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

text:
    Virginia WALLACE, Warden, Arkansas Dep’t of Correction v. Essie Mae WILLOCK
    CR 89-223
    781 S.W.2d 484
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989
    [Rehearing denied January 16, 1990. ]

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellant.

      Wilbur C. "Dub” Bentley, for appellee.

      Turner, J., not participating.

   Tom Glaze, Justice.

The state appeals from the trial court’s granting of the appellee’s petition for writ of habeas corpus. In granting the writ, the trial court found that no record or other competent evidence exists to show that the appellee entered voluntary pleas of guilty in the Prairie County Circuit Court, Northern District, to three counts of kidiiapping. Without a proper and voluntary plea of guilty, the trial court held that there could not be a valid judgment of guilt or a subsequent valid commitment to the penitentiary. On appeal, the state argues that the trial court erred in granting the writ of habeas corpus. We agree and therefore reverse and dismiss.

The appellee was charged with first degree murder in Prairie County, Southern District, robbery in Monroe County, and three counts of kidnapping in Prairie County, Northern District. On a change of venue, she was tried for the murder charge in Lonoke County and was convicted of the lesser included offense of second degree murder and sentenced to eleven (11) years imprisonment. The appellee states that her trial in Lonoke County was on April 15,16 and 17,1975, and that she was sentenced on the following Monday, April 21.

According to three Prairie County, Northern District, kidnapping judgments, the appellee appeared in person and with her attorney, James Burnett, on April 16,1975, and entered pleas of guilty to the kidnapping charges. These judgments were signed by Circuit Judge W. M. Lee on June 7, 1975. They reflect appellee was sentenced to serve eight (8) years for each count for a total of twenty-four (24) years to run consecutively to the murder and robbery sentence for a total of forty-five (45) years imprisonment. The judgments are the only evidence in the record to support the existence of the appellee’s guilty pleas to the kidnapping charges. The appellee denied having pled guilty to the kidnapping charges and testified that she was unaware of the existence of these kidnapping judgments until sometime in 1987. After serving the time for her murder and robbery convictions, the appellee filed a writ of habeas corpus in Jefferson County, where she is detained, alleging that the kidnapping judgments and commitments were invalid.

The state argues that a writ of habeas corpus is not the appropriate remedy under the facts of this case. We must agree. This court has repeatedly held that one is held without lawful authority and thus entitled to writ of habeas corpus when it is shown that the commitment is invalid on its face or the court lacked jurisdiction. See Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989); George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985); Stover v. Hamilton, 270 Ark. 310, 604 S.W.2d 934 (1980); State v. Auten, 211 Ark. 703, 202 S.W.2d 763 (1947).

The appellee argues that a writ of habeas corpus is also available to question the validity of a conviction, not just the facial invalidity of the conviction judgment. In support of her argument, she cites Bakery. Lockhart, 288 Ark. 91, 702 S.W.2d 403 (1986), where we said, “a petition for writ of habeas corpus is restricted to the questions of whether the petitioner is in custody pursuant to a valid conviction and whether the convicting court had proper jurisdiction.” Unfortunately, the Baker court rephrased the long settled rule pertaining to a person’s entitlement to a writ of habeas corpus, and in doing so, misspoke. We correct that error by reaffirming our prior holdings, as cited above, that a writ of habeas corpus petition is only proper when it is shown that a commitment is invalid on its face or the court lacked jurisdiction.

In the present case, the Prairie County Circuit Court clearly had jurisdiction to accept guilty pleas to kidnapping charges in that county. Therefore, our review is limited to whether the appellee’s convictions are invalid on their face. These judgments state that the appellee and her attorney appeared before the court and entered a guilty plea, and are signed by the circuit judge. However, the appellee contends that her convictions are invalid on their face because the judgments state that the sentences will run consecutively to the sentence in the murder trial, which had not yet been completed. In other words, when the appellee allegedly appeared in Prairie County to enter her guilty plea on April 16, the judge sentenced her to eight (8) years for each count of kidnapping to run consecutively to her Lonoke County murder sentence, which at the time did not exist.

Appellee’s view of the kidnapping judgments as being facially invalid must fail even if her murder case was still pending at the time she pled guilty to the kidnapping counts. Under A.R.Cr.P. Rule 24.4(c), before accepting a plea of guilty, a trial judge must address the defendant personally and inform him or her and determine that he or she understands, among other things, the maximum possible sentence on the charge, including that possible from consecutive sentences. Here, while the trial judge did not know the appellee’s murder sentence, he could have fulfilled the requirement of Rule 24.4(c) by having told her the possible range of sentences she could receive for murder. See Peterson v. State, 296 Ark. 324, 756 S.W.2d 897 (1988). While in Peterson, the issue was whether the trial court erred in failing to inform the defendant that his sentences could be ordered consecutively before accepting his guilty plea, the court’s discussion of the trial court’s meeting of the Rule 24.4(c) requirements is helpful in the present case. The defendant, in Peterson, pled guilty to one charge while other charges were still pending. Before accepting his guilty plea, the trial judge instructed the defendant regarding the range of sentences he could receive for the pending charges. Here, we find nothing on the face of the kidnapping judgments that reflects the trial judge failed to tell the appellee the range of sentences possible for her murder charge when he informed her that her kidnapping sentences would run consecutively to that sentence.

While we note the appellee’s testimony and evidence supporting her contention that she never appeared in the Prairie County Circuit Court and pled guilty to the kidnapping charges, our review in a habeas corpus case is limited to finding error on the face of those convictions. From our review of the appellee’s kidnapping judgments and commitments, we cannot say that they are invalid on their face. Therefore, we must reverse the trial court’s granting of the writ of habeas corpus.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. On April 21,1975, the appellee was sentenced to a term of eleven years in the Arkansas Department of Correction after her conviction for second degree murder. The document accompanying her to the Department of Correction on April 21,1975, indicated that she had a sentence of eleven years to serve. Subsequently, the Department received commitments reflecting a sentence of ten years on a robbery charge and three eight-year sentences on kidnapping charges from Prairie County. The robbery sentence has been served. The commitment papers indicated that the appellee entered pleas of guilty to the kidnapping charges in Prairie County on April 16, 1975. After the appellant had served the time for the original commitment, the Department refused to release her, basing its asserted right to hold her upon the subsequently-received commitments. A petition for a writ of habeas corpus was filed, and the trial court granted a hearing on the motion. After the hearing, the trial court held that the appellee had not entered guilty pleas and that the court had no jurisdiction to pronounce the sentences.

While the subsequent commitments indicated that Essie Mae Willock had entered guilty pleas in Prairie County on April 16, 1975, the record clearly shows and the trial court found that she was in the second day of a three-day trial, in Lonoke County, on the murder charge, when the guilty pleas were allegedly entered. At the hearing on the petition for habeas corpus, the trial court found that there was no record or other competent evidence existing to show that the petitioner had voluntarily entered a plea of guilty, nor any other plea in the circuit court of Prairie County, in cases No. CR 74-14, CR 74-15, and CR 74-16, to the charges of kidnapping. The court explicitly held that the petitioner did not enter any plea in Prairie County, guilty or otherwise, in the above-cited cases. After making his findings, the trial court concluded that “There cannot be a valid judgment of guilt or a subsequent valid commitment to the penitentiary.”

It is somewhat of a mystery to me why the Director of the Department of Correction wants to hold a prisoner after receiving a valid court order indicating that the prisoner is entitled to be released. Such a hard-nosed position serves only to increase litigation and other costs. In the present case, the state of Kentucky is waiting to take charge of this prisoner. If the cost of keeping prisioners is so high and the space so scarce, the state should not be unnecessarily spending tax money trying to hold persons who have served their sentences. It seems to me that we will have sanctioned an injustice in the name of justice if we allow the Director to prevail in this case. I can see no valid state purpose nor any benefit to society in holding this person in prison after a court of competent jurisdiction has determined that she is entitled to be released.

       We do not discuss the appellee’s robbery charge since it is not at issue in this appeal.

       If appellee is due any relief, it would be under A.R.Cr.P. Rule 37. Such post-conviction relief, however, would not be in Jefferson County, but in Prairie County, where the judgments were filed.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Loyd Ray WHITE v. STATE of Arkansas
    CR 89-169
    781 S.W.2d 478
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989

      Steven R. Davis, for appellant.

      Steve Clark, Att’y Gen., by: Sandra Bailey Moll, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals from the trial court’s denial of his Rule 37 motion to dismiss his rape and kidnapping convictions. He argues that (1) his trial counsel was ineffective for having failed to raise appellant’s right to a speedy trial, (2) the trial court erred in substantially complying with A.R.Cr.P. Rule 24 when accepting his guilty pleas, and (3) the judgment and sentence for both rape and kidnapping violate appellant’s right to be free from double jeopardy. We consider each argument in the order as set out above.

Concerning appellant’s first point, appellant states that he was charged with rape and kidnapping on October 22, 1987 and that, under A.R.Cr.P. Rules 28.1(c) and 28.2(a), he should have been tried no later than October 22, 1988, i.e., twelve months from the time appellant was charged. Although the lower court originally set appellant’s trial for October 6,1988, that trial was continued. In fact, the record reflects a second trial date was set for February 2, 1989. The appellant, however, actually pled guilty to the crime on January 27,1989 — or three months past the date when his case should have been tried.

The state responds that under Rule 28.3 there should be days excluded when computing the time for trial bringing the state within the speedy trial requirements. Over appellant’s objection, the state at the Rule 37 hearing offered evidence that the state attempted to locate appellant after he was charged on October 22, 1987. Appellant’s whereabouts were unknown — even to his attorney — until February 2 or 3,1988, when he was arrested. The state also presented evidence that appellant had orally moved for a continuance in order to obtain scientific tests from a New York laboratory. In sum, the state contended that these two periods were excludable under A.R.Cr.P. Rule 28.3(c) and (e).

The appellant counters the state’s argument by citing Rule 28.3(i), which requires that all excluded periods must be set forth by the court in a written order or docket entry. See Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989); Shaw v. State, 18 Ark. App. 243, 712 S.W.2d 338 (1986). Appellant points out that in the present case the trial court altogether failed to enter any orders or docket entries authorizing the periods claimed by the state. For this reason, appellant claims his attorney should have moved to dismiss his charges when the original speedy trial date expired on October 22, 1988, and that his counsel further was wrong in allowing appellant to plead guilty to the charges three months later. We find no merit to appellant’s contentions.

This appeal is from a Rule 37 proceeding and does not involve a direct appeal regarding the Speedy Trial Rule. Instead, appellant’s contention is that his counsel was ineffective because he failed to file a motion to dismiss. Thus our focus is limited to whether the performance of appellant’s counsel was deficient in that he made an error so serious that he was not functioning as the “counsel” by the sixth amendment to the Constitution, and the deficient performance must have resulted in prejudice so pronounced as to have deprived the appellant of a fair trial whose outcome cannot be relied on as just. Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988). Appellant’s guilty plea was the trial in this case. Cox, 299 Ark. 312, 772 S.W.2d 336.

The law is settled that there is a presumption that counsel is competent, and the burden is on the appellant who must show more than mere errors, omissions, mistakes, improvident strategy or bad tactics. Whisenhunt v. State, 292 Ark. 33, 727 S.W.2d 847 (1987). To prove ineffective assistance of counsel, appellant must establish that his counsel’s advice was not within the range of competence demanded of attorneys in criminal cases, and he must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id.

In the present case, appellant’s counsel testified that he did not move to dismiss the charges against appellant because it was counsel who had orally moved to continue the original trial set on October 6, 1988, so that he could obtain a DNA matching test from a New York laboratory. Counsel had suggested to appellant that such a test could either exonerate or serve to convict him and that appellant encouraged counsel to get the tests. The tests were not received until January 1989.

Counsel testified that if he had raised the speedy trial issue in January 1989, he would have been committing fraud on the court because he knew, and the judge knew, counsel had requested a continuance. Counsel’s action in obtaining a continuance (at appellant’s urgence) was in hopes of exonerating appellant, and his later and additional efforts were directed at obtaining a sentence less than life — the term he could have received for rape. Appellant was sentenced to twenty years for rape and twenty years for kidnapping, to be served consecutively.

We believe counsel’s decision not to raise the speedy trial issue, under these circumstances, was a correct one. We also agree with the state’s assessment that to allow such a challenge by the appellant would violate the spirit of the rule that one cannot agree with a ruling by the trial court and then attack that ruling on appeal. Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982). Therefore, we reject appellant’s claim that his counsel was ineffective.

In appellant’s second point, he argues several reasons why the trial court erred in conducting the guilty plea hearing in substantial compliance with the requirement listed in A.R.Cr.P. Rule 24; all but one have no merit. Although appellant argues he was not advised of the minimum and possible maximum sentences to the charges against him, the record reflects otherwise. He was present when his counsel, the prosecutor and the trial judge discussed sentencing. He was apprised of the possible life term he could have received for rape and the minimum sentence of twenty years for the crimes was also discussed. Appellant claims he was not advised of his right to confront witnesses, but again the record shows that the trial court fully apprised him that he was entitled to a trial, to be represented by an attorney, to present evidence, to compel attendance of witnesses and to offer any valid defense. Appellant further complains that after he decided to plead guilty, he was forced to appear on January 27,1989 — before the scheduled trial date of February 2, 1989 — to enter his plea. Appellant states he had not violated his release agreement and should have been permitted to enter his plea on February 2. Of course, appellant concedes he had already intended to plead guilty before the state submitted that the appellant should appear on the January 27 date. At the plea hearing, the judge very clearly asked appellant if he was freely and voluntarily entering his pleas, to which appellant stated he was.

Finally, appellant contends that no factual basis under A.R.Cr.P. Rule 24.6 was established for his guilty pleas. Concerning the rape charge, appellant, in responding to the judge’s inquiries, admitted that he had raped the victim and had used physical force when doing so. He stated the victim resisted when appellant compelled him to have sex. Clearly, a factual basis was established to support the rape conviction.

Regarding the kidnapping crime, we note that, in circumstances like those before us here, a person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of inflicting physical injury upon him or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him. See Ark. Code Ann. § 5-11-102(a) (4) (1987); Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988). It is only when the restraint exceeds that normally incidental to the crime that the rapist should also be subject to prosecution for kidnapping. Id.

When discussing the kidnapping charge with the appellant at the plea hearing, the trial court stated the following:

THE COURT: And you’re also charged with the offense of kidnapping and while I do not have the precise allegations in front of me, that would generally mean if you took him against his will and restrained him unlawfully and did you do that in some way?
DEFENDANT: Yes, sir.
THE COURT: And did he object to that in any way?
DEFENDANT: Yes, sir.
THE COURT: And did he resist you in taking him against his will?
DEFENDANT: Yes, sir.

The trial judge apparently was not knowledgeable of the facts concerning the kidnapping charge and failed to ask the appellant, appellant’s counsel or the prosecutor to recite the factual basis for the charge. Nonetheless, based upon the scant recital above, the judge declared a factual basis existed even though no facts were related that reflected that the restraint employed by appellant was no more than that which was required to commit the rape. As a consequence, we must reverse this part of the trial court’s ruling and permit appellant to withdraw his plea as to the kidnapping charge.

Appellant’s last argument is that being convicted of rape and kidnapping violates his right to be free from double jeopardy. He offers no citation of authority. Our decisions reflect that kidnapping is not necessarily a lesser included offense of rape. See Jones v. State, 290 Ark. 113, 717 S.W.2d 200 (1986). As we have demonstrated by case law, rape and kidnapping are separate crimes. Summerlin, 296 Ark. 347, 756 S.W.2d 908; Beed v. State, 271 Ark. 256,609 S.W.2d 898 (1980). We simply find no merit in appellant’s double jeopardy claim.

For the reasons above, we affirm the trial court, but reverse that part of its decision denying the appellant’s withdrawal of his plea to the kidnapping charge.

Hickman, J., would affirm.

       A person commits rape if, by forceable compulsion, he engages in sexual intercourse or deviate sexual activity with another person. Ark. Code Ann. § 5-14-103(a)(1) (1987).

       Counsel, who represented appellant at the plea hearing, testified at the Rule 37 hearing that a gun was involved in some manner, but it is not clear when this fact was discussed.


author: Robert S, Hargraves, Special Justice. Marcia McIvor, Special Justice,

text:
    Jacqueline Kight WILSON v. John Lofton WILSON
    89-67
    781 S.W.2d 487
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989
    [Rehearing denied January 16, 1990.]

      Crockett & Brown, P.A., for appellant.

      Dodds, Kidd, Ryan & Moore, for appellee.

      Buzbee, Sp. C.J. and Mclvor, Sp. J., would grant rehearing. Turner, J., not participating.

   Robert S, Hargraves, Special Justice.

This is the second appeal of this divorce case. Wilson v. Wilson, 294 Ark. 194, 741 S.W,2d 640 (1987). In that case we remanded on two points. First, we held the chancellor abused his discretion in finding that none of the incentive bonus due appellee from his employer was marital property. Secondly, we remanded to permit both parties to fully develop the record regarding the value of appellee’s corporate stock in Orthopedic Associates, Inc.

On remand the chancellor awarded appellant one-half of the incentive bonus after first deducting the income tax liability assessed against the bonus and the amount of a marital debt owed appellee’s corporate employer. The chancellor also determined the value of appellee’s stock interest in Orthopedic Associates, Inc., to be $20,000, the same amount which he had determined at the first trial.

In this appeal, appellant argues only that the chancellor erred by failing to follow the law of the case as mandated in our earlier decision. We hold the doctrine of the law of the case is not applicable to the factual questions which we remanded to the chancellor and we therefore affirm.

The basic issue before us on this appeal is whether the values found by the chancellor on remand violated the mandate of our decision in the first appeal. When this matter was first before us, this court did not undertake to value the appellant’s interest in appellee’s incentive bonus. We merely decided the bonus to be marital property. Likewise, we did not value the appellee’s stock interest in Orthopedic Associates, Inc. We said that on the basis of the record then before us, we thought it apparent that the stock exceeded a value of $20,000, but the evidence was insufficient for us to place a value on the stock. Consequently, we remanded the case for the chancellor to reconsider those issues in light of our decision.

Unlike the dissent, we do not read our decision in Wilson I to hold it was error for the trial court to rely on the stock purchase agreement in evaluating the worth of the professional association. We said the record before us indicated the stock was worth more than the amount prescribed in the stock purchase agreement, but we were unable to place a fair value on the stock from the evidence in that record.

The quantity and quality of the evidence developed on remand is substantially different from the evidence adduced at the initial hearing.

The doctrine of the law of the case cannot be applied to factual questions which were expressly remanded for determination by the trial court. It is conclusive only where the facts on the second appeal are substantially the same as those involved on the prior appeal. The rule does not apply if there is a material change in the facts. Potter v. Easley, 288 Ark. 133, 703 S.W.2d 442 (1986); Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S.W. 393 (1906).

From his lengthy and reasoned opinion, it is apparent the chancellor properly construed and applied our reasoning in the first appeal to his findings of fact on remand. Even though we consider chancery appeals de novo, we will not reverse unless the trial court’s factual findings are clearly erroneous. ARCP Rule 52(a); Milligan v. General Oil Co. Inc., 293 Ark. 401, 738 S.W.2d 404 (1987). From our review of the record, we cannot say the chancellor’s determination of the value of both the incentive bonus and corporate stock were clearly erroneous.

Affirmed.

Holt, C.J., Newbern and Glaze, JJ., not participating.

Marcia L. McIvor, Special Justice, dissents in part and concurs in part.

J.R. Buzbee, Special Chief Justice, joins the dissent.

Marcia McIvor, Special Justice,

dissenting in part; concurring in part. The majority has voted to affirm the trial court’s opinion after remand from this court in Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). In that opinion, we remanded the case on two points. First, we held that the trial court abused its discretion in not considering the incentive bonus which appellee received on June 30, five days after the decree of divorce was entered, as marital property subject to division. Second, we held that it was error to rely on the stock purchase agreement between appellee and Orthopedic Associates, Inc., as the sole measure of appellee’s professional practice. Although appellant had submitted evidence through one expert, showing a considerably higher value, the appellee offered no evidence other than the stock purchase agreement, and we felt fairness required remand to permit both parties to develop proof of the value.

Appellant now argues that the chancellor failed to follow the law of the case in reaching a decision after remand. On hearing after remand, the trial court found appellant was entitled to half of the $67,078 incentive bonus but reduced the bonus by amounts withheld by Orthopedic Associates, Inc., for what may have been an advance or a debt, and further reduced appellant’s share of the bonus by an “income tax reduction.” Although the record is not clear how the trial court reached the conclusion that appellant’s “half’ of the bonus should be $ 11,259, appellant has not assigned as error the reductions to the bonus of “tax” and “debt.” The principle of law on this issue as announced in Wilson I was that most of the incentive bonus accrued and therefore was acquired during the marriage and was, therefore, marital property. The majority finds that the doctrine of the law of the case is not applicable to disturb the trial court’s decision, and on the point of the incentive bonus, I concur.

However, the same should not be true of the findings of the trial court on the value of Dr. Wilson’s professional practice. In Wilson I we held that it was error to rely on the stock purchase agreement between appellee and Orthopedics Associates, Inc., as the method of evaluating the worth of that professional association and Dr. Wilson’s one-third interest in it. Wilson / held that it was error to rely upon the $20,000 figure which the stock purchase agreement set as both a buy-in and buy-out figure. Yet the trial court, after hearing the other evidence, again returned to that agreement to value appellee’s share of the corporation. The trial court’s rejection of any other method of evaluation is inconsistent with the mandate of Wilson I, and with the Arkansas statute on marital property division which requires that all martial property be distributed equally unless an equal division is inequitable. In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), we recognized that neither party should be permitted to deprive the other of an interest in property subject to division by putting the property temporarily beyond his or her control. Yet the stock purchase agreement involved here has a similar effect of artificially limiting the value of property available for division, while preserving a significant segment of it for future income generation of one of the parties.

When the marital property at issue is an interest in a professional association, Ark. Code Ann. § 4-29-208 (1987) precludes persons not licensed as a professional of that type from ownership, management or voting in any shares of any such a professional association. This case typifies the problem of reaching a monetary value of a martial asset which is not bought and sold on the open market. The complexity of the valuation issue should not obscure the purpose of the property division statute. “The legislature no doubt intended for common sense and logic to apply in cases where a statute does not specifically cover the exact factual situation before the court.” Wagoner v. Wagoner, 294 Ark. 82, 740 S.W.2d 915 (1987) (Purtle, J., dissenting). The court cannot award appellant shares in the appellee’s professional association because of the prohibition of Ark. Code Ann. § 4-29-208. Therefore, the court should reach a fair assessment of the economic value to appellee of that asset and make a monetary award to the spouse of half that amount.

In reaching the valuation, courts may consider stock purchase agreements such as this one in arriving at the value of a professional’s share in a professional association. However, the courts must also consider the inherent inappropriateness of those agreements as a measure of the value of the share in a divorce action. This stock purchase agreement is subject to change by the corporation, of which the professional, appellee in this case, is a one-third owner. As appellee’s witnesses candidly admit, the purpose of such agreements is to protect the corporation and its members, but not their spouses or former spouses. While the agreement may be a bona fide business planning tool to meet objectives such as preventing changes in ownership, promoting economic continuity, protection from outsiders and minimizing tax consequences, they are not conclusive measures of the economic value of the share of one member in a divorce action. The figure, in this case $20,000, is selected as a means of convenience to avoid difficult computations and litigation if one of the members resigns, but there.is no evidence in this case that the wife acquiesced in the figure as a method of evaluation, or that she should be bound by it in these circumstances. In this case, the stock purchase agreement was executed sixteen months after the parties’ divorce action was commenced, a fact certainly in mind of the appellee, and known to the lawyers advising the members of the corporation. When there is a right of first refusal by the corporation, this provision prevents or discourages knowledgeable offers to establish a value. All of these considerations led to our rejection of the stock purchase agreement as the measurement of appellee’s share of the professional association in Wilson I and our remand to the trial court.

On remand the trial court rejected alternative higher values by various experts, because those values had included the accounts receivable of Orthopedics Associates, Inc. The trial court’s position rests on an assumption about whether appellant would get a share of the accounts receivable when Dr. Wilson leaves the professional association. That will depend on the terms of the agreement in effect when Dr. Wilson leaves. Those terms have changed once and may change again, a matter within the control of Dr. Wilson and his associates. That should not mean that a method of establishing the value of Orthopedics Associates, Inc., cannot consider the accounts receivable, which are a substantial asset of any such professional association. To consider the accounts receivable in evaluating the association is not the same as awarding appellant a share of the accounts themselves. This problem was considered by the court in Stern v. Stern, 66 N.J. 340, 331 A.2d 257 (1975). There the court rejected contentions similar to the theory on which the chancellor in Wilson rejected evaluations of Orthopedics Association, Inc. Stern found that the accounts receivable were to be considered as one of the elements in determining the entire worth, along with other assets, and accounts payable and other liabilities. All of these are elements to be considered in reaching a monetary evaluation of a professional association by several methods accepted by the courts.

The majority rejects appellant’s arguments by citing those cases in which we found that the doctrine of. the law of the case does not apply if there is a material change in the facts, and suggesting that the quantity and quality of evidence on remand is substantially different from the evidence adduced at the initial hearing. However, though there may be more and different evidence on the facts, this does not amount to a material change in the facts of the case. The issue here on the “law of the case” goes to whether or not the trial court on remand has applied the principles of law determined and announced in the first appeal. Overton Constr. Co., Inc. v. First State Bank, 285 Ark. 361, 688 S.W.2d 268 (1985).

In my view, the trial court failed to follow the mandate of Wilson I when it rejected the other evaluations of appellee’s one-third 0/3) share of the partnership and again used the stock purchase agreement value of $20,000 as a measure of appellee’s share of the value of the professional association.

In the final analysis it is our duty to see that the law enables people to have a fair decision after their day in court. In chancery cases this court reviews de novo, and may, rather than remand, determine what judgment should have been reached. O’Neal v. Ellison, 266 Ark. 702, 587 S.W.2d 580 (1979). Since the record is now fully developed, we should determine the value of appellee’s share of the professional association on this de novo review and make an equitable distribution as the decree which the chancellor should have entered.

J. R. Buzbee, Special Chief Justice, joins in the dissent.


author: Per Curiam.

text:
    Kyle D. CHERRY v. STATE of Arkansas
    RC 89-72
    780 S.W.2d 574
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989

      Keith Watkins, for appellant.
    No objection.
   Per Curiam.

Petitioner, Kyle D. Cherry, by his attorney, Keith Watkins, has filed a motion for rule on the clerk. His attorney admits that he miscalculated the time for filing the transcript. Unless the time has been extended by order of the trial court, the record on appeal shall be filed with the clerk of the Arkansas Supreme Court within 90 days from the filing of the first notice of appeal. Ark. R. App. P. 5(a).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


author: Per Curiam. John I. Purtle, Justice,

text:
    Jackie FERGUSON v. SUNBAY LODGE, LTD.
    CA 89-423
    781 S.W.2d 491
    Supreme Court of Arkansas
    Opinion delivered December 18, 1989

      Q. By rum Hurst, Jr., for appellant.

      Wallace, Dover & Dixon, by; Russell Gunter and Allen C. Dobson, for appellee.
   Per Curiam.

The appellant, Jackie Ferguson, originally filed a complaint in United States District Court against the appellee, Sunbay Lodge, Ltd. (Sunbay), and John Aulgur and alleged causes of action under Title VII and state law tort claims of assault, battery, outrage, and negligence. Ferguson’s state law tort claims were dismissed by the court and she subsequently voluntarily dismissed her Title VII claim.

Ferguson then filed suit against Sunbay in Garland County Circuit Court and alleged that Sunbay’s former manager sexually harassed her while she was employed with Sunbay. Ferguson claimed that these acts constituted the torts of outrage and negligence, for which Sunbay was liable. The trial court dismissed Ferguson’s suit with prejudice because it was barred by statutes of limitation. Ferguson has attempted to appeal from the trial court’s order and, as a result, Sunbay has moved to have the appeal dismissed pursuant to Ark. R. App. P. 4(c), which provides as follows:

If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. A notice of appeal filed before the disposition of any such motion or, if no order is entered, prior to the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period. No additional fees shall be required for such filing. (Emphasis added.)
The sequence of events in this case is as follows:
June 22, 1989 Order of Dismissal
July 3, 1989 Appellant’s motion for new trial
July 17, 1989 Appellee’s response to motion for new trial.
July 20, 1989 Appellant’s notice of appeal.
August 3, 1989 Appellant’s reply to appellee’s response to motion for new trial
September 27, 1989 Order denying motion for new trial

As noted above, Ferguson filed a motion for new trial prior to filing her notice of appeal. According to Rule 4(c), Ferguson’s time for appeal would run either from entry of an order on the motion or on the thirtieth day from filing the motion, whichever came first. The 30 day provision is applicable here as the relevant date initiated by the motion for new trial was August 2,1989, and the order denying the motion for new trial was not filed until September 27, 1989.

Consequently, the 30 day time period in which Ferguson had to file a notice of appeal, pursuant to Ark. R. App. P. 4(a), began to run on August 2, 1989.

Ferguson’s July 20, 1989, notice of appeal, which was filed before the disposition of'her motion for new trial, had no effect. In this case, our rules specifically require that a new notice of appeal must have been filed within the prescribed period, as measured from the expiration of the 30 day period. This was not done; therefore, Sunbay’s motion to dismiss is granted.

Hickman and Purtle, JJ., would grant.

John I. Purtle, Justice,

dissenting. We set a trap for lawyers when we amended A.R.A.P. 4(c) to read:

A notice of appeal filed before the disposition of any such motion or, if no order is entered, prior to the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period.

This 1988 amendment to Rule 4(c) drastically changed the existing rule and is contrary to logic and our prior decisions.

In Caskey v. Pickett, 272 Ark. 521, 615 S.W.2d 359 (1981) we stated:

The notice of appeal was timely filed, as supported by case law, statute and rule. Therefore, we do not think it would do justice to penalize a party who filed notice prior to the entry of the decree or judgment. We hold that the filing of notice of appeal before entry of a final order simply becomes effective at the time the final order is entered. The adverse party has not been disadvantaged or suffered any harm. Therefore, the rule will be granted.

Attorneys often live and work in cities far removed from trial sites; it is not feasible, from either a practical or an economical viewpoint, to phone every day to ascertain whether a judgment has. been entered. Orders and motions frequently cross in the mail; sometimes a judgment is mislaid on a desk or elsewhere, thereby greatly reducing the likelihood of accurately determining its filing date.

If I understand the majority ruling, it holds that all post-judgment motions are deemed denied 30 days after filing unless the trial court has already granted or denied it. The major problem is not with motions that have been granted or denied prior to the expiration of the thirtieth day, but with those instances in which the trial court either has made a decision that is to be reduced to a judgment later or has set briefing schedules.

In the present case, the rule is unusually harsh because notice of appeal was given within 30 days of the entry of the original judgment. The order dismissing the appellant’s original complaint was entered on June 22,1989, and her notice of appeal was filed on July 20,1989. Were it not for the fact that Rule 4(c) has been amended, there would be no confusion here.

The rule should be amended again to restore its original form. As such action is unlikely, it suffices for the moment simply to point out that the amended Rule 4(c) has no application to these facts. By its decision today, the court holds that Rule 4(c) overrules the provision of Rule 4(a) of giving a party 30 days to appeal a decision of a trial court. The tail is now wagging the dog.

Hickman, J., joins this dissent.


author: Jack Holt, Jr., Chief Justice.

text:
    Hank WEDGEWORTH v. STATE of Arkansas
    CR 89-139
    782 S.W.2d 357
    Supreme Court of Arkansas
    Opinion delivered January 8, 1990

      Greene Law Offices, by: John Ogles, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Hank Wedgeworth, was convicted of possession and delivery of cocaine and sentenced to 35 years imprisonment and a $25,000 fine. On appeal he contends that the trial court erred in not holding as a matter of law that he was entrapped. We disagree and affirm.

On the morning of August 23,1988, Gene Turner and Paula Reynolds were arrested in El Dorado, Arkansas, for selling cocaine and methamphetamine. Later in the day, the El Dorado police, Turner, and Reynolds reached an agreement that the couple would not have to go to prison if they gave the police the name of their supplier and assisted in making an undercover buy from him. The couple named a resident of East Camden, Arkansas, Hank Wedgeworth, as one of their suppliers. Gene Turner then called Wedgeworth from the police station and asked him if he could supply some cocaine for the couple’s wedding party. Turner and Reynolds were to be married in a few days. Wedgeworth told Turner that he would check to see if he could locate some of the drug.

Wedgeworth claims he got some cocaine from another supplier and that he and Turner agreed to meet at the Retreat Supper Club later that night. The plan of the authorities was that Vickie Mooney, an employee of the El Dorado Police Department, would pose as Paula Reynolds’s cousin from Missouri and participate with Turner and Reynolds in the purchase.

Turner, Reynolds, and Mooney met Wedgeworth at the club. Turner, Reynolds, and Mooney then left in a van and met Wedgeworth again some two miles down the road. Apparently, Turner left Reynolds and Mooney in the van, visited with Wedgeworth, and then the two returned to the van, at which time Wedgeworth was introduced to Mooney. Wedgeworth told Turner to sell the cocaine to Mooney because he (Wedgeworth) “did not know her.” Wedgeworth delivered the cocaine to Turner, who in turn received $200 for the cocaine from Mooney. Turner then handed the money to Wedgeworth. Mooney’s testimony as to the transaction differs to the extent that she testified that she gave the money directly to Wedgeworth in exchange for the drugs. Shortly thereafter, Mooney talked to Wedgeworth privately about buying some more cocaine as a wedding present for Turner and Reynolds.

On August 25, Turner and Reynolds contacted Wedgeworth concerning the proposed sale of additional cocaine to Mooney. As a result, Wedgeworth and Mooney met in the parking lot of the Retreat Supper Club. State Police Investigator Eddie Davis accompanied her. Mooney got into Wedgeworth’s vehicle. He produced three packets of cocaine, and Mooney paid him $475. On October 25, 1988, Wedgeworth was arrested for possession and delivery of cocaine.

At trial, Wedgeworth moved for a directed verdict on the ground that he was entrapped as a matter of law. The trial court denied his motion. Wedgeworth was then convicted and sentenced. Thereafter, he moved for judgment notwithstanding the verdict on the same basis. The trial court denied the motion. From this order, Wedgeworth appeals.

Entrapment is an affirmative defense, upon which the defendant bears the burden of proof by a preponderance of the evidence. McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989); White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989). Entrapment occurs when a law enforcement officer or any other person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Ark. Code Ann. § 5-2-209 (1987). Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. Id.

Entrapment as a matter of law is established only if, viewing the evidence in a light most favorable to the State, there is no factual issue to be decided. Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978). See also Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983); McCaslin, supra. Otherwise, entrapment is a question of fact for the jury to resolve.

Here, there were factual issues to be decided as to whether or not the conduct of the authorities and the persons acting in cooperation with them would have caused a law-abiding citizen to possess and deliver cocaine.

Affirmed.

Turner, J., not participating.


author: Darrell Hickman, Justice.

text:
    Skip LOVELL, et al. v. MAGNET COVE SCHOOL DISTRICT NO. 8
    89-155
    782 S.W.2d 41
    Supreme Court of Arkansas
    Opinion delivered January 8, 1990

      Hicham & Williams, P.A., by: D. Scott Hicham and Lynn Williams, for appellants.

      Spears and Hopkins, by: George Hopkins, for appellee.
   Darrell Hickman, Justice.

The questions posed by this case are whether the legislature can cut off a claim of adverse possession before it vests, and is that what occurred in this case? The answer to both questions is yes.

The facts are not disputed. The appellants took possession of certain land in Hot Spring County in 1975. The appellee school district claimed the land under a deed, recorded in 1951, from the federal government. On September 11, 1985, the school district filed an ejectment action in Hot Spring County Circuit Court. The appellant defended, claiming title by adverse possession. Also the court’s jurisdiction was questioned because the appellants raised the defenses of unjust enrichment, laches and equitable estoppel, which are cognizable in equity, not law courts.

The school district filed for summary judgment on the basis of legislation which prohibits claims and defenses of adverse possession when asserted against a school district. The appellants argued those statutes are unconstitutional because they attempt to divest property rights which have vested. The court granted summary judgment in favor of the school district.

The legislation in question is, in our judgment, a clear expression by the legislature that adverse possession claims will be cut off against school property. The provision in question is § 2 of Act 209 of 1981, which reads:

Hereafter no title or right of possession of any public school system property, or any portion thereof, shall or can be acquired by adverse possession or adverse occupancy thereof, and the right of the public school system or of the proper school authorities of any public school system shall not be defeated in any action or proceeding by reason of or because of adverse possession or adverse occupancy of any such public school system property, or any portion thereof, where the party or parties claiming such adverse possession commence legal action after January 1, 1983. This Act is to serve as legal notice to such parties that claims to adverse possession of public school properties commenced after January 1, 1983, shall be unwarranted and ineffective, and such claim shall be dismissed by the appropriate court.

This act is codified at Ark. Code Ann. § 22-1-203 (1987). At the same session the legislature passed Act 354 which reads:

Hereafter no title or right of possession by an incorporated town, second class city, first class city, school district, county or the State to realty may be defeated in any action or proceeding because of adverse possession.

This act is codified at Ark. Code Ann. § 22-1-204 (1987). Both acts became effective in 1981 before the appellants’ claim of adverse possession vested, which was not until some time in 1982.

In Pinkert v. Lamb, 215 Ark. 879, 224 S.W.2d 15 (1949), we held that a statute which defeated a claimant’s right to possession of land six years and ten months into a seven year period of limitation did not mean the claimant had lost a vested right. The statute became effective prior to the running of the seven year period.

Just as in Pinkert, we find the legislation in this case bars claims or defenses of adverse possession against school districts when the right to adverse possession has not yet vested.

The appellants argue that the last sentence of § 22-1-203(b) expresses the intent to not cut off claims until January 1, 1983, a time by which the appellants’ claim had vested. It was not the intention of the legislature by that sentence to extend claims of adverse possession which had not vested at the time the act became effective.

We do not reach two possible questions: whether the appellants’ claim is barred because they did not commence a suit by January 1,1983, and whether this statute can void a vested claim of adverse possession.

Two other questions are raised which we also find meritless. One is whether jurisdiction was proper in the circuit court. The appellants’ general listing of equitable defenses is not sufficient to warrant reversal on this point. Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980).

The other question concerns the court’s reinstatement of the school district’s case after having dismissed it for lack of prosecution 125 days earlier. On appeal, the appellant argues that by the time the court actually filed its order setting aside the dismissal, its action was not timely. The argument is based on the principle enunciated in Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989). We find this argument was not made below and therefore not preserved for appeal.

Affirmed.

Turner, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Margaret TREIBER v. Joan Edmiston HESS
    89-125
    782 S.W.2d 43
    Supreme Court of Arkansas
    Opinion delivered January 8, 1990

      Davis, Cox & Wright, by: Kelly Carithers and Wm. Jackson Butt II, for appellant.

      The Niblock Law Firm, by: Katherine C. Gay, for appellee.
   Robert H. Dudley, Justice.

Appellee obtained a $100,000 judgment against appellant for alienation of affection. After the judgment was rendered, appeal taken, and transcript lodged in this Court, the General Assembly abolished alienation of affection as a cause of action. Act 46 of 1989 § 6 (effective Nov. 14, 1989). Section 8 of Act 46 provides that abolishment of the action does “not apply to litigation pending before the effective date of this act." [Emphasis supplied.] In spite of this italicized language, appellant asks us to judicially abolish the cause of action back to the time this case was pending and reverse and dismiss the judgment. We decline to do so.

The action for alienation of affection is a judicially created action in this state. Judicially created actions can be judicially abolished. O’Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693 (1986); Wyman v. Wallace, 94 Wash. 2d 99, 615 P.2d 452 (1980). Even though we have the power to judicially abolish the action as of the time this suit was pending, it is a power we choose not to exercise.

Thirty (30) states have legislatively abolished the action for alienation of affection while three (3) have abolished it judicially. It has become an issue of public policy and public policy ordinarily should be decided by the legislature, although we sometimes do decide such matters. See Lewis v. Roland, 287 Ark. 474, 70 S.W.2d 122 (1985). The legislature has acted on the matter. The fact that its action came during the pendency of this appeal does not prevent us from observing its force upon our decision of the case. Van Hook v. McNeil Monument Co., 107 Ark. 292, 155 S.W. 110 (1913). We choose to follow the legislative enactment.

Affirmed.

Newbern and Turner, JJ., not participating.


author: Steele Hays, Justice.

text:
    Jorge Borges GONZALES v. STATE of Arkansas
    CR 89-114
    782 S.W.2d 359
    Supreme Court of Arkansas
    Opinion delivered January 8, 1990

      James R. Marschewski, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Steele Hays, Justice.

At around three o’clock on the morning of August 4,1988, the Zero Quickie Stop in Ft. Smith was robbed. The lone attendant, Ms. Patricia Chitwood, described the robber as a slender, white male, 5’ 2” to 5’ 5” tall, who spoke with a Spanish accent and wore a denim jacket and dark baseball cap. She said he held a sawed-off .22 caliber rifle in his left hand and carried a blue canvas bag in which she was instructed to place the cash register receipts. The robber told her if she gave his description to the police he would return and kill her. She reported the incident promptly and within a few hours had identified Jorge Borges Gonzales from a group of mug shots.

A week later the same attendant noticed someone peering into the convenience store in a manner that aroused her suspicions. She called the police and Gonzales was apprehended near the store. A blue canvas bag was in his pants pocket and a sawed-off shotgun was found in his truck. Ms. Chitwood again identified Gonzales as the robber and testified at trial that the weapon and canvas bag were the same as those used in the robbery.

Gonzales was tried and convicted of aggravated robbery and criminal use of a prohibited weapon. He appeals from the judgment imposing concurrent sentences of forty and six years. Appellant’s two points for reversal are unpersuasive and, accordingly, we affirm the judgment on the sentences.

I

The Trial Court Erred in Not Suppressing the In-Court Identification of the Appellant.

Appellant moved to suppress an in-court identification by the attendant on the premise that the photographic line-up was tainted. This preliminary ruling by the trial court is on a mixed question of law and fact and will not be reversed unless clearly erroneous. Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984). Whether an in-court identification meets constitutional standards is for the trial court, Banks v. State, 283 Ark. 284, 676 S.W.2d 459 (1984), and once admitted, the weight of the evidence is for the jury to determine. Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984).

We find nothing unduly suggestive in the photographic line-up. The witness was given five photographs of Cuban males bearing reasonable similarity to the appellant. Appellant’s photograph was near the bottom of the stack. After making her selection, which was unequivocal, Ms. Chitwood was not told that she had chosen correctly and we find nothing to suggest that her selection was influenced in any manner.

Appellant argues, in effect, Ms. Chitwood chose him by a process of elimination, that by excluding two because they were too young, one because he was too dark and another because he appeared to be an Indian, she chose the only remaining possibility, the appellant. The argument is unconvincing, as a review of Ms. Chitwood’s testimony in its entirety reflects that she was simply trying to be certain of her identification and to explain why she selected the appellant. While the absence of anything unduly suggestive in the identification process ordinarily ends the matter, Moulding v. State, 296 Ark. 378, 757 S.W.2d 916 (1988), it might be noted that Ms. Chitwood had an excellent opportunity to observe the robber in strong light, that her identification was firm and that she gave particulars to the police which fit the appellant in every material respect. There were minor discrepancies, to be sure — she described the weapon.as a sawed-off .22 rifle, as opposed to a 410 shotgun, for example, but these were matters for the jury to resolve.

II

The Trial Court Erred in Not Allowing the Appellant to Cross Examine the Victim by Use of a Voice Identification Test.

Defense counsel asked Ms. Chitwood if she thought she could identify the voice of the person wha .robbed her. Her response was that she didn’t know whether she could or not. Asked if she would be willing to try, she answered, “I guess so, why not?” Counsel then asked permission to set up a screen and have the appellant and three Cuban males speak the words the perpetrator had used during the robbery to see whether the witness could identify appellant’s voice. The trial court sustained an objection by the state.

The only authorities cited by appellant are two cases, Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985), and Gustason v. State, 267 Ark. 278, 590 S.W.2d 583 (1979), which support the general rule that a cross-examiner is given wide latitude in criminal cases. Appellant points out that the police commonly require individuals in a line-up to recite any words that the victim may have heard during a crime. True enough, but there was no showing that such methods were used in this case, nor anything to indicate that voice was a factor contributing to the selection of the appellant. At no time did Ms. Chitwood contend that any part of her identification of appellant was dependent upon his voice. In fact, when asked if she thought she could identify appellant’s'voice her answer was, “I didn’t know.”

We have not previously considered whether voice identification procedures can be adapted to the courtroom, although we have held in a number of cases that it is within the sound discretion of the trial court to grant or refuse permission during trial to either party to conduct an experiment or test in the presence of the jury. Kellensworth v. State, 277 Ark. 238, 641 S.W.2d 699 (1982); Rasmussen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982); Edgemon v. State, 275 Ark. 313, 630 S.W.2d 26 (1982). We see no reason to depart from that rule and cannot conclude, on the facts of this case, that it was an abuse of discretion by the trial court to deny the proposed demonstration. In Bland v. State, 89 S.W.2d 996 (1936), the Court of Criminal Appeals of Texas upheld the trial court’s refusal to conduct voice identification tests during trial, even though the victims of a robbery identified the defendant by his voice as the masked gunman who robbed them.

AFFIRMED.

Turner, J., not participating.


text:
    Chris RAGLAND and Anna Jacobs v. Raymond L. DAVIS and Marvine Davis, His Wife
    89-217
    782 S.W.2d 560
    Supreme Court of Arkansas
    Opinion delivered January 8, 1990

      Putman and Maglothin Law Offices, A Professional Association, by: E.E. Maglothin, Jr., for appellant.

      Boyce R. Davis Associates, by: Boyce R. Davis, for appellee.
   Steele Hays, Justice.

Raymond L. Davis and Marvine Davis, appellees, were awarded a judgment of $14,400 against Anna Jacobs and Chris Ragland for the conversion of twelve Holstein cows. Jacobs and Ragland have appealed. Finding no evidence to sustain the verdict, we reverse and dismiss.

The facts of the case are rather involved and are stated here in accordance with the rule that on appeal, we review the evidence and all reasonable inferences therefrom in the light most favorable to the appellees. American Automobile Auction, Inc. v. Titsworth, 292 Ark. 452, 730 S.W.2d 499 (1987). In April 1984, Wayne Gee leased forty-six Holstein cattle, a cattle trailer and a 3/4 ton truck to Travis Slaughter and Gladys Slaughter, who operated a dairy farm at Summers, Washington County, Arkansas. The lease provided that the Slaughters would pay $637.41 per month, would not encumber the cattle or vehicles, and would replace any cow that died. Wayne Gee is now deceased and his interest in the forty-six leased cows has passed to his daughter, Anna Jacobs.

In late May 1984, the Slaughters purchased forty-three head of Holsteins from Ray and Marvine Davis, giving the Davises a security interest in the cattle to secure the purchase price of $38,000. The number of milch cows on the Slaughter farm was further increased in January of 1986 when James Frye leased seventeen head of Holsteins to the Slaughters.

For the first year or two the Slaughters generally made timely payments on their obligations to Gee, Frye and the Davises. However, by 1986 the quality of milk being produced by the Slaughter herd had declined, resulting in a “D” grade, which curtailed earnings, and the Slaughters became delinquent in their payments. By June 1986 it appears the herd had seriously deteriorated and the cows were not adequately fed or regularly milked. A number of cows had been culled due to health problems, some had died in calving and some from toxic reaction to Johnson grass. Ultimately the Slaughters filed for bankruptcy and are not now involved in this litigation.

Through her attorney, Anna Jacobs arranged for Chris Ragland to remove the cattle her father had leased to the Slaughters and take them to Ragland’s dairy farm near Harrison, Arkansas and on June 9, 1986, Jacobs and Ragland, with Slaughter’s assistance, loaded and removed forty-two head.

A few days later, Jim Frye learned that his cattle had been removed by Ragland and Jacobs and Frye went to the Ragland farm and with Ragland’s help removed eleven from his original seventeen.

Upon learning that the cattle had been removed from the Slaughter farm to the Ragland farm, Ray Davis contacted Anna Jacobs and told her that he had an interest in the cattle and she advised him that as far as she was concerned the Davis cattle replaced any cows missing from her father’s herd. Sometime thereafter Davis went to the Ragland farm and observed about twenty-five or thirty head of cattle. Davis recognized nine or ten head as being those he had originally sold to the Slaughters.

On August 21, 1986, the Davises filed suit in Washington Circuit Court against the Slaughters for the amount due on the purchase of the Holsteins, praying for delivery of the collateral so that the cows could be sold and the proceeds applied against the indebtedness. Named as defendants were Jacobs and Ragland, along with several others on the allegation that some of the cows were in their possession. The complaint alleged that seven of the cows had been sold and removed by “unknown buyers,” at the Washington County Sales Co., Inc., also named as a defendant.

On the second day of April 1987, an Order of Delivery was approved by the circuit court reciting that the Davises and the separate defendants, Jacobs and Ragland, had agreed that the Davises were entitled to a security interest in fifteen “of the total of thirty cattle now held by” Ragland and Jacobs. The order stated that the parties had agreed to an in-kind division of the cattle: the Davises would first select ten cows and their offspring, Anna Jacobs would then select five cows and their offspring, and the parties would then alternate in the selection of one cow and offspring until the Davises had acquired fifteen of such cows and their offspring, with Anna Jacobs retaining the balance.

The parties encountered difficulties in implementing the order, and the Davises petitioned for a contempt citation against Ragland, alleging that “pursuant to a compromise settlement” (our italics) the parties had entered into “a compromise settlement agreement which was manifested by the Order of Delivery.” The petition alleged that Ragland had refused to release any of the cattle and should be punished. Ragland responded that the Davises had not given notice so that the cattle could be rounded up and had attempted to remove livestock belonging to Ragland. Either by hearing or consent (we cannot determine which) the court entered an order finding Ragland in contempt but further finding that he could purge himself of contempt by delivering the cattle selected by the Davises in accordance with the Order of Delivery. It is undisputed that the Davises, by the agreed formula, recovered fifteen cows and offspring and Anna Jacobs retained fourteen cows and offspring.

On September 27, 1987, the Davises filed their “First Amended Complaint,” alleging that between the Order of Delivery on April 2, 1987, and August 3, 1987, when the cows were delivered, defendants Ragland and Jacobs “either converted the plaintiffs collateral to their own use or were negligent in allowing the same to stray, die or otherwise become lost, resulting in a loss of twelve head of cattle.”

At the close of the plaintiffs case the defendants moved for a directed verdict based upon a failure to make a prima facie showing of either conversion or negligence. The trial judge granted the motion with respect to negligence but submitted the issue of conversion to the jury, which returned a verdict of $16,800 for the plaintiffs. Ragland and Jacobs have appealed. Finding merit in their contention, we reverse and dismiss.

The fact is the Davises failed to produce any evidence of conversion by Ragland and Jacobs subsequent to April 2, 1987. The Davises may well have had a claim for conversion against Ragland and Jacobs based on the June 9, 1986 removal of the forty-two head from the Slaughter farm. But that cause of action, if it existed, was not the one alleged in the First Amended Complaint, nor, indeed, could it have been, in view of the compromise settlement entered into in April 1987. We have searched in vain for any evidence from which a jury could properly have inferred an act of conversion of twelve cows, or any cows, after April 2, 1987, by either appellant. There is no such evidence. There is, of course, the dispute over the delivery of the cows shortly after the compromise settlement was reached, but that was soon resolved and the Davises received the exact number of cows due them under the settlement agreement. That relatively brief interruption in the delivery process does not translate into conversion, nor is there any claim by the Davises to the contrary. Moreover, any existing cause of action accruing to the Davises merged into the compromise settlement. Harris v. Brewer, 239 Ark. 614, 390 S.W.2d 630 (1965); Burke v. Downing Co., 198 Ark. 405, 129 S.W.2d 946 (1939).

In Burke, the court quoted the following comment from 11 Am. Jur., Compromise and Settlement § 4 (1937):

The law favors the amicable settlement of controversies, and it is the duty of courts rather to encourage than to discourage parties in resorting to compromise as a mode of adjusting conflicting claims. The nature or extent of the rights of each should not be too nicely scrutinized. Courts should, and do, so far as they can do so legally and properly, support agreements which have for their object the amicable settlement of doubtful rights by parties; the consideration for such agreements is not only valuable, but highly meritorious. Because they promote peace, voluntary settlements of differences between parties having legal capacity to contract in respect of their rights, where all have the same knowledge or means of obtaining knowledge concerning the circumstances involving their rights and where there are no fraud, misrepresentations, concealments, or other misleading incidents, must stand and be enforced if intended by the parties to be final, notwithstanding the settlement made might not be that which the court would have decreed if the controversy had been brought before it for decision. Such agreements are binding without regard to which party gets the best of the bargain or whether all the gain is in fact on one side and all the sacrifice on the other.

Here, it is clear that at the time the compromise agreement was reached Ray Davis was fully aware of the circumstances. He had been to the Ragland farm and found only “25 or 30 head” remaining, and Anna Jacobs had informed him that so far as she was concerned all the cattle removed on June 9,1986, were from the herd leased by Wayne Gee to the Slaughters. Thus, the Davises settled with the appellants while knowledgeable of all the facts.

Two additional assignments of error are asserted, but they need not be addressed.

Reversed and dismissed.

Turner, J., not participating.

       The amount of the award was subsequently reduced by the trial court to $14,400 and costs.


author: David Newbern, Justice.

text:
    Carlton Keith GOLDSMITH v. STATE of Arkansas
    CR 89-115
    782 S.W.2d 361
    Supreme Court of Arkansas
    Opinion delivered January 8, 1990

      Gibbons and Walker, by: David L. Gibbons, for appellant.

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

Carlton Keith Goldsmith, the appellant, was convicted of first degree murder and sentenced to 40 years imprisonment for killing Dusty Fowler, the two-year-old son of Goldsmith’s living companion, Marsha Fowler Ogle. Goldsmith’s sole point of appeal is that the court erred in refusing to grant a mistrial after erroneously allowing Clarence Curston to testify as a rebuttal witness. We find no error and affirm.

Marsha Ogle testified that on May 1, 1988, she and Goldsmith and her two children were living in a house on the Logan farm where Goldsmith was employed. Someone came to the door and asked for help in freeing a vehicle which had become stuck in the mud. Goldsmith used a pickup truck owned by his employer to pull the stuck vehicle out, but in the process the employer’s truck became stuck. Goldsmith returned to the house. He and Ogle and Dusty Fowler went in Goldsmith’s personal pickup truck to the Logan home on the farm to borrow a tractor to use in pulling Goldsmith’s employer’s truck out. Goldsmith drove the tractor, and Ogle drove Goldsmith’s truck. Dusty got in the tractor with Goldsmith. They drove back to the house where they were staying and left Goldsmith’s pickup. Then all three rode in the tractor to the site where the employer’s truck was stuck. Once the truck was freed, Ogle was to drive it back to their house and switch to Goldsmith’s pickup truck and then meet him at the Logan’s where he would return the tractor.

Ogle testified further that Dusty accompanied Goldsmith in the tractor. On her way back to the house she took a wrong fork in the road and wound up at a cemetery where she could not turn the truck around because the transmission was jammed in a forward gear. Someone, who turned out to be Curston, came to help her. They got the truck into reverse gear and were able to turn it around. Ogle returned that truck to the house and then drove Goldsmith’s truck to the Logan home. As she approached the Logan place, Goldsmith came toward her on foot holding Dusty who was apparently unconscious. Goldsmith told her Dusty had fallen and was hurt and to drive to the hospital. On the way he told her Dusty was not breathing.

Goldsmith’s testimony about the day’s activities was roughly the same as Ogle’s up to the point when, after using the tractor to pull his employer’s truck out of the mud, they started back to the house where they were staying. Goldsmith testified that Dusty was not with him in the tractor but was with Ogle. Before he got to the area of the cemetery, Ogle, who was driving Goldsmith’s truck, had caught up behind the tractor. He said he looked back and could see Ogle whipping Dusty in the pickup truck. He stopped the tractor and let Dusty ride with him to Logan’s. As they drove on, he was examining Dusty for bruises when he hit a rut, the tractor jumped, and Dusty wound up on the floorboard with an injury to his head. When he and Dusty got to the Logan home, Dusty was passing out. He and Ogle took Dusty to the hospital.

Curston was called as a rebuttal witness. He testified, over objection, that when he was helping Ogle with the truck transmission at the cemetery he did not see anyone with her.

Other testimony in the state’s case in chief included that of a former assistant state medical examiner who performed an autopsy on Dusty’s body. He stated that the body had bruises over the thoracic, abdominal, and shoulder areas. There was a skull fracture and edema of the brain. The brain expansion and concussion were the causes of death. Wounds on Dusty’s extremities were consistent with defense wounds he would have gotten trying to protect himself. David Baker, a friend and co-worker of Goldsmith testified that he had worked with Goldsmith when Goldsmith and Ogle were living together on a farm in Texas. He said he had seen Goldsmith knock Dusty down, kick him, slap him, and put dirty diapers on his face. He was afraid of Goldsmith who could “get mad ... if you set him off.”

Goldsmith argues that Curston’s testimony was not proper rebuttal testimony because Goldsmith takes the position that Dusty was in the tractor with him and not with Ogle when they approached the cemetery, thus Curston’s testimony is not inconsistent with his. He contends Curston was called to confuse the jury and make it appear that Goldsmith was contradicting a “local” person. We find no merit in the argument. If Curston’s testimony is consistent with that of Goldsmith, then the only possible error would be that it does not technically amount to rebuttal evidence. We are not convinced that such an error, if it was one, was prejudicial. There is nothing to show that the jurors were confused. We do not reverse for an alleged error which is unaccompanied by a showing of prejudice. Taylor v. State, 299 Ark. 123, 771 S.W.2d 283 (1989); Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985). We have no doubt that it was proper to deny the mistrial motion because that remedy is so drastic that it must appear to the court that the prejudice resulting from the alleged error is so great that the trial cannot, in fairness, be allowed to proceed. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989); Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980).

Affirmed.

Turner, J., not participating..


text:
    Kimberly Ellen MIDDLETON v. Elvis STILWELL and Clarence Sloate
    89-260
    782 S.W.2d 44
    Supreme Court of Arkansas
    Opinion delivered January 8, 1990

      Eaton & Embry, by: Charles S. Embry, Jr., for appellant.

      Matthews, Sanders, Liles & Sayes, by\Marci Talbot Liles, for appellee.
   David Newbern, Justice.

Kimberly Ellen Middleton sued the appellees, Elvis Stilwell and Clarence Sloate, for injuries sustained by her in two separate automobile accidents. Eighteen days after the accident involving Stilwell, she had a collision with Sloate. She claimed her injuries from the first wreck were aggravated in the second one. The trial court ordered that one of the defendants be dismissed, in effect requiring two separate actions. The claim against Sloate was dismissed without prejudice. Middleton argues it was error to have dismissed her claim against Sloate thus preventing her from seeking joint and several liability of the two defendants in the same action. We must dismiss the appeal because there is no appealable order.

When multiple parties are involved in a case,

the court may direct the entry of a final judgment as to one or more but fewer than all of the . . . parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates . . .the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. [Ark. R. Civ. P. 54(b)]

We have stated on many occasions that, for purposes of appeal, a judgment is final if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Elardo v. Taylor, 291 Ark. 503, 726 S.W.2d 1 (1987); McElroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982). See Ark. R. App. P. 2(a). Although the dismissal of the claim against Sloate was without prejudice, it was clearly a dismissal of Sloate from this action. The court thus could have made a determination that there was no need for delay and could have directed the entry of a final judgment of dismissal of Sloate from this action in accordance with Rule 54(b). No such determination or direction occurred.

The failure to comply with Rule 54(b) presents a jurisdictional issue in this court which we will raise on our own, and, absent compliance, we dismiss the appeal for lack of a final order. King v. Little Rock School Dist., 296 Ark. 552, 758 S.W.2d 708 (1988); Kilcrease v. Butler, 291 Ark. 275, 724 S.W.2d 169 (1987).

Appeal dismissed.

Glaze and Turner, JJ., not participating.


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Bessie W. COFFELT and Kenneth C. Coffelt
    89-160
    782 S.W.2d 45
    Supreme Court of Arkansas
    Opinion delivered January 8, 1990
    [Rehearing denied February 5, 1990.]

      Robert L. Wilson and Philip N. Gowen, for appellant.

      Mike Wilson and Kenneth Coffelt, for appellees.

      Hickman, J., not participating.

   Tom Glaze, Justice.

This appeal is a sequel to our decision in Arkansas State Highway Comm’n v. Munson, 295 Ark. 447, 749 S.W.2d 317 (1988), where we refused the Commission’s request for a writ of prohibition against a Pulaski County Chancery Court’s order staying the Commission from collecting a prior judgment it obtained against the Coffelts in a Pulaski County Circuit Court in November 1985. Following our decision, the chancery court made its stay permanent upon finding the circuit court’s earlier judgment was void as a taking of the Coffelts’ property without compensation in violation of the Arkansas and United States Constitutions.

The Commission argues the chancery court erred in finding the circuit court’s judgment was void. It contends further that the doctrine of res judicata barred the Coffelts’ subsequent action in chancery court.

The parties agree that an erroneous judgment subject to direct attack does not impair its effect as res judicata; a void judgment, however, amounts to nothing and has no force as res judicata. See Selig v. Barnett, 233 Ark. 900, 350 S.W.2d 176 (1961); 2 A.C. Freeman, Law of Judgments § 642 (1925). Thus, the threshold question in this appeal is whether the 1985 circuit court judgment is void since only under such a circumstance were the Coffelts allowed collaterally to attack the circuit court’s judgment. We hold that the circuit court clearly had jurisdiction and was competent to enter the judgment it did against the Coffelts and that the chancery court erred in holding the judgment void.

First, we point out that the 1985 circuit court judgment in issue here was the focus of controversy in Coffelt v. Arkansas Highway Comm’n, 289 Ark. 348, 712 S.W.2d 283 (1986). There the Coffelts sought relief from the circuit court judgment, but we upheld the judgment by summarily affirming the appeal from that judgment pursuant to Ark. Sup. Ct. R. 9(e)(2). Next, we note that it is well settled that a judgment on first appeal is conclusive as to every question of law or fact that was actually decided, or could have been decided, at that time. May v. May, 267 Ark. 27, 589 S.W.2d 8 (1979). Nevertheless, while the Coffelts do not question such legal authority, they still maintain that the circuit court’s judgment in question here is facially void and open to attack because the judgment reflects the jury found for the Coffelts but awarded no damages for the Commission’s taking of their property. As a consequence, the Coffelts contend the circuit court judgment was not merely erroneous and subject to direct appeal, but instead was void and subject to collateral attack. In support of this argument, the Coffelts cite Greene County v. Knight, 174 Ark. 618, 297 S.W. 861 (1927) and Independence County v. Lester, 173 Ark. 796, 293 S.W. 743 (1927).

The Knight case is clearly distinguishable because the lower court’s condemnation order there was made without notice to the landowners and was unquestionably void. In the present case, the Commission performed its statutory duties and the Coffelts undisputedly were apprised and notified of the state’s condemnation proceedings.

The Lester case involved a county court’s taking of a landowner’s property but the landowner’s claim for the damages was disallowed because the county revenues had been exhausted and the county was therefore prohibited from paying the claim under restrictions in amendment 11 to the Arkansas Constitution. Under such circumstances, this court held the county court had no power to condemn the landowner’s property and thus the county court’s order to that effect was absolutely void. Although when reviewing the language used in the Lester decision one might question whether the county court’s order could be labeled as merely erroneous rather than void, this court’s decision there was based upon its finding that the county court, under amendment 11, had no authority whatsoever to take the landowner’s property since the county court had no revenues to pay for such a taking. In this context, the court concluded the county court’s order was absolutely void. Again, in the present case, the situation differs since the Commission followed its statutory duties required under Ark. Code Ann. §§ 27-67-301 to -67-323 (1987) and paid an estimated deposit under § 27-67-314 (1987) in connection with its taking of the Coffelts’ property. In sum, here the circuit court had jurisdiction of the condemnation proceeding and no showing was made that fraud or collusion was involved. That being so, the judgment was not void.

Finally, we address the Coffelts’ concern that since the circuit court judgment reflects the Commission took their property without an award of damages, such a verdict was inconsistent and therefore void by its own terms. The Commission counters such an argument, correctly we believe, stating the Coffelts wish to ignore that the jury was correctly instructed concerning the state’s taking of the Coffelts’ property and that the jury could have accepted the Commission’s expert testimony that no damages resulted from the taking. Such damages issues could well have been addressed in the Coffelts’ direct appeal from the circuit court’s 1985 judgment and a determination could have been made regarding the correctness of the jury’s acceptance of the Commission’s evidence on this issue. As previously mentioned, we disposed of this and other issues raised (or which could have been raised) when we summarily affirmed the Coffelts’ appeal from the circuit court’s judgment in 1985.

For the foregoing reasons, we reverse and dismiss the chancery court’s decision holding the Pulaski County Circuit judgment void.

Hickman and Turner, JJ., not participating.

       Actually, the judgment was entered against Mrs. Coffelt, but because Mr. Coffelt has since become a party to this litigation, our reference will include both for ease of writing this opinion.


text:
    Marshall G. ALDRIDGE and Diana J. Aldridge v. Brent TYRRELL
    89-174
    782 S.W.2d 562
    Supreme Court of Arkansas
    Opinion delivered January 16, 1990
    [Rehearing denied February 20, 1990.]

      William L. Owen, for appellants.

      Harlan A. Weber, for appellee.
   Jack Holt, Jr., Chief Justice.

On October 2, 1980, the appellee, Brent Tyrrell, purchased a tract of land by warranty deed from Duo-Fast of Arkansas, Inc. (Duo-Fast). The tract consisted of two parcels of land and was subject to a mortgage in favor of Worthen Bank & Trust Company, N.A., and a second mortgage in favor of Duo-Fast. Tyrrell operated the business of Brent Tyrrell GMC Truck, Inc., on the property.

Duo-Fast received the 1980 tax statement in its name and forwarded the tax statement to Tyrrell, who went to the office of the Pulaski County Assessor (Assessor) to ensure the change of ownership on the tax records. Tyrrell paid $1864.04 for the 1980 taxes.

The Assessor, however, transferred only one of the parcels to reflect the change in ownership on the tax records. As a result, in 1982 Tyrrell received a 1981 tax statement, in the amount of $ 1682.90, for only one of the parcels. The 1981 taxes on the parcel that was not transferred, in the amount of $181.12, became delinquent, and the parcel was certified to the State Land Commissioner for tax sale in June 1985. In June 1988, the property was offered for public sale; however, no acceptable bids were received, and the property was not sold. As a result, on August 18, 1988, the appellants, Marshall and Diana Aldridge (Aldridges), bought the parcel at a negotiated sale. Later that month, the Aldridges notified Tyrrell that they had purchased the parcel and requested the payment of rent.

Prior to the Aldridges’ communication, Tyrrell had not been notified of the tax sale or his ability to redeem the property.

Tyrrell instituted this suit to set aside the limited warranty deed issued by the Land Commissioner on the basis of irregularities in the sale. The chancellor issued a decree setting aside the sale and cancelling the Aldridges’ limited warranty deed.

From that decree, the Aldridges appeal and allege five points of error: 1) that Tyrrell failed to state facts upon which relief could be granted because his complaint failed to name the county clerk or collector who were responsible for the tax records, instead of the assessor, 2) that Tyrrell was the proximate cause of any errors on the tax books because he failed to obey the law, 3) that because equity follows the law, and Tyrrell did not obey the law, then equity should not favor Tyrrell, 4) that the Chancellor’s finding of facts was clearly erroneous, and 5) that the chancellor erred when she declared two statutes unconstitutional when that issue had not been pled.

We find no merit to any of the points of error and, therefore, affirm.

FAILURE TO STATE FACTS

The Aldridges initially argue that Tyrrell failed to state facts upon which relief could be granted because his complaint failed to name the county clerk or collector who were responsible for the tax records, instead of the Assessor. We disagree.

The Aldridges argue that the duty of preparing and maintaining the tax books was initially that of the County Clerk, Ark. Code Ann. §§26-28-101 to-113 (1987), and that these responsibilities were transferred to the County Collector in 1983. 1983 Ark. Acts 626 § 2. They assert that the chancellor erred when she found that the Assessor made an error in failing to transfer ownership of the property on the tax books.

The taxation process necessarily involves a close interrelationship among the tax assessor, county clerk, and collector. Ark. Code Ann. §§ 26-26-501, -714, -715, -718 (1987), -716 (Supp. 1989); Ark. Code Ann. §§ 26-35-601, -1001 (1987). Specifically, section 26-26-501 (a)(1) (1987) addresses the general duties of the Assessor, which provides in pertinent part that “[t]he county assessor shall devote his entire time to the duties of his office. The assessor shall maintain an office ... for the purpose of taking a list of all real and personal property for that year required to be listed.”

We noted in Gilley v. Southern Corporation, 194 Ark. 1134, 110 S.W.2d 509 (1937), that an attempt by an owner, in good faith, to pay his taxes or to redeem his land after failure to do so, may not be defeated by the mistake, negligence, or other fault on the part of public officers in the discharge of their official duties.

This rule is dispositive in regard to the facts of this case. The Assessor is a public officer, and Tyrrell went to the Assessor’s office in a good faith attempt to ensure that the taxes on his property would be correctly billed and paid. The Chief Deputy Assessor admitted that his office did not change the ownership of the property. Because of the interrelationship of the tax assessor, county clerk, and collector, notice to the Assessor under these circumstances was sufficient. Tyrrell’s good faith attempt to pay his property taxes is not defeated by the Assessor’s mistake.

PROXIMATE CAUSE

The Aldridges also contend that Tyrrell’s failure to obey the law was the proximate cause of any error on the tax books and that his resultant failure to receive notice would not void the tax sale.

Although section 26-26-501 (a)(2) provides in pertinent part that “[a]ny person owning real or personal property, or both, shall, at the time and place indicated in this section, deliver to the assessor, either in person or by agent, a verified list of his real and personal property . . . ,” the Aldridges’ reliance on Sadler v. Hill, 243 Ark. 247, 419 S.W.2d 298 (1967), and Leonard v. Thompson, 228 Ark. 136, 306 S.W.2d 869 (1957), is misplaced.

The chancellor addressed this point of error in her letter opinion of March 14, 1989:

The Sadler and Leonard cases both involved a situation in which the court determined that the fact that the plaintiff landowners in the two cases were responsible for the land not being assessed in their respective names barred them from attempting to invalidate the tax sale on that basis. In Sadler, a landowner named P.H. Williams paid taxes on the land in the name of “W.T. Williams.” Notice of the sale was published in the name of W.T. Williams, and the court held this to be sufficient compliance with the law.
The court in Sadler, with little discussion of the issue, relied upon the Leonard case in reaching its decision. In Leonard, the landowner failed to comply with the requirement that he deliver a verified list of his real property to the Assessor. Due to this failure to assess, the property continued to appear on the record in the name of the previous owner. The Leonard court stated:
We did not comply with the law: he left the lands assessed in the name of the Dorsey Land & Lumber Company. Now he comes into court and seeks to void an improvement district foreclosure sale because he was not named in the published notice as the owner of the land, when it was his own failure to comply with the statute on the assessing of property . . . that prevented him from being listed as owner.
While it is true that Mr. Tyrrell, like the landowner in Leonard, did not comply with the letter of the statute, in the instant case we have an additional fact — the error on the part of the Assessor. Further, though Mr. Tyrrell did not present a verified list of his real property, he did take steps to assess, and to assure that he was being taxed on the property he owned. There is at least some fault on the part of both Mr. Tyrrell and the Assessor. The case thus boils down to a determination of whose fault was greater.
. . . [Tyrrell’s] purpose in personally visiting the Assessor’s office was to see that he was assessed correctly — to make sure that the land was reflected in the tax records as being owned by him Ark. Code Ann. § 26-26-718 (1987) states that “[i]t is the duty of the several tax assessors of the state to correctly describe according to ownership of each parcel of real property in the county, and every acre of land or town or city lot must be accounted for on the assessment roll.” In this case, the taxpayer substantially complied with the statute on one hand and a public official failed to comply with another statute (through mistake or the like) on the other. . . .

We agree with the chancellor’s finding that Tyrrell substantially complied with his statutory duty to assess his property. This is all that is necessary. Her determination as to the relative fault of the parties was not essential or required.

EQUITY AND FINDING OF FACTS

The Aldridges also contend that equity should not favor Tyrrell because he did not obey the law, in that he failed to provide a verified list of his real property to the Assessor, Section 26-26-501(a)(2), supra, and that the chancellor’s finding of facts was clearly erroneous.

On appeal, we consider the evidence in the light most favorable to the appellee, and, although we try chancery cases de novo on the record, we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988) (citing Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987) and Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987)).

In Vanderbilt v. Washington, 249 Ark. 1070, 463 S.W.2d 670 (1971), we recognized that “. . .[t]he law in Arkansas is rather clear that where a taxpayer makes an attempt in good faith to pay his taxes and is prevented by the mistake, negligence or other fault on the part of the Collector, the sale of his land for nonpayment of taxes is void.” See Scroggin v. Ridling, 92 Ark. 630, 121 S.W. 1053 (1909); Robertson v. Johnson, 124 Ark. 405, 187 S.W. 439 (1916); Forehand v. Higbee, 133 Ark. 191, 202 S.W. 29 (1918).

Again, although Tyrrell did not literally comply with section 26-26-501 (a)(2), he demonstrated substantial compliance with the statute in that he personally visited the Assessor’s office to ensure that the records reflected the change of ownership for the property, and the Assessor’s office admitted that they did not do so.

The Aldridges’ arguments on this point of error are not persuasive; consequently, the chancellor’s finding that equity favored Tyrrell is not clearly erroneous.

UNCONSTITUTIONAL STATUTES

Finally, the Aldridges assert that the chancellor erred when she declared two statutes unconstitutional when that issue had not been pled. The Aldridges raised Ark. Code Ann. § 26-34-102 (1987) and Ark. Code Ann. § 26-37-208 (1987) as affirmative defenses.

Section 26-34-102 provides as follows:

It shall not be necessary to the validity of an assessment or of a sale of land for taxes that it be assessed to its true owner. Rather, the taxes shall be a charge upon the real and personal property taxed and, when sold, shall vest the title in the purchaser without regard to who owned the land or other property when assessed or when sold.

Section 26-37-208 provides as follows:

No sale of any land or lot for delinquent taxes shall be considered invalid on account of its having been charged on the tax book in any other name than that of the rightful owner if the land or lot is, in other respects, sufficiently described on the tax books and the taxes for which the land or lot is sold are due and unpaid at the time of the sale.

The chancellor’s ruling in regard to this matter stated:

Finally, I need to mention that I do not find that the statutes cited as affirmative defenses by the defendants control the outcome of this case. The statutes, ... , in general, provide that a tax sale is not invalidated by the fact that it was assessed in the name of someone other than the true owner. Both of these statutes were first enacted in 1883. Only one of them has ever been cited in a reported case. I find that these statutes have to be read in light of the case law and other statutes cited earlier. The statutes should apply to a case where the taxpayer can be faulted for the fact that the property is assessed in someone else’s name. To say that the statutes apply in a case such as the present is to say that the state may, through its own error, assess the wrong person for the taxes on a landowner’s property, fail to notify him that the taxes are due, fail to give him notice of the sale, and thereby deprive that person of his ownership rights in the property. If the statutes are actually meant to apply in such a situation, they are almost certainly unconstitutional.

The chancellor’s holding that the Aldridges’ affirmative defenses were not controlling in this case is far different from a holding that the statutes are unconstitutional.

Accordingly, we affirm.