text:
    Steve McCOY, Administrator of the Estate of Georgia (McCoy) Walker, Deceased v. Billy WALKER
    94-96
    876 S.W.2d 252
    Supreme Court of Arkansas
    Opinion delivered May 16, 1994

      Killough & Ford, by: Danny W. Glover, for appellant.

      Joseph Boeckmann, for appellee.
   Steele Hays, Justice.

This case involves homestead rights and the interpretation of Ark. Code Ann. §§ 28-39-201 and 28-1-102(a)(1) (1987). Appellant Steve McCoy, Administrator of the Estate of Georgia (McCoy) Walker, contends the minor grandchildren of a decedent who would inherit from the decedent under the laws of descent and distribution have homestead rights under the Arkansas Probate Code. We find no merit in his argument and affirm the order of the probate court.

Georgia and Tommy McCoy married in 1961. They built a home on twelve acres in Cross County. The McCoys had four children and their daughter, Sherry, had three children: Holly Parrish, Tommy Parrish, and Linda Parrish. Following the death of Sherry Parrish, her three minor children moved in with Georgia and Tommy McCoy. Subsequently, Georgia and Tommy McCoy were appointed guardians of the three children.

Tommy McCoy died and Georgia McCoy continued to serve as guardian of her three grandchildren. In 1990 Georgia McCoy married the appellee, Billy Walker. Billy and Georgia (McCoy) Walker resided in Georgia’s home in Cross County. In addition, Sherry’s three children and Steve McCoy continued to reside in the decedent’s home in Cross County.

Georgia died intestate on July 9, 1993. She owned the home and surrounding twelve acres which was non-marital property. Her three surviving children were over the age of twenty-one. At the time of Georgia’s death, Holly was thirteen, Tommy was eleven and Linda was eight. Steve McCoy is now the guardian of Georgia’s grandchildren and administrator of her estate.

Billy Walker was awarded homestead rights in the home, however, a petition to award homestead rights to the grandchildren was denied. Steve McCoy appeals from that order.

Steve McCoy contends the decedent’s minor grandchildren are entitled to homestead rights under Ark. Code. Ann. § 28-39-201 (1987). Section 28-39-201, Rights of surviving spouse and children, provides in part:

(a) If the owner of a homestead dies leaving a surviving spouse, but no children, and the surviving spouse has no separate homestead in his or her own right, the homestead shall be exempt and the rents and profits thereof shall vest in the surviving spouse during his or her natural life.
(b) However, if the owner leaves one (1) or more children, the child or children shall share with the surviving spouse and be entitled to one-half (1/2) the rents and profits till each of them arrives at twenty-one (21) years of age — each child’s right to cease at twenty-one (21) years of age — and the shares to go to the younger children and then all to go to the surviving spouse. The surviving spouse or children may reside on the homestead or not.

The statute specifically limits homestead rights to the surviving spouse and to the “child or children” of the decedent. However, Ark. Code Ann. § 28-1-102 (1987), Definitions, provides in part:

(a) As used in this code, unless the context otherwise requires:
(1) “Child” denotes a natural or adopted child, but does not include a grandchild or other more remote descendant or an illegitimate child except such as would inherit under the law of descent and distribution; ...

Steve McCoy claims the definition of “child” found in Ark. Code Ann. § 28-1-102 includes a grandchild who would inherit under the law of descent and distribution. Since the grandchildren would take their mother’s share of Georgia’s estate under the laws of descent and distribution, McCoy submits they would be “children” entitled to homestead rights under the probate code. Walker, however, maintains the language, “except such as would inherit under the law of descent and distribution,” simply modifies “illegitimate child” and not “grandchild.”

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

We hold the General Assembly did not intend for a grandchild to be defined as a child under § 28-1-102(a)(1). First, “[i]n its ordinary sense the word ‘or’ is a disjunctive particle that marks an alternative, generally corresponding to ‘either,’ as ‘either this or that’; it is a connective that marks an alternative.” Beasley v. Parnell, 177 Ark. 912, 9 S.W.2d 10 (1928) (emphasis added). Although the definition of “child,” as it was originally enacted in Act 140 of 1949, contained the word “nor” rather than the word “or” immediately prior to the phrase “an illegitimate child,” the word “nor” is a disjunctive conjunction. Thus, it is clear the legislature intended to mark separate categories.

Further, referential and qualifying phrases, where no contrary intention appears, relate only to the last antecedent. Sutherland Stat Const § 47.33 (5th Ed). On the other hand, evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma. Id. In the case at hand, there is no comma separating “illegitimate child” and the modifier “except such as would inherit under the law of descent and distribution.” Thus, we find the General Assembly intended for “except such as would inherit . . .” to only modify “illegitimate children.” See Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993).

Additionally, it is significant that the General Assembly specifically addresses the circumstances in which an illegitimate child may inherit real or personal property. Ark. Code Ann. § 28-9-209 (1987). This acknowledges a distinction between an illegitimate child who may inherit under the laws of descent and distribution and one who may not. We believe the General Assembly intended to grant homestead rights to those illegitimate children who could inherit under the laws of descent and distribution. The General Assembly has determined that certain classes of illegitimate children should be treated “in the same manner as a legitimate child.” § 28-9-209. Consequently, there was a need to differentiate between classes of illegitimate children, hence the language in § 28-1-102 (a)(1). However, there is not a similar provision which contemplates treating a grandchild or a “more remote descendant” in the same manner as a child.

Finally, the decision in Brown v. Brown, 104 Ark. 313, 149 S.W. 330 (1912), provides additional guidance. In Brown, the appellant contended the minor grandchildren of the decedent were entitled to share the homestead with the widow. This Court concluded that under the plain language of the Constitution, the homestead exemption was limited to the widow and children. The Court concluded grandchildren were not mentioned or provided for under Ark. Const, art. 9, § 6, which addresses the homestead right of the widow and minor children.

Ark. Code Ann. § 28-39-201 follows the language of Ark. Const, art. 9, § 6. As in the Constitution, § 28-39-201 does not mention or provide for grandchildren. Although Steve McCoy relies on the definition in § 28-1-102, it is significant that the General Assembly elected to track the language of the Constitution in enacting § 28-39-201.

Accordingly, we find the trial court correctly determined the minor grandchildren were not entitled to homestead rights in the home of Georgia Walker.

Affirmed.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    FIRST MARINE INSURANCE COMPANY v. Rickey BOOTH
    93-1404
    876 S.W.2d 255
    Supreme Court of Arkansas
    Opinion delivered May 16, 1994
    [Rehearing denied June 20, 1994.]

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Bruce Mun-son, for appellant.

      Patton Law Office, by: Brady Paddock, for appellee.
   David Newbern, Justice.

The appellee, Rickey Booth, sued First Marine Insurance Company (First Marine), the appellant, and E-Z Mart. The claim resulted from damage to an outboard boat motor caused, Mr. Booth alleged, by defective gasoline purchased from E-Z Mart. His claim against First Marine, which insured the motor against casualty loss, was for a bad faith refusal to pay the claim. First Marine appeals from a judgment entered on the basis of a jury verdict awarding Mr. Booth damages on his bad faith claim and from the Trial Court’s award of an attorney’s fee to Mr. Booth. We hold the evidence was insufficient to support the bad faith verdict but that the attorney’s fee was justified. We reduce the judgment against First Marine by subtracting the bad faith award and affirm the judgment as modified.

In addition to his recovery against First Marine, Mr. Booth was awarded $4,539.52 against E-Z Mart, which was the full amount he had demanded as the cost of repair of the motor. The jury found that First Marine breached its contract of insurance by failure.to pay Mr. Booth’s claim against it. Damages of $5,000 were assessed against First Marine. The Trial Court reduced that award to $460.48 by subtracting the $4,539.52 recovered against E-Z Mart to avoid double recovery. The jury’s award against First Marine for bad faith was $2,500. The Trial Court entered a judgment for those amounts and added a $2,500 attorney’s fee.

On First Marine’s motion the Trial Court reduced the judgment $250 which was the amount of the policy deductible and $44 representing a portion of the repair estimate not attributable to the alleged negligence of E-Z Mart.

Mr. Booth testified that on July 18, 1991, he purchased approximately twenty-six gallons of gasoline for his motorboat from the E-Z Mart in DeQueen. He immediately experienced problems starting and running the motor. He later added approximately eighteen gallons of gasoline purchased from another store. A few days later he again took the boat out and noticed a loud noise coming from the motor. He took the motor in for repair and was told that the damage was probably caused by defective gasoline. He was given a repair estimate of $4,539.52.

Mr. Booth notified First Marine of his claim. Mr. Powell, a claims adjustor for First Marine, examined the motor and concluded the damage was caused by fuel contaminants. He told Mr. Booth the claim would be denied because the insurance contract excluded “damage caused by fuel additives.”

Mr. Booth complained to the Arkansas Insurance Commission. A copy of a letter from Mr. Powell to the Commission was sent to Mr. Booth stating, “We have decided to give the insured the benefit of the doubt if concrete proof can be gained that the loss was due to contaminated gasoline.” Mr. Booth then filed suit against E-Z Mart and First Marine.

The Trial Court denied First Marine’s motions for directed verdict. The jury returned its verdict in favor of Mr. Booth, and First Marine moved to have it set aside on the ground that the jury improperly awarded more than the amount claimed, ignored the policy deductible, and failed to calculate depreciation in reaching the amount awarded. First Marine also asked that the attorney’s fee award be set aside. The Trial Court denied the motion but modified the judgment to take into account the $250 deductible and the unrelated repair bill of $44.

First Marine moved for a judgment notwithstanding the verdict or in the alternative a new trial. First Marine contended the jury finding of bad faith was not supported by substantial evidence or that it was clearly contrary to the preponderance of the evidence.

1. Sufficiency of the evidence

First Marine contends the jury was not presented with sufficient evidence to justify a finding of bad faith. In support of this contention First Marine points to the trial testimony which conflicted as to whether or not the damage was caused by defective gasoline. First Marine also claims that the fuel additive exclusion in the insurance contract shows that the dispute was based on an honest, good faith disagreement as to the contract’s correct interpretation.

In reviewing a trial court’s refusal to set aside a jury verdict, this Court must view the evidence in the light most favorable to the party against whom the motion was made and must affirm if there is any substantial evidence to support the verdict. See Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). As well, when the Trial Court denies a motion for a new trial on the ground that the verdict was not clearly contrary to the preponderance of the evidence, the test on appeal is whether there is substantial evidence to support the jury verdict. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or another. It must force the mind to pass beyond suspicion or conjecture. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

To be liable for bad faith the insurer must engage in affirmative misconduct, without a good faith defense, in a malicious, dishonest, or oppressive attempt to avoid liability. Stevenson v. Union Standard Ins. Co., 294 Ark. 651, 746 S.W.2d 39 (1988). Malice is that state of mind characterized by hatred, ill will, or a spirit of revenge. Malice may be inferred from conduct and surrounding circumstances. Id.

Mr. Booth’s displeasure resulting from First Marine’s adjuster having first told him of his conclusion that defective gasoline caused the damage, when it seemed to him the claim would not be covered by the policy, and then requiring proof upon conceding the claim could be covered, is understandable. That conduct does not. however, amount to what we have described as the conduct on the part of an insurer amounting to the tort of bad faith. A controversy over the existence of a first party insured’s claim does not constitute bad faith even if it results from negligence or gross ignorance on the part of the insurer. See Aetna Cas. & Sur. v. Broadway Arms, 281 Ark. 128, 664 S.W.2d 463 (1983). We cannot affirm the $2500 bad faith award.

2. Attorney’s fee

A party who demands payment from an insurance company of a claim for a casualty loss is entitled to an attorney’s fee if he or she recovers on the claim within 20% of the amount demanded or sought in the suit. Ark. Code Ann. § 23-79-208 (Repl. 1992). First Marine contends Mr. Booth was not entitled to an attorney’s fee because his recovery should not have been within 20% of the amount sought. Error occurred, according to First Marine, because the jury failed to subtract an amount attributable to depreciation of the outboard motor.

The only evidence submitted by Mr. Booth relevant to the amount of damages to be recovered was the amount of the estimated cost of repair. An amount paid as the cost of repair is acceptable evidence of the proper measure of damages to a motor vehicle, i. e,, the difference between the value before and after, damaged in an accident. Sipes v. Munro, 287 Ark. 244, 697 S.W.2d 905 (1985). We have said in an obiter dictum that appraisal of repair cost is also sufficient. See Beggs v. Stalnaker, 237 Ark. 281, 372 S.W.2d 600 (1963). See also H. Brill, Arkansas Law of Damages, § 29-4 (2d ed. 1990). We see no reason these rules should not apply to injury to a boat motor just as they do to automobiles.

First Marine’s argument, although not so expressed, must be that the reduced value, due to prior use, of the motor before the damage occurred was not considered by the jury. First Marine argues as if the $4,539 repair bill were the “before” value of the motor and that amount should be reduced by a percentage of value lost for each year of prior use. There is nothing in the record before us to support the notion that the value of the motor prior to its demise was the same as the amount of the repair estimate.

No evidence, other than the repair estimate, was offered on the before and after value of the motor, nor was it even discussed before the jury. The only evidence presented by First Marine even remotely relevant to the point was the testimony of a witness about the average life of an outboard motor. No instruction on the matter was sought by First Marine.

In these circumstances, and in the absence of any cited authority on the point, we can hardly say the Trial Court erred in accepting the jury’s verdict on the amount of the compensatory recovery for the damage to the motor.

The jury found First Marine had breached the insurance contract. It awarded $5,000 as damages. There was no evidence before the jury upon which it could reasonably have awarded an amount more than the amount demanded which was $4,539.52. If that amount had been reduced by the $250 deductible and the $44 portion of the repair, estimate not attributable to the injury in question, the recovery would have been $4245.52 which is within 20% of the amount demanded. The breach of contract damages against First Marine were, as noted above, set off by the Trial Court because of the tort recovery against E-Z Mart for the same injury. The liability of First Marine for the contract breach within 20% of the amount demanded was, however, clearly established by the jury verdict, and thus the award of the attorney’s fee was not improper.

The judgment is modified so that the award in favor of Rickey Booth against First Marine is $2,500, representing the attorney’s fee, plus costs.

Affirmed as modified.


author: Richard A. Williams, Special Justice. William Clay Brazil, Special Justice,

text:
    Peggy BLANN, Benny Greenbaum, John Hanson, Ron Phillips, Trey Sutton, and the Arkansas Retail Beverage Association v. ALCOHOLIC BEVERAGE CONTROL BOARD and Lazette Mason
    93-346
    876 S.W.2d 259
    Supreme Court of Arkansas
    Opinion delivered May 16, 1994

      Laser; Sharp, Mayes, Wilson, Bujford & Watts, P.A., by: Brian Allen Brown and Jacob Sharp, Jr., for appellants.

      Sam Hilburn and Dorcy Kyle Corbin, for appellee Lazette Mason.

      Milton Lueken, for appellee ABC.
   Richard A. Williams, Special Justice.

This appeal is from an order of the Circuit Court of Pulaski County which affirmed a decision of the Alcoholic Beverage Control Board (ABC) approving the transfer to Lazette Mason of a retail liquor permit and a retail beer permit, both of which had been on inactive status for more than twelve months.

When the prior owner of the two permits went out of business in 1990, the ABC put the permits on inactive status for a period of six months. The ABC twice extended the inactive status of the permits.

On February 7, 1992, the permits were sold to Mason without the approval of the ABC.

On March 6, 1992, the ABC issued a Notice of Hearing to the prior owner of the permits, setting March 17, 1992, as the date for a hearing to determine whether the permits should be continued, suspended, or revoked. Before the date set for the hearing, Mason applied to the ABC to approve the transfer of the permits to her.

On May 20, 1992, the ABC approved the transfer of the permits to Mason over the objection of appellants. The location for which Mason was granted the right to use the permits had been occupied by another permittee whose permit was revoked within one year preceding the Mason application.

Appellants have raised three points on appeal:

First, that the ABC acted illegally in extending the inactive status of the permits beyond the six-month period provided in ABC Reg. § 1.80.

Second, that the ABC violated ABC Reg. § 1.32 in approving a permit location for which a permit had been revoked within one year preceding the Mason application.

Third, that the transfer of the permits to Mason violated Ark. Code. Ann. § 3-4-201 which imposes a quota for new permits.

Appellees contend that appellants lack standing to protest the ruling of the ABC.

1. EXTENSION OF INACTIVE STATUS

Prior to Act 779 of 1993 which was enacted and became effective after the ABC approval of the transfer of the permits to Mason, the only statutory reference to an inactive permit was contained in Ark. Code Ann. § 3-4-219 (d) which provides that a permit “shall remain valid until revoked or suspended” so long as the annual permit fee is paid.

ABC Reg. § 1.80 is the only Regulation of the ABC which deals with inactive permits. It provides that no permit shall remain on inactive status for a period in excess of six months.

Appellants contend that the permits were revoked automatically after having been inactive for six months because ABC Reg. § 1.80 imposes a six-month limit on inactive status. We do not agree.

ABC Reg. § 1.80 puts a permittee on notice that the ABC may revoke a permit after it has been on inactive status for six months. The Regulation does not prevent the ABC from extending inactive status for an additional period of time. By way of analogy, Ark. Code Ann. § 3-4-217 on its face operates as a complete bar to any transfer of a permit, but we held in Smith v. Estes, 259 Ark. 337, 533 S.W. 2d 190 (1976), that “the statute is a restriction on the permittee and not to any subsequent actions by the Board.”

The Director of the ABC testified that he extended the inactive status of the permits on two occasions with the approval of the Board and that he “routinely” extended the inactive status of a permit if the owner was making a reasonable effort to sell it. The ABC never revoked the permits. Absent such revocation, the permits remained on inactive status until their transfer to Mason was approved.

We note in passing that Act 779 of 1993 amended Ark. Code Ann. § 3-4-201 to set forth detailed procedures for the ABC to use in handling inactive permits. Nothing in Act 779 is inconsistent with our interpretation of ABC Reg. § 1.80.

2. PERMIT LOCATION

Although ABC Reg. § 1.32 does forbid the issuance of a permit for a location for which a permit has been revoked within one year of the application, we hold that this Regulation does not preclude the ABC from approving the transfer of a permit to such a location. Smith v. Estes, supra.

3. QUOTA ON NEW PERMITS

Ark. Code Ann. § 3-4-201 (c)(2) restricts the issuance of “new” permits to one for every additional 4,000 population within the area. Appellants contend that the approval of the transfer of the permits-to Mason created new permits. We do not agree.

Subsection (A) of Ark. Code Ann. § 3-4-201 (c)(2) provides as follows:

“(A) Additional permits may be issued on a ratio of one (1) for every additional four thousand (4,000) population within the area.” (Emphasis added.) '

We conclude, therefore, that the term “new permit” applies to a permit which increases the overall number of permits. It does not apply to a formerly inactive but unrevoked permit which has been transferred to a new owner with ABC approval.

Our decision to affirm this case eliminates any necessity to discuss the standing of the appellants.

Affirmed.

Special Justice Bradley D. Jesson joins in this opinion.

Special Justice William Clay BRAZiLand Dudley and Newbern, JJ., dissent.

Glaze, Corbin, and Brown, JJ., not participating.

William Clay Brazil, Special Justice,

dissenting. The issue raised on appeal is whether Mason’s permit was a new permit or a transfer of an existing permit.

ABC Reg. Section 1.80 provides that “no permit shall remain on an inactive status for a period in excess of six (6) months.”

The predecessor owner to Mason of the permit in question requested, by letter dated July 19, 1991 addressed to the ABC, that she be given an additional six (6) months extension of the inactive status. At that point, the permit had already been on inactive status for at least one six (6) month period.

On July 23, 1991, the ABC acknowledged the request and granted an additional extension until January 9, 1992, at the end of which time it provided that it would be necessary to have on file a transfer of permit application and that no further extensions would be approved.

The request to transfer the permit was not made until after the owner of the permit had been notified by the ABC that a hearing was to be held on March 17, 1992 on the charge that the permit in question had expired on June 30, 1991.

Based on ABC Reg. Section 1.80 and its own letters to Mason’s predecessor in title, the permit had expired. Therefore, the issuance of the permit to Mason constituted the granting of a new permit which caused the number of retail liquor permits to exceed the number allowed in Little Rock and Pulaski County established by Ark. Code Ann. § 3-4-201.

The Appellants and those dealing with the ABC are entitled to rely upon the ABC’s published regulations. If they are not, there would be, as argued by the Appellant, potential for abuse by an administrative body by altering or disregarding its own regulations.

For these reasons, I would reverse the decision of the trial court and the ABC Board with instructions for the trial court to enter an order consistent with this opinion.

I respectfully dissent.

Dudley and Newbern, J.J., join in this dissenting opinion.


author: Per Curiam.

text:
    Albert BETTS v. STATE of Arkansas
    CR 93-932
    874 S.W.2d 375
    Supreme Court of Arkansas
    Opinion delivered May 16, 1994

      McCullough Law Firm, by: Rita F. Bailey, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Per Curiam.

Albert Betts was convicted of murder in the first degree and sentenced to life imprisonment. He filed a timely notice of appeal and lodged the transcript. He filed a brief containing an abstract which was not in compliance with our rules. We granted the State’s motion to compel compliance with the rules and set April 9, 1994, a Saturday, as the due date for an amended abstract. Our letter informing counsel of the due date was mailed February 28, 1994.

The brief containing the revised abstract was not received until April 13, 1994. Mr. Betts’s counsel, Rita F. Bailey, has filed this motion attempting to place the blame on a delay in the mail, contending that because she mailed the corrected document to the Clerk on April 8, it should have been received on April 11, the first working day after April 9.

We must grant the motion to file a belated brief, else Mr. Betts would be denied his right of appeal in this serious criminal case due to his counsel’s failure to file the brief with the corrected abstract on time. See Hallman v. State, 287 Ark. 383, 698 S.W.2d 803 (1985).

Despite having been given well over a month to prepare the corrected abstract, counsel failed to get it to us on time. Given these circumstances, we forward a copy of this opinion to the Arkansas Supreme Court Committee on Professional Conduct.


text:
    Jimmy David HEDGE and Gary Jones v. STATE of Arkansas
    CR 94-70
    877 S.W.2d 90
    Supreme Court of Arkansas
    Opinion delivered May 16, 1994

      Henry & Mooney, by: Wayne Mooney, for appellant.
    No response.
   Per Curiam.

The record was lodged in this appeal on January 21, 1994, and appellants’ briefs were due on May 2, 1994. More than three months after the record was lodged and less than two weeks before appellants’ briefs are due, counsel for appellants move for the issue of a writ of certiorari to the court reporter to produce materials not in the record and identified only as “part of the trial proceedings.” Appellants also ask for a stay of the briefing schedule.

We grant the motions, at the same time pointing out that hereafter counsel will be expected to examine the record before, or immediately after, it is lodged in this court to determine that nothing essential (and designated) is omitted, if so, to specifically identify the omitted material, and to exercise due diligence in moving to supplement the record.

Writs of certiorari granted and briefing schedule stayed.


author: Ernie E. Wright, Special Justice.

text:
    William D. MOORE, Jr. v. W.J. “Bill” McCUEN, Secretary of State, et al.
    94-434
    876 S.W.2d 237
    Supreme Court of Arkansas
    Opinion delivered May 13, 1994

      Robert D. Smith III and Tom Tanner, for appellant.

      Shults, Ray & Kurrus, by: Steve Shults and Robert Shults, for appellees.
   Ernie E. Wright, Special Justice.

Appellant, William D. Moore, Jr., appeals from the judgment of the trial court denying his complaint for a writ of mandamus to prevent the election in 1994 of anyone to the seat he now holds as state senator for Arkansas Senate District No. 2.

Appellant was elected in November 1992 to a four-year term and assumed office in January 1993. In compliance with Article 8, Section 6, of the Arkansas Constitution as amended by Amendment 23, the thirty-five members of the senate, all of whom were elected in November 1992, drew lots to determine the eighteen senators whose terms would be reduced to two years as required by the constitutional provisions mentioned above. The drawing of lots to assure staggered terms occurs after the first election following each decennial federal census. Appellant was one of the eighteen senators who drew a two-year term.

In his complaint for a writ of mandamus, stay, and declaratory judgment, appellant alleges that Amendment 73 to the Arkansas Constitution, adopted by vote of the people in November 1992, repeals the provisions of Article 8 and Amendment 23, which provide for reduction in terms for eighteen state senators after reapportionment of districts. He also alleges that limiting the terms of some senators is á denial of equal protection for electors of those districts in which their senators’ four-year terms are shortened.

All defendants answered, denying plaintiff has grounds for relief.

Joseph K. Mahoney, II, a candidate for appellant’s seat in the senate, intervened and filed an answer denying plaintiff has grounds for relief. He also filed a counterclaim for a declaratory judgment that plaintiff’s senate term ends in January 1995.

Charlie Cole Chaffin, who was elected in 1992 to a four-year term in the senate, intervened, and filed a complaint for a declaratory judgment that the two-year term she drew is valid. She is a candidate for the Democratic nomination to the office of Lieutenant Governor, and would be ineligible under the provisions of Article 5, Section 10, of the Arkansas Constitution to seek the office if her current term is deemed to be a four-year term.

For his first point on appeal, appellant argues that the circuit court erred in finding Amendment 73 did not repeal the two-year term provision of Article 8 of the Arkansas Constitution as amended by Amendment 23.

We disagree. The relevant language of Amendment 73, § 2, is as follows:

The Arkansas Senate shall consist of members to be chosen every four years by the qualified electors of the several districts. No member of the Arkansas Senate may serve more than two such four year terms.

Appellant argues that Amendment 73 should be construed to mean that no senator may serve more than eight years and that the provision for two-year terms provided for after decennial elections and reapportionment is repealed by implication.

We note that Amendment 73 does not mention a cap on the total number of years a senator may serve but only states explicitly that a senator may not “serve more than two such four-year terms.” Amendment 73 does not touch on the subject of staggered terms for senators and the assignment of two-year terms by lot for eighteen senators after reapportionment as required by Article 8 as amended. In McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973), in addressing an issue of repeal by implication, we said:

A basic and fundamental rule applicable in consideration of the effect of both statutes and constitutional amendments is that repeal by implication is not looked upon with favor and is never allowed by the courts except where there is such an invincible repugnancy between the former and later provisions that both cannot stand together.

255 Ark. at 341-342, 500 S.W.2d at 364-365.

This court dealt with a similar argument in Williams v. Elrod, 244 Ark. 671, 426 S.W.2d 797 (1968). There it was argued that Amendment 45, providing for four-year terms for senators, repealed the lot-drawing provision found in Article 8 as amended by Amendment 23. In rejecting the argument, this court said:

Four-year terms for senators, reapportionment, and drawing by lots are thoroughly embedded in our law. Those principles are found in every Arkansas Constitution, four in all, since 1836. Having harmonized for 131 years, it is not reasonable to believe that the electorate intended to sever those provisions merely by approving the customary four-year term for senators. Repeal by implication is not favored.

244 Ark. at 673, 426 S.W.2d at 798. The holding in Williams, supra, is controlling in the case before us. The constitutional provisions are reconcilable.

For his second point, appellant argues that the trial court’s ruling creating uneven term limitations violates equal protection of the law guaranteed by the United States and Arkansas Constitutions and the principle of “One Man-One Vote.”

Appellant contends that the limitation of terms mandated by Amendment 73 makes the previous method of shortened terms unworkable because some senators would have the option to serve longer than other senators, and some senators’ constituents would be denied equal opportunity for experienced representation.

Such disadvantages, if any, to voters of a senate district in being deprived of the opportunity to prolong the incumbency of their senator under Amendment 73 will be temporary and incidental to the state’s interest in preserving the staggered-term provisions of Article 8 as amended. In Donatelli v. Mitchell, 2 F.3d 508 (3rd Cir. 1993), the Court of Appeals held that a law “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” 2 F.2d at 515, citing FCC v. Beach Communications, Inc.,__U.S.__, 113 S.Ct. 2096, 2101 (1993). We hold that the state has a rational basis for preserving the staggered-term provisions which have been a part of our constitutions for more than 150 years. There is nothing in the record to suggest there was any intention on the part of the drafters of Amendment 73 or of the voters in adopting it to discriminate against either the candidates or the electorate of any district. The fact that the amendment, when construed in connection with Article 8 as amended, will bring about modest and temporary differences in the total time a senator in a particular district may serve compared to senators of some other districts is simply incidental to the combination of constitutional provisions. In Donatelli, supra, the court said:

Numerous courts have concluded that temporary disenfranchisement resulting from the combined effect of reapportionment and a staggered term election system meets the rational-basis test and therefore does not violate the Equal Protection Clause.

2 F.3d at 515.

We point out that, if the two-year lot-drawn terms under Article 8 as amended were held repealed, it might pose a problem in the year 2000 when the federal census is taken. Normally, a reapportionment of senate districts should occur following the census, and the terms of seventeen senators elected in 2000 would be shortened to two years. All senators will be elected the year 2002, and there would probably be a drawing in 2003. At that time, eighteen senators would draw two-year terms. If the constitutional two-year term provision were held repealed, there would be no election from the reapportioned districts until 2004. The federal constitution requires reapportionment followed by elections from the new districts. Reynolds v. Sims, 377 U. S. 533 (1964). The state could well be confronted with a constitutional issue as to the timeliness of election if it were delayed until 2004.

For his third and final point, appellant argues that the circuit court erred by failing to follow the ruling in U. S. Terms Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994).

We reject appellant’s argument. After stating that only periods of service beginning on or after January 1, 1993, would be counted in determining ineligibility for elected state officers, the decision in U. S. Term Limits, supra, declares that “senators would not be ineligible for another eight years. ...” 316 Ark. at 272, 872 S.W.2d at 360. Appellant would have us construe that to mean that all senators would be ineligible after eight years of service, and the decision is not to be so construed. The plain meaning of the statement is that no senator would be ineligible for reelection until he or she has served for eight years after January 1, 1993. This does not preclude the possibility of a senator serving a two-year term as a result of reapportionment of districts plus two four-year terms after January 1, 1993. Amendment 73 is specific that it is service of two four-year terms that disqualifies a senator from reelection.

While we disagree with the statement in the judgment of the trial court that Amendment 73 does not preclude a senator from serving two four-year terms followed by a two-year term at the end of a census cycle, the statement is obiter dictum and does not affect the correctness of the order denying the relief sought by plaintiff and granting the relief sought by the intervenor, Joseph K. Mahoney, II.

A mandate will issue in this case on May 23, 1994. Any petition for rehearing shall be filed no later than May 18, 1994. Any response shall be filed no later than May 19, 1994.

Affirmed.

Glaze, J., not participating.

Corbin, J., concurs.


author: Robert H. Dudley, Justice.

text:
    Gregory R. LARIMORE v. STATE of Arkansas
    CR 93-799
    877 S.W.2d 570
    Supreme Court of Arkansas
    Opinion delivered May 23, 1994
    [Rehearing denied June 27, 1994.]

      Daniel G. Ritchey, Bill W. Bristow and Kent J. Rubens, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Gregory Larimore, appellant, was convicted of the first degree murder of his wife, June. He was sentenced to life imprisonment. Upon appeal, we reversed and remanded. Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992). Upon retrial, he was again convicted of first degree murder, but this time was sentenced to twenty-five years in prison. Even though the sentence is less than that required for appellate jurisdiction in this court, we will exercise jurisdiction because this is a subsequent appeal of a case initially decided by this court. Ark. Sup. Ct. R. 1-2(a)(ll).

June Larimore’s corpse was found in the parties’ home at 11:30 the morning of January 11, 1990. She had been stabbed in the face, torso, arms, hands, and legs a total of one hundred thirty-four times, apparently with a knife that was wiped clean and replaced in a cutlery block in the kitchen. The body was nude except for panties which were rolled down around the hips in a manner which would be consistent with dragging the body by the hands from the bed to the floor. There was a deep stab wound in the pelvic area, but no corresponding cut in the panties. Samples from her vagina did not indicate that a sexual attack had occurred. When the body was found, a nearby outside door was unlocked, the stereo sound system was still on, her watch and rings were still on, and her open purse containing cash appeared not to have been disturbed. There was evidence that a violent struggle had occurred in the bedroom, and the bathroom sink appeared to have been wiped off, but the rest of the home appeared to be undisturbed except for the telephones. A telephone in the living room and a cordless phone in the hallway were unplugged, and the cord to a phone in the bedroom was severed. The sheets on the bed were soaked with blood, and some of appellant’s clothes were found under the corpse. A fair inference from the evidence is that anger was likely the motivating force for the murder, rather than a sexual crime or a crime such as robbery or burglary. There was no direct evidence linking appellant to the murder.

Appellant told the police that he had fallen asleep on a couch the night before, woke up at 6:00 a.m., and left for work at the family farm supply business at 6:30 on the morning the body was found. In another statement, he said he had awakened around 3:00 a.m. and gotten in bed with June, where he slept until 6:00. Another version was that he woke up at 3:00, but decided not to disturb June by getting into the bed. He said that when he left home at 6:30, June was alive and asleep, wearing only a pair of panties. It is undisputed that appellant reported to work at the family business shortly after 6:45 a.m., that he had no blood on him, and that his appearance was normal.

A critical element in the State’s circumstantial evidence case was proof that the murder took place before appellant went to work. The State proved this element with the testimony of a forensic pathologist, Dr. Fahmy Malak, the former state medical examiner, who testified that the victim died as early as 1:00 or 2:00 o’clock of the morning the body was found. In his first two assignments of error, appellant argues that the circuit judge erred in denying motions for a directed verdict when a crucial element of the case, the time of death, rested upon a theory of “junk science,” thereby depriving appellant of due process of law.

Appellant’s challenge to the sufficiency of the evidence, which is based upon the purported unreliability of Dr. Malak’s testimony that the body temperature of stabbing victims will rise for a short while after they lose large amounts of blood, is barred by the doctrine of the law of the case since appellant made a similar argument in his previous appeal. The doctrine of law of the case prevents an issue raised and decided in a first appeal from being raised in a subsequent appeal, unless the evidence materially differs between the appeals. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992); Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991). In his first appeal, appellant argued that he should have been granted a directed verdict because the State’s case was based in part on Dr. Malak’s testimony, and he contended that this testimony was “contrary to the daily experience of common life and inconsistent with well known physical laws.” See Larimore v. State, 309 Ark. 414, 417, 833 S.W.2d 358, 359 (1992); see also Allread v. Mills, 211 Ark. 99, 199 S.W.2d 571 (1947). We affirmed the trial court on this point and stated that, although the theory may seem implausible and may be against the “decided weight of medical opinion,” it was not so clearly contrary to the laws of nature as to be inherently impossible. Larimore, 309 Ark. at 418, 833 S.W.2d at 359. The case was reversed on other grounds.

The first two points of appeal do contain sub-points which are not barred by the law of the case doctrine. In the first of these, appellant contends that the trial court erred in refusing to allow him to impeach Dr. Malak’s credibility by bringing up other rulings that he made as medical examiner. Appellant sought to impeach Dr. Malak by questioning him about the following findings he had made: (1) marijuana-induced sleep as an explanation of the reason two teenagers were lying on a railroad track, did not hear a train coming, and were run over; (2) a conclusion of death by suicide when a victim was shot three to five times in the chest; and (3) the opinion that a fourteen-year-old girl had broken her neck from stepping off a four-to-six inch high porch. The trial court refused to allow the impeachment, stating that these findings had nothing to do with the issues in the present case, but told appellant that he could cross-examine Dr. Malak on anything that was part of the basis of his opinion regarding the body temperature of victims who have lost large amounts of blood.

Rule 611 of the Arkansas Rules of Evidence provides in pertinent part:

(b) Scope of Cross-Examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

A.R.E. Rule 611(b).

A trial court has wide latitude to impose reasonable limits on cross-examination based upon concerns about confusion of issues or interrogation that is only marginally relevant. Bow-den v. State, 310 Ark. 303, 783 S.W.2d 842 (1990). While the proposed cross-examination might have had the effect of diminishing Dr. Malak’s credibility, his findings in the prior cases were not based upon his theory on the body temperature of stabbing victims; therefore, they were not consequential to a determination of whether his theory was to be believed in this trial. For this reason, we cannot say the trial court abused its discretion in imposing this restriction. See Bowden, 301 Ark. at 310, 783 S.W.2d at 845. We will not disturb this discretion upon review in the absence of a showing of abuse. Warren v. State, 314 Ark. 192, 862 S.W.2d 222 (1993); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992).

Appellant also argues that the original medical examiner’s report was altered. The name of the victim on the original document was covered with “white out” and the name “Demetria” was changed to “Laura.” The victim’s full name was Demetria June Larimore. It also appears that there was once a time of death entered on the report, but someone wrote “time unknown” over white-out. These were factors to be considered by the jury in determining the credibility of Dr. Malak and his reports. Credibility is for a jury, not an appellate court, to determine. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

In his next point of appeal appellant argues that the trial court erred in permitting a witness to give his opinion about the innocence of a third person who at one time was a suspect in the murder. The ruling was in error, but appellant suffered no prejudice as a result of the ruling, and we will not reverse for harmless non-Constitutional error. The facts necessary to understand the issue are as follows. In attempting to create a reasonable doubt appellant sought to show that the police investigation of this case was flawed and that another person had been seen near the Larimore home the morning of the murder. In order to discredit the police on cross-examination, appellant asked a number of questions about mistakes in the gathering and preservation of the evidence. After persistent questioning about investigative errors, appellant asked former Blytheville Police Chief Larry Christie about reports that there was a stranger in the neighborhood the morning of the murder. Chief Christie admitted that there were reports that a young man, later identified as Mark Lockhart, had been seen in the carport of the Larimore home of the morning of January 11,1990. He testified that neighbors had been shown photographs, but they could not identify the person they had seen, and that a hair sample had been taken from Mark Lockhart. Apparently hoping to have planted the idea that Lockhart might have committed the murder, appellant stopped cross-examination.

On redirect, Chief Christie testified that some ten months after the homicide he found a misplaced envelope of floor sweepings from the Larimore home and directed that hair samples be taken from various police officers who had been in the home. He also directed that a hair sample be taken from Lockhart. He testified that he was aware of a report from the Arkansas State Crime Lab which stated that the hair sample found in appellant’s bedroom belonged to a Blytheville police officer. He said they were unable to talk to Lockhart since he is hearing and speech impaired. At this point, the prosecutor asked Chief Christie if he had determined that Lockhart was not involved in the crime. Appellant objected, and a conference was held outside the hearing of the jury. The court overruled the objection, stating that appellant had opened the door to this testimony by insinuating that Lockhart had committed the crime and that the police had not done their job. In addition, the court ruled that the State would be permitted to “fight fire with fire” by offering the answer.

The Chief’s response is abstracted as follows:

We were able to identify the person that was seen near the area of the homicide. It would have been proper police procedure to follow through and try to find out where that person was at that time. I am satisfied that it was not the person who committed the crime.

Appellant contends that Chief Christie’s testimony was inadmissible opinion testimony. The fact that testimony may be an opinion does not of itself render it inadmissible. The Arkansas Rules of Evidence allow lay witnesses to offer opinions which are rationally based upon their perceptions. See A.R.E. Rule 703. However, a witness is generally not allowed to give an opinion as to the guilt or innocence of a party as this is a matter reserved for the jury. See Foreman v. State, 198 Ark. 888, 132 S.W.2d 13 (1939); Christian v. State, 6 Ark. App. 138, 639 S.W.2d 78 (1982). In the oral argument of this case, the State conceded that, according to the general rule, the witness should not have been allowed to give his opinion about the innocence of Lockhart. Even so, the State contends that the ruling was not error because the trial judge correctly allowed the State to fight fire with fire.

We have recognized that otherwise inadmissible testimony may be offered when one party has opened the door for another party to offer it. This is most often permitted when a defendant has been untruthful about a former crime or has brought up otherwise inadmissible character evidence which the State may then rebut. See Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993); McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986). The rationale behind this rule is articulated in Walder v. United States, 347 U.S. 62 (1954), in which the defendant, who had been formerly charged with drug dealing but was not tried because that search was illegal, testified that he had never dealt in narcotics. Id. at 65. The government rebutted the testimony by bringing up the former charge. The Supreme Court of the United States held that, while such evidence would generally be unconstitutionally inadmissible, “there [was] hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.” Id.

Since Walder, we have recognized the propriety of “fighting fire with fire” when one of the parties opens the door with an untruthful statement, introduces inadmissible evidence, or makes an improper closing argument. See Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992); Wortman v. Shipman, 293 Ark. 253, 737 S.W.2d 438 (1987); Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984). But this case does not involve such an act by appellant. The questions asked by appellant’s attorney were proper. Appellant offered no false testimony, and his attorney made no improper statements. He offered nothing to justify allowing the State to fight fire with fire, and the ruling cannot be upheld on that basis.

A factual inquiry such as “Tell me what you did,” clearly would have been proper. Factual questions were asked before the Chief’s opinion was elicited. In response to these factual questions, the Chief testified that the police conducted an investigation to determine who might have been in the vicinity of the Larimore home near the time of the murder and learned that Mark Lockhart was seen in the carport area of the Larimore home between 7:30 and 8:00 a.m. He testified that the police took sweepings from the room, and those sweepings contained a hair that was from neither appellant nor the victim. In addition, unidentified fingerprints were found in the house. The police took a sample of Lockhart’s hair, but it did not match the hair found in the sweepings, and the police could not question Lockhart because he has “no ability to communicate in any recognized language.” He is hearing and speech impaired and apparently unable to either read or write. From the above, it is clear that the jury had before it facts that showed Lockhart was seen near the Larimore home a good while later than the State’s proof showed the murder occurred and that a hair sample found at the scene did not match a hair sample from Lockhart. The jury knew that appellant, not Lockhart, was the person charged with the murder. Since appellant opened this line of questioning, and since the jury had facts before it that showed the Chief thought appellant, not Lockhart, committed the crime, the ruling did not substantially affect the evidence, and appellant suffered no prejudice. Error may not be predicated upon a ruling admitting evidence unless a substantial right is affected, and we will not reverse in the absence of prejudice. See A.R.E. Rule 103(a); Daniels v. State, 293 Ark. 422, 739 S.W.2d 135 (1987).

Appellant contends that the court erred in refusing to allow him to establish his prior history of nonviolence through the testimony of defense witnesses. Peacefulness is a trait that is pertinent to the defense of a murder charge. See Shelton v. State, 287 Ark. 322, 334, 699 S.W.2d 728, 734 (1985). It is necessary to allow evidence of a defendant’s character so that the accused might have a chance to raise a reasonable doubt in the minds of the jury. Id. (citing 2 Jack B. Weinstein & Margaret M. Berger, Weinstein’s Evidence § 404[02] (1984)). However, the type of character evidence which may be offered on direct examination is limited to opinion or reputation evidence. Specific instances of conduct may not be used. Id.

Here, witness Bob Jackson testified that his daughter had dated appellant six or seven years prior to trial, and appellant’s attorney sought to ask Jackson if appellant ever had a physical confrontation with his daughter. The trial court correctly sustained the State’s objection since the testimony came within the realm of a specific instance of conduct rather than a pertinent trait or a reputation for peacefulness. See A.R.E. Rule 404. Later appellant called his sister, Laura Williams, who testified that appellant and the victim had a good marriage and that she had never seen him act violently toward the victim. Later she was asked if her brother had ever acted violently toward anyone, and the trial court sustained the State’s objection to the question. Arguably, the question again sought to solicit testimony of a specific act, but the proffer made it clear that appellant sought to ask this witness of her general impression. The ruling was in error, but no prejudice resulted. To obtain reversal, appellant must not only show error, but must demonstrate prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). While appellant was not successful in getting all of Williams’s testimony about his trait for peacefulness before the jury, he was allowed to put before the jury evidence that he was peaceful toward the victim. Subsequently, appellant’s mother, Sara Larimore, testified without objection that, to her knowledge, her son had never been aggressive toward the victim or anyone else. Error in the exclusion of evidence is nonprejudicial where the same evidence has been put properly before the jury for its consideration. Hall v. State, 286 Ark. 52, 689 S.W.2d 524 (1985). Here, the jury was able to consider positive character evidence regarding appellant’s relationship with the victim as well as with others. Thus, he did not suffer any prejudice from the exclusion of his sister’s testimony.

Appellant’s final point of appeal is that the trial court erred in granting the State’s motion in limine to exclude testimony concerning acts and conduct of Mark Lockhart, who was a possible suspect in the case. Appellant sought to put before the jury evidence that a person other than he committed the murder. This is generally recognized as relevant evidence under fundamental standards. See United States v. Stevens, 935 F.2d 1380 (3rd Cir. 1991); United States v. Armstrong, 621 F.2d 951 (9th Cir. 1980); Smith v. State, 33 Ark. App. 37, 801 S.W.2d 655 (1990). It is often recognized that such evidence as other parties’ threats to kill or offer of payment to someone else to commit murder are relevant to prove motive on the part of someone other than the defendant. See Smith, 33 Ark. App. at 41, 801 S.W.2d at 658. Such evidence is sometimes called “reverse 404(b),” as it is evidence of other crimes, wrongs, or acts by a party> other than the defendant which may not be admitted to show that the party acted in conformity with a known character trait, but which may be admitted for other purposes, such as to show motive, opportunity, intent, or identification of that other party, thus tending to negate the guilt of the defendant. See Stevens, 935 F.2d at 401-02; see also 1A John H. Wigmore, Evidence in Trials at Common Law §§ 139, 141, 142 (Chadborn rev. ed. & Supp. 1994).

In the instant case, appellant wanted a neighbor to testify that Mark Lockhart, a young man who had been seen near appellant’s home the morning of the murder and who had previously done some yard work for the witness, had been caught entering her home and taking some property on one occasion and had attempted to break into her home on another. Both of these incidents occurred several months before the murder. The State moved in limine to exclude this testimony based on relevancy, and the motion was granted.

Evidence offered under Rule 404(b) of the Arkansas Rules of Evidence must be independently relevant. See Crutchfield v. State, 25 Ark. App. 227, 763 S.W.2d 94 (1988). Therefore, it must “have a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” A.R.E. Rule 401. Even if the evidence is relevant, it may be excluded if its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” A.R.E. Rule 403; see also Crutchfield, 25 Ark. App. at 234, 763 S.W.2d at 97. The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the trial court, which this court will not disturb on appeal absent a showing of manifest abuse. Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992). The standard of review is similar for both relevancy determinations and the decision to admit evidence by balancing the probative value against unfair prejudice or confusion of the issues. See Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990); Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Under these standards, the trial court did not abuse its discretion by refusing to admit this testimony.

The Minnesota Supreme Court provides a helpful guide to the appropriateness of “reverse 404(b)” evidence in State v. Bock, 39 N.W.2d 887 (Minn. 1949), where it wrote:

[The defendant should] . . . have the right to show that crimes of a similar nature have been committed by some other person when the acts of such other person are so closely connected in point of time and method of operation as to cast doubt upon the identification of the defendant as the person who committed the crime charged against him.

Id. at 892 (citation omitted). Also helpful is the Fifth Circuit’s guide for determining relevance and admissibility, which requires that the evidence have “a tendency to negate [the defendant’s guilt], and that it [pass] the Rule 403 balancing test.” Stevens, 935 F.2d at 1405. Similarity and time connections are factors in determining the probativeness of the evidence, which must be weighed against the possibility of confusing the issues and wasting time. Some courts have said that there should be a sufficient nexus between the evidence and the possibility of another person’s guilt and that this evidence should do more than create a mere suspicion. See Cikora v. Dugger, 840 F.2d 893 (11th Cir. 1988); Williams v. State, 600 N.E.2d 962 (Ind. App. 1992).

Here, the evidence offered was that in the summer or fall of 1989, Mark Lockhart broke into the witness’s house and took candy, tools, prescription drugs, and other miscellaneous items, which he gave back when the witness confronted him. On another occasion, this witness observed him walking away from her house after she had heard a noise at her back door and observed the door knob moving. Given the dissimilarity of these incidents with the facts of the instant case, we cannot say that the trial judge abused his discretion by deeming that it was irrelevant or would have possibly confused the issues or wasted time. This case is devoid of any evidence of theft or burglary. The witness who would have testified about Mark Lockhart offered no evidence that he was violent toward her. In fact, her testimony indicates that he did not act violently even when he might have, as he immediately surrendered her property to her as soon as she confronted him and did not try to harm her. Therefore, the trial court did not err in refusing to allow this testimony.

Affirmed.


text:
    Doris MIKEL v. Donald D. HUBBARD and Hubbard Marine Service, Inc.
    93-755
    876 S.W.2d 558
    Supreme Court of Arkansas
    Opinion delivered May 23, 1994
    [Rehearing denied June 27, 1994.]

      Shock, Whitmore & Harp, by: J. Randolph Shock and Troy R. Douglas, for appellant.

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by; Robert E. Hornberger, and Willard C. Smith, Jr., for appellees.
   Robert H. Dudley, Justice.

Plaintiff Doris Mikel alleged defendant Hubbard Marine wrongfully occupied her land on the east side of the Poteau River. The jury returned a defendant’s verdict, and a judgment was accordingly entered. We affirm the judgment.

The interesting facts of this case are as follows. In 1820, 1825, and 1830, Congress ratified the Treaty of Doak’s Stand, the Treaty of Washington, D. C., and the Treaty at Dancing Rabbit Creek with the Choctaw Indian Nation. These treaties placed title to land that was west of the western boundary of Arkansas in the Choctaw Indian Nation. At the time of statehood, in 1836, the western boundary of Arkansas was east of the Poteau River. In 1904, the area between the western boundary of Arkansas and the Poteau River was platted and subdivided as part of West Fort Smith, Choctaw Nation, Indian Territory. In 1905, Congress extended the western boundary of Arkansas to the thread of the Poteau River and, by moving the boundary west, placed the land in dispute in Arkansas. In 1908, the Choctaw Indian Nation began selling its platted lots in West Fort Smith, Arkansas. In 1909, the area was annexed into Fort Smith, Arkansas. In 1918, William Ray purchased unallotted Indian land tracts 510 and 526 and subsequently wrote a letter of complaint to the Commissioner of the Five Civilized Tribes that the lots “were badly damaged by the river.” Part of these two tracts was later acquired by plaintiff Mikel as Lot 7 of West Fort Smith. In 1981, defendant Hubbard Marine purchased lots 10 and 11, which are part of Lot 7, and constructed a concrete driveway and dock that extend into the river. Plaintiff Mikel contends the driveway and dock are on her land.

Plaintiff filed this suit in ejectment, and thus had the burden of proving title to the land by relying upon the strength of her title and not upon the weakness of the defendant’s claim. See Jones v. Brooks, 233 Ark. 148, 343 S.W.2d 99 (1961). Hubbard Marine pleaded that it had acquired the right to the land, on which it built the driveway and dock, through accretion to lots 10 and 11. Both parties acknowledge that accretion is an affirmative defense and that Hubbard Marine had the burden of proof on the issue. See Simpson v. Martin, 174 Ark. 956, 298 S.W.2d 861 (1927). The trial court charged the jury on the law of accretion. The verdict was a general verdict for the defendant, and we have no way of knowing whether the jury found that plaintiff failed to establish her title, or whether it decided that the defendant proved it was entitled to the land through accretion.

Plaintiff makes six assignments of error, but we are able to reach only one of the points, as the other five are procedurally barred. The assignment we reach involves Hubbard Marine’s cross-examination of Doris Mikel about her complaint and amended complaint. Hubbard Marine’s attorney asked plaintiff if she had alleged in her complaint that the offending activity began in August of 1981. Plaintiff’s attorney objected, and the trial court overruled the objection. Hubbard Marine’s attorney then began a question with the phrase, “Seven years after you went down there and first saw. ..,” and plaintiff’s attorney objected. The trial judge sustained the objection and, at Ms. Mikel’s request, instructed the jury that a complaint initially was filed in Federal District Court in 1986. In her brief, plaintiff argues: “Introduction of a complaint into evidence is reversible error. Razorback Cab of Fort Smith, Inc. v. Lingo, 304 Ark. 323, 802 S.W.2d 444 (1991). Likewise, examination of a witness concerning specific allegations in that pleading should be inadmissible.”

Plaintiff cites no authority for the argument that a party cannot be cross-examined about his or her pleadings and does not make any further argument. When an appellant neither cites authority, nor makes a convincing argument, and where it is not apparent without further research that the point is well taken, we will affirm. Firstbank of Arkansas v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993). We will not do appellant’s research. Id. Further, it is clear that Rule 613 of the Arkansas Rules of Evidence provides for examination of a witness concerning his or her prior statement. Plaintiff’s second objection, made soon after the first, was sustained, and an admonition was given as she requested. A party cannot complain when he or she has received all the relief requested. Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993). Thus, the assignment of error is without merit.

Each of the other five points of appeal are either procedurally barred or, at most, harmless error, and we treat them only briefly. In one of the points, plaintiff argues that the trial court erred in failing to direct a verdict in her favor on Hubbard Marine’s affirmative defense of accretion, but plaintiff did not make such a motion at either the close of the defendant’s affirmative defense or after her rebuttal of the affirmative defense. In a trial by jury, a trial court is not required to grant a directed verdict on its on motion. See ARCP Rule 50(a) & (e); see also Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). At a later time, during discussion of the proposed instructions, plaintiff stated that the trial court should have granted a directed verdict, but even at that late time, there was no ruling by the trial court. Even though the point was already waived, see Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994), it was up to appellant to obtain a ruling in order to even possibly preserve the issue for appeal. Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989).

Plaintiff also contends that the general verdict was “not supported by a preponderance of the evidence.” Determining the preponderance of the evidence is for the jury, and an appellate court will not reweigh the evidence. However, it does not appear that this is what plaintiff is really asking us to do. In her argument, she contends that there was no evidence whatsoever to contradict her ownership of the property and that we should reverse and declare that she is the owner of the property. She did not move for a new trial, and this is not an appeal from a ruling denying a new trial. See ARCP Rule 59(a)(6). In addition, plaintiff did not move for a directed verdict on her case-in-chief, nor did she move for a directed verdict on Hubbard Marine’s affirmative defense. The sufficiency of the evidence was never raised in the trial court by plaintiff, and she cannot raise it for the first time on appeal, ARCP Rule 50(e); Willson Safety Prods. v. Eschenhrenner, 302 Ark. 228, 788 S.W.2d 729 (1990).

Plaintiff also argues that the doctrine of collateral estoppel barred Hubbard Marine from acquiring the land in dispute, but plaintiff neither pleaded collateral estoppel, see ARCP Rule 8(c), nor did she mention the words “collateral estoppel” to the trial court. Plaintiff seems to contend that by asking the trial court to take judicial notice of the case of City of Fort Smith v. Mikel, 232 Ark. 143, 335 S.W.2d 307 (1960),’ she apprised the trial court that she was raising the issue. The request to take judicial notice of a case was not sufficient to give the trial court notice that she was claiming collateral estoppel, especially in the context in which the request was made, but even if it were sufficient, there was no ruling on the issue. The burden of obtaining a ruling is on the party who asks for the ruling. Firstbank, 312 Ark. at 444, 850 S.W.2d at 312.

In yet another point, plaintiff argues that the trial court erred in refusing to instruct the jury on punitive or treble damages. Because of the defendant’s verdict, the jury may have never considered the issue of damages, and, consequently, appellant cannot demonstrate prejudice. Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). We will not reverse in the absence of prejudice. Any alleged error regarding punitive damages is, at most, harmless error, when no consequential damages were awarded. National Bank of Commerce v. Beavers, 304 Ark. 81, 802 S.W.2d 132 (1991).

Finally, plaintiff contends that the trial court erred in instructing the jury on the law of accretion. Plaintiff’s abstract on the point is as follows:

Plaintiff objected to any instructions on accretions. (Five instructions from T-1046 to T-1050 variously defining accretions) The objection to accretions was clearly made in chambers on the basis of two cases on which the Court had previously taken judicial notice for the record and because directed verdict should have been rendered on the affirmative defense of accretions.

As previously set out, the plaintiff never moved for a directed verdict; therefore, the trial court clearly did not err in giving the instructions on that basis. The two cases plaintiff asked the trial court to take judicial notice of were Choctaw Nation v. Okla homa, 397 U.S. 620 (1970) and City of Fort Smith v. Mikel, 232 Ark. 143, 335 S.W.2d 307 (1960). The trial court ruled that it would take judicial notice of the two cases for the purpose of establishing plaintiff’s chain of title. There was nothing specific in the request to take judicial notice of the two cases that would cause the trial court to refuse the instructions on accretion. No party may assign as error the giving of an instruction unless he or she states distinctly the matter to which he or she objects and the grounds of the objection. ARCP Rule 51; Davis v. Arkansas Highway Comm’n, 290 Ark. 358, 719 S.W.2d 694 (1986). In her brief, plaintiff changes citations and grounds for objecting to the instructions and for the first time argues the instructions were erroneous under the law announced in Nilsson v. Latimer, 281 Ark. 325, 664 S.W.2d 447 (1984), McKee v. Gay, 226 Ark. 585, 293 S.W.2d 450 (1956), and Kilgo v. Cook, 174 Ark. 432, 295 S.W.2d 355 (1927). (The latter two of the cases were both overruled in part by Nilsson.) The law as set out in those cases was not specifically presented to the trial court; consequently, the plaintiff is barred from now raising this argument. Further, Hubbard Marine offered evidence which would authorize giving the instructions, and a trial court must give an instruction when the evidence warrants. Parker v. Holder, 315 Ark. 307, 867 S.W.2d 436 (1993).

Affirmed.


text:
    Willie B. JONES v. STATE of Arkansas
    CR 94-75
    876 S.W.2d 262
    Supreme Court of Arkansas
    Opinion delivered May 23, 1994

      Tiner & Hunter, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Willie B. Jones, was tried by jury and convicted of the first degree murder of Delois Coleman and the battery of her daughter, Denise Coleman. Mr. Jones was sentenced to life imprisonment on the murder conviction and six years imprisonment for the battery. We find no merit in his arguments for reversal and affirm.

On September 4, 1992, Mr. Jones entered the home of Delois Coleman who was his former girlfriend. At that time, Denise Coleman, Delois’s daughter was also present in the home. Denise Coleman testified that after Mr. Jones entered the house he went into the bedroom with her mother. Shortly thereafter she heard screams but was unable to enter the bedroom because the door was locked. She attempted to call 911 and when that failed she called her Aunt.

As she was relating the events to her Aunt over the phone, Mr. Jones came out of the bedroom with blood on his shirt and pants. He struck her in the face with his hand and she fell to the floor where he stomped her, hit her with a chair and struck her with an iron which broke two of Miss Coleman’s fingers.

Miss Coleman escaped through the door and ran to the home of her next door neighbor. The police were called. When the police arrived they discovered that her mother, Delois Coleman, had been stabbed to death with a butcher knife. The police arrested Mr. Jones who had driven away in the victim’s car.

Mr. Jones was given a psychiatric evaluation by Dr. Heisler on May 10, 1993. Dr. Heisler diagnosed Mr. Jones as suffering from paranoia and recommended that he be evaluated at the State Psychiatric Hospital in Little Rock, Arkansas. At that time it was his professional opinion that Mr. Jones was not competent to stand trial. According to his report, Dr. Heisler was unable to determine if Mr. Jones was able to appreciate the wrongfulness of the alleged event. The Trial Court subsequently ordered Mr. Jones sent to the State Hospital for a full psychiatric evaluation.

On September 10, 1993, Mr. Jones’s counsel moved that the order to transport him to Little Rock for evaluation be rescinded. The Trial Court granted the motion. Just prior to trial, counsel moved for dismissal on the ground that Mr. Jones was not competent. The basis for the motion was the psychiatric evaluation performed by Dr. Heisler on May 10. The State responded that Mr. Jones waived this defense by having the order for a full evaluation rescinded.

The Trial Court ordered another evaluation. Prior to the trial, Dr. Heisler reexamined Mr. Jones. Dr. Heisler testified that in his opinion Mr. Jones was competent to stand trial and that he had the ability to distinguish right from wrong at the time of the incident.

During the jury selection process, Mr. Jones moved to quash the jury due to the fact that all the farmers who had been selected for the jury panel were dismissed. The Trial Court denied the motion. Mr. Jones also made a motion that he be found incompetent to stand trial and when this was denied he asked for a continuance. The Trial Court denied both of these motions as well.

At trial, Mr. Jones objected to the admission into evidence of parts of the pretrial motion he made which asked the Trial Court to dismiss the order for a full psychiatric evaluation. The Trial Court overruled the objection and allowed the evidence.

1. Excusal of venire members

In his first two points on appeal Mr. Jones claims the Trial Court should have quashed the jury because eight farmers who were on the jury panel were excused. The Circuit Clerk testified that of the 150 names which were originally drawn from the jury wheel, six of the venire listed their occupations as farmer and two as farmhand. All eight were excused.

The wholesale excusal from the venire of individuals who claim farming as their occupation is reversible error if it is automatic and based solely on that fact. In Hall v. State, 259 Ark. 815, 537 S.W.2d 155 (1976), the Trial Court excused all the farmers who were drawn from the jury wheel without further ado. We reversed and held that it was error to deliberately and systematically exclude a large class of eligible jurors.

Arkansas Code Ann. § 16-31-103 (Supp. 1993) states that “Any person may be excused from serving as a grand or petit juror . . . when for any reason, his own interests . . . will, in the opinion of the court, be materially injured by his attendance.” When reviewing the requests for excusal from potential jurors for Mr. Jones’s case, the Trial Court specifically said that each farmer was considered individually on a case-by-case basis. The Trial Judge noted that the farmers were harvesting their crop and would suffer extreme hardship if they served. The Trial Court further stated that the farmers were excused only after requesting to be excused “either orally before the Court or through questionnaires.”

There was not a wholesale dismissal of potential jury members based solely on occupation. Each farmer excused made an individual request. The same procedure applied to all persons whose names were drawn and was not in any way limited exclusively to farmers. The Trial Court acted within its authority.

2. Competency

Mr. Jones asserts that the Trial Court abused its discretion by finding him competent to stand trial. The assertion is based on the evaluation that was given by Dr. Heisler on May 10, 1993, in which Dr. Heisler stated that he did not believe the defendant was competent at that time. Mr. Jones claims that evaluation should have been given greater weight than the evaluation which occurred on the morning of the trial.

It is within the Trial Court’s discretion to rely on a second evaluation when making the competency determination because the issue of competence pertains directly to the accused’s ability to understand the charges against him and assist in his defense. See Mauppin v. State, 314 Ark. 566, 865 S.W.2d 270 (1993). When a trial court has determined that a defendant is competent to stand trial, this Court will affirm if there is substantial evidence to support the trial judge’s finding. Id. There will be no attempt to weigh the evidence or pass on the credibility of witnesses when the medical reports conflict with each other. Id.

Dr. Heisler testified that on the day of the trial, Mr. Jones wanted to go to trial, and wanted to be involved in his own defense. Dr Heisler’s testimony also included his professional opinion that Mr. Jones was competent to stand trial. No error occurred.

3. Continuance

Mr. Jones argues the Trial Court abused its discretion by denying his motion for a continuance. At trial he did not offer a cogent reason for the request but loosely based it on the facts that he had not had a full psychiatric evaluation and that Dr. Heisler had changed his diagnosis regarding competency. Mr. Jones now contends that he was unfairly prejudiced and should have been allowed extra time to prepare his defense.

The particular facts of each case must be examined when determining if a continuance is warranted. Thorne v. State, 269 Ark. 556, 601 S.W.2d 886 (1980). A trial court’s denial of a motion for a continuance will not be reversed absent a clear abuse of discretion, and the defendant has the burden of proof in showing the abuse of discretion. Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993). When considering whether a continuance should be granted several factors are considered including: 1. the diligence of the movant, 2. the probable effect of the testimony or evidence, 3. the relevance of the testimony, and 4. the likelihood of procuring the evidence or witness sought. Id. Failure to exercise due diligence alone can be the basis to deny a motion for a continuance. Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994).

Other factors which may be considered are whether the delay was requested for a legitimate reason, whether the motion was timely filed, whether the defendant contributed to the circumstances giving rise to the continuance, and whether identifiable prejudice would result if the motion were denied. See Thorne v. State, supra.

The only possibly legitimate basis we see in the record for the continuance sought was the change in Dr. Heisler’s testimony upon which Mr. Jones had intended to rely. Mr. Jones had, however, voluntarily given up his opportunity for the further psychiatric evaluation which might have been used to contradict Dr. Heisler’s testimony. Mr. Jones was responsible for the fact that he did not receive a full psychiatric evaluation.

The Trial Court properly concluded that Mr. Jones created the circumstances of which he complained and that he had failed to act diligently. Mr. Jones has failed to meet his burden of showing an abuse of discretion.

4. Admission of evidence

Mr. Jones’s contention that it was an abuse of discretion to admit into evidence parts of his motion to rescind the order for a psychiatric evaluation is also without merit. He contends that the fact that defense counsel made the motion is irrelevant and that introduction of the motion to the jury was improper as it was more prejudicial than probative.

A Trial Court’s ruling on relevancy is entitled to great deference, and will be reversed only if the trial court abused its discretion. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). Likewise the balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge, and his decision on such a matter will not be reversed absent a manifest abuse of that discretion. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992).

Dr. Heisler was presented as Mr. Jones’s witness. In response to a question he stated he had assumed Mr. Jones was to be sent to the State Hospital for evaluation but later learned that was not to be the case because the defense had “quashed” the motion to send him there. Direct examination of Dr. Heisler continued with no attempt to have the answer struck as being unresponsive or otherwise questioned. Then on cross-examination the prosecution had Dr. Heisler read into evidence parts of the motion to revoke the order to transport Mr. Jones to the State Hospital.

One who opens a line of questioning or is responsible for error should not be heard to complain on appeal. Cavin v. State, 313 Ark. 238, 855 S.W.2d 285 (1993). There was no abuse of discretion.

5. Compliance with Supreme Court Rule 4-3(h)

The record of trial has been examined, and all decisions on objections and motions adverse to Mr. Jones have been reviewed. No prejudicial error has been found.

Affirmed.


author: Tom Glaze, Justice.

text:
    STROUD CROP, INC., Howard Miller, d/b/a Miller Ins. Agency, Agent for Stroud Crop, Inc., and Ins. Co. of the Prairie States v. Chip HAGLER & Crandal Hagler, d/b/a Cypress Creek Farms
    93-1233
    875 S.W.2d 851
    Supreme Court of Arkansas
    Opinion delivered May 23, 1994
    [Rehearing denied June 20, 1994.]

      Henke, Heaton & Bufkin, by: W. Kurt Henke and Wendell L. Hoskins II, for appellant.

      Shaver & Smith, P.A., by: Tom B. Smith, for appellee.
   Tom Glaze, Justice.

The appellees, Chip and Crandal Hagler, operated a farm in White County known as Cypress Creek Farms Partnership. On March 30, 1990, the Haglers applied for Multi-Peril Crop Insurance (MPCI) from the appellants, Stroud Crop, Inc. (Stroud) and Insurance Company of the Prairie States (ICOPS). The policy was sold by appellant Howard Miller, a local independent insurance agent. In July, 1990, a policy was issued on Farm Serial Number (FSN) 1431 and its coverage was based on Agricultural Stabilization and Conservation Service (ASCS) Form 476, giving program yield at 2607 pounds of rice per acre on 617.4 acres. Because the Haglers did not have adequate production history on this farm, the yield for insurance purposes was based on a Transition Yield Basis or T yield. According to the farm’s history, an adjusted payment yield was determined to be 3419 pounds per acre. This adjusted yield was provided under ASCS Form 477 and calculated according to the Food Security Act of 1985.

Upon issuance of the policy, the Haglers were given a Schedule of Insurance setting out the amount of acreage insured as 671.4, the level of coverage as 65%, the price guarantee of $0.07 per pound, and the production guarantee of 2607 pounds of rice per acre. During this time, the Haglers learned that other farmers working land with the same ASCS FSN were also insured through the MPCI program through a different insurance company, but were receiving higher production guarantees.

The Haglers sustained an insurable loss on their 1990 rice crop and filed a claim on 581.4 acres. The appellants paid the claim in the amount of $22,713, but the Haglers refused to accept this payment until they were assured that their claim for additional coverage would not be barred by acceptance of the check. After attempting to negotiate the draft, the check was returned as stale, and the Haglers paid $186.58 interest on money borrowed to replace the amount until the check cleared.

On March 5, 1992, the Haglers filed suit for breach of contract, alleging the claim should have been paid on an effective yield of 3419 pounds per acre rather than on the 2610 pounds per acre actually paid. The Haglers claimed a loss in compensatory damages of $21,349.50 for the difference in calculation, $186.68 for interest on the amount borrowed to cover the dishonored check, and requested attorney’s fees and costs, and penalties for breach of insurance contract. Following trial, the jury rendered a verdict for the Haglers and awarded them $21,536.18. Of that award, $21,349.50 was for the lost indemnity under the MPCI policy and $186.68 for the lost interest. The Haglers filed a motion for attorney’s fees, costs and interest. The court awarded the Haglers $9204.25 for attorney’s fees and $119.16 in costs, but declined to award interest and assess penalties. The appellants filed motions for JNOV and a new trial which were denied. The appellants appeal the jury verdict, the award of attorney’s fees and cost, and denial of their post-trial motions.

Unfortunately, we are unable to reach the merits of this case, and must affirm based on the insufficiency of the appellants’ abstract under Sup. Ct. R. 4-2(b)(2). In reviewing the abstract, it is apparent that all of the documents in the transcript that are necessary for an understanding of the questions presented in this appeal are not abstracted. Specifically, the abstract of record fails to reflect any of the following pleadings and documents: the Multi-Peril Crop Insurance policy issued to the Haglers, ASCS 476 and 477 forms, a M-8 Manual, the Haglers’ motion for attorney’s fees and costs, and the appellants’ response to the Haglers’ motion for attorney’s fees and costs. The abstract of the appellants’ post-trial motion for a new trial or alternatively a motion for judgment notwithstanding the verdict, and the order denying the post-trial motions are so incomplete as to convey absolutely no information to this court, other than to show the motions and the order exist. The parties’ exhibits introduced at trial have also not been abstracted although they were alluded'to and relied upon by witnesses at trial and by counsel in their arguments on appeal.

Even more fatal to the appellants’ appeal is their failure to abstract their motions for directed verdict. On appeal, the appellants attack the sufficiency of the evidence. In order to preserve their sufficiency of the evidence argument for this court’s consideration, a motion for directed verdict must have been made at the close of the plaintiffs’ case-in-chief, and again at the conclusion of all the evidence. ARCP Rule 50(a) and (e). And Rule 50(a) requires that a motion for directed verdict state the specific grounds upon which it seeks such relief. Cozart v. Lewis, 299 Ark. 500, 774 S.W.2d 127 (1989). Because the appellants’ brief contains no abstract of the motions for directed verdict and no recitation of the grounds for such relief, we affirm for failure to comply with Sup. Ct. R. 4-2(b)(2). Id. See also Antegon Indem. Corp. v. Bull, 311 Ark. 61, 842 S.W.2d 1 (1992).

As this court has written numerous times, we will not go to the single transcript. Our review of the case on appeal is limited to the record as abstracted in the briefs, not upon the one transcript, since there are seven judges involved in the appellate decision-making process. Davis v. Peeples, 313 Ark. 654, 857 S.W.2d 825 (1993); Mills v. Holland, 307 Ark. 418, 820 S.W.2d 63 (1992).

For the above reasons, we affirm.

       Under the terms of MPCI policies, farmers are given a guaranteed pay out based on either actual production history (APH) or transitional yields (T yields). To establish an APH, a farmer must have ten years of experience on the insured farm. Farmers who do not have a sufficient history to qualify for APH are insured on a T yield basis that is taken from the program yield assigned by the USDA, Agriculture Stabilization and Conservation Service (ASCS).

       The payment to the Haglers was calculated as follows:
      985,473 lbs., production guarantee -660,823 lbs., Haglers’ actual production 324,650 lbs.
      x$0.07/lb., price guarantee $ 22,725.50
      xl.00, % of ownership
      $ 22,726.00 (apparently the appellants rounded up) -13.00, premium credit $22,713.00

       Appcllees did make brief one or two line references to three exhibits and where those exhibits were located in the transcript.


author: Donald L. Corbin, Justice.

text:
    Daniel HELMS v. Brenda HELMS
    93-1401
    875 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered May 23, 1994

      Ogles Law Firm, P.A., by: John Ogles, for appellant.

      Everett O. Martindale, for appellee.
   Donald L. Corbin, Justice.

Appellant, Daniel Helms, appeals a Pulaski Chancery decision in favor of appellee, Brenda Helms. Appellee employed her attorney to draw up the property settlement agreement (hereinafter “the agreement”). Appellant paid the attorney $230.00 towards appellee’s attorney’s fees and court costs pursuant to an understanding between appellant and appellee and as outlined in the agreement drafted. Appellant subsequently decided, after signing the agreement that had been drafted by the attorney, that it was detrimental to him. Appellant moved to have the attorney withdrawn and to set aside the agreement. After hearing testimony on the matter, the chancellor denied appellant’s motions, and this appeal followed. We note that this court affirms the factual findings of the chancellor unless they are clearly erroneous. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). We find no merit in appellant’s arguments and thus affirm.

Appellant’s first argument is that the chancellor erred in not requiring the attorney to withdraw as the result of an alleged conflict of interest after appellant decided the divorce became contested, citing the Model Rules of Professional Conduct 2.2(c). That rule concerns the circumstances under which an attorney may represent more than one client and when the attorney must withdraw as intermediary. In the instant case, however, there was no attorney-client relationship between appellant and the attorney. The only contact appellant had with appellee’s attorney was by sending him a check for part of appellee’s attorney’s fees and by returning the executed agreement after appellee gave it to him. There was never any consultation at all between appellant and appellee’s attorney, either requested or demanded by anyone involved. The agreement reflects that appellant paid $230.00 in payment of one-half the attorney’s fees and costs. An attorney should avoid even the appearance of impropriety, but here there was none. Appellant’s argument on this point is without merit.

Appellant’s second argument is that the chancellor erred in denying his motion to set aside the property settlement agreement on the grounds of unconscionability and equity. Appellant and appellee were in the business of operating barber shops in several locations on the Air Force Base in Jacksonville. Appellant submits that the agreement is unconscionable because of two of its provisions. Appellant states that the property settlement agreement requires him to give up all rights to operate a specific barber shop and that he can never bid for the contract to operate this barber shop against his ex-wife. Another provision in the agreement indefinitely grants each party one-half interest in another barber shop on the base and grants appellee one-half of the profits regardless of whether she works at that particular barber shop.

Appellant’s argument must fail. The agreement states that each party consulted with their attorney. It is signed and notarized on behalf of each party. In fact, the person who notarized appellant’s signature on the agreement is now appellant’s attorney on appeal. Appellant admitted no one pressured him to sign the agreement, and he even discussed the agreement with his attorney on appeal prior to executing it. In the absence of fraudulent inducement in executing an integrated property settlement agreement, a divorce decree may not be judicially modified. Collie v. Collie, 242 Ark. 297, 413 S.W.2d 42 (1967). This agreement was incorporated into the decree and approved by the chancellor. The fact that appellant entered into an agreement which later appeared improvident to him is no ground for relief, Armstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660 (1970), and it may not now be modified.

Affirmed.