author: Steele Hays, Justice. John I. Purtle, Justice, David Newbern, Justice,

text:
    Ralph BUSSARD v. STATE of Arkansas
    CR 88-64
    759 S.W.2d 24
    Supreme Court of Arkansas
    Opinion delivered October 24, 1988

      Larry Dean Kissee, for appellant.

      Steve Clark, Att’y Gen., by: DavidB. Eberhard, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This case arises from the events of August 28,1981, when three men attempted to rob the Motorport Motel at Hardy, Arkansas, and in a shoot-out the motel proprietor was killed and his wife was wounded. Appellant was charged along with John Moss and R.B. Smith with murder and attempted murder. While awaiting trial, appellant disappeared from the Sharp County jail on December 16, 1982. That same night a Pontiac automobile was stolen from a parking lot near the jail. Appellant was promptly charged with escape and theft of property.

Appellant remained at large for almost four years, until September 9,1986, when he was arrested in California where he had been living under an assumed name. He waived extradition and was returned to Arkansas on September 30, 1986. On the following day appellant gave a statement admitting the escape and auto theft. Appellant was tried and, as a habitual offender, sentenced to twelve years for escape and twenty years for theft. On appeal, he contends, first, that his confession should have been suppressed and, second, that evidence of other acts of misconduct should have been excluded. We are not persuaded by the arguments.

I

At a suppression hearing Sheriff T.J. Powell testified that at 9:35 a.m. on October 1,1986, he read the Miranda warnings to appellant, who understood them and, without urging, gave a statement with respect to the escape and theft charges, but not to the murder and attempted murder charges. Appellant declined to discuss the murder charges until he had consulted with a lawyer. Appellant said he was able to escape when his cell door failed to close fully. He first thought he was being “set-up” to be shot trying to escape, but after several hours, when a guard answered a disturbance in another area, he left the jail, found a car at a WalMart parking lot with keys in the ignition and drove to Springfield, Missouri, where the car was abandoned. From there he worked his way to California.

Sheriff Powell testified that in 1982, sometime after appellant’s escape, he called attorney Charles LeCompte of Springfield, who had earlier represented appellant on the murder charges, and learned that LeCompte no longer represented appellant. The sheriff testified that he had no knowledge of anyone being appointed to represent appellant. The sheriff and his chief deputy both testified that appellant gave his statement freely and their testimony was not refuted by appellant, who did not testify at the suppression hearing.

Appellant contends however, that LeCompte was still his attorney and as he had been formally charged the trial court erred in refusing to suppress his statement. Appellant makes this claim based on his 6th Amendment right to be immune from police interrogation once a critical stage has been reached and counsel has been retained or requested. Michigan v. Jackson, 475 U.S. 625 (1986); Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988).

Those principles of law were considered and applied in a case involving this same appellant, Bussard v. State, supra, but upon factually distinguishable grounds. There, this court held that a statement given by appellant to the effect that he was with the other co-defendants, John Moss and R.B. Smith, at the time of the robbery should not have been admitted in the murder trial because the appellant’s 6th Amendment right to counsel had been invoked and the statement came, not at the instigation of the appellant, but of the sheriff. Bussard at 75. However, the statement at issue in that case occurred on September 24,1982, four years earlier, and a number of circumstances had changed during the interim. For one thing, Sheriff Powell was aware in 1982 that appellant was represented by counsel when he asked him if he “was ready to talk about the crime.” In the present situation Sheriff Powell testified without contradiction that after the escape in December 1982, he contacted Mr. LeCompte and was told LeCompte no longer represented appellant and that when he questioned appellant on the morning of October 1,1986, he had no reason to believe that appellant had a lawyer. Nor is there anything in the record to suggest that appellant asked for an attorney when the Miranda warnings were undisputedly given to him on the morning of October 1, 1986.

Secondly, appellant was at liberty for those intervening months between December 16,1982, and September 9,1986, and, hence, free of the coercive environment of custodial detention, a circumstance which has been recognized as material and relevant to a determination of how long the right to counsel, once having attached, endures. The underlying rationale of Edwards v. Arizona, 451 U.S. 477 (1980), is that when an accused claims his right to counsel the implicit premise is that he considers himself incapable of withstanding the pressures of custodial interrogation without legal assistance. In Arizona v. Roberson, — U.S.—, 108 S. Ct. 2093 (1988), the Supreme Court refused to craft an exception to Edwards v. Arizona, where the accused is reinterrogated about unrelated crimes after the right to counsel has attached, the court noting that the accused was in continuous custody from the time he asserted his right through the impermissible questioning and was never free of the coercive environment. It was inherently compelling pressures “created by prolonged police custody ” (our emphasis) that necessitated the rule. Roberson, at 3000.

No such problems exist in the case at bar. Appellant makes no contention that his statement was coerced in any fashion. The officers testified that he discussed the escape and theft freely and the statement itself, which was taped and transcribed, readily attests to that conclusion. As we have said, appellant did not challenge that proof by the state. Appellant was plainly not concerned about the escape and theft charges. He was concerned, understandably, with the murder and attempted murder charges and with whether, with the help of counsel, he might negotiate for a life sentence with the possibility of parole. Having made it clear he would not discuss them, no attempt was made at the October 1 interview to interrogate appellant on those charges.

We are not overlooking appellant’s proof at the suppression hearing. He introduced a letter from the circuit clerk to his present counsel, Mr. Larry Dean Kissee, informing him that he had been appointed to defend appellant on all the pending charges. It was stipulated that the letter was mailed at 4:30 p.m. on October 1,1986. Appellant also introduced a letter from the circuit clerk dated November 6,1986, to Mr. LeCompte informing him that he was still shown as representing appellant, and mentioning the appointment of Mr. Kissee. We attach no great significance to the LeCompte letter in view of the uncontradicted testimony of the sheriff that Mr. LeCompte had earlier stated he no longer represented appellant. Indeed, in appellant’s statement to Sheriff Powell he candidly acknowledges that he no longer regarded Mr. LeCompte as representing him.

Nor does the letter to Mr. Kissee, admittedly mailed after appellant was interrogated earlier in the day and not received until October 2, mandate a different result. Examining the issue of appellant’s statement from a totality of the circumstances, we conclude appellant’s right to counsel had not been invoked at the time he gave his statement.

II

The remaining contention deals with information presented to the jury during the state’s direct examination of Sheriff Powell. The sheriff was asked if, at the time of his escape, appellant was “duly and legally in your jail on charges of capital murder and attempted capital murder?” The defense objected and the court overruled the objection, with the comment, “He’s got to bring it up because it’s an element of the crime of escape.” Appellant cites only A.R.E. Rule 404(b) and Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), which have no real bearing on the issue presented here, which is, is it error to permit proof that an accused is charged with capital murder and attempted capital murder as an element of escape. Or, is it enough in proving the elements of escape simply to show that an accused is lawfully in custody, without disclosing the specific crime with which he is charged. We find nothing in Ark. Stat. Ann. § 41-2811 (Repl. 1977) (second degree escape) with which appellant was charged, or AMCI2811, by which the jury was instructed, suggesting that proof of the specific crime is an element of escape, only that, in this case, the accused has escaped from a correctional facility. However, we note that the jury had been told more than once during the opening statement of the prosecutor that appellant was awaiting trial on the charge of capital murder and attempted capital murder. There was no objection to these remarks and the testimony was merely cumulative. Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984).

Affirmed.

Purtle, J., Dudley, J., and Newbern, J., dissent.

John I. Purtle, Justice,

dissenting. From the majority opinion it is clear that the sheriff questioned the appellant at 9:35 а. m. on October 1,1986. It is also clear that at that same time the appellant refused to discuss the pending murder charge without a lawyer. Nevertheless, the sheriff, after reading the appellant the Miranda warnings, and learning that appellant wanted to speak to his lawyer on the murder charge, questioned the appellant about the escape and auto theft.

Later the same day, October 1, 1986, a letter was mailed notifying Larry Kissee that he had been appointed to defend the appellant. The record reveals that Charles LeCompte represented the appellant on the charge for which he was being held when he escaped. The court clerk wrote LeCompte, on November б, 1986, that he was still shown as the attorney of record for the appellant.

The state justifies the sheriff’s action by stating that LeCompte had personally told the sheriff, in a private conversation, that he no longer represented the appellant. Someone should have told the appellant that he did not have an attorney especially since he contends that LeCompte still represented him. If the sheriff was told by the lawyer that he no longer represented the appellant, the least the sheriff should have been required to do was inform the accused that he no longer was represented by the attorney.

I dissent because I believe that the Constitution, as interpreted in Arizona v. Roberson, — U.S. —, 108 S. Ct. 2093 (1988), requires the suspension of questioning of an accused upon learning that he wants a lawyer to represent him, even on a separate charge.

David Newbern, Justice,

dissenting. The majority opinion correctly states the underlying rationale and holding of Arizona v. Roberson,_U.S__, 108 S. Ct. 2093 (1988). The State of Arizona contended that Edwards v. Arizona, 451 U.S. 477 (1981), need not be applied where the questioning of an accused with respect to a separate investigation yields information relevant to an investigation in which he had requested counsel. Mr. Justice Stevens, writing for the majority responded as follows:

It is by no means clear, though, that police engaged in separate investigations will be any less eager than police involved in only one inquiry to question a suspect in custody. Further, to a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling. [108 S.Ct. at 2100]

The majority opinion, however, uses the remainder of Mr. Justice Stevens’s response on the point to distinguish Arizona v. Roberson from the case before us. Mr. Justice Stevens’s remarks continued as follows:

Thus, we also disagree with petitioner’s contention that fresh sets of Miranda warnings will “reassure” a suspect who has been denied the counsel he has clearly requested that his rights have remained untrammeled. . . . Especially in a case such as this, in which a period of three days elapsed between the unsatisfied request for counsel and the interrogation about a second offense, there is a serious risk that the mere repetition of the Miranda warnings would not overcome the presumption of coercion that is created by prolonged police custody. [108 S. Ct. at 2100, footnote omitted].

It seems to me that our majority opinion has taken the words “created by prolonged police custody” which, as shown above, were used by Mr. Justice Stevens to illustrate a point collateral to the holding of Arizona v. Roberson, and used them to avoid the very holding of the case from which they were excerpted.

I disagree with the majority opinion’s seeming conclusion that, because the sheriff knew or thought Bussard was no longer represented by his first lawyer, he could question Bussard without the presence of counsel. The point is not whether, as the majority opinion suggests, the sheriff “had no reason to believe that appellant had a lawyer.” Rather, the point is, as expressed quite clearly in Arizona v. Roberson, whether he had invoked his right to counsel. Obviously the sheriff knew that, and the lack of “prolonged police custody” is irrelevant.

This decision is inconsistent with Edwards v. Arizona, supra, Arizona v. Roberson, supra, and our own earlier decision with respect to this same appellant, Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988).

I respectfully dissent.

Dudley, J., joins in this dissent.


source: Caselaw Access Project

author: Steele Hays, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Gary BRAZEL v. STATE of Arkansas
    CR 88-82
    759 S.W.2d 28
    Supreme Court of Arkansas
    Opinion delivered October 24, 1988

      Witt Law Firm, P.C., by: Ernie Witt, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svohoda, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant was charged with the capital felony murder of Steve Alexander. The jury found him guilty of murder in the first degree, recommending a sentence of forty years in the Department of Correction. Appellant alleges a number of errors in the proceedings below but none requires reversal.

The first contention is that the defendant was unduly restricted in the voir dire of a prospective juror, necessitating the use of a peremptory challenge by the defense. When counsel said to a member of the panel, “The burden of proof in this case is with the State of Arkansas, to prove him guilty beyond a reasonable doubt,” the state objected on the grounds that the question was “getting into instructions.” The court sustained the objection noting that the jury had not yet been instructed on the burden of proof. The court then refused a defense request to read the instruction to the jury.

While the trial court has broad discretion in the management of the voir dire examination, Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983), and Fauna v. State, 265 Ark. 934, 582 S.W.2d 18 (1979), wethink an objection was premature when counsel simply stated preliminarily that the state’s burden of proof was beyond a reasonable doubt. Presumably counsel intended by follow-up questions to ask the juror if she were capable of holding the state to that requirement. The mere fact some inquiry on voir dire may touch on the instructions later to be given does not per se render such questions beyond the scope of voir dire. However, as the state points out, the peremptory challenges were not exhausted by the defense and, hence, the appellant was not required to take a juror he might otherwise have excused. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).

Second, appellant urges that it was highly prejudicial for the prosecutor to compare the appellant and an accomplice, John Heinzel, to Paul Ruiz and Earl Van Denton. The specific remark, made during opening statement was, “. . . They told everybody in the country about it, but instead of being sorry for what they did, and feeling remorse, all they have done is bragged about it, thinking what big men they are. They are celebrities now. Almost on the plane of Ruiz and Denton.” The trial court promptly and properly admonished the jury to disregard the remarks and we cannot say the occurrence so manifestly undermined the fairness of the trial that it could not continue. Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988). The determination of whether a mistrial is called for is within the sound discretion of the trial court and we cannot say that discretion was clearly abused in this instance.

Third, after appellant’s confession was read to the jury by the officer to whom it was given, the statement was introduced in its entirety over the objection of the defense that it was repetitive and cumulative. A.R.E. Rule 403. We readily agree that the court has the power to exclude evidence, even though relevant and material, if it is cumulative or impedes the progress of the trial. However, the trial judge deemed this evidence admissible and that decision was discretionary. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

Fourth, appellant maintains that it was error for the trial court to admit, over a hearsay objection, the confession of a co-conspirator, John Heinzel, whose trial had been severed from the appellant. The confession, given some three weeks after the crime, admitted Heinzel’s participation in a plot with appellant to lure the victim into a wooded area, on the pretext of finding marijuana, where he was shot by the appellant.

The law permits the introduction of a statement by a co-conspirator made during the course of, and in furtherance of, the conspiracy. Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983); A.R.E. Rule 801(d)(2)(V). We agree with the appellant, that this statement did not occur during the course of the conspiracy or in furtherance of it. It was given almost four weeks after the crime and was patently a confession of the declarant’s role in the crime. It should not have been admitted.

However, we agree with the state that the statement could not have prejudiced the appellant. The appellant gave a full and detailed account of his actions, including the admission that he shot the victim in the back of the head with a .12 gauge shotgun. We have examined the Heinzel statement carefully and we find few areas, and none material, where the two statements conflict. In fact, the Heinzel statement tends to support the two theories argued most strongly by the defense — i.e. that the victim was shot only once, rather than twice as the state contended, and appellant’s motivation for the killing was at the urging of appellant’s stepfather. The appellant’s own confession and testimony would have fully supported a verdict of guilty to the charge of capital murder, yet the jury found the appellant guilty only of first degree murder and recommended a sentence of forty years. We cannot conclude that the defense was harmed by the admission of this evidence.

Finally, we do not believe the trial court was obliged to declare a mistrial when Officer Eisenhower was asked if he had seen or heard the defendant try to “concoct some story” about the crime. The witness answered that he had heard through other people that the defendant had tried to get them to testify to what he wanted them to say. The trial court immediately instructed the jury to disregard the question and the answer. A mistrial is an extreme remedy and we regard the timely admonition as adequate.

While we do not suggest the trial was error free, we do conclude that the proof that appellant planned and executed the crime with which he was charged was overwhelming and the jury’s verdict was in no sense disproportionate. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. It was clearly prejudicial error for the trial court to have admitted into evidence during the trial-in-chief the statement of a codefendant whose trial had been severed from that of the appellant. It is axiomatic that the statement of a co-conspirator, made during the course of and in furtherance of the conspiracy, may be introduced by the state, under certain circumstances. See ARE 801(d)(2)(v). Moreover, I wholeheartedly agree with the majority that the statement at issue here “was not in any sense [made] during the course of the conspiracy nor in furtherance of it.” Indeed, this “statement” was taken at police headquarters some three and one-half weeks after the commission of the murder and implicated the appellant as well as the declarant. However, to hold that the introduction of a codefendant’s signed “confession” was “harmless error” is almost beyond belief.

At trial the state attempted to justify the introduction of the codefendant’s hearsay statement under ARE 801(d)(2). On appeal the state also argues it was admissible under ARE 803(24). The state switched horses in the middle of the stream. We do not allow defendants to do that. I am of the opinion that the codefendant’s statement was not admissible under any rule or precedent. If we are to give ARE 801(d) (2) a practical and literal interpretation, this codefendant’s “confession” is simply not admissible against this appellant. The majority is unable to cite any precedent to support this holding. Conceding that the admission of the codefendant’s statement was error, the majority then sweeps this error under the rug with that catch-all phrase “harmless error.”

The appellant had no choice but to take the stand after the state was allowed to introduce the codefendant’s statement. He was deprived of his right to remain silent as provided by the Fifth Amendment, and completely denied any opportunity for confrontation as provided by the Sixth Amendment. Harmless error? Absolutely not.

Acts and declarations of a co-conspirator are inadmissible against a codefendant, when such acts or declarations were made in the latter’s absence and after the consummation of the conspiratorial act. McCabe v. State, 149 Ark. 585, 233 S.W. 771 (1921). The practice approved by the majority today cannot stand without weakening many of the rights long thought to have been guaranteed to the citizens of this Republic. The chief constitutional infirmity is quite simply that there was absolutely no opportunity for confrontation.

The admission at a joint trial of a codefendant’s statement, implicating another defendant, even though the jury is instructed to disregard the parts implicating the defendant, was ruled unconstitutional and prejudicial in Bruton v. United States, 391 U.S. 123 (1968). The court there stated:

We, of course, acknowledge the impossibility of determining whether in fact the jury did or did not ignore Evans’ statement inculpating petitioner in determining petitioner’s guilt.

Thereafter, only “Brutonized” statements of codefendants were admitted into evidence against a defendant at a joint trial. The decision in Bruton was recently reaffirmed in Lee v. Illinois, 476 U.S. 530 (1986), where the court stated:

Our cases recognize that this truthfinding function of the Confrontation Clause is uniquely threatened when an accomplice’s confession is sought to be introduced against a criminal defendant without the benefit of cross-examination.
“Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.” Bruton v. United States, supra.
Thus, in Douglas v. Alabama, 380 U.S. 415, 13 L Ed 2d 934, 85 S Ct 1074 (1965), we reversed a conviction because a confession purportedly made by the defendant’s accomplice was read to the jury by the prosecutor.
Over the years since Douglas, the Court has spoken with one voice in declaring presumptively unreliable accomplices’ confessions that incriminate defendants.
Our ruling in Bruton illustrates the extent of the Court’s concern that the admission of this type of evidence will distort the truthfinding process. In Bruton, we held that the Confrontation Clause rights of the petitioner were violated when his codefendant’s confession was admitted at their joint trial, despite the fact that the judge in that case had carefully instructed the jury that the confession was admissible only against the codefendant.

Even more recently, the fundamental requirements of the Confrontation Clause were again examined in Cruz v. United States, 481 U.S___, 107 S. Ct. 1714 (1987), where Justice Scalia, speaking for the court, stated:

In Bruton v. United States, 391 U.S. 123, 20 L Ed 2d 476, 88 S Ct. 1620 (1968), we held that a defendant is deprived of his rights under the Confrontation Clause when his codefendant’s incriminating confession is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. In Parker v. Randolph, 442 U.S. 62, 60 L Ed 2d 713, 99 S Ct 2132 (1979), we considered, but were unable authoritatively to resolve, the question whether Bruton applies where the defendant’s own confession, corroborating that of his codefendant, is introduced against him. We resolve that question today.
The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant “to be confronted with the witnesses against him.” We have held that that guarantee, extended against the States by the Fourteenth Amendment, includes the right to cross-examine witnesses. See Pointer v. Texas, 380 US 400, 404, 13 L Ed 2d 923, 85 S Ct 1065 (1965). Where two or more defendants are tried jointly, therefore, the pretrial confession of one of them that implicates the others is not admissible against the others unless the confessing defendant waives his Fifth Amendment rights so as to permit cross-examination.

Needless to say, if a codefendant’s “confession” is not admissible against a defendant at their joint trial, there is simply no justification for admitting a codefendant’s statement at a separate trial. If the United States Supreme Court’s rulings are not binding on this court, then I need write no more.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    Keith E. HACKER and Zetta Hacker v. Martha HALL
    88-110
    759 S.W.2d 32
    Supreme Court of Arkansas
    Opinion delivered October 24, 1988

      Tatum & Sullivan, P.A., by: Tom Tatum and Terry Sullivan, for appellant.

      Huckabay, Munson, Rowlett and Tilley, P.A., by: Beverly A. Rowlett, for appellee.
   David Newbern, Justice.

This is an automobile collision case in which the issue is whether counsel for Martha Hall, the appellee, made improper references to insurance coverage. We hold that he did and that a new trial should have been granted.

Martha Hall drove her car into the rear of a truck being driven by Keith E. Hacker who brought this action to recover for personal injuries sustained in the accident. Zetta Hacker, Keith’s wife, joined as a plaintiff seeking damages for loss of consortium. Martha Hall did not contest liability. The Hackers’ complaint sought $75,000 for permanent disability and loss of earning capacity incurred by Keith and $5,000 for Zetta’s loss of consortium. The jury awarded $3,811.96 for Keith’s injuries and nothing for the loss claimed by Zetta.

Keith Hacker’s medical bills totalling $7,623.92 were presented. Ms. Hall presented no evidence disputing their reasonableness or connection with the accident. The Hackers also presented evidence by a doctor’s deposition that Keith had incurred a four percent permanently disabling injury to his neck. The deposition noted, however, that practically all of the tests administered to Keith Hacker showed no abnormalities.

Keith Hacker testified he lost his job at Burnham Ford, in whose employ he was driving the truck at the time of the accident, due to a personality change resulting from the accident and his subsequent inability to get along with customers. The only evidence presented by Ms. Hall was her own testimony having to do primarily with the minimal nature of the damage to the truck being driven by Hacker and the much greater damage to her car she said was caused by colliding with a bridge abutment which occurred apparently just after the collision, which caused only minor damage to the truck.

At the conclusion of the cross examination of Mr. Hacker, the following occurred:

BY MR. HUCKABAY [counsel for Ms. Hall]:

Q. Although you had no camera with you, how long was it after the accident that you employed Tatum and Sullivan [counsel for the Hackers]?
A. It was a couple of weeks.
Q. Why did you employ a lawyer so fast?
A. Because the insurance company kept harassing me. Q. Which one?
A. State Farm.
Q. The one from State Farm or the one with Burnham?
A. No, State Farm.
Q. Oh, okay.

No objection was made by counsel for the Hackers to the questions elaborating on insurance coverage and expanding Mr. Hacker’s reference by mentioning Burnham Ford’s insurer.

During direct examination of Ms. Hall, the following occurred:

BY MR. HUCKABAY, (Cont’d)

Q. Now, you have insurance with State Farm, don’t you?
A. I did have at that time.
Q. And you had Twenty-five Thousand Dollars ($25,000.00) worth of coverage, right?
A. Yes, sir.
Q. Anything above that, you have to pay for, right?
A. Right.

Counsel for the Hackers moved for a mistrial on the ground that it was improper for counsel to mention insurance coverage. The motion referred to both the questioning of Keith Hacker and the “intentional” reference during Ms. Hall’s testimony. Mr. Huckabay argued that Keith Hacker was the first to mention insurance and that his questions were thus proper. The court stated that it was Mr. Huckabay’s questions which had “opened the door” rather than Mr. Hacker’s testimony. The court also offered to admonish the jury to disregard the testimony but commented that it probably would not do any good. Counsel for the Hackers agreed it would not help. The motion was taken under advisement and then renewed at the end of the trial in conjunction with the motion for a new trial. The new trial motion was based on the misconduct of counsel and inadequacy of damages. See Ark. R. Civ. P. 59(a)(2) and (5).

We agree with Ms. Hall’s argument that a jury is not bound to award damages in the amount of the plaintiffs medical bills just because they are undisputed. Where the argument is only that the jury verdict was too small because the unrebutted proof showed expenditures related to, and made necessary by, the defendant’s negligence, and the trial court denies a new trial, we affirm absent a showing of a clear and manifest abuse of discretion. Gilbert v. Diversified Graphics, 286 Ark. 261, 691 S.W.2d 162 (1985); Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983). In this case, however, there is a specific argument as to the cause of the allegedly inadequate verdict, that is, the misconduct of Ms. Hall’s counsel in mentioning insurance coverage. Rule 59(a)(2) provides for granting a new trial because of “misconduct of the jury or prevailing party.” Misconduct of the “prevailing party” includes misconduct of the prevailing party’s attorney. City of Cleveland v. Peter Kiewit Sons Co., 624 F.2d 749 (6th Cir. 1980); Brown v. Royalty, 535 F.2d 1024 (8th Cir. 1976); 6A, J. Moore, J. Lucas, and G. Grothers, Jr., Moore’s Federal Practice, § 59.08 [1], [2] (2d ed. 1987). Cf. New Amsterdam Cas. Co. v. Harrington, 274 F.2d 323 (5th Cir. 1960).

The mentioning of insurance in a case like this is forbidden unless it is relevant to an issue being tried. Patton v. Williams, 284 Ark. 187, 680 S.W.2d 707 (1984); Vermillion v. Peterson, 275 Ark. 367, 630 S.W.2d 30 (1982); Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973). In York v. Young, 271 Ark 266, 608 S.W.2d 20 (1980), we approved the introduction of insurance because the plaintiff was trying to use the rule against mentioning insurance as a shield to permit him to lie to the jury about his inability to pay expenses which had already been paid, but that was not the case here. When Mr. Hacker said, in response to cross examination, he sought counsel shortly after the accident because he was being harassed by the insurance company, Mr. Huckabay could have stopped there or gone on to something else. Instead, he asked “which one,” thus implying that more than one insurer was involved. He then went even further and made it clear to the jury that an insurer for Mr. Hacker’s former employer, Burnham Ford, might have been involved. That raised before the jury the spectre of Mr. Hacker seeking to be compensated both by Burnham Ford’s insurer, possibly by way of workers’ compensation benefits, as well as by Ms. Hall. We agree with the trial court’s conclusion that it was these questions which “opened the door” to discussion of insurance rather than the testimony of Mr. Hacker. We also agree that an admonition to the jury probably would not have cured the error. Where the reference to insurance is made intentionally, refusal of the court’s offer to admonish the jury does not waive the error, Pickard v. Stewart, supra. Even if there had been a waiver of the error, we would still conclude a new trial should be granted due to the misconduct.

The rule against mentioning insurance when it is not relevant is well known in this state. We probably would conclude the questions we have just discussed constituted misconduct sufficient to have warranted a new trial, but we need not rest our decision on that incident alone.

There are very few cases in which the issue is whether a defendant should be permitted to testify about her own insurance coverage, but we conclude the issue presented is the same as when a plaintiff- tries to introduce the defendant’s insurance coverage. The question again is whether the question is relevant to an issue before the court or is designed to skew the jury’s thinking because of the presence or absence of a deep pocket. When Mr. Huckabay asked Ms. Hall about her insurance coverage, that was just as irrelevant to any issue before the court as his questions pursuing the insurance issue with Mr. Hacker, and just as prejudicial. The questions of her could have had no purpose other than to taint the evidence and cause the jury to consider matters which should not have been before them.

The Hackers cite no authority holding specifically that a defendant may not testify with respect to her own insurance coverage. Probably it is a rare occurrence for a defendant to attempt to do so. See Webb v. Webb, 728 P.2d 680 (Ariz. App. 1986), where it was held it was proper for a trial court to grant a new trial where a defendant attempted to introduce her insurance in an attempt to demonstrate that the case against her was concocted to defraud the insurance company. In the portion of Ms. Hall’s brief responding to the misconduct arguments of the Hackers, no mention is made of the questioning of Ms. Hall about her insurance. However, she argues in response to the contention that a mistrial should have been granted that it was permissible for counsel to inquire as to his own client’s insurance coverage. No authority is cited for that statement, and we disagree with it. A defendant who states the relatively low limits of her insurance policy in the face of a claim for more than that amount, whether or not, as in this case, in conjunction with testimony that she works three jobs and hauls wood on the weekends to support herself and her three year old child, injects an improper issue into the trial. Once liability is established or, as here, admitted, the only remaining question is the extent of the injury proximately caused by the negligence alleged rather than who will have to pay the award. It was misconduct to seek to establish Ms. Hall’s insurance coverage in the absence of any issue to which it was relevant.

Reversed and remanded for a new trial.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. I dissent. The appellant, Mr. Hacker, gratuitously interjected the issue of insurance before the jury and opened the door for the appellee to explain the extent of coverage the appellant had. Once insurance was mentioned, the appellee had two choices: (1) move for a mistrial or (2) proceed with the questioning of Mr. Hacker (and later the appellee) in an attempt to minimize any prejudice the appellee may have suffered by the reference. Appellee chose the latter course.

Of course, Mr. Hacker’s voluntary and unresponsive mention of insurance (and inference from it that appellee’s insurance company had harassed Mr. Hacker) was not deemed objectionable by the Hackers’ counsel. It was not until appellee testified concerning her insurance policy limits did counsel for the Hackers interpose an objection. I agree with appellee that the Hackers cannot have it both ways. If, by testimony, they reveal to the jury that the appellee has insurance, the Hackers are in no position later to complain when the appellee offers testimony in an attempt to explain (or minimize the impact of) that revelation. Thus, I would not reverse the trial court’s refusal to grant the Hackers’ motion for mistrial on this point.


author: Darrell Hickman, Justice.

text:
    Ernest HODGE v. WAL-MART STORES, INC., and Kirk Ward
    88-105
    759 S.W.2d 203
    Supreme Court of Arkansas
    Opinion delivered October 31, 1988

      Felver A. Rowell, Jr., for appellant.

      Robinson, Stanley & Marshall, by: Robert L. Robinson, Jr., for appellees.
   Darrell Hickman, Justice.

The question in this case is one of computing time. The trial judge held that after the appellant took a voluntary nonsuit, he did not refile his complaint within the time required by law. We find a uniform rule which we apply to such situations dictates that the suit was timely.

The facts are undisputed. The appellant sued Wal-Mart and its local store manager Benny Cash on a slip and fall case in 1983. On May 8,1986, the appellant took a voluntary nonsuit. On May 8,1987, he refiled the suit against Wal-Mart but substituted Kirk Ward as a defendant in place of Benny Cash.

The statute in question, Ark. Code Ann. § 16-56-126 (1987), states the appellant had one year within which to refile his action. The trial judge granted Wal-Mart’s motion for summary judgment and held the complaint was filed one day late. (It is not disputed that Ward could not be included in the latter suit.)

The general rule in calculating a limitations period is to exclude the first day from the computation. Peay v. Pulaski County, 103 Ark. 601, 148 S.W. 491 (1912). We have applied that rule with considerable consistency. State ex rel. Hebert v. Hall, 228 Ark. 500, 308 S.W.2d 828 (1958) (where governor must veto bill within five days of receiving it, day of receipt is excluded); Chavis v. Pridgeon, 207 Ark. 281, 180 S.W.2d 320 (1944) (where notice of appeal to circuit court must be given within 30 days, exclude day on which lower court judgment was rendered); Matthews v. Warfield, 201 Ark. 296, 144 S.W.2d 22 (1940) (where election must be contested within ten days exclude day on which results are certified); Shanks v. Clark, 175 Ark. 883, 300 S.W. 453 (1927) (five-year limitation period for recovery on a note begins to run the day after the note is due).

This rule' is referred to in our statutes and rules of civil procedure. Ark. Code Ann. § 16-55-119 (1987) provides:

Where a certain number of days are required to intervene between two (2) acts, the day of one (1) only of the acts may be counted.

ARCP 6(a) provides:

In computing any period of time prescribed or allowed by these rules, by order of the Court, or by any applicable statute, the day of the act, event or default from which the designated period of time begins' to run shall not be included.

The appellee argues that in the case of Wheeler v. Wallingsford, 229 Ark. 576, 317 S.W.2d 153 (1958), we departed from this general rule. That case is distinguishable because the question before us now was not before the court in Wheeler, also, Rule 6(a) was not in force at that time.

A court should try to achieve uniformity in its decisions and this is an area in which we can easily do so. Rule 6(a) should govern. The day on which a nonsuit is taken should be excluded from computation.

Reversed and remanded.


author: John I. Purtle, Justice. Steele Hays, Justice,

text:
    Leotta Crotts ANDREWS, et al. v. All HEIRS and Devisees OF H.J. BELLIS, Deceased, et al.
    88-70
    759 S.W.2d 532
    Supreme Court of Arkansas
    Opinion delivered October 31, 1988
    [Rehearing denied December 12, 1988.]

      Young & Finley, for appellants Leotta Crotts Andrews and Edna Crotts Gray.

      Gardner, Gardner & Hardin, by: Stephen C. Gardner, for appellant Burl Harris, and J.H. Evans, for appellant TXO Production Corporation.

      Warner and Smith, by: Gerald L. DeLung, for appellees Mobil Oil Exploration and Producing Southeast, Inc., Kaneb Operating Co., Ladd Petroleum Corp., Betty Jean Bellis Carver, William Henry Bellis, Jr., Janet Bellis, Barbara Jean Bellis Franklin, Betty Gaunt Whelan, Mimme Lynn Childs, Chifford Eldon Gaunt, and Jeffery William Gaunt.

      Daily, West, Core, Coffman & Canfield, for appellee Arkla Exploration Company.

      Hays, J., would grant rehearing.

   John I. Purtle, Justice.

This action commenced when TXO Production Corporation, one of the appellants, filed a complaint in interpleader and petitioned for a declaratory judgment. TXO paid into the registry of the court the sum of $227,000, and asked that the chancellor determine the owner of these proceeds and to whom future payments should be made. Appellants Leotta Crotts Andrews and Edna Crotts Gray, and appellants Burl Harris and TXO, have conflicting claims and seek different results. The interests of the appellees are not in conflict. We are unable to follow all of the arguments presented by the various parties in a chronological manner. The case will be discussed in sufficient detail to explain why we reverse and remand as argued by the appellants Burl Harris and TXO Production Corporation.

This dispute concerns 40 acres of land and mineral rights in Pope County, Arkansas, described as the Southeast Quarter (SE 1/4) of the Southeast Quarter (SE 1 /4) of Section 5, Township 9 North, Range 21 West. There is no dispute that on January 1, 1903, S.G. Harris and his wife, Mattie Harris, owned all of the interests in this tract of land and on that date executed a warranty deed to O.G. Harris, reserving the mineral rights. On October 27, 1909, O.G. Harris and wife executed a deed, with reservation of mineral rights, to P.L. Browning. Browning, on November 11, 1915, conveyed the property to B. F. Crotts without reserving any interest in the property. On June 14, 1929, John A. Crotts and Emma Crotts, his wife, executed a mineral deed to William Vance. On the face of that deed the following appeared:

June 25, 1929. Know all men by these presents; That we S.G. Harris and Mattie Harris his wife do relinquish all of our rights and interests to Jno. A. Crotts in the SE 1/4 Southeast 1/4 of SE 1/4 Southeast 1/4 of Section 5, Township 9 North Range 21 West, containing 40 acres, more or less all in Pope County, Arkansas.
S.G. Harris
Mattie Harris
(Seal) My Com. ex. May 29, 1933.
C.E. Pittenger
Notary Public

The title of all parties except appellants Harris and TXO is dependent upon the above writing contained on the face of the 1929 deed. On the other hand, the interests of Harris and TXO are derived from the title of S.G. Harris.

The case is controlled by our interpretation, of the above quoted “deed within a deed.” There is no doubt that had the instrument last referred to been offered for recordation as a separate instrument, it would not have qualified because there is no acknowledgment or jurat. The original was never offered in evidence at the trial nor was it established that it had been destroyed. The trial court held that the instrument grafted upon the face of the deed dated June 14,1929, constituted a quit claim deed and that although it had no jurat or acknowledgment that these defects were cured by Act 101 of 1955, which is codified at Ark. Code Ann. § 16-47-108 (1987). Clearly the instrument purportedly signed by S.G. and Mattie Harris does not contain the elements of a proper acknowledgment as required by Ark. Code Ann. § 16-47-106 (1987).

The curative statute, Ark. Code Ann. § 16-4.7-108, states that instruments which have been recorded and purport to convey an interest affecting the title to real estate or personal property located in this state, although defective, are cured of such defects. The chancellor held in this case that the statute had cured the defects in the “deed within a deed” and that S.G. and Mattie Harris had conveyed the mineral interest to the Crotts. The writing of June 25, 1929, was not separately recorded. This alleged conveyance was contained in the space on the June 14, 1929, deed just below the description of the property. There is no independent proof that the Harrises ever executed this “deed” except as appears above.

This court held in McGehee v. McKenzie, 43 Ark. 156 (1884), that a curative statute did not interfere with rights which had already vested. This court has also held that a curative act does not validate a certificate of acknowledgment which the notary fails to sign, even if he has affixed his seal thereto. Davis v. Hale, 114 Ark. 426, 170 S.W. 99 (1914). The curative statute was again considered by this court in the case of Pardo v. Creamer, 228 Ark. 746, 310 S.W.2d 218 (1958), where we restated the rule that curative acts do not affect title which has vested before the effective date of the act. In Pardo we held that the curative statute cannot “supply an acknowledgment when in fact there is none.”

The so called “deed within a deed” was not a proper instrument for recordation. The fact that it appeared within an instrument which was duly recorded does not cure the defect of the lack of acknowledgment. Additionally, title to the mineral interests in question here had already vested in the Harris line of ownership. Although it may have been proper for the chancellor to have received this instrument into evidence, it was clearly error for him to decree that the defective “quit-claim deed” was cured by Ark. Code Ann. § 16-47-108.

Since we hold that the June 25,1929, writing by S.G. Harris and Mattie Harris on the face of the June 14,1929, mineral deed did not vest title to the mineral interest in John Crotts, it becomes unnecessary to discuss the claim between the Crotts heirs. The case is remanded to the trial court for the purpose of doing all things necessary to vest title in Burl Harris and TXO Productions, Inc.

Reversed and remanded.

Hays, J., dissents.

Glaze, J., concurs.

Steele Hays, Justice,

dissenting. On the face of the mineral deed, properly acknowledged and recorded, from John and Emma Crotts to William B. Vance appeared a quitclaim deed dated June 25,1929. This quitclaim deed granted the previously reserved mineral interest of S.G. Harris to John Crotts. The majority holds that because the quitclaim deed was not properly acknowledged the mineral interests should not pass to the Crotts heirs, but instead vest in the heirs of S.G. Harris.

Admittedly, there was no acknowledgment of the quitclaim deed as recorded June 25,1929. However, an acknowledgment is not necessary to make the transfer of title via the quitclaim deed effective. A quitclaim deed is a substantive mode of conveyance, and is effective to carry all the right, title, interest, claim and estate of the grantor as a deed with full covenants. Smith v. Olin Industries, Inc., 224 Ark. 606, 275 S.W.2d 439 (1955).

It is not necessary for a deed to be acknowledged. However, in order to be recorded, a deed must be acknowledged. Recordation then provides notice to the world. The majority states that, “the so called ‘deed within a deed’ was not a proper instrument for recordation.” But recordation only becomes important in order to give notice to subsequent bona fide purchasers and to provide a self-authenticating record.

The Chancellor found that Ark. Code Ann. § 16-47-108 (1987) cured the quitclaim deed’s lack of an acknowledgment and deemed the June 25,1929, quitclaim deed “acknowledged.” In Pardo v. Creamer, 228 Ark. 746, 310 S.W.2d 218 (1958), we held that the curative provisions of Ark. Code Ann. § 16-47-108 (1987) could not supply an acknowledgment where there was none, and the chancellor erred in holding the quitclaim deed “cured” and “acknowledged.” Yet, this error is simply harmless because the acknowledgment is not vital to the validity of the underlying transaction, i.e. the transference of the mineral interest from S.G. Harris to John Crotts. Pardo concerned a petition for adoption and whether its recordation constituted a declaration of heirship. In order to make an heirship declaration valid, by statute, it must be acknowledged. Therefore, in Pardo acknowledgment was essential before recordation was proper, and only with the proper recording of the declaration could it have any force. This is not the situation before us. The quitclaim deed transfers the grantor’s interest in the property whether or not the instrument is acknowledged. Harvey v. Ledbetter, 219 Ark. 27, 240 S.W.2d 18 (1951); McSwain v. Chrisweld, 213 Ark. 775, 213 S.W.2d 383 (1948). Recordation provides notice to subsequent bona fide purchasers and acknowledgment is only needed to ensure recordation which is not vital to the underlying transaction.

According to the June 25,1929, quitclaim endorsement the grantor, S.G. Harris, appeared before a notary public, an officer having the authority to take the acknowledgment, Ark. Code Ann. § 16-47-103(a) (1987), and executed the deed conveying the mineral interest to John Crotts. Evidence of this transaction was then transcribed by the clerk into the Pope County Record Book noting the name of the Notary Public and when his commission expired. However, this transcription fails to note a certificate of acknowledgment. The copy as it appeared in the Pope County Record Book provides secondary evidence of the execution of this deed.

The crux of the majority’s opinion focuses on the tangential issue of acknowledgment, with a veiled intimation that this conveyance may not even have occurred. However, there was no direct evidence of fraud and if such claims had a basis in fact they would surely have arisen before sixty years elapsed. I believe the chancellor, viewing the credibility of the witnesses and the totality of the evidence, was in the best position to determine the validity of the 1929 quitclaim deed. Box v. Dudeck, 265 Ark. 165, 578 S.W.2d 567 (1979). Therefore, I respectfully dissent.


author: Robert H. Dudley, Justice.

text:
    UHS OF ARKANSAS, INC. v. CHARTER HOSPITAL OF LITTLE ROCK, INC., and Arkansas Health Services Agency, et al.
    88-77
    759 S.W.2d 204
    Supreme Court of Arkansas
    Opinion delivered October 31, 1988

      William H. Sutton; Walter A. Paulson II; H. Charles Gschwend, Jr.;Friday, Eldredge & Clark', and Robert L. Brown, for appellant.

      Steve Clark, Att’y Gen., by: George A. Harper, Special Asst. Att’y Gen., for appellees Ark. Health Serv. Agency, Ark. Health Serv. Comm’n, and Ark. Dep’t of Health.

      House, Wallace & Jewell, P.A., by: Charles R. Nestrud and
      Janie Wilbanks-, and King & Spaulding, by: Richard L. Shackelford, for appellee Charter Hospital of Little Rock, Inc.
   Robert H. Dudley, Justice.

This is yet another appeal spawned by Act 593 of 1987 (Regular Session) which governs the issuance of permits for new or expanded hospital facilities, and Act 40 of 1987 (First Extraordinary Session) which, with some exceptions, places a two year moratorium on those permits. See Arkansas Dep’t of Human Serv. v. M.D.M. Corp., 295 Ark. 549, 750 S.W.2d 57 (1988); U.H.S. of Arkansas, Inc. v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988); and Arkansas Dep’t of Human Serv. v. Green Acres Nursing Home, 296 Ark. 475, 757 S.W.2d 563 (1988). In this case, UHS of Arkansas, Inc., the appellant, presently operates a psychiatric hospital within two miles of Maumelle. Appellee Charter Hospital of Little Rock plans to construct a similar facility within Maumelle itself. A number of suits involving these parties were pending below when appellee Charter filed this suit in chancery court and obtained a declaratory judgment that it was exempt from the moratorium on licensing. We reverse and remand the case to the chancery court with instructions to transfer the case to circuit court, which had original jurisdiction.

Appellant raises six points of appeal. Since we find merit in the first point, which challenges the exercise of jurisdiction by the chancery court, it is not necessary to address the other points.

In order to understand the issue involving the exercise of jurisdiction, it is necessary to discuss the history of these cases in some detail. Act 593 of 1987 [codified as Ark. Code Ann. §§20-8-101 to -109 (Supp. 1987)], was passed during the Regular Session of the legislature. It was amended by Act 40 of 1987 which was passed during the First Extraordinary Session. Act 40 created a moratorium on the licensing of additional hospital beds which, with some exceptions, will not expire until June 1989. The exception pertinent to the instant case is for municipalities which do not have a hospital, and which have a population of 5,000 or more, and are in a county having a population of 50,000 or more.

Appellee Health Services Agency interpreted Act 593, as amended, to provide not only an exemption from the moratorium for municipalities meeting the exemption’s requirements, but also an exemption from the permit of approval requirement. Appellee Charter Hospital of Little Rock, Inc., proposed construction of a psychiatric hospital in Maumelle, claiming to fall within these exemptions. Appellee Health Services Commission subsequently adopted the agency’s interpretation of Act 593, as amended. The effect of that decision was to refuse to initiate legal action to stop appellee’s proposed medical facility from being built in Maumelle.

On September 23, 1987, appellant filed a petition in circuit court seeking review of the administrative decision. The petition challenged the interpretation of the permit of approval exemption and Maumelle’s population qualification for the moratorium exemption. Charter was not originally a party to the action filed in circuit court; however, it has since sought to intervene. The motion to intervene is currently pending in circuit court.

On October 21,1987, an action for declaratory judgment in a companion case involving the City of Sherwood was filed in chancery court. The Sherwood action sought a declaratory judgment concerning the constitutionality of Act 593, as amended, and the interpretation of the permit of approval exemption. Appellant UHS sought to intervene in the Sherwood declaratory judgment action and was permitted to do so only after an appeal to this Court. UHS of Arkansas, Inc. v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988).

On November 4, 1987, appellant UHS filed an action in circuit court seeking a declaratory judgment concerning the constitutionality of Act 593, as amended, the interpretation of the permit of approval exemption, and the interpretation of the population requirement. The UHS declaratory judgment action has been consolidated with the original petition for review which was filed in circuit court on September 23,1987, and both are still pending.

On November 5,1987, appellee Charter Hospital, Inc., filed an action in chancery court seeking declaratory judgment concerning the constitutionality of Act 593, as amended, and the interpretation of the permit of approval exemption. Appellant UHS subsequently filed a motion seeking to intervene in the Charter declaratory judgment action, to consolidate it with the two cases pending in circuit court, and to transfer the chancery cases to circuit court to effectuate consolidation. By order dated December 8, 1987, the chancellor allowed appellant UHS to intervene in the Charter declaratory judgment action, but denied the request to transfer to circuit court and consolidate with the cases pending there.

Appellees sought summary judgment in the Charter declaratory judgment action. The chancery court granted summary judgment finding that Act 593, as amended, did not violate the Arkansas constitutional prohibition against special and local legislation, and that appellee Charter was exempt from the moratorium and from the permit requirement since it satisfied the population requirements of Act 593, as amended. This appeal followed. Appellant contends that the chancellor abused his discretion in accepting jurisdiction of this case and ruling on its merits. The argument is meritorious.

Our declaratory judgment statute does not confer subject-matter jurisdiction. There must be an independent basis for equitable jurisdiction before a chancery court can render a declaratory judgment. City of North Little Rock v. Gorman, 264 Ark. 150, 568 S.W.2d 481 (1978). Here, the independent basis for equitable jurisdiction lay in the challenge to the constitutionality of Act 593, as amended. See American Television Co., Inc. v. City of Fayetteville, 253 Ark. 760, 489 S.W.2d 754 (1973). Thus, the “jurisdictional” issue involved in the instant case concerns matters of propriety rather than subject-matter jurisdiction.

The rules concerning the propriety of a court exercising jurisdiction over a declaratory judgment action are not complicated. Declaratory judgment statutes are intended to supplement rather than supersede ordinary causes of action. Consequently, when another action between the same parties, in which all issues could be determined, is actually pending at the time of the commencement of an action for a declaratory judgment, the court' abuses its discretion when it entertains jurisdiction. Mid-State Const. Co. v. Means, 245 Ark. 691, 434 S.W.2d 292 (1968); City of Cabot v. Morgan, 228 Ark. 1084, 312 S.W.2d 333 (1958). If this were not the law, one could be charged in circuit court with violating the law, and the accused could seek a declaratory judgment in chancery court that the law was unconstitutional. Aside from the fact that the courts might rule differently, creating unnecessary confusion, such a system would create an extra burden on the trial courts, increase the appellate load, and thoroughly confuse the law enforcement agencies and the public.

Applying the aforementioned rules to the facts of the instant case, it is clear that the chancery court abused its discretion in exercising jurisdiction. At the time the Charter declaratory judgment action was filed in chancery court on November 5, 1987, the UHS petition for review was pending in circuit court. The parties to the petition for review action are appellant UHS and appellees Health Services Agency and Health Services Commission. Appellee Charter Hospital of Little Rock, Inc., has also sought to intervene in the case. Thus, the same parties are involved in both cases. Further, all of the issues sought to be determined by the parties are pending before the circuit court. It is of no consequence that the issue challenging the constitutionality of Act 593, as amended, was not raised in the original petition for review since it could have been raised at that time, and subsequently has been. City of Cabot v. Morgan, 228 Ark. 1084, 312 S.W.2d 333 (1958).

Appellees assert in a footnote to their argument that the circuit court has no jurisdiction over appellant’s administrative appeal because the decision for which they seek review was not an administrative adjudication. A similar assertion of lack of jurisdiction was raised in City of Cabot v. Morgan, 228 Ark. at 1086. Here, as well as there, the argument is rejected because the circuit court’s subject-matter jurisdiction is an issue which can best be decided in the first instance by the circuit court, along with all of the other issues concerning these parties.

Finally, appellees argue that even if the chancellor should have considered transferring the case to circuit court, the issue regarding the constitutionality of the act clearly falls within the “public policy” exception of Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972):

The rule, that constitutional issues will not be determined unless their determination is essential to a disposition of the controversy, like all other judge-made rules admits of certain exceptions. One of those exceptions is where the settlement of the controversy involves a matter of public importance.

The argument is without merit. The Wood case did not involve the exercise of jurisdiction between two courts with the same issues pending in both. The constitutional issue will be decided by the circuit court in this case.

We reverse and remand with instructions to transfer this case to circuit court.


author: Steele Hays, Justice.

text:
    ASSOCIATES FINANCIAL SERVICES COMPANY OF OKLAHOMA, INC. v. CRAWFORD COUNTY MEMORIAL HOSPITAL, INC., Curtis Langston, Jr., and Patsy Langston
    88-164
    759 S.W.2d 210
    Supreme Court of Arkansas
    Opinion delivered October 31, 1988

      Phillip J. Taylor, for appellant.

      Parker Law Firm, for appellee Crawford County Memorial Hospital, Inc.
   Steele Hays, Justice.

This is an appeal from the denial of a motion for default judgment, which we dismiss for want of an appealable order.

Associates Financial Services Company, appellant, filed a writ of garnishment against County Memorial Hospital, a corporate garnishee. The hospital sent a letter to the circuit clerk, with a copy to Associates’ attorney, setting forth certain facts about the employment and wages of the defendant. The letter was signed by the personnel director of the hospital and was the hospital’s only response to the writ of garnishment.

Associates objected to the letter, primarily because it was not filed by an attorney. It argued that the letter was not a properly filed answer because a corporation cannot practice law except through licensed attorneys, citing All City Glass and Mirror v. McGrow Hill Information Systems Co., 295 Ark. 520, 750 S.W.2d 395 (1988). Associates asked that the letter be struck and that the circuit court grant a default judgment in the amount alleged in the writ of garnishment. The circuit judge held that the hospital had substantially complied and so denied the motion for default judgment. From the denial of that order the appellant brings this appeal.

Even though the parties did not raise the issue of the appealability of this order, it is our duty to determine whether or not we have jurisdiction. Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987); Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982). For an order of a trial court to be appealable, it must be an order which in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action. ARAP Rule 2(a)(2). The denial of a motion for a default judgment is not a final order. DeClerk v. Tribble, 269 Ark. 572, 599 S.W.2d 152 (1980).

The appeal is dismissed.


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Marvin PHILLIPS v. Dr. Robert CLARK and Dr. Robert Bishop
    88-71
    759 S.W.2d 207
    Supreme Court of Arkansas
    Opinion delivered October 31, 1988
    [Rehearing denied December 5, 1988.]

      Art Dodrill, for appellant.

      Friday, Eldredge & Clark, by: Laura A. Hensley, for appellees.

      Turtle, J., would grant rehearing.

   David Newbern, Justice.

This is a medical malpractice case in which a directed verdict was entered in favor of the appellees, Dr. Robert Clark and Dr. Robert Bishop, at the conclusion of the plaintiffs evidence. Marvin Phillips, who was the plaintiff, has appealed. Mr. Phillips’s complaint was that the doctors had not properly cared for him after the surgery and that resulted in the necessity of further surgery and long-term medical care. We agree with the trial court’s assessment that an expert witness upon whose testimony Mr. Phillips’s case depended was not qualified to answer the questions he was asked. There was no other testimony sufficient to allow the case to go to the jury, and thus we affirm the judgment based on the directed verdict.

Mr. Phillips consulted Dr. Robert Bishop in Morrilton about severe stomach pain. Dr. Bishop told Phillips he needed a gallbladder operation and recommended a surgeon, Dr. Clark of Conway. Phillips had previously had stomach surgery, and that complicated the gallbladder operation which was performed by Dr. Clark on August 27, 1982. He was discharged from the hospital on September 18,1982, with a, presumably temporary, tube extending from the surgical incision for the purpose of draining excess bile.

Mr. Phillips testified he saw Dr. Clark once after the surgery and while he was still in the hospital. He told Dr. Clark his “stomach busted loose,” and Dr. Clark removed a stitch and remarked it would be two weeks “before [he could] go back in there.” Thereafter, Mr. Phillips did not see Dr. Clark. During two weeks following his discharge from the hospital Mr. Phillips went several times to the emergency room at the hospital. On several occasions, he was seen by Dr. Bishop who told him he would be all right. After the sutures were removed by Dr. Bishop, Mr. Phillips and his wife were concerned that the incision area had broken open. He was again seen by Dr. Bishop who told him to go home and that he would be all right. On the last trip to the hospital emergency room, October 1, 1982, Phillips testified that the wound was draining so much that he was “wet all over” and that his wife had to wrap him in towels because of drainage from the wound. A nurse told him the smell was bad and they needed to give him some antibiotics. Dr. Bishop told him to go home, “take a towel, keep it dried up and come back.”

Relatives convinced Phillips to go to Baptist Medical Center in Little Rock where he was admitted and treated by Dr. Jones, a surgeon. Dr. Jones testified that it was not until some three or four days after Mr. Phillips’ admission to Baptist Hospital that he became very ill with infection requiring further surgery and extensive treatment. Dr. Jones transferred Mr. Phillips to St. Vincent Hospital where the subsequent surgery was performed. Dr. Jones testified that he could think of nothing Dr. Bishop and Dr. Clark could have done for Mr. Phillips that they did not do. He did say, however, that after complicated gallbladder surgery he would personally see the patient. In response to the question, “You believe that would be standard, you’d uphold yours?” Dr. Jones answered, “Yes.”

In addition to Dr. Jones, Dr. Gilbert Evans testified on behalf of Mr. Phillips. Dr. Evans testified he graduated from the University of Arkansas School of Medicine in 1957. While he had never performed gallbladder surgery, he had assisted in such operations. He had been an anesthesiologist. He had been a general practitioner and prison doctor and had worked in detoxifying drug patients. He said he had followed the post operative care of gallbladder surgery patients, but since 1983 he had limited his practice to disability evaluations. At first, Dr. Evans testified he was not familiar with medical practice standards in rural Arkansas in 1982, but then he said he was. He testified the post operative care given Phillips violated “first grade hygiene” principles. He testified that “blood work” should have been done, but was not, during the two week period Phillips was at home after the gallbladder surgery. He also said the bile lost through the tube could have been fed back to the patient. Dr. Evans testified he based his knowledge of Mr. Phillips’s condition upon what Phillips had told him and that he refused to look at Mr. Phillips’s medical records because he did not wish to be distracted from what Mr. Phillips had told him and because he was not paid his fee of $350 to look at them.

Throughout Dr. Evans’s initial testimony, counsel for Dr. Clark and Dr. Bishop objected on the ground that there had been no showing that Dr. Evans was qualified to give an opinion with respect to the care afforded to Mr. Phillips by the defendants. The court did not then rule on the question whether Dr. Evans was qualified, but allowed Mr. Phillips’s counsel to ask further questions in an attempt to ascertain whether or not he was qualified. The following excerpt of the testimony is typical:

Q [by Mr. Phillips’s counsel] Dr. Evans, are you familiar with the standard of care for doctors in rural Arkansas, in the summer and fall of 1982?
A Yes.
MS. HENSLEY [counsel for Dr. Clark and Dr. Bishop]: Note my objection, the question was too broad and open.
THE COURT: That hasn’t qualified him yet.
Q [by Mr. Phillips’s counsel] You do know that this operation was a gallbladder operation.
A Initially, yes.
MS. HENSLEY: I have to object again, that’s not what it was.
THE COURT: I don’t know, he says, I thought, it was a gallbladder operation with complications. I don’t know whether we are dotting i’s and crossing t’s or not, that’s what I understood it to be. If I’m in error, we ought to know.
MS. HENSLEY: I think Dr. Evans stated earlier, there’s a big difference between a simple operation, where a gallbladder is removed, and an operation of the magnitude where there is a large mass, you have to redo ducts, all kinds of stuff. That’s my objection.
Q [by Mr. Phillips’s counsel] Dr. Evans, what we are talking about is the fourteen days after he was released from Conway County Hospital, in the summer of 1982.

Thereafter, in response to objections to Dr. Evans’s testimony, the court’s response was “Let’s see what he’s going to say.” The court did not make a ruling during Dr. Evans’s testimony on his qualifications to give his professional opinion.

During cross examination, Dr. Evans was asked to state all the things he thought Dr. Clark and Dr. Bishop had failed to do that they should have done for Mr. Phillips. His response was that they should have fed him and prayed for him. The reference to feeding the patient had to do with Dr. Evans’s contention that Mr. Phillips became malnourished after the gallbladder surgery, although he testified that no one knows what proper nutrition is.

At the conclusion of the case, the court granted directed verdicts as to punitive damages and as to Dr. Clark, and then, with reference to the motion for directed verdict in favor of Dr. Bishop, the court stated:

I have witnessed hundreds of trials and many malpractice cases, over the past twenty years, nearly twenty-one, and I don’t think I have ever seen any case, no matter what size or consequence, in which the evidence was [s]o incredible, unbelievable, as in this case. Dr. Evans is totally incredible, he smacks of a person who may be deranged, and I say that after considerable concern.
The only evidence that purports to show malpractice, professional evidence, was that of Dr. Evans, and, to be very candid, I don’t think it’s believable. He said, in his final statement, and I recall, when asked, “what did this doctor not do that he should have done,” and he said he should have fed him and prayed for him. That’s what he said, verbatim, and I just hold that’s of such inconsequential reply in this case, that I’m going to grant the motion for verdict. I am embarrassed about the case.

While the court did not say specifically that he was, at last, ruling on Dr. Evans’s qualifications to give expert testimony, we feel the court’s remarks may be taken as such a ruling. The court has broad discretion to determine whether one qualifies as an expert, and we will not reverse the determination absent an abuse of discretion. Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980); United States Fidelity & Guaranty Co. v. Smith, 252 Ark. 556, 480 S.W.2d 129 (1972). Cf. Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986). Given Dr. Evans’s equivocal testimony as to his qualifications and his equally equivocal statements as to what should have been done by the defendants, combined with his refusal or failure to review the relevant medical records in the case, we cannot say the court abused its discretion. We cannot say that this witness’s testimony would, in the words of A.R.E. 702, have assisted the trier of fact to understand the evidence.

Mr. Phillips does not contest the fact that this is the type of medical malpractice case in which expert testimony is required. We agree with the court that, absent Dr. Evans’s testimony there was nothing to support Mr. Phillips’s allegations.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

It is not the function of this court to judge the credibility of the witnesses. That is the function of the fact finders. The majority opinion is established only upon the ground that this court values the words of some witnesses over others. I cannot go along with such reasoning.


author: Per Curiam.

text:
    Wayne DUMOND v. STATE of Arkansas
    CR 86-50
    759 S.W.2d 36
    Supreme Court of Arkansas
    Opinion delivered October 31, 1988

      Hall & Vaught, by: John Wesley Hall, Jr., for petitioner.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Per Curiam.

In January 1988 we remanded this case to the trial court for an evidentiary hearing on an issue raised by petitioner under Criminal Procedure Rule 37. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). The hearing was limited to petitioner’s allegation that his counsel on appeal was ineffective for not supplementing the record on appeal to show that a timely motion for mistrial had been made in regard to an undisclosed fingerprint report. The petitioner alleged that the motion for mistrial was made during an off-the-record conference in chambers. We remanded the case to the trial court to supplement the record with the off-the-record conference. The evidentiary hearing was held on May 19,1988, and the record of that hearing was lodged with this court, but the trial judge who conducted the hearing did not make findings of fact with respect to the hearing. We again remanded the matter to the trial court since the clearly conflicting testimony of the witnesses at the hearing as to what occurred required findings of fact from the court. The findings have been rendered and are now before us.

After hearing and assessing the testimony adduced at the hearing, the court found that the attorneys for the state and defense engaged in an informal discussion of the circumstances surrounding the fingerprint report and that neither a motion for mistrial was made nor any ruling made by the trial court on a material matter which was not made a part of the record.

This court recognizes that it is the trial court’s task to assess the credibility of witnesses and resolve conflicts of fact. McDaniel v. State, 291 Ark. 596, 726 S.W.2d 679 (1987); Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986). As there was ample evidence from which the trial court could have concluded that there was no off-the-record motion for mistrial, counsel on appeal could not have been ineffective in failing to move to supplement the record to show a timely motion for mistrial. Petitioner has not shown that he is entitled to any relief pursuant to Criminal Procedure Rule 37. Accordingly, his petition is denied.

In a related matter, petitioner has requested permission to file a brief on the issues raised in the hearing on remand. As noted when we remanded this case for findings of fact, the request was extraordinary in a Rule 37 case and, moreover, premature since the findings of fact had not yet been entered. In light of the trial court’s findings, the request is moot.

Petition denied.


text:
    Toi Miller HOLMES v. The Honorable Jack L. LESSENBERRY, Circuit Judge, and the Honorable William C. McArthur, Special Circuit Judge
    88-263
    759 S.W.2d 37
    Supreme Court of Arkansas
    Opinion delivered October 31, 1988

      Keith I. Billingsley, for appellant.

      Rose Law Firm, by: Webster L. Hubbell, for Charles C. Owen.

      Mark Stodola, City Attorney, and Thomas M. Carpenter, Asst. City Att’y, for Tom Dalton and the City of Little Rock.
   Per Curiam.

According to the petition, the trial court has issued its order. We do not issue a writ of prohibition for something that has already been done.


text:
    Clayton HAMILTON v. JEFFREY STONE CO., et al.
    88-168
    759 S.W.2d 792
    Supreme Court of Arkansas
    Opinion delivered November 7, 1988

      The McMath Law Firm, by: Eileen W. Harrison, for appellant.

      Michael E. Ryburn, for appellees.
   Darrell Hickman, Justice.

This case was before us last year. We remanded it to the court of appeals to decide the constitutionality of the time limitation placed on filing a workers’ compensation disability claim when disability results from silicosis. Hamilton v. Jeffrey Stone Co., 293 Ark. 499, 739 S.W.2d 161 (1987) . The court of appeals held that the appellant’s proof was not sufficient to show that the limitations period violates the equal protection and due process clauses of the U. S. Constitution. Hamilton v. Jeffrey Stone Co., 25 Ark. App. 66, 752 S.W.2d 288 (1988).

Again we were asked to review the decision of the court of appeals, and we granted the petition. Upon further study, we have determined that review was improvidently granted.

Review denied.


text:
    Harold PIKE, et al. v. J.D. RICE, Member of the Franklin City Election Committee, et al.
    88-195
    759 S.W.2d 541
    Supreme Court of Arkansas
    Opinion delivered November 7, 1988

      Walters Law Firm, P.A., by: Bill Walters, for appellants.

      John Bynum, Prosecuting Attorney, for appellees.
   Darrell Hickman, Justice.

The appellants are the cities of Branch and Charleston and residents of the Charleston District of Franklin County. They filed suit in the Charleston District Chancery Court challenging an election held March 8, 1988, which approved a one cent county-wide sales tax.

The appellees moved to dismiss for lack of jurisdiction. The trial judge said the action should have been filed in the Ozark District and dismissed the case. We find the action is an election contest and, therefore, the chancery court is without jurisdiction.

We have settled the question of which court, circuit or chancery, has jurisdiction over election contests — it is circuit court.

In Rich v. Walker, 237 Ark. 586, 374 S.W.2d 476 (1964), and Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967), we held election contests must be filed in a law court. See also Alcoholic Beverage Control Board v. Munson, 287 Ark. 53, 696 S.W.2d 720 (1985); Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980). That part of Ark. Code Ann. § 26-74-309(c) (1987), which attempts to grant chancery court jurisdiction of an election contest, is unconstitutional.

The trial court reached the right result. So we affirm his decision, not reaching the question raised on appeal.

Affirmed.