text:
    STATE of Arkansas v. David Wayne HOUPT
    CR 89-239
    788 S.W.2d 239
    Supreme Court of Arkansas
    Opinion delivered April 30, 1990

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellant.

      Larry Honeycutt, for appellee.
   Tom Glaze, Justice.

In accordance with A.R.Cr.P. Rule 36.10(a), the state brings this interlocutory appeal contending the trial court erred in granting appellee’s motion to suppress. At a pretrial hearing on appellee’s motion, appellee argued and presented proof that the police officers, without probable cause and in violation of the fourth amendment, stopped the car appellee was driving and found controlled substances as a result of a pretextual search of the car. The state countered with its own argument and proof that the search was permissible. After the trial court granted appellee’s motion, the state appeals, raising a new theory and argument that the trial court erred because appellee was driving his girlfriend’s car when he was stopped, and as a consequence, he lacked standing to contest the officers’ search of the car. The state asserts that it should be permitted to raise appellee’s lack of standing for the first time on appeal because appellee’s standing is a jurisdictional, or a “quasi-jurisdictional,” requirement. We reject the state’s argument and therefore affirm.

The state’s argument is two-fold. Initially, it cites Rakas v. Illinois, 439 U.S. 128 (1978), and Rawlings v. Kentucky, 448 U.S. 98 (1980), for the proposition that a defendant who moves to suppress allegedly illegally seized evidence has the burden to prove he has standing to do so. Here, the state claims appellee failed in meeting his burden because he never showed that he had his girlfriend’s permission to drive her car. Next, the state suggests, this failure is “jurisdictional in nature,” and, as such, is an issue the state could raise for the first time on appeal. To summarize, while the state acknowledges it did not contest appellee’s standing below, it asserts it should be permitted to do so on appeal because the appellee’s standing is a jurisdictional, or a “quasi-jurisdictional” requirement.

In support of its contentions that a defendant’s lack of standing to seek suppression of evidence may be raised by the government for the first time on appeal, the state cites cases from a number of other jurisdictions. See United States v. McBean, 861 F.2d 1570 (11th Cir. 1988); United States v. Hansen, 652 F.2d 1374 (10th Cir. 1981); State v. Strayer, 242 Kan. 618, 750 P.2d 390 (1988). There are a number of holdings in other jurisdictions that run contrary to the state’s contention. See United States v. Sanchez, 689 F.2d 508 (5th Cir. 1982); Wilson v. State, 692 S.W.2d 661 (Tex. Cr. App. 1984); People v. Brown, 410 N.E.2d 505 (Ill. App. 1980); State v. Grundy, 25 Wash. App. 411, 607 P.2d 1235 (1980); see also 4 W. LaFave, Search and Seizure, § 11.7(d) at 524 (1987). Federal courts, of course, adhere to the plain error rule, under which plain errors affecting substantial rights may be noticed although they were not brought to the attention of the trial court. To the contrary, we have reiterated our fundamental rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Even a constitutional question must be raised in the trial court to be reversible on appeal. Griggs v. State, 280 Ark. 339, 658 S.W.2d 371 (1983).

As noted previously, the state concedes that it failed to raise the standing theory below, but it points to our recognized rule that an appellant still may question the trial court’s subject matter jurisdiction for the first time on appeal. While the state concedes the court in the present case had subject matter jurisdiction, it additionally contends that we should give the term jurisdiction a broader definition than that which encompasses mere subject matter jurisdiction. In other words, the state requests this court to coin a new definition of jurisdiction which would include a criminal defendant’s standing. Thus, assuming standing is jurisdictional as urged by the state, the state urges the appellant never met his burden to show his girlfriend permitted him to drive her car and as a result he failed to establish a reasonable expectation of privacy in the car as required by the fourth amendment. Consequently, the state argues that the trial court could not suppress the controlled substances seized from the car after appellant’s arrest and that we should remand this case to allow both parties the opportunity to develop evidence bearing on appellant’s expectation of privacy in his girlfriend’s car.

The state offers no Arkansas authority or citation where this court has ever treated standing as a jurisdictional issue. Instead, the state, in its argument, alludes to Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986), where a trial court exceeded its authority in imposing a void sentence, and in reversing, we said that this court could consider such a matter even though not raised at trial since we considered it subject matter jurisdiction. See also Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985).

Here, the trial court clearly had jurisdiction to consider this criminal case and the appellant’s motion and, unlike in Howard or Lambert, there is nothing to reflect the trial judge ever exceeded his authority, statutory or otherwise. In fact, the state in this appeal never argues that the trial court erred in finding that no probable cause existed to validate a search of the car driven by the appellant. Instead, the state’s proof apparently fell short in this respect and it now seeks to try this same fourth amendment issue by using a different theory. In line with this court’s long standing rule that precludes appellants from raising new issues on appeal, we reject the state’s request to allow it to do so here. Therefore, we affirm.

       We recognize that in Rakas, the Supreme Court stated that instead of questioning whether a defendant has standing, the analysis should proceed directly to the issue of whether the individual has a legitimate expectation of privacy in the object of the search. But for clarity, we will refer to the issue as standing in our opinion.


source: Caselaw Access Project

author: Otis H. Turner, Justice.

license: Public Domain

text:
    Ronald HARDEN, a/k/a Bilal Muhammed v. STATE of Arkansas
    CR 89-240
    787 S.W.2d 693
    Supreme Court of Arkansas
    Opinion delivered April 30, 1990
    [Rehearing denied May 29, 1990.]

      The Haskins Law Firm, by: Wayne Juneau, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

This is an appeal from the trial court’s denial of post-conviction relief under the provisions of Arkansas Rules of Criminal Procedure Rule 37. We find that the appeal is without merit, and we therefore affirm.

The appellant, Ronald Harden, a/k/a Bilal Muhammed, was convicted of second-degree battery and sentenced to six years in the Department of Correction as an habitual offender. He petitioned this court for post-conviction relief, and we granted his request, directing that an evidentiary hearing be held to determine whether the appellant was represented by counsel in a Missouri conviction that had been used for the purpose of enhancement of sentence.

The appellant raises a single issue on appeal, contending that the trial court erred in finding that the appellant was represented by counsel in the Missouri conviction. The true issue, however, is whether the trial court erred in admitting the Missouri records as the court’s exhibit over the appellant’s objection.

At the evidentiary hearing, the trial court was informed that both parties had ordered from Missouri the documentation concerning the appellant’s prior conviction. Counsel for the appellant had previously advised the prosecutor that the documentation had been received. However, the state had not received its copy of the records at the time of the hearing. These facts were related to the trial court. The court then requested that the appellant’s attorney produce his copy of the documentation. The court then reviewed the materials and determined that they consisted of duly certified and authenticated copies of records of the Circuit Court of St. Louis, Missouri, Division Sixteen, and that they reflected that the appellant had been represented by an attorney in those proceedings. The trial court then introduced the record as the court’s exhibit over the objections of the appellant.

The appellant argues that the state failed to meet its burden of proof and, further, that the trial court violated the appellant’s due process rights in using the evidence produced by the appellant as an exhibit. We do not agree.

The hearing was an evidentiary hearing before the court; the evidence at issue was a public document available to any party requesting it; the state had, in fact, ordered the documentation and would have received it in due course. Under these circumstances, we hold that the trial court was justified in requesting the official documentation from the appellant. The alternative would have been to continue the hearing, as requested by the appellee, until the appellee received an identical copy of the records.

We have found no controlling precedent on the issue presented here, and the cases cited by the appellant are not dispositive of the issue.

We hold that the trial court was justified, in the interest of judicial economy, in securing from the appellant the official documentation and in designating the copies of the Missouri record the court’s exhibit rather than continuing the hearing until the appellee received an identical copy. The court’s action was not prejudicial to the appellant in any degree.

Affirmed.


author: Dale Price, Justice. Tom Glaze, Justice, Otis H. Turner, Justice,

text:
    ST. LOUIS SOUTHWESTERN RAILWAY COMPANY and W.A. Dean, Jr. v. Lenon WHITE et ux
    89-255
    788 S.W.2d 483
    Supreme Court of Arkansas
    Opinion delivered April 30, 1990
    [Rehearing denied May 29, 1990.]

      Barrett, Wheatley, Smith & Deacon, by: J.C. Deacon, for appellant.

      Easley & Hicky, by: B. Michael Easley and Preston G. Hicky, for appellees.

      Turner, J., would grant rehearing.

   Dale Price, Justice.

This case involves a collision between a St. Louis Southwestern Railway train and a truck driven by appellee Lenon White. The accident occurred in Palestine, Arkansas, on March 14, 1987, and White sustained serious injuries. He and his wife filed suit against the railroad in May of 1987. The jury awarded the Whites a total of $668,000. The railroad appeals, raising three issues. We affirm.

The collision occurred at the Sulcer Street crossing (also called the Farrell Street crossing) in Palestine. The crossing is an unusual one. Sulcer Street runs parallel to the railroad tracks. Motorists must stop at a stop sign on Sulcer Street, then make a 90 ° right turn, going up a slight incline, to cross the passing track, then the main track. When a motorist is waiting at the stop sign, an approaching train would come from directly behind him.

Lenon White left his house at 7 a.m. to deliver a load of gravel. Knowing he would be crossing the tracks at Sulcer Street, he rolled down his passenger side window so that he could hear a train approach. He drove his truck onto Sulcer Street, parallel with the tracks. He stopped at the stop sign. Because he was driving the dump truck, he had no rear vision, so he kept his foot on the brake and slid over to the passenger side and looked down the track as far as he could. He neither saw nor heard a train approaching. He then moved back squarely in front of his steering wheel, put the truck in gear, and made the right turn. The truck could not fully negotiate the turn, so White approached the tracks at an angle. Just as his front wheels reached the main track, he heard the train whistle and saw the train approaching. The train was nearly upon him at that point, and there was no time to avoid the collision.

Appellants’ first basis for reversal involves a charge of juror misconduct. After the verdict, juror Mary McCain contacted the circuit clerk to report her concerns about the jury deliberations. Thereafter Mrs. McCain contacted counsel for the railroad who filed a motion for a new trial based on the affidavits of Mary McCain and juror Carolyn Burdett. The affidavits set forth that both jurors went to the crossing during the trial and discussed with other jurors during deliberations their observations of the view down the track. They also quoted jury foreman Cecil Peacock as saying he had visited the scene of the accident. None of the jurors had been admonished not to go to the crossing.

The railroad contends that a new trial should have been granted because of the jurors’ unauthorized visits to the accident scene. The case of Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985), is cited. The appellees cite B&J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984), to support their argument that a new trial was not warranted. The trial court reviewed both cases and denied the motion for a new trial. We agree with that decision.

When a new trial is requested because of juror misconduct, pursuant to ARCP Rule 59(a), the moving party must show that his rights have been materially affected. This means the moving party has the burden of proving that a reasonable possibility of prejudice has resulted from the misconduct. Borden v. St. Louis Southwestern Ry. Co., supra. The vast majority of courts agree that prejudice is not presumed in such situations. See Annot., 11 A.L.R.3d918, § 3 at 928 ;see also Kirby v. Rosell, 133 Ariz. 42, 648 P.2d 1048 (1982).

A trial judge is vested with great discretion in acting on a motion for a new trial. In a case in which a new trial is requested on the ground of juror misconduct, we will not reverse the trial court’s denial of a new trial motion unless there is a manifest abuse of that discretion. Borden v. St. Louis Southwestern Ry. Co., supra; Langston v. Hileman, 284 Ark. 140, 680 S.W.2d 89 (1984). In this case, the judge found there was no reasonable possibility that prejudice resulted to the railroad from the jurors’ visits to the accident scene. The question we must answer is whether the judge manifestly abused his discretion in making that finding.

B&J Byers and Borden both involved jurors who, during the course of the trial, visited the accident scene. In B&J Byers, one juror visited the portion of the highway where the accident occurred. He may have already been familiar with the scene, and he had received no instruction to refrain from visiting the scene. There is no indication the juror took any measurements, talked to anyone, performed any experiments, or did anything other than simply look at the road. We upheld the trial court’s determination that no new trial was warranted.

In Borden, jurors were instructed not to make independent investigations into the facts. Nevertheless, one juror went to the scene, a railroad crossing, to see if the train blew its whistle in the proper manner and discovered it did not. The same juror and another juror also went to the crossing and told other jurors the view was obstructed and that certain photographs introduced into evidence were not representative of the view. We upheld the trial court’s ruling that a reasonable possibility of prejudice had been shown.

The jurors’ visits in this case fall somewhere between the casual observation in B&J Byers and the more extensive investigations made in Borden. But unlike the Borden case, the jurors here were not patently disobeying the court’s instructions. In addition, some of the observations made by the jurors in Borden expressly impugned the credibility of certain facts in evidence. Most importantly, in each case, we recognized the trial court’s wide discretion in making the new trial decision, and upheld the trial court in each case. We find no abuse of discretion in this case and uphold the denial of a new trial.

A connected issue concerns the manner in which the trial court considered the jurors’ affidavits. The judge used A.R.E. 606(b) to determine which parts of the affidavits were admissible. The rule reads:

Inquiry into Validity of Verdict or Indictment: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

The judge held that those portions of the affidavits in which the jurors simply said they had visited the accident scene were admissible. However, he refused to consider the content of any conversations that took place during jury deliberations. The judge’s reading of the rule was too narrow.

To show that extraneous matters were, in the language of the rule, “brought to the jury’s attention,” the judge could properly have considered the content of the conversations that took place in the jury room. However, we find no reversible error because the judge declared that his ultimate ruling denying the new trial would have been the same, even if he had considered the affidavits in their entirety. When we view the totality of the affidavits, our ruling that the new trial motion was properly denied does not change.

The railroad contends next that the trial court should have granted a directed verdict in its favor. In reviewing the denial of a motion for a directed verdict, we examine the evidence in the light most favorable to the party against whom the motion is sought, giving the evidence its highest probative value and taking into account all reasonable inferences therefrom. We affirm if there is substantial evidence to support the verdict. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987); Ikani v. Bennett, 284 Ark. 409, 682 S.W.2d 747 (1985). In this case, the Whites alleged the railroad was negligent in failing to blow its whistle or sound its bell in the manner required by law. Ark. Code Ann. §23-12-410(1987) requires a train crew to sound its whistle or bell beginning one-quarter mile prior to the crossing.

There was substantial evidence from which the jury could have found that the train crew failed to give the statutory signals. A number of witnesses testified that they heard no signal until immediately before the impact. The railroad argues that, nevertheless, such failure cannot be the proximate cause of the accident because Lenon White had a clear view down the track at the time of the collision. We recognized in St. Louis Southern Ry. Co. v. Taylor, 258 Ark. 417, 525 S.W.2d 450 (1975), that such an argument may prevail:

The failure of the train crew to give the statutory signals ceases to be a relevant factor (because it cannot be the proximate cause of the injuries) when the presence or approach of the train was known to the injured party by means other than the signals or was so obvious that he cannot be heard to say that he was unaware of it.

Lenon White had no actual knowledge of the train’s approach. Can it be said as a matter of law that the presence of the train should have been obvious to him? The answer is no.

We have generally recognized that the question of proximate cause is a jury question. Missouri-Pacific Railroad Co. v. Mackey, 297 Ark. 137, 760 S.W.2d 59 (1988); Missouri-Pacific Railroad Co. v. Biddle, 293 Ark. 142, 732 S.W.2d 473 (1987). In this case, it was far from undisputed that the visibility down the track was good. An accident reconstructionist testified that, even in an ordinary vehicle, a motorist would have difficulty seeing down the track. The Whites had also introduced into evidence a letter written to the mayor of Palestine by a railroad representative. In the letter, the representative acknowledged that the crossing was “very dangerous . . . due to its high elevation and parallel approaches.” The jury could properly have found that the presence of the train would not have been obvious to Lenon White and that the failure of the railroad to sound its statutory signals proximately caused the accident. See Shibley v. St. Louis-San Francisco Ry. Co., 533 F.2d 1057 (8th Cir. 1976); Missouri-Pacific Railroad Co. v. Ellison, 250 Ark. 160, 465 S.W.2d 85 (1971); St. Louis-San Francisco Ry. Co. v. Perryman, 213 Ark. 550, 211 S.W.2d 647 (1948). The trial court correctly denied the directed verdict.

Finally, the railroad argues that the verdict was excessive and not based on the evidence presented at trial. Part of the blame for the size of the verdict is ascribed to the “inflammatory” remarks made by appellees’ counsel in closing argument. The appellant made no objection to the argument during its presentation. We will not address arguments which the appellant did not raise in the proceedings below. Reed v. Alcoholic Beverage Control Division, 295 Ark. 9, 746 S.W.2d 368 (1988). Further, the appellant’s appendix does not contain any evidence that was presented at trial concerning the injuries and damages suffered by the Whites. While failure to place a copy of a part of the record in the appendix will not preclude the court from referring to it, we will not consider ourselves obligated to go beyond reading the briefs and appendices to decide a case. In Re: Amendments to the Arkansas Rules of Civil Procedure, the Arkansas Rules of Appellate Procedure, the Arkansas Supreme Court Administrative Orders, the Rules of the Arkansas Supreme Court and Court of Appeals, and the Inferior Court Rules, 298 Ark. 666, 770 S.W.2d 139 (1989).

Affirmed.

Turner, J., dissents.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I join in the result reached by the majority, but concerning the jury misconduct issue, I wish to add my own thoughts why I believe the trial judge was not manifestly wrong in finding no reasonable possibility of prejudice resulted from the jurors’ visits to the accident scene. In trying the case, both parties did an excellent job in offering evidence and exhibits that depicted the accident scene. There was little dispute regarding the site as it appeared on the day of the accident, and in fact, the appellees agreed to the use of a detailed model depicting the scene which was prepared by appellants’ counsel and the parties referred to the model throughout the trial. The exhibit even included the type of truck appellee, Lenon White was driving at the time of the collision. The physical characteristics of the scene, including the unusual road approach to where it intersected with the tracks, were crucial to the outcome of the case, but such characteristics were essentially undisputed.

In reviewing the jurors’ affidavits, I fail to read anything that the jurors related in their affidavits that disputed or contradicted the scene as the parties presented it at trial. Because the jurors’ visits disclosed nothing about the location not accurately depicted by the evidence and model used at trial, I believe the trial court could reasonably conclude no prejudice resulted. See Birch v. Drummer, 139 Ill. App. 3d 397, 487 N.E.2d 798 (1985); Annotation, Prejudicial Effect of Unauthorized View by Jury in Civil Case of Scene of Accident or Premises in Question, 11 A.L.R.3d 918, 945 (1967).

In conclusion, I should mention that the dissenting opinion suggests the present case is the same as Borden except that in Borden, the court had admonished the jurors not to make an independent investigation. I strongly disagree. In fact, we emphasized in Borden that one of the critical issues was whether the train whistle was sounded, and from one of the affidavits before the trial court, we specifically noted the judge could have found that one of the jurors may have been influenced by the external information he gained on the day he visited the accident scene, viz., that the train whistle was not blown until the train was 200 feet from the crossing. None of the jurors’ affidavits here suggest any such added or comparable information as that which was provided by the affidavits in Borden. In my view at least, the trial court’s decision to grant a new trial in Borden would have been correct based solely on the added prejudicial and external information disclosed in that cause irrespective of the court’s admonition to the jurors not to visit the scene.

Otis H. Turner, Justice,

dissenting. The pivotal factual issue presented here concerns the railroad crossing; the location of the road in its approach to the crossing; the relation of the road to the railroad tracks; and ultimately the effect, if any, these facts had upon appellee Lenon White as he approached the crossing, looked, and proceeded onto the tracks.

The parties had a fundamental right to a hearing by jurors who had either no prior knowledge of this crossing or, with knowledge, an open mind uncontaminated by any previously acquired bias or prejudice. On voir dire, counsel had ample opportunity to test each juror’s knowledge of and familiarity with what was to become the focal point of the case •— the crossing. At that stage in the proceedings, counsel had the opportunity to challenge those prospective jurors whose judgment might be tainted by some extraneous knowledge or experience.

After undergoing the selection and qualification process, the jury ultimately selected is presumed to be a fact-finding body dedicated solely and exclusively to the purpose of determining the issues of fact from the witnesses testifying under oath, in court, and subject to the rules and procedures relating to the production of evidence.

Here, however, we are confronted with an interruption in the orderly flow of that procedure by the foreman and two other jurors going to the scene and conducting their own private investigation. This extrajudicial expedition was unknown at the time to court and counsel and was not subject to any limiting instruction regarding the applicability or admissibility of any evidence that they might glean from their investigation or deem to be of importance in the case. Finally, and significantly, counsel for the parties were unable to counteract, by additional evidence or cross-examination, any extraneous evidence affecting the juror’s decision. The advocacy element — the bedrock upon which jury trials are built — was interrupted if not totally defeated under these facts.

The determinative question is whether the appellee driver, whose view was allegedly blocked by the bed of his gravel truck, was able to see down the tracks to his right while making a 90-degree right turn onto the crossing. An elaborate scale model of the scene and surrounding landmarks was constructed and used at trial with the approval of both parties and was exhibited to this court during oral argument on appeal. Witnesses testified at great length during the trial on the subject of visibility, using the scale model to illustrate their testimony. This evidently was not sufficient for all of the twelve jurors — three of them decided to conduct their own investigation, presumably to ascertain what the driver could or could not see as he approached and entered the crossing.

I feel certain that my colleagues do not condone this juror misconduct. The majority appear, instead, simply convinced that there was no showing of a reasonable possibility of prejudice. I am not so convinced and would therefore reverse.

I am fully cognizant of the provisions of ARCP Rule 59(a) dealing with new trials for jury misconduct; A.R.E. Rule 606(b) dealing with inquiry into the validity of the verdict; and our previous holdings in Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985) and B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984). I must, however, part company with the majority in their interpretation of these authorities under the facts of this case.

In Borden, the majority appear to place great emphasis on the fact that there the court told the jury not to go examine the scene. Two jurors violated that instruction and reported their impressions to other members of the panel, thus creating a reasonable possibility of prejudice. In B. & J. Byers, there was no such instruction by the court, and we held that there was no reasonable possibility of prejudice. The majority is now placing undue emphasis on the effect of the giving of or the failure to give a cautionary instruction.

We have in this case everything that was present in Borden except an admonition by the court not to make an independent investigation. As in Borden, jurors went to the accident site and reported their findings which were made outside the procedural bounds of a court of law. Must the trial court in every case go beyond its general admonition in qualifying the panel and spell out what might specifically constitute improper conduct?

Juror Burdett, in her affidavit, testified: “I drove the same route that Lenon White did on the date of the accident in an attempt to see for myself the view of the crossing he might have had at the time of the accident.” She also stated: “During the jury deliberations, I told the other jurors that I had been to the crossing on two separate occasions and I told them about the view I had at the crossing.”

Juror McCain testified in her affidavit: “The day before jury deliberation, because of the apparent conflicts in the testimony, I drove to Palestine to view the crossing where the accident occurred. I drove the same route that Lenon White did on the day of the accident in an attempt to satisfy myself as to the view of a motorist at the crossing. After the case was submitted to the jury and during deliberations, I indicated to the other jurors that I had been out to the crossing the day before and that I had pulled my pickup truck up the tracks and found it necessary to look out the back window of my truck in order to see down the tracks ... I told the other jurors that even when I did this, I was not able to see very far down the tracks.”

Juror McCain further testified in her affidavit that foreman Peacock told the other jurors he had also been to the scene and expressed his opinions based on his personal observations.

It is a distinct possibility, if not a probability, that ultimately, as a result of the private investigation conducted by these three jurors, the verdict was in fact a verdict of only the three jurors.

Fundamental fairness dictates that every party, whether a railroad company or a private citizen, must be afforded a trial by a jury composed of open-minded persons, unfettered by personal prejudice and bias, who reach a decision unencumbered by improper influences.

The test as stated in both Borden and B. & J. Byers is whether there is a reasonable possibility of prejudice. I am convinced that the appellant met its burden and clearly established that a reasonable possibility of prejudice resulted from juror misconduct. I would reverse and remand this cause for a trial before a new jury to the end that a verdict may be reached based strictly on the evidence from witnesses under oath.


author: David M. Glover, Special Justice. Steele Hays, Justice,

text:
    CITY OF JACKSONVILLE, ARKANSAS, et al. v. Donald VENHAUS, County Judge, Pulaski County, Arkansas
    89-154
    788 S.W.2d 478
    Supreme Court of Arkansas
    Opinion delivered April 30, 1990

      Vaughan and Bamburg, by: Keith Vaughan, for appellants City of Jacksonville, Arkansas and Lula M. Leonard, Treasurer.

      Jim Hamilton, Office of North Little Rock City Attorney, and Mark Stodola, Office of Little Rock City Attorney, by: Thomas M. Carpenter, Assistant City Attorney, City of Little Rock, for appellants City of Little Rock, Arkansas and City of North Little Rock, Arkansas.

      Jack, Lyon & Jones, P.A., by: Eugene G. Sayre, for appellant class of taxpayers.

      Larry D. Vaught, Pulaski County Attorney, by: Nelwyn Davis, Assistant County Attorney, for appellees Pulaski County, Arkansas and County Judge and County Treasurer.

      Jim Hamilton, Office of North Little Rock City Attorney, and Mark Stodola, Office of Little Rock City Attorney, by: Thomas M. Carpenter, Assistant City Attorney, City of Little Rock, for appellants City of Little Rock, Arkansas and City of North Little Rock, Arkansas, on an issue raised by James A. Ragan.

      Jack, Lyon & Jones, P.A., by: Eugene G. Sayre, for representative taxpayers as appellees on certain issues.
   David M. Glover, Special Justice.

This is the third appeal arising in this illegal exaction action commenced eight years ago. The primary question before us is the proper disposition of undistributed funds collected by taxing authorities and placed in a common fund in accordance with our earlier decisions. The first two appeals were Ragan v. Venhaus, 289 Ark. 266, 711 S.W.2d 467 (1986) and City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989).

In the first appeal we found that the collection of the designated use tax constituted an illegal exaction. Upon remand, the chancellor appointed co-trustees to oversee the refund of the collected use tax funds. On November 29,1988, the court entered an order approving a refund plan and setting a hearing on December 15, 1988, for the purpose of receiving proposals or recommendations from the parties and other interested entities regarding the disposition of the nonrefundable residue of the common fund created.

At or after the hearing, the court received written requests from twenty-four charitable or public organizations requesting direct grants of portions of the residue of the common fund or supporting the establishment of a permanent Pulaski County Foundation or the construction of a juvenile detention and services center.

On December 20,1988, the Cities of Little Rock and North Little Rock filed a joint motion requesting that the chancellor recuse. Thereafter, on December 29,1988, the chancellor denied the municipalities’ motion for recusal and entered an order making specific findings of fact and conclusions of law in which she directed $700,000.00 of the residue of the common fund be distributed in specific amounts to forty-two separate charities or funds, with the balance of the residual funds to be used by the co-trustees to construct a juvenile detention and services center in Pulaski County.

This appeal is based on four points of error contained in the chancellor’s two separate orders on December 29, 1988.

We find the chancellor committed error in both orders. We reverse and remand, in part, with instructions.

1. Recusal

Counsel for the City of Little Rock asked the chancellor during the hearing on December 15,1988, if she had, prior to the hearing, held any discussions with any of the parties or any of the intended beneficiaries, other than the co-trustees, concerning the distribution of any residual funds. The chancellor replied that people had called and she had directed them to the co-trustees to submit proposals.

During the hearing, the chancellor further noted that she had previously served on the board of directors of one of the groups that was requesting a donation from the residual funds; she advised another spokesman that his arguments “didn’t fall on deaf ears”; and she commented that juvenile justice had been very dear to her and to her late husband.

After the hearing a motion to recuse was filed December 20, 1988. The order denying the motion was signed on December 22, 1988, without a hearing, and was filed on December 29, 1988.

In Westbrook v. State, 265 Ark. 736, 742, 580 S.W.2d 702, 705 (1979), we held that it was error not to hold a hearing on a motion for recusal and stated, “[a]¡though the burden was upon the appellant to show cause for disqualification of the presiding judge, he could hardly do so without the opportunity to be heard on his motion.” Due to the chancellor’s failure to hold a hearing on recusal or, in the alternative, her failure to recuse, we must reverse.

Arkansas Code of Judicial Conduct, Commentary to Canon 2 (1988), provides that “[a] judge must avoid all impropriety and appearance of impropriety.” Accordingly, “[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . .” Arkansas Code of Judicial Conduct, Canon 3(C)(1) (1988).

Where a judge exhibits bias or the appearance of bias, this court will reverse. Patterson v. R.T., 301 Ark. 400, 784 S.W.2d 777 (1990); Farley v. Jester, 251 Ark. 686, 520 S.W.2d 200 (1975). “The proper administration of the law requires not only that judges refrain from actual bias, but also that they avoid all appearances of unfairness.” Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978).

As we review the record, the following documentary evidence was received at and after the December 15,1988, hearing:

1. Juvenile Master Vicki Sandage’s November 21, 1988, letter to the Human & General Services Department that includes the following language: “I am aware of possible funding sources that might be available immediately for a detention facility. . . . I am asking you to write me expressing your professional assessment of such needs. I would like to have your input to help me communicate those needs as the opportunities become available.”;
2. The December 14, 1988, letter to Juvenile Master Vicki Sandage from the State Department of Human & General Services that endorses a juvenile justice center and starts: “With reference to your letter of November 21, 1988. . . .”;
3. The personal letter to the chancellor on behalf of Serenity House stating, “I’ll bet you thought running “unopposed” was the ultimate in popularity “Well, you ain’t seen nothing yet.”;
4. A note reminding the chancellor of her service on the United Way Board of Directors; and
5. The letter the chancellor received in support of a juvenile justice center from the National Conference of Christians and Jews with knowledge the chancellor was sitting on the Board of Directors of this organization at the time the petition was made.

At least nine of the organizations that received funds, including two that did not make application, were United Way organizations. Woodlawn Therapeutic Children’s Center received $25,000, and the chancellor had served on that Board of Directors at one time.

Given the chancellor’s identification with some of the recipient organizations, coupled with her comments during the hearing and our observations from the record, we find the chancellor’s funding choices and findings in her December 29, 1988, order exhibited the appearance of bias. As a result, she should have recused.

2. Residual Fund Disposition

Appellant class-members urged the chancellor to apply the cy pres doctrine, thereby fashioning a “fluid recovery” remedy using the residual funds to benefit all citizens of Pulaski County. In the alternative, they suggested distribution of the residual funds either to a formal fund to be known as the Pulaski County Foundation or to a number of small charities existing within Pulaski County.

They are joined on appeal by the cross-appellant municipalities in urging a vacation of the portion of the chancellor’s order that gave the bulk of the residual funds to the construction of a juvenile detention and services center.

The municipalities contend that the residual funds should be returned pro rata to the respective governmental entities and used for the purpose for which the tax was collected, which was to provide general municipal services to the citizens.

We agree with the approach of the municipalities.

We have stated that monies collected for one purpose cannot be spent for another purpose. Bell v. Crawford County, 287 Ark. 251, 697 S.W.2d 910 (1985).

Pursuant to Bell, the chancellor must first, by evidentiary hearing, identify all taxpayers from whom monies were illegally exacted who can feasibly be identified, and second, the chancellor must utilize the unclaimed residual funds for the purpose for which they were collected.

The chancellor clearly did not follow the dictates of Bell. Instead, she ordered $700,000.00 of taxpayers’ funds be given to assorted charities. She made awards to forty-two charities in varying amounts. Nine charities received funding without having submitted applications. On the other hand, at least four charities that submitted applications were not funded. In addition a $5,000.00 award went to establish a fund to host an annual Christmas party for the children of Pulaski County employees.

The Arkansas Constitution forbids county or municipal funds to be given to any corporation, association, institution, or individual. Ark. Const, art. 12 § 5; Halbert v. Helena-West Helena Ind. Dev. Corp., 226 Ark. 620, 625, 291 S.W.2d 802, 806 (1956). The record reveals, however, that fifteen or more corporations were awarded $355,000.00 in the distribution order.

An estimated 3.3 million dollars has been entrusted by the chancellor’s order to the co-trustees to be used in their discretion for the construction of a juvenile justice center.

The distribution order states, in part:

The Court agrees that to allow a proportionate refund to the Defendant governmental entities in the case would reward those governmental entities for their past misdeeds, . . .” [Emphasis added.]

The awarding of the 3.3 million dollar sum to defendant/ appellant Pulaski County contradicts the chancellor’s statement. We also think that the chancellor’s use of the word “misdeeds” in her order mistakenly implies flagrant actions by the parties which are not supported by the record.

Such use of public funds is arbitrary and capricious, necessarily leads to unpredictable results, and is impermissible.

On remand, subject to other instructions included herein, we direct that the residual funds be returned pro rata to the governmental entities to be used for general municipal services.

3. Judgment Interest Disposition

Further, on remand, subject to other instructions included herein, judgment interest paid should be returned pro rata to the governmental entities to be used for general municipal services, excluding Pulaski County, which was not a plaintiff entitled to pre-judgment interest and was precluded by Ark. Code Ann. § 16-65-114 (1987) from paying any post-judgment interest.

4. Vehicle Use Tax

It is unclear why the chancellor’s order entered on October 28, 1986, which compelled the Arkansas Commissioner of Revenues to release the names and addresses of individuals, corporations, or partnerships of the appellant taxpayers class that paid use tax and the amount of the tax paid, was not enforced. The sum of $285,045.01 was reported to have been received through vehicle use tax collections by the Commissioner of Revenues. By using a maximum of $25.00 of use tax per vehicle, this total of collections during the defined period represents at least 11,400 separate claimants who would be entitled to refunds of the use tax collected upon registration in Pulaski County of their out-of-state purchased vehicles.

ARCP Rule 23(d) requires that adequate notice be given to each class-member.

Appellant taxpayers’ class contends that the records available in the Motor Vehicle Section of the Revenue Division, Department of Finance and Administration, State of Arkansas, are “taxpayer-specific” as to the name, address, and amount of use taxes collected from the individual members of the appellant class-members. Unlike the records obtained through discovery, vehicle use tax records are not computer generated and must be manually searched.

The question then becomes whether these persons and entities are entitled to written notice of the right to claim a refund and the amount of the refund as was given those persons found through computer generated records for consumer use tax report filings and vendor use tax report filings.

Our reasoning in Bell v. Crawford County, supra, requires us to remand this portion of the case to the chancellor now sitting in the division from which this case arose to conduct an evidentiary hearing on the adequacy of notice given under ARCP Rule 23(d) as it applies to motor vehicle use taxpayers in Pulaski County in the affected period.

Reversed and remanded, in part, with instructions.

Special Justice J.W. Green, Jr., joins in this opinion.

Hays, J., concurs.

Dudley, Newbern, Glaze and Price, JJ., not participating.

Steele Hays, Justice,

concurring. Because I believe the chancellor erred in failing to return the residual funds and interest to the taxing authorities on a pro rata basis, I concur. I see no need to reach the recusal issue.


author: Robert H. Dudley, Justice.

text:
    Warren K. BROWN v. KENNEDY WELL WORKS, INC.
    90-21
    788 S.W.2d 948
    Supreme Court of Arkansas
    Opinion delivered May 7, 1990
    [Rehearing denied May 29, 1990]

      Hugh L. Brown, for appellant.

      Lonnie P. Gehring, for appellee.

      Turner, J., would grant rehearing.

   Robert H. Dudley, Justice.

Appellant, Warren Kenneth Brown, filed a complaint in chancery court asking that a commissioner’s deed to appellee be set aside and that title to 160 acres be quieted in a family trust. The Chancellor declined to grant the relief prayed. We affirm.

Howard Bone owned the 160 acres now in dispute. He conveyed the land to one of his daughters, Chlotene Stalcup, and gave a substantial amount of cash to each of two grandsons. Another of his daughters, Odene Brown, and his only son, Bill Bone, thought the elder Bone had become incompetent. They sought advice from an attorney, Randall Gammill, who suggested they seek a guardianship of the estate of Mr. Bone. Gammill filed a petition for guardianship of the estate in July 1979. After a lengthy contested hearing in probate court, Bone was declared incompetent and on June 15, 1981, Odene Brown was appointed guardian of his estate.

Odene Brown, in her capacity as guardian, then employed Gammill to recover the 160 acres. A contingent fee of 25 % of any property recovered by settlement, or 40% of any property recovered through suit was agreed upon. On June 19, 1981, the fee agreement was approved by the probate court.

After another lengthy contested hearing, this time in chancery court, the Chancellor found that the deed from Howard Bone to his daughter, Chlotene Stalcup, should be set aside. That order was filed on May 21,1982. At that time, the title to the 160 acres was back in the estate of Howard Bone, subject to the guardianship of his estate, and Gammill was entitled to an attorney’s fee equal to the value of 40 % of the land. At the request of Odene Brown, Gammill did not seek partition of the 160 acres. Instead, 40% of the rental income from the land was paid to Gammill in 1982.

Shortly thereafter, on February 2,1983, Howard Bone died and left a will which provided in part:

1.1 direct that all my just debts and funeral expenses be paid as speedily as possible.
3. All the rest and residue of my estate whether real, personal, or mixed I give, bequeath and devise to Lawrence W. Holloway in trust, for the following purposes, to-wit:
(a) I direct that my Trustee collect all of my personal property and either divide in kind or sell and divide the proceeds thereof one-third (*/3) to my daughter, Chlotene Stalcup, my oldest daughter, and one-third (‘/3) to Odene Brown, my other living daughter, and one-sixth ('/«) each to the heirs of Martha Jane (Sissie) Cleveland, my deceased daughter, namely: Lynn Cleveland and Ronnie Cleveland and empower him to do any and all things necessary for the proper and economical division of said personal property. . . . The real estate which I may die seised and possessed I direct said Trustee to manage the same in the manner which appears to him to be the most profitable to the above named beneficiaries of this Trust and to pay to them or their respective heirs annually the net profits therefrom keeping in mind that he will need a reasonable amount of cash on hand for the purpose of operating expenses and taxes in managing said real property. At the death of the last of the above named beneficiaries I direct said Trustee to distribute to the heirs of said Beneficiaries per stirpes said real estate and if he finds it necessary at that time to sell said real estate for the purpose of partition I hereby empower and direct him to proceed to said sale under the supervision of the proper court of Prairie County, Arkansas.

Odene Brown employed Gammill to cause probate to be opened and the guardianship to be closed. Meanwhile, neighboring landowners were interested in purchasing the 160 acres from the estate. One neighbor offered $600.00 per acre, but Odene Brown declined to sell the land.

Gammill, who had not filed a claim against the estate, began to worry about his fee. Odene and the other life tenants did not want the farm divided to pay the fee. They wanted more time to raise the money. Gammill then agreed to take a note and mortgage based upon 40% of the 160 acres times $600.00 per acre. Subsequently, a note was executed by Odene Brown and the other life tenants in the amount of $43,757.65, and they gave a mortgage on the 160 acres as security for the debt. The note and mortgage were assigned to the Prairie County Bank which went into receivership. Its assets, including the note and mortgage, were taken over by the Federal Deposit Insurance Corporation. The note was not paid and the FDIC ultimately began to take action to collect on the note.

The estate of Howard Bone was still open, and the FDIC filed a petition asking the probate court to determine whether the estate was bound by the note and mortgage. The probate court heard testimony and found “that Odene Brown was in fact acting in her official capacity in the procurement and execution of these instruments, that said actions were in the best interests of the estate, and that the estate is bound by said instruments.” There was no appeal from that probate court order.

Meanwhile, in chancery court, the FDIC began a foreclosure proceeding. On September 11, 1985, the 160 acres was ordered sold to satisfy the debt. Appellee, Kennedy Well Works, Inc., purchased the land at a fair price of $61,000.00, and received a commissioner’s deed to the 160 acres.

On July 27, 1987, appellant Warren Brown, son of Odene Brown and consequently a remainderman under his grandfa- . ther’s will, filed this complaint in the chancery court asking that the commissioner’s deed to appellee be set aside and that title be quieted in the Howard Bone Trust. The trial court declined to set aside the deed because the note and mortgage were evidence of a just debt of the estate and the 160 acres “never passed into the testamentary trust set forth in Howard Bone’s will, since the will provided that all just debts were to be paid and only the rest and residue of the estate was to pass into the testamentary trust.”

Appellant assigns this ruling, among others, as error. The chancellor was correct in his ruling, and the ruling is dispositive of the case. Ark. Code Ann. § 28-49-101 (b)(1) (1987) provides:

Real property shall be an asset in the hands of the personal representative . . . when the court finds that the real property should be sold, mortgaged, leased, or exchanged for any purpose enumerated in § 28-51-103, irrespective of whether any personal property of the estate, other than money, is available for such purpose.

Ark. Code Ann. § 28-51-103(a) (1987) provides:

(a) Real or personal property belonging to an estate may be sold, mortgaged, leased, or exchanged under court order when necessary for any of the following purposes:
(1) For the payment of claims;

The probate court found that the attorney’s fee, which was evidenced by the note and secured by the mortgage, was a just debt of the estate. There was no objection to that order, and no appeal from it. There was no proceeding in probate court to set it aside.

The appellant argues that the chancery court, which heard this case to set aside the commissioner’s deed, should have afforded “no weight” to the probate court order because it was erroneously decided. The asserted errors of the probate court are (1) failure to require a proper claim form and (2) admitting parole evidence. In short, appellant sought to collaterally attack the probate court order in chancery court. The chancery court correctly ruled against such an attack.

We have long held that where a probate court has jurisdiction of the subject matter, its judgment, although erroneous, is conclusive, so long as not reversed, and cannot be attacked collaterally. Sharum v. Meriwether, 156 Ark. 331, 246 S.W. 501 (1923); Carraway v. Moore, 75 Ark. 146, 86 S.W. 993 (1905); and Currie v. Franklin, 51 Ark. 338, 11 S.W. 477 (1888), citing Redmond v. Anderson, 18 Ark. 449 (1857); In Levinson v. Treadway, 190 Ark. 201, 78 S.W.2d 59 (1935), we wrote: “[P] róbate courts are superior courts within the limits of their jurisdiction and where, as in this case, jurisdiction is had of the subject-matter, a judgment of such court is impervious to collateral attack. This doctrine is so well settled by numerous decisions of this court that a citation of authorities is deemed to be unnecessary.” Further, chancery courts have subject matter jurisdiction to grant relief from judgment obtained by fraud in probate court only when there is no remedy at law. Tucker v. Leonard, 228 Ark. 641, 311 S.W.2d 167 (1958). There is an adequate legal remedy for a judgment fraudulently obtained in probate court. ARCP Rule 60(b) and (c)(4), provide that a probate court may vacate an order which has been obtained by fraud. Thus, the chancery court does not have authority to vacate a probate court order, even when the probate court order is obtained by fraud. Tucker v. Leonard, supra. In the chancery court case at bar, the appellant did not contend that the probate court was without jurisdiction, or that jurisdictional notice was not given. See Ark. Code Ann. § 28-40-101 (1987). Thus, the chancery court’s refusal to set aside the probate court’s finding that the promissory note was evidence of an estate debt was a correct ruling. The appellant argues that the probate court order was the result of a “staged performance to introduce parole evidence.” Even assuming that constitutes fraud, the chancery court was without jurisdiction to set aside the probate order. Thus, the chancery court correctly followed the probate court and held that the note was evidence of a just estate debt and that, accordingly, the 160 acres never passed into the testamentary trust, since the will provided that all just debts were to be paid and only the residue would pass into the trust.

The chancellor gave two additional reasons for denying relief to the appellant, and both of them are assigned as error. However, since we affirm the Chancellor for the first reason he gave, we need not address the two additional reasons.

Lastly, the appellant argues that we cannot give any weight to the findings of fact by the Chancellor since, according to appellant, the Chancellor mechanically adopted the appellee’s proposed findings. The argument is without merit for two reasons. First, we are not at all convinced that the Chancellor abandoned his duty to make his own impartial findings of fact. Second, even if he had done so, this case turns on a matter of law, the law of a collateral attack upon a judgment, and the findings of fact make no substantial difference.

Affirmed.


author: David Newbern, Justice. Otis H. Turner, Justice,

text:
    WEST UNION d/b/a Orgill Brothers and Company and William C. White II v. Allen VOSTATEK
    89-268
    788 S.W.2d 952
    Supreme Court of Arkansas
    Opinion delivered May 7, 1990

      Penix Law Firm, by: Bill Penix and Richard L. Castleman, for appellants.

      Richard S. Paden, for appellee.
   David Newbern, Justice.

This is an appeal of a judgment in favor of the appellee, Allen Vostatek, who was injured as the result of the bus in which he was a passenger being struck by the trailer of an oncoming tractor-trailer rig. The truck, which belonged to appellant West Union, was being driven by appellant William C. White, II. The appellants conceded their liability and went to trial only on the damages issue. The appellants, who will be referred to collectively as “West Union,” raise two points of appeal. They contend testimony about the cost of surgery Mr. Vostatek might have to undergo in the future should not have been admitted into evidence because of the lack of reasonable certainty that such surgery would be required. We hold that the medical evidence was sufficient to permit testimony about the cost of surgery. They also contend the $175,000 jury verdict was the product of passion and prejudice on the part of the jurors induced by evidence in the case of Glenda Rogers, another victim of the accident, which was consolidated with this case for trial apparently without objection. We hold the trial court did not abuse its discretion in refusing new trial or remittitur. We affirm the judgment.

Mr. Vostatek was a student at a vo-tech school in Mountain Home. The school bus in which he was riding was returning him to his home in Melbourne. The bus was going up a hill toward a blind curve near Calico Rock when West Union’s 18-wheel rig came around the curve. Mr. White apparently lost control of the truck. The trailer swung past the cab, and the rear of the trailer struck the front of the bus. Just after the accident, Vostatek, who had been thrown from one side of the bus to the other, saw blood on his shirt. He looked down and saw Ms. Rogers, who had been seated ahead of Vostatek, in the floor of the bus. Her face was badly lacerated, and he realized the blood on his shirt was hers.

Mr. Vostatek did not think he had been hurt. He got out of the bus and attempted to obtain help for the several passengers who were injured. He refused treatment at a hospital emergency room. The next day, however, he missed school because of sore back muscles. Upon returning to school, he could not stay an entire day due to pain. At the suggestion of his teacher, he visited his family physician, Dr. Burnett, who took x-rays and prescribed medication. Vostatek testified he did not return to the doctor for many months because he thought the problem would go away in time.

Walter Vostatek, Allen Vostatek’s father, testified that after completing the vo-tech course, Allen “complained about his back so much. . . he couldn’t work the jobs he had.” Allen Vostatek went to work for his father in a laundry. He testified he continued to have pain which increased during long periods of standing or sitting. He had trouble sleeping.

Some 13 months after the accident and after having first seen Dr. Burnett, Allen Vostatek went to Dr. Schmidt, a chiropractor, who treated him for six months and then referred him back to Dr. Burnett for a CT scan. At the time of the trial, Dr. Schmidt was still treating Vostatek. Several other doctors did examinations or gave opinions based on radiology reports. Their testimony will be discussed below.

1. Future surgery testimony

Allen Vostatek contends we should not consider this point because there was no timely objection to the testimony about the cost of future surgery and, if there were, West Union did not obtain a ruling from the court on the objection. While we have some inclination to agree, we need not decide that issue because we find a sufficient foundation for the testimony.

The deposition of Dr. Frank Petkovich, an orthopedic surgeon and spine specialist, was read into evidence. Dr. Petkovich testified that Allen had a bulging disc at L4-5 and a mild bulge at L3-4. He stated that a very minor injury could cause a bulging disc to herniate and that increased pain would be a factor to consider in recommending surgery. He said Allen was not a candidate for surgery “at this point,” but that the possibility of surgery was not sheer speculation as the injury was permanent and there was “an increased chance of having . . . recurrent lumbar spine problems” requiring “lumbar spine surgery.” He said that sometimes additional surgery is needed, and the surgery fee would be about $2,500 and the hospitalization cost would be about $15,000.

Dr. Stevenson Flanigan, head of the Department of Neurosurgery at the University of Arkansas Medical School, examined Allen for West Union. In his deposition he stated Allen already had symptoms of nerve root damage which included pain extending into one extremity with numbness or muscle weakness. Allen had described to him lower back pain at times radiating into his left thigh. Dr. Flanigan testified he saw no need for surgery “at this point.”

Dr. Schmidt read into the record part of a letter from Dr. Bert Park, a neurosurgeon to whom Allen had been referred by Dr. Burnett. The letter stated that if true radicular pain should occur, “he may well require surgery in the future but that would not be advisable at the current time.” Dr. Schmidt then testified that it was certain that radicular pain would occur in the future.

Arkansas Model Jury Instruction 2204 deals with future medical expense as an element of damages. It permits recovery for “[t]he reasonable expense of any necessary medical care” and, if applicable, “including. . .the present value of such expense reasonably certain to be required in the future.” We have held that future medical expenses need not be proven with the same specificity as past medical expenses. Matthews v. Rogers, 279 Ark. 328, 651 S.W.2d 453 (1983). Consistent with the model instruction, we have mentioned the showing of a “degree of medical certainty” as evidence bolstering recovery of “future medication,” Williams v. Gates, 275 Ark. 381, 630 S.W.2d 34 (1982).

In addition to the medical testimony that Allen had bulging or herniated discs, there was Dr. Park’s letter stating that surgery might well be required if there were true radicular pain in the future, we have Dr. Schmidt’s testimony that such pain was sure to occur 10 to 12 years hence or sooner. We regard the evidence as sufficient to establish a degree of reasonable certainty that surgery will someday be required to correct or alleviate Allen Vostatek’s condition.

2. Excessive damages

The standard of review is whether the damages are so excessive as to shock the conscience of the court or demonstrate that the jury was motivated by passion or prejudice. Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 784 S.W.2d 755 (1990); Mustang Electrical Services Inc. v. Nipper, 272 Ark. 263, 613 S.W.2d 397 (1981). The evidence was sufficient to show that about the only job Allen could hold was one working for his father who understood his physical condition. His employability is obviously affected as is his general prospect for the enjoyment of life. He must avoid activities such as water skiing and sports in which he once participated. Our conscience is not shocked by a $175,000 award to a 21-year-old man with a painful back injury with which he can expect to have to deal for his anticipated life expectancy of over 57 years.

West Union compares this case with others where we have found the damages to be excessive, e.g., Bilford v. Humphrey, 244 Ark. 211, 424 S.W.2d 526 (1968), and points out that the special damages proven here are negligible by comparison. It does not matter that Allen’s past medical expenses have been negligible. The jury’s award was not segmented. We cannot know what portion of it was for pain and suffering, mental anguish, lost earning capacity, or future medical expenses. Each case must be determined on its facts, Mustang Electrical Services, Inc. v. Nipper, supra, and we cannot say the jury was unjustified in holding that a young man with this sort of injury had been damaged in the amount given or that the amount showed passion or prejudice on the jury’s part.

West Union argues that the jury was impassioned by pictures of the bus taken after the accident and by hearing evidence that Glenda Rogers’ injuries resulted in bad scarring and that her medical bills had not been paid when she submitted them, causing her to be harassed by bill collectors and physicians’ offices. The verdict for Ms. Rogers was $85,000. It is pointed out that we wrote in Hot Springs Street Railway v. Jones, 234 Ark. 693, 354 S.W.2d 278 (1962), that failure to pay bills is immaterial to the issue of compensatory damages. While it may be that immaterial testimony was given with respect to Ms. Rogers, we cannot conclude that would have prejudiced the jury in this case. We are given no reason to assume the jury would transfer its prejudice, if any, so as to favor Allen Vostatek even if it had been unduly impassioned by such testimony.

Affirmed.

Turner, J., concurring in part and dissenting in part.

Otis H. Turner, Justice,

concurring in part and dissenting in part. Arkansas Model Jury Instruction 2204, Measure of Damages — Medical Expense — Past and Future, is a statement of the law that supposedly exists in this state. Any deviation from this statement of law in the form of an alternative instruction must be supported by a finding by the trial judge that the model instruction does not accurately state the law. Arkansas Supreme Court Per Curiam Order of April 19,1965, AMI Civil 3d at VII.

Regarding past and future medical expenses that a jury may grant, AMI Civil 3d 2204, provides for an award of “[t]he reasonable expense of any necessary medical care, treatment and services received, . . . and the present value of such expense reasonably certain to be required in the future.” (Emphasis added.)

Prior to the trial of this case, the appellants filed a motion in limine to exclude any testimony regarding the medical procedure for a discectomy and any testimony relating to the cost of that surgical procedure. The appellee responded by stating that a proper foundation would first be established before introduction of the testimony.

Prior to the appellee reading the medical depositions into evidence, the appellants’ motion was renewed. The court ruled that the cost of any future surgery could not be introduced unless it was established by the physician that there was a substantial likelihood that surgery would be necessary. From a careful review of the abstract and the briefs, I find no evidence to indicate that a future discectomy or any other surgical procedure would likely be required. Yet evidence of the anticipated cost of that surgical procedure ($17,500) was introduced and submitted to the jury.

The evidence indicated that the appellee’s total medical expenses up to the date of the trial amounted to $3,122, including $2,306 for treatment by a chiropractor — services the medical doctors opined were not needed. The record also reveals that the appellee was never admitted to a hospital and that he missed no work. Further, the evidence showed that the appellee was given a five percent permanent partial impairment to the body as a whole by the medical doctors as a result of his back injury, while the chiropractor set that permanent impairment as high as 37 percent.

The verdict in this case amounted to $175,000.

It seems clear that the inadmissible testimony influenced the verdict. I would direct a remittitur of $17,500, or a remand of the case for a new trial, the election to lie with the appellee.


author: Otis H. Turner, Justice. Glaze, J.,

text:
    Felver A. ROWELL, Jr. v. WHITE & ASSOCIATES, INC. d/b/a Express Service
    90-98
    788 S.W.2d 489
    Supreme Court of Arkansas
    Opinion delivered May 7, 1990

      Felver A. Rowell, Jr., for appellant.

      Pate & Gunn, by: James R. Pate, for appellee.
   Otis H. Turner, Justice.

This case is appealed from a judgment entered in circuit court but arises from an appeal from municipal court and presents a question of procedure.

The appellee, White & Associates, Inc., doing business as Express Service, brought this action in the municipal court of Russellville, Pope County, for collection of a $665.50 debt from the appellant, Felver A. Rowell, Jr., a resident of Conway County. Service was directed to the appellant at his Morrilton address.

The appellant answered and raised the obvious jurisdictional issue by his motion to dismiss, which was denied. The appellant never again raised or pursued that issue and does not raise it on appeal. A lack of jurisdiction of the person may be waived. See Searcy Steel Co. v. Mercantile Bank of Jonesboro, 19 Ark. App. 220, 719 S.W.2d 277 (1986). We find it to be waived in this instance.

The appellant then filed in the municipal court a counterclaim for $50,000, alleging abuse of process.

The appellee moved to dismiss the counterclaim by a written motion with attached brief. The appellant did not respond to the motion, and after 20 days the municipal court granted the dismissal and set the case for hearing on the complaint.

Again, the appellant did not appear on the date set for the hearing, and judgment was entered for the appellee in the amount of $665.50 with interest of $56.70 and attorney’s fees of $600.

The appellant then perfected an appeal to the circuit court of Pope County but failed to further pursue the appeal. The appellee was again awarded judgment, interest, and attorney’s fees. It is from that order of the circuit court that this appeal is taken. We affirm the judgment of the circuit court.

The appellant argues two points for reversal: first, that his counterclaim for abuse of process seeking $50,000 in damages divested the municipal court of jurisdiction; and, second, that the affirmance by the circuit court in accordance with a “local rule” without notice to the appellant was improper. We find both arguments to be without merit.

At first blush it appears that the facts of this case require the interpretation of ARCP Rule 13 and Inferior Court Rule 7 (concerning the jurisdiction of the municipal court) to finally determine the issues. However, the appellant’s failure to respond to the appellee’s motion to dismiss the counterclaim, and the subsequent dismissal by the municipal court, disposed of the jurisdiction problems. We regard the municipal court’s dismissal of the counterclaim as though the court had disregarded the counterclaim pursuant to the provisions of Inferior Court Rule 7(b).

The appellant next complains that the circuit court of Pope County invoked “local rules” in the dismissal of his appeal. However, no such local rules are abstracted or included in the record. We consistently have held that we cannot decide matters that are not abstracted. Failure to comply with the abstracting requirements set forth in Rule 9 of the Rules of the Supreme Court mandates that we affirm the lower court’s judgment. Cozart v. Lewis, 299 Ark. 500, 774 S.W.2d 127 (1989); Jolley v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987).

Affirmed.

Glaze, J., concurs.

Glaze, J.,

concurring. I would affirm because appellant appealed his claim to circuit court where he was entitled to a de novo review. Because appellant defaulted and failed to raise the issues now argued in this appeal, he is barred from doing so now.


text:
    WILLSON SAFETY PRODUCTS v. Alex ESCHENBRENNER
    89-337
    788 S.W.2d 729
    Supreme Court of Arkansas
    Opinion delivered May 7, 1990
    [Rehearing denied June 11, 1990.]

      Wright, Lindsey & Jennings, for appellant.

      Gibson & Hashem, by; Hani W. Hashem, for appellee.
   Otis H. Turner, Justice.

The appellee, Alex Eschenbrenner, while operating a drill machine at the White Rogers manufacturing plant in Batesville, suffered a ruptured eardrum and displaced meniscus of the tempromandibular jaw joint (TMJ). While operating the machine, the appellee was wearing a pair of Willson hearing-protectors, resembling headphones, when a co-worker pulled one of the protectors away from the appellee’s head and released it, allowing the earcup to snap sharply against the appellee’s ear and face.

The appellee filed a products liability action against the appellant, Willson Safety Products, alleging that the design of the hearing-protectors was a proximate cause of his injury and resulting medical problems. The appellee contended that the defective design of the protectors permitted the earcups to rotate 360 degrees on the horizontal axis, thus allowing the hard plastic portion of the cups to come in contact with the appellee’s ear and face.

The issues concerning the design of the product, the facts of the incident, and the causal relationship of the appellant’s product to the injury were thoroughly developed and contested. The jury returned a verdict for the appellee in the amount of $590,513. We affirm that judgment.

For reversal the appellant argues:

I. There was no substantial evidence that the hearing-protectors were negligently designed or unreasonably dangerous;

II. There was no substantial evidence that the earcup of the hearing-protector rotated before striking the appellee;

III. The misuse of the hearing protector by the appellee’s coworker constituted an independent and intervening cause of the injury as a matter of law;

IV. The future medical expenses were based solely on speculation and conjecture.

Points, I, II, and III are clearly challenges to the sufficiency of the evidence. The record reflects that at the close of the appellee’s case-in-chief, the appellant moved for a directed verdict, alleging that there was insufficient evidence to submit the issues to the jury. No further motion attacking the issue of sufficiency of the evidence was made until after the jury verdict. Subsequently the appellant moved for judgment notwithstanding the verdict (N.O.V.).

Arkansas Rules of Civil Procedure Rule 50 provides:

(a) Motion for Directed Verdict or Dismissal When Made; Effect. A party may move for a directed verdict at the close of the evidence offered by an opponent.... A party may also move for a directed verdict at the close of all of the evidence. ... a motion for a directed verdict shall state the specific grounds therefor. . . .
(b) Motion for Judgment Notwithstanding the Verdict. WHENEVER A MOTION FOR A DIRECTED VERDICT MADE AT THE CLOSE OF ALL THE EVIDENCE is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury SUBJECT TO A LATER DETERMINATION OF THE LEGAL QUESTIONS RAISED BY THE MOTION. Not more than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict .... (Emphasis added). . .
(e) Failure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a party to move for a directed verdict at the conclusion of all the evidence, or to move for judgment notwithstanding the verdict, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.

Subsection (a) of this rule is the grant of authority by which a party may challenge the sufficiency of the evidence, as a matter of law, prior to a submission of the factual issues to the jury. Subsection (b) is the grant of authority and procedure by which a party may, after verdict, submit to the court for its determination “the legal questions raised by the motion” — the motion being the motion for directed verdict made “at the close of all the evidence” as provided in the preceding phrase of that same sentence in subsection (b).

The appellant artfully contends that subsection (e) of Rule 50, by use of the disjunctive “or,” provides for either a motion for a directed verdict at the conclusion of all of the evidence or a motion for judgment notwithstanding the verdict. Standing alone, the argument of the appellant would be persuasive. However, subsection (e) of the rule must be read in the context of the entire rule; when this is done, subsection (e) cannot be given the interpretation argued by the appellant. Such an interpretation would be contrary to the clear language of that part of the rule which is the very authority for a motion for judgment N.O. V. — subsection (b).

A motion for a directed verdict at the close of the plaintiff's case has as its purpose a procedure for determining whether the plaintiff has met the burden of establishing a prima facie case, with that question to be resolved by the court as a matter of law. In the event the motion is overruled, the defendant may elect to stand on the motion or to go forward with the production of additional evidence, in which case he has waived any further reliance upon the former motion. See Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981); Granite Mountain Rest Home v. Schwarz, 236 Ark. 46, 364 S.W.2d 306 (1963).

At the conclusion of all of the evidence, a party then has an opportunity again to test the sufficiency of all of the evidence for submission to the factfinder. This is accomplished, once again, by a proper motion for a directed verdict addressed to the court, thus affording the trial court an opportunity to rule prior to the submission of the case to the jury. In the event the motion is not granted, “the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion,” it being contemplated that a motion for judgment N.O.V. will, or may be, made.

We believe that the intent of the rule is to require a party testing the sufficiency of the evidence first to submit the question to the trial court, thereby permitting the court to make a ruling at the conclusion of all the evidence but prior to verdict, thus preserving the specific question for appeal. On the other hand, the motion for judgment N.O.V. is permitted by the rule for the express purpose of not only again raising the question of sufficiency of the evidence but also all other questions of law properly preserved during trial, all of which are to be considered by the court in light of the verdict rendered.

We have long held that an issue, to be considered on appeal, must be properly preserved at trial. Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989). If, as the appellant contends, a litigant could first raise the issue of sufficiency of the evidence by a post-trial motion, this would be a sharp departure from the spirit of our rule.

We have consistently held that a motion for a directed verdict must be made or renewed at the conclusion of all of the evidence. Otherwise, questions of sufficiency of the evidence are waived. Mitchell v. Goodall, 297 Ark. 332, 761 S.W.2d 919 (1988); Laster v. Tilley, 295 Ark. 488, 749 S.W.2d 326 (1988); Copelin v. Corter, 291 Ark. 218, 724 S.W.2d 146 (1987). This is, however, apparently the first time that the interpretation of ARCP Rule 50 urged by the appellant has been presented to this court. We decline to accept the appellant’s interpretation and find that, at the conclusion of all the evidence, a failure to renew the motion for directed verdict attacking the sufficiency of all the evidence constitutes a waiver of the issue.

The appellant’s point IV challenges the submission of the question of future medical expenses as being an issue based solely on speculation and conjecture. The evidence indicates that the appellee had undergone one surgery to his ear and six jaw surgeries at the time of trial. None of the surgical procedures had achieved more than temporary relief. The oral surgeon testified that the appellee continued to require medical treatment in the form of weekly injections and intermittent hospitalizations for pain and that the appellee would need “follow-up” medical care for an indeterminate period. The oral surgeon testified that an experimental surgical procedure called thermo-neurolysis might benefit the appellee. The cost of this procedure was estimated to be between $4,000 to $5,000 and testimony indicated that it would likely have to be repeated on an annual basis. Additionally, there was an abundance of evidence emphasizing the seriousness of the injuries, and that the medical problems had not been resolved even though the expense up to the time of trial was some $75,000.

It is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date, particularly when there is also a degree of medical certainty that future medical expenses will be necessary. Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 784 S.W.2d 755 (1990); Williams v. Gates, 275 Ark. 381, 630 S.W.2d 34 (1982). Future medical expenses do not require the same degree of certainty as past medical expenses. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983). Where the doctor testifies that the injured party might need future treatment and the injured party testifies he still suffers pain, that testimony is sufficient for consideration of the element of future medical expense. Matthews v. Rodgers, supra.

We find that it was not error to submit the issue of future medical expenses to the jury and the judgment of the trial court is affirmed.

Affirmed.


author: Dale Price, Justice.

text:
    Ricky Lee WILLIAMS v. STATE of Arkansas
    CR 90-85
    788 S.W.2d 241
    Supreme Court of Arkansas
    Opinion delivered May 7, 1990

      John Wesley Hall, Jr., P.C., by: Craig Lambert, for appellant.

      Steve Clark, Att’y Gen., by: Paul L. Cherry, Asst. Att’y Gen., for appellee.
   Dale Price, Justice.

The appellant, Ricky Lee Williams, was convicted of falsifying business records, a class A misdemeanor. He received a one year suspended sentence, was fined $300, plus court costs, and was ordered to pay $650 as restitution. The case was tried non-jury. On appeal, he contends the evidence was insufficient to support his conviction, and we agree.

Williams was the manager of the Little Rock Discount Golf store in Little Rock. The store was owned by International Golf Enterprises. In July of 1988, the accounting department of International Golf discovered that no bank deposits had been made for the Little Rock store for a period of several days. Jack Lane, the company’s general manager, came to Little Rock on July 17 to discuss the matter with Williams.

Lane found that Williams was in possession of several days’ worth of bank deposits, even though company policy provided that store receipts should be deposited each day. Williams explained that, in the latter part of June, he discovered an unexplained shortage of $400 to $500 in the store’s cash receipts. Since that time, he told Lane, he had been “juggling” the deposits, meaning he would refrain from depositing one day’s receipts until he could take money from the next day’s receipts to cover the shortage. He also told Lane that, to cover the shortage, he would ring up an item on the cash register for less than its actual sale price. Ultimately, Williams said, he became so confused that he quit making the deposits. In addition to juggling the deposits and the underrings on the cash register, Williams told Lane that he was missing three days’ worth of deposits for July 7, 8, and 9. Williams blamed this on burglars.

Lane took the money Williams had with him and deposited it in the bank. Lane discovered a substantial shortage. Williams was charged with theft by deception, a felony, but the charge was later amended to falsifying business records, a misdemeanor.

The state’s evidence consisted of Lane’s testimony, the testimony of co-workers, who had also heard Williams say he was juggling the deposits to make up for a shortage, and the testimony of a Little Rock police officer, Sergeant Steve Archer. He testified that he investigated a report of a burglary in progress at the store on July 16, the day before Lane’s visit. Williams, who was at the scene when Archer arrived, told Archer that the suspects had gained entry through the roof. Archer said his investigation revealed such entry was not possible. Williams declined to report the burglary.

At the close of the state’s evidence, Williams asked that the case against him be dismissed, saying that the state had not proven that he had falsified any business records. The court denied the motion. The appeal is from that ruling.

Motions for a directed verdict are challenges to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). This court affirms where there is substantial evidence to support the verdict. Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978). On appeal, the evidence must be viewed in the light most favorable to the appellee, and the judgment is affirmed if there is any substantial evidence to support the finding of the trier of fact. Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980).

Under Ark. Code Ann. § 5-37-202 (1987), the crime of falsifying records may be committed by any of four means:

A person commits the offense of falsifying business records, if, with the purpose to defraud or injure, he:
(1) Makes or causes a false entry to be made in the business records of an enterprise; or
(2) Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or
(3) Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or
(4) Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.

The amended information, charging Williams with falsifying business records, states, in pertinent part:

Chris Piazza. . . charges RICKY LEE WILLIAMS. . . with the crime of violating Ark. Code Ann. 5-37-202 FALSIFYING BUSINESS RECORDS .... The said defendant(s), . . . with purpose to defraud or injure, did make or cause a false entry to be made in the business records of an enterprise, LITTLE ROCK GOLF DISCOUNT ....

While the amended information does not specify that § (a)(1) is the section that Williams is charged with, the description of the charge quotes exactly § (a)(1); One requirement for a sufficient information is that it must contain elements of the crime, so that the defendant can adequately prepare for the case against him. Fortner & Holcomb v. State, 258 Ark. 591, 528 S.W.2d 378 (1975).

In order to convict, the state was required to present proof that false entries were made in. the business records of the company and were made with the intent to defraud or injure. The state failed to introduce any business records that Williams was accused of falsifying. Lane testified as follows:

Q. Mr. Lane, do you have any documents, or can you identify any documents which you contend that Rick falsified with the purpose to defraud the company that he had worked for for five years out of some of their money? Can you point me to any documents at all?
A. No.

The state claims it was not limited to proving a violation of subsection 1 of the statute. It is argued that, even though Williams was charged with violating subsection 1, he could be convicted if his conduct showed a violation of any of the statutes’ four subsections. We disagree.

We hold that the language of the information limited the state to proof of those specific elements set forth in the information. To attempt to prove any of the three other elements of the statute would constitute a fatal variance between the information and the proof. Clemons v. State, 150 Ark. 425, 234 S.W. 475 (1921); see also Stirone v. United States, 361 U.S. 212 (1960). The state has simply failed to make its case. Whatever crime Williams committed, if any,’ was not falsification of business records.

Reversed and dismissed.

Glaze, J., dissents.


author: Per Curiam.

text:
    William A. GRAHAM v. STATE of Arkansas
    RC 90-19
    788 S.W.2d 243
    Supreme Court of Arkansas
    Opinion delivered May 7, 1990

      Witt Law Firm, by: Ernie Witt, for appellant.
    No response.
   Per Curiam.

William A. Graham, by his attorney, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and that it was no fault of the appellant.

However, the motion does not state good cause for granting the motion as discussed in our per curiam issued February 5,1979, 265 Ark. 964. If the attorney for Graham will concede that it was his fault that the record was not filed, or if other good cause is shown, then the motion will be granted. The present motion for rule on the clerk is denied.


author: Jack Holt, Jr., Chief Justice.

text:
    CITY OF CROSSETT, Arkansas v. W.P. “Billy” SWITZER, James M. Barker, Samuel B. Pope, and Teresa Thurman
    90-53
    788 S.W.2d 738
    Supreme Court of Arkansas
    Opinion delivered May 14, 1990

      Arnold, Hamilton & Streetman, by: Thomas S. Streetman, City Attorney, for appellant.

      Cross, Kearney & McKissic, by: Garry J. Corrothers and Gene E. McKissic, for appellee Teresa Thurman.
   Jack Holt, Jr., Chief Justice.

This is an appeal from a judgment declaring that appellees, Samuel B. Pope and James M. Barker, were not legally qualified to serve as Special Crossett Municipal Judge. We find no error and affirm.

On November 21,1989, appellee, Teresa Thurman, Crossett Municipal Court Clerk, was indicted for tampering with evidence, and appellee, W.P. “Billy” Switzer, Crossett Municipal Judge, was indicted for bribery and hindering apprehension of prosecution.

On December 5, 1989, Judge Switzer sent a letter to the Mayor of Crossett announcing his intention to take a leave of absence from the bench pending the disposition of criminal charges against him and.disclosing his appointment of James M. Barker, a resident of Hamburg, as his replacement. On December 6, Switzer entered an order appointing Barker as special municipal judge. However, Barker was not sworn in.

On December 11, Barker entered an order relieving Teresa Thurman of her duties as municipal court clerk. On the same day, Switzer entered another order nullifying his previous order and appointing Samuel B. Pope, who resides near Hamburg, to replace Barker as special municipal judge.

Appellant, the City of Crossett, then filed suit in circuit court against Barker, Pope, Thurman, and Switzer, asking for a judgment declaring the legal effect of both Switzer’s order, which removed Barker and appointed Pope as special municipal judge, and Barker’s order, which relieved Thurman of her duties as clerk.

At trial, the parties stipulated that Barker had never taken an oath of office and that Pope received his oath of office from Thurman, the municipal court clerk. However, the court later received testimony from both Aimee Stanley, deputy clerk, and Pope that Pope was administered his oath of office from Switzer on December 11. During examination by the trial court, Pope testified that, upon reflection, he thought Thurman administered the oath to him instead of Switzer.

In its findings of fact,' the trial court found that neither Barker nor Pope had been a resident of Crossett at any time prior to or since December 11, 1989, and that a municipal judge is required by Ark. Code Ann. § 16-17-209(a) (1987) to be an elector of the judicial subdivision where the court sits and, therefore, they could not legally hold the office of special municipal judge. The court also found that Barker failed to legally qualify for appointment to office since he did not take an oath of office and, therefore, his order of December 11 was void; that Pope was administered the oath of office by Thurman, the municipal court clerk; and inasmuch as the clerk of a municipal court is not an official legally qualified under Ark. Code Ann. § 21-2-105 (1987) to administer such oaths, Pope also failed to legally qualify for appointment.

The court entered judgment in accordance with these findings, concluding that neither Pope nor Barker was qualified to serve as Special Crossett Municipal Judge.

From this order, the City of Crossett appeals, contending that the trial court erred in finding that Pope received his only oath of office from Teresa Thurman; in ruling, as a matter of law, that the Crossett Municipal Court Clerk was not authorized to administer the oath of office to Pope; and in ruling that Pope and Barker were not legally qualified to be the Special Crossett Municipal Judge on the basis that the judge must be an elector of the City of Crossett. Appellant does not challenge the trial court’s conclusion that Barker was not legally qualified to be the special municipal judge since he was not administered an oath of office.

We quickly dispose of appellant’s argument that the trial court erred in finding that Pope received his only oath of office from Teresa Thurman. Where a trial court is sitting without a jury, we do not reverse its findings of fact unless they are clearly erroneous. Jernigan v. Cash, 298 Ark. 347, 767 S.W.2d 517 (1989). In light of the parties’ stipulation that Pope’s oath was given by Thurman and Pope’s testimony that he thought Thurman, not Switzer, gave him the oath of office, we conclude that the trial court’s finding was not clearly erroneous.

The appellant also asserts that the court erred in ruling, as a matter of law, that the Crossett Municipal Court Clerk was not authorized to administer the oath of office to Pope. We disagree.

Section 21-2-105(a)(3) provides that all officers except the Governor, the Justices of the Supreme Court, judges of the circuit courts, Secretary of State, Treasurer of State, and Auditor of State shall take their oaths of office before the Secretary of State or his official designee, any justice or judge, clerk of the county court, clerk of the circuit court, or justice of the peace,

Arkansas Code Ann. § 16-17-211 (1987) merely states that the municipal court clerk shall “administer oaths.”

Although a municipal court clerk can administer oaths under section 16-17-211, section 21-2-105(a)(3) dictates that a municipal judge can only receive his oath of office from certain designated persons, who do not include a municipal court clerk. Accordingly, the trial court was correct in concluding that the Crossett Municipal Clerk was not qualified by statute to give the oath of office to Pope and, therefore, that Pope was not legally qualified to be the Special Crossett Municipal Judge.

Based upon the foregoing, it is clear that the trial court correctly ruled that Barker was not legally qualified to serve as special municipal judge in that he was not administered an oath of office and that Pope was not legally qualified in that he was not given an oath of office from an individual legally qualified to administer an oath. We affirm the trial court as neither party was legally qualified to serve as judge.

Consequently, we do not reach the issue of whether the court erred in ruling that Pope and Barker were not legally qualified to be the special municipal judge on the basis that the judge must be an elector of the City of Crossett. To do so would be to render an advisory opinion.

Affirmed.