author: Jack Holt, Jr., Chief Justice.

text:
    Thomas DELPH v. STATE of Arkansas
    CR 89-107
    780 S.W.2d 527
    Supreme Court of Arkansas
    Opinion delivered December 4, 1989

      Appellant, Pro Se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On December 11,1986, the appellant, Thomas Delph, was charged by information with two counts of aggravated robbery, one count of theft of property, and one count of possession of a firearm by a convicted felon. Four days later, Delph was charged by information with one count of aggravated robbery and habitual offender status.

Delph was committed to the Arkansas State Hospital on January 15, 1987, for psychiatric treatment because it was determined that he was mentally ill and unable to proceed in aid of his defense. Delph was released from the Arkansas State Hospital on January 26, 1988,, and transferred to the Pulaski County Jail. On February 8, 1988, Delph entered into a negotiated plea agreement; he was subsequently convicted on February 9, 1988, of two counts of aggravated robbery and one count of theft of property, and received concurrent sentences of ten years imprisonment in the Arkansas Department of Correction for each offense. Delph received 75 days for jail time credit.

Almost a year later, on February 2, 1989, Delph filed, for both of his underlying cases, a “motion for credit for time spent in custody.” He claimed that he was entitled to an additional 376 days of jail time credit for the time he spent in the Arkansas State Hospital. The trial court denied the motion on February 9,1989, and found that Delph had agreed at the time of the plea agreement that he was entitled only to 75 days jail time credit. The trial court also found that he had apparently waived any further credit and that he was being held at the time for other charges in other courts. The February 9,1989, order was filed in both cases.

A second order was filed in both cases on April 3, 1989, which found that the trial court lost “jurisdiction after one hundred twenty (120) days under Ark. Code Ann. § 16-90-111 [(Supp. 1989)]”.

Delph contends that the trial court erred in its denial of his “motion for credit for additional time spent in custody” while awaiting trial and relies solely on Ark. Code Ann. § 5-4-404 (1987) in support of his contention.

Section 5-4-404 provides that “[i]f a defendant is held in custody for conduct that results in a sentence to imprisonment, the court shall credit the time spent in custody against the sentence.”

We need not address the merits of Delph’s argument because the trial court was correct in denying his motion on the basis of section 16-90-111, which provides as follows:

(a) Any circuit court, upon receipt of petition by the aggrieved party for relief and after the notice of the relief has been served on the prosecuting attorney, may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided in this section for the reduction of sentence.
(b) (1) The court may reduce a sentence within one hundred twenty (120) days after the sentence is imposed

We have held that an “illegal sentence” means a sentence illegal on its face; where a defendant seeks relief from a sentence that is legal on its face, he must petition the court within 120 days of sentencing. Fritts v. State, 298 Ark. 533, 768 S.W.2d 541 (1989); Abdullah v. State, 290 Ark. 537, 720 S.W.2d 313 (1986).

In this case, Delph entered into a plea agreement in which he pled guilty to three of the offenses with which he was charged. In return, the remaining charges were dropped. Delph was given concurrent ten year sentences with 75 days jail time credit. We note, in addition, that the sentences given Delph were clearly within the maximum prescribed by law and are not illegal on their face.

Delph’s argument, at most, is that his sentences were imposed in an illegal manner. Delph filed his “motion for credit” 358 days after the imposition of his sentence. Obviously, the trial court was correct in denying the motion, as it was not filed in conformance with the 120 day filing requirement.

We affirm.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Melvyn L. BELL and the Clary Companies, Inc. v. APACHE SUPPLY COMPANY, d/b/a Moore Supply Company, Inc.
    89-219
    780 S.W.2d 529
    Supreme Court of Arkansas
    Opinion delivered December 4, 1989

      Catlett, Stubblefield, Bonds & Fleming, by: Barbara P. Bonds, for appellants.

      Jack, Lyon & Jones, P.A., by: John W. Fink, for appellee.
   Darrell Hickman, Justice.

The question in this case is whether a tenant is the agent of the owner of real property for the purpose of receiving notice that a materialman’s lien will be asserted. The trial court held in this case that notice was properly given by the lien claimant to the tenant as agent of the owner. We reverse and remand.

The facts are undisputed. The appellants are owners of Little Rock city lots and a building which was leased to J. M. Mulligan’s Grille in 1987. The lease was executed on behalf of Mulligan’s by Michael Chandlar, its president. The lease provided that the tenant should purchase and install various items for the improvement of the building’s interior. The appellants provided the tenant with an interior finish and acquisition allowance of $420,000 to be advanced on a monthly basis.

In the course of making these improvements, Chandlar contracted with A & D Design, a general contractor. A & D subcontracted the plumbing work to Ernie Loftis who, in turn, purchased materials from the appellee in the amount of $6,232.51. The appellee was never paid. On December 16,1987, the appellee filed notice that it would claim a lien not only on the improvements, but also on the lots and the building. The notice was directed to Michael Chandlar. No notice was served on the appellants.

On July 1, 1988, the appellee filed suit seeking judgment against Ernie Loftis in the amount of $6,232.51. The complaint requested that, if the amount remained unpaid, the appellee be allowed to enforce its lien against the premises. The appellants filed a motion to dismiss and a motion for summary judgment, claiming that Chandlar was not the agent of the owners for the purpose of receiving notice of intent to file a lien and therefore the lien was not enforceable. The trial court denied the motions and ultimately awarded the judgment against Loftis and granted the appellee a lien on the property.

In denying the motions, the judge relied on the case of Whitcomb v. Gans, 90 Ark. 469, 119 S.W. 676 (1909). Indeed the facts of Gans are somewhat similar to those in this case. The landlord leased a house to Mrs. Dunklin and their agreement required Mrs. Dunklin to make improvements on the house. The landlord would then reimburse her for these improvements in monthly payments. Mrs. Dunklin purchased lumber from Whit-comb and did not pay for it. Whitcomb asserted a lien against the house and property. The question on appeal was whether a materialman who had supplied materials to a tenant could assert a lien against a landlord’s fee simple interest. We said the following:

Where a tenant contracts with his landlord to build or repair buildings for compensation to be made by the landlord. . .the tenant is the landlord’s agent, building or repairing for him at his ultimate cost, and the fee is liable to the lien. . . .

It is clear under Gans that the landowner’s property in this case was subject to a lien. But the question we must answer is whether the landowners received proper notice of the lien. A claimant is not entitled to a lien if proper notice is not given. Hirsch v. Farris, 174 Ark. 1040, 298 S.W. 487 (1927).

Ark. Code Ann. § 18-44-114(a) (1987) provides as follows:

Every person, except the original contractor, who may wish to avail himself of the benefit of the provisions of this subchapter shall give ten (10) days’ notice before the filing of the lien, as required by § 18-44-117(a), to the owner, owners, or agent, or either of them, that he holds a claim against the building or improvement, setting forth the amount and from whom it is due.

Materialmen’s liens are creatures of the statutes creating them and must be perfected and enforced according to statutory provisions. Ashdown Hardware Co. v. Hughes, 223 Ark. 541, 267 S.W.2d 294 (1954). The notice provision in the statute is for the benefit and protection of the owner. Ellis v. Fayetteville Lumber & Cement Co., 195 Ark. 385, 112 S.W.2d 613 (1938). In Shannon Supply Co. v. Avey, 240 Ark. 997, 403 S.W.2d 87 (1966), we addressed the question of what constitutes an agent under § 18-44-114(a):

An agent to whom notice must be given, under the statute, must be such agent as the owner has expressly vested with authority to receive such notice, or referred to as the one to whom such notice might be given, or be an agent of general authority, in such management or directing situation with reference to the construction of the building as would constitute him the alter ego of the owner.

We have also said that the agent must be such agent as would be required to report the notice to his principal. Ellis, supra.

A person can be an agent for one purpose, but not for another. In Shannon Supply v. Avey, supra, a contractor built a home for the Aveys, who were owners of a furniture store. Shannon supplied materials to the contractor and was not paid. Shannon attempted to assert a lien and filed notice of its intention to do so. Since the Aveys were out of state, Shannon served the notice on Mr. Avey’s brother-in-law, who had been left in charge of the furniture store. We found the brother-in-law’s agency was not of such a nature as to bind the Aveys when he was served with notice. Similarly, in this case, the fact that the tenant was the owners’ agent for the purpose of procuring materials does not reasonably mean he was an agent for the purpose of receiving notice.

It is also noteworthy that the lease contract in this case contained the following provision:

Nothing herein contained shall be deemed or construed by the parties hereto, nor any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of the rent, nor any other provision contained herein, nor any acts of the parties hereto, shall be deemed to create any relationship between the parties hereto other than the relationship of landlord and tenant.

When the law is applied to the facts in this case, we see that (1) the notice requirement is for the benefit and protection of the owner, (2) the tenant had no express or apparent authority for the purpose of receiving notice, (3) nothing in the relationship between the landlords and tenant would lead to the tenant being considered the alter ego of the owners, and (4) there was no requirement that the tenant report any notice to the owners.

We conclude that the court should not have found that the tenant was the agent for the purpose of receiving notice of an intention to file a lien against the landowners’ property.

Reversed and remanded.


author: John I. Purtle, Justice.

text:
    David COURTNEY v. FIRST NATIONAL BANK of Eastern Arkansas
    89-248
    780 S.W.2d 536
    Supreme Court of Arkansas
    Opinion delivered December 4, 1989

      James W. Smith, for appellant.

      John D. Bridgforth, for appellee.
   John I. Purtle, Justice.

The circuit court dismissed the appellant’s counterclaim because it was not filed within the time permitted by the statute of limitations. The sole argument on appeal is that the court erroneously applied the three-year statute of limitations, Ark. Code Ann. § 16-56-105 (1987), to this cause of action. We hold that the trial court correctly applied the three-year statute.

This action commenced on December 8, 1987, when the appellee, First National Bank of Eastern Arkansas, filed a foreclosure suit against Rodney, Incorporated, and the appellant, David Courtney. The appellant filed an answer and a counterclaim against the appellee, alleging negligence in the issuance of a certificate of deposit. The appellee issued a certificate of deposit on October 13, 1982, in the amount of $10,000, in the names of Richard or David Courtney. Richard Courtney, the appellant’s father, died intestate on April 21, 1986.

A dispute arose over the claim of ownership to the certificate of deposit. David Courtney claimed that it was his property and that it should be payable to him upon his father’s death. The probate court, however, held that the certificate of deposit belonged to the estate of Richard Courtney. The decision of the probate court was appealed to this court and was affirmed in Courtney v. Courtney, 296 Ark. 91, 752 S.W.2d 40 (1988).

The counterclaim in the foreclosure action was filed on January 19, 1988. The appellee filed an amended answer to the counterclaim, alleging the affirmative defense of the three-year statute of limitations set forth in Ark. Code Ann. § 16-56-105.

The counterclaim was transferred from chancery to circuit court for trial. The circuit court found as a matter of law that the counterclaim was based on the tort of negligence, which arose from the bank’s failure on October 13,1982, to obtain a separate writing concerning the payable-on-death clause of the certificate of deposit. Therefore, the court held, the three-year statute of limitations had expired before the counterclaim was filed.

The sole issue in this appeal is whether the trial court erred in holding that the three-year statute applied. We held in Hunter v. Connelly, 247 Ark. 486, 446 S.W.2d 654 (1969), that a cause of action accrues the moment the right to commence an action comes into existence, and the statute of limitations commences to run from that time. See also Holloway v. Morris, 182 Ark. 1096, 34 S.W.2d 750 (1931), where we stated: “The statute of limitations begins to run when there is a complete and present cause of action.”

The appellant relies on the case of The Corning Bank v. Rice, 278 Ark. 295, 645 S.W.2d 675 (1983). There is, however, a distinction between Corning Bank and the present case. In Corning Bank, Melvin Rice owned several certificates of deposit payable on death to his brother, Marlin Rice. The controversy arose between Marlin, the third party beneficiary, and Bobby Rice, the administrator of Melvin’s estate. In that case we quoted with approval the words of the trial court:

“In this instance, Melvin Rice clearly intended that at his death his brother was to have the proceeds and the bank by the testimony of its own employees and former employees admits that it attempted to comply with his wishes. Unfortunately, the bank simply did not comply with the provisions of Section 67-552, Arkansas Statutes Annotated, and it is not incumbent upon the deposit to insist that the provisions of that statute are complied with because the average layman has absolutely no knowledge of the statute.”

Clearly, the negligent acts complained of in Corning Bank occurred after the death of the purchaser of the certificates of deposit. In the present case, when Richard and David Courtney purchased the certificates of deposit, the instruments were made payable to Richard or David Courtney. The father and son did not sign a separate document providing for the proceeds to go to David at Richard’s death or vice versa.

The appellant’s brief contends that his cause of action did not accrue until this court affirmed the decision of the probate court. Our opinion was not issued until June 20, 1988. The counterclaim, which was filed on January 19, 1988, alleged that on October 13, 1982, David Courtney renewed a certificate of deposit in the amount of $8,000, along with $2,000 in cash, and secured a certificate of deposit in the amount of $10,000 in the name of Richard or David Courtney. According to the counterclaim, at that time “David Courtney informed said defendant bank that said certificate of deposit should be a joint tenancy with right of survivorship. Said bank negligently failed to inform counterclaimant Courtney that other papers had to be executed in order that there be a tenancy by the entirety.” The counterclaim was obviously grounded on negligence arising from the appellee’s acts on October 13, 1982.

Lack of knowledge of a cause of action does not stop the statute of limitations from running unless there has been fraud or concealment by the person invoking the defense of limitations or if the statute is otherwise tolled. Ford’s Inc. v. Russell Brown & Co., 299 Ark. 426, 773 S.W.2d 90 (1989); Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989); and Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). The Riggs case involved a suit against an attorney who issued a title opinion and failed to note that the seller did not have title to the minerals. An action was brought against the attorney four years later, and that court held that the three-year statute of limitations applied. In Ford’s Inc., he held that the action matured when an accountant gave erroneous advice to the client, although the error was not discovered until several years later. We held that the cause of action occurred on the date the erroneous advice was given rather than at the time of its discovery four years later. Again, the three-year statute of limitations barred recovery.

In another attorney malpractice case, we held that the statute of limitations begins to run at the time the act of malpractice occurs, not from the time it is discovered. Stroud v. Ryan. Although there was an excludable period of time in the Stroud case, which tolled the statute of limitations, we nevertheless did not depart from the basic rule that the statute of limitations commences to run at the time the negligent act occurs.

In the present case, the appellee neither concealed its acts nor defrauded the appellant in any manner relating to its failure to follow his instructions in issuing the certificate of deposit. It was incumbent upon the appellant to see that the bank followed his instructions. If they failed to do so, the negligent act must be said to have occurred at that time. The appellant was, after all, a party to the transaction of which he now complains.

The action of the circuit judge in applying the three-year statute of limitations is affirmed. The case is remanded with directions to transfer it to equity for proceedings in the foreclosure action.


author: John I. Purtle, Justice. David Newbern, Justice, Robert H. Dudley, Justice.

text:
    Terry C. HARTWICK, et al. v. Mary THORNE, et al.
    89-109
    780 S.W.2d 531
    Supreme Court of Arkansas
    Opinion delivered December 4, 1989
    [Supplemental Opinion on Denial of Rehearing January 16, 1990.]

      Jim Hamilton, City Att’y, by: Francis D. Crumpler, Jr., Asst. City Att’y, for appellants.

      Mitchell and Roachell, by: Richard W. Roachell and David E. Simmons, for appellees.

      Turner, J., not participating.

   John I. Purtle, Justice.

This is an appeal of a chancellor’s ruling requiring the appellants to refund to the appellee taxpayers the principal and interest on a part of a bond issue proceeds which could no longer be spent for a designated project. The appellants argue that the court erred in finding the bond issue to be an illegal exaction and in requiring the accumulated interest on funds set aside from the bond issue to be refunded to the taxpayers. The trial court ruled correctly on each issue, and we therefore affirm.

On July 9,1975, the North Little Rock City Council enacted Ordinance No. 4532 for the purpose of calling an election to issue $2,605,000 in Amendment 13 bonds. The ballot title for the proposed bond issue stated the following purpose:

For an issue of bonds in the amount of $2,605,000 for the construction of street improvements (including various improvements, but including, without limitations, the construction of an underpass on Pershing Boulevard, and a drainage canal between Faulkner Lake and the Arkansas River and various curbing and guttering improvements).

Between the enactment of Ordinance No. 4532 on July 9,1975, and the special election on the bond issue held on August 26, 1975, intense campaigning was conducted by the proponents and opponents of the bond issue. Those favoring the bond issue apparently feared that it would not pass without the support of the residents of the area in North Little Rock known as Rose City. The ordinance and ballot title specifically proposed a drainage canal between Faulkner Lake and the Arkansas River, although neither specified a particular sum for construction of the canal. The resulting drainage, proponents maintained, would afford the residents of Rose City much-needed relief from water overflow during heavy rain. The bond election encompassed other proposed projects not at issue in this appeal.

During the election campaign, the proponents paid for an advertisement in a newspaper supplement which stated that the Corp of Engineers had devised a plan to keep Faulkner Lake at an even level: “This is done by constructing a drainage ditch from the Lake to the Arkansas River. The city share of the cost is $700,000.” The bond issue was approved by voters on August 26, 1975.

On February 9, 1976, the North Little Rock City Council enacted Ordinance No. 4607, which authorized and directed the mayor and city clerk to establish a special bank account in the amount of $700,000, drawn from the bond issue, for eventual use as payment for the construction of the Faulkner Lake drainage project. The ordinance further provided that the interest earned on the deposit “shall remain in said account to offset any increased cost of construction due to inflation.”

The Faulkner Lake drainage canal was never completed because the Corp of Engineers determined that it was not feasible. Meanwhile, the appropriated funds together with accumulated interest remained on deposit. On March 9, 1987, the North Little Rock City Council enacted Ordinance No. 6034, which stated that the canal project was not feasible and repealed the ordinance establishing the separate fund. On the same date, the city council also passed Resolution No. 3115, authorizing the mayor to enter into contract negotiations with an engineering firm to consider curbing and guttering improvements in Rose City. These improvements were to be paid for from the funds originally set aside by Ordinance No. 4607 for the construction of the Faulkner Lake drainage canal. The appellees filed suit to force the refund of these disputed funds rather than to allow them to be used for curbs and guttering. They alleged that such an expenditure would amount to an illegal exaction.

On January 25,1989, the chancellor ruled that spending the bond issue proceeds that had been set aside for the canal project for the alternative purpose of street and drainage improvement constituted an illegal exaction. She ordered a refund to the taxpayers of the principal amount of $700,000 plus the accrued interest amounting to over $1,800,000. In her opinion, the chancellor stated:

The proposed Drainage Canal was well publicized and it is not unreasonable to speculate that had the Drainage Canal project not been a part of the proposed use of the funds, the electorate might not have approved the Ordinance. This is the exact evil that the constitutional provision is designed to guard against. If bond money is raised for purposes A, B, and C, it is unconstitutional for the money to be used only for purposes A and B. Those voting in favor of the bond issue solely or primarily because of the designated use provided for by purpose C are misled.

At the heart of the issue before us is a provision of the now-repealed Amendment 13 to the Arkansas Constitution (amending Article 16, Section 11), which was in effect at the time of the bond issue in question. Although Amendment 13 was repealed by Amendment 62 in 1984, it still governs the situation in the present case. Amendment 13 provided, in pertinent part:

[N]o money raised under the provisions of this Amendment by taxation or by sale of bonds for a specific purpose shall ever be used for any other or different purpose. It shall be the duty of the mayor and the city council or other governing body established by law, to exercise supervision over the sale of any bonds, which may be voted on by the people at an election held for that purpose and they shall expend economically the funds so provided for the specified purposes for which they were voted.

In considering the restrictions of Amendment 13, we must decide the specific issue of whether the expenditure of funds for curbs and gutters from the sum set aside for the abandoned canal project is within the meaning or purpose for which the bonds were issued. We must consider not only Amendment 13 but also the requirement of Ark. Code Ann. § 14-58-203(b)(l) (1987) that: “Funds resulting from taxes levied under statutes or ordinances for specific purposes may not be diverted to another purpose.”

An illegal exaction is an act that is not authorized or which is contrary to law. Neither fraud nor bad faith must be shown before a taxpayer may seek relief. Mackey v. McDonald, 255 Ark. 978, 504 S.W.2d 726 (1974). We have long held that Section 13 of Article 16 of the Arkansas Constitution is self-executing and requires no enabling act or supplemental legislation to make its provisions effective. In Samples v. Grady, 207 Ark. 724, 182 S.W.2d 875 (1944), this court held that Section 13 of Article 16 confers the right upon any citizen to institute suits in his own behalf and that of all other interested citizens to protect against any illegal exaction. The Samples opinion went on to state that citizens are given the right as taxpayers to present misapplication of public funds by seeking an injunction in chancery.

In Arkansas-Missouri Power Company v. City of Rector, 214 Ark. 649, 217 S.W.2d 335 (1949), a very similar case, the city of Rector enacted an ordinance providing for an election to issue bonds in the amount of $65,000 for the purpose of building a power plant and distribution system. The sale of the bonds was approved, and the city appropriated the $65,000 to construct the plant and distribution system. It was announced after the election, however, that $65,000 would be insufficient to build the structures. The city officials acknowledged that they had known all along that $65,000 would prove inadequate, but, they insisted, with the added state and federal grants the system could be built. The taxpayers were unsuccessful in their efforts in chancery court to have the funds declared an illegal exaction. They argued that the election was invalid due to misleading advertising and misstatements made by bond proponents.

In reversing the chancery court in the Rector case and declaring the bond issue to be an illegal exaction, this court held that the voters, in determining how to vote, were entitled to look to the title of the ordinance, the preamble of the ordinance, the body of the ordinance or the proposition to be voted on as listed on the ballot, along with the notice of the election. The opinion specifically pointed out that discussions in city council meetings, street conversations, speeches at mass meetings, and such incidents are not what the courts look to in making a determination of the purpose for which bonds are issued. The Rector opinion stated:

The ballot title is the final word of information and warning to which the electors had the right to look as to just what authority they were asked to confer, and we think its implication and ordinary meaning is that it was proposed to construct the plant with the proceeds of the bond sale.

The ordinary meaning attaching to the wording of the ballot title in this case clearly conveyed the message to the electorate that the city intended to use a part of the funds to construct a canal between Faulkner Lake and the Arkansas River. It is evident that everyone concerned believed that some of the proceeds of the bond issue would be used on the canal project. However, the determination of unfeasibility and the accumulation of interest changed things. It is understandable that the city, and no doubt some taxpayers, desired to put this fund to a good use. That, however, is not the issue before us. We must decide whether it can be accomplished legally.

This court was called upon to make a decision concerning Article 16, Section 11 of the Arkansas Constitution in the case of Mears v. Little Rock School Dist., 268 Ark. 30, 593 S.W.2d 42 (1980), where we held that the interest on tax monies raised on behalf of the school district belonged to the schools and not to the county. We cited with approval Pomona City School Dist. v. Payne, 9 Cal. App. 2d 510, 50 P.2d 822 (1935), which held that interest on school taxes was part of the principal and belonged to the schools in the absence of legislative action. The Mears opinion noted that Miles v. Gordon, 234 Ark. 523, 353 S.W.2d 157 (1962), had relied on the California case in reaching a decision that “Article 16, Section 12 of the Constitution, which prohibits taking money out of the state treasury without an appropriation, did not apply to interest on tax money when the two were separated by legislation.” The Miles case involved an act of the legislature in using interest accrued on investments, a part of the revenue stabilization reserve fund, after it had been collected for another purpose. Miles went on to hold that interest on funds, unless lawfully separated therefrom, was a part of the principal. However, the interest collected in Miles was on funds which had been deposited into the general revenues of the state treasury.

In addition to Miles, the appellants have also relied on Board of Education of Ouachita Co. v. Morgan, 182 Ark. 1110, 34 S.W.2d 1063 (1931), and Easterling v. Cook, 175 Ark. 574, 299 S.W. 1009 (1927), for the proposition that accrued interest amounts on tax monies are not taxes and therefore are not required to be refunded as proceeds from an illegal exaction. The Morgan and Easterling cases have been implicitly overruled by Mears and Miles and are now explicitly overruled to the extent that they conflict with this opinion.

We considered another illegal exaction in Special School Dist. No. 100 v. Sebastian Co., 277 Ark. 326, 641 S.W.2d 702 (1982), applying the mandates of Article 16, section 11, of the Arkansas Constitution. The central issue again was whether taxes collected for one purpose may be used for any other purpose. We expressly held that the use of school funds for other than their intended purpose is specifically prohibited.

More recently, we held in Bell v. Crawford Co., 287 Ark. 251, 697 S.W.2d 910 (1985), that “A tax dedicated to one purpose cannot be used for another and accordingly, money appropriated from a hospital fund should not be used for county roads.” The Bell opinion was almost directly on point with respect to the present case when it stated: “[W]e have held that the taxpayers, in instances of bond surpluses accumulating as a result of the retirement of the original bond issue, are entitled to a refund.” The opinion directed the trial court in the manner of handling refunds in instances where individual taxpayers could not be located.

There is no implication, nor was it argued, that the city of North Little Rock was acting in bad faith at any time during the proceedings upon which this appeal is based. The city may have been acting in the utmost good faith — nevertheless, it tried to appropriate monies arising from taxes for purposes other than the objective which caused the citizens to approve the bond issue. Although there may not have been a legal requirement that the city have appropriated $700,000 for the canal project, it seems to be a reasonable figure in view of the circumstances of this case. The advertising before the election used this figure, and the ordinance setting aside the fund was passed shortly after the election.

The appellant argues that Act 490 of 1989, enacted on March 10 of this year and codified at Ark. Code Ann. § 14-72-701 (Supp. 1989), is dispositive of the issue of interest accumulated on these funds. The statute may have been intended for this exact purpose, but it was not in existence at the time the chancery court rendered a final judgment in the matter, nor did it include language indicating retroactive application. Since Act 490 of 1989 was not presented to the trial court — indeed it could not have been presented — we do not consider it on appeal.

Affirmed.

Hays and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. The general purpose of the bond issue stated in the ballot title was “street improvements,” followed by some parenthetically stated specific projects including the ill-fated canal from Faulkner Lake to the Arkansas River. The issue presented is whether the city council can use the money raised by the bond issue for the general purpose stated in the ballot title when one of the specific purposes has been determined infeasible.

Although the court’s opinion quotes the chancellor’s statement that the voters were “misled” by the ballot title, the opinion makes it clear that there was no fraud. I find it objectionable that the opinion recognizes that rhetoric accompanying the proposal and the ballyhoo of the election is irrelevant and yet refers to an “advertisement” as a supporting fact. As the court’s opinion states, quoting Arkansas-Missouri Power Corporation v. City of Rector, 214 Ark. 649, 217 S.W.2d 335 (1949), “[t]he ballot title is the final word.”

This case is made especially difficult by the fact that the city segregated $700,000 for the canal project, and that money can be readily identified as that which by ordinance, and not by ballot title, the city intended to spend on the canal. Were it not for the fact that the money can be so readily identified, I suspect this court would not hesitate to follow the general law in this area which permits the city to use the money for a purpose stated in the ballot title. The precedent set here is unfortunate because the next time taxpayers perceive a particular project stated as part of a bond issue ballot title has not been accomplished, and no money has been set aside for it, this case will be cited and someone will have to decide whether the entire bond issue is invalid or, if it is not, just how much money should be returned to the taxpayers as being representative of the omitted project.

Amendment 13 provided that if more than one purpose was stated in the bond issue ordinance the voters be allowed to vote on them separately. In Rhodes v. City of Stuttgart, 192 Ark. 822, 95 S.W.2d 101 (1936), we held that “construction, straightening and paving . . . streets, alleys, and boulevards” was one purpose and that Amendment 13 did not require each item to be stated separately. Perhaps the bond issue in this case could have been challenged as stating separate purposes if building the canal was so unrelated to street improvements as to constitute a separate purpose requiring a separate vote. It was not so challenged, and that is not the issue here.

In Arkansas-Missouri Power Co. v. City of Rector, supra, the ballot title informed the citizens that the $65,000 to be raised would be used to construct an electric power plant. It turned out that no power plant could be constructed for that amount, and the intent of the city authorities had been to combine the money raised with additional sources of revenue to construct a much more expensive plant. We held there had been an illegal exaction because “the cost of the proposed public improvement as stated in ballots used in a special election in reference thereto is a limitation upon subsequent official acts based upon a favorable vote.” 214 Ark. at 656, 217 S.W.2d at 338. The testimony recited showed that the voters had been intentionally misled because city officials had not even attempted to establish the actual cost of the power plant prior to bringing the bond issue to a vote.

This case does not present a situation analogous to that in the Arkansas-Missouri Power Corp. case. Here there was no evidence of intentional misleading. If there were, it would be incumbent on us to declare the entire bond issue invalid rather than some part of it which, but for the fortuity of the ordinance segregating the canal money, would be undefined.

There is no Arkansas case exactly on point. Perhaps the closest I have found from other jurisdictions is Coggins v. City of Asheville, 278 N.C. 428, 180 S.E.2d 149 (1971). The city sponsored two bond issues. One was for construction of a new auditorium, and the other was for construction of a new arts center. By the time the election had been held and the plans made, costs had risen to the extent that both projects could not be done with the money raised. The city council decided to use the money to make one project instead of two by renovation of its old auditorium building into an arts center and adding a new auditorium to be connected to the old building. A taxpayer complained, and the Supreme Court of North Carolina held that the change was permissible because it was done to accomplish the general purpose of the two bond issues.

The North Carolina court quoted language from a leading treatise on municipal corporations which now appears at 15 E. McQuillen, Municipal Corporations, 43.68 (3rd Ed. 1985):

A law authorizing a bond issue for various purposes which does not declare what proportion of the proceeds of the bonds shall be applied to each specific purpose is not void. Such matter may properly rest within the sound discretion of the municipal authorities.

The court then quoted from a number of decisions from other jurisdictions as well as from earlier North Carolina cases. I need not repeat all of them here, but a typical quotation is:

“It lies within the sound discretion of the legislative body of the City *** to decide whether to proceed with one of the projects, even though there would be insufficient funds to proceed with the other project. *** [T]he legislative body of the city *** is not subject to the control of the courts in the absence of an abuse of discretion, fraud, or collusion.” Krieg v. City of Springfield, 92 Ohio App. 436, 106 N.E.2d 652 (1952).

I find nothing at all wrong with using the $700,000 plus the accumulated interest for street improvements in the Rose City area which would presumably have benefitted from the canal. Such a holding would not mean that a city government could hoodwink voters by intentionally promising that which it had no intention of delivering. Again, that is not an issue in this case, and I fear the precedent we will set by returning the bond money to the taxpayers instead of allowing it to be used for a purpose stated in the ballot title will haunt us. While the disappointment of those who hoped for the construction of the canal is understandable, I conclude that the city’s proposed use of the bond money for one of the purposes stated in the ballot title does not constitute an illegal exaction.

I respectfully dissent.

Hays, J., joins in this dissent.

JANUARY 16, 1990

Jim Hamilton, City Attorney, by: Francis D. Crumpler, Jr., for appellants.

Mitchell and Roachell, by: Richard W. Roachell, for appellees.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Robert H. Dudley, Justice.

We deny the petition for rehearing, but write to supplement the original opinion on one issue.

The original opinion states that we do not consider a statute passed during the pendency of an appeal. That statement is in error. In fact, we have recently considered two (2) acts passed after the trial court ruled. Treiber v. Hess, 301 Ark. 97, 782 S.W.2d 43 (1990); Nathaniel v. Forrest City School Dist. No. 7, 300 Ark. 513, 780 S.W.2d 539 (1989). We have long done so. Van Hook v. McNeil Monument Co., 107 Ark. 292, 155 S.W. 110 (1913). However, “the legislature cannot, by enactment of a retrospective statute, exercise a power in its nature clearly judicial.” Federal Express Corp. v. Skelton, 265 Ark. 187, 196, 578 S.W.2d 1 (1979). It is prohibited from doing so by the separation of powers doctrine. Federal Express Corp. v. Skelton, supra. Thus, even if we construed the act in this case to be retroactive, we would not allow it to retroactively annul a court decision.

Rehearing denied.


author: Robert H. Dudley, Justice.

text:
    Nevada NATHANIEL, et al. v. FORREST CITY SCHOOL DIST. NO. 7
    89-113
    780 S.W.2d 539
    Supreme Court of Arkansas
    Opinion delivered December 4, 1989

      Mitchell and Roachell, by: Marcia Barnes, for appellants.

      Laser, Sharp, Mayes, Wilson, Buff or d & Watts, P.A., by: Dan F. Bufford and Brian Allen Brown, for appellee.
   Robert H. Dudley, Justice.

The appellants, forty-nine (49) Forrest City public school teachers, filed suit against appellee, Forrest City School District No. 7, seeking to invalidate the election of the members of the district’s personnel policy committee and asking for a declaratory judgment construing Act 687 of 1987, § 2, Ark. Code Ann. § 6-17-203 (Supp. 1987). The trial judge invalidated the election for a reason not material to this opinion, but construed the act to allow the school administration to exercise control and supervision over the election of teachers to the personnel committee. We affirm the holding but modify it by construing the act to mean that the teachers must be allowed to elect their representatives to the committee without interference from the administration.

Each school district is required to have a written personnel policy. Ark. Code Ann. § 6-17-201 (a) (1987). The personnel committee proposes personnel policy or the amendment of policy to the school board which, in turn, adopts, rejects, amends, or refers the proposals back to the committee for further study. Ark. Code Ann. § 6-17-203 (1987). The personnel committee must be composed of no fewer than five (5) classroom teachers and no more than three (3) administrators. In pertinent part, the 1987 act, Ark. Code Ann. § 6-17-203(b), provided:

[T]he classroom teacher members of each district’s committee on personnel policies shall be elected by a majority of the classroom teachers employed in the district by secret ballot in an election conducted by the teachers.

(Emphasis added.)

In the 1987-88 school year, the Forrest City school administration and school board somehow construed this provision to mean they could dictate that the teachers should elect only six (6) representatives, three (3) of whom would come from elementary schools, two (2) from high school, and one (1) from middle school; that the administration could set the date for nominations and select the manner of nominations; that the administration could fix the date of the election and decide which teachers would distribute and tabulate the ballots; and that the administration could decide whether the winners should be selected by run-off or by the largest vote.

The teachers asked the administration that they be allowed to conduct the election without interference. When the administration ignored their request and proceeded with the election as planned, the forty-nine (49) appellants filed this action for declaratory judgment. The trial court ruled that the district had substantially complied with the election requirements but invalidated the election for another reason. The teachers have appealed the trial court’s construction of the act.

During the pendency of the appeal the General Assembly passed Act 56 of 1989, Ark. Code Ann. § 6-17-203 (Supp. 1989), which amended the 1987 act to provide, in pertinent part: “The election shall be solely and exclusively conducted by the classroom teachers, including the distribution of ballots to all classroom teachers.” The 1989 amendment made it unmistakably clear that the General Assembly intended for the election to be conducted by the teachers; not the administration, and not the teachers with the help of the administration.

When one act has been superseded by a second act, we generally dismiss for mootness an appeal from a declaratory judgment action construing the first act. Daniel v. City of Clarksville, 232 Ark. 31, 334 S.W.2d 645 (1960). We normally decide only cases and controversies which will actually affect the rights of litigants. First Nat’l Bank v. Massachusetts Gen. Life Ins. Co., 296 Ark. 28, 752 S.W.2d 1 (1988). However, when an issue is subject to repetition but tends to expire before review can be had, we may decide a moot issue. Springdale Bd. of Educ. v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987). In this case, arguments by the appellee school district have convinced us that the district is likely to repeat its actions. Further, election procedure cases fit within that class of cases which are capable of repetition, yet evade review. Velasquez v. Clanton, 286 Ark. 317, 691 S.W.2d 849 (1985). If appellee repeats its action, the election process would be completed before review could be had. Thus, we choose to hear the appeal.

The meaning of the statute is clear. The election is to be “conducted by the teachers.” The phrase “conducted by the teachers” does not mean that teachers are only allowed to vote. It means that they can conduct the election without direction or interference from the administration.

Affirmed as modified.

Glaze, J., not participating.


author: Steele Hays, Justice.

text:
    MINE CREEK CONTRACTORS, INC. and R & E Excavating Co., Inc. v. Carl GRANDSTAFF and Darlene Grandstaff, Husband and Wife
    89-161
    780 S.W.2d 543
    Supreme Court of Arkansas
    Opinion delivered December 4, 1989

      Everett & Gladwin, by: John C. Everett, for appellant.

      Jack Skinner, for appellee.
   Steele Hays, Justice.

This case involves a damage suit for negligent construction which was won by appellees, the plaintiffs below. Appellants appeal on four points, none of which have merit.

Appellees, Carl and Darlene Grandstaff, own a gas station in Greenwood, Arkansas, located on a route designated for construction by the Arkansas Highway Department. Appellants, Mine Creek Contractors, Inc. and R & E Excavating Co., Inc., contracted with the state to repair a bridge to the east of appellees’ station, and to perform certain work on Center Street in front of appellees’ station. The bridge work began in March 1986 and was completed in June 1986. Work was then begun on Center Street and was completed around the end of August.

From the time the work on the bridge was started until the completion of the work on Center Street, traffic was detoured around appellees’ gas station. While the bridge work was being done, appellees’ customers had reasonable access to the station, except for the general detour. Once the Center Street construction began, however, appellees complained of interference with access to their station, that it was either entirely blocked off, or rendered so difficult that access was virtually nonexistent.

Appellees filed this suit against appellants claiming tortious interference with business relations, trespass, and negligent construction. The court directed a verdict on the claims of interference with business relations and trespass, but allowed the negligent construction claim to go to the jury. The appellees originally asserted $450,000 in lost past and future profits, but as of closing arguments, requested between $300,000 and $380,000, depending on how the jury chose to interpret the evidence. The jury returned a verdict for appellees and awarded $87,000.

Appellants first argue that the trial court erred in denying their motion for a directed verdict because the appellees failed to provide the jury with the applicable standard of care, and because there was no substantial evidence to support the jury verdict on the charge of negligence.

Appellants correctly state the law that when damages are suffered as a result of the performance of a construction contract for the state or a political subdivision, and the damages result from something inherent in the design and specifications of the contract required by the public agency, the contractor is not liable unless he is negligent or guilty of a wrongful tort. Guerin Construction, Inc. v. Reaves, 270 Ark. 710, 606 S.W.2d 143 (1980). Appellants then argue that appellees suffered no damage beyond the damage resulting simply by the performance of the contract, and that if any damage did occur from negligently performing the contract, appellees failed to produce any expert testimony to show the standard of care in the industry.

We will not reach this argument for not only did appellants fail to raise it below, they conceded the adequacy of the appellees’ proof. The following was stated at the close of the plaintiffs’ case:

Appellants’ Counsel: Your Honor, I will move the Court to instruct a verdict in favor of the defendants on the plaintiffs’ theory of trespass because of the doctrine and the plaintiffs’ tortious contractual relations. I make that motion only on the merits of the case presumed by the plaintiff, not including the prayer for damage. To be honest with the Court, I think they’ve made a case on negligent construction except for damage. . . .

A motion for a directed verdict must state the specific grounds. ARCP Rule 50(a). Failure to state the specific grounds of a motion or objection below constitutes a waiver of that argument on appeal. Bond v. State, 296 Ark. 1, 751 S.W.2d 339 (1988). Nor can grounds for an objection be changed on appeal. Hart v. State, 296 Ark. 290, 756 S.W.2d 451 (1988). Of course, conceding a point before the trial court precludes a claim of error on appeal.

It might be noted that this point is without merit in any case. The problem appellees complained of was the failure to provide adequate access, which failure was: 1) not in compliance with the requirements of the appellants’ contract with the state, 2) something that was easily within the jury’s common knowledge and did not require expert testimony, and 3) there was proof that appellants failed to provide access as was required by their contract with the state.

Appellants next argue that the trial court erred in denying the appellants’ motion for a directed verdict on grounds the appellees failed to supply any proof to remove the question of the proximate cause of the alleged damages from the realm of speculation. Appellants point out that some of appellees’ loss was admittedly due to the detour of cars from directly in front of their gas station as well as to appellants’ failure to provide access points for the gas station. Appellants then frame their argument as one of proximate cause, arguing that appellees have failed to show that the damage they suffered was próximately caused by the lack of access and not by the detour and construction itself and that the jury was left to speculate as to what portion of the damage, if any, was caused by appellants’ negligence.

First, we note there was evidence from which the jury could conclude that a portion of the damage was attributable to the lack of access and not merely the rerouting of traffic. Appellee, Carl Grandstaff testified to this, as did customers who tried to continue to use the gas station after the road construction began, but found that access was difficult or impossible. And while appellees admitted that some of their loss was due simply to the detour, they emphasized they could abide those losses, but it was during times when there was no access at all to the station, or when access was made nearly impossible that their business was most hampered.

When there is damage proximately caused from two sources, the question is not one of proximate cause but apportionment of damages. This problem is addressed by Prosser:

Once it is determined that the defendant’s conduct has been a cause of some damage suffered by the plaintiff, a further question may arise as to the portion of the total damage sustained which may properly be assigned to the defendant, as distinguished from other causes. The question is primarily not one of the fact of causation, but of the feasibility and practical convenience of splitting up the total harm into separate parts which may be attributed to each of two or more causes.

Prosser and Keeton on Torts (5th ed. 1984) § 52, p. 245.

This section in Prosser discusses situations similar to the one before us, where for example, two defendants have polluted a stream with oil, or where trespassing cattle or marauding dogs belonging to several defendants have caused damage. In short, this section notes that the more difficult the apportionment is, the more relaxed the standards of proof will be, and in some cases which the courts found incapable of any definite and satisfactory proof, the jury was allowed to estimate. Id. p. 348. Prosser concludes with the following:

The courts quite reasonably have been very liberal in permitting the jury to award damages where the uncertainty as to their extent arises from the nature of the wrong itself, for which the defendant and not the plaintiff, is responsible. The requirements of proof usually have been somewhat relaxed in such cases, and it has been said that no exact evidence will be required, and that general evidence as to the proportion in which the causes contributed to the result will be sufficient to support a verdict. Cases are few in which recovery has actually been denied for lack of such proof Id. at 350.

While we have no cases discussing this exact point, we do have two rules on damages which are in harmony with that tenet. The first states that the plaintiff must present proof that would enable the jury to fix damages in dollars and cents, Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987), and damages will not be allowed which are speculative, resting only upon conjectural evidence or the opinion of the parties. Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983). But, in those instances where damages simply cannot be proven with exactness, when the cause and existence of damages have been established by the evidence, recovery will not be denied merely because the damages cannot be determined with exactness. Id. Crow v. Russell, 226 Ark. 121, 289 S.W.2d 195 (1956).

In this case, there was no question but that appellees gave damages in exact figures of dollars and cents. What is lacking is definite proof as to the apportionment of the damages between the state’s construction project and appellants’ negligent construction in the failure to provide access to appellees.

Here, the damages are difficult to apportion because of the nature of the damages and of appellees’ claim. The detour around the gas station started in March and continued until construction was completed at the end of the summer. Appellees’ claim for damages covered the time from the beginning to the end of the detour, as well as that coinciding period of time when access was lacking, for a total of $300,000 — $380,000 depending on how the jury chose to evaluate the evidence.

Clearly the appellees were not entitled to recover from appellants the loss suffered from the detour itself, but we agree with the trial court that the jury had before it sufficient evidence from appellees’ accountant on which to base damages attributable only to appellants.

The appellees presented monthly sales and profit figures to the jury from the year prior to the construction as well as the year in question. It was an easy enough task for the jury to leave out the losses for the first months when only the detour was in effect, and to then use those months as a basis for determining the increased loss during the months when access was denied. These calculations would result in a reasonably accurate estimate of the losses claimed by appellees that were attributable to appellants’ conduct. The jury evidently took this all into consideration as they did not award the $300,000 — $380,000 requested by appellees, but only a lesser portion of that amount, $87,000. Under the circumstances of this case, we find the evidence was sufficient to prove damages and the trial court did not err by allowing the case to go to the jury.

Appellants also maintain the trial court erred in denying the appellants’ motion for a directed verdict where the appellees failed to produce a reasonably complete set of figures and that the proof was insufficient to remove the question of anticipated profits from the realm of speculation. The appellants point to a number of things which they find deficient such as the lack of a balance sheet, failure to show that some losses were arguably from changed business practices and not lost profits, and so on.

We will not address this argument however as it was not raised below. The only argument we find specifically addressed to the trial court on damages, was the question previously discussed on apportionment of damages. ARCP Rule 50(a) requires that a motion for a directed verdict “shall state the specific grounds therefor.” We find no discussion or mention in the record below of this point now raised on appeal. And even if it were to be argued that this objection should be read into the other argument made below, the question was never addressed or ruled on by the trial court, which confined its ruling on the damage issue to that of the question of apportionment of damages between appellants and the state. The burden to obtain a ruling is on the movant, and questions left unresolved are waived and may not be relied upon on appeal. Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987).

As their last point, appellants contend the trial court erred in admitting testimony of appellees’ expert witness, Dale Leslie, on his opinion as to the value of appellees’ business. Appellees’ accountant, Dale Leslie, testified as an expert witness on financial matters regarding appellees’ business operations and their financial records, including calculations showing appellants past and future profits and lost profits. When Leslie attempted to give his opinion on the value of appellees’ business, appellants objected that while he was qualified to testify to accounting matters, he was not qualified to testify as to the value of a business.

We first note that Leslie’s testimony as to the value of the business before and after the construction, was not critical nor was it relied on in appellees’ request for damages. Their damages were based on lost and future profits, and the figure Leslie gave for the decrease in value of the business was used only to give some added support in the manner of corroboration for the lost profit figure requested by appellant. So even if it had been error to admit the evidence, it could have only been minimally harmful at best, as it was essentially cumulative, and we will only find error on the admission of evidence if it affects a substantial right of a party. A.R.E. Rule 103. There was no such substantial right affected in this case and on that basis alone we find no error.

But neither do we find error in admitting Leslie’s testimony. Whether a witness may give expert testimony rests largely within the sound discretion of the trial court and that decision will not be reversed unless an abuse of that discretion is found. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984). Generally, the tendency is to permit the jury to hear the testimony of the person having superior knowledge in a given field unless clearly lacking in either training or experience, and too rigid a standard should be avoided. If some reasonable basis exists from which it can be said the witness has knowledge of the subject beyond that of persons of ordinary knowledge, his evidence is admissible. Id.

Here, Leslie had been a public accountant for twenty-nine years and lived in the area for thirty years. He had been appellees’ accountant for twenty years, and had been licensed by the state as a public accountant for ten or fifteen years. As to business valuations, Leslie had experience as part of his practice in determining the fair market value of clients’ businesses for purposes of buying or selling those businesses. This included determining the fair market value of small enterprises such as appellees’. Leslie also stated he had personal knowledge of what buyers and sellers of single owner businesses in the area looked at in determining the value of a business.

While the witness may not have had an excess of technical training, he appeared to have considerable practical experience, doing locally for many years, what he did for appellee in this case. It was stated in Dildine, that a witness may be qualified by professional, scientific, or technical training, or “by practical experience in some field of activity conferring on him special knowledge not shared by other people in general, the rule in this respect being that one who had been engaged for a reasonable time in a particular profession, trade or calling, will be assumed to have the ordinary knowledge common to persons so engaged.”

We find the witness’s experience in this field was sufficient to qualify as an expert on the matter testified to and we find no abuse of discretion.

For the reasons stated the judgment is affirmed.

       One customer, for example, testified that to gain access to the station he had to cross over an old church parking lot which had dirt piled up on it and in attempting to cross it to reach the station the tailpipe on his car was knocked loose.


text:
    Charles William SUMMERS v. STATE of Arkansas
    CR 89-166
    780 S.W.2d 541
    Supreme Court of Arkansas
    Opinion delivered December 4, 1989

      Lynn Frank Plemmons, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Steele Hays, Justice.

In this appeal from a conviction for delivery of a controlled substance, appellant raises two points for reversal: the sufficiency of the evidence and whether the prosecuting attorney was acting without sufficient authorization. We find no merit in either argument.

Appellant, Charles Summers was charged with the offense of delivery of a controlled substance, marijuana, the alleged delivery occurring on March 10,1988. The case was heard by a jury on December 8,1988, which returned a verdict of guilty and sentenced appellant to four years. Appellant appeals from that conviction.

Appellant first argues that the evidence at trial, which was all circumstantial, was insufficient to support a verdict and his directed verdict motion should have been granted.

A motion for a directed verdict constitutes a challenge to the sufficiency of the evidence and on appellate review, we look to see whether the verdict is supported by substantial evidence. Nichols v. State, 280 Ark. 173, 655 S.W.2d 450 (1983). Substantial evidence, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty, compel a conclusion one way or the other. It must force or induce the mind to pass beyond suspicion or conjecture, and a verdict should only have been directed where there was no evidence from which the jury could have found the defendant guilty without resorting to surmise and conjecture. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

In determining the sufficiency of the evidence, it is necessary to ascertain only the evidence favorable to the appellee and it is permissible to consider only that testimony which supports the verdict of guilt. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983). Circumstantial evidence is sufficient to sustain a conviction as it may constitute substantial evidence. Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987). In order for circumstantial evidence to be sufficient to support a finding of guilt in a criminal case, it must exclude every other reasonable hypothesis consistent with innocence. However, whether the evidence excludes every other reasonable hypothesis is for the finder of fact to determine. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).

Our Controlled Substance Act, Ark. Code Ann. § 6-64-101(f) (1987) provides:

“Deliver” or “Delivery” means the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance or counterfeit substance in exchange for money or anything of value, whether or not there is an agency relationship.

The question presented is whether the evidence was more reasonably conclusive of guilty activity than innocent, so as to constitute sufficient evidence on the charge of delivery. The state’s case consisted of two witnesses who identified the controlled substance and one undercover officer, Brad Bennett, who testified to the events surrounding the delivery transaction. Bennett’s testimony revealed the following: a confidential informant had made a call to Larry Summers, brother of the appellant, and Bennett and the informant met with Larry Summers on March 8, 1988, at the Blue Bonnet Lounge in Morrilton. Appellant was at the meeting. The purchase of a pound of marijuana and one-eighth ounce of cocaine by Bennett was discussed. Appellant did not participate in the discussion but was present during the conversation.

On March 10th, Bennett and the informant met with Larry at his place of business, a muffler shop, the purpose of the meeting being for Bennett to show his purchase money to Larry. Later that day, about 6:00 p.m., Bennett, the informant, and Larry met briefly at the Blue Bonnet and agreed on the transaction. The three then drove to appellant’s residence. Appellant had just driven up to the residence as they arrived and all four went inside. Appellant and Larry then went into the kitchen. Bennett and the informant remained in the living room. Larry came back to the living room and said that he needed the money then. Bennett counted $1,000 and gave it to Larry, who took it back to the kitchen. Larry returned without the money and sat down with Bennett. Appellant then came out of the kitchen, said he would be back in a little while, and left the house.

Bennett, the informant, and Larry waited some two hours at the Blue Bonnet and then went back to appellant’s residence, where they found appellant sitting in the living room. He motioned to Larry and the two went to the kitchen. Larry returned with the paper sack containing marijuana. Appellant also returned to the living room and Bennett examined the contents. Larry suggested they smoke some marijuana but Bennett told him he had no rolling papers. Appellant went to the kitchen and returned with a packet of rolling papers. A “joint” was rolled and passed around but it was not smoked by appellant.

The appellant’s testimony closely tracks the activities described by Bennett, but fills in the gaps with innocuous detail. There are some factual differences and in some respects appellant’s version is more incriminating as he states he was at the Blue Bonnet at both of the meetings. At two other points where conduct described by Bennett was particularly incriminating, appellant offered a different version of the events. He stated that he was at the Blue Bonnet but heard no discussions about a drug transaction. He also described a less incriminating, but less plausible, sequence of events surrounding the transfer of the marijuana at his home. Without going into greater detail, viewing the evidence in the most favorable light from appellee’s statement, it is sufficient to meet the test of substantiality.

Appellant also argues the case should be reversed and remanded for a new trial due to the fact that the deputy prosecuting attorney was acting without authorization under state law. Ark. Code Ann. § 16-21-113 (1987), provides for the appointment of deputy prosecuting attorneys by the prosecutors of the judicial districts and among other pertinent matters requires judicial approval of the appointment:

Ark. Code Ann. § 16-21-113(a)(2) (1987). The appointment shall not take effect until approved in writing, by the judge of the circuit court of the district. The approval shall be filed in the office of the clerk of the circuit court of the county for which such deputy is appointed.

Without implying that the argument has merit, we note that it was not presented to the trial court until after the appellant had been tried and convicted. The point was initially raised by way of a motion for a new trial, and it was not incumbent on the trial court to reopen the case on the basis of a belated, collateral attack on the authority of the deputy prosecuting attorney who had, at least, de facto status to act on behalf of the state. State v. Roberts, 255 Ark. 183, 499 S.W.2d 600 (1973); Faucette, Mayor v. Gerlach, 132 Ark. 58, 200 S.W. 279 (1918).

For the reasons stated, the judgment is affirmed.


author: David Newbern, Justice. Darrell Hickman, Justice, Tom Glaze, Justice,

text:
    William SPIRES and Betty Ruth Spires v. Wayne RUSSELL and Shauna Russell
    89-157
    780 S.W.2d 547
    Supreme Court of Arkansas
    Opinion delivered December 4, 1989

      Shackleford, Shackleford & Phillips, P.A., for appellant.

      Compton, Prewett, Thomas & Hickey, by: William I. Prewett, for appellee.
   David Newbern, Justice.

On July 20,1987, Act 70 of 1987 came into effect. Section 1 of the act has been codified as Ark. Code Ann. § 27-53-402 (Supp. 1989) as follows:

(a) In all cases wherein loss or damage occurs to property resulting from motor vehicle collision amounting to one thousand dollars ($1,000) or less, and the defendant liable, without meritorious defense, shall fail to pay the loss or damage within sixty (60) days after written notice of the claim has been received, then the defendant shall be liable to pay the person entitled thereto double the amount of the loss or damage, together with a reasonable attorney’s fee, which shall not be less than two hundred fifty dollars ($250), and courts costs.
(b) This liability, which is limited to damage to property, attaches when liability is denied and suit is filed.

The act was an amendment of the previous law which had applied in cases where the property damage from a collision had amounted to $300 or less. The effect of the amendment was to raise the limit on the statute’s applicability from $300 to $1000. The question on this appeal is whether the statute applies where liability for damages, arising from an automobile accident which occurred before the statute came into effect, was denied and suit was filed after the statute came into effect. We hold the statute applies.

On March 11,1987, a car owned by appellee Wayne Russell and driven by appellee Shawna Russell (Tucker) struck a parked pickup truck owned by appellants William and Betty Ruth Spires. The Spireses brought suit on April 20,1988, for $828.24 plus attorney fees and court costs. On May 4,1988, the Russells filed an answer and third-party complaint in which they denied liability. Shortly before the case came to trial, but well after the 60-day period had passed, the Russells offered to pay the amount of the Spires’s stipulated damages, $414.12. The offer was refused.

The trial court found in favor of the Spireses but refused to double the damages because the statute had come into effect after the occurrence of the accident.

The Spireses argue that the language of subsection (b) of the statute makes it clear that liability attaches upon the denial and filing of suit which came after the statute became effective. They contend that, because subsection (b) is clear and unambiguous in that respect, it is not subject to another interpretation, citing Biship v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983).

The Russells counter that in order for the statute to apply in this case, we would have to deem it to operate retroactively and that we should not do so because the law is a penalty subject to strict construction and is a change in the substantive rather than procedural law. While we agree with the general propositions of law, we cannot help but observe that this case presents no question of retroactive application of the statute, and thus it is irrelevant whether the amendment imposed a penalty or is a procedural or substantive change in the law.

The cases cited by the Russells are thus also irrelevant. First, they cite Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979), which concerned Act 714 of 1981 which was passed to cure constitutional defects in the Arkansas statute governing inheritance by “illegitimate” children. We held the act was not to apply retroactively because it dealt with the substantive rather than procedural rights. In that case, we had been asked to apply the new act to an inheritance which was pending when the act went into effect. Unlike this case, there was a question of retroactivity because the event, the decedent’s death, to which the statute was argued to apply, occurred before the effective date of the statute.

The same is true of Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981), where we considered whether Act 714 of 1981 was passed to cure the constitutional defects in the dower law. The question of retroactivity arose because the event, which was the death of a testator, occurred before the constitutionally curative amendment came into effect.

Again, these cases were correctly decided, but the statutes being considered in them came into effect subsequent to the dates of the events which, by the terms of the statutes, made them applicable. The statute in this case provides that the additional liability “attaches when liability is denied and suit is filed.” These events occurred well after the statute came into effect.

The statute in question in this case clearly provides when it shall apply. The events which made it applicable here, i.e., denial of liability and filing of suit, both occurred after the statute came into effect. By applying it in this case, the trial court would not have been applying it retroactively but to an event which occurred after it went into effect.

Reversed and remanded for orders consistent with this opinion.

Hickman and Glaze, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The majority is wrong when it states this case does not involve the retroactive application of a statute. It does.

At the time the property damage occurred in this case, the defendants were liable only for singular damages. The majority’s application of Act 70, which allows the imposition of double damages, retroactively enlarges that liability. Statutes which impose, remove or change a monetary limitation on recovery should be applied prospectively only. Thomas v. Cumberland Operating Co., 569 P.2d 974 (Okla. 1977). In that case, the administrator’s decedent was killed in an accident. At the time of the accident, certain types of damages were not recoverable in wrongful death cases, but by the time suit was filed, a law had been passed which allowed recovery of additional damages. The court held that the statute in effect at the time of the accident governed the limitations on recovery:

A statute passed subsequent to the injury increasing the amount recoverable in a wrongful death action creates a new element of damages as distinguished from a new remedy to enforce an existing right. Statutory increases in damage limitations are changes in substantive rights and not merely remedial changes. Therefore these increases are not applicable retroactively to injuries sustained prior to the effective date of the statute permitting increased recovery.

The statute in this case changed a monetary limitation on recovery. It allowed recovery of double damages in a situation where, before its passage, recovery was limited to singular damages. Therefore the statute should not be retroactively applied to property damage which occurred before the effective date of the statute. See also Kleibrink v. Missouri-Kansas- Texas Railroad Co., Inc., 224 Kan. 437, 581 P.2d 372 (1918); MFA Ins. Co. v. Hankins, 610 P.2d 785 (Okla. 1980).

The Small Property Damage Claims Act has been characterized as neither purely remedial or substantive, but penal. Rouse v. Weston, 243 Ark. 396, 420 S.W.2d 83 (1967). In construing penal statutes, nothing will be taken as intended that is not clearly expressed, and construction is strictly in favor of those upon whom the penalty may be imposed. Harber v. Shows, 262 Ark. 161, 553 S.W.2d 282 (1977); Missouri-Pacific Railroad Co. v. Lester, 219 Ark. 413, 242 S.W.2d 714 (1951). With these rules of construction in mind, I fail to see how the majority can apply the statute to the defendants in this case.

A California court, in considering a statute which imposed double damages for trespassing and cutting timber, explained the reasons for its reluctance to retroactively impose double damages:

We have concluded that the new section is not entirely procedural, nor is it remedial, but that it creates new obligations and exacts new penalties because of past transactions, and hence those provisions relating to double damages must be treated as penal and punitive.
Laws which create new obligations, or impose new duties, or exact new penalties because of past transactions, have been universally reprobated by civil and common law writers, and it is to be presumed that no statute is intended to have such effect, unless the contrary clearly appears.

Helm v. Bollman, 176 Cal.App.2d 838, 1 Cal.Rptr.723 (1959).

In United States v. Mashburn, 85 F. Supp. 968 (W.D. Ark. 1949), it was held that a statute which imposed treble damages against a landlord for overcharging rent should not be retroactively applied. The court declared that the general rule of prospective application is especially proper “when such retroactive operation would create a new liability or affect an existing liability to the detriment of the defendant.”

The statute in this case imposes a penal liability and creates a new obligation. The liability of the defendants, which existed prior to the effective date of the statute, was limited to singular damages. The statute should not now be retroactively applied to double their liability.

The majority claims that the event which triggered application of the statute was not the accident but the denial of liability and filing suit. In other words, though the limit of liability was singular damages at the time the accident occurred, the limit doubled upon filing of suit by the plaintiffs. This means that, upon filing suit, a new liability was imposed which did not exist at the time of the accident. That is retroactive application of the statute, pure and simple. It was, after all, the occurrence of the accident which gave rise to any liability in the first place.

The law should only be retroactively applied if the legislature expressed that intention. There is no evidence that the legislature intended the statute to be applied to property damage claims arising before its passage. The presumption is that legislation is to operate prospectively, not retroactively. Black v. Special School Dist. No. 2, 116 Ark. 472, 173 S.W. 846 (1915). Legislation will not be construed as being retroactive if it may reasonably be construed otherwise, and any doubt is resolved against retroactive application. Arkansas Rural Medical Practice Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987); Roberson v. Roberson, 193 Ark. 669, 101 S.W.2d 961 (1937). Retroactive application of laws is generally regarded as unfair. 2 Singer Sutherland Statutory Construction, § 41.01 (4th ed. 1986). Even remedial legislation, which is sometimes applied retroactively, may not be so applied unless the legislature’s intent is so clear, strong and imperative as to have no other meaning. Luter, supra.

The last sentence of the act, which reads that liability attaches when liability is denied and suit is filed, does not clearly show an intention of retroactive application. In fact, that language has nothing to do with retroactive application. It means that, once liability is denied and suit is filed, it is too late for the defendant to pay the claim without suffering double damages and attorney fees. Similar efforts to escape penal liability have been engaged in by insurance companies that attempt to confess judgment after the insured has been required to file suit. See Equitable Life Assurance Society v. Gordy, 228 Ark. 643, 309 S.W.2d 330 (1958); Commercial Union Assurance Co. v. Leftwich, 191 Ark. 656, 87 S.W.2d 55 (1935). We held that once suit is filed, the attorney fees and penalty attach. No doubt the language in this act is intended to prevent these attempts to avoid penal liability.

I would not apply this statute because it retroactively enlarges the defendants’ liability, and there is no evidence that the legislature intended such an application. I would affirm.

Tom Glaze, Justice,

dissenting. I disagree with the majority decision. In my view, the issue involved here concerns whether Ark. Code Ann. § 27-53-402 (Supp. 1989), as amended by Act 70 of 1987, can be retroactively applied to a tort action occurring on March 11,1987, and arising before Act 70’s enactment. If Act 70 had not been enacted, the appellants clearly would have been limited in the amount of the damages they sought. Under the original version of § 27-53-402, appellants could have recovered double damages based upon a property loss not to exceed a $300 amount. Act 70, on the other hand, authorized double damages to be based upon a loss not to exceed $1,000. Here, the Spires’s stipulated damages were $412.12; thus such damages under Act 70 permits the Spires damages they were unable to recover under prior law. Whether the $1,000 amount under Act 70 rather than the $300 amount under prior law applies to the present circumstances depends solely on whether Act 70 can be applied to an action for property loss which arose before Act 70’s enactment.

As noted above, the prior language in § 27-53-402 is the same as now except Act 70 amended it to increase the amount of damages and costs a plaintiff can seek. Thus, Act 70 unquestionably is remedial legislation. The established rule of construction applicable to such legislation is as follows:

The established rule is that all statutes are to be construed as having only a prospective operation, unless the purpose and intention of the Legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used.
* * *
The strict rule of construction contended for does not apply to remedial statutes which do not disturb vested rights, or create no obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. These should ... be given a retrospective effect whenever such seems to have been the intention of the Legislature.

State ex rel Moose v. Kansas City & Memphis Ry. and Bridge Co., 117 Ark. 606, 174 S.W. 248 (1914).

In construing remedial legislation, the courts do so with appropriate regard to the spirit which prompted its enactment, the mischief sought to be abolished and the remedy proposed. Skelton v. B. C. Land Company, 260 Ark. 122, 539 S.W.2d 411 (1976). It is also an established rule that remedial legislation shall be liberally construed. Chicago Mill & Lumber Company v. Smith, 228 Ark. 876, 310 S.W.2d 803 (1958), and Schultz v. Rector-Phillips-Morse, Inc., 261 Ark. 769, 552 S.W.2d 4 (1977).

Aluminum Co. of Am. v. Neal, 4 Ark. App. 11, 626 S.W.2d 620 (1982).

In passing Act 70, the General Assembly gave no hint that it intended the increased damages authorized by that Act to apply to vehicular-property losses that had already occurred before the Act’s enactment. As a result, I must conclude that, under the circumstances of this case, appellants are restricted to those damages authorized under § 27-53-402, as it read when appellants’ loss was sustained. Cf. Aluminum Co. of Am. v. Neal, 4 Ark. App. 11, 626 S.W.2d 620. Therefore, I would affirm the lower court’s ruling.


author: David Newbern, Justice. Per Curiam. Tom Glaze, Justice,

text:
    WIEDERKEHR WINE CELLARS, INC. & Swiss Family Vineyards, Inc. v. CITY NATIONAL BANK of Fort Smith
    89-234
    780 S.W.2d 551
    Supreme Court of Arkansas
    Opinion delivered December 4, 1989
    [Supplemental Opinion on Denial of Rehearing January 16, 1990.]

      Davidson, Horne & Hollingsworth, by: Walter W. Davidson and Patrick E. Hollingsworth, for appellant.

      Harper, Young, Smith & Maurras, by: S. Walton Maurras, for appellee.

      Holt, C.J., and Glaze, J., would grant rehearing. Hickman and Turner, JJ., not participating.

   David Newbern, Justice.

The appellants, Wiederkehr Wine Cellars, Inc., and Swiss Family Vineyards, Inc., collectively referred to here as “Wiederkehr,” sued the appellee, City National Bank of Fort Smith, alleging breaches of a secured loan agreement and of certain fiduciary obligations. The bank filed an answer and counter-claim alleging default on numerous mortgages and other security agreements which had been taken to secure the loan. The trial court granted the bank’s motion to be allowed to file a “third party complaint” against Davidson, Horne & Hollingsworth, the law firm representing Wiederkehr. By becoming a party to the litigation, the law firm was disqualified as Wiederkehr’s representative. The question on this interlocutory appeal is whether the trial court erred in permitting the law firm to be brought into the litigation as a third party defendant. We hold it was error. The law firm was not alleged to have been liable to the bank for any part of Wiederkehr’s claim against the bank. The third party complaint was thus not permissible under Ark. R. Civ. P. 14. We dismiss the bank’s other arguments with respect to joinder and ethics violations because they are not properly before us.

On July 13,1983, the bank loaned Wiederkehr $1.8 million to provide operating capital and to consolidate and restructure the companies’ debt. The loan agreement provided for distribution of the money as needed. It contained a covenant by which the Wiederkehr companies agreed not to transfer or encumber any unencumbered assets valued in excess of $25,000 without the bank’s written permission.

Davidson, Horne & Hollingsworth has represented Wiederkehr for many years and was involved in the negotiation of the agreement with the bank. The bank alleges that, in Wiederkehr’s answers to interrogatories, dated July 19, 1988, Wiederkehr stated it had not sold or transferred any fixed assets valued above $25,000 since September 1,1987. The answers were signed by a Wiederkehr official and a representative of the law firm. It is further alleged that in November, 1988, the bank learned that Swiss Family Vineyards, Inc., had transferred 282 acres of land to the law firm. The bank amended its counter-claim to allege a breach of the covenant. An answer to the amended counter-claim, signed by a representative of the law firm, was filed on December 9,1988, admitting that one tract of land valued over $25,000 had been transferred to the law firm without the bank’s permission.

The bank alleges that land records show that four tracts of land, collectively comprising 282 acres valued in excess of $300,000, were transferred by Swiss Family Vineyards, Inc., to the law firm. Two of the deeds were dated October 30,1987, one was dated April 15,1988, and one was dated August 31,1988.On one of the deeds dated October 30,1987, there was appended a handwritten note, “Please do not publish.”

At a hearing on the bank’s motion to be permitted to file a third party complaint against the law firm, Walter Davidson of the law firm stated that Wiederkehr had breached the covenant and had conveyed the 282 acres to the law firm as its only means of paying money owed to the law firm as well as its future fees to arise from litigation over the loan agreement. He noted there were other alleged breaches of the agreement, presumably by the bank, and that the bank was using its allegation of the law firm’s complicity in the breach of the covenant by Wiederkehr not to transfer assets in excess of $25,000 value without permission as a stratagem to deprive Wiederkehr of the law firm’s representation. He pointed out that the bank’s loan to Wiederkehr was fully collateralized by property mortgaged to the bank which did not include the land conveyed to the law firm.

1. Third party complaint

In its motion to be allowed to file a third party complaint against the law firm, the bank stated that the law firm had intentionally interfered in an advantageous business relationship between the bank and Wiederkehr. It was stated that the conveyances from Wiederkehr to the law firm were fraudulent and that they gave rise to an equitable lien on the land in favor of the bank.

Arkansas R. Civ. P. 14 is entitled “Third-Party Practice.” It provides, in section (a), that a defending party “may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiffs claim against him.” The bank is the defendant in this action. The bank’s motion does not assert that the law firm will be liable to the bank for any part of Wiederkehr’s claim against the bank, and the bank’s brief contains no argument that the trial court properly granted its motion because it was allowed by Rule 14. We need consider that question no further.

2. Joinder

The bank’s main argument on appeal is also misplaced. The motion seeking permission to file a third party complaint asserted that the bank had an equitable lien on the land it alleged to have been conveyed by Wiederkehr to the law firm. The argument now being made is that Ark. R. Civ. P. 19 requires joinder of the law firm as a party. Rule 19 is entitled, “Joinder of Parties Needed for Just Adjudication.”

The record, as abstracted, does not show that relief has been sought by the bank against the law firm. No joinder of any claim against the law firm with the one asserted by counter-claim against Wiederkehr has been sought. Before the trial court granted the bank’s motion to be permitted to file a third party complaint against the law firm, the bank amended its counterclaim against Wiederkehr by adding a reference to part V.a. of its agreement with Wiederkehr in which the covenant not to convey land is contained. The bank alleged it had an equitable lien on “all lands owned by Swiss Family and Wiederkehr regardless of whether the said lands have been subjected to a mortgage or not.” The additional relief sought was that Swiss Family Vineyards, Inc., “be required to cause the law firm to reconvey to it all lands heretofore conveyed” to the law firm.

Other than by way of the ill-fated third party complaint, no relief has been sought against the law firm, and it has not been made a party to this litigation by the bank. See Ark. R. Civ. P. 20(a). Nor has there been a motion made pursuant to Rule 19 that the law firm be made a party, although the bank’s supplementary abstract shows that Rule 19 was mentioned by the bank’s counsel at the hearing on the bank’s motion to be permitted to file a third party complaint.

3. Ethics Allegations

In its brief, the bank has alleged violations by the law firm of the Model Rules of Professional Conduct. We agree with Wiederkehr’s argument that these allegations are not based on any finding of fact by the trial court, were not raised below, and are not proper subjects on appeal.

Wiederkehr has asked that we strike the bank’s brief, citing only McLemore v. Elliot, 272 Ark. 306, 614 S.W.2d 226 (1981). We decline to strike the bank’s brief because we do not find that it contains the kind of “intemperate and distasteful” language and “inexcusable breach of the obligation of professional courtesy” with which we were confronted in the McLemore case.

JANUARY 16, 1990

Walter W. Davidson, for appellants.

S. Walton Maurras, for appellee.

Conclusion

Our interlocutory review in this case is limited to the “order which disqualifies an attorney from further participation in the case.” Ark. R. App. P. 2(a)(8). The order appealed from is the one granting permission to file a third party complaint. Because that order was erroneous, it must be reversed.

Reversed and remanded.

Hickman, J., not participating.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Per Curiam.

Petition for rehearing is denied.

Tom Glaze, Justice,

dissenting. In its petition for rehearing, appellants request the court to strike portions of appellee’s brief that contain suggestions of wrongdoing or ethical impropriety on the part of appellants’ counsel. In its opinion handed down December 4, 1989, this court unanimously agreed with appellants’ argument that such alleged ethical violations were not proper subjects in this appeal. Because such allegations are wholly extraneous to the issues in this case, appellants’ request to strike those allegations and language from the appellee’s brief should be granted. See Dunbar v. Bell, 90 Ark. 316, 119 S.W. 670 (1909). The court’s failure to strike such irrelevant and objectionable material only encourages similar violations in the future.

Holt, C.J., join this dissent.

Hickman, J., not participating.


author: Per Curiam.

text:
    Jackie FERGUSON v. SUNBAY LODGE, LTD.
    CA 89-423
    781 S.W.2d 491
    Supreme Court of Arkansas
    Opinion delivered December 4, 1989

      Q. By rum Hurst, Jr., for appellant.

      Wallace, Dover & Dixon, by: Russell Gunter and Allen C. Dobson, for appellee.
   Per Curiam.

The appellant, Jackie Ferguson, originally filed a complaint in United States District Court against the appellee, Sunbay Lodge, Ltd. (Sunbay), and John Aulgur and alleged causes of action under Title VII and state law tort claims of assault, battery, outrage, and negligence. Ferguson’s state law tort claims were dismissed by the court and she subsequently voluntarily dismissed her Title VII claim.

Ferguson then filed suit against Sunbay in Garland County Circuit Court and alleged that Sunbay’s former manager sexually harassed her while she was employed with Sunbay. Ferguson claimed that these acts constituted the torts of outrage and negligence, for which Sunbay was liable. The trial court dismissed Ferguson’s suit with prejudice because it was barred by statutes of limitation. Ferguson has attempted to appeal from the trial court’s order and, as a result, Sunbay has moved to have the appeal dismissed pursuant to Ark. R. App. P. 4(c), which provides as follows:

If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. A notice of appeal filed before the disposition of any such motion or, if no order is entered, prior to the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period. No additional fees shall be required for such filing. (Emphasis added.)
The sequence of events in this case is as follows:
June 22, 1989 Order of Dismissal
July 3, 1989 Appellant’s motion for new trial
July 17, 1989 Appellee’s response to motion for new trial
July 20, 1989 Appellant’s notice of appeal
August 3, 1989 Appellant’s reply to appellee’s response to motion for new trial
September 27, 1989 Order denying motion for new trial

As noted above, Ferguson filed a motion for new trial prior to filing her notice of appeal. According to Rule 4(c), Ferguson’s time for appeal would run either from the entry of an order on the motion or on the thirtieth day from filing the motion, whichever came first. The 30 day provision is applicable here as the relevant date initiated by the motion for new trial was August 2,1989, and the order denying the motion for new trial was not filed until September 27, 1989.

Consequently, the 30 day time period in which Ferguson had to file a notice of appeal, pursuant to Ark. R. App. P. 4(a), began to run on August 2, 1989.

Ferguson’s July 20, 1989, notice of appeal, which was filed before the disposition of her motion for new trial, had no effect. In this case, our rules specifically require that a new notice of appeal must have been filed within the prescribed period, as measured from the expiration of the 30 day period. This was not done; therefore, Sunday’s motion to dismiss is granted.