text:
    Tommy PHILLIPS v. STATE of Arkansas
    CR. 99-94
    992 S.W.2d 86
    Supreme Court of Arkansas
    Opinion delivered June 17, 1999

      William A. McLean, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Senior Ass’t Att’y Gen., for appellee.
   Lavenski R. Smith, Justice.

Appellant, Tommy Phillips, appeals the order of the Pulaski County Circuit Court denying his motion to dismiss. Phillips contends the court’s order violated his Fifth Amendment right against double jeopardy. We disagree and affirm.

Phillips, along with Cochise Miles, was charged with capital murder and two counts of aggravated robbery. The State alleged Phillips fatally shot Van Dean Clause during a robbery of the Freight Damaged Grocery Store in Little Rock. Carr Stalnaker, who was delivering chips to the store, witnessed the crime. The perpetrators robbed Stalnaker at gunpoint but, fearing for his life, Stalnaker fled the scene after Clause was shot. Stalnaker later identified appellant as Clause’s assailant during a line-up at a Little Rock police station.

Phillips’s jury trial began on February 3, 1998, and proceeded normally until the sixth day, when just prior to closing arguments, attorney Bill Brown notified the court that as an officer of the court he had something he felt he must say regarding the proceedings. Based upon what he had read in the newspaper, Brown asserted that the court needed to be apprised of statements Brown believed could have been made by Carr Stalnaker during Cochise Miles’s line-up identification. Brown represented Miles at the time. Specifically, Brown stated he believed he overheard Stalnaker say, “I don’t know why I’m here. I didn’t see anything.” Phillips’s counsel and the deputy prosecutor acknowledged that Brown’s observation had been placed in the case file and was known by defense counsel prior to trial.

After Brown’s examination outside the presence of the jury, Phillips’s counsel moved the court to permit him to reopen the case and permit Brown’s examination as a defense witness. Following a brief recess, the court announced that, on its own motion, it was declaring a mistrial. Neither counsel objected. The court scheduled a new trial to commence on August 24, 1998. On July 28, 1998, Phillips filed a motion to dismiss, alleging that the court’s sua sponte mistrial ruling triggered double jeopardy protection, and a subsequent trial would be unconstitutional under federal and state constitutional provisions.

Standard of Review

The decision to order a mistrial and retry a criminal defendant lies within the sound discretion of the trial judge, and will be upheld absent an abuse of discretion. Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991). The trial court should resort to a mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Stanley v. State, 324 Ark. 310, 920 S.W.2d 835 (1996).

Double Jeopardy

Double jeopardy attaches in a jury trial once the jury is sworn. Tipton v. State, 331 Ark. 28, 959 S.W.2d 39 (1998); Hale v. State, 336 Ark. 345, 985 S.W.2d 303 (1999). We have held that a manifestly incorrect trial court decision to grant a mistrial will bar subsequent prosecution. Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986). The safeguard against being “subject for the same offense to be twice put in jeopardy of life and limb” is guaranteed by the Fifth Amendment to the U.S. Constitution and by Article 2, § 8, of the Arkansas Constitution. To further secure this right, our legislature has codified it as an affirmative defense to criminal prosecution. The relevant statute, Ark. Code Ann. § 5-1-112, provides in pertinent part:

[Affirmative defense Former prosecution for same offense.]
A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:
(3) The former prosecution wás terminated without the express or implied consent of the defendant after the jury was sworn or, if trial was before the court, after the first witness was sworn, unless the termination was justified by overruling necessity. (Emphasis added.)

From the language of the statute, as well as our double jeopardy cases, it is clear that once the jury is sworn, a criminal defendant cannot be tried on the same charge again unless he consented to the trial’s termination or it was justified by overruling necessity.

We have long held that a defendant’s consent to the termination of the trial can be either express or implied. If the defendant’s consent is evident, demonstration of an overruling necessity is not required in order to avoid the affirmative defense of double jeopardy. Whitmore v. State, 43 Ark. 271 (1884). We have found implied consent in circumstances where the mistrial is declared for the benefit of the defendant and the defendant does not object. Rowlins v. State, 319 Ark. 323, 891 S.W.2d 56 (1995); Woods v. State, 287 Ark. 212, 697 S.W.2d 890 (1985); Burnett v. State, 76 Ark. 295 (1905). In Woods, supra, a statement had not been provided to the defense in a timely fashion. The trial court granted continuance, and subsequently ordered a mistrial. On appeal, we held the mistrial was for Woods’s benefit and that implied consent existed. The court also noted the statute and quoted the Commentary to that section which provides:

Express consent occurs when the defendant moves to terminate the trial or agrees to termination on motion of the court or the state. The Model Penal Code declined to take a stand on whether mere failure to object to termination constitutes implied consent. Fortunately, the Arkansas Supreme Court has addressed the issue, developing what the Commission felt was a workable definition of implied consent. See, Franklin v. State, 149 Ark. 546 (1921); Burnett v. State, 76 Ark. 295 (1905). Consent is implied if the defendant fails to object to termination and the termination is for the benefit of the defendant. If the termination is for the benefit of the state, mere failure to object does not constitute consent.” Woods at 214.

In the instant case, Phillips requested to be allowed to reopen his case to protect his interests. The court, based on its view of the case, decided that mistrial was the best alternative to protect Phillips’s interest and so ordered. Just after the dismissal of the jury, the following colloquy occurred:

Prosecutor: Your Honor, I didn’t hear a motion for a mistrial.
The Court: The court did that on its own. Let me explain this very carefully. The State of Arkansas is seeking the death penalty in this case. - The court is going to take its own steps to make sure that justice is carried out. If there are persons who are switching testimony or statements, those have to be reviewed and a jury should hear those all the way through. . . . TR 175-176.

Additionally, at the August 7, 1998 hearing on Phillips’s motion to dismiss on grounds of double jeopardy, the court further stated in conversation with defense counsel:

The Court: Well, Mr. McClean, to be quite specific in this case you acknowledge to the Court, if I’m not mistaken, that you had made a mistake—
Mr. McClean: That’s correct:
The Court: — in not subpoenaing Bill Brown. You said that you had gone through the State’s files, you had looked in there and you had neglected for whatever reason to subpoena Mr. Brown. You asked for a remedy that would have required that after closing arguments had been made that we reopen this case — and put on the testimony of Mr. Brown. Now, I think that would have been highly prejudicial to your client to handle that that way. That’s the Court’s opinion of that. The man is facing a capital murder charge where he could get the death penalty. . . To me the stakes were too high for your client for you not to ask for a mistrial in the first place. In the interest of justice and what this Court considers to be orderly and given the Court’s impressions about how a capital murder case should be handled, that’s just a bit too awkward to submit something like that to the jury.
So, under the rule as the prosecutor has cited and as the Court looked at right away, there was no objection on your part. So there’s implied consent. That is the first ruling of this Court, that there was implied consent, even though it was sua sponte. The Court can order a mistrial sua sponte. And the second thing is that, even if that isn’t considered implied consent, there is in this particular instance, certainly where a person is facing the possible remedy — penalty of the death penalty, that the termination of this case was justified by overriding necessity. TR 618-619.

Thus, there is no question that the court ordered a mistrial for the appellant’s benefit. It is also clear appellant did not object. We, therefore, agree with the trial court and hold that implied consent exists and that appellant has not been subjected to double jeopardy.

Affirmed.

       Ark. Code Ann. § 5-1-112 was formerly codified as Ark. Stat. Ann. § 41-106.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Roger Don FARMER v. STATE of Arkansas
    CR 99-627
    992 S.W.2d 130
    Supreme Court of Arkansas
    Opinion delivered June 17, 1999

      Jeffrey W. Hatfield, for appellant.
    No response.
   Per Curiam.

Appellant Roger Don Farmer, by and through his attorney, has filed a motion for a rule on the clerk. His attorney, Jeffrey W. Hatfield, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Corey SANDERS v. STATE of Arkansas
    CR 99-628
    991 S.W.2d 611
    Supreme Court of Arkansas
    Opinion delivered June 17, 1999

      Walker & Dunklin, by: Larry G. Dunklin for appellant.
    No response.
   Per Curiam.

Corey Sanders, by his attorney, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and that it was no fault of the appellant.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See. e.g., Terry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

The present motion for rule on the clerk is denied.


text:
    Reno SWOPES/Muhammad v. STATE of Arkansas
    CR 97-1507
    992 S.W.2d 109
    Supreme Court of Arkansas
    Opinion delivered June 17, 1999

      Alvin Schay, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Ass’t Att’y Gen., for appellee.
   Per Curiam.

In 1990, the appellant, Reno Swopes, pleaded guilty to second-degree battery, kidnapping, and aggravated robbery. The trial court sentenced him to an aggregate term of sixty-five years in the Arkansas Department of Correction. In 1993, Swopes filed a petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. The Circuit Court denied relief, and Swopes attempted to appeal that order in this court. The appeal was not accepted by the Clerk, however, because the record was never lodged.

In 1996, Swopes filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Arkansas. In the petition, he alleged that his constitutional rights were violated when the trial court pronounced sentence without the presence of Swopes or his attorney. The District Court agreed that there had been a constitutional violation, and it issued an order that provided that a writ of habeas corpus would issue unless Swopes was resentenced within 120 days.

Pursuant to the order of the federal court, the trial court held a hearing in which it resentenced Swopes to the same term in the Arkansas Department of Correction. A new judgment and commitment order was filed on March 7, 1997. A week later, on March 14, 1997, Swopes filed a motion to withdraw his guilty plea pursuant to Arkansas Criminal Procedure Rule 26.1. The Circuit Court, finding that the claims raised in the motion to withdraw the guilty plea could have been raised in Swopes’s previous petition under Rule 37, denied relief. Swopes now appeals that order. We affirm.

On appeal, Swopes argues that the Circuit Court erred in denying his motion to withdraw his guilty plea. His argument appears to be twofold. First, he contends that the motion to withdraw his guilty plea is timely because the federal court’s ■ order, which reopened the matter of sentencing, “opened the door” to the filing of the motion because, under Rule 26.1, a motion to withdraw a guilty plea is timely if it is filed before sentencing. Second, he contends that his previous Rule 37 petition should not bar the claims he raises in the motion to withdraw the guilty plea because at the time he filed the Rule 37 petition, he was unable to fully develop the claims therein because the trial court denied his motion to proceed as an indigent, and therefore, denied him access to a transcript of his plea hearing.

Even if we were inclined to hold that the federal court’s resentencing order opened the door to the filing of a motion to withdraw the guilty plea pursuant to Rule 26.1, we could not do so in this case because the record reveals that the resentencing hearing was held on March 4, 1997, and that another pronouncement of the sentence occurred on that date. The judgment reflecting the resentencing was entered on March 13, 1997. Swopes did not file his motion to withdraw his guilty plea until March 14, 1997. At the time that Swopes pleaded guilty, a motion under Rule 26.1 was considered timely only if it was filed before sentencing. A motion under Rule 37 was necessary after the sentence had been carried into execution. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). A sentence is placed into execution when the court issues a commitment order unless the trial court grants appellate bond or specifically delays execution upon other valid grounds. Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987); see also Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997). Therefore, the federal court order'is of little help to Swopes because his motion under Rule 26.1 still follows the issuance of the judgment and commitment Order, and therefore, is more properly considered a motion for postconvictión relief under Rule 37.

The question now becomes whether Swopes’s request for postconviction relief is barred by his previous attempt to proceed under Rule 37. Rule 37.2(b) clearly provides that “all grounds for relief available to a petitioner under this rule must be raised in his or her original petition unless the petition was denied without prejudice.” Accordingly, Swopes cannot now have a second chance to challenge his conviction. Moreover, we are unconvinced by Swopes’s argument that his inability to obtain a transcript of his plea hearing should allow another chance to raise claims for postconviction relief, for the record clearly indicates that Swopes did not file a motion for a transcript of the plea hearing until well after his Rule 37 petition had been denied.

Affirmed.


author: W. H. "Dub"Arnold, Chief Justice.

text:
    Gary VAUGHN v. STATE of Arkansas
    CR 98-1259
    992 S.W.2d 785
    Supreme Court of Arkansas
    Opinion delivered June 24, 1999

      Ernest Wayne Witt, for appellant.

      Mark Pryor, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   W. H. "Dub"Arnold, Chief Justice.

The appellant, Gary Keith Vaughan, was convicted of two counts of raping his adopted daughter and was sentenced to two terms of life in the Arkansas Department of Correction. The appellant was charged by felony information with two counts of rape. Count one alleged that appellant committed rape by engaging in sexual intercourse with the victim, who was less than fourteen years old at the time of the crime. This crime was alleged to have occurred on numerous occasions from 1983 through 1989.

Count two alleged that appellant committed rape by engaging in deviant sexual activity or sexual intercourse with the victim by forcible compulsion during the years 1989 through November 17, 1994. The victim turned eighteen years of age on December 16, 1993. The crime was first reported to law enforcement on November 28, 1994. The information was filed on August 5, 1997. The trial was held on June 26, 1998.

. Prior to trial, appellant filed-motions alleging that the statute of limitations was six years for a Class Y felony, and that count one should be dismissed in its entirety for that reason. He also asked, in regard to count two, that testimony about events occurring prior to August 4, 1991 (six years before the charges were filed) be .excluded for the same reason. While the record is devoid of any hearing or ruling on these motions, appellant did, at trial, renew all prior motions at the conclusion of all of the evidence. The motions made at the close of all of the evidence were denied by the trial court.

Appellant asserts the following on appeal:
1) The trial court erred in refusing to dismiss count one, prior to trial, because the statute of limitations had expired;
2) The trial court erred in refusing to exclude from count two those incidents which occurred more than six years before the arrest of the defendant, and which were therefore excluded by the statute of hmitations;
3) The trial court erred in allowing the deputy prosecuting attorney to introduce evidence of other alleged incidents, by reading from prior statements, during the examination of witnesses, to the extreme prejudice of appellant.

We hold, for the following reasons, that appellant has failed to preserve these arguments for appeal and hereby affirm the trial court.

I. Count one.

Appellant filed a pretrial motion to dismiss, arguing that count one should be dismissed because “it has been filed after the requisite period of time, which is 6 years pursuant to A.C.A. [§] 5-1-109.” This motion was filed on April 22, 1998. Appellant filed a second motion to dismiss on the day of trial. In his brief, appellant states that ‘no ruling on either of these motions appear of record; however, an adverse ruling must be presumed since the appellant was convicted of count one and sentenced to life.”

In order to preserve a point for appellate review, a party must obtain a ruling from the trial court. Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998); Jordan v. State, 323 Ark. 628, 632, 917 S.W.2d 164, 166 (1996). We will not review a matter on which the trial court has not ruled; and, a ruling should not be presumed. The burden of obtaining a ruling is on the movant; matters left unresolved are waived and may not be raised on appeal. Id.; Parmley v. Moose, 317 Ark. 52, 57, 876 S.W.2d 243, 246 (1994). Therefore, appellant has failed to preserve this issue for appeal, since he never obtained rulings on the filed motions.

II. Count two.

With regard to count two, appellant filed a motion to suppress, arguing that “any evidence of a rape should be suppressed if said evidence occurred prior to August 4, 1991, six years prior to the filing date of August 4, 1997, of the affidavit for warrant of arrest.” From a review of the record, there appears to be no pretrial ruling on appellant’s motion to suppress, either. The only reference to this motion during the trial occurred at the close of all the evidence when appellant renewed his motions, which were denied.

Even if the court’s general denial could be considered a specific ruling on this motion, appellant’s motion was untimely. He did not object and obtain a ruling during the trial when evidence concerning the victim’s sexual abuse prior to August 4, 1991, was introduced. This Court has made it clear that in order to preserve the point for appeal, appellant was required to renew his objection when the testimony was elicited at trial. Alexander v. State, supra. By waiting to object until the close of all the evidence, appellant’s motion was untimely.

In sum, because appellant failed to object at the first opportunity, appellant’s argument concerning exclusion of evidence in regard to count two was not properly preserved for appellate review and is, therefore, procedurally barred.

III. Reading from prior statements.

Appellant asserts that the trial court erred in allowing the deputy prosecuting attorney to introduce evidence of other alleged incidents, by reading from prior statements, during the examination of witnesses, to the extreme prejudice of the appellant. Appellant admits that he did not timely object to the prosecutor’s line of questioning, but argues that the prejudice was so great that this Court should apply an exception to the contemporaneous-objection rule under Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), whereby a trial court should intervene on its own motion to correct a serious error. We disagree.

A. Cross-Examination of the Appellant

Appellant testified in his own defense. During the cross-examination of appellant, the State asked appellant if he committed numerous sexual acts which the victim had previously testified had occurred. In conducting the cross-examination, the deputy prosecutor repeatedly referred to a statement given by the victim to Deputy Sheriff Gladys Dulyea. Again, appellant admits that he did not timely object to the prosecutor’s line of questioning. After extensive cross-examination concerning statements the victim made to law enforcement about the specific instances of abuse, the appellant made the following single objection:

Counsel for Appellant: Your Honor, I’m going to have to object. I don’t mind if he wants to cross the situations that the girl spoke of, but to just rattle on forever without evidence or testimony that [the victim] wrote up her own, I feel is improper.

The trial court sustained the objection, stating that the deputy prosecutor should not read the statement.

To preserve an issue for appeal, a defendant must object at the first opportunity. Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996); Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1995). In addition, a defendant must renew his objection each time he is questioned about a matter; and, when a question previously objected to is repeated, and there is no second objection, the matter is waived on appeal. See Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997); Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). In the case at bar, appellant certainly failed to object at the first opportunity. Furthermore, he only objected to one of many questions concerning the victim’s statement. This issue was, therefore, not preserved for appeal.

B. Cross-Examination of Keith Vaughan

During the cross-examination by the State of defense witness Keith Vaughan, one of appellant’s sons, the State inquired about statements Keith had made to Mary Beth Whipkey, a Department of Human Services social worker. The witness remembered being interviewed by someone but professed not to know by whom he was interviewed nor to remember the substance of the statement he gave. Furthermore, Keith also stated that he could not recall whether or not he had been interviewed by Deputy Sheriff Gladys Dulyea. He denied making the statements in question.

The appellant made no objection during the cross-examination of Keith Vaughan concerning his statement to Ms. Whipkey. He made the following single objection to a question by the State concerning Keith Vaughan’s statements to Gladys Dulyea:

Counsel for Appellant: I’m going to have to make an objection. On inspection this is the typed statement that somebody else typed. He didn’t sign it. I would have to question the authenticity of it. He’s asking several times why did she put this is or did she put that in. He didn’t say it. He didn’t type it. If he[’s] contesting it, I’d have to ask for the veracity and accuracy of this document before he can cross-examine him with it.

This objection was untimely as it came after extensive cross-examination concerning the statement. Again, in order to properly preserve these issues for appeal, the defendant must timely object at the first opportunity. Furthermore, appellant did not object to further questioning regarding the statements. Therefore, this issue, likewise, was not preserved for appeal.

Appellant’s argument that this Court should apply the third exception enumerated in Wicks v. State, supra, to the case at bar is not convincing. In Wicks, this Court stated that it implied in Wilson v. State, 126 Ark. 354, 190 S.W. 441 (1916), that no objection is necessary if the trial court fails to control a prosecutor’s closing argument and allows him to go too far:

Appellant can not predicate error upon the failure of the court to make a ruling that he did not at the time ask the court to make, unless the remarks were so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same. See Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256 [85 S.W. 428 (1905)]; Harding v. State, 94 Ark. 65 [126 S.W. 90 (1910)].

quoting Wilson v. State. The Court, in Wicks, further stated:

It must be noted that, first, we did not reverse the judgment in Wilson, and second, the quoted statement was taken essentially from the cited Murphy case, where we went on to say explicitly that if the court fails to restrain an improper argument, counsel should make a definite objection and call for a ruling. We have mentioned the Wilson suggestion in two recent cases, but in neither one was the judgment actually reversed because of the trial court’s failure to act on its own motion. Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980); Wilson and Dancy v. State, 261 Ark. 820, 552 S.W.2d 223 (1977). Thus every statement of the original Wilson suggestion has been obiter dictum, because no judgment has been reversed on account of the trial court’s failure to intervene. Such a reversal would necessarily be an extremely rare exception to our basic rule.

Wicks v. State, 270 at 786-87 (emphasis added).

Appellant has failed to demonstrate that the State’s cross-examination of either appellant or Keith Vaughan was so flagrant and so highly prejudicial in character as to make it the duty of the court, on its own motion, to have instructed the jury not to consider the same, without the necessity of an objection by appellant. In sum, because of appellant’s failure to preserve these points on appeal, the trial court will be affirmed.

IV. Rule 4-3 (h) Compliance.

The record has been reviewed for prejudicial error, pursuant to Ark. Sup. Ct. R. 4-3 (h), and no reversible errors were found.

Affirmed.


author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    Winston BRYANT, Attorney General, and Larry Jegley, Prosecuting Attorney for Pulaski County, Sixth Judicial District v. Elena PICADO, Randy McCain, Robin White, Bryan Manire, Vernon Stokay, Charlotte Downey, and George Townsand
    98-1223
    996 S.W.2d 17
    Supreme Court of Arkansas
    Opinion delivered June 24, 1999

      Mark Pryor, Att’y Gen., by: Timothy G. Gauger, Ass’t Att’y Gen., for appellant.

      Lamda Legal Defense and Education Fund, Inc., by: Suzanne B. Goldberg and Ruth E. Harlow; Mitchell, Blackstock, Barnes, Wagoner

      & Ivers, by: David Ivers and Emily Sneddon; and Gary L. Sullivan, for appellees.
   Donald L. Corbin, Justice.

This is an interlocutory appeal involving a claim of immunity from suit pursuant to Article 5, § 20, of the Arkansas Constitution. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l). Appellees Elena Picado, Randy McCain, Robin White, Bryan Maniré, Vernon Stokay, Charlotte Downey, and George Townsand filed a complaint in the Pulaski County Chancery Court seeking to have Ark. Code Ann. § 5-14-122 (Repl. 1997) declared unconstitutional, insofar as it criminalizes specific acts of consensual sexual intimacy between persons of the same sex. They also seek an injunction preventing enforcement of the statute. Appellees’ complaint is based on four causes of action involving the right to privacy and equal protection of the laws under both the United States and Arkansas Constitutions. Appellants Winston Bryant, in his official capacity as Attorney General, and Larry Jegley, in his official capacity as Prosecuting Attorney for the Sixth Judicial District, filed a motion to dismiss the complaint pursuant to ARCP Rule 12, asserting that they are immune from suit and that the chancery court lacks jurisdiction to hear Appellees’ claims. The chancellor denied Appellants’ motion, and this appeal followed.

Appellees are gay and lesbian residents of Arkansas who allegedly fear prosecution under section 5-14-122, which provides:

(a) A person commits sodomy if such person performs any act of sexual gratification involving:
(1) The penetration, however slight, of the anus or mouth of an animal or a person by the penis of a person of the same sex or an animal; or
(2) The penetration, however slight, of the vagina or anus of an animal or a person by any body member of a person of the same sex or an animal.
(b) Sodomy is a Class A misdemeanor.

Class A misdemeanors are punishable by a sentence not to exceed one year and a fine not to exceed $1,000. Ark. Code Ann. §§ 5-4-201 and 5-4-401 (Repl. 1997).

In their complaint, Appellees each assert that they have in the past engaged in conduct prohibited by section 5-14-122, and that they intend to engage in such conduct in the future. They each also state that they suffer “genuine, specific, and concrete fear” that they will be prosecuted under that section. Appellees contend that section 5-14-122 violates their rights to privacy guaranteed by the Bill of Rights and the Fourteenth Amendment to the United States Constitution and Article 2 of the Arkansas Constitution, insofar as it criminalizes private, consensual acts of sodomy between two adults of the same sex. They contend further that because section 5-14-122 does not prohibit acts of sodomy between persons of the opposite sex, it violates their rights to equal protection of the laws, as found in the Fourteenth Amendment, as well as Article 2, §§ 3 and 18, of the Arkansas Constitution.

Appellants raise five points for reversal. First, they argue that Appellees’ state-law claims are barred by the doctrine of sovereign immunity provided in Article 5, section 20, of the Arkansas Constitution. Appellants next argue that the complaint fails to state facts upon which relief can be granted under 42 U.S.C. § 1983 because Appellants are not “persons” amenable to suit under that statute. For their last three points, Appellants assert that the chancery court lacks jurisdiction of this case because (1) there is no justiciable case or controversy, (2) Appellees have an adequate remedy at law, and (3) chancery courts may not enjoin the prosecution of criminal statutes. We agree that the chancery court lacks jurisdiction to hear this case, and we reverse.

As a general rule, equity jurisdiction exists only when the remedy at law is inadequate. Townsend v. Arkansas State Highway Comm’n, 326 Ark. 731, 933 S.W.2d 389 (1996). More particularly, “equity will not entertain a contest over the validity of a statute nor restrain prosecutions pending the determination of the validity thereof where an adequate remedy at law exists.” S & S News Agency, Inc. v. Freeze, 247 Ark. 1078, 1081, 449 S.W.2d 404, 406 (1970) (citing Rider v. Leatherman, 85 Ark. 230, 107 S.W. 996 (1908)). Here, Appellants argue that Appellees’ remedy at law is to challenge the constitutionality of section 5-14-122 in defense of a prosecution under that statute. We disagree with Appellants’ assertion that Appellees’ constitutional challenge must be postponed until one or more of them is arrested and charged with violating the statute. We agree, however, that the chancery court lacks jurisdiction to hear Appellees’ complaint.

Under our declaratory judgment act, courts of record within their respective jurisdictions have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. Ark. Code Ann. § 16—111—103(a) (1987). The act itself does not confer subject-matter jurisdiction; thus, there must be an independent basis for the court’s jurisdiction before it may render a declaratory judgment. UHS of Ark., Inc. v. Charter Hosp. of Little Rock, Inc., 297 Ark. 8, 759 S.W.2d 204 (1988). Courts of equity do not have jurisdiction to render declaratory judgments where the subject matter is not cognizable in a court of equity. City of Garland v. Miller County, 270 Ark. 981, 606 S.W.2d 751 (1980). The pertinent inquiry is whether exclusive jurisdiction of the subject matter is vested in a particular tribunal by the Arkansas Constitution. Daley v. Digby, 272 Ark. 267, 613 S.W.2d 589 (1981). It thus follows that where exclusive jurisdiction rests with the circuit court, declaratory-judgment actions must be pursued there. Id.

Here, Appellees seek a declaration that the criminal sodomy statute, section 5-14-122, is unconstitutional. Circuit courts have exclusive jurisdiction over criminal prosecutions. See Ark. Const, art. 7, §11. Accordingly, Appellees’ declaratory-judgment action may only be pursued in the circuit court. Once the circuit court acquires jurisdiction to declare such rights it may also issue injunctive relief. Digby, 272 Ark. 267, 613 S.W.2d 589. Thus, Appellees’ remedy at law is complete.

We thus reverse the order of the chancery court, as it does not have jurisdiction to hear the case. Only the circuit court may declare a criminal statute unconstitutional under our declaratory judgment act. Accordingly, we remand this case to the chancery court with directions to transfer Appellees’ complaint to the circuit court.

Brown and Imber, JJ., concur.

Robert L. Brown, Justice,

concurring. I agree with the majority opinion and write to emphasize what today’s holding does. All parties agree that chancery court cannot enjoin a pending criminal prosecution. See, e.g., Billy/Dot, Inc. v. Fields, 322 Ark. 272, 908 S.W.2d 335 (1995); S & S News Agency v. Freeze, 247 Ark. 1078, 449 S.W.2d 404 (1970). Today’s decision makes it clear that even when no criminal prosecution or investigation is pending, chancery court has no jurisdiction to decide the constitutionality of a criminal statute. In reaching this conclusion, the majority relies on Daley v. Digby, 272 Ark. 267, 613 S.W.2d 589 (1981), where we said (1) that declaratory judgments are resolved in courts with underlying subject-matter jurisdiction, and (2) that if circuit court has jurisdiction to grant a declaratory judgment, it may also issue an injunction. Neither party in this case cites Daley, which attests to the fact that the Attorney General, at least, was unaware of the jurisdictional precedent set by that decision.

I have some sympathy for attorneys researching proper jurisdiction for a declaration of a criminal statute’s constitutionality. Those attorneys would find several cases which, on the surface at least, appear to sanction jurisdiction in chancery court. See, e.g., Handy Dan Improvement Tr. v. Adams, 276 Ark. 268, 633 S.W.2d 699 (1982) (chancery court decided the constitutionality of the Sunday closing laws, which carried criminal penalties for violation but where no prosecution was pending); Arkansas State Bd. of Pharmacy v. Troilett, 249 Ark. 1098, 463 S.W.2d 383 (1971) (discretionary with chancery court whether to take jurisdiction to determine constitutionality of the prophylactic law; chancery court transferred case to circuit court); State v. Epperson, 242 Ark. 922, 416 S.W.2d 322 (1967) (chancery court struck down the law against teaching evolution on religious-freedom grounds where no criminal prosecution was pending); Bennett v. N.A.A.C.P., 236 Ark. 750, 370 S.W.2d 79 (1963) (chancery court declared three laws designed to thwart civil rights activity to be unconstitutional, some of which were criminal, and upheld one law); Carr v. Young, 231 Ark. 641, 331 S.W.2d 701 (1960) (chancery court upheld constitutionality of act requiring teacher affidavits of organizations belonged to for past five years; violation of act carried criminal penalties but no prosecution pending); Hickinbotham v. Williams, 227 Ark. 126, 296 S.W.2d 897 (1956) (chancery court upheld constitutionality of Sunday closing laws which had been attacked on equal protection grounds; violation of act was a misdemeanor but no prosecution pending).

In Daley v. Digby, supra, we did not expressly overrule those decisions, but that is certainly the effect of our decision today.

Chancery court has traditionally been the proper jurisdiction for protecting personal and property rights where there is no adequate remedy at law. See Bates v. Bates, 303 Ark. 89, 793 S.W.2d 788 (1990); see also Union Pac. R.R. Co. v. State, 316 Ark. 609, 873 S.W.2d 805 (1994). Here, a personal right to privacy is asserted by the appellees who argue that the threat of criminal prosecution hangs over their heads like a sword of Damocles. Circuit court is the proper jurisdiction for things criminal, and under Daley v. Digby, supra, circuit court may not only resolve the constitutional question but also enjoin enforcement of an unconstitutional statute. The remedy at law is adequate. For that reason, I agree with the transfer to circuit court.

Imber, J., joins.

       As of January 1999, Mark Pryor is the Attorney General of Arkansas.


author: Donald L. Corbin, Justice.

text:
    Brian PATTERSON v. Steve ISOM
    98-969
    992 S.W.2d 792
    Supreme Court of Arkansas
    Opinion delivered June 24, 1999

      Dunham & Faught, P.A., by: James Dunham, for appellant.

      Dennis C. Satterfield, for appellee.
   Donald L. Corbin, Justice.

This appeal presents a conflict involving the concurrent jurisdiction of chancery and juvenile courts to hear paternity cases. The case was certified to us from the Arkansas Court of Appeals as presenting issues requiring further development or clarification of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(5).

Appellant Brian Patterson and Sheila Judkins were married on June 6, 1985. One child, Brandi Patterson, was born of the marriage on May 20, 1987. On August 27, 1991, the couple was granted a divorce by the Pope County Chancery Court (chancery court). Judkins was granted custody of Brandi. Miscellaneous petitions were subsequently filed in the chancery court by both parties, culminating in Patterson’s petition for a change of custody filed on April 19, 1996. Judkins responded to the petition by filing a petition for paternity testing, asserting for the first time that Patterson was not Brandi’s biological father. In a letter to counsel filed August 6, 1996, the chancery court denied the petition for paternity testing and found that Patterson was the child’s father. The final order was not entered until August 13, 1997. In the meantime, Appellee Steve Isom filed a motion to intervene in the chancery action on August 5, 1997, asserting that DNA testing had established him as Brandi’s biological father. On that same date, Isom filed a complaint for adjudication of paternity in the Juvenile Division of the Pope County Chancery Court (juvenile court). The juvenile court found Isom to be the biological father of Brandi. It is from that decision that Patterson appeals.

Before we address the points on appeal, we are compelled to respond to Isom’s argument that Patterson’s jurisdictional arguments are barred by the law-of-the-case doctrine, which “prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals.” Richardson v. Rodgers, 334 Ark. 606, 611, 976 S.W.2d 941, 944 (1998) (quoting Vandiver v. Banks, 331 Ark. 386, 391-92, 962 S.W.2d 349, 352 (1998)). This argument stems from the fact that prior to the final determination of this matter in the juvenile court, Patterson petitioned this court for a writ of prohibition, raising the same jurisdictional arguments that he now raises on appeal. This court denied the writ, but issued no opinion on the matter. Isom asserts that the denial prevents Patterson from raising those issues on appeal. We disagree.

A writ of prohibition is an extraordinary writ that is only appropriate when the lower court is wholly without jurisdiction. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998). The purpose of the writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise. Id. A writ of prohibition is never issued to prohibit an inferior court from erroneously exercising its jurisdiction. Id. Given that Arkansas Code Annotated § 9-10-101(a)(1) (Repl. 1998) provides that chancery and juvenile courts have concurrent jurisdiction of paternity cases, a writ of prohibition to prevent either court from acting is not the appropriate remedy, as neither court would be acting “wholly without jurisdiction.” See Hall v. Pulaski County Chancery Court, 320 Ark. 593, 898 S.W.2d 46 (1995). Furthermore, a writ of prohibition is inappropriate when the trial court has not resolved a factual dispute necessary to the determination of jurisdiction. Hudson v. Purifoy, 337 Ark. 146, 986 S.W.2d 870 (1999). Flere, when Patterson filed for a writ of prohibition in this court, it was unclear whether the juvenile or chancery court had jurisdiction, as the facts for such a determination had yet to be developed. Accordingly, our earlier denial of the writ of prohibition does not serve as a bar to our consideration of the jurisdictional issues on direct appeal.

Patterson first argues that the juvenile court erred in refusing to dismiss Isom’s paternity complaint on the ground that the chancery court has exclusive jurisdiction over the matter, as the issue of paternity arose in the chancery case. He relies on section 9-10-101 (a) which provides:

(1) The chancery court shall have concurrent jurisdiction with the juvenile division of chancery court in cases and matters relating to paternity.
(2) The chancery court shall have exclusive jurisdiction of paternity matters which arise during pendency of original proceedings brought under equity jurisdiction.
(3) The juvenile division of chancery court shall have exclusive jurisdiction of paternity matters which arise during pendency of original proceedings brought pursuant to the Arkansas Juvenile Code of 1989, § 9-27-301, et seq. [Emphasis added.]

The proper interpretation of section 9-10-101(a)(2) is that “exclusive jurisdiction will lie in a chancery court when a paternity matter arises during the pendency of an action already within its jurisdiction.” Barnes v. Barnes, 311 Ark. 287, 292, 843 S.W.2d 835, 837 (1992). In short, the issue of paternity must be raised or developed in some way in the chancery action. Hall, 320 Ark. 593, 898 S.W.2d 46.

In Hall, the facts showed that Doug Freeman and Jamie McFall were divorced in 1988. Some six years later, Doug filed a paternity complaint in juvenile court against Jamie, alleging that a third party, Tod Hall, was the father of the one child born to the marriage. Hall petitioned this court for a writ of prohibition, arguing that the chancery court had exclusive jurisdiction over this matter under section 9-10-101 (a)(2). This court denied the writ, holding:

[B]ased on what we have before us, the paternity issue did not arise during the original 1988 divorce action, and that is what § 9-10-101 (a) (2) requires for exclusive jurisdiction to reside in chancery court. To be sure, there was some proof in the paternity suit that Doug Freeman suspected Tod Hall was the father of S.F. prior to the divorce, but, according to the record, that issue was not raised in chancery court by either Doug Freeman or Jamie McFall or developed in that action in any way. The divorce was concluded in 1988, though the court did retain jurisdiction to modify and enforce the rights of the parties. Under these facts, there are insufficient grounds for finding exclusive jurisdiction in chancery court.

Id. at 596, 898 S.W.2d at 48 (emphasis added). The facts in the present case are distinguishable from those in Hall.

Here, the parties were granted a divorce by the chancery court in 1990. Between the time they were divorced until April 1996, both parties filed various petitions regarding modification of visitation and support. On April 19, 1996, Patterson filed a petition for change of custody. In response, Judkins filed a petition asking the chancery court to order paternity testing to determine that Patterson was not the biological father of the child. In an order entered on August 13, 1997, the chancery court denied Judkins’s request for tests and specifically found that Patterson was the father of the child.

Based upon these facts, we conclude that the chancery court had exclusive jurisdiction under section 9-10-101(a)(2) to determine the issue of paternity. The matter clearly arose during the pendency of an action already within its jurisdiction. Thus, unlike the situation in Hall, the issue of paternity had been raised and developed in the chancery court. Indeed, the chancellor ruled upon the matter, finding specifically that Patterson was the child’s father. Accordingly, it was error for the juvenile court to deny Patterson’s motion to dismiss.

It was also error for the juvenile court to deny Patterson’s motion to dismiss pursuant to Rule 12(b)(8) of the Arkansas Rules of Civil Procedure, which provides a defense where there is “pendency of another action between the same parties arising out of the same transaction or occurrence.” This court has repeatedly held that Rule 12(b)(8) prohibits identical cases from proceeding between identical parties in different courts within this state. See, e.g., National Bank of Commerce v. Dow Chem. Co., 327 Ark. 504, 938 S.W.2d 847 (1997); Tortorich v. Tortorich, 324 Ark. 128, 919 S.W.2d 213 (1996). Under Rule 12(b)(8), the trial court has no choice but to dismiss the complaint where another case is pending in a different court. Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984). Additionally, our common law mandates that where concurrent jurisdiction is vested in different tribunals, “the first exercising jurisdiction rightfully acquires control to the exclusion of, and without the interference of, the other.” Tortorich, 324 Ark. at 131, 919 S.W.2d at 214 (quoting Doss v. Taylor, 244 Ark. 252, 257, 424 S.W.2d 541, 544-45 (1968)). Thus, when a case is brought in a court of competent jurisdiction, that court’s authority and control over the case continues until the matter is disposed of in the appellate court. Id. “This rule rests upon comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results.” Moore v. Price, 189 Ark. 117, 121, 70 S.W.2d 563, 565 (1934) (quoting 15 C.J. 1135-36 (footnote omitted)).

In Tortorich, 324 Ark. 128, 919 S.W.2d 213, this court pointed out that where two different chancery courts render two different judgments pertaining to alimony, child support, and marital property, calamitous results will occur. This court explained:

This case illustrates “Confusion, conflict, and collision.” It is an example of the “calamitous” result envisioned in Moore v. Price. Here, the two rulings by the two different chancellors have resulted in one order allowing alimony and one denying it, child support has been set in two different amounts, and one order gives the marital home to [the wife] until the youngest child reaches eighteen while the other orders the home sold and the proceeds divided.

Id. at 132, 919 S.W.2d at 214-15.

Here, the prospect for confusion and collision is apparent from the fact that both courts have entered orders providing for the support obligations and visitation rights of Patterson and Isom. The juvenile court ordered Isom to pay child support of $69 per week, and the chancery court ordered Patterson to pay child support of $45 per week. The juvenile court’s order reflects that Isom shall have visitation with the child compatible with that granted by the chancery court to Patterson. Although at first glance that provision appears to be in harmony with the order of the chancery court, all parties expressed concern as to how Isom could have the same visitation rights as Patterson without infringing on Judkins’s rights as the custodial parent. In other words, with the addition of Isom to the child’s visitation, either Patterson or Judkins will be forced to give up some of their visitation rights previously ordered by the chancery court. If we were to allow the juvenile court to undermine the chancery court’s already-existing orders pertaining to support and visitation, we would be opening the flood gates to forum shopping.

Moreover, the proceedings in chancery court were still pending at the time the complaint was filed in juvenile court. Isom filed his complaint in juvenile court prior to the time the chancery court’s order was filed. At the same time, Isom filed a motion to intervene in the chancery action to protect his parental rights with Brandi. That motion has never been ruled upon by the chancellor. This court has repeatedly held that an order is not final under ARCP Rule 54(b) unless and until an intervenor’s claim has been ruled upon by the trial court. See, e.g., Kinkead v. Spillers, 327 Ark. 552, 940 S.W.2d 437 (1997); Martin v. National Bank of Commerce, 316 Ark. 83, 870 S.W.2d 738 (1994). The reason behind that principle is that until the intervenor’s claim is disposed of, the matter is still pending before the trial court and is thus not appealable. It logically follows that a case is pending if the intervenor’s claim has not been ruled upon one way or the other. That is the situation here. Thus, because the issue of Isom’s intervention was not ruled upon, the chancery case remains pending.

In sum, because the issue of paternity was raised and developed in the chancery court prior to the time that Isom filed his complaint in juvenile court, the chancery court had exclusive jurisdiction to resolve the issue under section 9-10-101(a)(2). Additionally, where two courts have concurrent jurisdiction over a particular type of case, the notions of fairness and comity necessitate that the first court to acquire jurisdiction over the matter be allowed to continue exercising its jurisdiction to the exclusion of any other court and without the fear that another court will interfere in the matter. Any other rule would likely produce calamitous results. Here, the chancery court acquired jurisdiction of the paternity issue first, and that matter was still pending at the time Isom filed his complaint in juvenile court. Accordingly, we reverse the juvenile court’s order and remand the case with instruction to transfer the case to chancery court.

       In its supplemental opinion on denial of rehearing, the Tortorich court determined that it was unnecessary to rely on Rule 12(b)(8) in its analysis of that case.


author: Annabelle Clinton Imber, Justice.

text:
    Jeanne BAKER, Maria Valencia, Tina Thomas, and Mirtha Breslin, Individually, and on Behalf of All Other Arkansas Residents Similarly Situated v. WYETH-AYERST LABORATORIES DIVISION, a Division of American Home Products Corporation; Interneuron Pharmaceuticals, Inc.; and A.H. Robins Company, Incorporated
    98-1479
    992 S.W.2d 797
    Supreme Court of Arkansas
    Opinion delivered June 24, 1999

      Odom & Elliott, by: Bobby Lee Ododm; Walter Niblock and Pamela Parker, For appellants.

      Mitchell, Williams, Selig, Gates ■& Woodyard, PLLC, by: Lyn P. Pruitt and Arnold & Porter, by: Tim Atkeson and Mark Spooner, of Counsel, for appellees.
   Annabelle Clinton Imber, Justice.

This is an interlocutory appeal. The appellants contend that the trial court erred when it denied their request for class certification of their tort action against the appellees. We affirm.

Jeanne Baker, Maria Valencia, Tina Thomas, and Mirtha Breslin (the “plaintiffs”) took, for weight-loss purposes, the prescription drugs fenfluramine, dexfenfluramine, and phentermine. The plaintiffs took different combinations of these diet drugs, in different quantities, and for different durations. In September of 1997, the diet drugs were removed from the market because it was discovered that they might cause valvular heart disease, pulmonary hypertension, and other health problems.

In 1998, the plaintiffs filed a class action against numerous manufacturers, supplies, and distributors (the “defendants”) of fenfluramine, dexfenfluramine, and phentermine. The plaintiffs later voluntarily dismissed their allegations regarding the use of phentermine. The complaint included numerous causes of action including negligence, products liability, failure to warn, and breach of express and implied warranties.* The plaintiffs proposed that the class be divided into a subclass of asymptomatic plaintiffs who need to undergo medical monitoring, and a subclass of plaintiffs who have serious physical injuries.

Soon thereafter, the plaintiffs filed a motion to certify the class action pursuant to Ark. R. Civ. P. 23. On October 26, 1998, the trial court denied the motion because the plaintiffs had failed to satisfy the predominance and superiority factors found in Ark. R. Civ. P. 23(b). In particular, the court ruled that a class action would not be the superior way to litigate this matter because the following individual issues predominated the common issues presented by this case: 1) the plaintiffs had different medical conditions and family histories at the time the diet drugs were prescribed; 2) the diet drugs were prescribed by different doctors who had different degrees of knowledge regarding the risks posed by the diet drugs; 3) the doctors told the plaintiffs different things about the risks posed by using the diet drugs; 4) the plaintiffs had different levels of knowledge, which they obtained from outside sources, about the risks posed by the use of the diet drugs; 5) the plaintiffs took different combinations of the three different diet drugs; 6) the plaintiffs took the diet drugs for different durations; 7) some plaintiffs have no physical injuries, while others have physical injuries but of different degrees and types; and 8) the plaintiffs have different damages in that some want medical monitoring while others request traditional damages such as medical expenses, pain and suffering, etcetera.

The issue on appeal is whether the trial court erred when it denied the plaintiffs’ request for class certification because the predominance and superiority requirements found in Ark. R. Civ. P. 23(b) had not been satisfied. Arkansas Rule of Civil Procedure 23(b) provides, in relevant part, that:

An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

As we have said on several occasions, trial courts are given broad discretion in matters of class certification, and we will reverse the trial court’s ruling only when the appellant can demonstrate an abuse of that discretion. Seeco, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997); Mega Life & Health Ins. Co. v.Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997).

I. Predominance

First, we must decide if the trial court abused its discretion when it ruled that class certification was improper because the common questions of law or fact did not predominate over the questions affecting only individual members. In making this determination, we do not merely compare the number of individual versus common claims. Mega Life & Health Ins., supra. Instead, we must decide if the issues common to all plaintiffs “predominate over” the individual issues, which can be resolved during the decertified stage of a bifurcated proceeding. See Seeco, supra; Mega Life & Health Ins., supra.

For example, in Seeco, we held that the predominance factor was satisfied because the common issue of whether the defendant had engaged in a scheme to defraud the plaintiffs could be resolved in a class action before decertifying the case for resolution of the individual issues of reliance and diligence. Seeco, supra. Likewise, in Mega Life & Health Ins., we held that the predominance factor was satisfied because the common issues of what type of insurance policy was issued, and what type of notice was required prior to termination could be resolved in a class action before decertifying the case for resolution of the individual issues of reliance and damages. Mega Life & Health Ins., supra.

Mass-tort actions, however, present unique certification problems because they generally involve numerous individual issues as to the defendant’s conduct, causation, and damages. Courts, however, have recently distinguished between two different types of mass-tort actions: 1) mass-accident cases where injuries are caused by a single catastrophic event occurring at one time and place; and 2) toxic-tort or products-liability cases where the injuries are a result of a series of events occurring over a considerable length of time and under different circumstances. See James W. Moore, Moore’s Federal Practice § 23.47[4] (3d. ed. 1999); Herbert B. Newberg & Alba Conte, Newberg on Class Actions §§ 17.01 to 17.06 (3d ed. 1992); Charles Alan Wright et al., Federal Practice and Procedure § 1783 (2d ed. 1986). Due to the enormity and complexity of the individual issues presented by toxic-tort and products-liability cases, class certification is more common in mass-accident cases than in toxic-tort or products-liability case. See James W. Moore, supra § 23.47[4] (citing numerous products-liability and toxic-tort cases where class certification was denied); Herbert B. Newberg & Alba Conte, supra § 17.22 (citing several products-liability cases involving tetracycline, bendectin, and DES where class certification was denied). In this regard, the Sixth Circuit has admonished that a court should “question the appropriateness of a class action” where “no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and the individual issues outnumber common issues.” Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988).

Likewise, we have been more inclined to approve class certification in mass-accident cases than in products-liability or toxic-tort cases. For example, we allowed class certification in the mass-accident case of Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991). In Summons, several thousand people were evacuated from their homes when a train owned by Missouri Pacific overturned and released chemicals into the area. Id. The plaintiffs alleged that Missouri Pacific was willfully and wantonly negligent and strictly liable for shipping ultra hazardous products. Id. We held that class certification was proper because the common issues of the defendant’s conduct, whether the chemicals were ultra hazardous, and causation predominated over and could be resolved prior to addressing the individual and less difficult issues of damages and injuries. Id.

In contrast, we concluded that class certification was improper in Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995). In Arthur, patients who had an artificial substance called “Orthoblock” implanted in their spines filed a class-action lawsuit, which included a products-liability claim against Calcitek, the manufacturer of Orthoblock. Id. We held that class certification was improper because the individual issues of informed consent, causation, degree and types of injury, and damages predominated over the common issues. Id. In particular, as to causation the individual plaintiffs would have had to prove that their prior medical condition or history was not the cause of the injury, that they would not have undergone the implantation if they had known of the risks, and that the actions of the intermediary doctors did not abate some or all of Calcitek’s liability. Id. Hence, the bifurcation approach could not be utilized because the defendant’s liability to each plaintiff would have to be established on a case-by-case basis. Id. In reaching this conclusion in Arthur, we relied upon products-liability cases from other jurisdictions where class certification was denied because the individual issues predominated over the common issues. See Raye v. Medtronic Corp., 696 F. Supp. 1273 (D. Minn. 1988) (holding that there were “not enough common questions of law or fact to justify use of the class mechanism” because issues of “causation, liability, and damages” would have to be separately litigated); Rose v. Medtronic, Inc., 166 Cal. Rept. 16 (Cal. Appl. 1980) (holding that class certification was improper because the claimants had “varying periods of use of the product, varying needs for its replacement, varying elements of causation, varying degrees of injury, and varying amounts of damages”).

Likewise, in Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), the United States Supreme Court recently denied class certification in a products-liability action. In Amchem, the plaintiffs filed a class action on behalf of possibly millions of people who were exposed to asbestos. Id. The plaintiffs argued that class certification was proper because all members of the class had been exposed to asbestos products supplied by the defendants. Id. The Court responded as follows:

Even if Rule 23(a)’s commonality requirement may be satisfied by that shared experience, the predominance criterion is far more demanding. Given the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions, any overarching dispute about the health consequences of asbestos exposure cannot satisfy the Rule 23(b)(3) predominance standard.

Id. (emphasis added). The Court further opined that class certification was improper because the class members:

were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only asymptomatic pleural changes, while others suffer from lung cancer, disabling asbestosis, or from mesothelioma .... Each has a different history of cigarette smoking, a factor that complicates the causation inquiry.

Id. (quoting the Third Circuit’s earlier decision in this same case, Georgine v. Amchem Products, Inc., 83 F.3d 610 (3rd Cir. 1996)) (emphasis added). Finally, the Court called for caution in the certification of mass-tort cases when “individual stakes are high and disparities among class members great.” Id.

We, however, are not holding that class certification should be denied in all products-liability or toxic-tort cases. Instead, we hold that class certification is improper in this case because the numerous and complex individual issues predominate over the individual issues. As the trial court correctly acknowledged, and similar to Arthur and Amchem Products, this case presents numerous individual issues that go to the heart of the defendants’ conduct, causation, injury, and damages such that the defendants’ liability as to each plaintiff will have to be resolved on a case-by-case basis. In fact, as in Amchem Products, the only thing the plaintiffs have in common is that they all took one or a combination of the diet dugs listed in the complaint.

Nor can this case be bifurcated into certified and decertified proceedings as was done in Seeco, supra, and Mega Life & Health Ins., supra, because there are few global or common issues that can be resolved in the certified stage. For example, the appellants argue that issues concerning the defendants’ conduct, such as whether the diet drugs were defective products and whether the defendants adequately warned of the risks associated with taking the diet drugs, could be resolved on a class-wide basis. We disagree because even the resolution of these seemingly common issues will depend upon individual differences among the plaintiffs such as when they took the drug, the duration of use, the quantity taken, the combination used, their medical history and condition at the time of use, and the state of the art at the time the drugs were marketed. Likewise, causation cannot be resolved on a class-wide basis because there are numerous individual issues such as whether the plaintiffs assumed any risk, and what the doctors told the plaintiffs prior to use. Finally, damages cannot be resolved in a class action because some plaintiffs are asymptomatic while others have manifested physical injuries.

We have only listed some of the abundant individual issues that make certification at any stage of this proceeding improper. Accordingly, we have no hesitancy in holding that the trial court did not abuse its discretion when it ruled that the predominance factor of Rule 23(b) had not been satisfied.

II. Superiority

Because we affirm the trial court’s ruling that the predominance requirement has not been satisfied, we do not need to address the superiority requirement. Nevertheless, we have held that the superiority requirement is satisfied if class certification is the more “efficient” way of handling the case, and it is fair to both sides. See Seeco, supra; Mega Life & Health Ins., supra. For the reasons stated above, a class action would not be the most efficient way of handling this case because the individual issues are so pervasive that even the bifurcation approach is not feasible.

The appellants also alleged that a class action would be more “fair” to the asymptomatic plaintiffs because the damages recoverable for medical monitoring would not justify the cost of bringing individual lawsuits. This argument is flawed for two reasons. First, the asymptomatic plaintiffs also asked for punitive damages, which could justify the cost of individual litigation. Second, fairness to the plaintiffs alone cannot compensate for the lack of predominance. Accordingly, we also affirm the trial court’s ruling that the superiority requirement has not been satisfied.

Because we conclude that the trial court did not abuse its discretion when it ruled that the predominance and superiority requirements of Rule 23(b) had not been satisfied, we affirm the denial of the petition for class certification.

Affirmed.

       The defendants involved in this appeal are Wyeth-Ayerst Laboratories Division, a Division of American Home Products Corporation; American Home Products Corporation; Interneuron Pharmaceuticals, Incorporated; and A.H. Robins Company, Incorporated.

       The complaint originally contained a sixth claim for medical monitoring. Upon the defendants’ motion to dismiss, the plaintiffs agreed to treat medical monitoring as a type of damages instead of a separate cause of action.