of the information, arguing “I object to it at this — because of the late date on it.” The trial court ruled it would allow the amendment, even up until the time of trial, because it affected only punishment, and had no effect on the quality or quantity of proof as to guilt or innocence.

On appeal, appellant argues the trial court erred in allowing the amendment after the conclusion of plea negotiations. Suffice it to say, as this court stated in Wright v. State, 267 Ark. 264, 272, 590 S.W.2d 15, 21 (1979), “the amendment was timely filed, and it was not error for the prosecutor to file the habitual offender charge when the appellant withdrew from plea negotiations.” (Citations omitted).

COMPLIANCE WITH RULE 4-3(h)

In accordance with Ark. Sup. Ct. R. 4-3(h), the transcript has been examined for prejudicial errors objected to by appellant but not argued on appeal and we conclude no such errors occurred.

The judgment is affirmed.


author: Donald L. Corbin, Justice. David Newbern, Justice, Tom Glaze, Justice, Robert L. Brown, Justice,

text:
    Manda FRANKLIN v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, Division of Economic & Medical Services, and Tom Dalton, in His Official Capacity
    94-676
    892 S.W.2d 262
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995

      David J. Manley, for appellant.

      Tami Harlan, Arkansas Department of Human Services, for appellees.
   Donald L. Corbin, Justice.

Appellant, Manda Franklin, appeals a judgment of the Pulaski County Circuit Court affirming the decision of appellee, Arkansas Department of Human Services, Division of Economic and Medical Services, to deny appellant’s application to participate in the Elder Choices Program, a federally authorized program, locally administered by appellee, which permits the state to provide non-institutional long-term care services as an alternative to institutionalization to qualifying elderly individuals. Appellant raises three points for reversal: (1) substantial rights of hers were prejudiced by the state’s failure to comply with statutory and federal regulatory notice requirements respecting program eligibility; (2) the application denial was arbitrary, capricious or characterized by an abuse of discretion; and (3) the application denial was not supported by substantial evidence of record. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3). We reverse.

The facts of this case commenced on June 24, 1992 when appellant, then aged 86 years, submitted her program application. The application was summarily denied by appellee as stated in its form No. EMS-704, “Decision for Nursing Home Placement,” because appellant “did not appear to meet criteria.” Appellant requested administrative review of that initial denial decision, and on September 30, 1992, an evidentiary hearing was conducted before the Arkansas Department of Human Services, Office of Appeals and Hearings (Department). On November 19, 1992, the Department issued its decision that the denial of appellant’s application was correct and in accordance with current Medical Services Policy, stating:

It has been determined that [appellant] does not meet the level of care requirement for nursing home admission in order to qualify for the Elder Choices Program. Ms. Franklin is ambulatory with a cane or walker, she maintains her bladder problem with a pad, and she is continent of bowel. Ms. Franklin is capable of preparing breakfast and capable of using frozen meals.

From this final agency action, appellant, through legal counsel, filed her petition for judicial review by the circuit court. Written arguments were filed with the circuit court by both parties, but no additional testimony was taken nor was a judicial hearing conducted. The circuit court found the decision to deny the application was not arbitrary, capricious or an abuse of discretion, and, on March 17, 1994, entered its order of affirmance. This appeal was taken therefrom.

Appellant first raises the procedural argument that appellee denied substantial rights of hers by failing to inform her, prior to the administrative hearing, of the exact nature of the medical eligibility criteria for the Elder Choices Program, and, to inform appellant, at any time in the administrative proceedings, of the legal authority or statement of law upon which its decision would be made. On appeal to this court, appellant argues these failures violated her right to due process of law, and her rights under Ark. Code Ann. § 25-15-208(a) to an administrative hearing after reasonable notice, and under 42 C.F.R. § 431.210(b) and (c) to a statement of reasons, including specific regulation, supporting the denial of her program application.

We summarily dispose of this argument which appellant concedes she did not raise at the administrative level. This court has repeatedly held it will not set aside an administrative determination upon a ground not presented to the agency because to do so would deprive the agency of the opportunity to consider the matter, make its ruling and state the reasons for its action. Riverways Home Care v. Arkansas Health Servs. Comm’n, 309 Ark. 452, 831 S.W.2d 611 (1992); Arkansas Cemetery Bd. v. Memorial Properties, Inc., 272 Ark. 172, 616 S.W.2d 173 (1981). Thus appellant’s failure to raise this argument before the administrative agency precludes its consideration by this court on appeal. Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).

Appellant’s second and third arguments, respectively, are that the denial decision (1) was arbitrary, capricious, or characterized by an abuse of discretion, and (2) was not supported by substantial evidence of record. We have held that if the agency action was supported by substantial evidence, then it follows automatically that the agency decision cannot be classified as arbitrary or capricious, Id.; see Enviroclean, Inc. v. Arkansas Pollu tion Control & Ecology Comm’n, 314 Ark. 98, 858 S.W.2d 116 (1993). Consequently, we first consider appellant’s argument that the application denial was not supported by substantial evidence.

The rules governing judicial review of decisions of administrative agencies by both the circuit and appellate courts are the same. Arkansas Alcoholic Bev. Ctrl. Bd. v. Muncrief, 308 Ark. 373, 825 S.W.2d 816 (1992). Our review is not directed toward the circuit court but toward the decision of the agency recognizing that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Enviroclean, 314 Ark. 98, 858 S.W.2d 116. If we find the administrative decision is supported by substantial evidence and is not arbitrary, capricious or characterized by an abuse of discretion, we uphold it. Arkansas St. Bank Comm'r v. Bank of Marvell, 304 Ark. 602, 804 S.W.2d 692 (1991).

Appellant appeared pro se at the administrative hearing where she testified and introduced into evidence four documents: a statement from Dr. Robert J. Wilkerson regarding her general medical condition, a statement from Dr. J J. Magie regarding her visual condition, a statement from pharmacist Jim Reidmueller listing her prescription medications during the 1991-92 period, and a personal statement summarizing her medical and economic need for assistance. Ida Ludy, appellant’s friend and neighbor, and Freda Brooks, a registered nurse with the Arkansas Department of Health, also testified about appellant’s medical and economic need for assistance. Barbara Flowers, Service Representative, attended the hearing on behalf of appellee. Appellee presented no evidence at the hearing.

The Department’s ultimate findings of fact and conclusions of law were:

FINDINGS OF FACT

1. A summary of the Administrative Hearing was submitted to the Utilization Review Committee [URC] of the Office of Long Term Care [OLTC] on October 2, 1992.
2. Form EMS-704, Decision for Nursing Home Placement, was received in the Appeals and Hearings Office on November 17, 1992.
3. According to the EMS-704, [appellant] does not meet the medical eligibility criteria for nursing home placement.
4. It was determined that [appellant] is ambulatory with a cane or walker, and that she is capable of preparing breakfast and frozen meals.
5. It was determined that [appellant] maintains her bladder problem with a pad, and that she is continent of bowel.

CONCLUSIONS OF LAW

1. [Appellant’s] Medical Services Policy 2076 states that Section 2176 of the Omnibus Budget Reconciliation Act of 1981, Public Law 97-35, allows states to provide non-institutional long term care services, as an alternative to institutionalization, to elderly individuals who would require an Intermediate Level of Care [ILC] if in an institution.
2. Medical Services Policy 2076.1 states that to be considered for the [Elder Choices Program], an individual must meet certain eligibility requirements, including ILC. Individuals must be classified as requiring an ILC if in an institution, as determined by the URC/OLTC.
3. Medical Services Policy 2076.3 states that the URC assessment results will be routed . . . via Form EMS-704.
4. The ILC Guidelines, Degree of Incapacity Criteria for Medicaid Recipients in Nursing Homes, issued by OLTC, establishes parameters for the exercise of professional judgment in the determination of the appropriate level of care for a patient; in addition to mobility, feeding, and toileting, the following factors are considered: patient’s age, diagnosis, mental status, physician plan of care and recommendation for type of nursing care required, and the patient’s overall general condition.
5. Medical Services Policy 3110 states that a[n] LTC Facility is an institution which provides medically necessary care and services 24 hours per day on a long term basis.

In addition, our review of the administrative record shows that appellant lived alone in a rural area of Conway County; she owned and was able to use a telephone. She suffered from high blood pressure, arthritis, kidney problems, and glaucoma, and took daily medication for these conditions. Appellant’s housecleaning, laundry and other tasks were performed by an aide who came to appellant’s home two days each week for two hours each day. The “local aging agency” provided appellant with frozen meals which appellant heated in her stove, sometimes requiring assistance to safely operate her stove. Appellant bathed in a bathtub only when another person was present in her house because she could not get out of the bathtub unassisted. Neighbors and members of appellant’s church provided her with transportation, shopping, and wrote appellant’s checks to pay her bills. Appellant was visited annually by her daughter, a California resident, who had provided a metal porch railing for appellant’s house to facilitate appellant’s ability to leave her home.

Dr. Wilkerson’s written statement introduced at the evidentiary hearing opined that appellant had several medical problems including moderately severe osteoarthritis, hypertension, severe glaucoma which severely affected her vision, and a history of a small cerebrovascular accident in 1982; he concluded appellant was limited in her ability to perform several activities of daily living due to arthritis and poor vision. Dr. Magie’s written statement opined that appellant was legally blind, that she was sufficiently visually handicapped to require additional home assistance and that her present assistance should not be cut. Nurse Brooks testified that appellant needed in-home help for all daily activities.

To determine whether a decision is supported by substantial evidence, we review the record to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wright, 311 Ark. 125, 842 S.W.2d 42. When reviewing the evidence, we give it its strongest probative force in favor of the agency. Beverly Enterprises-Arkansas, Inc. v. Arkansas Health Servs. Comm’n, 308 Ark. 221, 824 S.W.2d 363 (1992). Appellant’s burden, then, in order to establish an absence of substantial evidence, is to show that the proof before the Department was so nearly undisputed that fair-minded persons could not reach its conclusion. Id. The issue is not whether the evidence supports a contrary finding, but whether it supports the finding that was made. Id.

We find appellant has carried her burden of proof with respect to this argument. As recited above, the Department concluded, as a matter of law, that its Medical Services Policy identified mobility, feeding, and toileting, in addition to certain other enumerated factors, as the parameters for determining appellant’s level of care requirement for nursing home admission in order to qualify for the Elder Choices Program. The Department’s findings of fact, which it reiterated in its ultimate statement approving the denial of appellant’s application, included the statements that appellant was capable of preparing breakfast and frozen meals (“feeding”), and that appellant maintained her bladder problem with a pad and was continent of bowel (“toileting”). Upon review, we conclude these findings of fact are not borne out by the evidence of record.

With respect to appellant’s feeding ability, we note initially that the record established that the home-delivered frozen meals, when warmed, constituted appellant’s only cooked food, with the exception of breakfast which appellant testified she tried to prepare alone. Appellant testified she had to cook or try to because she had no one to cook for her.

In examining the record for evidence supporting the finding that appellant was capable of preparing these frozen meals, the following colloquy, which occurred at the administrative hearing, is noteworthy:

HARDIN [Hearing Officer]: Okay let me turn this over. We are continuing with Ms. Franklin’s hearing. Ms. Franklin what else about yourself can you think of to tell me today?
MS. FRANKLIN: What about myself?
HARDIN: Yes ma’am anything about yourself, about your activities, things you can or cannot do.
MS. FRANKLIN: Sometimes I fix my food and sometimes it burns.
HARDIN: You burn your food sometimes.
MS. FRANKLIN: Yes it burns.
HARDIN: How come it burns Ms. Franklin, can you not see how high the flame is?
MS. FRANKLIN: The blaze I guess is too high and I discover that it was high.
HARDIN: How often does that happen?
MS. FRANKLIN: Well pretty often.

Appellant’s testimony was corroborated by that of Ms. Ludy who stated: “It is impossible for [appellant] to see that well, which makes it dangerous for her to be trying to warm up things. She has no microwave oven so she has to use her regular range which lets the heat come up in her face.” Ms. Ludy further testified:

MS. LUDY: [I] want to add this too, that I am her neighbor and I am over there quite a bit. Mandy has glaucoma and she — you will see in the documentation that we brought for this hearing that she should not be over heat. Just like last week when I was over there her left eye was swollen something terrible. Sometimes it’s swollen under it and then a ridge down to her upper lip. This time it was just one, so we know that being over heat with her eye condition.

The evidence presented at the hearing mandates the conclusion that appellant suffered a profound visual impairment which severely restricted her ability to perform fundamental tasks, including cooking. Further, the evidence of record is undisputed that appellant was clearly dependent upon her existing support network of the local aging agency, neighbors, church members, and family for the accomplishment of such basic tasks, including cooking. On this record, we fail to find relevant evidence that a reasonable mind might accept as adequate to support the finding that appellant was capable of preparing her frozen meals.

With respect to appellant’s toileting ability, the only evidence of record was appellant’s testimony that she received medication for her kidneys which, she opined, she would be required to take for the remainder of her life, together with the following colloquy at the hearing:

HARDIN: Ms. Franklin are you able to get in and out.of bed by yourself?
MS. FRANKLIN: Well yeah I get up there. I have to just sit on the side of the bed and then get myself together. Sometimes my legs be so stiff I can’t get up you know — get up and go right on to the bathroom, I have to sit there until I let my legs straight — they be so stiff.
HARDIN: Do you have to get up a lot during the night to go to the bathroom Ms. Franklin?
MS. FRANKLIN: Well, sometimes — sometimes I do and then again I don’t.
HARDIN: Do you have trouble controlling your bladder and or your bowels Ms. Franklin?
MS. FRANKLIN: Well, yeah I have pretty good trouble. Sometimes though my kidneys won’t wait until I get to the bathroom.
HARDIN: Does that happen very often?
MS. FRANKLIN: Pretty often.
HARDIN: Do you wear any type of special pad or anything because of that Ms. Franklin?
MS. FRANKLIN: Yeah I wear a pad.
HARDIN: Is that a problem at night when you are sleeping?
MS. FRANKLIN: No sometimes I have to wear them in the day time, it don’t be night — sometimes my kidney just won’t act right and it will be down before you know it.

On this record, we fail to find relevant evidence that a reasonable mind might accept as adequate to support the determination that appellant maintained her bladder problem with a pad as well as was continent of bowel.

We are persuaded, after reviewing the evidence with its strongest probative force in favor of appellee, that the evidence does not support the findings of fact that were made with respect to appellant’s feeding and toileting abilities, nor the ultimate conclusion drawn, in part, from those facts: that appellant did not qualify for the Elder Choices Program. In sum, we find the denial decision was not supported by substantial evidence of record.

In light of our holding that appellee’s decision was not supported by substantial evidence of record, we need not address appellant’s final argument that the decision was arbitrary, capricious, or characterized by an abuse of discretion. Ark. Code Ann. § 25-15-212(h)(5) (Repl. 1992).

For the foregoing reasons, we reverse the order of the circuit court and remand for entry of an order consistent with this opinion.

Dudley, Newbern and Glaze, JJ., concur.

Brown, J., dissents.

David Newbern, Justice,

concurring. Manda Franklin has argued that the decision of a division of the Arkansas Department of Human Services (DHS) deprived her of substantial rights on the basis of a decision which was arbitrary and capricious and which was not supported by substantial evidence. The majority opinion concludes the factual determinations made by DHS, and thus the decision that Ms. Franklin was not entitled to the benefits of the Elder Choices Program, were not supported by substantial evidence. The facts disputed are those contained in paragraphs 4. and 5. in DHS’s finding of fact:

4. It was determined that [Ms. Franklin] is ambulatory with a cane or walker, and that she is capable of preparing breakfast and frozen meals.
5. It was determined that [Ms. Franklin] maintains her bladder problem with a pad, and that she is continent of bowel.

While there may be a dispute as to whether Ms. Franklin is capable of preparing meals, it is undisputed that she is doing it. It is also undisputed that she is ambulatory to the extent of being able to get out and work in her garden, for example. Nor is there any question that she is able to get out of bed and use the bathroom. The majority opinion makes a convincing argument that she is able to do these things only to a degree, but that is not the issue we should be addressing here. If it were, we should affirm as we reverse an agency’s determination under the law only if there is not any substantial evidence in support of it. Douglass v. Dynamic Enterprises, 315 Ark. 575, 869 S.W.2d 14 (1994).

The problem in this case is that we do not know the standards to be applied. The brief for DHS refers to 42 USCS § 1396 which provides criteria for determining when one is “functionally disabled,” but that term does not appear in the findings of fact or conclusions of law issued in Ms. Franklin’s case. We have been given no means of determining how that term relates to eligibility for the Elder Choices Program.

We can read in DHS Medical Services Policy 2076.1 that eligibility for the Elder Choices Program is dependent on eligibility of the applicant for intermediate long-term care (ILC). The majority appears to accept at face value paragraph 4. of DHS’s conclusions of law:

4. The ILC Guidelines, Degree of Incapacity Criteria for Medicaid Recipients in Nursing Homes, issued by OLTC, establishes parameters for the exercise of professional judgment in the determination of the appropriate level of care for a patient; in addition to mobility, feeding, and toileting, the following factors are considered: patient’s age, diagnosis, mental status, physician plan of care and recommendation for type of nursing care required, and the patient’s overall general condition.

State agencies are required to file their rules and regulations with the Secretary of State and the Arkansas State Library. Ark. Code Ann. § 25-15-204(d) (Repl. 1992). In neither the Supreme Court Library nor the State Library have we been able to find the ILC guidelines. Assuming we could find them, if all they provide is “parameters” for deciding whether a patient is entitled to ILC, and if the “parameters” consist only of a list of words, such as “mobility, feeding, and toileting,” I could not base a decision on such a regulation.

It is no wonder the DHS decision given Ms. Franklin stated only that her application “does not appear to meet criteria.” The agency would have had great difficulty stating any criteria.

In Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979), we discussed a vague statute concerning agency pursuits of terminations of parental rights and concluded it left “the discretion vested in judges so broad that arbitrary and discriminatory parental terminations are inevitable.” In Alcoholic Beverage Control Div. v. R.C. Edwards Dist. Co., 284 Ark. 336, 681 S.W.2d 356 (1984), we said the same of an agency regulation we concluded to be so vague as to bestow “arbitrary powers” on the agency.

Our focus in this case should not be on the sufficiency of the evidence but on the fact that the regulation on which DHS relied to deny Ms. Franklin’s application, assuming it is accurately quoted in the agency’s conclusions of law, is so vague that any decision based upon it must be arbitrary. A decision can be nothing but arbitrary when it is based upon no discernible standard.

This case should indeed be remanded to the Circuit Court for entry of orders consistent with our conclusion that the agency decision in Manda Franklin’s case was arbitrary.

The majority opinion is objectionable to me because, without an insistence that standards be set and followed, DHS will remain free to make decisions like the one now before us. While we probably will reverse any such decision, who knows how many of them will be made with respect to applicants who either will not or cannot appeal. It seems essential to me that we should reverse this case on the ground that it is an arbitrary decision due to the lack of a standard upon which Ms. Franklin, to say nothing of this or any other Court, could rely. I concur in the result only.

Dudley, J., joins in this concurrence.

Tom Glaze, Justice,

concurring. I agree with the majority court and write only to say that, in utilizing the criteria of mobility, feeding, and toileting required by DHS, Ms. Franklin met the appropriate level of care entitling her to the benefits available under the ElderChoices Program. It is my strong view that DHS was arbitrary and capricious in applying that standard or criteria to the facts in this case.

To qualify for the ElderChoices Program, the applicant must require the level of care provided in a nursing home, if Elder-Choices services were not available. The Program is to provide services that would permit an elderly person to stay in his or her own dwelling when that person would otherwise be placed in a nursing home. The Program was obviously intended for elderly people like Ms. Franklin.

After a hearing, DHS found that Ms. Franklin is (1) ambulatory with a cane or walker, (2) she maintains her bladder problem with a pad, and (3) she is continent of bowel. It also found her capable of using frozen meals. The evidence simply fails to support DHS’s findings.

The only testimony taken in this matter came from Ms. Franklin and her witnesses. That testimony was forwarded to a Walter H. O’Neal, M.D., Medical Director for Economic and Medical Services, who in turn sent a memo (not abstracted) to James Barnhill, Director of Appeals and Hearings. O’Neal stated Ms. Franklin did not meet the medical criteria and, based on Dr. O’Neal’s opinion, other appeals by Ms. Franklin were unsuccessful. Of course, O’Neal was not at the hearing, and I find his decision stating Ms. Franklin does not meet the medical necessity criteria for the ElderChoices waiver incredible. The following excerpts are indicative of the evidence showing that Ms. Franklin cannot feed herself and that she is incontinent.

Ms. Franklin:
The Senior Citizens Center brings me meals to last seven days. They bring them and put them in the refrigerator.
* * *
Sometimes I fix my food and sometimes it burns. It burns because I can’t see how high the blaze is.
Ms. Ludy:
Ms. Faulkner’s meals are cooked and brought into the Center and put on T.V. trays. That really isn’t sufficient for Ms. Franklin’s main meal. Sometimes she puts two meals together.
* * *
Ms. Franklin has glaucoma.
4= * *
It is impossible for her to see that well, which makes it dangerous for her to be trying to warm things up. She has no microwave oven so she has to use her regular range which lets the heat come up in her face.
* 4= 4:
Ms. Franklin:
I have trouble controlling my bladder and my bowels. Sometimes my kidneys won’t wait until I get to the bathroom. That happens pretty often. I wear a pad because of my kidneys, sometimes during the day. Sometimes my kidney just won’t act right and it will be down before you know it.

The following evidence clearly reveals that Ms. Franklin’s mobility is impossible without assistance because of her blindness and physical impairments.

Ms. Franklin:
I have arthritis. It affects me sometimes in my legs and all in the hips and goes up into my neck.
4= 4: 4=
I have been using [a cane] for a long time.
4: * 4=
I am able to get in and out of bed by myself. I have to sit on the side of the bed and then get myself together. Sometimes my legs are so stiff I can’t get up and go right on to the bathroom.
4: 4: *
I am completely dependent on others to take me places.
* * *
I use a walker around the house.
* * *
Ms. Ludy:
She (Ms. Franklin) does need a three-prong cane for being out in public, but she needs a walker, too.
Ms. Brooks (registered nurse):
Ms. Franklin has difficulty seeing, she is partially blind, she also has trouble with arthritis and she has to use a walking cane and also a walker to get around.

In addition to the foregoing testimony, the following medical evidence was introduced that not only corroborates Ms. Franklin’s serious and diminishing health problems, but also reflects her unquestioned need for home assistance for her to live.

Dr. Robert J. Wilkerson:
Ms. Franklin has severe medical problems including moderately severe osteoarthritis, hypertension, severe glaucoma which is severely affecting her vision and a history of a small cerebrovascular accident.
* * *
Dr. J. J. Magee:
Ms. Franklin is sufficiently visually handicapped to require additional home assistances . . . and certainly the amount of assistance should not be cut. Ms. Franklin fits the description of legal blindness and should be given as much home assistance as is available from DHS.

In conclusion, I point out that DHS offered no evidence to rebut the proof Ms. Franklin introduced, and DHS’s decision finding Ms. Franklin ineligible for assistance benefits under the ElderChoices Program totally ignores the evidence. If Ms. Franklin fails to meet the requirements of the program based on the evidence presented here, then no elderly person can. It makes me question how many of Arkansas’s elderly people have qualified for such benefits. Regardless, given a fair reading of the testimony and proof here, no substantial evidence exists to support DHS’s decision. In my view, DHS’s decision is wholly arbitrary and capricious and borders on the absurd.

Robert L. Brown, Justice,

dissenting. I agree with much of what is stated in Justice Newbern’s concurring opinion. The standard for determining eligibility for the Elder Choices program is elusive. We cannot determine what it is from the record, and it is clear that Ms. Franklin did not know what criteria were at issue at her hearing. Indeed, her emphasis for qualifying for the program was her legal blindness — not mobility, feeding, or toileting. DHS, on the other hand, decided eligibility based on the latter factors. Without knowing precisely what the standard is, it is difficult for me to decide whether it is vague or not.

Assuming a DHS standard does exist for eligibility in Elder Choices, Ms. Franklin should be apprised of that standard before any hearing and given the opportunity to meet the criteria. That clearly did not occur in this case at the first hearing.

Accordingly, I would reverse and remand to circuit court with directions that a new hearing be conducted. If no standard exists for determining eligibility or if the standard is impermissibly vague, then a conclusion that DHS is acting arbitrarily is inescapable.

       The hearing officer’s summary of evidence erroneously states that Ms. Franklin reported she had no bowel problems.


author: Robert L. Brown, Justice.

text:
    Laura Bushman GILL v. TRANSCRIPTIONS, INC. d/b/a Bushman Court Reporting
    94-381
    892 S.W.2d 258
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995

      Mitchell, Williams, Selig, Gates & Woodyard, by: Marshall S. Ney, for appellant.

      Lax, Vaughan, Pender & Evans, P.A., by: James R. Pender, for appellee.
   Robert L. Brown, Justice.

The issue in this appeal is whether the chancellor abused her discretion in awarding attorney’s fees to appellee Transcriptions, Inc. d/b/a Bushman Court Reporting, as the prevailing party in a breach of contract action. We disagree with the appellant, Laura Bushman Gill, that there was an abuse of discretion, and we affirm.

The crux of this case involves the use of the Bushman name for court reporting purposes. On February 20, 1990, Laura Bushman Gill sold her court reporting business named Bushman Court Reporting, Inc. to Transcriptions. As part of the Purchase and Sale Agreement, she agreed to sell her “right, title, and interest in and to the use of the trade name ‘Bushman Court Reporting, Inc.’ or variations thereof.” Laura Bushman Gill agreed that she would not compete with Transcriptions for two years, and Transcriptions commenced doing business as Bushman Court Reporting. The agreement further specified that should it become necessary to enforce any part of the Agreement, the prevailing party shall be entitled to collect from the losing party all reasonable attorney’s fees.

In September 1992, Gill decided to reenter the court reporting business. She sent out announcements about her new business under the name Laura Bushman Gill. She also listed her name in the business listings and in the yellow pages of the Southwestern Bell Telephone Directory. When the listings were printed in the 1993 telephone book, her business was listed as “Bushman, Laura Gill crt. reptr.” Her business was also listed in the telephone book under “Gill, Laura.” Both listings gave the same address and telephone number. Gill later had both listings changed to “Gill, Laura Bushman” for subsequent telephone books, but it is disputed as to when she first attempted to do this.

On April 7, 1993, Transcriptions filed a complaint against Gill, alleging consumer confusion over the Bushman name and breach of the Purchase and Sale Agreement by procuring listings in the business and yellow pages of the telephone book under the Bushman name. Transcriptions sought (1) a permanent injunction prohibiting the Defendant from future use of the Bushman Court Reporting trade name or variations thereof; (2) an injunction ordering permanent disconnection and no forwarding or changed number information of all telephone numbers listed under either “Laura Gill Bushman” or “Laura Bushman Gill”; (3) an injunction prohibiting renewal of the “Laura Gill Bushman” or “Laura Bushman Gill” court reporting listings in the Southwestern Bell Telephone Directory or any other directory; and (4) payment of attorney’s fees and costs pursuant to the Purchase and Sale Agreement.

Gill answered claiming that she had procured listings for her business only under the name “Laura Bushman Gill” and that the listing under the Laura Gill Bushman name was a mistake and negligence on the part of Southwestern Bell. She denied that any consumer confusion had occurred and asserted that Transcriptions had agreed that she could use the name Laura Bushman Gill.

After a hearing on the matter, the chancellor issued the following order with the following findings:

1. That the Defendant [Gill] sold the name “Bushman Court Reporting” or variations thereof to the Plaintiff [Transcriptions],
2. The last name Bushman is unique enough and well enough known to have acquired a secondary meaning in the Little Rock area so as to cause a possibility of confusion if the Defendant used the name Bushman.
3. That the Defendant is not entitled to use the name Laura Gill Bushman.
4. That the Defendant, Laura Bushman Gill, is ordered to immediately place a recording on the telephone number of 501-82.1-5671 or any other telephone numbers under which she is presently advertising her business in the telephone book as, “Bushman, Laura Gill,” which states:
You have reached 501-821-5671. If you are trying to reach Bushman Court Reporting the number is 501-372-5115. If you are trying to reach Laura Bushman Gill, the number is 501-228-6592.
5. Laura Bushman Gill will be responsible for maintaining the cost of the recording. This recording will terminate on January 30, 1994.
6. The Defendant did not sell her name, Laura Bushman Gill to the Plaintiff, because such name was not specifically referred to when she sold the name “Bushman Court Reporting” or any variations thereof.
7. That a person should ordinarily be free to use his/her name unless he/she has clearly sold the right not to.
8. That no determination has been made whether the listing, “Bushman, Laura Gill” was placed in the telephone book intentionally by the Defendant or by mistake.

Gill next petitioned the chancellor for attorney’s fees pursuant to the contract and Ark. Code Ann. § 16-22-308 (Repl. 1994), claiming that all issues in controversy were resolved in her favor. Transcriptions also petitioned the court for attorney’s fees under the contract and § 16-22-308. The chancellor in a letter ruling referred to both the Purchase and Sale Agreement and § 16-22-308 with regard to awarding an attorney’s fee to the prevailing party. She then found:

[w]hile it is true that plaintiff [Transcriptions] did not receive all the relief it sought, the court did enter an injunction against defendant’s use of the name Laura Gill Bushman. Mr. Ney argues that this issue wasn’t in controversy, because Ms. Gill was not attempting to use the name and stated that the advertising which appeared under that name resulted from an error by Southwestern Bell. The court did order Ms. Gill to place a recording directing calls to the plaintiff on the phone number that had been advertised under the name Laura Gill Bushman. I believe that the plaintiff did win on this issue and should be deemed a prevailing party.

The chancellor entered her order awarding Transcriptions attorney’s fees in the amount of $8,429.87 and denying Gill’s motion for attorney’s fees.

The sole issue on appeal is whether the chancellor erred in finding that Transcriptions was the prevailing party under Arkansas law in the action in chancery court and in granting Transcriptions’s petition for attorney’s fees. The general rule in Arkansas is well-settled that attorney’s fees are not awarded unless expressly provided for by statute or rule. Security Pacific Housing Services, Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); First National Bank v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992); Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). Arkansas law does provide for attorney’s fees for breach of contract. Ark. Code Ann. § 16-22-308 (Repl. 1994).

While § 16-22-308 allows for the award of attorney’s fees for breach of contract, the decision whether to award a fee in such cases is a decision within the trial court’s discretion. P.A.M. Transport, Inc. v. Arkansas Blue Cross and Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993); Security Pacific Housing Services, Inc. v. Friddle, supra. We have further stated that due to the trial court’s intimate acquaintance with the record and the quality of service rendered, we will usually defer to the trial court’s superior perspective in awarding attorney’s fees and reverse an award only when there has been an abuse of discretion. Security Pacific Housing Services, Inc. v. Friddle, supra; Chrisco Sun Industries, Inc., supra.

The Arkansas Court of Appeals has addressed the issue of who is the prevailing party in litigation under § 16-22-308. See ERC Mortg. Group, Inc. v. Luper, 32 Ark. App. 19, 795 S.W.2d 362 (1990). In Luper, the Court of Appeals held that the plaintiff was the prevailing party under the statute, although six of the seven counts in his complaint were dismissed at the close of his case-in-chief. The court quoted with approval from a Missouri case:

[t]here can be but one prevailing party in an action at law for the recovery of a money judgment. It transpires frequently that in the verdict each party wins on some of the issues and as to such issues he prevails, but the party in whose favor the verdict compels a judgment is the prevailing party. Each side may score but the one with the most points at the end of the contest is the winner, and .. . is entitled to recover his costs.

32 Ark. App. at 19, 795 S.W.2d at 364, 365, quoting Ozias v. Haley, 125 S.W. 556, 557 (Mo. App. 1910).

In the case before us, Gill does not appeal the chancellor’s order granting injunctive relief to Transcriptions. Rather, she contends that she is the prevailing party because, according to her theory, none of the aforementioned items in the order on which Transcriptions prevailed were actually in controversy. She argues that she never intended to use the name Laura Gill Bushman and conceded that the name was erroneously listed. She further emphasizes that the chancellor declined to find that she had placed the listing with Southwestern Bell either intentionally or by mistake. And, lastly, she urges that she prevailed on the issue of using her own name in business, Laura Bushman Gill.

Though Gill is correct that the chancellor never made a finding that the Southwestern Bell listing of Laura Gill Bushman was intentional, it is clear from the chancellor’s order that the chancellor found that the Purchase and Sale Agreement was breached by use of that name. As a result, an injunction issued in favor of Transcriptions. Gill was further required, due to the breach, to install a recording on her “Laura Gill Bushman” telephone line advising errant customers of Bushman Court Reporting’s telephone number and her own telephone number. Moreover, we consider it important that Gill never confessed judgment regarding any claim for injunctive relief during the litigation; nor did she acknowledge in any respect that Transcriptions was entitled to any of the injunctions requested. Finally, the idea for the telephone recording to clear up customer confusion following the breach came from counsel for Transcriptions during closing argument. There was no statement by Gill prior to the chancellor’s order that she agreed with the recording as a means of remedying the breach.

It is true that the chancellor permitted Gill to continue to use her own name in business. Yet, the chancellor granted injunctive relief to Transcriptions with regard to the Laura Gill Bushman name and required that a clarifying recording be installed at Gill’s expense, which we conclude is dispositive of the issue. We hold that the chancellor did not abuse her discretion in finding Transcriptions to be the prevailing party.

Affirmed.

       There is no explanation in the record as to the origin of the new number for Laura Bushman Gill.


author: Andree Layton Roaf, Justice.

text:
    Steve HENSON, et al. v. FLEET MORTGAGE COMPANY
    94-117
    892 S.W.2d 250
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995

      Walters Law Firm, P.A., for appellant.

      Wilson & Associates, P.A., by: Robert C. McKinney, for appellant.
   Andree Layton Roaf, Justice.

This case involves the interpretation of two provisions of the Statutory Foreclosure Act of 1987, Ark. Code Ann. §§ 18-50-101 -18-50-116 (Supp. 1993). Appellants Steve and Debra Henson (“the Hensons”) appeal the denial of their petition to set aside the nonjudicial foreclosure sale of their home. The Hensons contend appellee Fleet Mortgage Corporation did not comply with the requirements of Ark. Code Ann. §§ 18-50-103 and 18-50-104 (Supp. 1993). We find the chancellor erred and reverse and remand.

Pursuant to constitutional and statutory authority, Sebastian County, Arkansas, has two separate districts and maintains two county seats in Greenwood and Fort Smith. The Hensons executed a Deed of Trust and Deed of Trust Note in favor of First Western Loan Company which was secured by certain real property (“the Hensons’ home”) located within the Greenwood District of Sebastian County, Arkansas. Appellee Fleet Mortgage Corporation is the holder of the Deed of Trust and Deed of Trust Note through assignment from First Western Loan Company. Both documents were filed for record in the Greenwood District of Sebastian County.

On April 3, 1992, Fleet Mortgage filed a “Substitution of Trustee” in the Fort Smith District of Sebastian County. Wilson & Associates, P.A., was substituted as trustee of the Deed of Trust. On April 13, 1992, a “Trustee’s Notice of Default and Intention to Sell” was filed in the Greenwood District of Sebastian County. The notice of default was filed by Wilson & Associates, P.A., and reflected that the property would be sold at the “Sebastian County Courthouse.” On June 23, 1992, the property was sold at the Sebastian County Courthouse in Greenwood, Arkansas, and Fleet Mortgage purchased the property. The “Trustee’s Deed by Substituted Trustee” which conveyed the property to Fleet Mortgage was signed by an attorney with Wilson & Associates, P.A.

On May 12, 1993, the Hensons filed a petition in the Chancery Court of Sebastian County, Greenwood District, to set aside the statutory foreclosure sale. The chancellor found that the alleged irregularities in the sale did not harm or prejudice the rights of the Hensons sufficiently to set aside the sale and denied the petition. On appeal, the Hensons contend the trial court erred in finding that the foreclosure sale was not rendered void by appellee’s failure to file a substitution of trustee in the Greenwood District of Sebastian County and its failure'to accurately identify the place of the sale. We agree with the Hensons that the statutory foreclosure sale is void.

Fleet Mortgage’s substitution of trustee was filed in the Fort Smith District of Sebastian County. Arkansas Code Ann. § 18-50-103 (Supp. 1993) provides in part:

A trastee or mortgagee, as the case may be, may not exercise a power of sale unless:
(1) The deed of trust or mortgage, any assignments of the mortgage by the mortgagee or of the deed of trust by the trustee or the beneficiary, and any substitution of trustee are filed for record with the recorder of the county in which the trust property is situated; . . .

(Emphasis supplied.) Although Fleet Mortgage filed the substitution of trustee in Sebastian County, the property in question is located in the Greenwood District rather than the Fort Smith District. Fleet Mortgage never filed a substitution of trustee in the Greenwood District of Sebastian County.

Arkansas Code Ann. § 14-15-401 (1987) provides:

There shall be established in each county in this state an office to be styled the recorder’s office, which shall be kept at the seat of justice of each county. The recorder shall duly attend to the duties of such office and who (sic) shall provide and keep in his office well-bound books in which he shall record, in a fair and legible hand, all instruments of writing authorized or required to be recorded in the manner provided.

(Emphasis supplied.) Although this statute specifies the recorder’s office shall be kept at the seat of justice, Ark. Const, art. 13, § 5 provides:

Sebastian County may have two districts and two county seats, at which county, probate and circuit courts shall be held as may be provided by law, each district paying its own expenses.

Further, Ark. Code Ann. § 14-14-202(e) (1987) provides:

Sebastian County may have two (2) districts and two (2) county seats, at which county, probate, and circuit courts shall be held as may be provided by law, each district paying its own expenses. However, nothing in this section shall be construed as requiring Sebastian County to maintain two (2) districts or two (2) county seats, nor construed as authorizing the establishment of two (2) county quorum courts and two (2) county courts.

In accordance, Sebastian County has the Fort Smith District and the Greenwood District with a county courthouse in each location. See Robinson v. Sebastian Cty. Quorum Court, 258 Ark. 798, 528 S.W.2d 930 (1975).

Arkansas Code Ann. § 18-50-103 (Supp. 1993) provides the substitution of trustee must be filed with “the recorder of the county in which the trust property is situated.” (Emphasis supplied.) However, Sebastian County has two districts. Thus, we must determine whether the districts of Sebastian County are in effect separate counties, so far as the requirements of § 18-50-103 are involved.

The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994); Mountain Home Sch. Dist. v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993). The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the legislature. McCoy, supra. In interpreting a statute and attempting to construe legislative intent, the appellate court looks to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that throw light on the subject. McCoy, supra; Gritts v. State, 315 Ark. 1, 864 S.W.2d 859 (1993).

In Scaramuzza v. McLeod, Commissioner of Revenues, 207 Ark. 855, 183 S.W.2d 55 (1944), this Court found each district of Sebastian County was authorized to hold separate elections to determine whether or not license should be granted for the manufacture or sale of liquor within such district. We noted:

Initiated Act No. 1, pursuant to which the election was held, makes no provision for holding elections by districts of a county, but directs that the election “Be held in such County, Township, Municipality, Ward or Precinct to be affected thereby.”

In accordance, we held the districts of Sebastian County “are in effect separate counties, so far as the ‘local concerns’ of that county are involved.”

Similarly, in Jewett v. Norris, 170 Ark. 71, 278 S.W. 652 (1926), this Court found the two districts should be treated “as if they were in fact separate counties, so far as their fiscal affairs are concerned.” We concluded each district was authorized to issue bonds to pay its outstanding indebtedness. However, in Reeves v. Been, Treasurer, 217 Ark. 67, 228 S.W.2d 609 (1950), this Court concluded that it is not mandatory under the Arkansas Constitution to treat the two districts as wholly separate counties. We found Sebastian County was to be treated as a composite unit of government for purposes of Act 327 of 1941 as amended which related to the County Board of Education and the County School Supervisor.

In the instant case, we find the more sensible approach is to treat the two districts as separate counties, so far as the requirements of § 18-50-103 are involved. If documents such as the mortgage, the assignment of the mortgage, and the substitution of trustee are filed in separate districts, neither location would have complete real property records, and the records in both districts would need to be searched. We have found that a literal application which leads to absurd consequences should be rejected where an alternative interpretation effects the statute’s purpose. Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985). We find the General Assembly intended for all documents relating to the same piece of real property be filed in the same location. Consequently, we find that under the circumstances presented the General Assembly intended such documents to be filed with the recorder in the district which the property is situated.

As to the appellants’ second point, Fleet Mortgage’s notice of default reflected that the property would be sold at the “main door of the Sebastian County Courthouse.” The notice was filed in the Greenwood District of Sebastian County, and the Hensons’ home was sold at the Sebastian County Courthouse in Greenwood. The Hensons, however, contend the notice provided was defective in that it failed to specify the particular district and place at which the sale was to occur.

Under Ark. Code Ann. § 18-50-103 (Supp. 1993) the trustee may not exercise a power of sale unless the notice of default and intention to sell contains the information required by § 18-50-104. Arkansas Code Ann. § 18-50-104 (Supp. 1993) provides:

(a) The mortgagee’s or trustee’s notice of default and intention to sell shall set forth: . . .
(7) The time, date, and place of sale.

(Emphasis supplied.) Further, Ark. Code Ann. § 18-50-107 (Supp. 1993), Manner of sale, provides that the sale shall “[b]e held either at the premises of the trust property or at the front door of the county courthouse of the county in which the trust property is situated.” In the instant case, the notice did not specify the town or even the district in which the courthouse was located. Further, in its brief, the appellee admits there are two Sebastian County Courthouses.

The appellee simply submits that there is no requirement in the Statutory Foreclosure Act that the trustee exercising the power of sale must designate a particular district. However, we note that § 18-50-104 requires the notice to set forth the “time, date, and place of sale!' (Emphasis supplied.) Because of the two districts and two courthouses in Sebastian County, we find the phrase “Sebastian County Courthouse” encompasses two distinct locations for the “place of sale.” Since the notice in essence specified two possible locations for the sale, we hold Fleet Mortgage failed to set forth the “place of sale.”

Although the trial court found that the alleged irregularities in the sale did not harm or prejudice the rights of the Hensons sufficiently to set aside the sale, we find the sale should have been set aside. Any statute which is in derogation of or at variance with the common law must be strictly construed. Simmons First Nat’l Bank v. Abbott, 288 Ark. 304, 705 S.W.2d 3 (1986). Further, § 18-50-103 provides the trustee may not exercise a power of sale unless the specified requirements are satisfied.

In Craig v. Meriwether, 84 Ark. 298, 105 S.W. 585 (1907), this Court held that a sale under the power in the mortgage without complying with the relevant statutes was invalid. With regard to Kirby’s Digest, §§ 5416-5417, the Court wrote:

The statute imposes conditions upon the exercise of the power of sale contained in a mortgage or deed of trust, viz., that the property shall first be appraised, and that at the sale it shall bring two-thirds of the appraised values. It impliedly commands the mortgagee or trustee not to proceed with the sale until these conditions are performed, and no valid sale can be made until they are performed.

The Court noted that the mortgagee, when the defect in the sale is discovered, can have another sale conducted, either under the power of sale or by suit in equity. See also Kelley v. Graham, 70 Ark. 490, 69 S.W. 551 (1902) (where this Court noted a sale was void because the justice of the peace who appointed the appraisers, as well as the appraisers who appraised the property, were not from the county in which the land was located as required by statute); Stallings v. Thomas, 55 Ark. 326, 18 S.W. 184 (1892)(where sale was void because of an unauthorized substitution of trustee).

Reversed and remanded.'


author: Andree Layton Roaf, Justice. Jack Holt, Jr., Chief Justice, Tom Glaze, Justice,

text:
    Tytus HOUSTON v. STATE of Arkansas
    CR 94-989
    892 S.W.2d 274
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

The appellant, Tytus Houston, was convicted of first degree escape, two counts of theft of property, aggravated robbery and aggravated assault for his actions during an escape from custody of a sheriff’s deputy. He received sentences totalling forty-one years, to be served consecutively. On appeal, he contends that there was insufficient evidence to support the conviction for aggravated robbery. We affirm the trial court without reaching the merits of this issue because it was not properly preserved for appeal.

Houston escaped from the custody of a Pulaski County deputy sheriff, who had transported him in a van from the county jail to a medical clinic. Upon arrival at the clinic, Houston overpowered the deputy, took his service revolver, and asked him to turn over the keys to his handcuffs and leg irons. He then walked a few blocks to an apartment complex where he approached Otis Lewis, who was sitting in his parked truck. Houston motioned for Lewis to roll down his window and then told him to get out of the truck. After exiting the truck, Lewis noticed that Houston had a gun in his right hand and was wearing an orange jumpsuit from the county jail. Lewis testified that Houston held the gun down at his side and never pointed it at him but that, out of fear that he could be shot, he told Houston to “just have at it.” Houston then got into the truck and drove off. He was apprehended a short time later by a police officer who was the victim of the aggravated assault.

At trial, at the conclusion of the state’s case, Houston’s attorney moved for a directed verdict on all five counts, based on insufficiency of the evidence. The motion was denied. Houston put on no evidence, and the case went to the jury. Houston was found guilty on all counts, including the count of aggravated robbery for the taking of the truck from Lewis.

On appeal, Houston argues that the evidence was insufficient only as to one element of the offense of aggravated robbery. The statute defining the offense, Ark. Code Ann. § 5-12-103(a)(1), provides:

(a) A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he: (1) Is armed with a deadly weapon or represents by word or conduct that he is so armed;

Robbery is defined under Ark. Code Ann. § 5-12-102:

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

Houston argues that the trial court erred in denying his motion for a directed verdict because there was insufficient evidence that he employed or threatened to immediately employ physical force upon Lewis in the taking of the truck and thus this element of the crime of aggravated robbery was not proven by the state. Although Houston timely moved for a directed verdict at the close of the state’s case, we decline to address his argument because his motion was not sufficiently specific to preserve the argument for appeal. Houston’s attorney asked for a directed verdict “as to each of the five counts here ... I would specifically state as to all five counts they have not proved sufficiency of the evidence.”

We have recently declared in Walker v. State, 318 Ark 109, 883 S.W.2d 843 (1994), that we were drawing a “bright line” in holding that a motion for directed verdict in a criminal case must state the specific ground of the motion. Houston’s failure to specifically state the element of the crime of aggravated robbery which was the basis for his sufficiency motion operated as a waiver of the issue. Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994); Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994).

Here we have the same situation addressed in Walker — a directed verdict motion which alleges insufficient evidence to support a verdict on the offense charged, and on appeal an argument challenging only one element of the offense. Under Walker, the motion below was inadequate to preserve the argument on appeal.

The trial court did not err in refusing to grant the motion, and we affirm on that basis without reaching the merits of the issue.

Affirmed.

Holt, C.J., Glaze and Brown, JJ., concur.

Jack Holt, Jr., Chief Justice,

concurring. The appellant, Tytus Houston, questions the sufficiency of the evidence to support his conviction of aggravated robbery. While the majority of this court holds that this issue was not properly preserved for appeal, it appears that defense counsel may have been cut short in making his motions. In Walker v. State, 318 Ark. 109, 883 S.W.2d 843 (1994), we rightfully drew a bright line in holding that a motion for directed verdict in a criminal case must state the specific grounds for the motion. The record of this case, however, plainly reveals that Houston’s counsel made a vain attempt to provide specifics to the trial court, only to be hurried along in his presentation. Counsel was obviously restricted in his attempt to explain his position. The following exchange speaks for itself:

MR. DEVINE: Your Honor, can we approach real quick?
THE COURT: Sure. Yeah.

(BENCH CONFERENCE:)

MR. DEVINE: I would renew all motions that we have previous made —
THE COURT: Sure.
MR. DEVINE: — and denied by the Court.
THE COURT: Same ruling.
MR. DEVINE: I would move for a directed verdict as to each of the five counts here, specific —
THE COURT: Denied.
MR. DEVINE: — each of them, generally and specifically. Since a later case of mine, they say that I didn’t make it generally and as to the sufficiency of the evidence, I would specifically state as to . all five counts they have not proved sufficiency of the evidence —
THE COURT: In each specific —
MR. DEVINE: Yes.
THE COURT: — each five specific counts?
MR. DEVINE: Yes.
THE COURT: We’ll show that motion and it’s denied.
MR. DEVINE: Okay. Your Honor, I have talked with my client and we have been over it and it’s his feeling that we will not put on any testimony.
THE COURT: Okay. There will be no testimony.
MR. DEVINE: When the Court asks if we would rest, then we would renew all motions at that time for appellate purposes and —
THE COURT: We’ll show you rest without putting on testimony, all motions renewed and the same rulings on them. Okay.

(IN OPEN COURT:)

THE COURT: We’re through.
MR. DEVINE: Your Honor, we would rest.
THE COURT: All right. The defense rests.

(DEFENSE RESTED AND MOTIONS RENEWED.)

In sum, I think that the trial court tended to restrict counsel’s argument in support of his motions and to frustrate his attempt to fully and completely explain his position. I write to emphasize, particularly in the wake of Walker v. State, supra, that counsel be provided full opportunity to explain the specifics of their motions.

Brown, J., joins in this concurrence.

Tom Glaze, Justice,

concurring. The concurring opinion of justices Holt and Brown is far afield in stating the trial court frustrated defense counsel’s effort in presenting his directed verdict motion. I would quickly point out that defense counsel, himself, makes no argument that the trial court somehow restricted him from making his case. The colloquy between the trial court and counsel speaks for itself. The relevant part of what occurred follows:

DEFENSE COUNSEL: Your Honor, can we approach real quick?
THE COURT: Sure. Yeah.
DEFENSE COUNSEL: I would renew all motions that we have previous made —
THE COURT: Sure.
DEFENSE COUNSEL: — and denied by the Court.
THE COURT: Same ruling.
DEFENSE COUNSEL: I would move for a directed verdict as to each of the five counts here, specific —
THE COURT: Denied.
DEFENSE COUNSEL: — each of them, generally and specifically. Since a later case of mine, they say that I didn’t make it generally and as to the sufficiency of the evidence, I would specifically state as to all five counts they have not proved sufficiency of the evidence
THE COURT: In each specific
DEFENSE COUNSEL: Yes.
THE COURT: — each five specific counts?
DEFENSE COUNSEL: Yes.
THE COURT: We’ll show that motion and it’s denied.
DEFENSE COUNSEL: Okay. Your Honor, I have talked with my client and we have been over it and it’s his feeling that we will not put on any testimony. (Emphasis added.)

From the above, the state had completed its case, and defense counsel wished to preserve his record by renewing prior motions. Apparently, counsel did not wish to renew his motions in chambers, but he said, “[C]an we approach (the bench) real quick?” While the trial court had previously ruled on counsel’s motion, counsel and the trial court were obliged to “run through” those same motions again so as to preserve the record under our court’s mandates.

Defense counsel’s comments suggest that, in a different and prior case, he had had problems with complying with this court’s requirement that specific grounds must be made when presenting a directed verdict motion. Thus, he asked that his motion be considered as to each count against the defendant. While counsel failed to single out the elements he believed were missed by the state’s proof, he certainly had every opportunity to do so when presenting his motion. There was the typical exchange between counsel and the trial court but nothing to indicate the trial court restricted or frustrated counsel. In fact the trial court ruled and then backed up to be sure that it understood counsel’s argument or grounds. After being assured, the trial court rendered a second ruling, denying counsel’s motion. In any event, I suspect counsel offered no further grounds or argument in support of a directed verdict motion because the motion was meritless. Although concurring justices Holt and Brown specifically fail to say so, they, too, must agree that there was no merit to Houston’s directed verdict motion, since they concur with, and presumably affirm, the majority court’s decision. Otherwise, they would be dissenting, since they conclude the trial court erred by preventing defense counsel from preserving his record.

I realize this court gets frustrated at times when a record is insufficient and requires the court to affirm on procedural grounds. And certainly, I would in no way condone a trial court’s conduct that would frustrate a counsel’s ability to preserve a record. But, this is not that situation. Experienced and seasoned counsel was involved in this matter, and he makes no suggestion that he had problems with the trial court. It is not this court’s role to read something into the record that is not evident.


author: Per Curiam.

text:
    Ivan Floyd PIPKIN v. STATE of Arkansas
    CR 94-515
    892 S.W.2d 242
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995
   Per Curiam.

On May 17, 1994, Ivan Floyd Pipkin appealed his conviction in the Stone County Circuit Court, Case No. 91-36, and lodged the record of trial in this court. Mr. Pipkin’s attorney, A. Wayne Davis, Little Rock, Arkansas, has yet to file the abstract and brief in this case, although he has been cited in contempt of this court for failure to do so and is subject to further proceedings in contempt.

In order to finalize Mr. Pipkin’s appeal without further delay, the court appoints Al Schay, Little Rock, Arkansas, as additional counsel for the purposes of preparing and filing the abstract and brief in Mr. Pipkin’s appeal. A. Wayne Davis shall continue as one of the attorneys of record for Mr. Pipkin until relieved by the court.

Glaze, J., not participating.