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

text:
    ELK CORP. OF ARKANSAS v. Norman Claude JACKSON and Eva JACKSON
    86-122
    725 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered March 16, 1987
    [Supplemental Opinion on Denial of Rehearing April 27, 1987.]

      Giffin, Rainwater & Draper, for appellant.

      Bill R. Holloway, H.L. Merideth, Jr. and Robert G. Bride-well, for appellee.
   Jack Holt, Jr., Chief Justice.

Norman Claude Jackson suffered extensive paralysis when the tractor-trailer rig he was driving overturned, throwing him out of the cab. He and his wife, appellees, brought suit against Elk Corporation of Arkansas (Elk), appellant, alleging Elk, in manufacturing and packaging bundles of rolled felt roofing, had produced a defective product and had loaded the roofing on his trailer in a negligent manner, causing the accident. The trial court instructed the jury on separate theories of strict liability as to the defective product, and negligence in regard to the loading of the trailer. In answer to special interrogatories, the jury found Elk 90% at fault. After reducing the verdict by the 10% Jackson was found at fault, the jury awards were $1,575,000 for Jackson and $540,000 for his wife for loss of consortium. We hold it was error to instruct the jury on the strict product liability action, as negligence was the only appropriate legal theory of recovery, and reverse.

At the time of the accident, Jackson was a professional truck driver for Builders Transport, Inc., a common carrier. Elk employees loaded 740 rolls of felt roofing, manufactured by Elk, on a flatbed trailer to be hauled by Jackson. Each roll was 40 inches in length, 10 inches in diameter, and weighed 60 pounds. Bundles of 20 rolls of roofing were bound together by a single band, placed in a vertical standing position on wooden pallets, and loaded on the trailer with a forklift. Twenty-three bundles were placed directly on the trailer and fourteen bundles were “double stacked” on top of the first layer of bundles. No safety devices were used by Elk or by Jackson to secure the load.

Several witnesses, including experienced drivers, testified that bundles of rolled felt roofing, double stacked and with a single metal band around them, comprise a dangerous load absent safety devices, such as sideboards, to prevent shifting of the load. Witnesses agreed that bundles of roofing have a tendency to shift as the bands holding the rolls of roofing together loosen and slide down.

On the day of the accident, Jackson left the Hamburg terminal with a trailer and drove it to Camden, Arkansas where he dropped a load, then proceeded to Elk’s plant at Stephens, Arkansas. When he arrived, he contacted his dispatcher for orders relating to pulling the load of roofing which was sitting on a trailer at Elk’s dock.

Jackson testified that he tarped and strapped the load and drove approximately 70 miles when he noticed a bulge under the left side of the tarp indicating the load had shifted. As a result, he slowed down and pulled onto the shoulder of the highway. Testimony is in dispute between Jackson, eyewitnesses and experts whether, at that point, the load shifted further, flipping the entire tractor-trailer, or whether the trailer’s wheels hit a washed out area of the sloping shoulder, causing the rig to overturn, throwing Jackson out of the cab and causing the injuries which are the subject of this lawsuit.

I. STRICT LIABILITY

Among the issues raised by Elk on appeal is that the trial court erroneously instructed the jury on strict product liability. We agree that it was error.

The trial court instructed the jury that the Jacksons assert two separate grounds for recovery of damages:

“First, that defective packages of roll roofing material were manufactured, assembled and packaged by Elk Corporation on the trailer to be pulled by Norman Claude Jackson, Jr.’s truck and, second, that there was negligence on the part of Elk Corporation.”

In furtherance of the first theory, the jury was apprised of the elements of strict liability for defective products as found in Ark. Stat. Ann. § 85-2-318.2 (Supp. 1985) and E.I. DuPont De Nemours and Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983). The court instructed:

With respect to the manufacture, assembly, packaging and loading of a defective product, Norman Claude Jackson, Jr. and Eva Jackson claim damages from Elk Corporation and have the burden of proving each of four essential propositions:
First: That they have sustained damages;
Second: That Elk Corporation was engaged in the business of manufacturing, assembling, packaging and loading roll roofing material on a trailer to be pulled by Norman Claude Jackson, Jr. in this case;
Third: That the packages of roll roofing was supplied by Elk Corporation in a defective condition, which rendered it unreasonably dangerous; and
Fourth: That the defective condition was a proximate cause of Norman Claude Jackson and Eva Jackson’s damages.

Definitions of terminology used in strict product liability actions are found in Ark. Stat. Ann. § 34-2802 (Supp. 1985). Products are “any tangible object or goods produced.” § 34-2802(b). “ ‘Defective condition’ means a condition of a product that renders it unsafe for reasonably foreseeable use and consumption.” § 34-2802(d). Section 34-2802(g) provides that a product is “unreasonably dangerous” if it:

is dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable buyer, consumer or user who acquires or uses such product, assuming the ordinary knowledge of the community, or of similar buyers, users or consumers, as to its characteristics, propensities, risks, dangers and proper and improper uses, as well as any special knowledge, training or experience possessed by the particular buyer, user or consumer or which he or she was required to possess. . . .

The jury was also instructed that “fault” means negligence and supplying a product in a defective condition. In addition, Jackson was given the benefit of a presumption we have established in product liability cases when the court further instructed the jury that “if you find that in the normal course of events no injury would have occurred in the absence of some defect, then you are permitted but not required to infer that a defect existed.” See Petrus Chrysler-Plymouth v. Davis, 283 Ark. 172, 671 S.W.2d 749 (1984).

In 1973, the Arkansas Legislature adopted strict product liability as a theory of recovery by the passage of § 85-2-318.2. Although we have had several occasions to determine its applicability, none of our cases support Jackson’s contentions. We have held that a residential developer cannot be held strictly liable for building a dangerous street because a street is not a product, Milam v. Midland Corp., 282 Ark. 15, 665 S.W.2d 284 (1984); that where the carpet in a house emitted strong fumes of formaldehyde, the house was a product and strict liability applied, Blagg v. Fred Hunt Co., 272 Ark. 185, 612 S.W.2d 321 (1981); that strict liability did not apply when a defective irrigation pump was “merely useless” rather than “something beyond that contemplated by the ordinary and reasonable buyer, taking into account any special knowledge of the buyer concerning the characteristics, propensities, risks, dangers, and proper and improper uses of the product,” Berkely Pump Co. v. Reed-Joseph Land Co., 219 Ark. 384, 653 S.W.2d 128 (1983); and that the carton containing soft drinks was part of the product so that the manufacturer could be held strictly liable when a soft drink fell through the carton and injured the plaintiff, Stalter v. Coca-Cola Bottling Co. of Ark., 282 Ark. 443, 669 S.W.2d 460 (1984).

Obviously, Elk’s roofing is a “product” as defined by statute. To support a claim of strict product liability, however, Jackson had to show that the packaging of the rolled roofing was supplied by Elk in a defective condition as defined in § 34-2082(d). The record is devoid of evidence in this regard. Jackson’s witnesses did not mention any defect in the product, but rather all testified that the way in which the product was loaded made it unreasonably dangerous.

A typical example of the evidence on this issue is the questioning of Karl Franz, an engineer, by Jackson’s attorney:

Q You’ve been asked some questions about hauling roll roofing double stacked, and you used the words “inherently unstable” in your direct testimony. Can you clarify what you mean by “inherently unstable?”
A A roll of tar paper doesn’t have a lot of strength in itself.
Q Does that mean it’s soft?
A It’s a little mushy; it’s a little soft. . . .And if there’s a load applied on it, it’ll tend to deform, whereas something that is structurally sound, where the loads that are applied on it, they won’t deform.
Q . . .[D]id you say that a load of roll roofing double stacked, that is, where there’s a pallet on top of a pallet of roll roofing or bundles of roll roofing that it was inherently unstable?
A Yes.
Q I want to ask your opinion, based upon reasonable probability, and further ask you to assume that you have on a forty-four foot trailer similar to that that was referred to as an eighteen-wheeler and you have rolls of roofing twenty per pallet, and you’ve got twenty-three pallets on the first deck and fourteen pallets on the second stack, on the second stack, I want to know your opinion based on reasonable probability as to whether or not that load is unreasonably dangerous?
A I feel like that configuration of loading with that particular cargo is unsafe, (emphasis added)

In short, it was not a defective, and therefore unreasonably dangerous product which was shown to be the cause of the accident. If Elk was at fault, then it was because Elk negligently loaded Jackson’s trailer, not because the rolls of roofing were defective. The mere fact that under certain circumstances an accident may occur in connection with the use of a product does not make the product unreasonably dangerous for purposes of strict liability.

When an issue is submitted to the jury that should not have been, if there is no means of ascertaining what feature of the case controlled the jury in its findings, the error is prejudicial and calls for a reversal. Black v. Bearden, 167 Ark. 455, 268 S.W. 27 (1925); Carrigan v. Nichols, 148 Ark. 336, 320 S.W. 9 (1921). Under the circumstances of this case, it is impossible to determine whether the jury determined fault as a matter of negligence, or as a matter of strict liability.

The fact that the jury apportioned fault between Jackson and Elk does not produce any further clues in this regard, for strict liability is not absolute liability in Arkansas. A plaintiff in a strict product liability action can also be at fault. Accordingly, the trial court’s definition of fault taken from AMI Civil 2d, No. 306 included “supplying a product in a defective condition” along with negligence and other forms of fault. The jury was also instructed that if Jáckson misused the rolled roofing material or used it in a manner not reasonably foreseeable, then he was guilty of fault which was a proximate cause of his own damages. See Ark. Stat. Ann. §§ 34-2804 and 2807 (Supp. 1985). The interrogatories to the jury asked only who was at “fault,” and did not separate the two theories of recovery. Inasmuch as fault could have been assessed on either theory, we cannot say the instructions were not prejudicial.

The appellee cites two cases which hold that a jury verdict should be affirmed where there was sufficient evidence to support the jury’s verdict under any one of several theories. E.I. DuPont De Nemours and Co., supra, and W.M. Bashlin v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). In those cases, however, each theory was properly submitted to the jury and the facts could support a verdict under any one or all of them. Such is not the case here.

The trial court committed error in instructing on strict liability in tort.

Because certain other points raised may be at issue on retrial, we will briefly address those issues.

II. MOTION FOR DIRECTED VERDICT

The trial court did not err in refusing to grant Elk’s motion for a directed verdict on the negligence claim. The test upon appeal of the denial of a motion for a directed verdict is “to take that view of the evidence that is most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it, and to grant the motion only if the evidence viewed in that light would be so insubstantial as to require that a jury verdict for the party be set aside.” Cowling & Assoc. v. Clinton Bd. of Educ., 273 Ark. 214, 618 S.W.2d 158 (1981).

Elk contends the directed verdict should have been granted because federal statutes and regulations place the sole duty with respect to loading and transporting cargo on the carrier and its driver rather than the shipper; the negligence of Jackson and his employer were an intervening cause of the accident; and there was no evidence of negligence by Elk that was a proximate cause of the accident. Elk cites 49 U.S.C. § 10702 and 49 C.F.R. §§ 392.9, 392.16 and 393.100 for the proposition that the duty of care rested on Jackson and Builder’s Transport rather than on Elk. These regulations place certain duties on the carrier to ensure a truck is safely loaded and transported. They do not, however, remove all liability from a shipper for its negligence when it undertakes to load its cargo on a carrier’s trailer. Furthermore, any violation of the federal rules would only be evidence of negligence to be considered by the jury along with other evidence in the case. Franco v. Bunyard, 261 Ark. 144, 547 S.W.2d 164 (1977).

III. INTERVENING CAUSE

The issues of Jackson’s negligence as an intervening cause and the sufficiency of the evidence of Elk’s negligence are questions for a jury.

“The question of intervening efficient cause is simply a question whether the original act of negligence or an independent intervening cause is the proximate cause of an injury.” Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). “Like any other question of proximate causation, the question whether an act or condition is an intervening or concurrent cause is usually a question for the jury. . . . Proximate cause is the efficient and responsible cause, but it need not be the last or nearest one. . . . The mere fact that other causes intervene between the original act of negligence and the injury for which recovery is sought is not sufficient to relieve the original actor of liability, if the injury is the natural and probable consequence of the original negligent act or omission and is such as might reasonably have been foreseen as probable.” Id.

As stated earlier, exactly what caused the trailer to overturn was in dispute. Both parties on appeal cite us to testimony in support of their theories as to who was responsible for the cargo, whose negligence was greater in the events leading up to the accident, and what forces acted together to cause the accident. The resolution of these arguments was for the jury, as there was substantial evidence to support a verdict finding Elk negligent and that its negligence was a proximate cause of the accident.

IV. VIDEOTAPE AS EVIDENCE

Elk also argues the trial court erred in admitting a videotape showing a day in the life of Jackson. Elk does not argues that the tape, which was played with the sound off, was inaccurate or misleading, but that its inflammatory effect outweighed its probative value and that it was cumulative of other evidence. The same guidelines for admission of photographs can be applied to videotapes, where we give the trial court broad discretion in determining admissibility and will not reverse merely because they are inflammatory and cumulative of other evidence, if the probative value outweighs any prejudice, Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). Rodgers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977). Elk has presented no convincing argument showing the tape was inadmissible.

V. TESTIMONY AS TO SIMILAR CONDITIONS AND EVENTS

Elk contends that the trial court should have excluded the testimony of two of Jackson’s witnesses, Truman Capps and Ernest Bussell. Capps testified as to the loading practices of his employer, Elk Corporation of Alabama, an intersubsidiary corporation of Elk Corporation of Arkansas. Capps stated that Elk of Alabama used certain safety devices when loading rolls of roofing because of previous accidents with that cargo. This testimony was relevant to show that a sister corporation had recognized the danger of hauling double stacked roofing and had taken safety precautions to make the load safe. It also served to rebut the argument by Elk that the carrier and not the shipper was solely responsible for taking safety measures. The testimony was therefore admissible for these purposes.

Bussell testified that he picked up a load of double stacked roofing which Elk loaded next to Jackson’s truck on the same day. He said his load shifted the next day and almost turned over also. Elk argues that the testimony should have been excluded because it was not shown that there was adequate similarity of conditions between the two events to make it reasonable and probable that the same cause produced the same result. Chicago R.I. & Pac. R.R. v. Lynch, 246 Ark. 1282, 441 S.W.2d 793 (1969). Elk emphasizes that the drivers were on different highways, there was no proof they drove in the same manner, Bussell’s load did not shift until the next day, and there were also shingles on Bussell’s load. We disagree. That the same type of cargo was loaded in the same way, by the same company, picked up the same day, and experienced similar problems, makes the occurrence similar enough to be relevant on the issue of whether Elk’s loading practices were negligent.

VI. HANDBOOKS AS EVIDENCE

Elk attempted to introduce Builders Transport’s Handbook and Directory to impeach Jackson’s testimony that he did not know of Builder’s safety requirement that its drivers have v-boards, a safety device that helps secure cargo. The trial court did not allow the handbook into evidence for this purpose, although witnesses were allowed to testify later that the handbook contained this requirement. Even though there was no prejudice in this situation, Elk should have been allowed to use the handbook for impeachment purposes when Jackson testified that he was unaware of a requirement concerning v-boards.

Finally, the trial court correctly refused to give an instruction proffered by Elk that would have informed the jury that a jury award is exempt from federal income tax liability. We specifically rejected the use of such an instruction in W.M. Bashlin, supra.

Because the trial court erred in instructing on strict liability we reverse and remand.

727 S.W.2d 856

Reversed and remanded.

Supplemental Opinion on Denial of Rehearing April 27, 1987

Jack Holt, Jr., Chief Justice.

Jackson argues in his petition for rehearing that testimony showed that Elk’s failure to secure the bundles of twenty rolls of roofing with two metal bands, rather than a single band, caused the bundles to be more likely to come apart and thus made them unreasonably dangerous as “packages.” The petition should be denied but clarification of this point is in order. While we agree that there was testimony to support the proposition that the placement of only a single band around the bundles was a contributing cause to the accident, and stated so in the original opinion, we are not persuaded that that action made the roofing a defective product for purposes of strict product liability.

We stated in the original opinion that this case should have been given to the jury solely on the question of whose negligence was the proximate cause of the accident. Jackson contends that Ark, Stat. Ann. § 34-2802(e) (Supp. 1985) and Stalter v. Coca-Cola Bottling Co. of Ark., 282 Ark. 443, 669 S.W.2d 460 (1984) support his position that because the rolls of roofing were banded together in an unsafe manner, strict product liability is equally applicable and was properly submitted to the jury. Section 34-2802(e) states:

“Product liability action” shall include all actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing service, warning, instruction, marketing, packaging or labeling of any product, (emphasis added)

Stalter held that a verdict should not have been directed against the plaintiff on her theories of negligence and strict liability when a Coke bottle fell through the bottom of the carton she was carrying and injured her leg.

Jackson maintains that banding the rolls together for shipment was “packaging” under § 34-2802(e) and that, like the Coke carton in Stalter, the bundles were defective packages which were unreasonably dangerous. Jackson correctly points out that a statement in the original opinion can be read to support his argument. There we said that “Jackson had to show that the packaging of the rolled roofing was supplied by Elk in a defective condition as defined in § 34-2802(d).” If a shipper’s act of banding together rolls of roofing for loading on a tractor-trailer could be considered “packaging” in the same way that a coca-cola carton is a package for that product, then Jackson would be correct in asserting that this cause of action is covered by § 34-2802(e). As we indicated in the original opinion, perhaps not clearly enough, we consider the rolls of roofing themselves to be the only “product” in this case. The act of banding them together for shipment is simply part of the loading and transporting process for which Elk can only be liable on a negligence theory.

Stalter cannot be interpreted to extend strict product liability to include the process by which the shipper secures a product for transportation. Stalter involved the ultimate consumer of the product carrying the soft drinks in the carton sold with the soft drinks. The carton was obviously intended to be an integral part of the product and its use. In this case, putting a band around Elk’s product, the rolls of roofing, was simply to secure the load for shipping. Like the alleged acts of negligence in double stacking the bundles and the failure to secure the load with further safety devices, the process of holding the rolls together with a single metal band while in shipment was part of the alleged negligence which the jury should have compared with the alleged contributory negligence of Jackson. In Stalter the plaintiff could clearly point to the carton as the defective part of the product. Here, it was the acts of negligently securing the rolls, negligently stacking the bundles, and negligently failing to use safety devices that Jackson alleges caused the accident.

Although there was testimony that single banding contributed to the accident, as we noted in the opinion, that testimony was to the effect that the single banding, along with other factors, such as the double stacking, all contributed to making the load dangerous. Jackson should not be allowed to single out one step in that process which can be loosely described as packaging, in order to assert strict liability against Elk without the burden of proving negligence.

Unlike the Restatement (Second) Torts, § 402A (1965) version of strict product liability, our statute, Ark. Stat. Ann. § 85-2-318.2 (Supp. 1985), does not limit strict liability actions to injuries to the ultimate consumer or user. Nevertheless, the product has to meet the definition of unreasonably dangerous found in Ark. Stat. Ann. § 34-2802(g) (Supp. 1985). A product is unreasonably dangerous if it is “dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable buyer, consumer or user who acquires or uses such product. . . .” This definition indicates the emphasis in the product liability act on determining the product and whether it is defective by its consumer use. The product in this case is the roofing itself which was not being used, but rather was being hauled from Elk’s dock, and which was not shown to be defective or unreasonably dangerous.

Petition denied.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Terrance PROCTOR v. STATE of Arkansas
    CR 86-133
    725 S.W.2d 827
    Supreme Court of Arkansas
    Opinion delivered March 16, 1987

      Joel O. Huggins, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Terrance Proctor, appellant, pled guilty to one count of robbery and ten counts of aggravated robbery, and received ten sentences of twenty years imprisonment and one life sentence, each term to run consecutively. Proctor filed an A.R.Cr.P. Rule 37 petition alleging he received ineffective assistance of counsel, his guilty pleas were not voluntary, and that the trial court did not follow correct procedure in accepting the pleas. The petition was denied by the trial court without a hearing and we affirm.

Proctor contends an evidentiary hearing should have been granted on these issues. Rule 37.3(a) allows the trial court to dispose of a post-conviction petition, without a hearing, if “the motion and the files and records of the case conclusively show that the petitioner is entitled to no relief. . . .” See Simmons v. State, 265 Ark. 48, 578 S.W.2d 12 (1979).

As ineffective assistance of counsel, Proctor alleges his attorney failed to interview certain witnesses who could have provided him with an alibi. Proctor does not state who these witnesses were, what their testimony would have been, or for which of the convictions they would have provided an alibi. Proctor told the trial judge at the plea proceedings that there were no witnesses he could subpoena, that he had discussed defenses with his attorney and knew of nothing that could change the outcome of the case, and that he was satisfied with his attorney’s performance.

“When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that the counsel’s representation fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Strickland v. Washington, 466 U.S. 668 (1984). This test was applied to challenges to guilty pleas based on ineffective assistance of counsel in Hill v. Lockhart, _ U.S. _, 106 S.Ct. 366 (1985), where the Supreme Court said:

[I]n order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

Wtí ¿aid in Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984) that a “defendant whose conviction is based upon a plea of guilty will have difficulty proving any prejudice since his plea rests upon his admission in open court that he did the act with which he is charged.”

Proctor’s unsupported allegations, which are inconsistent with his statements at the plea proceedings and which in no manner disprove his guilt, do not justify a hearing on his petition.

Proctor next alleges that his guilty plea was not knowingly and voluntarily given because he was told by his attorney that a deal had been reached with the prosecutor’s office that concurrent thirty year terms would be recommended to the court. The trial court at the plea proceedings, however, addressed the defendant as follows:

THE COURT: And you want to enter a plea of guilty to all of these?

PROCTOR: Yes, sir.

THE COURT: Now, do you understand — This is not a negotiated plea?

MR. KING (prosecutor): No, sir.

MR. HELLER (defense counsel): No, it’s a plea to the court.

THE COURT.: Okay. There are potentially ten life sentences here.

PROCTOR: Yes, sir.

THE COURT: In other words — I don’t think there’s much doubt about it, Mr. Proctor, you’re going to spend the rest of your life in the Department of Correction. Do you understand that?

PROCTOR: Yes, sir.

* * *

THE COURT: And you understand that in all likelihood you’re going to spend the rest of your life in the Department of Correction?

PROCTOR: Yes, sir.

If there is any truth to Proctor’s allegations that he was led to believe a deal had been reached, that possibility was negated when the court pointedly explained that there was no such agreement before taking the guilty pleas, and Proctor cannot now claim to have been misled.

Finally, Proctor contends that the trial court did not follow the proper procedure in taking his pleas. Proctor’s petition does not specifically state the procedural errors he relies on, but his brief indicates a belief that the court failed to establish a factual basis for the pleas in compliance with A.R.Cr.P. Rule 24.6. Following is a representative colloquy between the court, the prosecutor and Proctor on one of the counts:

MR. KING: On the same day, October 31st, 1982, at approximately 1:30 p.m., Mr. Terrance Proctor entered the Noble Texaco Station at 3715 South University, where he asked Mr. Charles Diifee about some repair work and using a pay phone. He left the station. He returned shortly and asked Mr. Diifee for some change. And, as soon as the customers left, he pulled a pistol and demanded all the money. He then took Mr. Diffee’s wallet and money from the cash register and ran out of the station. Apparently there was a lady who was driving into the station and saw him leaving the area. Apparently he had somebody else out in the car with him.

THE COURT: Mr. Proctor, did you rob Mr. Diifee on the day in question?

THE DEFENDANT: Yes, sir.

THE COURT: And you had a weapon?

THE DEFENDANT: Yes, sir.

THE COURT: And you displayed the weapon?

THE DEFENDANT: Yes, sir.

THE COURT: And you took some property from Mr. Diffee?

THE DEFENDANT: Yes, sir.

THE COURT: Are you pleading guilty because you are guilty?

THE DEFENDANT: Yes, sir.

Similar exchanges between the trial court and the defendant took place before each plea was accepted. This process not only meets the requirement of substantial compliance with the rules, it serves as a good model for other trial courts to follow whenever establishing a factual basis for a guilty plea.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Gary W. MILNER et ux v. Gid R. BRANSCUM et ux
    86-200
    725 S.W.2d 573
    Supreme Court of Arkansas
    Opinion delivered March 16, 1987

      Vaughan & Bamburg, by: Keith Vaughan, for appellants.

      Tom Tanner, for appellees.
   Darrell Hickman, Justice.

This case began as an action to quiet title, foreclose a mortgage, and for a judgment on the note and damages. The appellees counterclaimed to declare the note and mortgage void. The chancellor erroneously granted summary judgment to the appellees.

The appellants sold the property to the appellees, who assumed a first mortgage to Union National Bank of Little Rock and executed a second mortgage to the appellants. The appellees then sold the property to Edward and Celia Kaleta, who assumed the first and second mortgages and executed a third mortgage to the appellees. The Kaletas defaulted on all notes. The appellants paid the past due balance on the first mortgage and obtained a deed from the Kaletas. The appellants then filed suit against the appellees for back payments made on the first mortgage and for foreclosure of the second mortgage. The appellees moved for summary judgment on the basis of the doctrine of merger and alleged no material dispute of facts. The appellants countered that merger was not intended and summary judgment should be denied. The trial court granted the motion on June 2, 1986. The appellants had asked for additional time to present counter affidavits which the court denied. An affidavit by Gary Milner, one of the appellants, who was in Germany in the armed forces, arrived the day after summary judgment was granted. The court denied the appellants’ motion for reconsideration of the summary judgment.

We find the trial judge abused his discretion in denying a request for time to file a counter affidavit. The motion for summary judgment was filed May 5, 1986. A hearing on that motion was set by the appellees’ attorney for May 22, 1986. Summary judgment was granted June 2,1986, and filed June 5. Milner’s affidavit was prepared in Germany on May 15,1986, but did not arrive until June 3, 1986. This affidavit contradicted statements made in affidavits filed by the appellees. The appellants filed a response on May 21,1986, without the affidavit being attached. The trial court should have granted a delay or reconsidered his ruling. The appellants have shown prejudice and an abuse of discretion by the trial judge.

Reversed and remanded.


text:
    Robert L. SPEARS, et al. v. STATE FARM FIRE AND CASUALTY INSURANCE
    86-192
    725 S.W.2d 835
    Supreme Court of Arkansas
    Opinion delivered March 16, 1987

      Meredith Wineland, Josh McHughes, and Bob Leslie, for appellants.

      Huckabay, Munson, Rowlett & Tilley, P.A., for appellee.
   Darrell Hickman, Justice.

Robert L. Spears, a discjockey for radio station KSSN in Little Rock, was struck in the face with a baseball bat. He sued Bob Troutt and his wife for damages, alleging intentional, negligent and willful and wanton conduct by the Troutts. The appellee, State Farm Fire and Casualty Insurance, carried a home owners policy for the Troutts and provided a defense for the Troutts; however, State Farm specifically reserved the right to deny coverage through an exclusion in the policy for injuries “expected or intended by the insured.” State Farm expressly told counsel to consider only the Troutts’ best interest and not attempt to direct the lawsuit so that the jury would find an intentional tort by the Troutts. The jury answered eight interrogatories, finding the Troutts guilty of both negligence and willful and wanton disregard of the rights of others. The jury awarded Spears $505,000 and his wife $65,000 in compensatory damages and together they were awarded $2,000,000 in punitive damages. The trial court reduced the punitive award by half.

After the tort suit, State Farm filed this declaratory judgment action against the appellants and the Troutts to determine its liability for the judgment the Spearses had against the Troutts. The appellants moved for summary judgment alleging the prior lawsuit was res judicata of the issues now raised, binding State Farm to the jury’s findings in the first case. The trial court denied the motion, and the case was tried to a jury. Both Spears and Troutt were called as witnesses. State Farm offered the former testimony of Roosevelt Nelson, an employee of Troutt, who testified at the first trial that he struck Spears with a baseball bat. Jimmy Baldwin, another employee of Troutt, testified that he drove the “getaway” car after Spears was beaten. He also testified he was at Troutt’s house the day Troutt gave Lavonia Gray a baseball bat. Gray, a longtime employee of Troutt, gave a confession, which was introduced, to the Pulaski County Sheriff’s Department. In the confession Gray admitted that Troutt told him to hit Spears; he said Nelson left the vehicle that night and returned saying he had “hit him.” The jury returned a verdict for State Farm.

Appellants raise three arguments on appeal. First, it is argued the trial court was wrong in denying summary judgment because of res judicata. Second, it is argued that the trial court erroneously admitted Gray’s confession, which was hearsay, as a business record. Finally, it is argued that the trial court was wrong in declaring Nelson unavailable to testify, thereby admitting his testimony from the first trial.

We first consider the question of res judicata. The doctrine of res judicata “provides that a prior decree bars a subsequent suit when the subsequent case involves the same subject matters as that determined or which could have been determined in the former suit between the same parties; and the bar extends to those questions of law and fact which might well have been but were not presented.” Benedict v. Arbor Acres Farm, 265 Ark. 574, 579 S.W.2d 605 (1979); Wells v. Heath, 269 Ark. 473, 602 S.W.2d 665 (1980): see also Hickerson v. State, 286 Ark. 450, 693 S.W.2d 58 (1985). The purpose of res judicata is “to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time.” Wells v. Heath, supra.

The first suit was between Spears and Troutt. While State Farm was not a party to the suit, it defended the Troutts as required by the policy.

Was there privity between State Farm and the Troutts ? A final judgment is binding on those in privity as well as the parties. Missouri Pacific Railroad Co. v. McGuire, 205 Ark. 658, 169 S.W.2d 872 (1943). Privity of parties within the meaning of res judicata means “a person so identified in interest with another that he represents the same legal right. . . .” Missouri Pacific Railroad Co. v. McGuire, supra.

We have held that “ordinarily an insurer is considered as being a privy to a judgment against its insured in which it furnished a defense and estopped to make an assertion contrary to a finding in the action against the insured.” Southern Farm Bureau Casualty Insurance Co. v. Jackson, 262 Ark. 152, 555 S.W.2d 4 (1977). On this basis the appellants argue State Farm is bound by the judgment in the tort suit. However, there is an exception to this rule and it applies to this case. That exception is when the interests of the insured and the insurance company conflict, there is no bar to a second suit. Restatement (Second) of Judgments, § 58 (1982) provides:

(1) When an indemnitor has an obligation to indemnify an indemnitee (such as an insured) against liability to third persons and also to provide the indemnitee with a defense
(b) The indemnitor is precluded from relitigating those issues determined in the action against the indemnitee as to which there was no conflict of interest between the indemnitor and the indemnitee.

The comment to this section explains the reasoning for this exception.

. . .For example, the indemnitee [T routt] may be charged alternatively with having acted negligently and intentionally. In such a situation, it is to the indemnitee’s interest that the claim, if sustained at all, be sustained on the basis of negligence because the loss will then fall on the indemnitor, but it is to the indemnitor’s interest that the claim of negligent wrongdoing be resisted because liability on that basis would fall with the obligation to indemnify.
On the other hand, the indemnitor has a right to its day in court on whether the indemnitee’s liability is within the scope of the indemnity obligation. A corollary of this right is that the indemnitor should not be estopped by steps or positions that the indemnitor may have taken in the course of performing its duty to defend the indemnitee. Hence, the usual rule that an indemnitor is precluded by the determination of issues which he litigates on behalf of an indemnitee, stated in § 57, should not apply to an indemnitor who defends, under the compulsion of an independent duty to defend, an indemnitee with whom he has a conflict of interest.
The only way to reconcile these duties is to recognize that an indemnitor who has an independent duty to defend the indemnitee in effect has two legal capacities with regard to the indemnitee. . . .

There was a conflict of interest between State Farm and Troutt in the first suit. The reservation of rights letter pointed out this conflict to the Troutts. The letter stated that although State Farm would provide a defense for the Troutts in the first suit, State Farm reserved its right to raise the defense of noncoverage because of the policy exclusion of liability arising from intentional acts. See also Great American Insurance Co. v. Ratliff, 242 F. Supp. 983 (D.C. Ark. 1965).

Appellants argue the exception should not bar the application of res judicata when an insurance company places itself in a position of conflict of interest. State Farm did not cause the conflict. Spears sued for damages both on the theory of negligence and intentional and willful acts.

Next, we consider whether the trial court erred in admitting Gray’s confession. Lavonia Gray was called as a witness by State Farm and denied that Troutt told him to hit Spears or that he had anything to do with the beating. He repudiated his confession. After Gray testified, State Farm offered his confession through Lloyd King, a deputy prosecuting attorney. The appellants objected because it was hearsay. State Farm argued that the confession was admissible as a business record. A.R.E. Rule 803(6). The trial judge admitted the confession. Appellants argue that the confession was not a business record, and the court was wrong to admit it. Appellants concede the confession could have been introduced as a prior inconsistent statement, but only through the declarant, in this case, Gray. This permits an opportunity to cross-examine the declarant about the confession.

It is questionable whether the confession was a business record. The court of appeals has held that a public office is not a business. Wallin v. Ins. Co. of North America, 268 Ark. 847, 596 S.W.2d 716(Ark. App. 1980). However, if evidence is inadmissible for one reason but admissible for another, its admission will not be error. Lewis v. State, 288 Ark. 595, 709 S.W.2d 56 (1986). It could have been admitted as a prior statement under Rule 801(d)(1) in this civil case. Consequently, this argument is meritless.

Finally, we consider the question of whether Nelson’s former testimony is admissible. Counsel for State Farm told the trial judge, in chambers that an attempt had been made to locate Nelson in Arkansas, and he could not be found; a process server was hired to find Nelson, and he was unsuccessful; Nelson’s last known address was in Wisconsin; and a subpoena was sent by Airborne Express mail to the address and returned with the note that Nelson had moved. The appellants asked if Nelson’s probation officer had been contacted. The trial judge commented he should be able to verify if Nelson was available. Evidently, the trial judge called the probation officer who confirmed that Nelson was in Wisconsin. Appellants did not object to the trial judge’s statement that he contacted this official.

The appellants argue State Farm did not make reasonable efforts to locate Nelson. The trial judge was satisfied that State Farm had tried to locate Nelson and declared Nelson unavailable and allowed the former testimony admitted.

A witness is considered unavailable if he is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. A.R.E. Rule 804(a)(5). When the declarant is unavailable as a witness, his former testimony at another hearing of the same or different proceeding is not excluded by the hearsay rule if the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination. A.R.E. Rule 804(b)(1). The burden of proving the unavailability of the witness is on the party who offers the prior testimony. Lewis v. State, supra.

A trial judge does have some discretion in deciding if a good faith effort was made and whether a witness cannot be procured by process or other “reasonable means.” Satterfield v. State, 248 Ark. 395, 451 S.W.2d 730 (1970). In making its determination, a trial court has some discretion to accept or reject statements and representations of counsel. United States v. Sindona, 636 F.2d 792 (2nd Cir. 1980); Castilleja v. Southern Pacific Co., 445 F.2d 183 (5th Cir. 1971). According to Weinstein, á lesser standard of proof of unavailability is required in civil cases than in criminal cases. 4 J. Weinstein, Weinstein’s Evidence ¶ 804(b)(1)[04] (1985). Here we cannot say the trial court abused its discretion.

The appellants further argue the issues between the two cases are different so their opportunity to cross-examine Nelson was denied. The issue in this case is whether Troutt’s acts were intentional. In the tort case their motive was to prove that Troutt was negligent in the hiring and supervision of his employees or guilty of intentional, negligent and willful and wanton conduct. “A shift in the theory of the case does not defeat admissibility when the underlying liability remains the same thereby guaranteeing cross-examination with the same purpose, ... the purpose for which the testimony was originally offered and the purpose for which it is offered at the subsequent proceeding are so similar in nature that the incentive to cross-examine and the motive of the cross-examination are substantially the same at each proceeding.” Weinstein, supra, at ¶ 804(b)(l)[04]. The trial judge held “the appellants’ interests have not changed from that point to this point.”

A trial judge has discretion to determine if a motive is similar. Weinstein, supra, at ¶ 804(b)(1)[02]. Wecannot say the trial court abused its discretion by admitting the former testimony.

The appellants’ final argument is that if the former testimony was admissible, the entire testimony should have been read to the jury instead of just excerpts. The appellants had the opportunity to offer any of the testimony but did not. An opportunity to read the remaining testimony is all that is required. Weinstein, supra, ¶ 804(b)(l)[01].

Affirmed.


author: John I. Purtle, Justice.

text:
    Rex P. DAVIS v. Pat B. DAVIS
    86-258
    725 S.W.2d 845
    Supreme Court of Arkansas
    Opinion delivered March 16, 1987
    [Rehearing denied April 13, 1987.]

      R.J. Brown, P.A., for appellant.

      John Wesley Hall, Jr., for appellee.
   John I. Purtle, Justice.

Following a bench trial on July 29, 1983, the circuit judge issued a letter opinion addressed to the attorneys of record directing the appellant’s counsel to prepare a judgment in the amount of $12,836.14. Sometime later the counselor prepared the judgment in the amount of $24,761.14. The matter was appealed to the Court of Appeals where it was affirmed. After receipt of the mandate the trial court issued an order correcting the judgment to the amount contained in his letter opinion.

The appellant argues on appeal that the circuit court lacked jurisdiction to correct the judgment and that the court erred in correcting the judgment. We disagree with both arguments.

On December 12, 1982, the appellant filed an action for breach of contract. The contract had been entered into by the parties during a divorce proceeding. A bench trial was held on July 29,1983, and a letter opinion was issued by the trial court on September 1,1983. The court instructed counsel for the appellant to prepare a precedent awarding his client damages in the amount of $12,836.14. On October 31, 1983, the appellant’s attorney, R.J. Brown, sent a precedent to the court in the amount of $24,761.14. The cover letter stated that counsel was adding $11,925.00 for the price of furniture which the appellee had not returned pursuant to their settlement contract. The appellee’s attorney, James P. Clouette, was not furnished a copy of the letter of transmittal. The court apparently routinely signed the judgment on November 16,1983, without examining it. It is customary for trial judges to rely upon the members of the bar to prepare judgments, orders and decrees in accordance with the court’s instructions. The record does not disclose when appellee’s counsel received a copy of the judgment. However, a motion for a new trial was filed on November 30, 1983. This motion was not pursued by the appellee. The trial court’s judgment was appealed on December 7,1983, to the Arkansas Court of Appeals. The trial court’s judgment was affirmed on February 13, 1985, in an unpublished opinion.

On March 1,1985, the appellee filed a motion for additional time to file a petition for rehearing in the Court of Appeals. Three days later the appellee filed a petition with the Court of Appeals to remand the case to the circuit court. This motion was denied on April 3, 1985. The next day the appellee filed a motion for rehearing which was denied on April 24, 1985. On the same day the Court of Appeals issued the mandate affirming the trial court. On March 20, 1985, after the decision of the Court of Appeals had been issued, the appellee filed a motion in the lower court to correct the judgment. The mandate had not been received by the trial court at that time. On January 21, 1986, after the mandate had been received, the trial court entered an order correcting the judgment to $12,836.14. The trial court’s stated authority was A.R.C.P. Rule 60(c)(4).

Rule 60(c)(4) reads as follows:

The court in which a judgment has been rendered or order made shall have the power, after the expiration of ninety (90) days after the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
(4) For fraud practiced by the successful party in obtaining the judgment.

The above stated rule establishes the right of a trial court to vacate or modify a judgment or order after ninety (90) days. Pursuant to Rule 60(b) the court is granted the power to do the same within ninety (90) days of the entry of the judgment or order.

Clearly, the lower court has the power to act as it did unless we find that it lacked the jurisdiction to do so because the appellate court had previously affirmed the judgment. In the early case of Foohs v. Bilby, 95 Ark. 302 (1910), this court held that a circuit court was not precluded from vacating a judgment after the case had been appealed to the supreme court and affirmed. Foohs stated:

It is next insisted by counsel for appellant that, Bilby having appealed from the judgment of the circuit court and the judgment having been affirmed, he was precluded from instituting proceedings to vacate it. This objection is not tenable. The appeal was merely a continuation of the suit below. An appeal does not have the effect of vacating the judgment of the court below.

The intent of Rule 60 is to substantially retain existing Arkansas law on the subject. See Reporters’ Notes to Rule 60. Although the Foohs judgment was set aside because of unavoidable casualty, there is no reason why a judgment should not be set aside for fraud practiced by the party obtaining the judgment. We hold that the action by the appellant’s attorney amounted to fraud upon the trial court and was a violation of A.R.C.P. Rule 60(c)(4). The judgment actually entered did not reflect the judgment of the court as announced in the opinion letter.

Rule 60 does not define what constitutes fraud. Justice McFaddin, speaking for the court, in Arkansas Valley Compress and the Warehouse Company v. Morgan, 217 Ark. 161, 229 S.W.2d 133 (1950), stated: “trial courts have always been reluctant to define ‘fraud’ (either actual or constructive) lest man’s fertile mind invent a new scheme outside the definition but just as nefarious as previously denounced schemes.” The opinion pointed out that constructive fraud or fraud at law does not necessarily consist of guilt or moral wrong but consists of legal or equitable duties owed to another party. Neither actual dishonesty nor intent to deceive is an element of constructive fraud. In the case of Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621 (1965), Justice Frank Holt speaking for the majority stated:

[Constructive fraud is succinctly defined as: ‘a breach of legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declared fraudulent because of its tendency to deceive others . . . Neither actual dishonesty of purpose nor intent to deceive is an essential element of constructive fraud.’

We have many times held that there may be a constructive fraud even in the complete absence of any moral wrong or evil intention. Miskimins v. City Nat’l Bank, 248 Ark. 1194, 456 S.W.2d 673 (1970).

In the present case it is obvious that the judgment of the trial court was intended to be in the amount of $12,836.14. Any change, absent the knowledge and consent of the trial court, would not be the judgment of the court. We, therefore, hold that the court had jurisdiction to set aside or modify the judgment after the mandate of the appellate court had been returned. The action of the appellate court in affirming the judgment did nothing to alter the action of the trial court. It left the judgment undisturbed.

The appellant argues that the law of the case doctrine is controlling, thereby prohibiting the trial court from vacating or modifying its earlier decision. The law of the case doctrine does not prohibit the trial court from taking any action pursuant to Rule 60(c)(4). This rule is an exception to the law of the case doctrine. The judgment by the trial court of setting aside the previous order was not a matter which the Court of Appeals considered or could have considered. See First American National Bank of Nashville v. Booth, 270 Ark. 702, 606 S.W.2d 70 (1980). The action taken by the trial court in correcting the judgment could not have been considered in the first appeal because it did not occur until after the appellate process was completed. Therefore, the law of the case has no application.

Affirmed.

Glaze, J., dissents.


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

text:
    Tommy ROBINSON and Mark BOWMAN v. William E. BEAUMONT, Jr. and Jo GROCOCK
    86-198
    725 S.W.2d 839
    Supreme Court of Arkansas
    Opinion delivered March 16, 1987
    [Rehearing denied April 13, 1987.]

      Barron & Coleman, P.A., by; Randy Coleman, for appellants.

      R. David Lewis, for appellees.
   John I. Purtle, Justice.

On March 22, 1982, Pulaski County Sheriff Tommy Robinson and his deputy, Mark Bowman, arrested County Judge William E. Beaumont, Jr. and his assistant, Jo Grocock, and charged them with obstructing governmental operations in violation of Ark. Stat. Ann. § 41-2802 (Repl. 1977). The arrests were subsequently declared illegal in the state courts. The appellees filed suit for damages for violation of their civil rights as defined by 42 U.S.C. § 1983. Also, the appellees alleged violations of rights guaranteed to them pursuant to the Fourth and Fourteenth Amendments to the United States Constitution.

The appellants defended the allegations by general denial and additionally pled the defense of “good faith” or qualified immunity. A motion for summary judgment, based upon absolute or qualified immunity, was filed by the appellants. No ruling on the motion was made and the case continued to trial. The issues were submitted to the jury by interrogatories. The jury found in favor of the appellants on the question of punitive damages but did not reach a verdict on compensatory damages. The trial court dismissed the complaints on punitive damages and declared a mistrial on compensatory damages. The present appellees appealed and this Court reversed and remanded for a new trial on the issue of liability of the appellants. See Beaumont v. Robinson, 282 Ark. 181, 668 S.W.2d 514 (1984).

Upon remand the present appellants again moved for summary judgment based upon the defense of “good faith” or qualified immunity. The trial court denied the motion. The present appeal is from the refusal of the trial court to grant the motion for summary judgment. The arguments for reversal are that the trial court erred in holding that appellants were not entitled to a dismissal based upon the ground of qualified immunity and that the law of the case doctrine did not require the trial court to deny the motion for summary judgment. We hold that the law of the case doctrine on this point is inapplicable. We remanded the case for a new trial on appellants’ liability. In determining the issue of liability it would have been necessary and proper for the trial court to determine the issue of “good faith” immunity as claimed by the appellants. For reasons stated below, we hold that under the facts of this case, as developed at this stage of the proceedings, the qualified immunity defense does not protect the appellants from liability from suit.

The underlying basis of the arrests was that appellees refused to immediately process a purchase requisition. The appellants alleged that such refusal violated the provisions of Ark. Stat. Ann. § 41-2802, which establishes the offense of obstructing governmental operations. At the time of the arrest the parties were under a restraining order that had been issued by a federal court. This order prohibited the issuance of purchase requisitions relating to the jail funds without the prior approval of a special master appointed by the federal court. One of the duties of the appellees was to issue purchase requisitions. Beaumont offered to obtain judicial approval for the requested requisitions, but the appellants demanded the requisition immediately, without prior approval of the special master. The federal court subsequently held Robinson in contempt of court and sent him to jail for violating the federal court order.

The amended complaint in the present case alleges that Sheriff Tommy Robinson and Deputy Bowman came to appellees’ office on March 22, 1982, and demanded a purchase requisition without approval of the special master. Despite Judge Beaumont’s offer to obtain the permission of the master, the appellants continued to demand immediate disbursement. The complaint further alleged that Sheriff Tommy Robinson unlawfully:

[t]hrough force and abusive conduct, did attack and deny basic human freedoms to two law-abiding government officials, because they chose obedience to law rather than concession to the unlawful course Tommy Robinson dictated, were physically maltreated, paraded in handcuffs and exposed to public ridicule and humiliation, damaged in their reputations and subjected to outrageous and indefensible conduct. . . .

In addition, the complaint specifically alleged a right of recovery based upon 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments to the United States Constitution. The complaint further stated that the appellants deprived the appellees “of life, liberty, and property without due process of law.”

Generally a denial of a motion for a summary judgment is a nonappealable order. Jaggers v. Zolliecoffer, 290 Ark. 250, 718 S.W.2d 441 (1986). (Jaggers defense was based upon statutory immunity from liability.) However, the general rule does not apply in this case. Arkansas Rules of Appellate Procedure, Rule 2(a)(2) states:

(a) an appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from . . .
(2) an order which in effect determines the action and prevents a judgment from which an appeal may be taken or discontinues the action ...”

The principle defense was that the appellants were entitled to a “good faith” or qualified immunity from suit. There would be no further proceedings if the appellants were entitled to the claimed immunity. The refusal to grant the motion amounted to a denial of appellants’ claimed defense which would have, if allowed, discontinued the action. The qualified immunity claim is a claim of right which is separable from, and collateral to, rights asserted in the complaint. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. at 546 (1948). The refusal to grant this summary judgment motion had the effect of determining that the appellants were not entitled to immunity from suit. The right of qualified immunity from suit is effectively lost if a case is permitted to go to trial. Mitchell v. Forsyth, 472 U.S. 511 (1985).

Our procedural rules are patterned after the federal rules; therefore, we look with persuasion upon how the federal courts have interpreted their corresponding rules. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court held that:

[G]overment officials performing discretionary functions generally are shielded from liability or civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Supra at page 817.

The above portion of the Harlow opinion relates to liability from civil damages rather than immunity from suit. The opinion further states:

[W]e have held that qualified immunity would be defeated if an official ‘knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention of deprivation of constitutional rights or other injury. . . .’ Supra at page 817.

Historically the courts have held that certain government officials are entitled to immunity from suit or damages. The purpose of granting immunity is to shield these government officials from unjustified interference with the performance of their duties and to protect them from the constant strain of potential threats of liability. Nixon v. Fitzgerald, 457 U.S. 731 (1982).

Immunity may be either “absolute” or “qualified.” Absolute immunity is granted to officials whose particular function or constitutional status requires complete protection from suit. It is generally applicable to legislators performing duties required of them, judges acting in their judicial functions, and certain officials of the executive branch. Harlow, supra. Absolute immunity has been extended to officers engaged in federal executive and adjudicative functions and to the President of the United States. Fitzgerald, supra. The considerations of separation of power granting absolute immunity to state and federal legislators and the President of the United States do not require absolute immunity for Cabinet Officers or the Attorney General. Mitchell, supra. The United States Supreme Court has stated that “qualified immunity, is the norm.” Schurer v. Rhodes, 416 U.S. 232 (1974). It has been held, for example, that a governor and his staff receive only “qualified or good faith immunity.” Schurer v. Rhodes, supra. The purpose of granting qualified immunity or “good faith” immunity is an attempt to balance competing interests between the need to protect officials in the exercise of their discretion and the rights of citizens. Butz v. Economou, 438 U.S. 478 (1978).

The defense relied upon in the present case was primarily that of qualified immunity. The law of qualified immunity has recently been reshaped in Harlow and restated in Mitchell. The Mitchell case states:

[T]his Court purged qualified immunity doctrine of its subjective components and held that ‘government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’
Qualified immunity, similar to absolute immunity, is an entitlement not to stand trial under certain circumstances. Such entitlement is an immunity from suit rather than a mere defense to liability; and like absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of the denial of absolute immunity indicates that the denial of qualified immunity should be similarly appealable under the “collateral order” doctrine; in each case, the district court’s decision is effectively unreviewable on appeal from a final judgment. The denial of qualified immunity also meets the additional criteria for an appealable interlocutory order: it conclusively determines the disputed question; and it involves a claim of rights separable from, and collateral to, rights asserted in the action.

The Mitchell court went on to hold that the Attorney General of the United States was not entitled to absolute immunity but was entitled to qualified immunity. This immunity is guaranteed so long as the actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” The Harlow court reshaped the doctrine of qualified immunity in a manner so as to allow the federal trial courts to resolve many claims by way of summary judgment. It is generally a question of law whether the conduct of the plaintiff violated clearly established law. In reaching its decision the Mitchell court took into consideration the results of subjecting government officials to either the costs of a trial or the burdens of broad-reaching discovery. The official is entitled to not stand trial or face the burdens of litigation conditioned upon the resolution of the legal question concerning whether the conduct complained about violated clearly established statutory or constitutional law. Therefore, if the trial court is unable to determine the issue as a matter of law, the official is not entitled to immunity from suit.

Officials acting within the sphere of their office are ordinarily entitled to the robe of shelter afforded by the qualified immunity doctrine. However, there is a prerequisite to such defense. The questioned activity must not be in violation of clearly established law which a reasonable person would have known. This condition does not leave officials to the mercy of litigants with frivolous or vexatious claims because such claims will be dismissed without the expense of depositions or other litigation costs. If a complaint states a cause of action which penetrates the shield of qualified immunity, it should not be summarily dismissed. If it fails to state such a cause, the official is entitled to immunity from proceeding to trial.

The Fourth Amendment to the United States Constitution provides that:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly, describing the place to be searched, and the person or things to be seized.

The Arkansas Constitution makes similar provisions in Article 2, Section 8. Without citation of additional authority we hold that the right not to be arrested without probable cause was clearly established by law at the time of arrests. This issue was properly before the trial court and was not summarily disposable in view of the allegations of the complaint.

There is no longer a subjective and objective test used to determine when qualified immunity is a valid defense. The standard now used to determine whether an official is entitled to the protection of qualified immunity is stated in Harlow as follows:

[W]e conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions generally are shielded from liability from civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Therefore, Harlow holds if the law or right which the official is alleged to have violated was clearly established at the time of the alleged violation and a reasonable person would have known about it the official is not immune from suit or liability. Until this threshold question of immunity is resolved, the official should not be put to additional costs of litigation. If the trial court determines that the law or right was clearly established the immunity should fail, since a reasonably competent public official should know the law governing his conduct. However, if the official is subsequently able to prove that he neither knew, nor should have known, of the clearly established standard, the defense should be sustained. The required proof would be based primarily upon objective factors.

The standard relating to the defense of qualified immunity was further refined in Mitchell where the procedural aspects surrounding this defense were considered. If the complaint fails to state a claim of violation of clearly established law the defense of qualified immunity is appropriate and the suit should not be allowed to proceed. On the other hand, if the complaint alleges violation of a clearly established law, the suit should continue. Should discovery fail to uncover evidence supporting the alleged violation sufficient to create a genuine issue of fact, the defendant is entitled to summary judgment. If discovery tends to support the allegations in the complaint or fails to disprove them, the matter must be resolved by the trier of fact.

If the allegations in the present complaint are taken as true, the appellants would have been expected to know that their conduct violated clearly established statutory or constitutional rights. At this stage of the proceedings we cannot say that the trial court erred in refusing to grant summary judgment in favor of the appellants. Under these circumstances the case must be remanded to the trial court for determination of factual issues relating to liability and compensatory and punitive damages.

The appellees argue on cross-appeal that the trial court should have granted a summary judgment in their favor on the issue of liability. In so arguing they rely upon Mitchell and Harlow. We do not agree with this interpretation. We revert to our general rule that failure to grant a summary judgment is not an appealable order. In this case the refusal to grant the appellees’ request for summary judgment did not determine the issue or prevent a judgment from which an appeal may be taken.

Affirmed and remanded.

Hickman, J., concurs in part and dissents in part.

Glaze, J., concurs.

Darrell Hickman, Justice,

concurring in part and dissenting in part. In my judgment the majority opinion misses the mark. I agree the order denying summary judgment should be subject to appeal; thereafter, I disagree with the opinion.

The trial judge denied summary judgment for the wrong reasons. The appellants are entitled to a judgment before trial as to whether they are immune from suit. Mitchell v. Forsyth, 472 U.S. 511 (1985). In consideration of that judgment, the question is: did the appellants’ conduct violate clearly established statutory or constitutional rights? The appellants arrested the appellees without a warrant. As every peace officer knows, a person can be arrested for a felony without a warrant if there is “. . . reasonable cause to believe such person has committed ... a felony.” A.R.Cr.P. Rule 4.1. That means the appellants did not violate statutory or constitutional standards unless reasonable cause did not exist. That is the question the trial court should address, before trial; in this case through a motion for summary judgment. If the facts are virtually undisputed, he should rule. If not, it goes to the jury. We do not have a decision on the question, and the trial should not proceed until it is decided on the proper basis.


author: David Newbern, Justice.

text:
    STATE OF IOWA, ex rel. IOWA DEPARTMENT OF SOCIAL SERVICES v. Gladys REYNOLDS
    86-196
    725 S.W.2d 847
    Supreme Court of Arkansas
    Opinion delivered March 16, 1987

      Richard B. Dahlgren, Child Support Enforcement, for appellant.

      Brazil, Clawson & Adlong, by: William Clay Brazil, for appellee.
   David Newbern, Justice.

This is an appeal from denial of the appellant State of Iowa’s petition for reimbursement for money paid for support of the appellee Gladys Reynolds’s children. The appellant also appeals from denial of an order seeking continuing support payments by the appellee. We hold that appellee has an obligation to support her children and to reimburse the appellant for the support it has rendered them. Thus we reverse the chancellor’s ruling and remand the case for further proceedings.

The appellant presented evidence in the form of a certificate from an Iowa district court invoking the provisions of the Revised Uniform Reciprocal Enforcement of Support Act, Ark. Stat. Ann. §§ 34-2401 through 34-2442 (Supp. 1985). The documents attached to the certificate showed that from December 1, 1983, through May of 1984 the State of Iowa had expended $3,612 in the form of “ADC” payments for “these children.” The affidavit of Susan Geffe, a representative of Iowa Social Services, shows that ADC payments in the amount of $516 per month were made to five children living in the home of the appellee’s ex-husband in Iowa. Three children of the appellee and her ex-husband were named in the affidavit as being among those who received the payments. No testimony was presented by the appellant.

The appellee testified that she and her ex-husband were divorced in 1980, and he was given custody of their three children. She testified that only her youngest daughter continues to reside with her ex-husband, his wife, and their children. Her two older children named in the documents accompanying the petition had, she said, moved out, apparently not long before the hearing which was held October 30, 1984.

The appellee testified further that she had remarried, that her second husband was disabled but drawing social security and Veterans Administration benefits, and that her new husband’s two adult children were living with them here in Arkansas. She said she was earning a minimum wage of $3.35 per hour and bringing home about $220 every two weeks which, combined with her husband’s income, gave them about $1,100 per month. She testified her husband’s two sons had recently become employed, also at minimum wage, but that they did not contribute to household expenses.

The appellee testified that, to her personal knowledge, her ex-husband was not working although he was perfectly capable of doing so.

At the conclusion of the hearing the chancellor ruled as follows:

I’m going to deny the petition. I’m not going to require the mother to send any money up to the State of Iowa. I just have something against making women pay child support. I’ve done it once or twice, but she’s making minimum wage and she’s got a disabled husband. I’m not going to impose that burden on her.

Our decision in Barnhard v. Barnhard, 252 Ark. 167, 477 S.W.2d 845 (1972), left no doubt that a mother has an obligation to support her children. This court is not unique in reaching that conclusion. See Annot. 98 A.L.R. 3d 1146 (1980). The fact that the appellee was earning only minimum wage has no bearing on the subject, except perhaps as it may influence the amount she should contribute rather than her obligation to do so. Nor is her new husband’s disability relevant to the existence of her obligation.

Although he did not use it as a reason in his stated ruling quoted above, recorded colloquy between the chancellor and the appellee suggests he gave weight to her testimony about her ex-husband’s unwillingness to work and unwillingness to support the children. When this case is reconsidered, the ex-husband’s unwillingness to support the children should not be a considerable factor. Even if the appellee had an affirmative defense to liability to support her children, that would be a collateral matter not to be considered in a R.U.R.E.S.A. proceeding. Paredes v. Paredes, 118 Ill. App. 3d 27, 454 N.E. 2d 1014 (1983); State of Iowa, ex rel. Cantrell v. Cantrell, 9 Ohio App. 3d 194, 459 N.E.2d 242 (1983).

Section 34-2408 provides that a state may seek both reimbursement for support provided and continuing support. The appellant will be obliged to show clearly the amount expended for support of the appellee’s children, and the chancellor will then have to decide on a reimbursement schedule as well as a continuing support payment.

Although we try to make our own determination and resolve chancery cases without remand when the record is complete, we cannot do so here. First, it is unclear how much was expended for support of the appellee’s children at the time the petition was filed. Second, it has been almost two and a half years since the hearing was held. The hearing occurred on October 30, 1984. The trial court gave the appellant until August 1, 1985, to docket the appeal. The case was originally appealed to the court of appeals and was ready for submission in November of 1985. It was not certified by the court of appeals to the supreme court until September 4,1986. So much time has passed since the matter was heard by the chancellor, we have no idea what conditions now prevail. The matter of the amount to be paid by the appellee for continuing support will have to be established by the chancellor applying the criteria stated in Barnhard v. Barnhard, supra.

Reversed and remanded.


author: Tom Glaze, Justice.

text:
    Greg DUNN v. Angela DAVIS
    86-205
    725 S.W.2d 853
    Supreme Court of Arkansas
    Opinion delivered March 16, 1987

      W.P. Switzer, for appellant.

      Johnson & Harrod, by: William E. Johnson, for appellee.
   Tom Glaze, Justice.

This appeal arises out of a paternity action. Appellee filed a complaint in bastardy on July 29, 1983, alleging that appellant was the father of her child. The county court determined appellant was the father, and this decision was affirmed by the circuit court upon a de novo hearing on September 25,1985. For reversal, appellant contends the trial court erred by (1) permitting appellee to testify to a sexual relationship with appellant, (2) introducing the results of a blood test by affidavit, (3) refusing his demand for a jury trial, and (4) permitting appellee to receive child support pending this appeal. We hold the trial court was correct, and, therefore, affirm.

Appellee conceived a child sometime at the end of September or beginning of October 1979, during her senior year in high school. In December 1979, she married a Sammy Nalley. They separated after approximately three months and were divorced in June 1980. On July 7,1980, appellee gave birth to a son. At trial, appellee testified that, at the time of conception, she was dating and having sexual relations exclusively with appellant. She said it was after she was pregnant with appellant’s child that she dated and married Sammy Nalley. This testimony, appellant contends, was incompetent because it tended to bastardize appellee’s child born out of a marriage to another person.

Appellant bases his contention on the long-standing common law rule known as Lord Mansfield’s Rule, which was articulated in 1777: “[T]he declarations of a father or mother, cannot be admitted to bastardize the issue born after marriage.” Goodright v. Moss, 2 Cowp. 291, 98 Eng. Rep. 1257 (1777). This rule has long been recognized in Arkansas. Spratlin v. Evans, 260 Ark. 49, 538 S.W.2d 527 (1976); Bankston v. Prime West Corp., 271 Ark. 727, 601 S.W.2d 586 (Ark. App. 1981); Wright v. Vales, 1 Ark. App. 175, 613 S.W.2d 850 (1981); Lakey v. Lakey, 18 Ark. App. 182, 712 S.W.2d 663 (1986). Appellant further notes the presumption of legitimacy of children born during the wedlock of two persons, Jacobs v. Jacobs, 146 Ark. 45, 225 S.W.2d 22 (1920), which is rebuttable only by the strongest type of conclusive evidence such as incompetency of the husband or non-access between the parties. Spratlin, supra.

The short answer to appellant’s argument, of course, is that neither the Lord Mansfield’s Rule nor the foregoing legitimacy presumption applies because the child involved here was not born during appellee’s marriage to Nalley. Because the child was born out of wedlock, the court did not err in admitting appellee’s testimony into evidence.

For his second point, appellant first argues the blood tests were not ordered in compliance with Ark. Stat. Ann. § 34-705.1 (Supp. 1985). Section 34-705.1 provides that “tests shall be made by a duly qualified physician, or physicians, or by another duly qualified person or persons, ... to be appointed by the court." (Emphasis supplied.) Here, the court ordered the parties to make themselves available for blood tests to be taken at Drew Memorial Hospital, with appellant making arrangements for the date and time. Neither the abstract nor the record reflects appellant’s objection, now argued on appeal, that the court violated § 34-705:1 by failing to appoint or designate an expert. Accordingly, we need not reach this issue since we do not permit a party to raise a new theory of the case on appeal. Ausburn v. Ausburn, 271 Ark. 330, 609 S.W.2d 14 (1980).

Appellant also argues that, because the results of the blood test were submitted by affidavit, he was denied the opportunity to cross-examine the paternity evaluator. Prior to trial, appellant objected to the introduction of the blood test results by affidavit. The trial court admitted the affidavit pursuant to the provisions of § 34-705.2(A) (Supp. 1985). Section 34-705.2(A) further provides that if either party wants to question the expert about the blood tests, the party shall have him subpoenaed within a reasonable time before trial. Appellant made no attempt to subpoena the lab technician who compiled the test results. In fact, the court, at the end of the trial, agreed to hold the record open should appellant decide to cross-examine the evaluator, but appellant failed to do so. Although he now complains that he was denied the opportunity, such clearly was not the case.

Thirdly, appellant contends that whether he is the father of the child is an issue of fact, which entitles him to a jury trial under Ark. Stat. Ann. § 27-1704 (Repl. 1979). He also cites Waddell v. State, 235 Ark. 293, 357 S.W.2d 651 (1962) in support of his contention. We disagree. Our General Assembly enacted Act 559 of 1983, compiled as Ark. Stat. Ann. § 34-701.1 (b) (Supp. 1985), which specifically provides that an appeal from any decision of a bastardy referee is taken to the circuit court, and there, a “trial de novo without jury” is conducted by the judge of the circuit court. That law is controlling in this case.

Appellant also alludes to his purported constitutional right to a jury trial, but we hold that in bastardy cases there is no such right under either article 2, section 7 of the Arkansas Constitution or the seventh amendment to the United States Constitution. We have held that the constitutional right to trial by jury does not secure the right in all possible instances but only in those cases that were so triable at common law. Colclasure v. Kansas City Life Insurance Co., 290 Ark. 585, 720 S.W.2d 916 (1986); Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979). Bastardy proceedings did not exist at common law, Waddell v. State, supra, and this proceeding is a statutory one which is not in the nature of a suit at common law. Our legislature has provided that trials in bastardy proceedings in circuit court be conducted without a jury, and we hold that law is constitutional. Accord Cornish v. Smith, 97 Idaho 89, 540 P.2d 274 (1975); State ex rel. Wingard v. Sill, 223 Kan. 661, 576 P.2d 620 (1978); Smeido v. Jansons, 23 A.D.2d 796, 259 N.Y.S.2d 169 (1965); Commonwealth v. Dillworth, 204 Pa. Super. 420, 205 A.2d 111 (1964); State ex rel. Goodner v. Speed, 96 Wash.2d 838, 640 P.2d 13 (1982).

Finally, appellant urges the trial court erred in permitting appellee to receive child support during the pendency of this appeal. He submits that, until a final determination of liability has been made, child support should not be recoverable in a bastardy proceeding on appeal. Appellant offers no citation of authority to support this argument, nor does the abstract of record reflect a hearing at which this issue was presented or argued to the trial court. Accordingly, we are unable to consider the issue on appeal. Millsap v. Lane, 288 Ark. 439, 706 S.W.2d 378 (1986); Hill v. Bentco Leasing, Inc., 288 Ark. 623, 708 S.W.2d 608 (1986).


author: Tom Glaze, Justice. John I. Purtle, Justice,

text:
    R.B. SMITH v. STATE of Arkansas
    CR 86-172
    725 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered March 16, 1987

      Thomas E. Brown, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was charged, along with John Moss and Ralph Bussard, with capital murder and criminal attempt capital murder in connection with the killing of Arthur Garner and shooting of Florence Garner, during a robbery of the Garners’ motel in Hardy, Arkansas on August 28, 1981. Appellant pled guilty to the reduced charge of first degree murder and criminal attempt capital murder and was given respective sentences of life imprisonment and a concurrent term of fifty years. Nearly three years later, appellant filed this action for post-conviction relief under A.R.Cr.P. Rule 37, which the trial court denied without an evidentiary hearing. On appeal, he claims the court erred in finding (1) he properly was denied a hearing, (2) his guilty plea was intelligently and voluntarily given and (3) he had competent and effective counsel.

Trial courts are authorized to deny post-conviction relief without an evidentiary hearing if the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief. A.R.Cr.P. Rule 37.3(a). Appellant’s claim to entitlement of an evidentiary hearing is premised largely upon his contention that his guilty plea was not voluntarily entered. We find no merit in that contention.

At the plea proceeding, the trial judge meticulously followed Rule 24, which sets forth the standards governing a court’s receipt of a guilty plea. In particular, the judge personally addressed and informed the appellant concerning the nature of the charges against him, the mandatory minimum and maximum possible sentences if convicted — as a habitual offender — of those charges, and the waiver of his right to a jury trial and to be confronted with witnesses, if he pled guilty. See A.R.Cr.P. Rule 24.4. Pursuant to A.R.Cr.P. Rule 24.5, the judge also determined that appellant’s tendered plea was the result of a plea agreement, and the judge, by addressing the appellant personally, found the appellant’s plea was not induced by any force, threats or promises apart from the plea agreement. Appellant complains, however, that the trial judge failed to make personal inquiry of appellant in order to establish that there was a factual basis for his plea.

While the trial court must determine if a defendant’s plea is voluntarily proffered and there is a factual basis for it, we have no rule that the factual basis must be furnished by the defendant. See A.R.Cr.P. Rule 24.6. We have, however, held that the court must ask the defendant if he did the things of which he stands accused and is pleading guilty because he is guilty. McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613 (1986). Here, the prosecutor recited, in detail, the underlying facts of the crimes with which appellant and his accomplices were charged, and appellant admitted his guilt. The judge, having complied with the dictates of Rule 24, correctly received and acted upon appellant’s plea of guilty.

Next, appellant argues his petition conclusively showed he was denied effective assistance of counsel. Specifically, he claims his appointed counsel failed to investigate the facts of the case or to interview certain witnesses who would substantiate his alibi defense. In support of this claim, appellant attaches to his Rule 37 petition two affidavits signed by John Moss and a Bobbie Fenimore, attesting they saw appellant in Springfield, Missouri after 7:30 p.m. on August 28,1981, the day the crimes occurred in Hardy, Arkansas. Moss, as already noted, was charged with these same crimes. But regardless of any interests Moss might harbor in giving an affidavit, neither his nor Fenimore’s proffered testimony helps appellant’s cause, because the Arkansas crimes occurred early enough in the day of August 28 to have permitted appellant’s return to Springfield by the time he was seen by these witnesses. Although the exact time of day the crimes were committed is not reflected in the record, Ralph Bussard, the other person charged with the crimes, was interviewed by a Missouri police officer at 4:55 p.m., on August 28, after Bussard had been shot and when he was being treated at St. John’s Hospital in Springfield. Obviously, neither Moss’s nor Fenimore’s statement suffices to establish appellant’s presence in Missouri during the morning or early afternoon of August 28 when the crimes took place in Arkansas.

With the exception of the aforementioned assertion that his counsel was ineffective for failing to interview certain alibi witnesses, appellant offers nothing but vague and bare conclusions in support of his argument of ineffective assistance of counsel. There is a presumption that counsel is competent, and the burden of overcoming that presumption is on appellant who must show more than mere errors, omissions, mistakes, improvident strategy, or bad tactics. Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). To prove ineffective assistance of counsel, appellant must establish that his counsel’s advice was not within the range of competence demanded of attorneys in criminal cases, and he must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Hill v. Lockhart, __ U.S __, 106 S.Ct. 366 (1985); Strickland v. Washington, 466 U.S. 668 (1984); and Jones v. State, 288 Ark. 375, 705 S.W.2d 874 (1986).

Appellant simply has failed to demonstrate that his decision to plead guilty was in any way affected by his counsel’s failure to make an investigation or to interview witnesses. When asked by the court if he believed any meritorious defenses could be raised if appellant’s case had gone to the jury, counsel for appellant candidly responded, “There’s always that possibility, Your Honor, at a later date for further examination that I would be making. But at the present time, I would say no.” By responding in this fashion, counsel evidenced his intention and willingness to investigate or examine appellant’s case further but “reluctantly” agreed with appellant’s decision to plead guilty. Appellant’s decision to plead was made two and one-half months after counsel initiated discovery procedures and commenced contacting witnesses. Once the decision was made to negotiate a plea, counsel’s active pursuit of contacting or interviewing possible witnesses became less imperative.

Appellant’s rights were thoroughly explained to him, including his right to subpoena witnesses in his defense. In carefully reviewing the record and arguments of counsel, we hold the appellant clearly failed to prove ineffective assistance of counsel. We believe the trial court accorded the appellant full and fair treatment of our applicable rules, to the extent constitutionally required. Therefore, we affirm.

Purtle, J., dissents in part.

John I. Purtle, Justice,

dissenting in part. I disagree with that part of the majority opinion which finds the petitionér’s allegation of ineffective assistance of counsel to be without merit. The majority seems to combine the two-pronged test on effective assistance of counsel into a single one. It appears that the opinion has the effect of saying we need only consider the second prong of the Strickland test. I do not agree with the approach taken. It is necessary to resolve the issues in the first step before reaching the second. Both must be dealt with in this case.

The allegations in appellant’s petition, if true, would, in my opinion, render counsel’s assistance ineffective. Therefore, the trial court should have held a hearing to make findings of fact. It should be remembered that the petitioner was charged with capital murder, a serious charge. The defense counsel was appointed in September, 1982. The guilty plea was entered in January, 1983. According to the allegations the appointed defense counsel made only one motion, a motion for discovery. For more than four months counsel never made investigative efforts of any kind. Additionally, the petitioner claims that counsel: (1) failed to interview any witnesses, (2) relied entirely on the prosecutor’s file, (3) did not make an inquiry concerning statements made by any witnesses, (4) failed to examine photographs or other evidence, and (5) failed to contact specific witnesses whose names and addresses had been furnished to him by the appellant. In sum and substance the allegation of the Rule 37 petition was that after counsel was appointed, he did nothing at all by way of defense, except file one motion for discovery, until the time he pled the appellant guilty.

A hearing may have resulted in a finding that part or all of the allegations were false. However, without a hearing we cannot determine the issue of effective assistance of counsel. It would have been a relatively easy matter to hold an evidentiary hearing on this limited issue.

The Sixth Amendment established the right of counsel in order to protect the fundamental rights to a fair trial. Powell v. Alabama, 287 U.S. 45 (1932). The right has been interpreted to mean a right to “effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759 (1970). Strickland holds that counsel has a duty to make a reasonable investigation or to make a reasonable decision that particular investigations are unnecessary.

Entitlement to counsel is not qualified or conditioned upon guilt or innocence. The United States Supreme Court recently stated: “The constitutional rights of criminal defendants are granted to the innocent and guilty alike.” See Kimmelman v. Morrison, 106 S.Ct. 2571 (1986). Even the guilty are entitled to a fair trial before punishment. Failure to make a timely motion may render counsel ineffective. See Kimmelman v. Morrison, supra. A motion to suppress, a motion in limine and several other motions are typical in capital murder cases. None of these motions was filed in this case, according to the allegations of the petition. From the petition one could conclude that the defense counsel merely accepted the appointment, made one motion and entered a guilty plea. That is not enough unless it can be shown that there was a valid reason for such inactivity. Without a hearing the attorney has no chance to vindicate himself if he is falsely accused.

It is impossible for me to understand how a defense in a capital murder case would not require investigation, interviews, tests, motions and other actions by the defense counsel. Certainly doing nothing is worth little more than not having counsel at all. To be effective counsel must do more than present another body to the court. A pet rock could do almost as much. An attorney cannot give informed advice without making some sort of investigation.

If a hearing on the petition had been granted, the trial court would have been in a better position to make a more sound determination of the allegations of the petition. A hearing would also have enabled us to make a more informed decision. Had the facts in the petition been determined to be true, then I believe this Court would most likely reach a different result under the second prong of the Strickland test. Under the circumstances of this case, if the allegations of the Rule 37 petition were found to be true, I am of the opinion that the voluntary plea probably would not have been entered. Therefore, the second prong of Strickland is met.

I would remand to the trial court for a determination of the facts concerning the efforts of defense counsel in this case.

       Actually, Fenimore said she did not see appellant until 9:00 p.m. on August 28, while Moss indicated he last saw appellant between 7:30 and 8:00 p.m. on that night.


author: Per Curiam.

text:
    Allen Edward JACKSON v. STATE of Arkansas
    725 S.W.2d 573
    Supreme Court of Arkansas
    Opinion delivered March 16, 1987

      Joel W. Price, for appellant.
    No response.
   Per Curiam.

Appellant, Allen Edward Jackson, by his attorney, has filed for a rule on the clerk.

His attorney, Joel W. Price, admits that the notice of appeal was not timely given due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Sam A. ELARDO and Edward RICHMOND v. Mike TAYLOR
    86-221
    726 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered March 23, 1987
    [Rehearing denied April 27, 1987.]

      W. Frank Morledge, P.A., for appellants.

      Daggett, Van Dover, Donovan & Cahoon, by; Jimason J. Daggett, for appellee.
   Jack Holt, Jr., Chief Justice.

Appellants, Sam Elardo and Edward Richmond, and appellee, Mike Taylor, were jointly and severally liable to First National Bank for a $53,146.43 judgment entered on a promissory note they had given the bank. Taylor paid the judgment in its entirety, received a court order assigning the judgment from the bank to him, and began executing on the judgment against the appellants. The appellants made a motion to the trial court to stay execution and, ultimately, to vacate the judgment, because of continuing legal controversies between the appellants and Taylor arising from the same transaction, which they argued could provide a defense to the judgment. The trial court denied the motion, holding the assignment was valid under Ark. Stat. Ann. § 29-123 (Repl. 1979). The court stated, however, that it would grant a hearing on any defenses the appellants could assert to Taylor’s enforcement of the judgment. Because the order is not a final appealable order under Ark. R. App. P. 2, we dismiss the appeal.

“It is well established that before a judgment is final and appealable it must dismiss the parties from the court, discharge them from their action or conclude their rights to the subject matter in controversy.” McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982). See Ark. R. App. P. 2(a)(2).

The appellants are not appealing from the judgment itself as entered in favor of First National Bank, but from the denial of the motion to set aside the assignment of the judgment. The assignment is only part of an ongoing lawsuit between these parties stemming from the dissolution of the corporation created by Taylor and the appellants. The appellants also have a petition for judgment pending against Taylor in the same case and involving the same transaction. For these reasons, and because the trial court said it would hear any defenses the appellants had to the judgment, the order is not final and appealable.

Appeal dismissed.