text:
    Byron HOOPER v. STATE of Arkansas
    CR 91-232
    842 S.W.2d 850
    Supreme Court of Arkansas
    Opinion delivered November 23, 1992

      David C. Schoen, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is an appeal from the appellant’s conviction of possession of a controlled substance and intent to deliver and conspiracy to deliver a controlled substance. The state alleged that the appellant, who resided in Dallas, Texas, was operating a drug ring in El Dorado selling crack cocaine. Appellant was sentenced as a habitual offender on the possession conviction and received a life imprisonment sentence. For the conspiracy to deliver conviction, he received a sentence of fifty years imprisonment. As his sole issue on appeal, the appellant argues that the trial court erred in admitting into evidence wire transfer record and telephone records showing transactions occuring between Dallas and El Dorado under the business record exception (A.R.E. Rule 803(6)) to the hearsay rule. We affirm.

First, we summarily dismiss the appellant’s argument that the trial court erred in admitting the telephone records because the appellant failed to make a specific objection to preserve his argument on appeal. Below, the appellant objected to the admission of the telephone records on the grounds that they were not authenticated. Now, on appeal, the appellant argues that the telephone records are hearsay and do not fit under the business record hearsay exception. This court has repeatedly held that in order to preserve an issue for appellate review, the objection below must be specific enough to apprise the trial court of the particular error about which appellant complains. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992). Furthermore, a party cannot change the ground of objection from the one made at trial to a different one on appeal. Harrison v. State, 303 Ark. 247, 796 S.W.2d 329 (1990).

Appellant did properly object to the admittance of the wire transfer records by arguing that they were hearsay, which the prosecution rebutted by contending that they fit under the business record exception, Rule 803(6). The business record exception to the hearsay rule has been interpreted as having seven requirements, which includes the requirement that the information be shown by the testimony of the custodian or other qualified witness. A.R.E. Rule 803(6); Terry, 309 Ark. 64, 826 S.W.2d 817. Here, the prosecution admitted twelve Western Union wire transfer documents through the testimony of the individuals who received or sent the wire transfers of money. Appellant argues that these individuals were not proper to lay the foundation for the business record exception.

While we may agree with the appellant’s argument, the appellant has failed to show prejudice. Officer Eddie Davis testified that he had been involved as an investigator of the Byron Hooper organization. Alice Stitt, appellant’s girlfriend, was arrested by the police and gave a statement about how the drug ring operated and the people involved. Officer Davis testified that Stitt told them that there was a hookup through her to get the drugs and money from El Dorado to Dallas. Communication was made to appellant through a three-way call set up by Stitt. Officer Davis testified that Stitt gave the police information about wire transfers made out of Western Union. Specifically, he stated, again with no objection, that the police department recovered two wire transfers from Katrina Daniels to Alice Stitt for $1600 and $650. Katrina Davis was connected to appellant’s organization through Stitt. Again, there was no objection to Officer Davis’s testimony which illustrated how the whole drug ring operated.

This court has held that where similar evidence was previously admitted without objection, the admission of later testimony on the same subject was not prejudicial. HCA Health Services v. National Bank of Commerce, 294 Ark. 525, 745 S.W.2d 120 (1988). Similarly, we have refused to find prejudicial error where the evidence erroneously admitted was merely cumulative. See Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988); Snell v. State, 290 Ark.503, 721 S.W.2d 628 (1986). The appellant has failed to meet his burden to demonstrate prejudicial error. Snell, 290 Ark. 503, 721 S.W.2d 628. As this court has repeatedly held, we do not reverse for trial error in the absence of prejudice. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).

Pursuant to Ark. Sup. Ct. R. 11(f), the record has been examined, and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error. For the reasons stated above, we affirm.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Tommy ICE v. Burl BRAMLETT
    92-599
    842 S.W.2d 29
    Supreme Court of Arkansas
    Opinion delivered November 23, 1992

      Mays & Crutcher, P.A., by: Arkie Byrd, for appellant.

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellee.
   Donald L. Corbin, Justice.

This appeal involves one of two cases consolidated for all purposes, including discovery and trial, pursuant to ARCP Rule 42(a). Both cases arose out of an automobile collision occurring shortly after noon on June 2,1990, at the intersection of Main and Roosevelt Streets in Little Rock, Arkansas. Appellant, Tommy Ice, was a passenger in a vehicle driven by James Lee Williams. In separate actions, both appellant and Williams sued the driver of the other car, appellee Burl Bramlett. Both cases were tried together before a jury which returned verdicts for the defendant in both cases. Only appellant Ice appeals the judgment entered in accordance with the verdicts. As his sole point for reversal, appellant contends the trial court erred in excluding evidence relating to a traffic citation issued to appellee for his actions in the accident in question. We find no merit to appellant’s argument and affirm the judgment.

The trial court granted appellee’s motion in limine to exclude any testimony concerning whether anyone had received a traffic citation in association with the accident in question and the outcome of any such citation. Appellant contends that appellee received a citation for running the red light at the scene of the accident, that appellee pled guilty to such citation, and was placed on probation. Appellant further,contends this alleged guilty plea is an admission against appellee’s interest and therefore should have been admissible in the trial below. Appellant relies heavily on Dedman v. Porch, 293 Ark. 571, 575, 739 S.W.2d 685, 687 (1987), which holds that “the only proper evidence relating to a traffic violation conviction is a party’s plea of guilty in open court.” There was evidence from which the jury could have concluded, and apparently did so conclude, that appellee did not run a red light. Thus, argues appellant, the trial court’s exclusion of appellee’s alleged guilty plea was prejudicial to appellant and reversible error.

To support his claim that appellee pled guilty to the citation, appellant points to the testimony of Mr. David Ogden, Chief Probation Officer of Little Rock Municipal Court, Traffic Division. Mr. Ogden appeared in the trial court’s chambers with a copy of a “probation contract” bearing the signature of one “Burl H. Bramlett.” Mr. Ogden testified to the following concerning the probation procedure used in the municipal court:

THE WITNESS: Okay. A typical situation, they would come to the cashier’s window to pay the ticket. The cashier will ask them, “How many tickets have you had? You might qualify for probation,” to try and give them a break, instead of paying the ticket out right, to pay a probation fee and go on the probation contract for six months or a year, depending on —
THE COURT: Is that in lieu of paying the ticket?
THE WITNESS: Yes sir. It’s a $50.00 probation fee in lieu of paying the fine. We keep it held in our files during the time period, either six months or a year. It does not go on the state driving record during that time period unless he violates probation during the time period.
I have the defendant read the contact [sic] and I explain it to him and at the same time say, “You are pleading guilty to whatever the charge is,” whether it’s speeding or [a] stop sign or whatever it is, and it is a plea of guilty to go on the program. They’re either found guilty at trial in Judge Watt’s court itself or —
THE COURT: Let’s say that wasn’t done in this case. There was no he never he never saw Judge Watt. [Emphasis added.]
THE WITNESS: Well, I’m saying it happens one of two ways.
THE COURT: Okay. Well, it didn’t happen the second way, so let’s talk about the first way. [Emphasis added.]
THE WITNESS: Okay. Well, the contact [sic] says plead guilty or upon a finding of guilt. That’s what I was trying to say that the contract says.
THE COURT: Well, how does he plead guilty? How do you plead guilty in this thing?
THE WITNESS: Well, Judge Watt lets us take this as a guilty plea —
THE COURT: What do you mean, Judge Watt lets you take a guilty plea? How does he let you take a guilty plea?
THE WITNESS: Well, if you walk up —
THE COURT: What do you do to take a guilty plea?
THE WITNESS: If you just walk up to the cashier’s window and pay it, that’s an admission of guilt. I mean, you’re paying the ticket out right without going to court or
THE COURT: So you treat this the same as paying a fine as far as pleading guilty?
THE WITNESS: Yes, sir, pleading guilty to go on probation.
THE COURT: The difference is, in your mind, between paying a fine and going on probation. Is that the only difference?
THE WITNESS: As far as the guilty plea, yes, sir. You plead guilty, you pay a $50.00 probation fee, you have a chance to keep it off your record after a six-month time period. In this case, it was a six-month time period.
THE COURT: How does the judge’s signature end up on this [probation contract]?
THE WITNESS: He signs those at the beginning of the day so we can use these without disturbing him in court on each and every case. He set up this procedure —
THE COURT: It’s signed before this man even came in?
THE WITNESS: Yes, sir.
THE COURT: I’m not going to allow it.
THE WITNESS: Okay.
THE COURT: If it’s that easy to plead guilty and hold a man by his statement, I don’t see any difference between that and paying a ticket, and I’m not criticizing you.
THE WITNESS: I understand.
THE COURT: I’m just saying we’re talking about a whole different issue of getting before a jury and saying, this man knowingly pled guilty in court, I don’t think he did that.

Appellee points out that the foregoing testimony was proffered in chambers by plaintiff Williams, not by appellant. Appellee claims that because appellant did not proffer Ogden’s testimony, appellant cannot now claim it was error to exclude his testimony. The record reveals that while some witnesses were called on behalf of Williams alone and other witnesses were called on behalf of appellant alone, Mr. Ogden was called on behalf of “the plaintiffs” in chambers and out of the hearing of the jury. However, whether it was Williams or appellant who actually proffered Mr. Ogden’s testimony into evidence is of no consequence since “[w]e have already seen that consolidated cases must be viewed as a whole, that each plaintiff may claim the benefit of testimony introduced by others.” Derrick v. Rock, 218 Ark. 339, 344-45, 236 S.W.2d 726, 729 (1951), cited with approval in Southern Nat’l Ins. Co. v. Williams, 224 Ark. 938, 277 S.W.2d 487 (1955).

On the merits of appellant’s claim, appellee argues that the municipal court’s probation procedure does not include a plea of guilty “in open court,” and therefore is not admissible in a civil trial. Appellee also relied on Dedman, 293 Ark. 571, 739 S.W.2d 685, as well as Ark. Code Ann. § 27-50-804 (1987). In the alternative, appellant argues that even if we find appellee did not make a guilty plea in open court, evidence of the citation and probation should be admissible simply as a statement against interest.

Section 27-50-804 provides that “[n]o record of the forfeiture of a bond or of the conviction of any person for any violation of this subtitle shall be admissible as evidence in any court in any civil action.” We have stated that a plea of guilty is an admission against interest and is therefore admissible in a civil trial. Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S.W.2d 869 (1968). When interpreting the section 27-50-804’s predecessor, we have held that “the only proper evidence relating to a traffic violation conviction is a party’s plea of guilty in open court.” Dedman, 293 Ark. 571, 739 S.W.2d 685.

We observe the absence of any evidence in the record indicating that appellee actually received a traffic citation or that it was his signature on the probation contract proffered into evidence. Mr. Ogden’s testimony was proffered in chambers and the trial court then granted appellee’s motion in limine; thus, even though appellee did testify at the close of the case, his testimony was necessarily silent regarding any traffic citation or probation. At the in-chambers discussion, there was some indication by counsel that appellee gave a deposition in which he stated that he pled guilty to a citation. However, no such deposition was proffered into evidence. There is also a lack of evidence indicating that appellee ever appeared before the municipal judge, or that he appeared in any hearing or formal activity in which the municipal court conducts business.

The record does contain the probation contract allegedly signed by appellee stating that “ [h] aving plead [sic] guilty or upon a finding of guilt ... I have been advised in open court . . . that I have been placed on unsupervised probation for a period of six months.” The contract is ambiguous as to whether the person signing it pled guilty or was found guilty. This ambiguity, especially when considered with the lack of evidence indicating appellee had actually received a citation, signed the contract, and appeared before the municipal judge, renders the contract insufficient to support a finding that appellee entered a guilty plea in open court..

Therefore, due to the lack of evidence connecting appellee with the citation and probation, we hold consistently with Dedman, 293 Ark. 571, 739 S.W.2d 685, and section 27-50-804, that any evidence of the citation allegedly issued to appellee and any evidence of his alleged probation in municipal court was not a guilty plea made in open court nor an admission against interest and was therefore properly excluded by the trial court.

As an aside, appellant claims the trial court erroneously judged the validity of the municipal court’s probationary procedure. We disagree that the trial court’s order had the claimed effect and state that our decision does not either.

The judgment is affirmed.


text:
    Nell OLMSTEAD v. Don MOODY, d/b/a/ Moody’s Pharmacy
    92-667
    842 S.W.2d 26
    Supreme Court of Arkansas
    Opinion delivered November 23, 1992

      Kinard, Crane & Butler, P.A., for appellant.

      Atchley, Russel, Waldrop & Hlavinka, P.A., by: Alan Harrel, for appellee.
   Donald L. Corbin, Justice.

Appellant, Nell Olmstead, brought this action against appellee, Don Moody, for negligence. Her complaint alleged appellee was negligent in continuing to refill appellant’s prescription for Prednisone, which is a steroid, for twenty-eight (28) rtionths. Appellant alleged Mr. Moody knew, or should have known, the drug would have adverse effects on the health and well-being of appellant, and he knew the drug could not be refilled without specific authorization from a physician. Appellant also asked for punitive damages alleging appellee or his agents or employees added the code “PRN,” which indicates that the prescription may be refilled without further orders from the physician, to the prescription and that the addition of that code constitutes intentional and willful conduct on the part of appellee.

A jury trial was held and the jury found both appellant and appellee were negligent and that each of their negligence was a proximate cause of appellant’s injuries. The jury further apportioned responsibility for appellant’s injuries and damages fifty percent (50 %) to appellant and fifty percent (50 %) to appellee. Consistent with the assessment of liability, the jury awarded appellant no compensatory damages, but awarded punitive damages to appellant in the amount of twenty-seven thousand dollars ($27,000.00). Since there was no award of compensatory damages, judgment was entered for appellee, which was correct according to our decisions in this area. See Williams v. Carr, 263 Ark. 326, 565 S.W.2d 400 (1978); see also Hale v. Ladd, 308 Ark. 567, 826 S.W.2d 244 (1992); Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559.(1988).

Appellant moved for a new trial contending the jury verdict was clearly against the preponderance of the evidence. The trial court did not rule on the motion for a new trial within thirty (30) days and it was deemed denied pursuant to operation of law. Ark. R. App. P. 4(c). On appeal, appellant contends the trial court erred in failing to grant a new trial pursuant to Ark. R. Civ. P. 59. We have jurisdiction pursuant to Ark. Sup. Ct. R. 29(l)(o).

Appellant’s sole argument on appeal is that the trial judge erred in refusing to grant a new trial. The real issue underlying this argument is that the jury was wrong in its assessment of fault. See Hodges v. Jet Asphalt, 305 Ark. 466, 808 S.W.2d 775 (1991).

“[W]e do not review an apportionment of comparative negligence if fair minded men might differ about it (which is essentially the same test as that of substantial evidence).” Johnson v. Cross, 281 Ark. 146, 148, 661 S.W.2d 386, 387 (1983). In determining whether there is substantial evidence to support the verdict, we look at the evidence most favorable to the appellee, giving appellee the benefit of all reasonably permissible inferences. Johnson v. Clark, 309 Ark. 616, 832 S.W.2d 254 (1992). “Only when there is no reasonable probability that the incident occurred according to the version of the prevailing party or where fair-minded persons can only draw a contrary conclusion” will a jury verdict be disturbed. Id. at 618, 832 S.W.2d at 254.

Appellant argues that since the jury found appellee was reckless when they awarded punitive damages and only found appellant was negligent, they could not possibly have attributed responsibility for appellant’s injuries 50/50 since recklessness is a higher standard than negligence. Appellant is correct that recklessness is a higher standard than negligence, but what appellant fails to note is that the jury was not asked to decide whether appellant was reckless. A finding of negligence does not necessarily preclude a finding of recklessness. In the absence of an interrogatory to the jury asking the jury to state whether they found appellant was reckless, we cannot say the jury found appellant was negligent, but not reckless. The jury could have determined appellant was both negligent and reckless as they did with appellee. In this situation, a finding of 50 % responsibility for appellant would have been justified.

The jury “is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached.” Takeya v. Didion, 294 Ark. 611, 613, 745 S.W.2d 614 (1988) (emphasis theirs) (quoting Morton v. American Medical Int’l, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985)). Looking at the evidence most favorable to appellee with the benefit of all reasonably permissible inferences, there was evidence appellant continued taking Prednisone for twenty-eight (28) months without consulting Dr. Williamson, who originally prescribed it for her. There was also evidence from which the jury could infer Dr. Williamson informed appellant that Prednisone was a steroid, explained the use and effect of the drug to appellant, and informed appellant she should only be taking Prednisone for fourteen (14) days and the prescription was not refillable. There was evidence that appellant had gotten a prescription from another doctor, Dr. Farmer, which she was supposed to take for only six months and had refilled that prescription for more than a year after she was supposed to have stopped using it. Appellant did not inform her family doctor, Dr. Farmer, that she was taking Prednisone for over two years even though she was taking it on a daily basis and was seeing him frequently during that time for other medical problems. Appellant had self-medicated in the past and Dr. Farmer had previously warned appellant that she should not self-medicate. This constitutes substantial evidence from which the jury could have found appellant was fifty percent (50 %) responsible for her own injuries.

Appellant also contends “there was uncontroverted, unrefuted and unchallenged evidence as to compensatory damages” and it was, therefore, error for the jury to assess appellant’s damages at zero. While there was evidence appellant suffered some damages due to her extended use of steroids, appellant’s own physician, Dr. Farmer, testified that many of the complaints appellant attributed to the prolonged steroid use could have occurred even in the absence of the steroid use. Appellant argues the holding of Hale v. Ladd, 308 Ark. 567, 826 S.W.2d 244 (1992), requires reversal. In Ladd, there was unrefuted evidence the plaintiff suffered pecuniary damage attributable to the defendant’s actions. The jury found plaintiff suffered no compensatory damages, but awarded punitive damages in the amount of $7,500.00. The judge vacated the award of punitive damages and entered judgment for the defendant. We reversed for a new trial finding the verdict was not based on substantial evidence. Ladd is distinguishable because in Ladd the plaintiffs negligence was not in issue. Here, the jury found appellant and appellee equally responsible and a plaintiff is unable to recover compensatory damages when the plaintiff is equally at fault with the defendant. The jury’s finding that no compensatory damages were incurred by appellant in this case, even if not technically correct, reached the correct result. The jury had properly been instructed appellant would recover nothing if the jury attributed fault equally.

The denial of the motion for a new trial was correct.

Affirmed.


text:
    C. E. WOOD v. Floy WHITE
    92-681
    842 S.W.2d 24
    Supreme Court of Arkansas
    Opinion delivered November 23, 1992

      Odell Pollard, P.A., by: Margaret Meads, for appellant.

      Harkey, Walmsley & Blankenship, by: Leroy Blankenship, for appellee.
   Donald L. Corbin, Justice.

Appellant, C.E. Wood, appeals a judgment of the Cleburne Circuit Court awarding appellee, Floy White, $15,000.00 compensatory damages and $15,000.00 punitive damages on her claim for assault, battery, and trespass. For reversal of the judgment entered pursuant to a unanimous jury verdict, appellant asserts four points of error in the trial, three of which have no merit. However, we find merit in appellant’s first argument and therefore reverse and remand for a new trial. At least one of appellant’s arguments involves a question in the law of torts; thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(o).

Appellant and appellee own adjoining tracts of land in Greers Ferry, Arkansas. In a separate lawsuit, appellant sued appellee to determine ownership of a particular strip of land. Appellee testified in the present suit that while the dispute on the ownership of the strip was pending, she did not even cross the strip. Once the trial court determining the dispute over the strip rendered its order stating appellee was the rightful owner of the land in question, she attempted to resume caring for the strip of property by cleaning it of debris and trash. Appellee testified to three specific altercations between her and appellant that occurred on March 11,1989, when she attempted to haul trash from the strip down toward the lake in order to burn the trash. She stated that on those three occasions, appellant cussed her while yelling that she was on his property and he meant for her to stay off of it; appellant also came onto the strip, pried appellee’s hands off of her wheelbarrow full of debris, shoved her backward, pushed her wheelbarrow over to her patio and turned it over, spilling the debris on her patio. Appellee testified that she had no way of describing her feelings on those three occasions, but that she was scared of appellant and that she was “devastated of him.” She also stated that she was still scared of appellant, that she could not and did not go onto the strip of property when she knew appellant was home, and that she did not have the expectation of being able to move about freely on her property.

The present suit consists of only four witnesses, two for each side. There is the appellee and her only corroborating witness, neighbor Ruth Gadberry, against appellant and his wife. Not surprisingly, appellant and his wife have a completely different recollection of the events of March 11,1989, than do appellee and Mrs. Gadberry. Thus, this case is an example of the proverbial “swearing match.”

Appellant’s first assignment of error is in the trial court’s ruling excluding evidence of possible bias on the part of appellee’s witness and neighbor, Ruth Gadberry. While cross-examining Mrs. Gadberry, appellant inquired whether any annoying telephone calls were made from her phone to appellant’s phone. Mrs. Gadberry responded in the negative. Appellee objected to any further cross-examination concerning phone calls on the grounds that such calls were “extraneous matters.” Despite appellant’s response that the rule excluding extrinsic evidence of misconduct did not apply to an attempt at showing bias or prejudice, the trial court sustained appellee’s objection.

Appellant was allowed to proffer the testimonies of six witnesses who were either Southwestern Bell employees or local law enforcement officers and who investigated appellant’s report of an annoying phone call. The proffered evidence reveals that appellant was receiving annoying phone calls and reported this to the telephone company; that he had the phone company place a “trap” on his phone line; that on April 13, 1989, appellant received one of the annoying calls that activated the trap; that the phone company determined the trap to have “locked” Mrs. Gadberry’s phone onto appellant’s phone on April 13,1989; that Mrs. Gadberry’s phone did not have any devices such as a “stacked drop” or “cable pair” that would have allowed some other phone to cause hers to lock onto appellant’s phone; that both Mr. and Mrs. Gadberry were home all day on April 13,1989, but their phone was not locked onto appellant’s phone when law enforcement officials investigated the complaint late in the day on April 13, 1989.

Just as he argued below, appellant argues on appeal that the foregoing evidence shows Mrs. Gadberry was biased against appellant. Mrs. Gadberry’s alleged bias is particularly relevant, argues appellant, because her testimony was the only evidence appellee offered to corroborate her own testimony.

Our law is well settled that evidence of a witness’ bias or prejudice is not a collateral matter, and if a witness denies or does not fully admit the facts claimed to show bias, the attacker has a right to prove those facts by extrinsic evidence. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). This rule of law is applied to both criminal and civil cases alike. See Edward W. Cleary, McCormick on Evidence, § 40 (3d ed. 1984).

Hostility of a witness toward a party is evidence of bias and may be shown by the fact that the witness has had a fight or quarrel with the party. Id. Certainly, the testimonies proffered by appellant show that someone at the Gadberry household made an annoying .phone call to appellant’s home. It goes without saying that annoying phone calls are usually made as a result of some animosity or hostility toward the recipient of the call. At the very least, hostility toward appellant is something the jury could reasonably infer on the part of Mrs. Gadberry or someone in her household.

The proffered testimonies were evidence of Mrs. Gadberry’s possible bias or prejudice against appellant and it was error for the trial court to prevent appellant from presenting such information to the jury. Furthermore, given the fact that Mrs. Gadberry’s testimony was appellee’s only corroborating evidence of her claim, appellant was prejudiced by the trial court’s error. We therefore reverse and remand for a new trial.


author: Robert L. Brown, Justice.

text:
    MAPLE LEAF CANVAS, INC. v. Michael ROGERS and Serena Rogers
    92-469
    842 S.W.2d 22
    Supreme Court of Arkansas
    Opinion delivered November 23, 1992

      John P. Lewis, for appellant.

      Sky Tapp, for appellee.
   Robert L. Brown, Justice.

The sole issue in this case is whether the circuit court abused its discretion in entering a default judgment against the appellant, Maple Leaf Canvas, Inc. We hold that it did not, and we affirm the judgment.

The appellees, Michael Rogers and Serena Rogers, reside in Hot Springs in Garland County, and Maple Leaf does business in North Little Rock in Pulaski County. In April 1989, Maple Leaf sold a 175-foot canvas canopy to the appellees. That canopy developed problems and was replaced under warranty a year later by the manufacturer, United Textile. The second canopy then began to leak, and the appellees demanded a second replacement. When that was not forthcoming, they filed suit in Garland County on May 22, 1991. Service on Maple Leaf was attempted by certified mail, return receipt requested in North Little Rock, but the letter was not received, and service was not effected.

An attorney ad litem for Maple Leaf was appointed in Garland County. That attorney sent a certified letter, return receipt requested, restricted delivery, to Maple Leaf on June 6, 1991, advising it of the lawsuit and of the fact that a warning order was being published and enclosing a copy of the complaint and summons. The letter was addressed to Maple Leaf Canvas, Inc., c/o E. Gordon Oates, registered agent for service. The green return receipt was addressed to E. Gordon Oates, Maple Leaf Canvas, Inc. The box on the receipt entitled “Restricted Delivery” was checked. The attorney also caused a warning order to be issued and published in the Sentinel Record in Garland County on June 18, 1991, and June 25, 1991, warning Maple Leaf to appear in court in thirty days.

On June 18, 1991, Ron West, vice president of Maple Leaf, accepted the certified letter and signed the receipt card as the addressee. He then delivered it that same day, unopened, to Gordon Oates, the registered agent for service of process. The unopened letter with complaint and summons languished on Oates’s desk until late August 1991, when he opened it and immediately contacted counsel.

The appellees moved for default judgment, and Maple Leaf responded that excusable neglect existed for the delay since service had not been properly effected on Maple Leaf. It further urged that it had a meritorious defense to the lawsuit. No challenge to the circuit court’s personal jurisdiction was mounted by Maple Leaf. The circuit court refused to find excusable neglect and awarded judgment to the appellees in the amount of $6,800.

Our standard of review for the granting or denial of a motion for default judgment is whether the trial court abused its discretion. B & F Engineering v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992); Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984). We have noted in our cases that default judgments are not favored in the law and that a default judgment may be a harsh and drastic result affecting the substantial rights of the parties. CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 572 (1991); Burns v. Madden, 271 Ark. 472, 609 S.W.2d 55 (1980). We have also stated that failure to attend to business is not excusable neglect. CMS Jonesboro Rehabilitation, Inc. v. Lamb, supra.

To accomplish service by mail under Rule 4 of the Arkansas Rules of Civil Procedure, the return receipt must be signed by the addressee or the agent of the addressee. We have stated that requirements under Rule 4, being in derogation of common law, müst be strictly followed. Cole v. First National Bank, supra; citing Wilburn v. Keenan Cos. 298 Ark. 461, 768 S.W.2d 531 (1989).

Personal jurisdiction is not at issue in this appeal because Maple Leaf does not contest it. Maple Leaf raises only the defense of excusable neglect due to the fact that the corporation’s registered agent, Gordon Oates, did not sign for the letter. Thus, the question confronting us concerns the identity of the addressee — Maple Leaf or E. Gordon Oates — because the letter was sent in care of Oates. The circuit court stated at the hearing that the letter spoke for itself on this point. We conclude, as the circuit court undoubtedly did, that Maple Leaf was the addressee. The letter was addressed to Maple Leaf, and Maple Leaf was the party defendant. In these circumstances, it is incumbent upon the entity seeking to utilize the defense of excusable neglect in order to set aside the default judgment to show that the receipt card was signed by someone other than the addressee or someone not authorized under Ark. R. Civ. P. 4(d)(5). Ron West, a vice president of Maple Leaf, signed the return receipt on the addressee line for Maple Leaf. Nothing in the record refutes Ron West’s authority to accept Maple Leafs mail. He then promptly turned the mail over to Gordon Oates, registered agent for service.

The mail sat on Oates’s desk for two months. No reason for the lapse is offered. Rather, Maple Leaf contends that no prejudice resulted to the appellees and that it has a meritorious defense. Maple Leaf, however, must first satisfy the court that a threshold reason exists for denying default judgment. The reason it presents is not convincing. The failure to answer the complaint seems due more to carelessness or, as in the case of CMS Jonesboro Rehabilitation, Inc. v. Lamb, supra, a result of not attending to business.

The circuit court did not abuse its discretion, and this court will not disturb the decision of the trial court absent an abuse of discretion. Wilburn v. Keenan Companies, Inc., supra.

Affirmed.


author: Kenneth R. Mourton, Special Justice.

text:
    Daniel L. MEDLOCK, et al. v. Timothy J. LEATHERS, Commissioner of Revenues, et al. City of Fayetteville, Arkansas
    89-89
    842 S.W.2d 428
    Supreme Court of Arkansas
    Opinion delivered November 23, 1992
    [Rehearing denied January 11, 1993.]

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

      Larry D. Vaught, for appellees Patricia Tedford and Pulaski County.

      William E. Keadle, for appellee Commissioner of Revenues.

      James M. McCord, for intervenor City of Fayetteville.

      Dudley, J., not participating.

   Kenneth R. Mourton, Special Justice.

This case involves the issue whether Arkansas’ imposition of a gross receipts tax violates the Equal Protection Clause of the Fourteenth Amendment. We hold that no such violation occurred even though the tax applied to cable television operators and subscribers while remaining silent as to satellite subscribers and operators. The chancellor’s order denying and dismissing the equal protection claim is affirmed. A finding of the statute’s constitutional validity allows us to dismiss the Supremacy Clause issue.

On March 21, 1987, the Arkansas General Assembly adopted Act 188 of 1987 [Act 188], effective July 1, 1987, amending the previous statute, concerning the Arkansas gross receipts tax. Act 188 added cable television to the list of services that had state and local sales taxes imposed on them. It did not, however, apply to other forms of mass media, particularly scrambled satellite television services. The appellants filed a class action on May 28, 1987, requesting that Act 188 be declared an illegal exaction discriminating among mass media.

Appellants are Daniel L. Medlock, a cable subscriber, Community Communications Company, the Arkansas Cable Television Association, Inc. on behalf of themselves and all other similarly situated taxpayers subjected to the television services sales tax. The appellees are James C. Pledger, the Commissioner of Revenues, Timothy J. Leathers and various state, county, and city officials, Pulaski County, the City of Benton, and all similarly situated counties and cities. The City of Fayetteville intervened. Appellants claimed a variety of their constitutional rights had been violated: freedom of speech; freedom of the press; equal privileges and immunities; freedom of equal protection of the laws and protection under the Supremacy Clause. These allegations centered primarily on the claim of discrimination against cable television under the First Amendment. This court originally held that the First Amendment required similar taxation of cable and satellite providers. The U.S. Supreme Court found that imposing the fee upon cable alone did not impede cable’s free speech ability to act as a check on government nor did it target a small group of speakers or discriminate on content and was therefore constitutionally permissible. Leathers v. Medlock, _ U.S. __, 111 S. Ct. 1438 (1991). We originally found that cable and satellite businesses were similarly situated because they ended in substantially the same result — video programming. Medlock v. Pledger, 301 Ark. 483, 785 S.W.2d 202 (1990), aff'd in part, rev’d in part, Leathers v. Medlock, _ U.S. __, 111 S. Ct. 1438 (1991). The case has been remanded to us for consideration of the issue that we did not originally reach: whether the Equal Protection Clause required similar taxation of cable and satellite providers. We allowed the parties to address the Supremacy Clause issue during this remand.

The chancery court found in favor of appellees and determined Act 188 was not an illegal exaction. After the chancellor’s decision, Act 188 was amended by Act 769 of 1989, effective July 1,1989, to include “ [s] ervice of cable television, community antenna television, and any and all other distribution of television, video, or radio services . . . .” Ark. Code Ann. § 26-52-301 (3)(D)(i) (Repl. 1992).

I.

The Fourteenth Amendment of the U.S. Constitution provides, “No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. In previous equal protection cases this court has determined that tax legislation often survives the rational basis test. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). The court stated, “[u]nder the rationality standard of review, we must presume the legislation is constitutional, i.e. that it is rationally related to achieving a legitimate governmental objective.” Id. at 213, 655 S.W.2d at 463. Awareness of local needs and usages of funds helps the legislature form equitable distributions of tax burdens. Such knowledge and familiarity with community conditions have traditionally allowed courts to tolerate legislatively created classifications. See generally Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983) (stating that legislatures have extremely broad latitude in creating classifications and distinctions in tax statutes); New York Rapid Transit Corp. v. City of New York, 303 U.S. 573 (1938) (holding that state legislatures may identify or designate a particular class to be the object of a tax so long as the state does not violate the class’ rights to equal protection of the laws); Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32 (1928) (explaining that flexibility is granted to states to classify for taxation purposes); Citizens’ Tel. Co. v. Fuller, 229 U.S. 322, aff'd, 229 U.S. 335 (1913) (reviewing numerous decisions where state legislatures were allowed to discriminate among different persons in taxation statutes).

“Inherent in the power to tax is the power to discriminate in taxation.” Leathers, _ U.S. at _, 111 S. Ct. at 1446. Courts should defer to local legislative determinations as to the desirability of imposing discriminatory measures. City of New Orleans v. Dukes, 427 U.S. 297 (1976). A court will not strike down a classification merely because it is underinclusive. The law must be “purely arbitrary” in its classification; thus the only classification not allowed in taxing is invidious discrimination. Id. If a taxation statute discriminates in favor of one class it is not determined to be arbitrary so long as the discrimination is based upon a reasonable distinction, and if there is any hypothesized set of facts to uphold a rational basis. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). Appellants argue that hypothesizing a rational basis, as in Streight, should be beyond the power of this court. We view hypothesizing a rational basis the same as conceiving a rational basis; a practice that is available to the courts without question. We point to the language of Streight and conclude that any rational basis for a taxation statute may be developed at any time.

In any event, the judiciary is allowed to hypothesize and . . . reach a conceivable basis for the exemptions which [it] concludefs] are rational, reasonably distinctive and not arbitrary. It causes us to defer to legislative purpose because there is a rational basis for the tax ....
Before it is said that such hypothesizing is far afield, we re-emphasize that our role is not to discover the actual basis for the legislation. Our task is merely to consider if any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government and void of any hint of deliberate and lawful purpose.

Streight, 280 Ark. at 214-15, 655 S.W.2d at 464.

This court will give great deference to the General Assembly in the legislation of taxation where the clear intent of the statute is to raise revenue and not to discriminate among similarly situated individuals. In a similar equal protection case involving the media, Justice Rehnquist stated, “[w]e have shown the greatest deference to state legislatures in devising their taxing schemes.” Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 599 (1983) (Rehnquist, J., dissenting). Even without such deference Act 188 will survive the rational basis test when we apply the intervenor’s argument. Arkansas, primarily a rural state, may classify between satellite and cable because the state needs satellite television transmission in those geographic areas where cable services are not feasible. We acknowledge other conceivable rational bases for the arguments that were addressed at oral argument but we are not compelled to discuss them here. One conceivable rational basis is enough to pass the test.

In searching for any rational basis, we ask whether the created classification has a conceivable reasonable relationship to the governmental action. Madden v. Kentucky, 309 U.S. 83 (1940). Under the rational basis test, a reasonable purpose of the legislation need not be determined at the time of passage of the statute. Because broad discretion to classify has long been recognized in taxation, New York Rapid Transit Corp. v. City of New York, 303 U.S. 573 (1938), “the Fourteenth Amendment was not intended to compel the State [s] to adopt an iron rule of equal taxation.” Bell’s Gap R.R. Co. v. Pennsylvania, 134 U.S. 232, 237 (1890).

Because of this presumption of a tax’s constitutionality, the party challenging the tax has the burden of showing that no conceivable basis could ever support it. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). We originally determined cable and satellite to be “the purveyors of a particular medium.” Medlock v. Pledger, 301 Ark. 483, 487, 785 S.W.2d 202, 204 (1990). That “particular medium,” video programming, is the end result of both cable and satellite. Because of the characteristics of television programming the process can be divided into several classes based on transmission techniques. Cable, both basic and premium, depends upon a sophisticated transmission system requiring substantial investments by cable companies. Satellite, however, merely requires installing a satellite dish by the user, as does an antenna user installing an antenna. The sophisticated transmission system is not needed. Descrambled satellite is only different from satellite in that it requires special programrij|ing at the programming location which is usually out of state. Even though the end result of the video programming is similar, satellite and cable providers transmit their signals to viewers in different ways; therefore, a distinguishable classification at the initial stage of programming exists.

II.

Counsel for appellants, in their briefs and at oral argument, displayed a misconception of the purpose and strength of Special Justices. Although we trust this misconception is not widespread, we are compelled to address it in hopes of avoiding confusion in the future. Special Justices are an intricate and necessary part of our judicial system and shall continue to enjoy the distinguished positions they have traditionally possessed throughout our history. To say that any law created by Special Justices is some type of “special law” which does not need the public’s compliance is a fallacy.

This court has numerous opinions authored by Special Justices. Due to the doctrine of stare decisis these cases have been upheld and applied to similar fact patterns. Bosworth v. Pledger, 305 Ark. 598, 810 S.W.2d 918, cert. denied, 112 S. Ct. 617 (1991) involved four Special Justices while the Court in Streight, 280 Ark. 206, 655 S.W.2d 459, was comprised entirely of Special Justices. In Streight the issue involved retirement income tax exemptions of government employees. The Justices all recused themselves because the outcome of that case affected their financial interests. Had the safety valve of Special Justices not been present, the case may well have never been litigated. Bosworth involved equal protection arguments on a state sales tax on telephone communication services. The decision, although written by a Special Justice, was a unanimous decision of the court. Both cases have been cited by this court and upheld even in situations where no Special Justices served.

When justices of this court find it necessary to disqualify themselves from participating in a case it is imperative that there be some safety valve that will allow the parties to continue before the court; Special Justices serve this purpose. To argue that the Special Justices are not true justices is absurd and only serves to create a myth that laws can be distinguished on varying levels of importance. For these reasons we conclude that any opinion of this court involving one or more Special Justices shall bear the same precedential value as any other.

III.

This court does not intend to favor or advocate particular lawyering tactics. We are obliged, however, to note that when counselors file briefs and appear before the court certain expectations exist. A party’s argument is judged through the combination of briefs and oral arguments. There is a fundamental unfairness in not adequately and fully presenting one’s position in the brief and waiting until oral argument to clarify it. Litigants are entitled to know all arguments so that they may prepare adequate responses. Requiring presentation of, arguments in briefs enhances quicker resolution and more complete discussion of the issues.

Because both parties conceded the appropriate standard of review, the essential remaining issue in this case was whether the facts fit within the rational basis test. Appellees, therefore, should have submitted a more concise brief presenting conceivable bases for the statute. It is not the job of the court, but rather of attorneys to present arguments to bolster their positions. Counsel representing appellees did not advance any possible rational bases and initially replied ambiguously when questioned by the bench at oral argument. Upon further questioning, however, he provided his examples of rational bases for Act 188’s different treatment of cable and satellite. He also stated that it was a “hearing tactic” to not disclose the purpose or basis in the brief but to disclose at oral argument. We are concerned with such techniques because we often make determinations based on the disclosure in briefs and argument. These actions do not afford the opposing party any fair opportunity to respond.

Ark. Sup. Ct. R. 18(j) provides that “[i]f a case outside the brief is to be cited, the citation must be furnished opposing counsel in advance as soon as possible.” This requirement and the other guidelines of Rule 18 are for the purpose of having arguments where all parties are fully prepared. Because we will not permit counsel, absent necessity or special permission, to read from books, counsel should make all responsible efforts to disclose their basic positions prior to arguments. Although the outcome of this case was not substantially affected by the actions of counsel, we find it appropriate that counsel should fully disclose and develop their respective positions in the briefs.

IV.

Appellants argue that Act 188 conflicts with and is preempted by the Federal Cable Communications Policy Act of 1984 [Cable Act], codified as 47 U.S.C. §§ 521 to 559,611 (1988 & Supp. 1990). We find this issue is without merit. .Appellants argue that Act 188, by taxing cable without taxing satellite unduly discriminated against cable and thus violated the federal cable act. Appellants also state that Congress was trying to create a national policy that would deal with the problems that arise when state and local governments discriminatorily impose general taxes. There is, however, no actual conflict between the Cable Act and Act 188. When Congress defined “franchise fee” in the Cable Act, it recognized that general taxes could be imposed on cable. 47 U.S.C. § 542(g)(2)(A) (1988). Because we have determined that Act 188 was not unduly discriminatory, the Supremacy Clause issue is without merit.

Article VI, Clause 2 provides, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the . . . laws of any state to the contrary notwithstanding.” U.S. Const, art. VI, cl. 2. As Section 542(g)(2)(A) provides, “the term ‘franchise fee’ does not include . . . any tax ... of general applicability” and may be imposed on cable services so long as it is not “unduly discriminatory.”

In the 1941 case of Hines v. Davidowitz, the U.S. Supreme Court warned about preemption cases; “[b]ut none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). In Goldstein v. California, 412 U.S. 546 (1973) the Court, in deciding whether a state law would be preempted, asked whether the state law stood as an obstacle to the accomplishment of Congress’ objectives or purposes. This test was expanded in Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984), where the Court based preemption on four factors: whether Congress expressed a clear intent to preempt state law; whether Congress occupies the field so as to leave no room for the states to supplement; whether compliance with both the state and federal laws is impossible; and whether the state law stands as an obstacle to Congress’ objective or purpose. Id.

When Congress passed the Cable Act, it intended to create a national policy governing cable communications while at the same time providing guidelines for state and local authority to regulate cable systems. 47 U.S.C. § 521(1), (3) (1988). Once Congress left the door open for state and local governments to regulate, it did not intend to preempt any legitimate state legislation; nor did it totally occupy the field of cable communications. It is possible to comply with both state and federal laws, likewise, the state statute does not stand as an obstacle to Congress’ purpose. Act 188 fits within the area of discretion left by the Cable Act to allow state and local communities to regulate and tax cable services as they choose. We therefore dismiss the preemption issue.

Affirmed.

Dudley, J. not participating.

       The Honorable Lee A. Munson, Chancellor, First Division, Pulaski County Chancery Court presided.

       Chancellor Munson entered an Opinion on March 10, 1989, and an Order and Judgment on March 13, 1989.

       Counselors will continue to have flexibility to elaborate arguments, explain positions, or answer questions even after following this procedure.


author: Per Curiam.

text:
    Ronnie REED v. STATE of Arkansas
    CR 92-41
    840 S.W.2d 808
    Supreme Court of Arkansas
    Opinion delivered November 23, 1992
   Per Curiam.

In this case, the court was required to issue an order on counsel, James P. Massie, to appear before us on Monday, November 2, 1992, and show cause why he should not be held in contempt. In sum, Mr. Massie failed to file a brief due on August 2, 1992, and failed to respond to the clerk’s letter explaining why. In fact, no brief or response had been filed at the time the court’s show cause per curiam was issued on October 19, 1992.

Mr. Massie appeared before us on November 2, 1992, and pled guilty. He filed his brief with the court on November 18, 1992.

Based on the record before us, Mr. Massie is held in contempt of this court and fined $250.00.


text:
    Shelly VOYLES v. Danny VOYLES
    92-1148
    842 S.W.2d 21
    Supreme Court of Arkansas
    Opinion delivered November 23, 1992

      Mike J. Etoch, for appellant.

      Fletcher Long, for appellee
   Per Curiam.

In this civil case, the appellant’s tender of the transcript was denied by our clerk because the order extending the time to file the transcript was not entered within the ninety-day period. See Ark. R. App. P. 5(b).

The trial court signed the order within the ninety-day period, but it was not entered within that period. Rule 4(e) of the Arkansas Rules of Appellate Procedure provides that a final “order is entered within the meaning of this rule when it is filed with the clerk of the court in which the claim was tried.” (Emphasis supplied.)

We explained in Finley v. State, 281 Ark. 38, 661 S.W.2d 358 (1983) and Sullivan v. Wickliffe, 284 Ark. 33, 678 S.W.2d 771 (1984), that the critical factor in this type of case is when the order is entered, not when it is signed.

In this case the order was timely signed and filed with the judge, but not with the clerk of the court. A question has been raised about a possible conflict of the above quoted rule of appellate procedure with one of our rules of civil procedure. Ark. R. Civ. P. 5(d) provides:

Filing with the Judge. The judge may permit papers or pleadings to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.

We addressed this issue in Sullivan v. Wickliffe, supra, and explained that an order cannot be deemed entered, or filed with the clerk, just because it is signed by the judge and it contains a recitation that it is filed, when in fact it is not filed with the clerk. If our rules were otherwise, the prevailing party could not discover by public record whether the case was ended.

Motion for a rule on the clerk is denied.


author: Robert H. Dudley, Justice. Tom Glaze, Justice,

text:
    Winston BRYANT, Attorney General v. Dr. Arthur ENGLISH, the Republican Party of Arkansas, the Democratic Party of Arkansas, and Martin Borchert v. Jim Guy Tucker, Lieutenant Governor
    92-1284
    843 S.W.2d 308
    Supreme Court of Arkansas
    Opinion delivered December 4, 1992

      Winston Bryant, Att’y Gen., by: Royce Griffin, Chief Deputy Att’y Gen., for appellant.

      Youngdahl, Trotter, McGowan, O’Connor & Farris, by: Scott Trotter and Kimberly Salors, for appellee Dr. Arthur English.

      Karr, Hutchinson & Stubblefield, by: Asa Hutchinson, for appellee Republican Party of Arkansas.

      Rose Law Firm, by: Vincent Foster, Jr. and Webb L. Hubbell, for appellee Democratic Party of Arkansas.

      Gill, Wallace, Clayton, Flemming, Elrod & Green, by: John P. Gill, for appellee Martin Bochert.

      L. Scott Stafford, for cross-appellant Jim Guy Tucker.
   Robert H. Dudley, Justice.

On November 6,1990, Governor Bill Clinton was re-elected to the Office of Governor, and Jim Guy Tucker was elected to the Office of Lieutenant Governor. Both were elected and commissioned to four-year terms of office that commenced on January 15, 1991. On November 3, 1992, a little over twenty-one months later, Governor Clinton was elected to the Office of President of the United States of America. It is anticipated that Governor Clinton will resign from the Office of Governor before January 20, 1993, which is the day the oath of the Office of President of the United States will be administered. The result will be that a vacancy will exist in the Office of Governor, and more than twelve months will remain on the four-year term to which Governor Clinton was elected.

This suit for a declaratory judgment was filed requesting an interpretation of the various provisions of the Constitution of Arkansas regarding succession to the Office of Governor when the Governor resigns with more than twelve months remaining in the term of office. The trial court entered a judgment declaring that upon the resignation of Governor Clinton, the powers and duties of the Office of Governor, but not the office itself, will devolve upon the Lieutenant Governor for the remainder of the four-year term. The trial court also ruled that a special election to fill the office is not required and that the Lieutenant Governor is not authorized to appoint a successor to the Office of Governor. Attorney General Winston Bryant appeals from the judgment, and Lieutenant Governor Jim Guy Tucker cross-appeals from that part of the judgment declaring that the Office of Governor does not devolve upon the Lieutenant Governor. On direct appeal, we affirm the trial court’s judgment and hold that upon the resignation of a Governor, the powers and duties of the Office of Governor devolve upon the Lieutenant Governor for the remainder of the four-year term, and, on cross-appeal, we reverse and hold that the Office of Governor itself devolves upon the Lieutenant Governor.

I. Procedure

The Declaratory Judgments Act, Ark. Code Ann. §§ 16-111-101 —-16-111-111 (1987), provides that the purpose of the act is “to afford relief from uncertainty . . . with respect to . . . status,” and the act is to be liberally construed to that end. The parties stipulated in the trial court that they anticipate that Governor Clinton will resign from the Office of Governor, and the trial court held that a justiciable controversy exists. We have concluded that we should decide the issue because it is a matter of significant public interest and a matter of constitutional law. See Bennett v. N.A.A.C.P., 236 Ark. 750, 370 S.W.2d 70 (1963).

II. Background

Neither the 1836 Constitution of Arkansas nor the 1861 constitution provided for the office of Lieutenant Governor. Those constitutions placed the President of the Senate next in the line of succession for the Office of Governor, and they required a special election if the remaining term of the Governor exceeded a certain period of time. The 1864 constitution, for the first time, created the office of Lieutenant Governor and provided for a statewide election to the office. Ark. Const, of 1864, art. VI, § 19. The 1868 constitution also provided for a Lieutenant Governor and stated that if the Office of Governor became vacant, the Lieutenant Governor served during the “residue of the term.” It made no provision for a special election to fill the vacancy. Ark. Const, of 1868, art. VI, § 10.

Unfortunately, the present Constitution of Arkansas, adopted in 1874, did not originally provide for the office of Lieutenant Governor. Article 6, sections 12 and 13 of the present constitution, originally placed the President of the Senate, followed by the Speaker of the House, in the line of gubernatorial succession, but article 6, section 14 required a special election to fill a vacancy in the Office of Governor when the office was vacated more than twelve months before the expiration of the Governor’s term. Article 6, section 12 of the present constitution originally provided that in the event of the “death, conviction or impeachment, failure to qualify, resignation, absence from the State or other disability of the Governor,” the powers and duties of the office devolved on the President of the Senate “for the remainder of the term, or until the disability be removed, or a Governor elected and qualified.” When construed with the special election procedure of article 6, section 14, the reason for each of these three limitations on the President of the Senate’s period of service is obvious. Each limitation on service was tied to a different contingency. If the Governor became disabled, the President of the Senate served as Governor until the disability was removed. If the office became vacant through death, impeachment, or resignation of the Governor less than twelve months before the end of the Governor’s term, the President of the Senate served “for the remainder of the term.” If the vacancy in office occurred more than twelve months before the end of the Governor’s term, the President of the Senate served until “a governor [was] elected and qualified” at a special election called in accordance with article 6, section 14.

Only days after his inauguration on January 18, 1907, Governor John Sebastian Little suffered a nervous breakdown. Arkansas History Commission, 1 Annals of Arkansas 1947 239 (Dallas T. Herndon ed., 1947) [hereinafter Annals]. On February 11, 1907, Governor Little wrote Senator John I. Moore, the President of the Senate, and asked him to assume the duties of Governor. Senator Moore served as acting Governor until the adjournment of the General Assembly on May 14, 1907. Id. at 239. He was succeeded as acting Governor by Senator X.O. Pindall, who was elected President of the Senate shortly before its adjournment. Senator Pindall served as chief executive for sixteen months from May 15, 1907, until January 11, 1909, when he was replaced by the newly elected President of the Senate, Jesse M. Martin. Id at 240. Senator Martin was acting Governor for three days until the inauguration of George W. Donaghey, who had been elected Governor at the general election of 1908. Id. at 240. In sum, during the two-year period between January 15, 1907, and January 15, 1909, the affairs of Arkansas were in the hands of no less than six governors: Jeff Davis, John Sebastian Little, John I. Moore, X. O. Pindall, Jesse M. Martin, and George Donaghey. See id. at 233, 239-41.

The first seven months of 1913 were even more trying; they amounted to a gubernatorial succession crisis. The crisis was triggered when Governor Joe T. Robinson resigned from office following his election to the United States Senate. Id. at 247. W. K. Oldham was President of the Senate when Governor Robinson resigned, but because Senator Oldham was prohibited by article 5, section 18 of the constitution from serving past the end of the legislative session, the Senate elected J. M. Futrell as its President prior to adjournment on March 13, 1913. See id. at 251. Oldham argued that pursuant to article 6, section 12, he succeeded to the Office of Governor when Governor Robinson resigned and did not cease to be Governor when a new Senate President was elected. Futrell argued that he became Governor by virtue of his election as President of the Senate two days after Governor Robinson’s resignation. In Futrell v. Oldham, 107 Ark. 386, 155 S.W. 502 (1913), this court ruled in Futrell’s favor, holding that under article 6, section 12, the powers and duties of Governor devolved upon the office of the President of the Senate and not upon the individual occupying that office. In sum, during the first seven months of 1913, state government was headed by five different individuals: George Donaghey, Joe T. Robinson, W. K. Oldham, J. M. Futrell, and George W. Hays. See Annals, supra, at 244, 247, 251. This was labeled our “procession” of governors. Dr. David Y. Thomas, 1 Arkansas and Its People; A History, 1541-1930 282 (1930). The newspapers of the time spoke of the confusion. The Arkansas Democrat of January 31, 1913, contained an article that began, “Political complications in Arkansas are as thick as a London Fog.” The February 8, 1913, Arkansas Democrat carried an article that contains the sentence, “Kill off the antiquated method of filling a gubernatorial vacancy.”

III. Amendment 6

In February 1913, Representative Kidder introduced a House Joint Resolution for a constitutional amendment that would create the office of Lieutenant Governor. In part, it was a replication of the provision in the 1868 constitution. The March 5, 1913, Arkansas Democrat wrote: “There is no sound argument against the office proposed. It fixes the status of the governor’s successor and does away with a special election to fill a vacancy.” On March 6, 1913, Amendment 6 to the 1874 constitution was proposed by the General Assembly. See 1913 Ark. Acts 1527. Amendment 6 was submitted to, and approved by, the voters at the 1914 general election. See Combs v. Gray, 170 Ark. 956, 281 S.W. 918 (1926), for additional history of the adoption.

Amendment 6, section 4 provides: “In the case of the [resignation] of the Governor,. . . the powers and duties of the office, shall devolve upon the Lieutenant Governor for the residue of the term. . . .” In interpreting constitutional amendments, we have said that a court, in order to determine the meaning and the extent of coverage of a constitutional amendment, may look to the history of the times and the condition existing at the time of the adoption of the amendment in order to ascertain the mischief to be remedied and the remedy adopted. Huxtable v. State, 181 Ark. 533, 26 S.W.2d 577 (1930). “Amendments to a constitution are not regarded as if they had been parts of the original instrument but are treated as having a force superior to the original to the extent to which they are in conflict.” Grant v. Hardage, 106 Ark. 506, 509, 153 S.W. 826, 827 (1913). Repeal by implication is accomplished when a constitutional amendment takes up a whole subject anew and covers the entire subject matter of the original constitution. McCraw v. Pate, 254 Ark. 357, 494 S.W.2d 94 (1973); Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964); Pulaski County v. Downer, 10 Ark. 588 (1850). Further, a constitutional amendment is to be interpreted and understood in its most natural and obvious meaning. Carter v. Cain, 179 Ark. 79, 14 S.W.2d 250 (1929).

Amendment 6 took up a new subject matter of gubernatorial succession. The citizens wanted to* prevent any more gubernatorial succession crises and sought to change the procedure previously set out in article 6. It is impossible to reconcile the natural and obvious meaning of the language of the amendment, quoted above, with the special election procedure set out originally in article 6, section 14 in the factual situation before us. If the appellant Attorney General’s suggested meaning were adopted, and we construed “residue of the term” to only mean the Lieutenant Governor takes office only until the next special election, the constitutional amendment would, in part, amount to an exercise in futility. For these reasons, we hold that amendment 6, section 4 provides that the Lieutenant Governor serves as Governor for the residue of the term and not merely until a new Governor is elected at a special election.

We do not decide whether the special election process set out in article 6 is still viable if the Lieutenant Governor becomes Governor and then vacates the office. That issue is not before us.

The trial court ruled that the “powers and duties of the Office of Governor, but not the Office of Governor” devolved upon the Lieutenant Governor. The trial court’s ruling was undoubtedly based on our decision in Futrell v. Oldham, 107 Ark. 386, 155 S.W. 502 (1913), and certainly that case contains language stating that, under article 6, the President of the Senate exercised the powers of the Office of Governor, but did not actually become Governor. For several reasons, we think the holding of Futrell should be distinguished when the Governor resigns and his place is taken by the Lieutenant Governor under the provisions of amendment 6.

First, the framers of amendment 6 took verbatim from article 6, section 10 of the 1868 constitution the phrase “the powers and duties of the office shall devolve upon the Lieutenant Governor,” and they did so without having the opportunity to read this court’s opinion in Futrell. The House Joint Resolution proposing amendment 6 was adopted on March 6,1913, eighteen days before this court handed down the decision in Futrell on March 24, 1913.

Second, in deciding Futrell, this court was obviously concerned that the President of the Senate had never been elected by a direct statewide vote — he had been directly elected only by the voters of a local state Senate district. The opinion provides:

The central thought [of article 6, sections 12, 13, and 14] is, that the office of Governor is never to be filled at all except by the direct vote of the people themselves, and provision is made by the Constitution for only a temporary devolution of the duties and emoluments of the office upon some other functionary while a vacancy exists.

107 Ark. at 394, 155 S.W. at 505. Under amendment 6, section 2, the Lieutenant Governor is now elected by a direct statewide vote of the people at the same time and for the same term as the Governor.

An equally important distinguishing factor is that today, under amendment 6, section 2, the Lieutenant Governor is a member of the executive branch of the government, but under article 6, as interpreted in Futrell v. Oldham, the President of the Senate was a member of the legislative branch and remained such while performing the duties of governor only until an election could be called. The opinion provides:

So, if the person discharging for the time being the duties of Governor is still President of the Senate, he cannot be Governor. He may exercise the powers of the latter office — “exercise the office of Governor,” as it is otherwise expressed in another section, but he does not fill the two offices.

107 Ark. at 391, 155 S.W. at 504.

Under amendment 6 we are not faced with the same problem. In fact, allowing the Lieutenant Governor to succeed to the Office of Governor eliminates the separation of powers and the dual office-holding problems. If the Lieutenant Governor were not to assume the Office of Governor, he would act as Governor and still preside over the Senate and have the power to cast votes in the event of tie votes. This mixing of executive and legislative powers is avoided when the Lieutenant Governor assumes the Office of Governor and sheds the duties of Senate President. For these reasons, Futrell v. Oldham is distinguished.

Amendment 6, section 4 provides that if the Office of Governor becomes vacant, “the powers and duties of the office, shall devolve upon the Lieutenant Governor for the residue of the term.” The next section of the amendment, section 5, provides that if the offices of both Governor and Lieutenant Governor become vacant, the President (pro tempore) of the Senate “shall act as Governor until the vacancy [is] filled.” Similarly, the Speaker of the House “shall act as Governor until the vacancy be filled” if the President of the Senate becomes unable to act as Governor. The difference in language suggests that the Lieutenant Governor, unlike the President (pro tempore) of the Senate or the Speaker of the House, does not merely act as Governor when the Governor resigns. Rather, it suggests that he becomes the Governor.

It is also of some persuasion that for nearly three-quarters of a century the executive branch has treated a lieutenant governor as governor when he filled a vacant governor’s office. The first instance occurred in 1926 when Lieutenant Governor Harvey Parnell succeeded Governor John E. Martineau. Historical Report of the Secretary of State-Arkansas 230 (1978). It also occurred when Governor Dale Bumpers resigned from the Office of Governor and Lieutenant Governor Bob Riley was commissioned governor, as well as when Governor David Pryor resigned and Lieutenant Governor Joe Purcell was commissioned as Governor. See Commissions in Secretary of State’s Office. In addition, we are persuaded that the drafters of amendment 6, and the voters who approved it, knew that article 6, section 2 would remain in place. It provides: “The supreme executive power of the State shall be vested in a chief magistrate, who shall be styled ‘the Governor of the State of Arkansas.’ ”

Accordingly, we hold that amendment 6, section 4 provides that upon the resignation of the Governor, the Lieutenant Governor becomes “the Governor of the State of Arkansas.”

One of the parties advanced the argument that amendment 29 of the Constitution of Arkansas requires the Lieutenant Governor to appoint a new governor. We summarily reject the argument and hold that amendment 6 specifically provides for filling a vacancy in the Office of Governor.

Affirmed on direct appeal and reversed on cross-appeal.

Glaze and Corbin, JJ., dissent in part and concur in part.

Tom Glaze, Justice,

concurring in part and dissenting in part. I concur in part and dissent in part. My disagreement with the majority court has nothing to do with its holding on the merits. In fact, I totally agree with its decision as it pertains to the merits, but disagree that this court procedurally reached the merits.

This lawsuit is a declaratory judgment action and, as such, requires that a present actual controversy must exist. In stating this well-recognized principle, this court stated the following:

The Declaratory Judgment Statute is applicable only where there is a present actual controversy, and all interested persons are made parties, and only where justiciable issues are presented. It does not undertake to decide the legal effect of laws upon a state of facts which is future, contingent or uncertain. A declaratory judgment will not be granted unless the danger or dilemma of the plaintiff is present, not contingent on the happening of hypothetical future events; the prejudice to his position must be actual and genuine and not merely possible, speculative, contingent, or remote. (Emphasis added.)

Andres v. First Ark. Development Finance Corp., 230 Ark. 594, 324 S.W.2d 97 (1959); see also Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980); McFarlin v. Kelly, 246 Ark. 1237, 442 S.W.2d 183 (1969).

Justice John A. Fogelman stated the following reasons for the foregoing rule in a concurring opinion where he said:

The declaratory judgment act is not intended to be the vehicle for advisory opinions to persons not having a justiciable controversy with their apparent adversaries by a court having no jurisdiction. It is far better, in my opinion, that important questions, particularly constitutional ones, be pounded out on the anvil of advocacy by persons whose interests are vitally real, not academic, with all interested parties before the court.

Block v. Allen, 241 Ark. 970, 980, 411 S.W.2d 21, 27 (1967).

Let me first point out the obvious — Governor Bill Clinton is not a party to this declaratory judgment action. Second, nowhere in the record before this court is it shown that the Governor has resigned or that he intends to resign his office. In an attempt to circumvent this obvious procedural defect in parties and the record, the parties appear to rely upon the Democratic Party of Arkansas’s brief wherein it argues as follows:

The fact that Governor Clinton’s exact resignation date may not be known is not a bar to determining the succession issue. Governor Clinton cannot serve both as Governor and President. Article 6, Section 11 of the Arkansas Constitution provides that no “person holding office under the authority of this State, or of the United States, shall exercise the office of Governor, except as herein provided.” Governor Clinton’s resignation now that he has been elected President cannot be doubted. Governor Clinton will resign no later than January 20,1993, in order to assume the Presidency. Thus, it is assured that there will be a vacancy in the Governor’s office no later than 58 days after November 23rd. The resulting vacancy in the office of Governor is hardly the hypothetical fact situation feared by the courts.

The parties to this lawsuit cannot stipulate or assume how a person not a party or witness in this case might act in the future; namely, that Governor Clinton will vacate the Governor’s office. The majority court is wrong in allowing the parties to make such a stipulation, especially when this factual issue could have been resolved by having made the Governor a party to this action and his resignation could then have been easily confirmed. Nor was the Governor deposed or called as a witness so the resignation issue could be put to rest. Clearly, Governor Clinton has an interest in this cause since this case affects not only his duties and responsibilities as governor, but also involves the emoluments he receives from that office. Until the Governor resigns, the succession issue presented in this cause remains purely hypothetical and contingent upon his vacating the office of Governor.

In an obvious attempt to avoid the Governor’s absence in this lawsuit and to cure a record failing to reflect the Governor’s resignation, the Democratic Party cites Article 6, Section 11 of the Arkansas Constitution which is captioned “Incompatible Offices” and provides, “No member of Congress, or other person holding office under the authority of this State, or of the United States, shall exercise the office of Governor, except as herein provided.” In citing this constitutional language, the Party concludes the Governor’s resignation now that he has been elected President cannot be doubted. Of course, this is an assumption or conclusion the parties to this action are unable to make. Clearly, the above constitutional language does not mean Governor Clinton automatically resigns or vacates his office upon being sworn in as President. In addition, such dual officeholder issues are decided in quo warranto or ouster, not declaratory judgment, proceedings.

My natural inclination is much like the majority court’s and the parties in this case — that (1) the Governor likely will resign sometime prior to January 20,1993, (2) a vacancy will then exist and (3) the succession problem will be a reality.' However, to indulge in this assumption on the actual facts of this case is to ignore an entire body of law that provides this court only grants declaratory judgment relief when a present actual controversy exists and all interested persons ar made parties. This court’s apparent willingness to address the hypothetical facts present here breaks with clear, prior precedent and, in my view, will permit parties henceforth to stipulate to future facts and events in order to obtain declaratory relief and advisory opinions. This court, instead, should require the presence of Governor Clinton in this lawsuit either as a party or a witness, so a finding as to his resignation from or vacating of office can be established. Only then will an actual controversy exist, allowing this court to decide the succession issue.

One last point — the Democratic Party, recognizing justiciability as a problem, asserts this court nevertheless can declare the law concerning the Governor-succession issue because this is a case of extreme public importance. In support of this assertion, it cites Robinson v. Arkansas Game and Fish Commission, 263 Ark. 462, 565 S.W.2d 433 (1978); Moorman v. Taylor, 227 Ark. 180, 297 S.W.2d 103 (1957); and Rockefeller v. Purcell, 245 Ark. 536, 434 S.W.2d 72 (1968). Suffice it to say, each of these cases, unlike the present case, once involved a justiciable controversy, but the actual controversy later became moot for one reason or another. Here, as already discussed, an actual controversy is yet to occur. The cases cited are simply not on point.

For the reasons above, I would reverse.

Corbin, J., joins.


author: Robert H. Dudley, Justice.

text:
    PRAIRIE IMPLEMENT CO., Inc. v. CIRCUIT COURT of the Southern District of PRAIRIE COUNTY
    92-678
    844 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered December 7, 1992

      Dick Johnston, for petitioner.

      Dover & Dixon, P.A., by: Gary B. Rogers and Monte D. Estes, for respondent.
   Robert H. Dudley, Justice.

This petition for a writ of prohibition was filed by Prairie Implement Company, Inc., one of the codefendants below, asking us to prohibit the Circuit Court of the Southern District of Prairie County from entertaining a suit brought by Margaret McMullen. Prairie Implement argues that the writ should be issued because venue does not properly lie in the county in which the suit is pending. We deny the writ.

The law governing venue is clear. Since the adoption of our Civil Code in 1869 our statutes have defined certain local actions and directed that all other actions be brought in the county of the defendant’s residence. See Ark. Code Ann. § 16-60-116 (1987). The separate districts of a county must be treated as separate counties. Smith v. Waggoner, 212 Ark. 345, 205 S.W.2d 465 (1947). We have said repeatedly that the purpose underlying our venue laws is to fix venue in the county of the defendant’s residence unless for policy reasons, there is a statutory exception. Atkins Pickle Co. v. Burrough-Uerling-Brasuell Consulting Eng’rs, Inc., 275 Ark. 135, 628 S.W.2d 9 (1982); Wernimont v. State ex rel. Little Rock Bar Ass’n., 101 Ark. 210, 142 S.W. 194 (1911).

The respondent’s brief mentions the fact that venue is not the same as jurisdiction, suggesting that an appeal would be the only remedy available to petitioner. Indeed, we have made this distinction when there is a dispute of fact. For example, in Safeway Cab & Storage Co. v. Kincannon, 192 Ark. 1019, 1021, 96 S.W.2d 7, 8 (1936), we wrote: “If petitioners preserve their objections to the jurisdiction of their persons in the trial of this cause, and an adverse verdict and judgment go against them or either of them, then, if erroneous, it may be corrected on appeal.” In addition, there are many cases in which we have said that the only purpose of the writ of prohibition is to prevent a lower court from exercising a power not authorized by law when there is no other adequate remedy available. We have said a writ of prohibition is never issued to prohibit an inferior court from erroneously exercising jurisdiction, but rather is issued only where the lower court is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. Our most recent expression of these principles can be found in Forrest City Machine Works, Inc. v. Erwin, 304 Ark. 321, 802 S.W.2d 141 (1991). A very early case, which thoroughly discusses the remedy of a writ, states that it is limited to cases in which subject-matter jurisdiction is lacking. Williams, Ex Parte, 4 Ark. 537 (1843).

This court understands that venue is a procedural matter, not a jurisdictional one. Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984). This distinction is made clear in our holdings that, absent an objection, a trial court has the power to render a binding judgment even though venue was not proper. See Gland-O-Lac v. Creekmore, 230 Ark. 919, 327 S.W.2d 558 (1959). Even though lack of venue is not the same as lack of jurisdiction, we treated venue the same as jurisdiction-over-the-person for many years in determining whether a writ of prohibition should issue. Perhaps our reasoning has been based more on history than in logic.

In early years we held that if a defendant filed a motion objecting to venue or a motion to quash invalid service, and the trial court ruled against him, an appeal to this court served to enter his general appearance in the case no matter how erroneous the trial court ruling might have been. Benjamin v. Birmingham, 50 Ark. 433, 8 S.W. 183 (1887). For example, in Waggoner v. Fogleman, 53 Ark. 181, 13 S.W. 729 (1890), in a short but illustrative two-sentence opinion, we held that the judgment in the trial court was void for lack of service, but “the appellant having entered her appearance by the appeal is now in court, and no further service is required” upon remand. This unreasonable rule was severely criticized by the court in Chapman & Dewey Lumber Co. v. Means, 191 Ark. 1066, 88 S.W.2d 29 (1935), and finally overruled in Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672 (1937). Perhaps in response to the harshness of such a rule, and because, with such a rule, an appeal could not afford an adequate remedy, we began to allow defendants to seek prohibition after they had objected to venue, even though it was not truly an objection to jurisdiction. Today, we continue to follow our precedent, and we will grant the writ when, on undisputed facts, a trial court erroneously finds that venue is proper. Arkansas Bank & Trust Co. v. Erwin, 300 Ark. 599, 781 S.W.2d 21 (1989); Tucker Enterprises, Inc. v. Hartje, 278 Ark. 320, 650 S.W.2d 559 (1983); Beatty v. Ponder, 278 Ark. 41, 642 S.W.2d 891 (1982); International Harvester v. Brown, 241 Ark. 452, 408 S.W.2d 504 (1966); Monette Road Improvement Dist v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920). Accordingly, we will consider issuing the writ in this case.

Petitioner, Prairie Implement Company, Inc., does not maintain a place of business in the Southern District of Prairie County, nor does it have a principal office there, nor was it summoned there. The allegations of the complaint are that Margaret McMullen, in her own capacity and as the personal representative of the estate of Buddie McMullen, sued Ford Motor Credit Company, Ford Life Insurance Company, and Prairie Implement Company, Inc. She alleged that on October 19, 1989, Buddie McMullen “agreed to purchase,” through an installment sales contract, a Ford tractor from Prairie Implement and that the purchase was conditioned upon Buddie McMullen’s obtaining life insurance from Ford Life Insurance Company in an amount equal to the purchase price of the tractor. Prairie Implement acted as agent for Ford Life Insurance Company and took an application for the life insurance policy, and Buddie McMullen agreed to pay the premium on the credit life insurance, which was to be financed along with the purchase price of the tractor.

The complaint additionally stated that a representative of Prairie Implement later informed Buddie McMullen that the credit life application was incomplete, that more information about his health was needed, and that Buddie McMullen supplied this information. The complaint further states that on November 14, 1989, almost a month after the agreement to purchase was signed, “[EJmployees of Prairie Implement informed McMullen’s son, Emil, that they had contacted Ford Credit, and that credit life coverage was in place for McMullen.” The next morning, November 15, Buddie McMullen died, and his son Emil immediately notified Prairie Implement. The allegations of the complaint additionally state that in a letter dated November 14, but post-marked “November 15, 1989 p.m.,” Ford Life Insurance rejected Buddie McMullen’s application for credit life insurance, and, subsequently, Ford Life refused to pay any benefits to the estate of Buddie McMullen. Paragraph 9 of the complaint states: “The refusal of Ford Life to make payment under the credit life policy constitutes a breach of contract.” Paragraph 10 is as follows: “In justifiable reliance upon the misrepresentations by Prairie Implement, Ford Credit and Ford Life, and as a result of the aforesaid breach of contract,” the plaintiff has been damaged in the amount of the amount due under the “installment sales contract.” The plaintiff contends that the foregoing complaint states a cause of action both in contract and in tort.

All three defendants moved to dismiss for lack of venue, and, separately and additionally, Ford Life moved for summary judgment because it claimed there was no life insurance policy in effect. The trial judge, the highly regarded, but now deceased, Judge Cecil Tedder, denied the motion to dismiss in the only order entered in this case, finding that venue was proper as to Ford Life under a special venue statute involving the alleged breach of the contract of insurance because it was “the insured’s residence.” See Ark. Code Ann. § 23-79-204(a) (Repl. 1992). In the same order, the trial court concluded that, since venue was properly established for the breach of contract against one of the defendants, venue was also established for the breach of contract action against the other defendants, Ford Motor Credit Company and Prairie Implement. In addition, in the same order, the trial court granted summary judgment in favor of Ford Life and dismissed with prejudice the plaintiffs complaint against Ford Life. The record does not show that Prairie Implement presented any other motions to the trial court, or that there were any other orders.

In this petition for a writ of prohibition, the petitioner Prairie Implement argues that since venue of the contract cause of action rested entirely upon the service upon the insurance company and since that cause of action against the insurance company was dismissed with prejudice, venue was no longer proper against the other nonresident codefendants. See Universal CIT Credit Corp. v. Troutt, 235 Ark. 238, 357 S.W.2d 507 (1962); Ark. Code Ann. § 16-60-116(c) (1987). Because of that, Prairie Implement argues that it was left standing as a nonresident who had been individually sued under the contract cause of action, and venue does not lie against a nonresident in a contract cause of action. The argument may be well taken, but we do not decide the issue. While the record does show that the petitioner filed a second objection to venue and alleged this ground, the record does not show that the argument was presented to the trial court, or that the trial court ruled on it.

The trial court, in its only ruling in this case, also held that the complaint alleges misrepresentation and that Rule 18(a) of the Arkansas Rules of Civil Procedure permits the joinder of independent multiple claims so that the tort action could be joined with the contract action against the defendants. If the contract action can no longer be maintained against the defendants, however, the misrepresentation claim could not either unless there is some independent basis for venue in Prairie County. A venue statute provides that “any action for any type of fraud” may be brought, among other locations, in the county in which the plaintiff resides. Ark. Code Ann. § 16-60-113(b) (1987).

In the petition in this court, petitioner Prairie Implement argues that plaintiff McMullen did not make sufficient factual allegations to state a cause of action for fraud. Rule 9 of the Arkansas Rules of Civil Procedure requires that “the circumstances constituting fraud ... be stated with particularity.” We have said, “The facts and circumstances constituting the fraud should be set forth. There should be some concealment, misrepresentation ... by which another is misled, to his detriment; and these, or some of them, must be alleged and proved.” Beam Bros. Contractors v. Monsanto Co., 259 Ark. 253, 263, 532 S.W.2d 175, 180 (1976) (quoting McIlroy v. Buckner, 35 Ark. 555 (1880)). We have clearly set out the five elements that must be alleged to state a cause of action for fraud. See Interstate Freeway Serv., Inc. v. Houser, 310 Ark. 302, 306, 835 S.W.2d 872 (1992). While the argument that the complaint fails to state a cause of action for fraud may be well taken, we do not decide the issue. The record discloses that after the trial court’s only ruling in this case, the petitioner filed a second objection to venue and in it for the first time pleaded that the complaint failed to state facts upon which relief can be granted. However, the record does not show that the motion was presented to the trial court, or that it was ruled upon by the trial court.

In sum, we do not decide either of petitioner’s arguments for the writ because they were not raised below. We are aware that the petitioner labels this an original action in this court, and the petitioner might argue, on rehearing, that it is not necessary in an original action to have raised the issues before the trial court when the facts are undisputed. In some original actions the argument might be valid, but not when the petition is based on lack of venue. Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920).

Petition denied.