text:
    Craig WILLIAMS et al v. VILLAGE CREEK, WHITE RIVER AND MAYBERRY LEVEE AND DRAINAGE DISTRICT
    84-246
    685 S.W.2d 797
    Supreme Court of Arkansas
    Opinion delivered March 11, 1985
    [Rehearing denied April 15, 1985.]

      Thaxton if Hout, by: Phillip D. Hout, for appellants.

      Pickens, McLarty if Watson; Boyce if Boyce; and Friday, Eldredgeif Clark, by: James A. Buttry and Robert S. Shafer, for appellee.
   David Newbern, Justice.

The question presented here is whether a drainage district may add lands, after the improvements have been completed, on the basis that the lands to be added benefit from the improvements. The answer to this question requires interpretation of Ark. Stat. Ann. § 21-514 (Repl. 1968), thus our jurisdiction rests on Arkansas Supreme Court and Court of Appeals Rule 29 l.c.

It is undisputed that the improvements constructed by the district were completed prior to its petition to add to the district lands owned by the appellants and others. There are provisions for adding lands benefited by a district’s improvements after completion. Ark. Stat. Ann. §§ 21-534, 21-536 and 21-537 (Repl. 1968). However, they permit annexation only when a “slough, marsh or lake” has benefited by having been connected to drainage ditches or conduits constructed by the district.

The district did not rely on §§ 21-534, 21-536, and 21-537. It has from the outset contended that it could annex the lands of the appellants pursuant to Ark. Stat. Ann. § 21-514 (Repl. 1968) despite the undisputed fact that the district’s improvements had been completed some four years prior to the filing by the district in the circuit court below of its petition seeking to add the new lands.

Section 21-514 provides that if the district’s commissioners determine that “lands not embraced within the boundaries of the district will be affected by the proposed improvement” they should report their assessment of the estimated benefits to the court. The lands may be added if it is found they will benefit. The district would have us ignore the word “proposed” in the statutory language, yet it has supplied neither reason nor authority for us to do so.

We need not recite the entire statutory scheme for creation of drainage districts to point out that it makes sense to follow the literal meaning of § 21-514. It is enough to note that it gives owners of the land to be added notice that they are likely to be assessed for the benefit to them of the proposed improvement. It allows them to protest the construction of the improvement before their lands are affected.

In Bayou Meto Drainage Dist. of Lonoke County v. Ingram, 165 Ark. 318, 264 S.W. 947 (1924), a district was allowed to alter its plan prior to completion of the improvement. The alteration resulted in benefits to lands not theretofore included in the district. We looked to the general legislative purpose of drainage districts and said an improvement would not be deemed to have been completed if it were found to be abortive just prior to finishing the planned construction. The additional construction needed to complete the improvement was allowed, and we said:

If the statute authorizes the change of plans and extension of boundaries after the approval of the original plans and the assessment of benefits, then it follows that it may be done at any time before the improvement is completed, for there is no other period in the proceedings at which the authority may be limited. [165 Ark. at 326; 264 S.W. at 949]

While the Bayou Meto opinion seemed primarily to rely on other sections, although mentioning § 21-514, its theme is obviously consistent with the notion expressed here that landowners whose property is to be assessed to pay for an improvement should have notice and an opportunity to object before the “benefit” is conferred upon them.

The principal case cited by the district is Mudd v. St. Francis Drainage District, 117 Ark. 30, 173 S.W. 825 (1915). As other cases cited by the district, the Mudd case involved a district created by a special legislative act and added to by a further legislative act. The district would have us find this special legislative action to be persuasive toward holding lands benefited may be added to a district where the construction is complete. To the contrary, we find those special legislative Acts have nothing to do with the interpretation of § 21-514 which both parties assert as controlling the outcome of this case.

In permitting the district to proceed with the proposed addition of the land of the appellants and others, the circuit court apparently misinterpreted § 21-514 to allow the addition despite the fact that the improvement was no longer “proposed” but had been completed.

Reversed.


source: Caselaw Access Project

author: Per Curiam. Darrell Hickman, Justice,

license: Public Domain

text:
    H. Wayne MEACHUM v. WORTHEN BANK & TRUST COMPANY, N.A.
    85-19
    685 S.W.2d 173
    Supreme Court of Arkansas
    Opinion delivered March 11, 1985

      Haley, Polk if Heister, P.A., by: Peter B. Heister, for appellant.

      Wright, Lindsey if Jennings, for appellee.
   Per Curiam.

Petition for review is denied.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I write merely to note that at the first opportunity I intend to re-examine the holding in SD Leasing, Inc. v. Al Spain & Assoc., Inc., 277 Ark. 178, 640 S.W.2d 451 (1982).


author: Per Curiam.

text:
    William F. BRENTS v. STATE of Arkansas
    CR 85-29
    686 S.W.2d 395
    Supreme Court of Arkansas
    Opinion delivered March 11, 1985

      Felver A. Rowell, Jr., for appellant.
    No response.
   Per Curiam.

Petitioner William F. Brents was found guilty by a jury of theft by receiving and sentenced to a term of 20 years imprisonment and a fine of $ 10,000. The Court of Appeals affirmed. Brents v. State, CACR 82-5 (June 20, 1984). Petitioner seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the ground that his counsel was ineffective at trial and on appeal.

In 1982 the Court of Appeals reinvested the trial court with jurisdiction to reconstruct and settle the trial record. After both the petitioner and the state made corrections in the record, the trial court entered a final order settling the record. Petitioner alleges that counsel was incompetent in that he failed to object to the order, but he has neither stated a basis for an objection nor demonstrated that counsel’s conduct impeded appellate review of the trial. Factual support and some showing of actual prejudice must underlie an allegation of ineffective assistance of counsel before this Court will grant postconviction relief. Strickland v. Washington,_U.S._, 104 S. Ct. 2052 (1984). Also, the issue of the completeness of the record was raised on appeal despite the lack of an objection to the final order, and the appellate court found no error. The question cannot be raised again under the guise of a claim of ineffective assistance of counsel. See Guy v. State, 282 Ark. 424, 668 S.W.2d 952(1984).

Petitioner next asserts that the appellate court opinion sets out the shortcomings of counsel and is evidence of his ineffectiveness. We have held that all grounds for postconviction relief and factual support for such grounds must be contained in the petition itself. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). Since petitioner is contending that counsel’s representation on appeal was inadequate, however, the opinion will be considered at least insofar as it pertains to that issue.

Petitioner argued on appeal that certain evidence was improperly admitted into evidence. The court affirmed on the point pursuant to Rule 9(e)(2) of the Rules of the Supreme Court and Court of Appeals because it found that “appellant has failed to clearly frame the evidentiary issue which he apparently contends represents reversible error.” Petitioner states that the evidentiary issues which were not fully developed in counsel’s brief were the questions of whether petitioner was held in custody without an arrest warrant, whether there was probable cause fpr his arrest and the concomitant question of whether evidence obtained as a result of the arrest was admissible. Petitioner specifically cites as error admission into evidence of money in the possession of petitioner’s wife but he fails entirely to explain how this was the fruit of an illegal arrest or state the basis for a claim of error on any other ground.

It is not clear whether petitioner is contending in regard to these evidentiary questions that counsel’s conduct at trial was in some unspecified way inadequate or whether he is arguing that counsel’s failure to raise the issues properly on appeal constituted incompetence. In either case, we do not find grounds for postconviction relief in this petition.

First, petitioner would not be entitled to a new trial in the event the arrest was found illegal. A flaw in the manner of arrest is not sufficient cause to set aside a judgment of conviction. Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974). Secondly, the record indicates that various evidence was introduced which was obtained sometime after petitioner’s arrest, but petitioner does not say which particular evidence was inadmissible as a result of the arrest. In any event, petitioner was not arrested until it was learned that six one-hundred dollar bills taken in the robbery could be traced directly to him.

An examination of the record and briefs in this case, paticularly the State’s brief, indicates that the appellant may well have made the only arguments he could make with regard to the evidence. The fact that he was unable to prevail on them in the appellate court is not in itself evidence that counsel was ineffective. Success at trial or on appeal is not the criterion for gauging effective assistance of counsel. See Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983). It is a matter of pure speculation and hindsight at this point whether counsel did everything he could at the appellate level to obtain a favorable decision.

Petition denied.


author: Jack Holt, Jr., Chief Justice. Darrell Hickman, Justice,

text:
    Herman KINARD, et al v. CACHE RIVER BAYOU DeVIEW IMPROVEMENT DISTRICT
    84-233
    686 S.W.2d 407
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985

      Woodruff 6- Huckaby, for appellant.

      Frierson, Walker, Snellgroveir Laser, by: G. D. Walker, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves a petition filed by the commissioners of the Cache River Bayou DeView Improvement Dis trict seeking permission in circuit court to alter the plans for the district. The petition was granted and this appeal is brought by the landowners who oppose the proposed changes. Our jurisdiction is under Sup. Ct. R. 29(1) (c) as we are being asked to interpret a statute.

The improvement district was established by court order entered on July 21, 1958, pursuant to Ark. Stat. Ann. §§21-1001 to 21-1003. Its purpose was to channelize the Cache River and Bayou DeView to create a large channel or ditch to drain an extensive area of land surrounding the rivers. The Corps of Engineers made plans and estimated costs for the project but it was never completed and work ceased.

The commissioners for the district petitioned the circuit court in 1983 for an order extending and enlarging the powers of the improvement district to include those rights, powers and privileges of drainage districts as provided by Ark. Stat. Ann. §§ 21-501 to 21-581. The commissioners sought the order because the rivers were not navigable, and the lands in the district were suffering from floods and lack of drainage because of the failure to complete the original project.

The extension and enlargement of powers was sought pursuant to Ark. Stat. Ann. § 21-1026 (Supp. 1983) which provides:

By such Order of the Circuit Court the powers of such an improvement district shall be enlarged and extended to embrace all the powers, rights, and privileges of drainage districts organized under the existing laws of the State of Arkansas. . .The purpose of this extension of powers shall be to complete the improvements contemplated by the Act of Congress and the plans of the Corps of Engineers. . .which were filed with and made a part of the petition for the establishment of the improvement district. . .

Protests, which included a claim that the altered plans do not complete the improvements contemplated by Congress as required by Ark. Stat. Ann. § 21-1026, supra, were filed by landowners in Poinsett County. After a hearing on October 4, 1983, the trial court granted the petition to acquire powers of drainage districts and ordered the commissioners to proceed with the steps required by law for determination of the work to be done under the proposed project and for the assessment of benefits.

Ark. Stat. Ann. § 21-1025 (Supp. 1983) provides:

The order of the Circuit Court enlarging the powers of the district shall have all the force and effect of a judgment. Any owner of real property within the district may appeal from said judgment within thirty (30) days after the same has been made, but if no appeal is taken within that time, the judgment authorizing the enlargement of the powers of the district shall be deemed conclusive and binding upon all the property within the boundary of the district and upon the owners thereof. . .

Nevertheless, the order of October 4, 1983, was not appealed. Subsequently the commissioners filed a petition for alteration of the plans of the district on March 28, 1984. The petition was filed in accordance with Ark. Stat. Ann. § 21-517 (Repl. 1968) which states:

The commissioners may at any time alter the plans of the ditches and drainage [drains], but, before constructing the work according to the changed plans, the changed plans, with accompanying specifications, showing the dimensions of the work as changed, shall be filed. . . and notice of such filing shall be given. If by reason of such change of plans, . . . any property owners deem that the assessment on any property has become inequitable, they may petition the county court.

With the petition, the commissioners filed a proposed work map and cost schedule detailing the changes. The plan provided for the removal of blockage, drifts, trees, stumps, and silt from the stream beds. The petition stated that the improvements originally proposed would be too expensive for the district’s present assets and that therefore, “It has been determined by the Board of Commissioners that the altered plans will provide relief presently needed by the landowners of the District and will relieve a considerable part of the existing flood damage which occurs periodically, at a cost within the means of the District.”

After hearing testimony on behalf of the commissioners and the opposing landowners, the court on May 2, 1984, approved the alteration of plans and directed the commissioners to proceed with the plans and to reassess the property. The court further provided that the property owners would be given an opportunity “to appear and present their view for or against the proposed assessment of benefits.” This appeal results from the court’s May 2, 1984 order approving alteration of plans, rather than the previous order of October 4, 1983, enlarging the district.

The abstract is deficient in several aspects, making it difficult for this court to assess the issues raised by this appeal. However, we will address the merits upon the materials presented utilizing the points relied upon by appellants.

I.

APPELLEES HAVE FAILED TO COMPLY WITH ARK. STAT. ANN. § 21-1026

Initially the appellants contend that the appellees failed to comply with § 21-1026, supra, inasmuch as the statute provides that the purpose of an extension of powers “shall be to complete the improvement contemplated by the Act of Congress and the plans of the Corps of Engineers.” Yet it is alleged that the plans as altered do not complete the Corps’ original plan.

This point raised by the appellants, that the altered plans do not comport with the original purpose of the project, is not timely made. The same argument was presented to the trial court by the appellants in their amended protest to the petition for enlargement and was the subject matter of the earlier hearing on October 4, 1983, which resulted in the court entering final judgment in favor of appellees. The appellants, protesting landowners, were entitled to appeal from such a ruling within 30 days of the date the judgment was entered. § 21-1025. No appeal was taken from this ruling. Instead an appeal was filed seven months later from the court’s order of May 2, 1984, approving the alteration. Likewise, appellants did not object to the petition for alteration based on the appellee’s failure to comply with § 21-1026. This argument therefore cannot be resurrected on appeal by the appellants in their protest to the petition for alteration. Issues raised for the first time on appeal are not considered. Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89 (1978). The trial court is therefore affirmed on this point.

II.

APPELLEES HAVE FAILED TO SHOW THE PROPOSED PLAN IS IN THE BEST INTERESTS OF THE LANDOWNERS

The appellants argue that the appellees have failed to show by a preponderance of the evidence that the proposed plan is in the best interest of the owners of the real property within the district.

The appellants state that no landowner other than a commissioner testified on behalf of the appellees’ plan, while several landowners testified in opposition. This statement overlooks the fact that the nine commissioners who presented the petition to the court calling for extension and enlargement of this district are landowners from each of the counties making up the district. § 21-1003. By comparison, the opposing landowners who testified came from only three of the same nine counties.

In order to sustain appellant’s contentions, we must find that the trial judge’s findings were “clearly erroneous (clearly against the preponderance of the evidence) and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ark. R. Civ. P. 52(a); Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980); Ford Motor Credit v. Yarbrough, 266 Ark. 457, 587 S.W.2d 68 (1979).

The trial judge in his findings labored over the stormy history of the Cache River Bayou DeView project. He gave considerable thought to expert testimony that current plans will give partial relief to landowners in the district by getting at least 50% of the flood waters off of the land and out of the area in question, as opposed to the testimony of the protesting landowners who sincerely feel that the project is of little or no value and that it should be stopped, thus maintaining and preserving the status quo. Weighing the interests of all parties, the trial judge stated:

There are other landowners, since the evidence says there is nearly a million acres involved here, that have an interest in what the Court does today. I must be concerned with and take into consideration their interest and the overall ultimate benefit, if a benefit is to be derived from this plan.
In further deliberations, the court concluded:
It is a plan which will, in the Court’s humble opinion, improve, enhance and benefit the vast majority affected within the area.

By approving the plan, we cannot say the trial court clearly acted against the evidence. Harrell Motors, Inc., et al v. Flanery, 272 Ark. 105, 612 S.W.2d 727 (1981). “In reviewing the sufficiency of the evidence on appeal to support the decision of a trial judge sitting as a jury, we consider the evidence in the light most favorable to the appellee and affirm unless the trial court’s decision is clearly erroneous. ... It must be remembered that the credibility of the witnesses is determined by the fact finder, not this Court.” Orsby v. McGee, 271 Ark. 268,608 S.W.2d 22 (1980). See also, Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982).

Our ruling does not preclude the opposing parties, many of whom are named in supporting petitions which are part of the trial record, from presenting their views on the tax assessments of their property when the commissioners make that determination. Ark. Stat. Ann. § 21-1028 (Supp. 1983).

Affirmed.

Hickman and Hays, JJ., dissent.

Darrell Hickman, Justice,

dissenting. This is a suit of vital public interest to all Arkansans. It concerns the Cache River and Bayou DeView and is still another attempt to alter the natural state of those streams and to destroy what little remains of the benefits they offer Arkansas as a habitat for wildlife. The drainage area affected is one of the prime locations in Arkansas for waterfowls; consequently, it is one of the best duck hunting areas in the state.

The reasons for the proposed change is to make it possible for some landowners in the northern part of the basin to clear and cultivate their lands. This was clearly stated in a question by counsel for the district when he said: “But what we are trying to do is make it possible for a man that wants to clear his [land] can clear it. . . .”

A preponderance of the evidence revealed that the proposal should be rejected for various reasons. Some landowners opposed it because of the estimated cost of $3,500,000, the vague plans by the district, the lack of approval by the Corps of Engineers, the Environmental Protection Agency and all other interested agencies, and because more questions were raised than were answered. Others simply felt that the Cache River needed to be left alone, that it did not need “improving;” yet others, more alert to the potential damages to the natural state of the area, envisioned the plan as draining the area and damaging the “wet” areas protected by the Environmental Protection Agency. One witness from Newport said that the plan would essentially dry up the Cache River in his area.

John Eldridge, a resident of Woodruff County and a landowner on Bayou DéView and the Cache River, pointed out that the value of land in the area was greater in its natural state than cleared. He said:

With the advent of duck hunting and fishing in that area the land from a purely economical standpoint has become more valuable, believe it or not, as wild land than cultivated land. I won’t get into the mechanics of that, but we are diametrically opposed, at least I am, and I think I am representing a number of people in my county to any sort of work being done on existing so-called channel.
####**
I don’t own just wood land, I own some other cultivated land and my tract of wood lands means more to me really than my cultivated land and I suspect it is more valuable. So we just sort of wish that the project would go away and I realize it is not.

The real issue was put in focus by the following question and the answer given by Eldridge:

Q. I said you and those who are in your position are demanding that your duck hunting rights be preserved at the expense of the others who are being flooded and don’t use them for duck hunting; is that true?
A. I look at it a little bit different. They have got clear land and infringe upon our rights to keep it like it is to be perfectly frank with you, so it sort of depends on whose ox is gored. And we feel like our ox has been gored because we are taking it as God made it and we would like to keep it that way.

The only real evidence in support of the district was the testimony by its engineer. He emphasized in his written report that “[t]his program will not and is not intended to be a flood control project. ” Yet the main thrust of his testimony was that “we will increase the water runoff some fifty to sixty percent; two: we will have a navigable stream where fishermen and you and your sons can get into a boat and you might be able to motorize yourself up Cache River to Grubbs or thereabouts. ” That is flood control. He said there would be no dredging, but, according to him, there might be some removal of sandbars. The operation was primarily intended to remove three large log jams or blockages in the river.

It is undisputed that the Arkansas Game and Fish Commission, which is a landowner in the area, has not consented to the proposal; neither has the Corps of Engineers nor the Soil and Conservation Agency. In fact no agency involved in the long history of the Cache River has consented to this proposal. However, there are inferences that there also may be no real obj ections by these agencies to the proposal. Only one landowner testified in favor of the proposal. Yet the trial court was convinced the project should be approved. It said:

It is the opinion of the Court that the modified and limited plan not to change the channel, not to increase the depth, but merely to remove those blockages and obstructions along the existing water route is a reasonable plan. It is a plan which will, in the Court’s humble opinion, improve, enhance and benefit the vast majority affected within the area.

The majority addresses mostly the legal aspects of this case and has fairly set forth the questions raised. I cannot disagree that it appears that the appellee has not been as diligent as it could have been in pursuing its case. However, in a case of public interest, we are not bound by the usual rules of appellate procedure. Arkansas State Nurses Associa tion v. Arkansas State Medical Board, 283 Ark. 366, 677 S.W.2d 293 (1984).

If there was ever a case of public interest, it is this one; not only are a million acres of Arkansas land affected by this decision but also at issue is what will be preserved of the natural state of the Cache River and Bayou DeView. The evidence is persuasive that little benefit will be gained by the proposal. When the interest of all the landowners along the Cache River and Bayou De View are considered, together with the interests of those who enjoy these rivers, it is not even a close question. Those streams ought not to be sacrificed for a few crops on land that is not naturally suitable for cultivation. Ironically, those landowners who seek to use this land as they see fit, by controlling flooding, want someone else to pay for changing the river. There is, of course, more at stake than just the narrow interests of some landowners and duck hunters. Essentially, Arkansas’ future is at stake because the quality of life here will determine our future. The distinction Arkansas has to offer its residents and visitors is its streams and forests. If those are destroyed, we will lose our most valuable natural asset. Besides the narrow interests of the parties, we have an obligation to consider the irreparable effects of our decision on our state. The treasure of those streams is a legitimate consideration which must weigh in the outcome of this case.

Moreover the appellants have raised a legal question with merit regarding the authority of the district to make such a proposal. Ark. Stat. Ann. § 21-1026 (Supp. 1983) extends the powers of the district to include the powers of a drainage district created under the general drainage district laws of this state, such as the power to alter the original plans. However, this extension of powers is limited to the sole purpose of completing the improvements provided for in the original plan enacted by Congress and drafted by the Corps of Engineers. The proposed changes are in opposition to the Corps’ plan. The Corps’ plan was to channelize the river and streams, changing the channel and increasing the depth. The proposed changes are to clear the waterways of obstacles. The proposal presented here is clearly contrary to the Corps’ plan. Therefore, the proposed changes are not for the purpose of completing the Corps’ plan, but„to alter the natural state of the district, and, as such, are not authorized under Ark. Stat. Ann. § 21-1026 (Supp. 1983).

I would reverse the judgment.

Hays, J., joins in this dissent.


author: Jack Holt, Jr., Chief Justice.

text:
    Dewey STILES, Director of Labor, KELLY SERVICES, and PUBLISHER’S BOOKSHOP v. Shelley COIT
    84-279
    686 S.W.2d 405
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985
    [Rehearing denied April 15, 1985.]

      Allan Pruitt, for appellant.

      Gale Stewart, for appellee.
   Jack Holt, Jr., Chief Justice.

At issue in this case is appellee’s claim for unemployment benefits. The appellee was denied the benefits by the employment agency, the Arkansas Appeal Tribunal and the Board of Review of the Department of Labor based on a finding that she quit her last work without good cause connected with her work, pursuant to Ark. Stat. Ann. § 81-1106 (a) (Supp. 1983). The appellee appealed that decision to the Court of Appeals who reversed the board’s findings. Coit v. Stiles, et al, 12 Ark. App. 397, 678 S.W.2d 373 (1984). We granted the director of the board’s petition for review to be certain the court did not misconstrue the statute. We agree with the Court of Appeals.

Arkansas Stat. Ann. § 81-1106 (a) provides;

For all claims filed on and after July 1,1973, if so found by the Director an individual shall be disqualified for benefits;
(a) [voluntarily leaving work.] If he voluntarily and without good cause connected with the work, left his last work. . .
Provided no individual shall be disqualified under this subsection if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification;

The appellee was employed for ten years by Publisher’s Bookshop in Little Rock. She was laid off on March 17,1983, and began receiving unemployment benefits. In June, 1983, the appellee obtained part-time employment with Kelly Services. On September 15,1983, the appellee quit her job at Kelly Services to move to Arizona with her husband, whom she married on October 8, 1983. At that time the appellee again filed for unemployment benefits based on her employment at Publisher’s. In denying the claim, the board found the appellee was not entitled to benefits because she voluntarily quit her last work, at Kelly Services, without good cause.

On appeal, the appellee has contended that the board erred when it concluded that her last employment was with Kelly Services rather than with Publisher’s Bookshop.

The court of appeals relied on an earlier case, Hopkins v. Stiles, Director, 10 Ark. App. 77,662 S.W.2d 177 (1983), for the finding that “a claimant should not be disqualified from receiving unemployment benefits as a result of her accepting part-time employment when no suitable full-time employment is available.” This court reversed the Hopkins decision on procedural grounds, finding the issue was not properly raised. Stiles & Sears Portrait Studio v. Hopkins, 282 Ark. 207, 666 S.W.2d 703 (1984). The issue is properly raised by this case however and we concur with the court of appeals’ reliance on the rationale used in Hopkins.

In making its determination, the court of appeals quoted the decisions of several other courts. In Tomlin v. California Unemployment Insurance Appeals, 82 Cal. App. 3d 642, 147 Cal. Rptr. 403 (1978), the California court interpreted their unemployment compensation benefit statute which precludes benefits if an employee left his “most recent work” voluntarily and without good cause. The court said:

[T]he phrase “most recent work” should not be construed to mean merely the last employment of any kind prior to filing for benefits. It must refer to significant or regular employment in order to effectuate the purposes of the act. The most reasonable meaning for the term “most recent work,”. . .is the most recent primary or principal or full-time employment of the individual. . .Therefore, if an individual had a full time job, on the basis of which he is now eligible for unemployment insurance benefits, his qualification for benefits is not totally eliminated because he voluntarily leaves a part-time job.

Accord: Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983); Unemployment Comp. Bd. of Review v. Fabric, 24 Pa. Commw. Ct. 238, 354 A.2d 905 (1976); and Neese v. Sizzler Family Steak House, 404 So. 2d 371 (Fla. App. 1981).

The board argued that the statute was unambiguous and therefore not subject to interpretation. Both our decision and that of the court of appeals are consistent with priniciples of statutory construction. The Nebraska court in Gilbert, supra, relied on an Iowa decision for the proposition that a provision disqualifying an individual from benefits if he or she “has left work” voluntarily needed interpretation because it did not specify whether it meant “all his work” or “any of his work” or “part of his work”. “It seems not to recognize that there might be more than one ‘work’ and two or more concurrent employers. Some construction or interpretation thus becomes necessary of a statute otherwise ‘plain and unambigous.’ ” Gilbert, supra. Similarly, here the phrase “left his last work” does not specify whether the work must have been full-time or whether it could include part-time employment and therefore it must be interpreted.

In Whitlow v. American Greetings Co., 268 Ark. 1122, 599 S.W.2d 410 (Ark. App. 1980), the court of appeals stated that in interpreting § 81-1106 (a) it must be remembered that “the basic design of the Act is to protect the employee from the economic consequences of unemployment through no fault of the employee; and, to that end, the Act should be liberally construed.” We find that a liberal construction of this statute requires a finding that the appellee is entitled to benefits based on her job at Publisher’s subject only to a reduction in benefits to the extent that her part-time wages compel that result. We need not reach the other issues raised by the appellee.

Affirmed.


text:
    Helen STEELMAN v. PLANTERS PRODUCTION CREDIT ASSOC.
    85-12
    685 S.W.2d 800
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985

      Young if Finley, by: James K. Young, for appellant.

      Penix, Penix, Mixon if Lusby, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal presents a question of whether actions can be maintained in separate counties to foreclose on parcels of land in each county constituting security for a single note and mortgage when a judgment has already been entered on the note and mortgage in one of the counties.

This case was transferred from the Court of Appeals to this court under Sup. Ct. R. 29 (4) (a) since it involved the interpretation of a statute.

Ark. Stat. Ann. § 27-601 (Repl. .1979), provides in part:

Actions for the following causes must be brought in the county in which the subject of the action, or some part thereof is situated, . . .

Third, For the sale of real property, under a mortgage,

Ronald L. and Anne W. Archer owned lands in both Pope and Randolph Counties, which were subject to a single note and mortgage held by Planters Production Credit Association (PCA), the appellees.

Prior to filing the present suit, PCA obtained a consent judgment and decree of foreclosure on the note and the Randolph County lands. No attempt was made to foreclose on the realty in Pope County, although the same note and mortgage was involved.

After perfecting foreclosure in Randolph County, PCA filed this action to foreclose the Pope County land. After a hearing, the trial court awarded PCA judgment against the Archers and declared PCA third in priority over Helen Steelman, an intervenor, who was found by the court to hold a fourth lien.

Steelman contends that PCA did not have a right to maintain its action in Pope County in light of the Randolph County proceeding. PCA insists that Ark. Stat. Ann. § 27-601 requires this action to be brought in Pope County because subject matter jurisdiction and venue lie in Pope County for the Pope County land, and in Randolph County for the Randolph County land. The chancellor agreed with PCA and Steelman appealed. We reverse and dismiss.

The statute in question does not require isolation of causes of action for the sale of mortgaged real property to the extent that the Randolph Chancery Court could not take jurisdiction over lands in Pope County which were subject to a common note and mortgage with Randolph County lands. To the contrary, in Wasson Bank Comm’r v. Dodge, Chancellor, 192 Ark. 728, 94 S.W.2d 720 (1936), this court stated that the Jefferson Chancery Court was the proper forum to exercise foreclosure over lands in Jefferson and Pulaski Counties, and that no other court of equal dignity, or one having concurrent jurisdiction, had any right to interfere.

The Randolph Chancery Court had rightfully acquired jurisdiction of the necessary parties, included PCA, and the subject matter of the indebtedness of the Archers, secured by note and mortgages on the lands in both counties. That the appellant was not a party to the Randolph County litigation is immaterial.

When the appellee PCA obtained judgment against the Archers in Randolph County, it substituted the judgment for its note which constitutes a merger.

The Restatement (Second) of Judgments § 18 (1982) states:

JUDGMENT FOR PLAINTIFF — THE GENERAL RULE OF MERGER. When a valid and final personal judgment is rendered in favor of the plaintiff:
(1) The plaintiff cannot thereafter maintain an action on the original claim or any part thereof, although he may be able to maintain an action upon the judgment; and
(2) In an action upon the judgment, the defendant cannot avail himself of defenses he might have interposed, or did interpose, in the first action.

This position is also supported by Hazard and James in their treatise, Civil Procedure pp. 542-543 (2d ed. 1977). The authors point out:

A good place to start critical analysis of the whole matter is with the question: why should not a party be compelled to join all the claims which he may join? . . .Wherever there will be a large overlap of issues of evidence if two trials are held, it is wasteful to society and harassing to the adversary to have more than one, and there should be no more than one unless there is some very good reasons. This will be the case in many situations where the evidence and issues are not identical.
See also 46 Am. Jur. 2d, Judgments, § 383, p. 552 (1969).

When PCA obtained judgment on its note, it could have asked the Randolph Chancery Court to foreclose on both tracts of land, appointing a commissioner to sell the lands in Pope County. Ark. Stat. Ann. § 30-501 (Repl. 1979). This it did not do. It would be unreasonable and unfair to permit PCA to take this same note, which has been reduced to judgment, and sue again for a separate judgment in another court. “Upon the merger of the cause of action in a judgment the old debt ceases to exist and the next judgment takes its place”. 46 Am. Jur. 2d, supra § 384, p. 553.

The Randolph Chancery Court, having assumed jurisdiction for one purpose, has retained it for all and can grant all of the relief, legal and equitable, to which the parties are entitled. Merchants & Farmers Bank v. Harris, 113 Ark. 100, 167 S.W. 706 (1914). Therefore, the Pope Chancery Court is without jurisdiction in this matter. Wasson Bank Comm’r, supra.

The question of the reasonableness of the consideration paid for the Randolph County land by PCA should be addressed to the Randolph Chancery Court for the reasons stated.

Reversed.


author: George Rose Smith, Justice.

text:
    John W. HALL, Sr., et al v. Jimmie Lou FISHER, et al
    84-212
    685 S.W.2d 803
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985

      John Wesley Hall, Jr.; and Henry & Duckett, by: Stephen L. Curry, for appellant.

      Steve Clark, Att’y Gen., by: Curtis L. Nebben, Deputy Att’y Gen., for appellee.
   George Rose Smith, Justice.

The State of Arkansas, like most states, assists its counties financially by distributing part of the State’s revenues, called county turnback funds, to the counties every year. Since the enactment of the 1973 Revenue Stabilization Act, the formula for distribution has been to divide 75% of the funds equally among the 75 counties and to divide the other 25% proportionately by population according to the most recent federal decennial census. Ark. Stat. Ann. § 13-523 (C) (Repl. 1979).

This suit for a declaratory judgment invalidating the statute was brought by certain Pulaski County taxpayers, who assert that the distribution formula has no rational basis and is therefore an illegal exaction and a denial of equal protection. The original defendants were the State Treasurer and other state officers. Pulaski County intervened as a plaintiff, and the other 74 counties were brought in as defendants. After a trial during which much testimony and many exhibits were introduced, the chancellor dismissed the suit with prejudice, finding that the plaintiffs had not sustained their burden of proving that there is no rational basis for the formula.

The single argument for reversal is that the trial court’s finding is clearly erroneous. We cannot agree.

The plaintiffs admittedly had the burden of proving the absence of any rational basis for the formula. Schweiker v. Wilson, 450 U.S. 221 (1981); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). In Schweiker the court pointed out that if a classification in economic legislation has some reasonable basis, it is not invalid even though it lacks mathematical nicety and results in some inequity. It was also said:

This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary.

Pulaski County’s grievance centers on proof that, although its population gives it the largest sum received by any county in turnback aid, on a per capita basis it received, in 1982 for example, only $2.63 per person, the lowest amount for any county, in contrast with the maximum of $33.24 per person received by Calhoun County. If the counties are classified in larger groups, in 1980 those having a population of more than 45,000 received an average of $3.65 per person, those in the middle group an average of $7.34 per person, and those below 20,000 in population an average of $14.68 per person.

All the proof shows, however, that population is by no means the only factor to be considered. Primarily, turnback funds reimburse the counties at least in part for the cost of services that counties are required by state law to provide. Among the services specifically mandated are the administration of justice by means of the courts, law enforcement protection, the maintenance of jails, the assessment and collection of property taxes, the keeping of public records, and all services required to be performed by county officers and departments. Ark. Stat. Ann. § 17-3802 (Repl. 1908). In addition to the costs of the required services, the maintenance of each county’s road system creates a financial problem that varies from county to county. Other services provided voluntarily by some counties include fire protection and waste disposal.

The existing formula undoubtedly benefits the poorer and less populous counties at the expense of the richer and more populous ones, but the evidence does not show that such a state policy is without a rational basis. Moreover, there are indications that still other weighty factors to be considered in arriving at a fair distribution formula include comparative local wealth, total assessed property values with possible adjustments for differences in the percentage of market value being assessed, the extent to which the residents of each county have taxed themselves to the full extent allowed by state law, and the total area of federally owned tax-exempt land within each county. For the most part, those important elements in the general problem cannot be determined with any measure of certainty, so that among many possible formulas there is necessarily much leeway for the exercise of sound legislative judgment.

The plaintiffs’ two principal witnesses both testified that in their opinion there is. no rational basis for the existing formula, but neither witness was a disinterested expert. Rather tó the contrary, one was the incumbent Pulaski County county judge and the other a professor who had worked for four years in Little Rock’s budget department and for two years as the county’s budget director. Their opinions were opposed by that of Dr. Frank Trout-man, who testified that there is a rational basis for the State’s policy and who supported his conclusion with calculations tending to demonstrate a close inverse correlation between the ranking of the counties in order of wealth and their ranking in the amount of turnback funds being received.

The chancellor was right in concluding from the proof that the plaintiffs had failed in their difficult task of proving a negative, that the legislative formula has no rational basis whatever. In closing, we emphasize two matters that are of particular significance. One, no witness for the plaintiffs suggested a specific formula that would be superior to the one that has been in force for more than ten years. There were many general criticisms of the State’s formula and much discussion of the factors that ought to be considered, but no concrete remedy was offered. Two, of all the important factors that have been brought up for consideration, the only one that can be determnined with certainty is comparative population. It is also a factor that affects many other lesser elements in the problem, such as the need for courts, for police protection, and indeed for most county services. And that very factor is the one selected by the legislature as part of a formula otherwise based on numerical equality. Perhaps a larger allocation on the basis of population might have been more equitable, but that is a determination to be made by the General Assembly, where all the counties are represented by comparative population, not by the courts on the basis of the testimony in this case.

Affirmed.


text:
    Max A. TAUSCH v. STATE of Arkansas
    CR 85-4
    685 S.W.2d 802
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985

      Tucker & Thrailkill, by: Patricia A. Tucker and Danny Thrailkill, for appellant.

      Steve Clark, Att’y Gen., by: Joyce Rayburn Greene, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

This is another in a number of cases questioning the validity of the Omnibus DWI Act. Act 549 of 1983. In this case Tausch pleaded guilty in the municipal court to a first DWI offense, but he contested the charge in the circuit court. After a non-jury trial the circuit court made a finding of guilty and imposed the same punishment as that in the municipal court: Twenty-four hours in jail, a 90-day suspension of Tausch’s driver’s license, and a $500 fine. Among many arguments presented to the circuit court, only two are asserted on appeal.

First, it is argued that the statute violates the constitutional separation of governmental powers by prohibiting trial judges from suspending the execution of the sentences mandated by the act. In a supplemental opinion on rehearing in Lovell v. State, 283 Ark. 434, 681 S.W.2d 395 (1984), we held that as a matter of statutory interpretation the sentencing provisions of the Omnibus DWI Act are mandatory. The constitutional question was not then before us, but we have no hesitancy in upholding the validity of the act. In Hill v. State, 276 Ark. 300, 634 S.W.2d 120 (1982), we adhered to our many prior cases holding that the courts have no inherent authority to suspend the execution of sentences; the power to grant or withhold that authority rests with the General Assembly. Those cases are controlling here.

The appellant’s second argument, that under the act the blood-alcohol level creates a conclusive presumption of guilt and compels a person to incriminate himself, has been rejected in earlier cases construing the Omnibus DWI Act. Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984); Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).

Affirmed.


author: Darrell Hickman, Justice. George Rose Smith, Justice,

text:
    FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, et al. v. Eddie WRIGHT
    84-203
    686 S.W.2d 778
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985

      Barrett, Wheatley, Smith ir Deacon, for appellant, Farm Bureau Mutual Ins. Co.

      Friday, Eldredge & Clark, by: Michael G. Smith, for appellant Continental Grain Co.

      Steve Clark, Att’y Gen., by: Robert R. Ross, Deputy Att’y Gen., as amicus curiae.

      Rice L. VanAusdall, for appellee.
   Darrell Hickman, Justice.

The primary question presented in this case is whether, since the passage of Act 401 of 1981, a farmer who orally sells his grain to a licensed grain warehouseman, who subsequently goes bankrupt, can void the sale and recover the unpaid purchase price from the company that purchased the grain from the warehouseman. The trial court held that the farmer, appellee Wright, is entitled to recover. We disagree.

We believe the purpose of Act 401 is to protect farmers who have stored their grain in warehouses, not those who have made an outright sale of their grain to a warehouseman. Here there was a sale. Act 401 was passed in response to a farm market crisis created by storage elevators going bankrupt and placing farmers, who had stored their grain, at odds with banks, lienholders and creditors over the ownership of the grain. Wayne Cryts, a Missouri farmer, became the focus of national attention in the James Brothers case when he removed his grain from a bankrupt elevator in violation of bankruptcy court orders. Shortly after the Cryts incident, Act 401 was passed. The history of the act is set out in detail in Note, Act 401 of the Public Grain Warehouse Law: An Exception to the U.C.C. Concept of Voidable Title, 37 Ark. L. Rev. 293 (1984). In commenting on the purpose of Act 401, the author said.

While there has been much discussion in the wake of the James Brothers case as to needed changes in laws governing grain warehouses, Arkansas is the only state which has varied from the U.C.C. to allow a grain depositor to recover against a warehouse grain buyer in the ordinary course of business. Since unauthorized sales ‘are void and convey no title,’ the farmer can sue to recover from the purchaser, assuming that he has not signed the written instrument required by Act 401, and the identity of the purchaser can be determined. This change is significant because failing grain warehouses have been known to sell depositors’ grain to avoid bankruptcy, although such action usually postpones bankruptcy only briefly.

In this case Eddie Wright sold his soybeans to Harrisburg Elevators, Inc., in February, 1983. It was a “spot sale” at his farm for a quoted price. Payment was to be made March 1. It is undisputed that Wright was selling the soybeans, not storing or depositing them with the Harrisburg grain elevator. The beans were taken by Harrisburg to their elevator merely to weigh them and then carried to Memphis and sold there to Continental Grain Company, a federally licensed warehouseman. Continental paid Harrisburg, and Harrisburg gave Wright a check for the purchase price, $73,932, which was dishonored. Wright later received a cashier’s check for $17,000 and a personal check for $56,832. The personal check was dishonored. Because of its financial trouble, the State Plant Board closed Harrisburg and Harrisburg soon filed for bankruptcy. Before Harrisburg filed, it paid Wright another $12,000. Wright filed suit for conversion against Continental Grain Company and Farm Bureau Mutual Insurance Company, which was Harrisburg’s bonding company, for the balance of the sale price. The trial court held that Continental and Farm Bureau were jointly and severally liable.

First, we discuss Farm Bureau’s appeal. Their defense was that their bond applied only to grain stored in Harrisburg’s elevators, and we agree. Under the statute licensing bonded grain warehousemen, the bond is to be conditioned upon the warehouseman’s delivering all stored grain or paying its value upon surrender of the warehouse receipt. Ark. Stat. Ann. § 77-1315(a) (Repl. 1981). The amount of the bond is to be determined by the capacity of the warehouse. Ark. Stat. Ann. § 77-1316(a) (Repl. 1981). Statutory bonds are to be construed as if the terms of the statute were written into them. Empire Life & Hospital Ins. Co. v. Armorel Planting Co., 247 Ark. 994, 449 S.W.2d 200 (1970). We think it clear that the bond is to protect only the holders of warehouse receipts. Since Wright does not fall within that class, he is not entitled to judgment against Farm Bureau. That conclusion also disposes of Wright’s cross-appeal, by which he seeks to recover penalty and attorney’s fee from Farm Bureau.

It is not so easy to dispose of Continental’s appeal. The trial court ruled that under Act 401 the sale by Harrisburg to Continental was void because Wright had not executed a written document conveying title to the soybeans. We find that ruling to be wrong because in our judgment the act only applies to grain which is stored, not sold outright to the warehouseman. The basis of the trial court’s decision and the heart of Act 401 is Section 4, which reads:

77-1340 Title to grain.
Ownership of grain shall not change by reason of an owner delivering grain to a public grain warehouseman, and no public grain warehouseman shall sell or encumber any grain within his possession unless the owner of the grain has by written document transferred title of the grain to the warehouseman. Notwithstanding any provision of the Uniform Commercial Code (Act 185 of 1961 [§ 85-1-101 et seq.], as amended) to the contrary, or any other law to the contrary, all sales and encumbrances of grain by public grain warehousemen are void and convey no title unless such sales and encumbrances are supported by a written document executed by the owner specifically conveying title to the public grain warehouseman.

A first reading of this section might lead one to conclude that a farmer could void any transaction with a grain warehouseman. But this section does not say a farmer can void an outright sale he makes to a warehouseman; only a sale made by a warehouseman of grain delivered to him for storage can be voided.

There are several reasons for our conclusion. First, the act does not expressly purport to apply to sales by a farmer to the warehouseman. The sales that the act voids are sales of grain delivered to a warehouseman and sales of grain within the warehouseman’s possession. This was the conclusion of the writer of the article noted before who stated: “the farmer who has sold his grain would be estopped from asserting his rights under Ark. Stat. Ann. § 77-1340.” See Note, supra, 37 Ark. L. Rev. 293, 304. It is usual for a warehouseman to act both as a warehouseman who stores grain and as a dealer in grain. These are two distinct roles. Act 401 regulates warehousemen only when they are acting as warehousemen. Arkansas has no statutory regulation of grain dealers. Section 3 of Act 401 recognizes this dual role when it refers to “a warehouseman who is also in the business of buying and selling such goods. . . .”

We are also especially persuaded by the emergency clause which reveals the true purpose of the act:

It is hereby found and determined by the General Assembly that Arkansas grain producers are experiencing severe losses due to their stored grain in public warehouses being sold or encumbered by the public
grain warehousemen without their authorization, and that this Act is immediately necessary to clarify the law and grant protection to Arkansas farmers. (Italics supplied.)

It is a rule of statutory construction that the emergency clause of an act can be used in determining the intent of the legislature. Missouri Pacific Railroad Co. v. Kincannon, 203 Ark. 76, 156 S.W.2d 70 (1941). This clause is consistent with the title of the act which reads:

An ACT to Provide That Ownership of Grain Shall Not Change by Reason of Delivery Thereof to Public Warehousemen and Title to Grain in the Possession of Public Grain Warehousemen Does not Pass to Such Warehousemen Unless the Owner of the Grain Has by Written Document Signed by the Owner of the Grain Transferred Title to the Warehousemen; and for Other Purposes (Italics supplied).

Furthermore, the Arkansas State Plant Board, which is the agency charged with admninistering Act 401, interprets the act to apply only to grain stored, not sold. The trial court ignored evidence of this interpretation and only allowed a proffer of the testimony. It was not only admissible, it was relevant because an administrative interpretation is to be regarded as highly persuasive. Bramley School Dist. No. 35 v. Right, 206 Ark. 87, 173 S.W.2d 125 (1943).

The act specifically amends by reference the Uniform Commercial Code provision which allows buyers in the ordinary course of business to take free of any claim under a warehouse receipt. Ark. Stat. Ann. § 85-7-205 (Supp. 1983). Section 3 of Act 401 amends that code provision so that soybeans and other specified grains are excepted; no longer is title voidable — it is void unless a farmer signs a document authorizing the sale or encumbrance of his grain. This was a radical step by the General Assembly pertaining to warehouse receipts but to conclude that the intent was to make it possible to void all sales as well would be to rewrite the act. There was no warehouse receipt in this case.

For all these reasons we conclude that the trial court was wrong in applying Act 401 in this case. We need not address the other questions raised by Continental. Neither party vigorously contended that Continental was not an innocent purchaser; i.e., that Continental was aware that Harrisburg did not have good title to the grain. There was only testimony by one of Continental’s managers that he had heard rumors that Harrisburg was having financial trouble and that they heard the same about many elevators at the time.

In order to defeat the sale, Wright would have had to prove that Continental was not a good faith purchaser for value. Ark. Stat. Ann. § 85-2-403 (Repl. 1981). Since that was not proven, Wright cannot recover from Continental.

Reversed.

George Rose Smith and Dudley, JJ., dissent.

George Rose Smith, Justice,

dissenting. The statute in question was undoubtedly passed to provide farmers with additional protection against improvident or dishonest grain warehousemen, but the majority’s narrow interpretation of the act has deprived Wright and other farmers of the protection that was intended. We must assume that the legislature was familiar with the evil it was trying to correct. When I look at the facts which gave rise to the enactment of the statute, facts which the majority have quite properly omitted in stating their views, I am convinced that the act had a remedial purpose and should be liberally construed to achieve that purpose.

According to the proof, 98% of the public grain warehousemen in Arkansas are primarily engaged in buying and selling grain, not in storing it. Harrisburg Elevators, for example, bought 140,000 bushels of soybeans in January and February, 1983, the month pertinent here, but it had only about 7,000 bushels in storage. The average farmer does not have the tractor-trailers and equipment necessary for him to sell and deliver his own crop. Consequently he is compelled, as Wright was compelled, to sell his crop to a grain warehouseman. In that situation the application of the statute is clear.:

Ownership of grain shall not change by reason of an owner delivering grain to a public grain warehouseman, and no public grain warehouseman shall sell or encumber any grain within his possession unless the owner of the grain has by written document transferred title of the grain to the warehouseman.

The act declares that title shall not pass by the farmer’s “delivering” his grain to a public warehouseman, but the majority hold that the legislators really meant to say “delivering for storage.” Why? Most grain is not delivered for storage. The farmer who does deliver his crop for storage, a comparatively rare transaction, has scant need for the new statute. He receives a warehouse receipt for his grain, and if the warehouseman cannot honor the receipt the farmer is protected by the warehouseman’s surety bond, required by law. Futhermore, the farmer who merely stores his grain still owns it. There is not the slightest reason for him to transfer title to the warehouseman by written document, as the same sentence in the act contemplates. To the contrary, he does not intend to pass title when he stores his crop. Yet, as the majority interpret the statue, he must make a written . transfer of title to obtain the protection intended by the act. All that Harrisburg had to do in buying Wright’s crop was to have him sign any piece of paper transferring title. It was Harrisburg, knowledgeable in the business, who was at fault, not Wright. But it is Wright who suffers the consequences.

I would construe the statute to give effect to the purpose for which it was passed. I agree that the j udgment should be reversed as to the bonding company, but I would affirm on the principal issue.

Dudley, J., joins in this dissent.

         Missouri v. United States Bankruptcy Ct., 647 F.2d 768 (8th Cir. 1981).

       Some states do have such regulations. See e.g., Ill. Ann. Stat. § 114 Par. 701 et seq. (Supp. 1984); Mo. Stat. 276-401 et seq. (Supp. 1985); Wyo. Stat. § 11-11-101 etseq. (1983).


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

text:
    Edwin L. MENDENHALL v. SKAGGS COMPANIES, INC., d/b/a SKAGGS ALPHA BETA
    84-227
    685 S.W.2d 805
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985

      Bob Scott and Tom Hinds, for appellant.

      Wright, Lindsey ir Jennings, for appellee.
   Darrell Hickman, Justice.

Edwin L. Mendenhall, the appellant, was arrested for shoplifting at one of the appellee’s Little Rock stores. Wilbur Page, an off-duty policeman employed by the appellee as a detective, testified that he observed Mendenhall place two bottles of men’s cologne in a paper bag and leave the store. Page followed Mendenhall from the store, stopped him, identified himself as a police officer, took Mendenhall to the store office, and arrested him. A store supervisor corroborated Page’s testimony. Mendenhall denied he had stolen the items but maintained that he brought the items in to exchange them. Mendenhall was convicted of theft of property in municipal court. On appeal to the circuit court, the jury was unable to reach a verdict, and a mistrial was declared. Mendenhall sued the appellee for false arrest and false imprisonment. The jury found for the appellee and we affirm.

On appeal Mendenhall argues that the court erred by instructing the jury that probable cause is a defense to false arrest by a private citizen for a misdemeanor. This is the instruction given to which Mendenhall objected at trial:

Where a person has probable or reasonable cause to believe that another person is attempting to take property without payment, he is legally justified in detaining the person for a reasonable length of time for the purpose of making an investigation in a reasonable manner. It is for you to determine whether any restraint or detention shown by the evidence in this case was reasonable in time and manner.

This is the instruction proffered by Mendenhall and rejected:

An arrest by a private person for a misdemeanor is legally justifiable only if the Plaintiff is guilty of the offense for which it is claimed he was arrested, and the Plaintiff is not bound to show either want of probable cause or malice to entitle him to recover.

Mendenhall argued at trial that the instruction given was erroneous because he was “arrested” rather than “detained.” He also contends it was wrong to give instructions which track the theft of property statute (Ark. Stat. Ann. § 41-2203 [Repl. 1977]), the shoplifting presumption statute (Ark. Stat. Ann. § 41-2202 (2) [Repl. 1977]), and the shoplifting detention statute (Ark. Stat. Ann. § 41-2251 [Supp. 1983]). The Arkansas shoplifting statute, Ark. Stat. Ann. § 41-2251, provides in relevant part:

(a) A person engaging in conduct giving rise to a presumption under Section 2202 (2). . . may be detained in a reasonable manner and for a reasonable length of time by a peace officer or a merchant or a merchant’s employee in order that recovery of such goods may be effected. Such detention shall not render such peace officer, merchant or merchant’s employee criminally or civilly liable for false arrest, false imprisonment or unlawful detention.
* # W W # TT It TP
(c) A peace officer may arrest without a warrant upon probable cause for believing the suspect has committed the offense of shoplifting. Sufficient probable cause may be established by the written statement by a merchant or merchant’s employee to the peace officer that the affiant has observed the person accused committing the offense of shoplifting. The accused shall be brought before a magistrate forthwith and afforded the opportunity to make a bond or recognizance as in other criminal cases.

Mendenhall’s argument, which is more clearly presented on appeal than below, is that the shoplifting statutes are not applicable because in this case the policeman was employed by Skaggs, and was, therefore, an employee of the appellee and could only “detain” Mendenhall rather than “arrest” him under Ark. Stat. Ann. § 41-2251. The appellee admitted that Page was acting as its employee when he arrested Mendenhall. Mendenhall argues that a private person can only arrest one committing a felony; that a private person cannot arrest a misdemeanant even upon probable cause; and since shoplifting is only a misdemeanor and Page was acting as a private person, probable cause is no defense.

We reject this argument. Unlike some other states, we have recognized for some time that probable cause is a defense to a civil action for false arrest or false imprisonment in connection with a misdemeanor. In Kroger Grocery & Baking Co. v. Waller, 208 Ark. 1063, 189 S.W.2d 361 (1945), we rejected an instruction which stated that the grocery store could justify an arrest for shoplifting only by showing that the plaintiff actually committed a misdemeanor. We plainly stated that this was not the law. We held that if the store employee acted in good faith in stopping the plaintiff and causing her arrest then no civil action would lie against the defendants. In so holding we affirmed the rule of Mo. Pac. R.R. Co. v. Quick, 199 Ark. 1134, 137 S.W.2d 263 (1940), that, as a matter of law, probable cause would defeat an action for false arrest.

Mendenhall asks us to ignore these precedents since in his case he was actually arrested by a store employee rather than just detained. Does it matter that the merchant or his employee actually arrested, rather than just detained, the suspect? The appellant would argue so. There is no doubt that if a merchant detains a person, calls the police and causes the arrest, probable or reasonable cause is a defense. Kroger Grocery & Baking Co. v. Waller, supra; Ark. Stat. Ann. § 41-2251 (Supp. 1983).

In this case, without objection, the jury was instructed that if they found Skaggs was not "legally justified” in arresting the appellant or in falsely imprisoning him it should find for the appellant, and the converse. Was Page detaining Mendenhall as an employee of Skaggs but arresting him as a police officer? This question was never presented to the jury. While the appellant asked the word "policeman” be changed to “employee” in one of the instructions, the argument the appellant makes was never clearly made to the court. Neither was an instruction requested which explained the distinction. The proffered instruction would have been meaningless to the jury without an instruction asking the jury to decide if the policeman was acting in his official capacity or as an employee of Skaggs when he detained and arrested the appellant. See Dillard Dept. Store v. Stuckey, 256 Ark. 881, 511 S.W.2d 154 (1974). It was appellant’s duty to present his theory of the case through his instructions. Since he did not present instructions which embodied his theory, we find no error. Bovay v. McGahhey, 143 Ark. 135, 219 S.W. 1026 (1920).

Affirmed.

Purtle, Dudley, and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. The appellant is correct in his contention that a private citizen cannot arrest on the basis of probable cause to suspect commission of a misdemeanor. For the contrary proposition the majority cites Kroger Grocery & Baking Co. v. Waller, 208 Ark. 1063, 189 S.W.2d 361 (1945), and Mo. Pac. R.R. Co. v. Quick, 199 Ark. 1134, 137 S.W.2d 263 (1940). In the Kroger case the arrest was made by a police officer who was presumably called to the scene by a store employee. In the Mo. Pac. case, the opinion is based on the assumption, although the testimony left some doubt, that the person making the arrest was an “officer.”

The distinction drawn by the appellant between “detention” and “arrest” is a legitimate one. Ark. Stat. Ann. § 41-2202(2) (Repl. 1977) provides,

Shoplifting Presumption. The knowing concealment, upon his person or the person of another, of unpurchased goods or merchandise offered for sale by any store or other business establishment shall give rise to a presumption, that the actor took goods with the purpose of depriving the owner, or another person having an interest therein.

Ark. Stat. Ann. § 41-2251(a) (Supp. 1983) provides,

A person engaging in conduct giving rise to a presumption under Section 2202(2) [§ 41-2202(2)] of the Arkansas Criminal Code may be detained in a reasonable manner and for a reasonable length of time by a peace officer or a merchant or a merchant’s employee in order that recovery of such goods may be effected. Such detention by a peace officer, merchant or merchant’s employee shall not render such peace officer, merchant or merchant’s employee criminally or civilly liable for false arrest, false imprisonment or unlawful detention.

This statute makes it clear that one may be detained “in a reasonable manner and for a reasonable length of time” for the purpose of recovering a merchant’s goods.

“Arrest” is quite a different matter.
An arrest is the taking of another into the custody of the actor for the actual or purported purpose of bringing the other before a court, or of otherwise securing the administration of the law. [A.L.I., Rest. Torts 2d (1965)]

Our statutory scheme for arrests begins by saying an arrest may be made either by a private person or by a peace officer. Ark. Stat. Ann. § 43-402 (Repl. 1977). It then specifies the circumstances under which a peace officer may arrest as follows:

First. In obedience to a warrant of arrest delivered to him.
Second. Without a warrant, where a public offense is committed in his presence, or where he has reasonable grounds for believing that the person arrested has committed a felony. [Ark. Stat. Ann. § 43-403 (Repl. 1977)]

It further specifies when a private person may arrest as follows:

A private person may make an arrest, where he has reasonable grounds for believing that the person arrested has committed a felony. [Ark. Stat. Ann. § 43-404 (Repl. 1977)]

At no point does our statutory law provide that a private person may arrest on the basis of probable cause to suspect a misdemeanor has been committed.

There is no doubt that Page arrested, rather than detained, Mendenhall. There is no question in my mind that he would have had no authority to do it if he had been a private person, and I fear the majority opinion will be read as permitting such arrests.

An off-duty peace officer does not lose his status as a policeman either by virtue of the fact he is off-duty or acting in the course of employment for another. Meyers v. State, 253 Ark. 38, 484 S.W.2d 334 (1972). Had Page been the defendant here, I could have concurred in a holding he had authority to make an arrest. However, the defendant in this case is Skaggs; so the question becomes whether Skaggs may immunize itself from liability for false arrest by employing persons who have independent authority to arrest which Skaggs does not have.

In Dillard Department Stores v. Stuckey, 256 Ark. 881, 511 S.W.2d 154 (1974), we specifically rejected Dillard’s contention it was immune from liability for false arrest because of its employee’s independent obligation as an off-duty policeman to make an arrest. In the Dillard case we held there is a fact question to be answered as to whether a private person had probable cause to summon a policeman and instigate an arrest. To my knowledge we have never held a private entity, such as Skaggs, may arrest one who assuredly has, or is legitimately suspected of having, committed a misdemeanor.

The instruction given by the trial court on reasonableness of detention was inapplicable. Skaggs, through its agent Page, was not merely detaining Mendenhall, it arrested him. Arrest is more than detention for a reasonable time. It involves custody and loss of freedom for an indefinite time. The majority suggests we should ignore the appellant’s proffered instruction because the jury was not asked to decide whether Page was acting as a police officer or as Skaggs’ agent. As noted earlier, the Dillard case makes it clear that it does not matter that Page was an off-duty policeman. Any such instruction would have been superfluous.

“False arrest” is just another name for “false imprisonment.” W. Prosser, Law of Torts, p. 42 (4th Ed., 1971). Our law permits imprisonment by a merchant to the extent of detaining a shoplifter for a reasonable time. It does not permit a merchant to imprison a shoplifter to the extent of arresting him, either personally or by agent.

While I am not certain all of the proffered instruction was correct, I am certain it more accurately described the applicable law than did the instruction given. Therefore, I respectfully dissent.

Justices Purtle and Dudley join in this dissent.

      . The distinction in the shoplifting statute between “detain” and “arrest” may be insignificant so far as a civil suit for false arrest is concerned. See W. Ringle, Searches & Seizures, Arrests and Confessions, 928.3 (c)(1984).


author: Darrell Hickman, Justice.

text:
    C & L TRUCKING, INC. and Kelly CAPPS v. Donna ALLEN, et al
    84-252
    686 S.W.2d 399
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985
    [Rehearing denied April 22, 1985.]

      Paul Petty, for appellant.

      Edward O. Moody, for appellee.
   Darrell Hickman, Justice.

This is an appeal of a wrongful death action arising from a truck accident in Akron, Ohio, in which the driver of the truck, Dennis Lee Allen, was killed. The appellees, Allen’s wife and heirs, filed this lawsuit against C & L Trucking, which owned the trailer, Kelly Capps, who owned the tractor, and Junior Landis, who owned J & L Trucking, Dennis Allen’s employer. The appellees had already recovered workers’ compensation benefits from J & L Trucking. Junior Landis was dismissed as a party during the trial. The jury found for the appellees. The trial court signed the judgment of joint and several liability in the amount of $152,000. On appeal the appellants make several arguments which were either not timely made to the trial court, are unsupported or are unconvincing. We, therefore, affirm.

First, it is argued that the action against C & L Trucking is barred because C & L and J & L are so interrelated that they are one and the same company, that they were both Dennis Allen’s employer; therefore, since the appellees had already recovered from J & L, the tort action against C & L is barred. This argument was first raised at the close of the appellees’ case. The basis of the argument was that the same court had ruled in another case that employees of J & L are, in fact, employees of C & L. At that point the only evidence concerning the ownership of the companies was that Junior Landis testified that he and his wife were partners in J & L and that Dennis Allen was paid by J & L. The trial court ruled that the prior case was not res judicata on the issue; that the issue of that case was commingling assets and employees of the two companies for purposes of determining workers’ compensation insurance premiums.

The argument was not raised again at the close of the case. The appellees made a prima facie case that C & L and J & L operated as separate entities. It was shown that C & L owned the trailer, that Capps owned the tractor and leased it to C & L; that Capps worked for C & L and that Allen was paid by J & L. Junior Landis testified during the appellees’ case as follows:

Q. Mr. Allen the decedent was an employee of J & L, is it correct?
A. Yes.
Q. What is the relationship between J & L Trucking and C & L Trucking, Inc.?
A. J & L, we had a few trucks, me and my wife ourselves, two or three trucks. We own C & L. We personally own both companies. We had our insurance under J & L Trucking.
Q. Was there a distinction in how you handled your books? Is J & L’s books different than C & L’s books. Were they all handled as one set of books in conjunction with profits of C & L?
A. All profits and losses.
Q. And expenses?
A. And expenses and everything went through C fe L’s books.

On cross-examination Landis said that C & L stood for “Capps and Landis.” He said that Capps leased trucks to C & L, and that C & L owned about 40 trucks and that J & L owned 6 or 8 trucks. Then Landis was asked:

Q. Does your CPA keep your records on C & L Trucking?
A. Yes.
Q. Aren’t the J 8c L records kept in your office?
A. I think so, if there is any records.

In a motion for a new trial, the appellants raised the argument again and attached an affidavit signed by Mr. and Mrs. Junior Landis which averred that J & L’s trucks are used and directed by C & L, that J & L does no hiring because C 8c L handles all personnel matters, and that although checks are written on J & L’s account, all money received is from C & L’s business.

When the trial court rejected this argument, there was no convincing evidence before it that the companies were one and the same. After some evidence of interrelation was presented during the appellants’ case, the argument was not raised again. In the motion for a new trial the appellants made the same argument and tried to introduce more evidence in support of the argument. That evidence could have been introduced at trial but was not. At the time the court rejected the argument, there was no evidence from which we could say that the court was clearly wrong in its decision. ARCP Rule 52. The argument could have been raised again at the close of the appellants’ case but was not. Therefore, we find no error.

The appellants also argue that Dennis Allen had been loaned by J & L to C & L and, therefore, C & L was the employer at the time of Allen’s death so that the only remedy against C & L would be worker’s compensation. The trial court ruled before trial that the issue could be presented to the jury. There is no evidence, however, that the appellants ever raised the question again or asked that the issue be resolved by the jury. No instruction was requested or proffered. Therefore, we will not consider the issue on appeal. See Bovay v. McGahhey, 143 Ark. 135, 219 S.W.2d 1026(1920).

The argument that C & L and J & L were j oint venturers and therefore immune from tort liability under workers’ compensation law was not raised to the trial court, nor submitted to the j ury, and we will not consider it. Sanders v. Newman Drilling Co., 273 Ark. 416, 619 S.W.2d 674 (1981).

The appellants argue that the appellees did not sustain their burden of proving that their negligence was the proximate cause of Allen’s death. Appellees produced two witnesses that testified that the accident was caused by worn tires on the truck. One of the witnesses was an expert, the other was the Ohio policeman who investigated the accident. Proximate cause is ordinarily a question for determination by the trier of facts. Cragar v. Jones, 280 Ark. 549, 660 S.W.2d 168 (1983); Keck v. American Employment Agency, 279 Ark. 294, 652 S.W.2d 2 (1983). We find substantial evidence to support the jury’s verdict.

The jury returned a verdict which stated: “We the jury find in favor of the Plaintiffs against the defendant C 8c L Trucking, Inc., on the issue of liability.” Written out was the following notation: “Equally liable w Capps.” It was signed by the foreman and then written below was “50% liability” and it was again signed. The same verdict was returned against Capps with the same notations. The trial judge sent the jury back to determine damages and said: “In addition to that for clarity in the record, the Court would like to give you back the verdict forms that were signed and returned, and ask you to prorate on the basis of percentages equalling what you think is appropriate with regard to these two Defendants in this case.” The jury returned a verdict against Kelly Capps for $76,000 and against C 8c L for $76,000. This all occurred without objection. The trial court entered a judgment finding Capps and C 8c L jointly and severally liable in the amount of $152,000. The judgment was approved by both attorneys.

The appellants argue that they are not jointly and severally liable and, if they are, they are only liable for $76,000. After trial C & L filed a bond admitting liability in the amount of $152,000 and gave land as collateral. The appellees objected. The trial court ruled that an appropriate bond must be posted. C & L convinced the court to amend the judgment so that the words “jointly and severally” were stricken. C & L then posted a bond for $76,000. The appellees petitioned this court for a writ of mandamus. We held that the amended judgment should be set aside and that a supersedeas bond should be secured in the amount of $152,000. We are convinced we were right because to hold otherwise would be to iignore that the jury found these joint tortfeasors to be equally liable. The jury returned separate verdicts against Capps and C & L finding each to be liable in the amount of $76,000. We cannot assume from the verdicts rendered that the jury intended to limit damages to only $76,000. Neither the judge nor the attorneys made that assumption when the judgment was entered without objection. Each was found to have negligently caused Allen’s death. They were joint tortfeasors and were, therefore, jointly and severally liable for the judgment returned against them. See Ark. Stat. Ann. § 34-1001 et seq. (Repl. 1962); see also Scalf v. Payne, 266 Ark. 231, 583 S.W.2d 51 (1979).

Affirmed.


text:
    Paul C. LOU and WALGREENS COMPANY v. Charlotte SMITH
    84-281
    685 S.W.2d 809
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985

      Wright, Lindsey & Jennings, for appellant.

      Raymond R. Abramson, for appellee.
   Darrell Hickman, Justice.

Paul C. Lou, a pharmacist with twelve years experience, received a prescription calling for the drug Reglan, at a dosage of 1 milligram, four times daily. Because Lou had only 10 milligram tablets of the drug, and because he assumed the prescription was for an adult and that the doctor had made an error, he wrote in a zero after the “ 1 ” on the prescription slip so that it prescribed 10 milligrams, four times a day. It was, in fact, a prescription for Charlotte Smith’s four month old daughter, Sarah. When Mrs. Smith returned home that evening and gave Sarah the dosage, she suffered severe reactions. The child was taken to the hospital immediately and survived apparently without permanent injury. Charlotte Smith, her husband, and Sarah filed suit against the pharmacist and his employer, the Walgreens Company, for damages. The jury returned a verdict awarding compensatory damages to the mother in the amount of $3,250, $2,000 for the daughter, and punitive damages in the amount of $3,750 in favor of the mother, father and the daughter. On appeal there is only one real issue and that is whether the court was right in allowing the jury to consider awarding the mother damages for mental anguish alone when she suffered no physical injuries. We affirm the judgment.

The appellee filed suit for damages based on the allegation that Charlotte Smith had suffered mental anguish which was caused by the willful and wanton misconduct of the pharmacist with his company liable as his employer. As early as 1920 we recognized that there is a right to recovery for mental anguish without contemporaneous physical injury where the anguish resulted from a willful wrong directed at a person other than the plaintiff. Rogers v. Williard, 144 Ark. 587,223 S.W. 15 (1920). While we denied the parents of a child any recovery for mental anguish in a case a year later, Miles v. American Railway Express Co., 150 Ark. 114, 233 S.W. 930 (1921), it was because there was no willful misconduct, only negligence.

In M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980), we traced the law regarding recovery for mental anguish and reaffirmed the common law rule that “there can be no recovery for fright or mental anguish caused by mere negligence, but a recovery may be had where fright or mental anguish is caused by willful conduct.” Counce extended the law to allow recovery for intentional or willful and wanton misconduct which results in emotional disturbance without any physical consequences whatsoever. See also R. Leflar Mental Súffering and Its Consequences - Arkansas Law, 7 Ark. L.S. Bull. 43 (1937).

This case does not present some of the problems often encountered in cases where the wrongful conduct is not directed at the plaintiff such as determining the relationship between the plaintiff and the victim or the proximity of the plaintiff to the injury. Here, the plaintiff is the mother of the child who was injured by the wrongful conduct in her presence. The father, who was not present, did not seek damages for his suffering. Therefore, we only have to determine whether there was indeed willful and wanton misconduct in this case.

The appellants argue that Lou’s conduct in adding the zero was mere negligence rather than willful and wanton misconduct. The evidence revealed that Lou received the prescription from Tammy Kelly, Charlotte Smith’s friend, who was holding a baby at the time and had several children with her. The prescription slip had a blank for the patient’s age which was not filled in. Lou conceded that he did not ask the age but could have. He said that he did not call the doctor because it was after five o’clock, and that when prescriptions are for children, they are usually prescribed in liquid form. Lou maintained that the doctor in this case should have instructed him to prepare the dosage in syrup form. However, Lou admitted that he knew at the time how to convert a 10 milligram tablet into a one milligram dose. Lou testified that he knew of the dangerous consequences of a Reglan overdose.

The appellee presented a pharmacist as an expert witness who testified that the prescription could have been filled as written and that altering a prescription under these circumstances violated the standards of practice. The prescribing doctor testified that the prescription could have been filled by suspending it in syrup and that if Lou had been unable to fill the prescription as written, he should have telephoned the doctor or refused to fill it. He said that where a pharmacist alters a prescription so that the dosage is changed, that is totally unacceptable.

In Ellis v. Ferguson, 238 Ark. 776, 385 S.W.2d 154 (1964), we described willful and wanton misconduct:

.... [OJne who willfully and wantonly, in reckless disregard of the rights of others, by a positive act or careless omission exposes another to death or grave bodily injury, is liable for the consequences, even if the other was guilty of negligence or other fault in connection with the causes which led to the injury. It is not necessary to prove that the defendant deliberately intended to injure the plaintiff. It is enough if it is shown that, indifferent to consequences, the defendant intentionally acted in such a way that the natural and probable consequence of his act was injury to the plaintiff.

As a matter of law the court was right in submitting the issue to the jury and on appeal if there is substantial evidence to support the finding of the jury, we affirm. E.I. DuPont De Nemours and Co. v. Dillaha, 280 Ark. 477, 659 S. W.2d 756 (1983). We conclude there is substantial evidence which would support a finding that the appellants were guilty of willful and wanton misconduct.

The appellants argue that since there was no willful and wanton misconduct the award for punitive damages should have been dismissed. They concede that this argument depends upon our answer to the first argument. Since we have found substantial evidence that Lou’s conduct was willful and wanton, the appellants cannot prevail on this issue.

The appellee cross-appeals on the issue of whether the court was right in refusing to allow her to introduce the financial worth of the defendants. It is not a true cross-appeal. The appellee does not request us to reverse the case. She only requests that if we reverse, we rule in her favor on this issue. Therefore, we do not address the issue. Myers v. Muuss, 281 Ark. 188, 662 S.W.2d 805 (1984).

Affirmed.

       In Rogers there was bodily injury resulting from the emotional disturbance.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    FORD MOTOR CREDIT COMPANY v. Ross H. NESHEIM, et al
    85-34
    686 S.W.2d 777
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985

      Meredith Wineland; and Boswell, Smith & Clardy, by: David E. Smith, for appellant.

      Griffin Smith, and W. R. Nixon, P.A., for appellee.
   Darrell Hickman, Justice.

This motion to dismiss the appeal arises out of the same case as Ford Motor Credit Co. v. Rogers, 84-290, decided February 25,1985, where we denied a petition for a writ of prohibition. Contemporaneously with its petition for a writ of prohibition, Ford Motor Credit sought an appeal of the order of the trial court certifying the case as a class action under A.R.C.P. Rule 23. We denied prohibition because the court had jurisdiction to decide if the case ought to be maintained as a class action. The question presented in this appeal is whether the action certifying the case was correct. This motion raises the issue of whether the order is one that is final and, therefore, appealable. Ark. R. App. P.2.

Ford Motor Credit concedes it has no right to appeal from the trial court’s order of certification because the decision was not a final or appealable order as defined in Ark. R. App. P. 2 but asks us to change our rule. The respondents rely on that rule in seeking dismissal.

We have never had a case in which a party sought to appeal from an order certifying a class action. We have only had appeals from orders denying requests for certification. Clearly, such an order of denial is a final disposition of the case as to those who would be joined as class members and is appealable under Rule 2. Drew v. First Federal Sir L Assn., 271 Ark. 667, 610 S.W.2d 876(1981);Ross v. Ark. Communities, Inc., 258 Ark. 925, 529 S.W.2d 876 (1975).

We did not adopt the federal rule of civil procedure pertaining to class actions. See Fed. R. Civ. P. 25. However, we believe it would be best to allow appeals from such orders and our reasoning is the same given by the United States Court of Appeals for the Second Circuit in Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2nd Cir. 1973):

An order sustaining a class action allegation involves issues ‘fundamental to the further conduct of the case’;. . . the order is also separable from the merits of the case; and irreparable harm to a defendant in terms of time and money spent in defending a huge class action when an appellate court many years later decides such an action does not conform to the requirements of Rule 23, is evident.

Therefore, we amend Ark. R. App. P. 2 to permit an appeal from an order certifying a case as a class action. Issued contemporaneously is a per curiam order to that effect.

Denied.

Purtle, J., dissents.

Newbern, J., not participating.

John I. Purtle, Justice,

dissenting. I cannot understand why the majority has, without notice to the bench and bar or opportunity for adequate consideration, suddenly decided to change horses in the middle of the stream. Ordinarily we do not change our rules to accommodate the litigants in a case pending before us. In fact we have in every instance since I have been on the court discussed the proposed change for several weeks or referred it to the appropriate committee for consideration and comment.

The order certifying the class action in this case is conditional and is not final in other respects, in my opinion. We have many times stated that in order for a judgment to be final and appealable it must dismiss a party from court, discharge him from the action, or conclude his rights to the subject matter in controversy. Hall v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326(1982). The order in the present case does none of the above.

With our rules and case law holding this order not to be an appealable order, I think the trial court and the litigants are entitled to proceed through this trial without the unprecedented action taken by this court today. I believe the action taken by the court at least has the appearance of unfairness. Henceforth trial judges and lawyers will be even more uncertain as to what this court will do in situations previously considered settled.

I would dismiss the appeal.


text:
    Barry CARTER v. STATE of Arkansas
    CR 84-163
    685 S.W.2d 812
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985

      John L. Kearney, for appellant.

      Steve Clark, Att’y Gen., by: Patricia G. Cherry, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Barry Carter, through his attorney, negotiated a plea of guilty to a first degree murder charge for a sentence of 40 years imprisonment, consecutive with one he was serving. Thirteen days later, with new counsel, Carter sought to set aside the plea and sentence. The ground for the motion was essentially mental incompetence. The trial judge, noting a review of the record, denied the motion without a hearing.

On appeal it is argued that the court should have held a hearing before acting, and, further, the motion should have been granted. It was filed pursuant to A.R.Cr.P. Rule 26.1, which provides that a plea may be withdrawn upon a timely motion to correct a manifest injustice. The motion was meritless as a matter of law because it must be made prior to sentencing. Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979); A.R.Cr.P. Rule 26.1 (e).

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Gerald WILSON v. STATE of Arkansas
    CR 85-3
    685 S.W.2d 811
    Supreme Court of Arkansas
    Opinion delivered March 18, 1985

      Henry & Mooney, by: John R. Henry, for appellant.

      Steve Clark, Att’y Gen., by: Sandra Partridge, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

This appeal comes before us under Rule 29( 1 )(c) as one in a series of cases in which we construe and interpret the Omnibus DWI Act of 1983, Ark. Stat. Ann. § 75-2501 — 75-2514 (Supp. 1983). We affirm the judgment finding the appellant guilty.

Appellant first argues that he should not have been convicted of operating a motor vehicle while intoxicated because the state failed to introduce evidence of a chemical test to prove intoxication. The argument is without merit. Ark. Stat. Ann. § 75-2503 (a) (Supp. 1983) provides that it is illegal for anyone to operate a vehicle while intoxicated. Subsection (b) of the same statute provides that it is illegal for anyone to operate a vehicle with a blood alcohol content of .10% or more. Proof-of the blood alcohol content is not necessary for a conviction under subsection (a), driving while intoxicated. However, such proof is admissible as evidence tending to prove intoxication. Yacono v. State, 285 Ark. 150, 685 S.W.2d 500 (1985).

The appellant next argues that he was charged under subsection (b) of the act but was convicted under subsection (a) of the act, and therefore, his conviction must be reversed. Again, the argument is without merit. The charging instrument, whether a citation or information, is not in the record. The municipal court appeal transcript reflects that appellant was “charged with the offense of DWI one. ’ ’ Other parts of the record indicate that he was charged with “DWI one.” Such a charge is sufficient for a conviction under either subsection (a) or (b), even though the evidentiary requirements of the subsections are different. Yacono v. State, supra.

Affirmed.