text:
    BARNES, QUINN, FLAKE & ANDERSON, INC. v. Marcia Garrison RANKINS
    92-1003
    848 S.W.2d 924
    Supreme Court of Arkansas
    Opinion delivered March 1, 1993

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellant.

      Willard Proctor, Jr., for appellee.
   Robert L. Brown, Justice.

The appellant, Barnes, Quinn, Flake, and Anderson, Inc., appeals from a verdict and judgment in favor of the appellee, Marcia Garrison Rankins, in the amount of $11,000 resulting from a broken ankle sustained at an apartment complex managed by the appellant. All three issues raised on appeal revolve around Rankins’s knowledge that there was an unsafe condition on the premises, that is, a hole in the parking lot which resulted in her injury. We hold that the issues raised are without merit, and we affirm.

Rankins was a tenant at the Red Oak Apartments in Little Rock, which were managed by the appellant, when the injury occurred on September 6, 1988. She was returning home from work at St. Vincent Infirmary at approximately 11:00 p.m. when she stepped in a hole in the parking lot and broke her ankle. The hole had been in the parking lot for as long as two to six months, according to Rankins. Jean Jackson, who worked for the appellant as the resident manager of the apartments, knew about the hole and had attempted to rectify the situation by blowing dirt, sand, and gravel into it. The hole was never filled so as to be level to the parking lot, and, according to Jackson, from time to time water caused the fill to wash away.

Rankins also knew that the hole was there, but at the time of the accident, she testified that she was tired and eager to get home. She also said that she was looking ahead and had books and a purse in her arms when she fell. The parking lot area, according to her testimony, was not well lighted, though this was contested by the resident manager.

Rankins sued the appellant for keeping the premises in an unsafe condition and for failure to warn and sought damages for medical expenses, lost wages, and pain and suffering in the amount of $25,000. At trial, Jean Jackson testified that she had asked an asphalt repair man to fill the hole, and he said that it could not be done because the hole area was too wet to accommodate asphalt. Following the trial, the jury awarded Rankins $11,000.

I. JURY INSTRUCTION

The appellant argues first that the circuit court erred in refusing to instruct the jury on Rankins’s duty to see, hear, think, and discover obvious dangers. The court gave the following instructions regarding duty and negligence:

INSTRUCTION NO. 6, AMI 206
Barnes, Quinn, Flake & Anderson and Donald J. Parks contend that Marci Rankins was negligent which was the proximate cause of her own injury. Barnes, Quinn, Flake & Anderson and Donald J. Parks have the burden of proving this contention.
INSTRUCTION NO. 9, AMI 1104A
In this case Marcia Rankins was [a tenant] upon a premises owned by Don Parks and leased to Marcia Rankins.
Don Parks and Barnes, Quinn, Flake & Anderson, Inc. owed Marcia Rankins a duty to use ordinary care to maintain the premises in a reasonably safe condition.
INSTRUCTION NO. 10, AMI 303
A failure to exercise ordinary care is negligence. When I use the words “ordinary care,” I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances.
INSTRUCTION NO. 11, AMI 305
It was the duty of all persons involved in the occurrence to use ordinary care for their own safety and the safety of others.

The court, however, refused to amend AMI instruction 1104A by adding the following clause, as requested by the appellant:

However, the Plaintiff is also required to exercise ordinary care by using her ability to see, hear, and think to discover obvious dangers to which she may be exposed.

The language for the proffered addition was drawn from a case in which the federal district court in a bench trial found the plaintiff forty-five percent at fault and described the plaintiffs duty in terms of the proffered language. Phillips v. Morton Frozen Foods, 313 F.Supp. 228 (E.D. Ark. 1970). The failure to give the amended instruction, the appellant contends, was error. We disagree.

The jury was instructed that all parties involved in the matter had the duty to exercise ordinary care, and was further instructed on what constituted ordinary care. Rankins’s duty, as a result, was relayed to the jury in terms of how a reasonably careful person would act under these circumstances. We have held that it is not error to refuse an instruction if the AMI instructions given embrace the instruction disallowed. Newman v. Crawford Construction Co., 303 Ark. 641, 799 S.W.2d 531 (1990). Nor is it error to give an instruction that defines the duty owed only in general terms. See Dena Construction Co. v. Burlington N.R.R., 297 Ark. 547, 764 S.W.2d 419 (1989).

Here, the circuit court correctly concluded that an instruction specifically alluding to Rankins’s sensory perception and memory as aspects of reasonable care was not warranted. This was so even though the court did instruct the jury that the appellant had a duty to maintain the premises in a reasonably safe manner. In the definition of ordinary care applied to both parties and in the instruction relating to the appellant’s duty to maintain the premises, reasonable care and safety were the operable watchwords. What facts constitute reasonable care is for the jury to decide. The circuit court did not abuse its discretion in refusing to give additional illustrations of what elements might comprise reasonable care.

II. DIRECTED VERDICT

The appellant next contends that Rankins failed to prove negligence on the appellant’s part in failing to repair the hole properly, and, accordingly, a directed verdict should have been given in the appellant’s favor.

Our standard of review in determining the propriety of refusing a directed verdict is whether the verdict of the jury is supported by substantial evidence, that is, evidence that is sufficient to compel a conclusion one way or the other and that goes beyond suspicion or conjecture. Young v. Johnson, 311 Ark. 551, 845 S.W.2d 509 (1993); Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 671 S.W.2d 178 (1984).

The appellant, through its employee, Jean Jackson, knew about the unsafe condition in the parking lot but failed to repair it with a permanent fill such as asphalt for a period of some months. On this point, the jury could well have concluded that Jackson was not convincing when she testified that the hole could not be permanently repaired with asphalt. The efforts to repair the hole with sand, gravel, and other debris were clearly inadequate because the area where the hole was located was subject to being washed out during wet weather.

Our law in this regard is well settled that when a landlord undertakes to repair the premises, the landlord is liable for any negligence in making those repairs. Sparks v. Murray, 120 Ark. 17, 178 S.W. 909 (1915). The repair work in the present case was of doubtful competence. The incompetence of the repairs and whether this rose to the level of negligence was for the jury to decide. The jury concluded that it did and found for Rankins. We cannot say that the verdict was not supported by substantial evidence.

III. PROXIMATE CAUSE

The appellant, for its final point, contends that the hole was not the proximate cause of the accident, but that Rankins’s inattention was, and that the circuit court, as a consequence, erred in refusing to direct a verdict on proximate cause in the appellant’s favor.

The jury was instructed on proximate causation and comparative fault. Suffice it to say that there was more than sufficient evidence presented to confirm that the hole was a proximate cause of the accident. The decision on causation, accordingly, was appropriately left to the jury. Because only a general verdict was requested, we are left to speculate on whether the jury believed both parties caused the injury but that Rankins’s negligence was of a lesser degree. We do know that Rankins prayed for $25,000 in damages and received $11,000.

This is not a case such as we had in May Construction Co. v. Frick, 253 Ark. 642, 488 S.W.2d 3 (1972), where the plaintiff knew about the hoses on the sidewalk and fell as she attempted to step over them. Here, Rankins, though generally aware of the hole, was walking across a parking lot at night (the subject of effective lighting was in dispute) and testified that she was not mindful of the hole when she fell and broke her ankle. Causation was for the jury to decide, and there was no error in the circuit court’s decision to deny a directed verdict on this issue. To hold otherwise would be to absolve landlords of any responsibility for the lack of repair of defective conditions on their premises when the tenants know generally about those conditions.

Affirmed.

Glaze, J., not participating.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    John BURK v. STATE of Arkansas
    CR 93-146
    848 S.W.2d 934
    Supreme Court of Arkansas
    Opinion delivered March 1, 1993

      Joseph Harold, for appellant.
    No response.
   Per Curiam.

Appellant, John Burk, by his attorney, Joseph H. O’Bryan has filed a motion for rule on the clerk. His attorney admits that the record was tendered late.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Minnie PRYOR v. STATE of Arkansas
    CR 93-111
    850 S.W.2d 301
    Supreme Court of Arkansas
    Opinion delivered March 1, 1993

      Paul N. Ford, for appellant.
    No response.
   Per Curiam.

Appellant, Minnie Pryor, by her attorney, Paul N. Ford has filed a motion for rule on the clerk. Her attorney admits that the record was tendered late.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Robert H. Dudley, Justice.

text:
    Terry NUTT and Jerry Nutt v. STATE of Arkansas
    CR 92-1095
    848 S.W.2d 427
    Supreme Court of Arkansas
    Opinion delivered March 8, 1993

      Gregory E. Bryant, for appellants.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellants were jointly tried and convicted of second degree murder. On appeal, they contend that the trial court improperly interfered with their voir dire examination. The appeal is without merit, and we affirm the judgments of conviction.

During voir dire appellants’ counsel began to recite the facts he thought would be proved during the trial. Perhaps before appellants’ counsel had finished his recitation of facts, and clearly before any of the jurors had a chance to respond, the deputy prosecutor asked if counsel could approach the bench and, out of the hearing of the jury, objected to the factual recitation. The trial court ruled by advising appellants’ counsel that at the time they were conducting voir dire examination, and not giving opening statements. Appellants’ counsel responded that, after stating the facts, he intended to ask the jurors if they would accept his theory of the case and accept his defense. The trial judge advised appellants’ attorney that he could not recite a set of facts and then seek to commit the prospective jurors to a decision in advance on those facts. Appellants’ counsel asked a number of questions without objection and then asked the trial court for a clarification of its earlier ruling. Out of the hearing of the jury, the trial court responded that counsel might ask “about specific subjects, about the prospective juror’s views on particular defenses, such as insanity defenses; however, you may not question them in regard to the facts expected to be proved at the trial and thus commit the jury to a decision in advance.”

Appellants contend the trial court’s ruling erroneously prevented them from inquiring into prospective jurors’ views regarding their theory of defense. The ruling of the trial court was eminently correct. The purposes of voir dire examination are to discover if there is any basis for challenges for cause and to gain knowledge for the intelligent exercise of peremptory challenges. A.R.Cr.P. Rule 32.2; Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983). Those purposes do not include an attempt to commit the jurors to a decision in advance. In Hobbs v. State, 277 Ark. 271, 275-76, 641 S.W.2d 9, 12 (1982), we wrote, “[Prospective jurors may not be questioned with respect to a hypothetical set of facts expected to be proved at trial and thus commit the jury to a decision in advance, but. . . they may be questioned . . . about their mental attitude toward certain types of evidence, such as circumstantial evidence.”

Affirmed.


text:
    WESTARK CHRISTIAN ACTION COUNCIL v. Mark STODOLA
    92-1034
    848 S.W.2d 935
    Supreme Court of Arkansas
    Opinion delivered March 8, 1993

      DeLay Law Firm, by: R. Gunner De Lay, for appellant.

      Mark Stodola, for appellee.
   Robert H. Dudley, Justice.

We dismiss this appeal because the case is moot. Dale W. Morfey, Chairman of the Westark Christian Action Council, Inc., complained to Mark Stodola, the Prosecuting Attorney of the Sixth Judicial District, that Dr. M. Joycelyn Elders, a state employee, violated the Arkansas Political Practices Act in Pulaski County on January 18,1992. The statute that was allegedly violated, Ark. Code Ann. § 7-1-103 (Supp. 1991), provides that a violation is a misdemeanor. The applicable statute of limitation provides that the prosecution of a misdemeanor must be commenced within one year. Ark. Code Ann. § 5-1-109 (1987). The prosecuting attorney-immediately investigated the allegation and concluded that he could not file such a charge in good faith.

On March 17,1992, the Westark Christian Action Council, Inc., a nonprofit corporation with its principal place of business in Sebastian County, filed a petition in the Circuit Court of Pulaski County and asked the Circuit Court to appoint the corporation’s attorney, R. Gunner DeLay, of Sebastian County, as a special prosecuting attorney for Pulaski County. The prosecutor filed a motion for summary judgment, which was heard on May 1,1992. The circuit court granted the summary judgment on May 26, 1992. Westark filed a notice of appeal on June 22,1992. For the next six months Westark apparently regarded the appeal as a routine appeal, because it was not until January 4, 1993, or only fourteen days before the statute of limitation would run, that Westark filed a motion asking for an expedited appeal. On January 12, 1993, by per curiam, we denied the motion for expedited appeal because at that late date we could not possibly have set a briefing schedule, conducted the necessary research, held the necessary conferences, reached a decision, allowed time for rehearing, issued a mandate to a trial court, allowed the trial court sufficient time, and, if a special prosecutor were appointed, allowed him or her sufficient time to act. Westark Christian Action Council v. Stodola, 311 Ark. 449, 843 S.W.2d 318 (1993).

The appeal now comes to us as a regularly scheduled case after the statute of limitation has run. The case is moot. Thus, the first issue is whether we should decide or dismiss the appeal. We do not ordinarily decide appeals after a case has become moot. First Nat’l Bank v. Massachusetts Gen. Life Ins. Co., 296 Ark. 28, 752 S.W.2d 1 (1988). However, when a case contains an issue of significant public concern, or an issue that might avert future litigation, we may choose to decide the appeal. Duhon v. Graven, 302 Ark. 358, 790 S.W.2d 155 (1990). Special consideration is given to deciding a moot case when the controversy is subject to repetition, but tends to expire before review can be completed. Nathaniel v. Forrest City Sch. Dist. No. 7, 300 Ark. 513, 780 S.W.2d 539 (1989). None of those criteria are present, and a decision in this case would not have any practical effect on the parties. Accordingly, we dismiss the appeal.

Appeal dismissed.


author: Steele Hays, Justice.

text:
    Willie May GARNER, Dovie Nowlin, Nyla Beard, and Mary Belle Anderson v. Stafford G. KEES, Jr.; Southern Nursing Home, A Partnership; Barbara Crowder; Sandra Enlow, and Janice Roark
    92-234
    848 S.W.2d 423
    Supreme Court of Arkansas
    Opinion delivered March 8, 1993

      Bell & Associates, P.A., by: Harvey L. Bell and John M. Belew, for appellants.

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellees.
   Steele Hays, Justice.

This is the appeal from a verdict in favor of the defendants in a suit for the tort of outrage. The appellants are four daughters of Mrs. Mamie Ashlock, deceased. Appellees are the Southern Nursing Home, its owner, administrator, director of nursing and dietary manager.

The lawsuit giving rise to this appeal was brought by daughters of Mamie Ashlock and by her estate. Mrs. Ashlock was a patient at the defendant nursing home when she died. She was admitted to the nursing home on December 3,1987, and died on April 6, 1988. Because she was a diabetic, Mrs. Ashlock was limited in her intake of sugar.

Appellants originally brought an action against appellees for, a) wrongful death based on the fact that sugar packets were found by the daughters in pockets of Mrs. Ashlock’s wheelchair, b) negligence in the treatment of Mrs. Ashlock while she was a patient at the nursing home, c) breach of the contract providing for the care, and d) for the tort of outrage. The named defendants were Stafford Kees, the owner of the nursing home, Barbara Crowder, the head nurse, Sandra Enlow, the dietician, Janice Roark, the nursing home administrator, and the nursing home itself. The trial court granted a motion to dismiss for lack of venue for all causes of action except the tort of outrage and the case proceeded to trial on the remaining cause of action.

The basis of the claim of outrage was that when Sandra Enlow and Barbara Crowder had visited the funeral home, Ms. Enlow placed a sugar packet in Mrs. Ashlock’s casket. Ms. Enlow claimed she did this out of affection for Mrs. Ashlock because Mrs. Ashlock always wanted real sugar instead of the “Sweet’n Low” she was allowed to have. Enlow explained that she and Mrs. Ashlock had a continuing dialogue regarding real sugar versus the “pink stuff-.” Appellants claimed this act was malicious and caused them severe distress. A jury found in favor of the defendants. Appellants have appealed from the judgment entered on the verdict, challenging three evidentiary rulings by the trial judge. Finding no error, we affirm the judgment.

A motion in limine was filed by appellees regarding evidence appellants intended to introduce concerning alleged wrongful acts by the nursing home staff against parties. The trial judge preliminarily ruled that any alleged mistreatment of patients other than Mrs. Ashlock or occurring prior to her admittance into the home would not be admissible. Only conduct toward Mrs. Ashlock and her family would be allowed, but appellants could proffer any evidence they wished to introduce at trial and he would make a final ruling at that time.

Appellees had alleged Sandra Enlow placed the sugar packet in the coffin out of affection, and appellants were allowed to introduce evidence of treatment of Mrs. Ashlock to rebut this motive. Appellants claim on appeal that tendered exhibits one through six should also have been allowed under A.R.E. Rule 404(B). Rule 404(B) provides:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that they acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Appellants’ exhibits have a common failing. These documents concern patients other than Mrs. Ashlock and were written during a time when she was not a patient. They are simply not relevant to any type of motive on the part of the staff regarding Mrs. Ashlock or her family. Evidence allowed under Rule 404(B) must be relevant and its probative value must outweigh the danger of unfair prejudice. These exhibits, 1, 3, 4, 5, and 6, lack relevance and would only serve to inflame the jury.

Only one exhibit, number 2, was written during Mrs. Ashlock’s stay at the home. It is a letter, dated February 4,1988, from Mr. Kees (the owner) to Dr. Don Howard (the medical director) informing him that another doctor had been selected for many of the patients. The letter was admitted into evidence except for one line stating that “I am not going to allow the nursing home to be found out of compliance,” which was deleted. Arguably, the entire letter lacks relevance, but certainly the deletion of the quoted excerpt cannot be seriously challenged. As appellees point out, the nursing home was found to be in noncompliance in March of 1987, almost a year before Mrs. Ashlock was admitted as a patient. The overall problem with these exhibits is that they were remote in time, did not concern Mrs. Ashlock or the appellants and were clearly prejudicial. It appears the appellants were attempting to introduce evidence of the nursing home’s mistreatment and dereliction in the care of its patients in order to generally discredit the appellees. It was not an abuse of the trial court’s discretion to disallow the proffered evidence. At issue were Sandra Enlow’s attitude and actions toward Mrs. Ashlock and her family. None of the exhibits contained any allegations regarding Sandra Enlow’s actions in general, nor toward Mrs. Ashlock in particular. The exhibits were not relevant to the issues in the claim for tort of outrage and would have only served to mislead and prejudice the jury.

Second, appellants contend that Dr. Don Howard should have been allowed to testify about the abuse and mistreatment of patients before December 3, 1987, when Mrs. Ashlock entered the nursing home. Dr. Howard was allowed to testify that while Mrs. Ashlock was a patient he encountered not only problems with staff members but that orders were not being carried out. He stated that many patients were not receiving quality care and that the nursing staff was rude, abrasive and vulgar to patients. He testified that he couldn’t say anything about Sandra Enlow because his contact with her was minimal, but that Barbara Crowder was cruel, cold, calculating, callused, nonprofessional, and used obscenities in referring to patients. When Dr. Howard spoke of problems existing prior to December 3, 1987, the court instructed him to confine his comments to the time frame of December 3, 1987, forward.

Appellants now argue that such a limitation on Dr. Howard’s testimony prevented the jury from seeing the true character of the appellees. They contend the testimony was admissible to rebut the appellees’ claim that they acted out of affection rather than spite. See Brown v. Conway, 300 Ark. 567, 781 S.W.2d 12 (1989). We disagree for two reasons: Appellants failed to make a proffer of what Dr. Howard’s testimony would have been as required under A.R.E. Rule 103(a)(2) and we have stated that failure to make an offer of proof precludes review of the issue on appeal. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); National Bank of Commerce v. HCA Health Services of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990). Moreover, it is within the discretion of the trial court to limit the testimony of witnesses and that decision will not be reversed absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 759 S. W.2d 799 (1988). We cannot say appellants have demonstrated an abuse of discretion.

Finally, appellants maintain the proffered exhibits and testimony concerning nursing home conditions prior to December 3, 1987, were admissible to show that appellees Kees and Roark failed to exercise supervisory care over their employees, even after they knew of prior outrageous acts. They claim that Kees and Roark knew they were entrusting the health, care and safety of Mrs. Ashlock and the other residents to employees who had a history of abuse and maltreatment of others.

The appellants rely on American Automobile Auction, Inc. v. Titsworth, 292 Ark. 452, 730 S.W.2d 499 (1987), in which American Automobile Auction hired two individuals, one as sales director and repossessor of vehicles, and the other as auction ringman and bouncer. The president of the company did not want appellee McPeek to attend an auction and watched as he entered. His employees proceeded to forcibly eject McPeek. Appellee Titsworth attempted to protect McPeek. The employees assaulted McPeek in the auction area. Titsworth then got McPeek away from the area and led him across the street. The employees got a shovel and a bumper jack, went across the street to Titsworth’s truck, and severely beat both appellees. McPeek and Titsworth sued the employer under a negligent supervision theory. The court upheld a verdict for the two men, stating that an employer who hires two individuals, one of whom is normally drinking, and entrusts to them the job of forcibly ejecting patrons, has a duty to exercise reasonable care to avoid harm to others when the employer knows, or by the exercise of reasonable diligence ought to know, that such employees are forcibly ejecting a patron.

Appellees cite the Titsworth case for the premise that they should have been allowed to introduce evidence that appellees knew of prior outrageous acts by Crowder and Enlow and failed to supervise them. The trial court was correct in not allowing the evidence to be admitted because the negligent supervision theory has no application to the instant case. As we have seen, there was no connection between the nursing home problems and the act of putting sugar in the casket. Even if it was the acts of Crowder and Enlow which resulted in the nursing home not meeting the necessary standards and Kees and Roark knew of these acts, there is nothing to suggest they knew or should have known that their employees would go to a funeral home and put sugar in a casket. Therefore, the trial court did not err in not allowing the conduct of Crowder and Enlow to be imputed to Kees and Roark.

Affirmed.


author: David Newbern, Justice.

text:
    Gerold COWAN and Bonnie Cowan v. Gus SCHMIDLE and Martha Schmidle
    92-564
    848 S.W.2d 421
    Supreme Court of Arkansas
    Opinion delivered March 8, 1993
    [Rehearing denied April 5, 1993.]

      David Hodges and John Patterson, for appellants.

      Robert F. Meurer, for appellees.
   David Newbern, Justice.

The appellees, Gus and Martha Schmidle, alleged their neighbors, the appellants Gerold and Bonnie Cowan, allowed their holding pond for chicken litter to overflow causing harm to the Schmidles’ property. The Cowans filed a number of defensive motions, such as for dismissal pursuant to Ark. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be granted and for summary judgment on the Schmidles’ compensatory and punitive damages claims.

The Schmidles ultimately took a voluntary nonsuit pursuant to Ark. R. Civ. P.41 (a), yet the Cowans appeal asserting errors in various rulings of the Trial Court. The Schmidles have cross-appealed seeking an attorney’s fee resulting from the Cowans’ appeal which the Schmidles contend is frivolous. We hold the Cowans have no standing to appeal from rulings of the Trial Court having to do with the merits of their claim because at this point the litigation has been resolved in their favor. We do, however, address the Cowans’ claims for statutory and rule-authorized sanctions. Additionally, we hold the Schmidles are not entitled to an attorney’s fee because the statute they cite as authority does not authorize such a fee on appeal.

1. The merits

It is not shown by the record in this case, but the Schmidles assert in their brief that they have refiled their claim and thus the litigation continues. The Cowans do not dispute that statement in their reply brief. When we are convinced that an appellant pursues an unauthorized interlocutory appeal, we dismiss it. Ratzlaff v. Franz Foods of Arkansas, 255 Ark. 373, 500 S.W.2d 379 (1973).

The record shows this case has been resolved in favor of the Cowans as a result of the Schmidles’ voluntary nonsuit. While rulings on the merits may ultimately be appealable if there is a judgment against the Cowans, as of now the Cowans have prevailed and have no standing to appeal. There has been no decision prejudicial to them on the merits of their claim. See Bynum v. Savage, 312 Ark. 137, 847 S.W.2d 705 (1993). We dismiss that portion of the appeal having to do with the merits of the case.

2. Trial sanctions

We must, however, address the Cowans’ assertion that the Trial Court erred in refusing to award sanctions. That aspect of the case has been decided against them. While it could be revisited in the Trial Court, there is no guarantee that the Schmidles will pursue their claim to judgment. Refusal by us to address the sanctions sought and denied at this juncture could result in denial of the Cowans’ right to appeal.

Mr. Cowan admitted in deposition testimony that his pond had overflowed but said it was because he was hospitalized at the time, implying that he had not intentionally allowed it to get too full. In his deposition testimony Mr. Schmidle said the pond had overflowed in 1985 and 1988 and that he once spoke to Mr. Cowan who was apologetic prior to the 1991 incident which formed the basis of the Schmidles’ claim.

To obtain an attorney’s fee pursuant to Ark. Code Ann. § 16-22-309(a)(l) (Supp. 1991), a prevailing party must show there was “a complete absence of a justifiable issue of either law or fact raised by the losing party or his attorney. . . .” To obtain an attorney’s fee or other sanction pursuant to Ark. R. Civ. P. 11, it must be shown that an attorney or party signed a pleading not ground in fact, not warranted by existing law or a good faith argument for a change in the law, or filed for an improper purpose. State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989).

Mr. Schmidle testified in his deposition that the polluting overflow had occurred on three occasions, the latest of which occurred after he had complained of it. He said he had seen pumps at the Cowans’ pond he believed to have been used to discharge the liquid litter onto a pasture from which it flowed to his land.

We cannot say the Trial Court erred in refusing to apply these laws with respect to the compensatory or punitive damages claim. The Trial Court neither abused his discretion, Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988), reh. denied 297 Ark. 280-A, 763 S.W.2d 656 (1988), nor made a clearly erroneous factual determination in the application of Rule 11. Smith v. MRCC Partnership, 302 Ark. 547, 792 S.W.2d 301 (1990). See also Ward v. Dapper Dan Cleaners and Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992); Jenkins v. Goldsby, 307 Ark. 558, 822 S.W.2d 843 (1992); Brattonv. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989).

3. Appeal sanctions

In their cross-appeal, the Schmidles contend they are entitled to an attorney’s fee pursuant to § 16-22-309(a)(l). They sought no such award in the Trial Court and are asking for the fee on appeal. A reading of the statute, particularly subsection (c), makes it clear that it applies in trial rather than appellate courts and thus furnishes no authority for the Schmidles’ request.

Affirmed on appeal; affirmed on cross-appeal.


text:
    Barrie REGISTER v. STATE of Arkansas
    CR 92-735
    852 S.W.2d 308
    Supreme Court of Arkansas
    Opinion delivered March 8, 1993

      Barry J. Watkins, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Barrie Register, was convicted of theft of property and criminal mischief in the first degree in the Circuit Court of Washington County, First Division on November 19,1991. He was sentenced to 30 years for the theft conviction and 10 years for the criminal mischief conviction. A motion for new trial based on ineffective assistance of counsel was filed on December 12, 1991, by attorney Barry J. Watkins. Attorney Bruce Trammel who had represented Register at trial withdrew as counsel.

On January 9, 1992, the motion for new trial was withdrawn and a notice of appeal filed by Watkins. The record was filed with the Supreme Court Clerk on June 23, 1992, and Register’s brief was due on August 24,1992, after two extensions were granted. The brief has not been tendered, and the State now moves to dismiss this appeal.

The motion to dismiss is denied at this time because there has been no showing that Register has abandoned his desire to appeal. Counsel is being directed by a separate Per Curiam order to appear on Monday, March 22, 1993, at 9:00 a.m. to show cause why he should not be held in contempt of court for failure to file a timely appellant’s brief. If information is adduced at that proceeding which indicates that Register desires an appeal and counsel cannot provide effective assistance of counsel on appeal, appropriate actions will then be considered.

Motion denied.


text:
    Barrie REGISTER v. STATE of Arkansas
    CR 92-735
    852 S.W.2d 308
    Supreme Court of Arkansas
    Substituted opinion delivered March 19, 1993

       Reporter’s note: Original opinion delivered March 8, 1993.

   Order to Show Cause.

Per Curiam.

This order is substituted for the order to show cause in this case which was issued March 8, 1993.

The appellant’s attorney Barry J. Watkins is directed to appear before this court at 9:00 a.m. on March 22,1993, to show cause why he should not be held in contempt of court for failure to file a brief in the case.


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

text:
    Gina Delayne SEXSON v. MUNICIPAL COURT OF SPRINGDALE
    92-897
    849 S.W.2d 468
    Supreme Court of Arkansas
    Opinion delivered March 15, 1993

      Jeff Duty, for appellant.

      Jeff C. Harper, City Att’y, for appellee.
   Jack Holt, Jr., Chief Justice.

Gina Delayne Sexson was arrested on July 15, 1990, by a city police officer on charges of driving while intoxicated and disobeying a traffic signal. The incident occurred in the Benton County portion of the Springdale, Arkansas city limits. The City of Springdale is primarily located in Washington County although its municipal boundary extends into a small part of Benton County.

Sexson was found guilty of these charges in the Springdale Municipal Court, situated in Washington County, on November 19,1990. As a result, Sexson appealed to the Washington County Circuit Court, where Circuit Judge William A. Storey dismissed the appeal for lack of jurisdiction and reinstated the municipal court judgment. Sexson then filed a petition for writ of prohibition in Washington County Circuit Court to prohibit the municipal court from enforcing the judgment. In denying the writ of prohibition, Circuit Judge Kim Smith stated:

Argument is made by the plaintiff that Act 142 of 1989 [Ark. Code Ann. § 16-17-206(b)(2)(Supp. 1991)] is unconstitutional. As you both are well aware, there is a presumption of constitutionality of any act passed by the legislature. The plaintiff’s main argument is that the Springdale Municipal Court does not have jurisdiction under the Arkansas Constitution because it violates sections 40 and 43 of Article 7. However, I find nothing in either one of these constitutional provisions which would prohibit the Arkansas Legislature from enacting a law clarifying jurisdiction in our fact situation.
The Act provides for an appeal to the circuit court wherein the offense arose, i.e., Benton County, and if a writ of prohibition was needed against the Springdale Municipal Court I see nothing to prohibit the Washington County Circuit Court from considering the writ of prohibition since the Springdale Municipal Court lies in Washington County.
Therefore, it is my ruling that Act 142 of 1989 is not unconstitutional and that the Writ of Prohibition should be denied.

Generally, a denial of a writ for prohibition is a nonappealable order. Casoli v. State, 302 Ark. 412, 790 S.W.2d 165 (1990). However, we will treat the appeal from a denial of a writ of prohibition as a petition for a writ of prohibition filed in this court if it involves an important issue to be resolved. Robinson v. Sutterfield, 302 Ark. 7, 786 S.W.2d 572 (1990); Lowe v. State, 290 Ark. 403, 720 S.W.2d 293 (1986). As we deem the constitutionality of Ark. Code Ann. § 16-17-206(b)(2)(Supp. 1991) tobe such an issue, we accept this appeal as a writ of prohibition directly to us.

This Court will not grant a writ of prohibition unless it is clearly warranted. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992); Leach v. State, 303 Ark. 309, 311, 796 S.W.2d 837, 838 (1990). Prohibition is an extraordinary writ and is never issued to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jur isdiction. Id. at 312, 796 S.W.2d at 838 (quoting Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988)); City Court v. Tiner, 292 Ark. 253, 729 S.W.2d 399 (1987).

The question before us, then, is whether Ark. Code Ann. § 16-17-206(b)(2)(Supp. 1991) is unconstitutional. If so, we should issue a writ of prohibition to prevent the Springdale Municipal Court, located in Washington County, from exercising jurisdiction it does not have over an offense committed in Benton County.

The entire code section reads:

16-17-206. Jurisdiction of municipal courts.
(a) Municipal courts and justices of the peace shall not have jurisdiction in civil cases where a lien on land or title or possession thereto is involved.
(b) The jurisdiction of a municipal court shall be coextensive with the county in which it is situated except:
(1) In counties having two (2) judicial districts, the jurisdiction shall be limited to the district in which the court is situated; or
(2) In cities which are primarily located in one county but the city limits extend into an adjacent county, the jurisdiction shall include that portion of the city limits which extends into the adjacent county. Appeals from municipal court decisions in such cities shall be made to the circuit court of the county in which the case arose.

Ark. Code Ann. § 16-17-206 (Supp. 1991).

This section was enacted as Act 142 of 1989 by our General Assembly to counter the effects of our decision in City of Springdale v. Jones, 295 Ark. 129, 747 S.W.2d 98 (1988), which addressed an identical fact situation. In that case, Timothy Jones was arrested for DWI in a part of Springdale which is situated in Benton County. Jones was convicted in Springdale Municipal Court and appealed to Washington County Circuit Court. The circuit court found the municipal court had no jurisdiction over the offenses occurring in Benton County, and granted Jones’ oral motion for writ of prohibition. In affirming the trial court’s granting of the writ we stated:

The question is whether the municipal court of the City of Springdale has jurisdiction over criminal offenses committed in Benton County. The answer is no. The Arkansas Constitution prevents it.
After Jones was convicted, he appealed to the Washingtn County Circuit Court. The judge stated he would consider an oral motion for a writ of prohibition which was made by Jones and granted. The judge concluded the municipal court had no jurisdiction over offenses occurring in Benton County. He was right.
Article 2, § 10 of the Arkansas Constitution provides in part:
In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed;

City of Springdale v. Jones, 295 Ark. 129, 130, 747 S.W.2d 98, 99 (1988).

In Jones, we clearly stated that the Arkansas Constitution prohibits the City of Springdale from having jurisdiction over criminal offenses committed in Benton County. We do not retreat from this position. We have long held that the Legislature can neither enlarge nor diminish the jurisdiction of the courts except as permitted by the Arkansas Constitution and any attempt to do so is unconstitutional. Pike v. Rice, 297 Ark. 25, 759 S.W.2d 541 (1988); Nethercutt v. Pulaski County Special School Dist., 248 Ark. 143, 450 S.W.2d 77 (1970); Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944); Rector v. State, 6 Ark. 187 (1845).

Under our constitution the jurisdiction of our municipal courts is concurrent with and no greater than jurisdiction of our justice of the peace courts, which we interpret to be county wide as Article 7, § 40 clearly provides that justices of the peace:

shall be conservators of the peace within their respective counties. . .

(Emphasis ours.)

Our General Assembly has further stated:

Justices of the peace in the townships subject to this act shall have original jurisdiction coextensive with the county.

Ark. Code Ann. § 16-19-401 (a) (1987). Under Article 7, § 43, municipal courts are vested with jurisdiction of justice of the peace courts:

Article 7, § 43. Corporation courts - Jurisdiction.
Corporation courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, and the General Assembly may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary, with or without indictment, as may be provided by law, and, until the General Assembly shall otherwise provide, they shall have the jurisdiction now provided by law.

(Emphasis ours.) See Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981)(upholding the countywide concurrent jurisdiction of justices of the peace and municipal courts).

Reading these provisions together, it is obvious that the jurisdiction óf a municipal court is confined to the county in which it is situated. For these reasons, Ark. Code Ann. § 16-17-206(b)(2)(Supp. 1991), which provides in part that the jurisdiction of municipal courts shall be enlarged to include portions of the city limits that extend into other counties, is unconstitutional. Accordingly, we issue a writ of prohibition to prevent the Springdale Municipal Court from exercising jurisdiction over a criminal offense committed in Benton County.

The writ of prohibition is granted.

Hays and Corbin, JJ., dissent.

Steele Hays, Justice,

dissenting. I respectfully disagree that this appeal should be treated as an original action for a writ of prohibition, or that the issuance of a writ is clearly warranted. The majority declares that the order of the Washington Circuit court denying prohibition is not appealable, citing Casoli v. State, 302 Ark. 412, 790 S.W.2d 165 (1990). But the reason for the dismissal of the appeal in Casoli was the lack of a final order. The judgment here is final and there is no reason to fictionalize this case from an appeal to an original action in prohibition.

Turning to the substantive issue, why the majority continues to cite City of Springdale v. Jones, 295 Ark. 129, 747 S.W.2d 98 (19 8 8) is puzzling, as the only avenue of appeal open to Jones was to the Circuit Court of Washington County, which had no jurisdiction for offenses occurring in Benton County under the law as it then existed. Collins v. Woodruff, 9 Ark. 463 (1849). But after the Jones case was decided the legislature enacted Act 142 of 1989 [Ark. Code Ann. § 16-17-206(b)(2) (Supp. 1991)] which enlarged the jurisdiction of municipal courts with boundaries that overlap county lines.

Thus, the question presented is whether anything in the Constitution of Arkansas limits the power of the legislature to extend the territorial jurisdiction of a municipal court into an adjoining county. The trial court held there is not and that holding was, I believe, entirely correct.

Appellant cites Ark. Const, art. 2 § 10 and art. 7 §§ 40 and 43. Section 43 deals with the jurisdiction of corporation courts and provides that they shall have jurisdiction concurrent with justices of the peace as determined by the General Assembly. Section 40 deals with justices of the peace and fixes their jurisdiction as to amounts, process, and subject matter, with jurisdiction over misdemeanors “as is now, or may be, prescribed by law.” The power of the legislature to govern the territorial boundaries of municipal courts and justices of the peace under the Constitution has been noted by several decisions: City of Pea Ridge v. Tiner, 292 Ark. 253, 729 S.W.2d 399 (1987), (“Art. 7, § 43 gives the General Assembly authority to set jurisdiction of corporation courts,”) and Peel v. Kelley, 268 Ark. 90, 594 S.W.2d 11 (1980) (the jurisdiction of municipal courts need not be coextensive with the jurisdiction of justices of the peace, it “may be coextensive with whatever jurisdiction could be vested in justices of the peace.”)

Beyond citing cases with little bearing on the issue, the majority limits its scrutiny of the Constitution to that brief segment of art. 7, § 40 which provides that justices of the peace “shall be conservators of the peace within their respective counties. . . .” That proviso, lifted out of context, is only one of six provisions in § 40 defining the jurisdiction of justices of the peace in terms of amounts, process and subject matter. The term “conservator of the peace” is a term of art and not just a generality. It means the judicial officer is authorized to make arrests for a breach of the peace. See Hardison v. State, 166 Ark. 33, 265 S.W.2d 84 (1924). In other words, in addition to the other aspects of jurisdiction listed in § 40, the office of justice of the peace has the power to make arrests. The intent of that provision, read in context, is not to restrict all authority to the territorial limits of the county, because another, more specific, provision in § 40 declares that justices of the peace shall have jurisdiction of “misdemeanors as is now or may be prescribed by law.’’'’ (My emphasis.) Thus, the phrase “conservators of the peace within their respective counties” is not used to modify the legislature’s authority to set the territorial boundaries of justices of the peace, but simply to describe the general duties of that office. The provision touches on the powers of the office and now its territorial limits under law. We so noted in Moose v. Woodruff, 120 Ark. 406, 179 S.W.813 (1915):

No limitation is found in the Constitution upon the power of the legislature to vest jurisdiction in municipal courts, when established beyond the geographical limits of the municipalities.

Starting with Moose v. Woodruff, supra, this court has consistently upheld the legislature’s authority to extend geographical boundaries of municipal courts. Recently, in Ashworth v. State, 306 Ark. 570, 816 S.W.2d 597 (1991), we wrote:

In State v. ex rel. Moose v. Woodruff, 120 Ark. 406, 179 S.W. 813 (1915), this Court held there was no express constitutional limitation upon the General Assembly’s power to vest jurisdiction in Municipal Courts beyond the geographical limits of the municipalities. Although not by unanimous decision, this Court has upheld legislative granting of extraterritorial jurisdiction to Municipal Courts against every challenge based on Ark. Const. art. 7. Griffin v. State, 297 Ark. 208, 760 S.W.2d 852 (1988); Pshier v. State, supra; Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981).

Of course, we are now confronted for the first time with whether the legislature has the power to extend the jurisdiction of a municipal court beyond the boundaries of the county in which it primarily lies. I find nothing in the Constitution inconsistent with that power and, that being so, we are duty bound to uphold the constitutionality of the act if it is possible to do so. Clinton v. Bonds, 306 Ark. 554, 816 S.W.2d 169 (1991).

Act 142 takes nothing away from either Benton County or its residents. As to residents, Act 142 is explicit in preserving the right of Benton County residents to appeal from the Springdale Municipal Court to the Circuit Court of Benton County, thereby curing the constitutional flaw which governed the outcome in City of Springdale v. Jones, supra. Appellant could have appealed to the Circuit Court of Benton County, pursuant to Ark. Const. art. 2, § 10, because the offense occurred in Benton County.

As to Benton County, Act 142 is not invasive of Benton County, it merely grants concurrent jurisdiction to the Spring-dale Municipal Court over that small segment of Benton County which lies within its boundaries. Benton County still has jurisdiction in the fullest sense over that part of its territory lying in Springdale. Perhaps when the Constitution was written county borders had primacy over city borders, but time has tended to blur that. Some analogy can be found in State v. Martin, 60 Ark. 343, 30 S.W. 421 (1895); where we discussed what constitutional limitations existed on the number of judges allowed for any given circuit. We found support under general rules of construction for the fact that the framers had left the number open, stating:

This fact, when we consider that constitutions are framed for ages to come, affords the most plausible argument that the framers of our Constitution purposely omitted limiting the number of circuit judges, in anticipation of any emergencies in the speedy administration of justice occasioned by the increase of population and the accumulation of litigation. . . . But if on the contrary, it could be said that the convention had no consideration for the future, and only intended to provide for existing conditions, and that one judge for a circuit was deemed sufficient to meet the requirements of justice at that time, then the conclusion is irresistible that they did not intend to prohibit what they did not contemplate would ever be demanded. [My emphasis.]

The majority opinion declares that “we have long held that the Legislature can neither enlarge nor diminish the jurisdiction of the courts except as permitted by the Arkansas Constitution, and any attempt to do so is unconstitutional,” citing [Pike v. Rice, 297 Ark. 25, 759 S.W.2d 541 (1988); Nethercutt v. Pulaski County Special School Dist., 248 Ark. 143, 450 S.W.2d 77 (1970); Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944), and Rector v. State, 6 Ark. 187 (1845)]. The first three of those decisions deal with subject matter jurisdiction of equity courts and have nothing to do with the territorial boundaries of municipal courts or justices of the peace. They are not relevant to the question before us. The Rector case indirectly involves corporation courts, but under a statute long since repealed which fixed the limits of the Little Rock Municipal Court to the corporate limits of the city as they then existed. It, too, has no application to this case.

Today the majority makes an important precedent and one, I respectfully suggest, that is not mandated by any provision of our Constitution. A more judicious disposition of this case I believe would be to deny a writ of prohibition and either dismiss the appeal for failure to comply with Act 274 of 1953 [Ark. Code Ann. § 16-ll-106(b) (1987)], or remand to the trial court for compliance with Act 274, which reads:

In any proceeding which involves the validity of a municipal ordinance or franchise, the municipality shall be made a party and shall be entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard. [My emphasis.]

The purpose of the notice requirement is to prevent an ordinance from being declared unconstitutional in a proceeding whichjmight not be a fully adversary and complete adjudication, and noncompliance with the notice requirement is generally reversible error. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982). In Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991), we refused to address a constitutional challenge where the Attorney General had not been notified. It seems particularly inappropriate to order the issuance of a writ of prohibition, an extraordinary and prerogative writ, to declare a statute unconstitutional when the state has not been afforded the opportunity to defend it.

This court is bound by the most solemn duty to uphold the enactments of the General Assembly except where their prohibition under the Constitution is clear and compelling. The unfortunate anomaly existing by reason of today’s decision is that Springdale is now powerless to punish offenders, including drunk drivers, who commit offenses in that part of its boundaries lying in Benton County.

Corbin, J., joins in this dissent.


author: Jack Holt, Jr., Chief Justice.

text:
    Kenneth TALLEY v. STATE of Arkansas
    CR 92-1339
    849 S.W.2d 493
    Supreme Court of Arkansas
    Opinion delivered March 15, 1993

      Julia Mehyou, for appellant.

      Winston Bryant, Att’y Gen., by; Gil Dudley, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant, Kenneth Talley, appeals his conviction of delivery of a controlled substance arguing that the evidence was insufficient to corroborate an alleged accomplice’s testimony. We hold that in light of the fact that the witness was not an accomplice, the evidence was more than sufficient and affirm.

Talley was charged with delivery of a controlled substance, possession of a controlled substance with intent to deliver, possession of a controlled substance (marijuana and codeine), and intent to use drug paraphernalia (rolling papers). As a former felon with four or more previous convictions, he was subjected to sentence enhancement under Ark. Code Ann. § 5-4-501 (1987). After a bench trial on Count Two, delivery of morphine, Talley was sentenced to forty-five years imprisonment.

Talley’s arrest transpired after the following events: a confidential informant, Charles Schrader, contacted Jacksonville Police Department Detective Kelley Smiley and said that he could purchase morphine from Kenneth Talley.

Detective Smiley testified that he and Office John Williams met the informant at the park. They reviewed the conversation Schrader had with Talley. Then, the officers searched Schrader from “head to toe” to make certain he did not have any drugs on him. Although they did not remove any of his clothing or his shoes, the officers pulled out Schrader’s pockets, checked his waistband and gave him a complete pat down. The officers then searched the informant’s pickup truck. Confident that Schrader did not have any drugs on him, the officers gave him two hundred dollars of Jacksonville Police Department money for the drug buy. The serial numbers on the bills were recorded, and Schrader signed an expenditure form to record his receipt of the funds.

Detective Smiley stated that they then followed Schrader to Talley’s house and watched him walk to the door and knock. Talley answered the door.

According to Schrader’s testimony, once he entered the house, he told Talley that he had the money. The two men went to the bathroom where Talley gave him morphine in exchange for the money. The pills were in a medicine bottle, but Talley poured the pills onto toilet paper and wrapped them before giving them to Schrader. The entire transaction took approximately ten minutes.

After leaving Talley’s house, Schrader drove directly to the police station, the designated meeting place, with the officers following behind him. Once in the police department parking lot, he exited his truck and handed the officers the sixteen purple tablets, later identified by Dan Hedges of the Arkansas State Crime Lab as morphine sulfate tablets, wrapped in toilet paper. The officers searched Schrader and his vehicle again to ensure there were no more controlled substances present.

Talley was subsequently arrested and waived his right to a jury trial. After a bench trial, Talley was found guilty of delivery of a controlled substance and sentenced to forty-five years imprisonment.

The sole issue on appeal is whether the trial court erred in denying Talley’s motion for directed verdict because there was no corroborating evidence to support Schrader’s “accomplice” testimony. As this argument has no merit, we affirm the conviction.

While it is true that an accomplice’s testimony must be corroborated pursuant to Ark. Code Ann. § 16-89-111 (e)(1) (1987), the record is devoid of any evidence indicating that Schrader was an accomplice rather than a confidential informant. A buyer of illicit drugs is not an accomplice of the seller. Ellis v. State, 306 Ark. 461, 464, 816 S.W.2d 164, 166 (1991); Williams v. State, 290 Ark. 449, 451, 720 S.W.2d 305, 306 (1986).

Accordingly, Talley’s conviction is affirmed.


text:
    Annette F. KYLE v. STATE of Arkansas
    CR 92-1107
    849 S.W.2d 935
    Supreme Court of Arkansas
    Opinion delivered March 15, 1993

      Lee R. Watson, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

In this appeal, we are asked to decide whether a circuit court retains jurisdiction over a defendant who has been ordered to pay restitution as a condition of a deferred imposition of sentence until the restitution has been paid in full, even beyond the duration of deferment. We hold that the trial court inherently retains jurisdiction over such a procedure until the full amount of restitution is paid, even if the term of the defendant has expired. Accordingly, we affirm the trial court’s decision to extend appellant’s probation period until her debt was paid.

On January 15, 1985, appellant, Annette Kyle (now Bohlman), was charged with the offense of leaving the scene of a personal injury accident, a Class D felony. On February 13,1985, she entered a plea of nolo contendere to the charge. The court withheld imposition of sentence for five years conditioned on good behavior and ordered her to pay restitution in the amount of $5,789.70 at the rate of $100.00 per month until paid in full. The court also placed Ms. Bohlman on supervised probation for one and one-half years which included performing 48 hours of community service.

In 1986 the State filed a petition to revoke appellant’s “suspended sentence.” The petition alleged that Ms. Bohlman had violated the terms imposed upon her by failing to make a restitution payment since July 1, 1986, and that the unpaid balance was $5,389.70. The petition was denied.

In 1989 the State filed a second petition to revoke alleging an unpaid balance of $4,520.00 and that the appellant should have paid $3,800.00 toward the restitution and had only paid $1,269.70, leaving $2,530.30 in arrears. Ms. Bohlman moved for a continuance, stating that she had paid $500 on March 20,1990, and that her employer had agreed to a wage assignment of $25.00 per week. The continuance was granted. The State later moved to withdraw the petition, and the court granted the motion.

The State filed a third petition to revoke on September 25, 1991, alleging that appellant had failed to make any payments since July 27, 1991. The unpaid balance at that time was $2,658.00. At the hearing on the petition, appellant moved to dismiss alleging that the State had failed to comply with Ark. Code Ann. § 5-4-309 (1987) by filing the petition after the expiration of the five year deferment. After hearing arguments by counsel the court denied appellant’s motion, relying on the language of Ark. Code Ann. § 5-4-303(f) (1987). Upon the close of the evidence, the court extended appellant’s probation period until such time as the restitution was paid in full at a rate of $25.00 per week. The court did not at any time revoke her “suspended sentence.”

As her first point on appeal, appellant contends that the trial court did not have the authority to take any action with regard to her because the period of the deferred sentence had expired before the revocation petition was filed. She stands on Ark. Code Ann. § 5-4-309(a) (1987):

The court may revoke a suspension or probation subsequent to the expiration of the period of suspension or probation, provided the defendant is arrested for violation of suspension or probation, or a warrant is issued for his arrest for violation of suspension or probation, before expiration of the period.

The State argues that under Ark. Code Ann. § 5-4-303(f), the trial court inherently retains jurisdiction over the defendant until restitution has been paid regardless of whether the prosecutor ever files a revocation petition or not. This statute provides in pertinent part:

[i]f the court has suspended the imposition of sentence or placed a defendant on probation conditioned upon him making restitution or reparation and the defendant has not satisfactorily made all his payments when the probation period has ended, the court shall have the authority to continue to assert its jurisdiction over the recalcitrant defendant and extend the probation period as it deems necessary or revoke the defendant’s suspended sentence.

The appellant cites the 1988 Supplementary Commentary to § 5-4-302(f) in support of her argument.

Act 315 of 1985 added the last sentence of subsection (f). Presumably, revocation proceedings under § 5-4-303(f) will be conducted pursuant to constraints imposed by § 5-4-309. See Supplementary Commentary to § 5-4-309. See also § 5-4-203 and the commentary thereto which recognize constitutional restrictions on imprisoning a defendant for failure to pay a fine. See also Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484 (1984) which cites Bearden v. Georgia, 461 U.S. 660 (1983) for the proposition that failure to pay a fine or restitution can be punished by imprisonment only where the State can prove that the probationer failed to make bona fide efforts to do so.

In interpreting the two statutes at issue, we adhere to the basic rule of statutory construction which gives effect to the intent of the legislature, making use of common sense. Sanders v. State, 310 Ark. 630, 839 S.W.2d 518 (1992). In interpreting statutes, the court gives words their usual and ordinary meaning. Gibsonv. City of Truman, 311 Ark. 561, 845 S.W.2d 515 (1993). Also, the commentary to a statue is a highly persuasive aid to construction, but it is not controlling over the clear language of the statute. See Lewis v. State, 267 Ark. 933, 591 S.W.2d 687 (1980); Mears, County Judge v. Ark. State Hospital, 265 Ark. 845, 581 S.W.2d 339 (1919); Patrick v. State, 265 Ark. 335, 576 S.W.2d 191 (1979); Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977).

In examining the actual wording of the statutes, we conclude that Ark. Code Ann. § 5-4-309 does not apply to appellant’s situation. That statute deals with revoking a suspension or probation after that period has expired. Here, as we have said, the court did not revoke appellant’s “suspended sentence,” it merely extended her probation period until the full amount of restitution was paid. Therefore, Ark. Code Ann. § 5-4-303(f) is controlling. The “shall” in the statute indicates that the court’s jurisdiction automatically continues until the restitution is complete. Moreover, the disjunctive “or” gives the court the option to either extend the probation period or revoke the suspended sentence. Here, the court correctly exercised its authority to extend Ms. Bohlman’s probation period until she had paid her debt.

Even if the two statutory provisions are in conflict with each other, Ark. Code Ann. § 5-4-303(f) governs because it was added by Act 315 of 1985, which was after the language of § 5-4-309 was adopted. The settled rule of statutory construction is that if two legislative acts relating to the same subject are in conflict with each other, the later act controls. Uilkie v. State, 309 Ark. 48, 827 S.W.2d 131 (1992); Wells v. Heath, 274 Ark. 45, 622 S.W.2d 163 (1981).

We find persuasive the State’s argument that a prosecutory should not be required to file a revocation petition prior to the expiration of the suspension or probationary period in cases involving unpaid restitution because it cannot be known until the period has fully expired whether the defendant has made restitution. A defendant could conceivably pay the full amount owed on the last day of the period and fulfill his or her obligation.

It follows that the trial court did not err in extending Ms. Bohlman’s probationary period. Pursuant to Ark. Code Ann. § 5-4-303(f), the trial court retains jurisdiction until the full amount of restitution is paid, even beyond the period originally allowed. The prosecutor was not required to comply with the requirements of Ark. Code Ann. § 5-4-309(e) because appellant’s deferred sentence was not revoked but merely extended to allow her to pay the restitution.

As her second point of appeal, Ms. Bohlman contends “the trial court erred in revoking her suspended sentence” because the written terms and conditions given to her as required by Ark. Code Ann. § 5-4-303(e) (1987) did not include the provision that the court’s jurisdiction over her would continue until the restitution was paid in full. Arkansas Code Annotated § 5-4-303(e) (1987) states:

If the court suspends the imposition of sentence on a defendant or places him on probation, the defendant shall be given a written statement explicitly setting forth the conditions under which he is being released.

This provision does not apply to Ms. Bohlman’s situation for the simple reason that her sentence was not revoked and she was never imprisoned. Her probation period was merely extended to allow her to pay the restitution at a rate she indicated that she could afford. In fact, the “Terms and Conditions of Suspended Sentence” and the Judgment both adequately explain the conditions of appellant’s suspension. She was informed in writing at the time of her sentence that she owed $5,789.70 as restitution. The State was not required to also notify her that the court retained jurisdiction until this amount was paid. The authority to enforce the terms of a suspended sentence is not itself a condition of the suspended sentence and is not required to be stated in writing. Therefore, this argument is meritless.

As her final point of appeal, Ms. Bohlman argues that the State failed to meet its burden of proof under Ark. Code Ann. § 5-4-309(d) (1987) to show by a preponderance of the evidence that she had inexcusably failed to comply with the conditions imposed on her. Appellant relies on Baldridge v. State, 31 Ark. App. 114, 789 S.W.2d 735 (1990), Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988); and Phillips v. State, 25 Ark. App. 102, 753 S.W.2d 301 (1988) which set forth the burden of proof in revocation proceedings and the standard of review on appeal. However, these cases are distinguishable because the parties in those cases were all incarcerated and their sentences were revoked. Again, the requirements of Ark. Code Ann. § 5-4-309(d) do not apply because appellant was never imprisoned and her sentence was not revoked. Beyond that, the court did receive evidence concerning appellant’s payment history and her financial status. She testified she was able to make payments of $25.00 per week as restitution. The court examined the evidence and decided to require her to make payments at that same rate until the full amount was paid. In fact, the court was lenient in allowing her to pay off her debt at a reduced rate. That finding by the trial court was clearly not against a preponderance of the evidence.

Affirmed.

       The briefs refer to the sentencing procedure in this case as a “suspended sentence.” However, the judgment reflects that the trial court withheld imposition of sentence for five years.


author: David Newbern, Justice. Donald L. Corbin, Justice,

text:
    Lisa ELKINS, Administratrix of the estate of Paul Dennis Elkins, Deceased v. ARKLA, INC.
    92-1090
    849 S.W.2d 489
    Supreme Court of Arkansas
    Opinion delivered March 15, 1993

      The Lowber Hendricks Law Firm, P. A., by: Lowber Hendricks, for appellant.

      Fleming, Elrod & Green, by: Gill Wallace Clayton, for appellee.
   David Newbern, Justice.

This is a wrongful death case. Lisa Elkins, the appellant, brought the action as administratrix of the estate of her deceased husband, Paul Elkins. Paul Elkins was employed by Daniel Utility Construction Co. (Daniel) which had contracted with the appellee, Arkla, Inc., (Arkla) to lay a pipe. He died when a 10-foot deep ditch in which he was working collapsed, causing him to be asphyxiated. Arkla moved for summary judgment on the ground that Daniel, its independent contractor, was responsible for supervision of the job and Arkla owed no duty to a Daniel employee to see to it that the work was done safely. Summary judgment was awarded to Arkla. The question before us is whether there was a remaining genuine issue of material fact which should have precluded summary judgment. Ark. R. Civ. P. 56(c). We hold there was.

The question of duty owed by one person to another is ordinarily one of law. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992). When, however, the matter of a legal duty is the subject of a contract which is ambiguous as to the parties’ intent, a question of fact is presented. Tribble v. Lawrence, 239 Ark. 1157, 396 S.W.2d 934 (1965); Manhattan Factoring Corp. v. Orsburn, 238 Ark. 947, 385 S.W.2d 785 (1965).

Even though the owner of a construction project hires an independent contractor to do the work, the owner may retain the right and duty to supervise to the extent that it becomes responsible for injury resulting from negligence in performance of the work. The Restatement (Second) of Torts § 414 (1965), provides:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

As Comment C to that section states,

In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. [Emphasis added]. .

Arkla’s contention is that the contract in this case gave it authority to supervise the work only in the sense that Arkla could see to it that the results of the work were satisfactory and that the day-to-day supervisory responsibility of the manner of construction of the pipeline was left to Daniel. Ms. Elkins contends the contract gave Arkla the right and duty to supervise the work not only as to results but as to the manner of achievement.

Here is a description of some of the contract terms. Under section 1.09 C, an engineer or inspector, representing Arkla, is given authority “to require the removal of any employee of [Daniel] who, in his opinion, is considered incompetent or not qualified to perform his work in a satisfactory manner.” Section 1.15 B provides the engineer or inspector, when giving instructions “shall have authority to make minor changes in the work, not involving extra cost, and not inconsistent with the purposes of the work, . . . .” Section 1.22 provides the contract may be terminated upon seven days notice if Daniel “fails to supply enough properly skilled workmen or proper equipment and materials” or “persistently disregard laws, ordinances or the instruction of the Engineer or Inspector.” Section 1.39 provides “ [t] he Engineer shall have direct supervision of Inspectors whose duty it shall be to see that the work is done properly and in accordance with the Contract Documents.” Section 1.38 provides:

The Engineer or Inspector shall have general supervision and direction of the work. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract. He shall also have authority to reject all work and materials which do not conform to the Contract.

As can be seen, some of the provisions seem to support Arkla’s argument that its supervisory authority was limited to saying when it was and was not satisfied with results as the work went along. Yet other provisions, particularly Section 1.38, seem to give Arkla general authority to supervise the details of the work.

In other cases we have found that a construction contract with an independent contractor presented a question of fact with respect to the duty to supervise. In Erhart v. Hummonds, 232 Ark. 133, 334 S.W.2d 869 (1960), the contract was very similar to the one here. It contained the same language as Section 1.38, giving general supervisory authority to a firm of architects to supervise an independent construction contractor on behalf of the owner. We held that a question of fact as to the assignment of duty was presented.

Arkla’s attempt to distinguish the Erhart case on the basis that the contract provided that the defendant-architect was being paid to assure the contractor was in compliance with the contract must fail. That is exactly what the Arkla engineer or inspector was to do according to the contract in this case. As stated in the Erhart opinion, the contract provided that “[t]he architect shall have general supervision and direction of the work —. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the contract.” As in this case, that left a jury question.

In Walker v. Wittenberg, et al., 241 Ark. 525, 412 S.W.2d 62 (1966), an architect was hired to prepare plans and specifications for the construction of a funeral home. After the plans were approved, the architect contracted with a construction company to build the funeral home. The architect was then hired to supervise and inspect the construction. Pursuant to the contract with the owner, the architect was to “have general supervision and direction of the work” and “authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract.” Again, we held there was a fact question as to the duty imposed upon the architect by the term “supervision” and reversed the directed verdict which had been entered in favor of the architect. On remand the Trial Court directed a verdict in favor of the architect. On appeal we affirmed. Walker v. Wittenberg, 242 Ark. 97, 412 S.W.2d 621 (1967). We stated, without explanation, the only issue on appeal was not that of a general duty to “supervise,” but “whether there was a contractual obligation upon the architect to be present continuously during construction. . . .” In view of the narrowness of the issue on the second appeal, our first decision in the case was not affected, and it remains relevant to this case.

Arkla relies on Jackson v. Petit Jean Electric Co-op, 270 Ark. 506, 606 S.W.2d 66 (1980), to support its contention that it did not have a contractual duty to ensure that Daniel complied with safety regulations. The contract at issue in the Jackson case reserved to Petit Jean Electric Co-op the right to alter the size of the work force and the quality and type of tools and equipment used on the job and the right to inspect and approve the work. The case is distinguishable because the contract contained none of the general and specific assignments of supervisory responsibility contained in the contract before us now.

Arkla argues that its actions at the construction site belie its authority to supervise the manner of work and, for example, compliance with safety regulations. In support of its argument it submitted to the Trial Court the affidavit of an Arkla inspector, Jeff Carter. Carter stated he did not tell Daniel how to excavate the trenches or how to perform its duties unless it affected the condition or location of the gas pipes. The fact that Arkla may have taken no affirmative action to ensure the safety regulations provided for in the contract were followed may, in a sense, be supportive of its argument on the factual issue of what the contract required, but the question remains one of fact, and summary judgment was inappropriate.

Reversed and remanded.

Hays and Corbin, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. The majority opinion holds summary judgment was improper because a genuine issue of material fact remained concerning the duty of Arkla to the employees of its independent contractor, Daniel. Appellant alleges Arkla had a duty under the contract between Arkla and Daniel to ensure Daniel complied with the safety regulations provided for in the contract. Appellant contends that had Arkla forced Daniel to comply with the safety regulations provided for in the contract Elkins would not have been injured.

The majority has adopted Restatement (Second) of Torts § 414 (1965) and held a fact question exists whether Arkla assumed the duty to ensure Daniel complied with safety regulations contained in the contract. In doing so, the majority has ignored the weight of authority from jurisdictions which have specifically considered this issue in relation to section 414. Other jurisdictions which have addressed this issue hold that in order for the employer or general contractor to be held liable for a subcontractor’s or independent contractor’s failure to comply with safety regulations contained in the contract, the employer must have assumed the responsibility for initiating, maintaining, and supervising safety precautions. Micheletto v. State, 798 P.2d 989 (Mont. 1990); Werdehausen v. Union Elec. Co., 801 S.W.2d 358 (Mo. App. 1990) (and cases cited therein). We have held that where a contract obligates a subcontractor to provide safety measures for his employees, the prime contractor will not be held responsible to assure compliance by the subcontractor by actual and physical inspection and direction if such is not provided in the contract. Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969).

The contract at issue obligated Daniel to comply with safety regulations. It did not provide for Arkla to ensure compliance by Daniel with the safety provisions by actual and physical inspection and direction nor did Arkla initiate, maintain or supervise safety procedures. Therefore, summary judgment was proper both under our previous decisions and pursuant to section 414 of the Restatement.

Hays, J., joins in this dissent.


author: Tom Glaze Justice.

text:
    CONTINENTAL CASUALTY CO. v. Bobby C. SHARP
    92-1135
    849 S.W.2d 481
    Supreme Court of Arkansas
    Opinion delivered March 15, 1993
    [Rehearing denied April 19, 1993.]

      Warner & Smith, by: Wayne Harris, for appellant.

      Robert S. Blatt and Timothy L. Sharum, for appellee.
   Tom Glaze Justice.

On October 26, 1987, the appellee, Bobby Sharp, suffered a back injury during the course and arising out of his employment with Kinco, Inc. At the time of this work-related accident, Continental Casualty Company (CCC), the appellant, provided worker’s compensation insurance coverage for Kinco, Inc. CCC paid Sharp worker’s compensation benefits totaling $128,424.77.

In October 1990, Sharp and his wife, Margie, through their attorney James Filyaw, brought a third-party-negligence action against Don Bull, Terracon Consultants S. C., Inc., Terracon Environmental, Inc. and Terracon Consultants E. C., Inc. in Sebastian County Circuit Court seeking damages for Sharp’s 1987 back injury. On February 26,1991, CCC, through retained counsel Wayne Harris, filed a motion to intervene in the third-party suit to preserve its right to a subrogation lien pursuant to Ark. Code Ann. § 11-9-410 (1987), which reads in relevant part as follows:

(1) LIABILITY UNAFFECTED.
(1) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his decedents, to make claim or maintain an action in Court against any Third Party for the injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in the action. If they, or either of them, join in the action, they shall be entitled to a first lien upon two-thirds (2/3) of the net proceeds recovered in the action that remain after the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.
(2) The commencement of an action by an employee or his dependents against a Third Party for damages by reason of an injury to which this chapter is applicable, or the adjustment of any claim, shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount recovered by the injured employee or his dependents from a Third Party shall be applied as follows:
(A) Reasonable cost of collection shall be deducted.
(B) Then, in every case, one-third (1/3) of the remainder shall belong to the injured employee or his dependents, as the case may be;
(C) The remainder, or so much as is necessary to discharge the actual amount of the liability of the employer and the carrier; and
(D) Any excess shall belong to the inj ured employee or his dependents.

The Sharps’ third-party action proceeded to trial, and a verdict was rendered in their favor in the amount of $456,893.60. The court entered judgment on the verdict, and attorney Filyaw, in accordance with his one-third contingency fee agreement with Sharp, received one-third of the gross recovery — $152,297.86. Filyaw was also reimbursed costs in the amount of $4,170.29. After deducting these costs of collection under § 11-9-410(a)(2)(A), the net recovery to be distributed (between the Sharps and CCC) under (B), (C) and (D) of § 11-9-410(a)(2) was $300,425.45. Accordingly, the Sharps were first entitled to one-third of this net figure, or $100,141.81, leaving $200,283.64 as the balance to be distributed. Because the remaining balance exceeded the worker’s compensation benefits CCC had paid Sharp, CCC was reimbursed only the $128,424.77 in benefits it had paid Sharp, and the remaining or excess funds, $71,858.87, were awarded the Sharps, fixing their total recovery at $172,000.68. The Sharps contested CCC’s receiving the full amount of its subrogation-lien amount, arguing CCC should pay one-third of such amount, $42,808.25, as collection costs since CCC exerted no efforts or assistance in pursuing the third-party action.

Mr. Sharp filed this declaratory judgment action against CCC, asserting CCC would be unjustly enriched if it were reimbursed its entire amount of benefits, and the trial court agreed, by granting Sharp’s motion for summary judgment finding that (1) prior to trial of the third-party action, the Sharps requested CCC to share in the cost of prosecuting the third-party action and CCC refused to participate, (2) the recovery of $456,893.60 in the third-party action was due primarily to the efforts of the Sharps’ attorney in investigating, developing, preparing and trying the third-party action and (3) CCC was not entitled to accept the benefits of the services of the Sharps’ attorney without payment of a reasonable attorneys’ fee. The trial court then awarded Sharp one-third of CCC’s subrogation lien amount, $42,808.25. This amount was in addition to the $152,297.86 amount Filyaw received as attorney’s fees or costs of collection in the third-party action. CCC appeals the trial court’s decision awarding this additional amount. While the trial court determined CCC must pay an additional attorney’s fee from its subrogation amount, the court denied Sharp’s contention that CCC must also pay one-third of the costs ($4,170.29) from its subrogation award. Sharp cross-appeals from this part of the trial court’s order. We reverse on appeal and affirm on cross-appeal.

The trial court erred in awarding Sharp an attorney’s fee from CCC’s subrogation lien award because the circuit judge presiding over the earlier third-party action had already awarded the Sharps the full amount of attorney’s fee ($ 152,297.86) as part of the “costs of collection” required under § 11-9-410(a)(2)(A). Because these fees and costs were initially deducted from the full amount of the third-party judgment before either the Sharps or CCC were distributed their respective statutory awards under § ll-9-410(a)(2), CCC effectively paid its proportionate share of the attorney’s fees in the Sharps’ third-party action. No additional attorney’s fee is provided by law.

In determining Sharp was entitled to a portion of CCC’s subrogation award as attorney’s fees, the trial court in this action relied upon the cases of Winfrey v. Carlile v. Nickles, Admr., 223 Ark. 894, 270 S.W.2d 923 (1954); Phillips v. Morton Frozen Foods, 315 F.Supp. 228, (E.D. Ark. 1970); and Boulden v. Herring, 126 F.Supp. 885, (W.D. Ark. 1954). These cases, however, are inapposite, and were limited to the issue as to whether the attorney’s fees in those cases were reasonable or proper under § 11-9-410(a)(2)(A). Here, CCC does not contest the amount of attorney’s fees and costs paid the Sharps’ attorney in their third-party action, but rather agrees that the amount paid Filyaw was reasonable.

Again, the issue here is whether CCC was required to pay an additional attorney’s fee from its subrogation-lien amount. Sharp presents no legal authority imposing such an additional obligation on CCC’s part, and in fact, the authority we have found is directly to the contrary. Burt v. Hartford Acc. & Indent. Co., 252 Ark. 1236, 483 S.W.2d 218 (1972); 2A Arthur Larson, Workmen’s Compensation Law, Subrogation §§ 74.32(a)(2); 74.32(b) n. 30 (1992). Our decision in this respect is consistent with this court’s established rule that attorney’s fees are not allowed except when expressly provided for by statute. Barnett v. Arkansas Transp. Co., 303 Ark. 491, 798 S.W.2d 79 (1990).

In Sharp’s cross-appeal, he points out that, while the trial court below awarded him one-third of CCC’s subrogation interest in attorney’s fees, the court erred in disallowing him an additional amount of costs from CCC’s subrogation award. Once again, the trial court deducted these costs from the full amount of the judgment in the third-party action and awarded these funds to reimburse the Sharps’ attorney the costs he advanced. For the same reasons we held that the trial court erred in awarding additional attorney’s fees as costs of collection, we hold CCC is also not required to pay additional costs from its subrogation award. Simply put, no legal authority requires CCC to pay additional costs, CCC had already paid its statutory or proportionate share of the costs incurred in the third-party action, and it has no further obligation under the law.

For the reasons above, we reverse the trial court’s granting of summary judgment to the Sharps on direct appeal and affirm the trial court’s decision on cross-appeal.

      Section 11-9-410 was previously codified as Ark. Stat. Ann. § 81-1340 (Repl. 1976).