source: Caselaw Access Project

author: TOM GLAZE, Justice.

license: Public Domain

text:
    Ramona MOIX-McNUTT v. Robert J. BROWN
    01-283
    74 S.W.3d 612
    Supreme Court of Arkansas
    Opinion delivered May 9, 2002

      McNutt Law Firm, by: Mona J. McNutt, for appellant.

      Cross, Gunter, Witherspoon and Galchus, P.C., by: M. Stephen Bingham, for appellee.
   TOM GLAZE, Justice.

This case involves the application of the statute of limitations in legal malpractice cases. We take jurisdiction under Ark. Sup. Ct. R. l-2(a)(5), as the appeal involves the discipline of attorneys-at-law.

Ramona Moix-McNutt originally hired the law firm of Crockett and Brown, PLLC, in December of 1996 to represent her and her husband in a real estate transaction, and on January 2, 1997, Crockett and Brown filed a Chapter 13 Bankruptcy petition for Moix-McNutt. After a hearing in June of 1997, the bankruptcy court found that Moix-McNutt did not have enough income to meet the statutory requirements for a Chapter 13 bankruptcy. On July 17, 1997, the bankruptcy court ordered Moix-McNutt and her husband, Mark McNutt, to enter Chapter 11 bankruptcy or to consolidate and join in one Chapter 11 bankruptcy petition within twenty days; otherwise, Moix-McNutt’s Chapter 13 bankruptcy case would be involuntarily converted to a Chapter 7 bankruptcy proceeding without notice or hearing at some future time.

On July 25, 1997, Brown filed a notice of appeal from the July 17 order, and on August 5, 1997, Brown filed a motion requesting a stay of the July 17 order pending the appeal. The bankruptcy court held a hearing on September 5, 1997, at which time the motion for stay pending appeal was denied. Brown did not file a motion to convert Moix-McNutt’s Chapter 13 petition to a Chapter 11 petition or join Mark McNutt in the proceedings. On December 3, 1997, the bankruptcy court filed an order that involuntarily converted Moix-McNutt’s Chapter 13 petition into a Chapter 7 proceeding, noting that Moix-McNutt was clearly ineligible for Chapter 13.

On August 14, 2000, Moix-McNutt filed this malpractice action against Brown. In her complaint, she alleged that, as a result of Brown’s “incompetent legal advice,” she suffered an' involuntary conversion of her bankruptcy petition to a Chapter 7 proceeding, which resulted in a loss of an enormous sum of money. She further asserted that Brown knew or should have known that the conversion would take place if he took no further action following the bankruptcy court’s July 17, 1997, order directing Moix-McNutt to convert her petition to a Chapter 11 petition.

Brown filed a motion to dismiss Moix-McNutt’s complaint, asserting that the three-year statute of limitations for bringing legal malpractice actions had expired. After a hearing on November 2, 2000, the trial court granted Brown’s motion. From that order, Moix-McNutt brings this appeal, arguing that her cause of action did not accrue until the bankruptcy court’s December 3, 1997, order. Moix-McNutt contends that she was not harmed or did not suffer any loss until this December 3 bankruptcy court order that converted her Chapter 13 petition into a Chapter 7 proceeding. It was this involuntary conversion, she asserts, that was the last essential element to her cause of action. Thus, because the statute of limitations commenced from the December 3, 1997, date, she claims the filing of her malpractice action on August 14, 2000, was well within the three-year statute of limitations.

Arkansas Code Annotated section 16-56-105 (1987) provides a three-year statute of limitations for malpractice actions against attorneys. See also O’Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997) (three-year statute of limitations applies to all tort actions not otherwise limited by law). For over one hundred years, Arkansas has followed the “occurrence rule” with respect to the commencement of the statute of limitations in legal malpractice cases. See White v. Reagan, 32 Ark. 821 (1877). This rule provides that the statute of limitations applicable to a malpractice action begins to run, .in the absence of concealment of the wrong, when the negligence occurs, and not when it is discovered. See Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998) (where this court listed three common approaches used to determine when a cause of action for malpractice accrues: 1) the occurrence rule; 2) the “damage rule” or “date of injury rule,” with a variation called the “discovery rule”; and 3) the “termination-of-employment rule,” also named the “continuing representation rule”; the Ragar court, however, adhered to the occurrence rule); Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992); Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991).

Notwithstanding this court’s consistent refusal to retreat from the occurrence rule, Moix-McNutt continues, as mentioned above, to argue that the last essential element to her cause of action did not fall into place until the bankruptcy court’s December 3, 1997, order involuntarily converting her bankruptcy proceeding to Chapter 7. She asserts that, but for the bankruptcy court’s entry of that order, which forced her to enter a Chapter 7 bankruptcy and culminated in the liquidation of her assets, she would have had no complaint against anyone.

To accept this argument, however, Arkansas would have to abandon the occurrence rule and adopt the so-called “date of injury” rule; this latter rule provides that the statute of limitations begins to run, not from the occurrence of the negligent act, but rather from the time injury results from the negligent act. See Chapman, supra. This court has held time and time again that “if such a marked change is to be made in the interpretation of statutes that have long been the law, it should be done prospectively by the legislature and not retrospectively by the courts.” Goldsby, supra; Flemens v. Harris, 323 Ark. 421, 915 S.W.2d 685 (1996); Morris v. McLemore, 313 Ark. 53, 852 S.W.2d 135 (1993) (holding that a cardinal rule in dealing with a statutory provision is to give it a consistent and uniform interpretation, and when a statute has been consistently construed in one way for many years, such construction ought not be changed).

A fundamental flaw in Moix-McNutt’s argument is that she has faded to allege the date of any wrongdoing by Brown after July 17, 1997, when the bankruptcy court ordered her to convert her petition from Chapter 13 to Chapter 11. Although she argues that Brown continued his negligent actions in the days after that order was entered, and failed to advise her of the repercussions she would face if she ignored the bankruptcy court’s order, she does not specifically plead the dates on which she alleges that Brown gave her negligent advice. In Ragar v. Brown, supra, this court held that such a failure caused the pleading to be deficient on its face. The trial court correctly recognized that all of the allegedly wrongful acts by Brown had been completed as of July 17, 1997, and Moix-McNutt has not pointed out to this court any evidence to the contrary. Although she argues that “common sense” says that one cannot have a cause of action until one has actually suffered a loss or damages arising out of the negligent act, this is precisely the argument that this court has rejected over and over again. See Ford’s, Inc. v. Russell Brown & Co., 299 Ark. 426, 773 S.W.2d 90 (1989).

In conclusion, Arkansas has utilized the “occurrence rule” since 1877, and “[t]his court has expressly declined to retroactively change the legal malpractice occurrence rule to any of the other approaches. The General Assembly’s silence for over 100 years indicates tacit approval of this court’s statutory interpretation.” Ragar, 332 Ark. at 223. While Moix-McNutt may disagree with the application of the rule, “stare decisis mandates this outcome.” Id. at 224.

Because the three-year statute of limitations barred Moix-McNutt’s malpractice action against Brown, the trial court did not err in 'granting Brown’s motion to dismiss. We affirm.

Imber, J., not participating.

       The law firm of Crockett and Brown, PLLC, has apparently since dissolved, and Moix-McNutt names only Robert J. Brown as the appellee; therefore, any references to Moix-McNutt’s attorneys will simply be to Brown.

       To the extent that Moix-McNutt argues that Brown’s conduct constituted malpractice, we note that the trial court decided the case solely on the basis of the statute of limitations; therefore, that is the only issue we address in this opinion.


author: DONALD L. CORBIN, Justice.

text:
    Blake BAILEY v. STATE of Arkansas
    CR 01-1097
    74 S.W.3d 622
    Supreme Court of Arkansas
    Opinion delivered May 9, 2002

      Terry Goodivin Jones, for appellant.

      Mark Pryor, Att’y Gen., by; David J. Davies, Ass’t Att’y Gen., for appellee.
   DONALD L. CORBIN, Justice.

Appellant Blake Bailey appeals the order of the Craighead County Circuit Court, Juvenile Division, ordering him to pay restitution in the amount of $6,785.60, after his probation was revoked. For reversal, Appellant argues that where the trial court initially reserved the issue of restitution for ninety days, it erred in later reopening the issue and requiring Appellant to pay an increased amount of restitution. This is an issue of first impression; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1&emdash;2(b)(1). We reverse and dismiss the order of the trial court.

The record reflects that on April 26, 2000, Appellant, a minor, pled guilty to the charge of residential burglary and theft of property. As a result of his guilty plea, the trial court placed Appellant on probation for twelve months. The trial court also ordered Appellant to pay restitution in an amount to be determined within ninety days from the date of the adjudication hearing. Although the record before us reveals no subsequent order by the trial court setting restitution at a fixed dollar amount, both parties aver that Appellant was ordered to pay $500.00 in restitution, an amount that represented the victims’ insurance deductible.

Thereafter, the State filed a petition seeking to revoke Appellant’s probation based on an allegation of possession of a controlled substance. The State also moved to resentence him and make restitution correct for the first time. Appellant pled guilty to the possession charge, and on January 17, 2001, the trial court revoked his probation on the basis of the possession charge. Initially, the trial court sentenced Appellant to serve ninety days in a juvenile detention facility, with thirty days to be served and sixty days deferred.

Thereafter, on March 28, 2001, the trial court held a subsequent hearing to address the issue of restitution. At this hearing, Appellant argued that the trial court lacked authority to revise the amount of restitution after the original ninety-day time period had elapsed. In support of his argument, Appellant relied on Ark. R. Civ. P. 60, which provides that a trial court has ninety days to modify or vacate a judgment, with the exception of correcting any clerical errors. Appellant asserted that this rule had been extended to criminal cases via State v. Dawson, 343 Ark. 683, 38 S.W.3d 319 (2001). The State countered that once the petition to revoke was filed, it had the effect of reopening the original case and the trial court had the authority to impose any order that he could have originally entered.

After considering the arguments of counsel, the trial court ruled from the bench that Appellant’s failure to pay any of the restitution originally ordered was grounds for revoking his probation. The trial court then entered an amended order of revocation requiring payment of restitution in the amount of $6,785.60. Although the trial court acknowledged that Appellant had previously been sentenced to serve ninety days as a result of his probation being revoked, it found that the added restitution did not violate double-jeopardy principles, as some of the ninety-day sentence was deferred. From that order, comes the instant appeal.

As an initial matter, we address Appellant’s right to appeal the trial court’s order of punishment, given that he pled guilty to the allegation contained in the State’s petition. Generally, there is no right to an appeal from a plea of guilty. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). Pursuant to Ark. R. Crim. P. 24.3, an appeal from a guilty plea or a plea of nolo contendere may be allowed under certain circumstances, none of which are applicable here. This limited right of appeal from a guilty plea also pertains to appeals from juvenile court, as the rules of criminal procedure are applicable to juvenile-delinquency proceedings. L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998); Mason v. State, 323 Ark. 361, 914 S.W.2d 751 (1996). See also Ark. Code Ann. § 9-27-325(f) (Repl. 2002). Where, however, an appeal from a plea of guilty raises only an issue of sentencing, rather than requiring a review of the plea itself, this court will entertain such an appeal. Id.; Hill, 318 Ark. 408, 887 S.W.2d 275. Accordingly, the issue raised by Appellant is properly before this court.

For reversal, Appellant argues that the trial court erred in reopening the issue of restitution based on his failure to pay any of the amount originally ordered where the ninety days reserved for the issue had passed. In support of his argument, Appellant relies on Dawson, 343 Ark. 683, 692, 38 S.W.3d 319, 324 (quoting Lord v. Mazzanti, 339 Ark. 25, 29, 2 S.W.3d 76, 79 (1999)), wherein this court held that after ninety days a circuit court could not change its judgment in order “to make it speak what it did not speak, but ought to have spoken.” The State counters that the present matter is distinguishable from Dawson in that the modification was not made sua sponte by the court, but rather was made in the context of a probation-revocation hearing, and thus, the issue is governed by Ark. Code Ann. § 9-27-339 (Repl. 1998). The State further argues that section 9-27-339(e)(3) grants a trial court the authority to make any disposition that could have been made at the time probation was imposed.

Even though it is not raised by either party, we must first address the issue of whether the trial court had jurisdiction to amend the revocation order and impose an additional punishment on Appellant. This court has held that the issue of a circuit court’s loss of jurisdiction to modify a sentence is one that can be raised by this court on its own motion. Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989). In a similar vein, this court treats allegations of void or illegal sentences similar to problems of subject-matter jurisdiction, in that we review such allegations whether or not an objection was made in the trial court. Walker v. State, 330 Ark. 652, 955 S.W.2d 905 (1997); Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). A sentence is void when the trial court lacks the authority to impose it. Id. Thus, we must determine whether the trial court possessed the authority to enter the amended order.

We agree with the State that section 9-27-339 governs issues of probation revocation in juvenile court. A revocation hearing is held once the State files a petition seeking to revoke a juvenile’s probation. See section 9-27-339(d). Section 9-27-339(e) provides that upon finding by a preponderance of the evidence that a juvenile violated his terms of probation, a trial court may:

(1) Extend probation;
(2) Impose additional conditions of probation;
(3) Make any disposition that could have been made at the time probation was imposed; or
(4) (A) Commit the juvenile to a juvenile detention facility for an indeterminate period not to exceed ninety (90) days. [Emphasis added.]

Thus, the State’s assertion that under section 9-27-339 (e)(3) the trial court was authorized to make any disposition that it could have made when Appellant was placed on probation is correct. The State ignores, however, a very important aspect of this statutory scheme, namely the fact that the options provided for in section 9-27-339 (e) are listed in the disjunctive, as indicated by the General Assembly’s use of the particle “or.”

In discussing the use of the particle “or” in statutes, this court has stated that, “[i]n its ordinary sense the word ‘or’ is a disjunctive particle that marks an alternative, generally corresponding to ‘either,’ as ‘either this or that’; it is a connective that marks an alternative.” McCoy v. Walker, 317 Ark. 86, 89-90, 876 S.W.2d 252, 254 (1994) (quoting Beasley v. Parnell, 177 Ark. 912, 918, 9 S.W.2d 10, 12 (1928)); see also Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993). Moreover, in holding that a statute provided three alternative venues for fraud, this court reasoned that “the General Assembly followed the recognized rule of grammar that a list of items followed by commas and ending with the word ‘or’ between the final two items shall be read in the disjunctive.” Quinney v. Pittman, 320 Ark. 177, 183, 895 S.W.2d 538, 541 (1995). Thus, under the rationale of these cases, this court must regard the measures set forth in section 9-27-339 (e) as alternatives available to the trial court when revoking a juvenile’s probation.

In the instant case, the trial court revoked Appellant’s probation on January 17 for possession of a controlled substance and sentenced him to serve ninety days. Over two months later, the trial court held a second hearing, stemming from this same petition to revoke, and found that Appellant’s failure to pay restitution was grounds for revocation and entered an amended revocation order increasing the amount of restitution owed by Appellant. Under section 9-27-339, however, the trial court lacked the authority to commit Appellant to a juvenile detention facility and then later make any disposition that he could have imposed at the time Appellant was placed on probation.

Our conclusion is further supported by this court’s decision in Avery v. State, 311 Ark. 391, 844 S.W.2d 364 (1993). There, a juvenile was placed on one-year’s probation for burglary, and the State later filed a petition to revoke his probation. A hearing was held and the trial court found that the juvenile had violated his probation, but did not revoke that probation, choosing instead to extend the term and conditions of probation. The trial court then ordered the juvenile to appear at a review hearing. The State did not file another petition to revoke probation, but at the review'hearing, the trial court revoked the juvenile’s probation and ordered him to pay a fine. On appeal, the juvenile argued that the trial court disposed of the petition when it denied the State’s request for revocation and extended probation, and that it could not make a different disposition several months later. This court agreed with the juvenile and reversed the trial court’s order, stating:

The trial court was authorized by the above-quoted statute to deny the petition to revoke and extend probation under subsection (1) above, as it did in this case, but it was not authorized to take that action and then, three months later, change its mind and grant the petition to revoke under subsection (3) above. After the first disposition denying revocation, the statute requires the prosecutor to file another petition for revocation and give notice to the delinquent that revocation is again being considered before probation can be revoked. If we were to construe the statute to authorize the procedure used in this case, it might well run afoul of the prohibition against double jeopardy, for it was settled by the Supreme Court in Breed v. Jones, 421 U.S. 519 (1975), that jeopardy does attach within the meaning of the Fifth Amendment, as applicable to the states under the Fourteenth Amendment, in an adjudicatory delinquency proceeding in juvenile court.

Id. at 394, 844 S.W.2d at 366.

Here, the trial court’s initial order revoking Appellant’s probation due to possession of a controlled substance and. sentencing him to ninety days’ detention constituted a disposition of the matter under section 9-27-339. The trial court’s subsequent order revoking Appellant’s probation and ordering him to pay restitution of $6,785.60 constituted a second disposition of the same petition. In sum, we disagree with the trial court’s determination that jeopardy did not attach once the trial court revoked Appellant’s probation and sentenced him to confinement in a juvenile detention facility simply because some of his ninety-day sentence was deferred. Thus, the trial court was without jurisdiction to enter an amended order revoking Appellant’s probation and setting restitution at $6,785.60. Accordingly, we reverse the order of the trial court and dismiss this matter.

Imber, J., not participating.


author: Robert L. Brown, Justice.

text:
    Deatria Donyell HAMILTON v. STATE of Arkansas
    CR 01-391
    74 S.W.3d 615
    Supreme Court of Arkansas
    Opinion delivered May 9, 2002

      Katherine S. Streett, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Deatria Donyell Hamilton appeals a judgment in which he was convicted of two counts of capital murder and sentenced to two terms of life imprisonment without parole. Hamilton argues five points on appeal, all of which involve alleged trial court error: (1) excusing for cause venire persons who opposed the death penalty under the facts of the case; (2) sustaining the State’s objection and requiring defense counsel to read additional portions of a witness’s statement during cross-examination by defense counsel; (3) admitting into evidence an inaccurate diagram of the crime scene thereby misleading the jury; (4) admitting into evidence a videotape of the crime scene, which contained inflammatory footage of the homicide victims; and (5) denying his motion for declaration of a mistrial after the State’s witnesses made two references to his prior arrest and penitentiary sentence. We find no reversible error and affirm the judgment.

During the early morning hours of December 23, 1999, Carolyn and Starla Ellison discovered the bodies of James Ellison, their husband and father respectively, and Carlos Meeks, at Ellison’s place of business, Leaders Barber Shop, in El Dorado. When the police officers arrived, they discovered that Mr. Meeks, who was still in the barber’s chair and wearing a barber’s apron, had suffered a bullet wound underneath his right eye and one to his right hand. Mr. Ellison’s body was found lying on the floor behind the chair, and it was later determined that he too was shot in the head. Jewelry which Mr. Ellison wore was missing. Both men were dead. Police officers further discovered a bank bag on a table near the chair, which contained several one dollar bills, and bloody footprints leading outside of the shop and southward toward the nearby railroad tracks.

At Hamilton’s trial, Jerome Powell admitted to shooting both Mr. Ellison and Mr. Meeks and described the events of the evening in question. Powell had previously pled guilty to capital murder and had agreed to testify against Hamilton and Kirun Mendenhall in exchange for a sentence of life without parole. He testified that while at the home of friends named the Mendenhalls, he met Hamilton, and the two, with others, proceeded to drink gin and smoke marijuana that evening. At about midnight, Hamilton, Powell, and Kirun Mendenhall were at Leaders Barber Shop, where they decided to “get some money.” Powell testified that Hamilton told him that Mr. Ellison made large amounts of money, which he kept in a bag, and that he also kept a gun. The three entered the store with robbery in mind. Hamilton spoke with Mr. Ellison and then nodded to Powell, which was the signal for Powell to pull his gun. Powell did so and turned around. He testified that the gun accidentally went off, shooting Mr. Meeks through his hand and face. Mr. Ellison then crouched downward, according to Powell, as if going for a gun, and Powell shot him and he fell to the floor. Mendenhall fled the shop, and Hamilton grabbed a briefcase and looked in Mr. Ellison’s front pocket before leaving. All three men then met at the railroad tracks and began running toward the Mendenhall house. On the way, they stopped by an abandoned house, opened the briefcase, and removed a blue pouch which contained money. At some point, they split the money three ways, with each receiving approximately fifty dollars. Next, they burned the briefcase and continued to the Mendenhall house. After reaching the house, Powell and Hamilton discovered specks of blood on their clothing and decided to burn their clothes in the backyard. On December 28, 1999, Powell was arrested for the murders, and during a search of his home, Mr. Ellison’s missing jewelry and a pistol were found in the wheel well of a vehicle on his property. Hamilton was subsequently arrested and gave a statement as had Powell.

A five day trial was held, and Hamilton was convicted and sentenced as already set out in this opinion.

I. Voir Dire.

Hamilton first contends that the trial court erred in excluding venire persons who stated that they could not impose the death penalty for his participation when the actual shooter, Powell, was only to receive a sentence of life without parole. He maintains that the trial court expanded the scope of permissible death qualification for potential jurors, thus denying him due process of law.

The State responds that because Hamilton cannot demonstrate prejudice, his assertion is without merit. Specifically, the State contends that because Hamilton did not receive the death sentence, any argument he might now raise as to the death-qualified composition of his jury is moot. We agree. Hamilton received a sentence of life without parole — not death. Because he did not receive a death sentence, he lacks standing to raise errors having to do with the death penalty. See, e.g., Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991) (citing Ward v. State, 298 Ark. 448, 770 S.W.2d 109 (1989)). We affirm on this point.

II. Out-of-Court Statement.

Hamilton next claims that the trial court erred in allowing the prosecutor to interrupt his counsel’s questioning of State witness Jerome Powell, when his counsel was attempting to impeach Powell with a prior inconsistent statement. He submits that there is no requirement that “any part of the prior statement other than that which the attorney believes to be inconsistent” must be read for impeachment purposes. He further contends that had the prosecutor wished to correct an impression left by the impeachment, he could have taken the matter up on redirect examination. It was clear error, he concludes, for the trial court to require defense counsel to read additional portions of the prior statement into the record which had the effect of heightening the prosecutor’s credibility in the jury’s eyes.

The State answers that Hamilton did not object to the State’s request to have the prior inconsistent statement read in its entirety; thus, the issue is not preserved for our review. Indeed, the State underscores that defense counsel agreed to comply with the prosecutor’s request. The State is correct in that this issue is not preserved for appeal. The contemporaneous-objection rule requires a party’s objection at the trial level in order to preserve an argument for appeal. See Bader v. State, 344 Ark. 241, 40 S.W.3d 738 (2001). The purpose of the contemporaneous-objection rule is to give the trial court a fair opportunity to consider an allegation of error and to correct it, if the allegation is meritorious. See Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002). Here, there was no ruling by the trial court because Hamilton’s counsel failed to object to the prosecutor’s requests. In fact, defense counsel acquiesced to each request by the prosecutor.

We are precluded from addressing this argument on appeal.

III. Diagram.

Hamilton also claims that over his objection, the prosecutor was allowed to introduce a diagram which misrepresented the dimensions of the crime scene. He admits that the jury was cautioned by the trial court on this but asserts that it was only cautioned as to the diagram’s failure to be drawn to scale and not as to the misleading placement of evidence and the positioning of the two bodies. Specifically, he takes issue with the positioning of one of the bodies in relationship to the walls of the shop and the bloody footprints. He argues that the interior of the barber shop was considerably smaller than that depicted by the diagram and that the close quarters lessened the likelihood that Hamilton could move about as described by Powell. Prejudice results, he claims, from the fact that the only direct evidence of what occurred inside the barber shop came from Jerome Powell, a witness with questionable credibility.

This court has held that the admissibility of demonstrative evidence is a matter falling within the wide discretion of the trial court. See Garrison v. State, 319 Ark. 617, 893 S.W.2d 763 (1995). We have said: “[M]aps, drawings, and diagrams illustrating the scenes of a transaction and the relative location of objects, if shown to be reasonably accurate and correct, are admissible in evidence, in order to enable the court or jury to understand and apply the established facts to the particular case.” Howell v. Baskins, 213 Ark. 665, 671, 212 S.W.2d 353, 356 (1948) (quoting 20 Am. Jur. Evidence § 739). Where exactness was not claimed, nor was there any contention that distances indicated were sufficiently at variance with actuality, there is no creation of prejudice. See Pinson v. State, 210 Ark. 56, 194 S.W.2d 190 (1946).

In the case before us, Hamilton objected to the diagram of the interior of the barber shop, but it appears that he received the relief he desired as demonstrated by the following colloquy:

The Court: However, I’ll overrule the objection to State’s Exhibit 2. Do you want a cautionary instruction?
Defense Counsel: Yes.
The Court: [What] would you like me to say?
Defense Counsel: To indicate to the jury that these drawings are not — that the drawing does not necessarily represent where the items are in relation to each other.
The Court: I think that’s a question of scale.
Defense Counsel: Your Honor, I don’t think — that isn’t the question of scale. Scale has to do with — it’s reduced so that it’s — you can determine.
The Court: Obviously it is not to scale nor is it measure proportionate [sic].
Prosecutor: No objection to that.
The Court: What?
Prosecutor: No objection to that.
The Court: Okay.
(Back within hearing of the jury)
The Court: The two schematic diagrams that were prepared at this witness’s direction [sic]. These drawings are not to scale, which means they are not proportionate. And so you need to understand that, as they talk about it that the distances, distances do not necessarily reflect the proportions within that barber shop. Okay?

Detective White testified that the diagram was not to scale, but that it would assist the jury in understanding “exactly the location where the various items were found[.]” Defense counsel, on cross-examination, thoroughly discussed the diagram and the crime scene itself with the witness. The diagram clearly was of assistance to the jury in understanding the testimony regarding the crime scene. See, e.g., Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980). It also had neutral evidentiary value, as it “simply identified locations at the crime scene and imported no implication of guilt” on Hamilton’s part. See e.g., Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994). There was no abuse of discretion by the trial court in admitting the diagram into evidence.

IV. Videotape.

For his next point, Hamilton argues that during the course of the trial, the prosecutor sought to admit a videotape of the crime scene made the day of the murders. He objected on the basis that the videotape’s inflammatory nature was highly prejudicial and was not outweighed by its probative value, given the introduction of numerous crime scene photographs already admitted into evidence. He maintains that as the question for the jury was what role, if any, he played in the underlying felony and robbery, the videotape was not a necessary part of the State’s case.

We addressed the standard for reviewing the admission of an allegedly gruesome videotape in Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997), There, we said:

A videotape is admissible if it is relevant, helpful to the jury, and not prejudicial. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). Generally, the same considerations and requirements for admissibility that apply to photographs also apply to videotapes. Williams v. State, 316 Ark. 694, 874 S.W.2d 369 (1994). The admissibility of such evidence is in the sound discretion of the trial judge, whose discretion will not be set aside absent an abuse of that discretion. Bradford v. State, 306 Ark. 590, 815 S.W.2d 947 (1991).

Jefferson, 328 Ark. at 30, 941 S.W.2d at 408.

In the case before us, Hamilton urges that the still photographs were sufficient to apprise the jury of the crime scene and further that the videotape was cumulative and unnecessary and, thus, constituted prejudicial error. We have held, however, that videotapes can give the jury a different perspective of the crime scene. See Hodge v. State, 332 Ark. 377, 965 S.W.2d 766 (1998); Jefferson v. State, supra; Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997). In doing so, a videotape can be helpful to a jury’s understanding of the case. See Jefferson v. State, supra.

Certainly, the crime scene was bloody and gruesome, but whether the prosecutor overstepped his bounds in the submission of cumulative depictions is a matter that lies within the trial court’s discretion. See Jefferson v. State, supra; Camargo v. State, supra. We hold there was no abuse of discretion on this point.

V. Prior Arrest and Sentence.

For his final point, Hamilton asserts that at two different places in the trial, mention was made of his prior arrest and incarceration. He specifically points to the testimony of Detective White, who responded during cross-examination by defense counsel that Hamilton’s prints were retrieved from a file at the El Dorado police station, and the prosecutor’s direct examination of Office Morgan, who testified that he had known Hamilton “a couple of years ago before he had went to the penitentiary.” Hamilton underscores that at both junctures, he moved for a mistrial, and both times, it was denied. Appellant concludes that it was an abuse of discretion for the trial court to deny the motions.

This court has held that any reference to a defendant’s prior convictions during the guilt phase of a bifurcated criminal trial always results in some prejudice. See Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994). However, in this regard the trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. See Bennett v. State, 284 Ark. 87, 679 S.W.2d 202 (1984). This court generally adheres to the rule that a cautionary instruction or admonishment to the jury can make harmless any prejudice that might occur from an inadvertent reference to a prior conviction. See Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). An important factor in the trial court’s analysis and ours as well is whether the prosecutor deliberately induced a prejudicial response. See id.

Here, Detective White’s reference to the fingerprints was not induced by the prosecutor, and the trial court offered to give a cautionary instruction on the matter. Accordingly, we agree with the State that it was not an abuse of discretion for the trial court to deny the motion for declaration of a mistrial. Moreover we likewise agree that the trial court did not abuse its discretion regarding Office Morgan’s statement. Although some prejudice is typically present where mention of an appellant’s prior incarceration has been made, this court has held that an admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. See Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998). That is precisely the situation in the case at hand. Following Office Morgan’s statement and Hamilton’s objection, the trial court decided to reserve judgment on the motion and gave the following cautionary instruction:

Ladies and gentlemen, we are at a point, we’re going to break for the day. But before we do that I’m going to instruct you that you are to disregard the last statement made by this witness. And you are not to consider it in any way.

The following day, when court reconvened, Hamilton argued that a mistrial was warranted due to the cumulative effect of the statements by Detective White and Office Morgan. The trial court disagreed and decided instead to poll and admonish each jury member individually, after defense counsel submitted the following admonition upon request and without objection by the State:

The Court: Yesterday during the trial the last witness testified that Mr. Hamilton had served time in the penitentiary. Now that you’ve heard that testimony I have to ask you whether or not you can be certain that you will not consider that testimony in any way when determining the defendant’s guilt or innocence. If you cannot be absolutely certain that you will not consider this testimony in any way it is important that you tell us at this time.

No juror responded that he or she would consider the tainted statements.

We affirm the trial court on this point.

VI. Motion

After this case was submitted to this court for decision, Hamilton filed a pro se motion to add a point to his direct appeal. We deny the motion. First, the motion comes too late for our consideration. Moreover, an appellant is entitled as a matter of right to representation by counsel on the direct appeal of a felony conviction. Hamilton is represented by counsel in this appeal. An appellant is not entitled, however, to accept appointment of counsel and also to submit a pro se brief. See Franklin v. State, 327 Ark. 537, 939 S.W.2d 836 (1997) (per curiam).

VII. Rule 4-3 (h) Review

The record has been reviewed pursuant to S.Ct. R. 4-3(h), and no reversible error has been found.

Affirmed. Motion denied.

Imber, J. not participating.


author: ANNABELLE CLINTON IMBER, Justice.

text:
    Romey Luther MILES v. STATE of Arkansas
    CR 00-635
    75 S.W.3d 677
    Supreme Court of Arkansas
    Opinion delivered May 9, 2002

      Edgar R. Thompson, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   ANNABELLE CLINTON IMBER, Justice.

The appellant, Romey Luther Miles, was convicted by a jury of aggravated robbery and kidnapping. He was sentenced as a habitual offender to life imprisonment for aggravated robbery and 480 months for kidnapping, with the sentences to run consecutively. On appeal, Mr. Miles contends that the trial court erred in (1) denying his motion to dismiss on speedy-trial grounds, (2) ruling that he had waived his Miranda rights, and (3) excluding the proferred testimony of a witness on grounds that the testimony was irrelevant. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 1-2 (a) (2). We find no error, and thus affirm.

The charges filed against Mr. Miles were the result of a robbery at the Cobb Cotton Gin in Keo on September 3, 1997. On that date, Samuel Cobb, Kenneth Cole, and Don Compton were present in the office of the gin when three black men armed with pistols entered the office. The robbers struck two of the men, threatened to kill all three of the men, and repeatedly told the victims not to look at them. The assailants restrained the men with duct tape and took their wallets and watches. One of the victims had approximately $700.00 in his wallet. In addition, approximately $700.00 was stolen from the vault in the gin. During the robbery, another man arrived at the gin to repair an air conditioning unit. He was likewise threatened and bound. All the victims were left alive, and, after the robbers left the scene, Mr. Compton managed to get free and call police.

An informant told police that a subject named Romey had committed the robbery. Mr. Cobb and Mr. Cole identified Mr. Miles from a photo line-up. They testified that the robbers were not wearing face coverings when they initially entered the gin’s office and that they saw Mr. Miles’ face before he covered it with a net mask. The victims also testified that one of the assailants was about forty years of age, around 6’ 2” or 6’ 3” in height, and weighed about 250 pounds; whereas, the other two robbers were younger and smaller. The evidence showed that Mr. Miles was almost forty years old, 6’ 4” in height, and weighed 260-270 pounds.

An arrest warrant was issued, and Mr. Miles turned himself in to the Prairie County Sheriffs office on October 4, 1997. Later that day, Lieutenant Franklin Darrell Sturdivant and Detective John Andolina from the Lonoke County Sheriff s Office took Mr. Miles into their custody. Fie was arrested, handcuffed, and transported to the Lonoke County Jail. After Lt. Sturdivant verbally advised him of his Miranda rights in the patrol car, Mr. Miles indicated he did not want to make a statement at that time. By Lt. Sturdivant’s account, he stopped the police car only one time during the trip back to Lonoke at a store in Flickory Plains so that Det. Andolina could retrieve his vehicle. He stated that Mr. Miles did not get out of the car at Hickory Plains. Once they arrived in Lonoke, Lt. Sturdivant read a rights form to Mr. Miles, and then he signed the form. According to the officer, the only statement Mr. Miles made at that time was that Tremell Hood and Carlton Berry were not involved. He admitted that one family member was involved and promised to divulge that name after he spoke to the prosecutor.

On the following Tuesday, October 7, 1997, Mr. Miles indicated to police that he wanted to make a statement. Lt. Sturdivant administered another rights form to Mr. Miles, upon which Mr. Miles initialed each of the statements and signed his name. Lt. Sturdivant testified that Mr. Miles did not ask for an attorney and never attempted to stop the questioning. Only Lt. Sturdivant and Mr. Miles were present during the statement. Mr. Miles was handcuffed and sitting across the table from the lieutenant. Lt. Sturdivant further testified that he did not coerce Mr. Miles or use physical force. During the statement, Mr. Miles admitted to his involvement in the Keo robbery.

According to Mr. Miles’s testimony at trial, Lt. Sturdivant and Det. Andolina had a “bad attitude” when they picked him up on October 4. He testified:

they stopped between Des Arc and Hickory Plains and they asked me about the robbery and I told them I didn’t know nothing about the robbery so they got mad and pulled over on the side of the road, snatched me out the back of the car, handcuffed, and kicked me and whatever and then along come a car was coming by so they slowed down and they seen it was — something was going on. So one of them snatched me by the thumb, snatched me up by the thumb . . . then they throwed me in the car.

Mr. Miles also claimed that the officers read him his rights, but then told him they were not going to give him a lawyer and they would beat him up again if he did not give a statement. He went on to testify that the confession statement which he gave to police three days after the alleged beating was not true and correct, and he indicated that he only gave the statement out of fear. In addition, he testified that he requested and received medical attention for an injury to his thumb while in jail.

Henry Patterson testified that Mr. Miles arrived at his home in Tucker around 2:00 p.m. on the day of the Keo gin robbery. Two other men who appeared to be about seventeen to twenty years old were with Mr. Miles. According to Mr. Patterson, a friend’s nephew informed the group that the police were looking for three men driving a black car who had committed a robbery. At that point, Mr. Miles asked Mr. Patterson if he could get to Pine Bluff on back roads, and the three men left. Mr. Patterson stated that Mr. Miles had a white hair net in his possession at the time.

Clayburn Harris was also at Mr. Patterson’s home on the day of the robbery. He testified that one of the young men with Mr. Miles gave him a black .380 semi-automatic gun and further stated that the gun was wrapped in a white “Tyson” hair net. Mr. Harris told police that he sold the gun to Gregory Evans. Officer Eugene Buder with the Jefferson County Sheriff’s Department later recovered the gun from Mr. Evans.

I. Speedy Trial

For his first point on appeal, Mr. Miles contends that the trial court erred in denying his motion to dismiss. On January 11, 1999, Mr. Miles filed a motion to dismiss the charges against him on speedy-trial grounds. He admits that a docket entry made by the court on March 9, 1998, charges the time from March 19, 1998, through April 9, 1998, to the defendant. However, he contends that there is nothing in the record to charge any time to either him or to the State except for the twenty-two days from March 19 through April 9. Mr. Miles acknowledges that the trial court excluded some “good cause time” for the State, but he argues that the court’s explanation was not adequate.

Arkansas Rules of Criminal Procedure 28.1 and 28.2(a) (2001) require the State to try a defendant within twelve months, excluding any periods of delay authorized by Arkansas Rule of Criminal Procedure 28.3 (2001). Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999). The twelve-month period for bringing an accused to trial begins to run on the date the information is filed, or the date of arrest, whichever occurs first. Jackson v. State, 334 Ark. 406, 976 S.W.2d 370 (1998). See Ark. R. Crim. P. 28.2(a)(2001). The record in this case indicates that Mr. Miles was arrested on October 4, 1997. The original information was filed on October 20, 1997. Thus, the time for bringing Mr. Miles to trial began to run on October 4, 1997. Mr. Miles’ jury trial began 474 days later on January 21, 1999. Once it is shown that a trial was held after the speedy-trial period set out in Rule 28.1 has expired, the State has the burden of showing that any delay was the result of the defendant’s conduct or was otherwise legally justified. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999); McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). Here, the State has the burden of showing that at least 109 days may be properly excluded in order for Mr. Miles to have been timely brought to trial.

Arkansas Rule of Criminal Procedure 28.3 provides which specific time periods shall be excluded in computing the time for trial. Such excludable periods must be set forth by the court in a written order or docket entry, but it shall not be necessary for the court to make the determination until the defendant has moved to enforce his right to a speedy trial. Ark. R. Crim. P. 28.3 (2001).

The only case cited by Mr. Miles under his speedy-trial argument is Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991). Mr. Miles argues that, in both Hicks and the instant case, “the motion was made prior to trial and no order was entered showing the circumstances of any continuance.” The Hicks case, however, is inapposite. In that case, a crowded trial docket caused the continuance. Delays attributable to congested court dockets are dealt with specifically in Ark. R. Crim. P. 28.3(b). There is no suggestion that any period of delay in this case was due to a congested trial docket.

As discussed above, the first period of time excludable for speedy-trial purposes is the period of delay resulting from a continuance granted at the defendant’s request. The period of delay resulting from a continuance granted at the request of the defendant or his counsel is excluded in computing the time for speedy trial. Ark. R. Crim. P. 28.3(c) (2001). The excludable time runs from the date the continuance is granted until a subsequent date contained in the order or docket entry granting the continuance. Ark. R. Crim. P. 28.3(c). In this case, the docket entry reflects that a continuance was granted at the request of the defendant on March 9, 1998. The entry specifically states that the motion is granted and that “time from 3-19-98, through 4-9-98, [is] charged against the defendant.” Mr. Miles acknowledges that the twenty-two days from March 19 through April 9 are properly charged against him. The trial court, in making its calculation of time for speedy-trial purposes, counted only those twenty-two days as specified in the docket. However, the State alleges that the time charged against Mr. Miles began to accumulate on March 9, the date the continuance was granted. Under Rule 28.3(c), the State is correct, and the time charged against Mr. Miles should run from March 9, the date the continuance was granted, until April 9, the subsequent date specified in the docket entry. The excludable period thus totals thirty days rather than twenty-two days as the trial court ruled. This exclusion leaves seventy-nine days which must still be properly excludable in order for this court to affirm the trial court’s denial of Mr. Miles’ motion to dismiss on speedy-trial grounds.

On March 27, 1998, the State moved for a continuance on the basis that the State Crime Laboratory had not completed testing on hair samples taken from Mr. Miles and a co-defendant. The motion asserted that the evidence was material and that the State exercised due diligence in obtaining the hair samples and test results. Pursuant to Ark. R. Crim. P. 28.3(d)(1) (2001), a continuance granted at the request of the prosecuting attorney shall be excluded in computing the time for trial where the continuance is granted because of the unavailability of evidence material to the State’s case when due diligence has been exercised to obtain such evidence and there are reasonable grounds to believe it will be available at a later date. Ark. R. Crim. P. 28.3(d)(1). At the time the State filed its motion for continuance on March 27, 1998, the docket sheet reflects that trial was set for April 9, 1998. The court subsequently entered an order for continuance on June 15, 1998, and made the order effective “nunc pro tunc.” The order states as follows:

On the 27th day of March, 1998, this matter comes to be heard and the same is presented upon the Motion for Continuance for the Plaintiff, State of Arkansas, and from the matters and representations to the Court, the Court finds that the Motion should be granted. It is so ordered.

A nunc pro tunc order may be entered to make the court’s record speak the truth or to show that which actually occurred. Hansberry v. State, 318 Ark. 326, 885 S.W.2d 296 (1994). Based upon the trial court’s entry of the order nunc pro tunc, that is “now for then,” it is clear that the State’s motion for continuance was effectively granted on March 27, 1998.

The State argues that the period from March 27 through June 15 should be excluded from the speedy-trial calculation because of the overlap between the continuance granted to Mr. Miles and the continuance granted to the State. The trial court agreed that the time from March 27 to June 15 was excludable. Under Rule 28.3(d)(1), the period of excludable delay is to be calculated from the date the continuance is granted until the subsequent date contained in the order or docket entry granting the continuance. Ark. R. Crim. P. 28.3(d)(1) (2001). In this case, neither the order granting the State’s continuance nor any docket entry specifically contains a subsequent trial setting. However, this court has previously held that we will uphold excluded periods without a written order or docket entry when the record clearly demonstrates that the delays were attributable to the accused or legally justified and where the reasons were memorialized in the proceedings at the time of the occurrence. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (citing Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996)); Osborn v. State, 340 Ark. 444, 11 S.W.3d 528 (2000). Here, the State’s March 27 motion requested that the court continue the trial scheduled at that time for April 9, 1998, and reset a new trial date at the court’s convenience. Then, at a pretrial hearing on June 8, 1998, the following colloquy occurred:

Court: What about trial settings? It looks like there was a motion for a continuance. So we have a trial setting?
Prosecutor: No, sir, I don’t believe we do.
Defense: Your Honor, I don’t believe it was set. I believe it was set and I think there was a joint motion for continuance at that time, which the court granted, and I don’t believe it was reset. So I would ask for it to be reset at this time.
Court: Then we have a trial setting on September the 17th, 9:00 o’clock in the morning.

This colloquy indicates that, as a result of the State’s motion for continuance, the court set a new trial date of September 17, 1998. The State’s motion for continuance was made under Ark. R. Crim. P. 28.3(d)(1) such that the additional time resulting from the continuance is legally justified and should be excluded in computing the time for trial. Thus, we hold that the period of time from March 27 through September 17 should have been excluded in accordance with Ark. R. Crim. P. 28.3(d)(1). As thirteen of those days have already been properly charged to the defendant, the 160 days from April 10 through September 17 should have been properly excluded in counting the time for speedy-trial purposes. The proper exclusion of 190 days means that Mr. Miles was tried well within the allotted twelve-month time period. As a result, it is not necessary for us to further discuss any other potentially excludable time periods.

II. Waiver of Miranda Rights

For his second point on appeal, Mr. Miles argues that he never waived his rights under Miranda. Mr. Miles acknowledges that he was offered several “Statement of Rights” forms which “very carefully recite [d] each of a number of rights and describe[d] to the defendant what those rights are.” He admits that he initialed each one of the rights and signed his name to the forms. The forms advised him of his rights, including the right to remain silent and the right to have an attorney present. Mr. Miles nonetheless argues that knowing what a right is does not equate to a waiver of that right, and, thus, he did not knowingly and intelligently waive any of those rights. Confessions made in police custody are presumed involuntary and the burden is on the State to prove such confessions were voluntary and that any waiver of Miranda rights was knowingly and intelligently made. Diemer v. State, 340 Ark. 223, 9 S.W.3d 490 (2000); Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999). This proof must be by a preponderance of the evidence. Id.

Lt. Sturdivant testified that he approached Mr. Miles on October 7, 1997, to inform him that someone from the prosecutor’s office was going to make an effort to speak with him. According to Lt. Sturdivant, Mr. Miles then began making a statement to him without anyone from the prosecutor’s office present. Lt. Sturdivant stopped Mr. Miles and again read him a Statement of Rights form. Mr. Miles initialed each statement on the form, signed the form, and then proceeded to give a recorded statement to Lt. Sturdivant. The last sentence of the form signed by Mr. Miles read: “[Y]ou may waive the right to advice of counsel and your right to remain silent, and you may answer questions or make a statement without consulting a lawyer if you so desire.” The response to that statement is “yes,” and is initialed “RM.” The trial court ruled that Mr. Miles’ written response of “yes” and his initials beside the last sentence on the form constituted a waiver of his rights.

Mr. Miles seems to argue that an accused can only waive his rights by expressly doing so in writing. However, Mr. Miles offers no authority to support such a proposition, and we know of none. In fact, this court has expressly held that a form containing an express waiver provision is not a prerequisite to a finding of a knowing and intelligent waiver. Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999) (citing Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997)). An accused may impliedly waive his right to remain silent merely by answering questions. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). In this case, Mr. Miles indicated that he wanted to make a statement, Lt. Sturdivant read him his Miranda rights, he signed a statement-of-rights form, and he proceeded to make a statement. It is undisputed that Mr. Miles was informed of his rights and that he understood them. We cannot say the trial court was clearly erroneous in ruling that Mr. Miles knowingly and intelligently waived his Miranda rights.

III. Proffered Testimony of Witness

Finally, Mr. Miles argues that he should have been allowed to call a witness to corroborate his assertion that he was beaten by Lt. Sturdivant and Det. Andolina on the side of the road between Des Arc and Lonoke. Irma Brodis was to testify that she had seen a police car stopped along the road between Des Arc and Lonoke with a black man in the back. The trial court refused to allow the testimony, ruling that it was irrelevant because Ms. Brodis could not testify that the man she saw was Mr. Miles. Mr. Miles proffered the testimony of Ms. Brodis. .

In the proffer, Ms. Brodis stated that she and her sister were driving on the highway between Des Arc and Cabot when they saw a police car stopped on the side of the road. They saw a black man in the back seat of the car and two officers standing on the side of the road. Ms. Brodis could not identify the officers, and she testified that she did not see any contact between the man in custody and the officers. In addition, she did not know the day on which she saw the car, though she knew it was in 1997. She stated that the man in the back seat of the car looked like Mr. Miles, but admitted that she was driving by at fifty-five miles per hour and could not positively identify the man in the back of the car.

Mr. Miles contends on appeal that Ms. Brodis’s testimony should have been allowed as it was relevant to corroborate his claim that the officers beat him along the side of the road. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401 (2001). A trial court’s ruling on relevancy is entitled to great weight and will not be reversed absent an abuse of discretion. Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997).

This court cannot say the trial court abused its discretion in ruling that the testimony of Ms. Brodis was irrelevant and inadmissible. Ms. Brodis did not know the date on which she saw the police car, she could not identify the officers she saw, and she could not positively identify the man in the back of the car as Mr. Miles. In addition, Ms. Brodis could not testify to seeing any contact between the officers and Mr. Miles. Thus, we affirm the trial court’s ruling. '

III. Arkansas Supreme Court Rule 4-3 (h)

The transcript of the record in this case has been reviewed in accordance with our Rule 4-3(h) which requires, in cases in which there is a sentence to life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a). None have been found.

Affirmed.

       Mr. Miles argues that the motion to dismiss should be decided by this court as the docket existed on the date the trial court considered the matter, and points out that a copy of the docket as it existed on that date is attached to his original motion in the record. No authority is cited to support this argument. In any event, compliance with such a request would not change the outcome of the case.

       Rule 28.3(b) requires the trial court to make certain findings in a written order or docket entry at the time the continuance is granted. The trial court must explain with particularity the reasons the trial docket does not permit trial on the date originally scheduled. Ark. R. Crim. P. 28.3(b)(1). The trial court must also determine that the delay will not prejudice the defendant, and it must schedule the trial on the next available date permitted by the trial docket. Ark. R. Crim. P. 28.3(b)(2)-(b)(3).

       On appeal, Mr. Miles does not challenge the State’s assertion in the motion that it exercised due diligence.


author: RAY THORNTON, Justice.

text:
    Kathleen A. CLAYBORN and Meranda F. Clayborn, A Minor v. BANKERS STANDARD INSURANCE COMPANY
    01-1225
    75 S.W.3d 174
    Supreme Court of Arkansas
    Opinion delivered May 9, 2002
    [Petition for rehearing denied June 20, 2002]

      Rush, Rush & Cook, by: David L. Rush, for appellant.

      Ledbetter, Cogbill, Arnold & Harrison, LLP, by: E. Diane Graham and Rebecca D. Hattabaugh, for appellee.

       Imber, J., not participating.

   RAY THORNTON, Justice.

Justice. Appellant, Kathleen Clayborn, as mother and next friend of Meranda F. Clayborn, a minor, appeals the September 14, 2001, order of the Johnson County Circuit Court, granting appellee Bankers Standard Insurance Company’s (“Bankers”) motion to dismiss and certifying the case for appeal pursuant to Ark. R. Civ. P. 54(b). Appellant’s sole point on appeal is that the trial court erred in granting Bankers’s motion to dismiss on the grounds that the direct-action statute, which is codified at Ark. Code Ann. § 23-79-210 (Repl. 1999), was not available to her and that Ark. Code Ann. § 16-120-103 (Supp. 2001) precludes a direct action against Bankers, the liability carrier for Forrester-Davis Development Center, Inc. (“Forrester-Davis”), an Arkansas nonprofit corporation. We affirm.

Linda Whitson was an employee of Forrester-Davis. On July 6, 2000, Ms. Whitson drove a 1997 Dodge 3500 van owned by Forrester-Davis to appellant’s residence to pick up two of appellant’s children in order to transport them to Forrester-Davis’s facility. Appellant brought two of her children out of the house and placed them in the van and secured them. Ms. Whitson then placed the van in reverse in order to back it up. Meanwhile, appellant’s third child, Meranda, who was approximately twenty-one months old, had moved to the rear of the van. Meranda was run over by Ms. Whitson, causing serious injuries to the child.

On March 16, 2001, appellant filed a direct-action complaint against Bankers, the insurer of Forrester-Davis, seeking damages for various acts of alleged negligence of Forrester-Davis’s employee, Ms. Whitson. On June 1, 2001, appellant filed her first amended complaint, alleging an additional act of negligence of Ms. Whitson and additional theories for the imposition of damages. On June 14, 2001, Bankers filed a motion to dismiss appellant’s complaint pursuant to Ark. R. Civ. P. 12(b)(6) for failure to state facts upon which relief may be granted and further urging that Bankers is not a proper party to the suit. On June 28, 2001, appellant filed her second amended complaint, in which she named Forrester-Davis and Ms. Whitson as additional defendants. Bankers, Forrester-Davis, and Ms. Whitson each filed answers to the second amended complaint, and Bankers renewed its motion to dismiss. On September 10, 2001, appellant moved for a voluntary dismissal without prejudice of her claims against Ms. Whitson and Forrester-Davis, pursuant to Ark. R. Civ. P. 41. On September 11, 2001, the trial court issued an order granting appellant’s motion for a nonsuit. Thereafter, on September 14, 2001, the trial court issued a final judgment (1) granting Bankers’s motion to dismiss on the grounds that a direct cause of action against Bankers is not allowed under Ark. Code Ann. § 23-79-210 because Ark. Code Ann. § 16-120-103 does not grant immunity from suit in tort to Forrester-Davis or its employees, but provides immunity only to persons serving on the board of directors, and (2) certifying the case for appeal pursuant to Ark. R. Civ. P. 54(b). It is from this order that appellant brings this appeal.

We have outlined our standard of review of motions to dismiss under Ark. R. Civ. P. 12(b)(6) on numerous occasions. In reviewing the trial court’s decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Martin v. Equitable Life Assurance Soc’y, 344 Ark. 177, 40 S.W.3d 733 (2001). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.; Ark. R. Civ. P. 8(a). We look to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Country Corner Food & Drug, Inc. v. First State Bank & Trust Co., 332 Ark. 645, 966 S.W.2d 894 (1998).

This case also presents us with a matter of statutory interpretation. We outlined our well-settled rules of statutory construction in Faulkner v. Arkansas Children’s Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002), where we stated:

We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Fewell v. Pickens, 346 Ark. 246, 57 S.W.3d 144 (2001); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001); Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). Where the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Stephens, supra (citing State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994)). Finally, the ultimate rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).

Faulkner, supra.

With this standard of review in mind, we now turn to the point on appeal. Appellant argues that the trial court erred in granting appellee’s motion to dismiss on the grounds that the direct-action statute, which is codified at Ark. Code Ann. § 23-79-210, was not available to her.

The direct-action statute is codified at Ark. Code Ann. § 23-79-210 and provides in pertinent part:

23-79-210. Direct cause of action against liability insurer where insured not subject to tort suit.
(a)(1) When liability insurance is carried by any cooperative nonprofit corporation, association, or organization, or by any municipality, agency, or subdivision of a municipality, or of the state, or by any improvement district or school district, or by any other organization or association of any kind or character and not subject to suit for tort, and if any person, firm, or corporation suffers injury or damage to person or property on account of the negligence or wrongful conduct of the organization, association, municipality or subdivision, its servants, agents, or employees acting within the scope of their employment or agency, then the person, firm, or corporation so injured or damaged shall have a direct cause of action against the insurer with which the liability insurance is carried to the extent of the amounts provided for in the insurance policy as would ordinarily be paid under the terms of the policy.
(2) The insurer shall be directly liable to the injured person, firm, or corporation for damages to the extent of the coverage in the liability insurance policy, and the plaintiff may proceed directly against the insurer regardless of the fact that the actual tortfeasor may not be sued under the laws of the state.

Ark. Code Ann. § 23-79-210(a) (emphasis added).

The tort liability immunity statute is codified at Ark. Code Ann. §§ 16-120-101 — 16-120-401 (Supp. 2001). Ark. Code Ann. § 16-120-101 provides:

The General Assembly has determined that nonprofit corporations serve important functions in providing services and assistance to persons in the state and that, in order for these nonprofit corporations to function effectively, persons serving on the board of directors should not be subject to vicarious liability for the negligence of corporate employees or other directors. The General Assembly has further determined that potential exposure to vicarious liability has a detrimental effect on the participation of persons as directors of nonprofit corporations and that providing immunity to directors of those corporations for certain types of liability will be in the best interest of the state and that the same immunity should be extended to members of governing bodies of governmental entities.

Id.

Ark. Code Ann. § 16-120-103 provides in pertinent part:

(a) The immunity provided by this chapter shall not extend to acts or omissions of directors of nonprofit corporations or members of boards, commissions, agencies, authorities, or other governing bodies of any governmental entity which constitute ordinary or gross negligence personal to the director or member or to intentional torts committed by a director or member.
(c) Nothing in this chapter shall be construed to limit the liability of a nonprofit corporate entity itself for damages resulting from any negligent act or omission of any employee of the nonprofit corporation.

Id. (emphasis added).

Appellant argues that Ark. Code Ann. § 23-79-210 is applicable to the facts of the present case because the following elements set forth in Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996) are satisfied: (1) liability insurance must be carried by a nonprofit corporation; (2) a person must suffer injury or damage on account of negligence or wrongful conduct; and (3) the damage or injury must be on account of the negligence or wrongful conduct of “servants, agents, or employees” of the nonprofit corporation acting within the scope of their agency or employment. See id. We disagree.

In Rogers, we did not include the element “and not subject to suit in tort” among the elements that must be established for Ark. Code Ann. § 23-79-210 to apply. However, we note that in Rogers, we were not faced with the issue of whether a nonprofit corporation is subject to suit for tort, as we are now. We have more recently construed Ark. Code Ann. § 23-79-210 in Smith v. Rogers Group, Inc., 348 Ark. 241, 72 S.W.3d 450 (2002). We concluded in Smith, supra, that Ark. Code Ann. § 23-79-210 only provides for direct actions against an insurer in the event that the organization at fault is immune from suit in tort. Id. We also noted' the distinction between immunity from suit and immunity from liability. We stated that the immunity from suit is the entitlement not to stand trial, while immunity from liability is a mere defense to a suit. Smith, supra (citing Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987)).

Applying this construction of the statute to the facts of the present case, we conclude that Ark. Code Ann. § 23-79-210 is not applicable to the circumstances of this case because there is nothing in the pleadings to show that Forrester-Davis is a nonprofit corporation that is immune from suit in tort. Because no showing is made of such alleged immunity, appellant is precluded from bringing a direct action against Forrester-Davis’s insurer, Bankers. It is not controverted that Forrester-Davis is a nonprofit corporation, but no authority has been cited to us, and we know of none, that holds that all nonprofit corporations, by virtue of their status as nonprofit corporations, are immune from suit for tort. We are not aware of any case law holding that nonprofit corporations are ipso facto immune from suit. To the contrary, our statutes provide that nonprofit corporations generally have the power to sue and be sued. Ark. Code Ann. § 4-33-302 (Repl. 2001) of the Arkansas Nonprofit Corporation Act provides in pertinent part:

4-33-302. General powers.
Unless its articles of incorporation provide otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its affairs, including, without limitation, power:
(1) to sue and be sued, complain and defend in its corporate names[. ]

Id. (emphasis added). In addition, Ark. Code Ann. § 16-120-103 provides that the tort liability immunity statute shall not be construed to limit the liability of the nonprofit corporate entity itself for damages as a result of the torts of its employees. See Ark. Code Ann. § 16-120-103. Had the Legislature intended to provide nonprofit corporations immunity from both suit and liability, as it provided to various governmental entities in Ark. Code Ann. § 21-9-301 (Supp. 2001), it could have done so, but it did not. Finally, appellant did not plead facts to suggest that ForresterDavis is a nonprofit corporation that would be immune from suit.

Appellant also argues that Forrester-Davis is a charitable organization and is therefore not subject to suit for tort, and thus, she should be permitted to bring a direct action against Bankers pursuant to Ark. Code Ann. § 23-79-210. However, we note that no allegations of fact were made in the pleadings that ForresterDavis is or claimed to be a charitable organization. Our standard of review of this case is of the trial court’s grant of Bankers’s motion to dismiss, and, thus, ’ our review is limited to the facts alleged in the pleadings. Because there was no allegation in the pleadings that Forrester-Davis is a charitable organization, we conclude that the trial court did not err when it determined that Ark. Code Ann. § 23-79-210 is inapplicable to the facts of the present case.

However, we note that appellant’s argument that Forrester-Davis is not subject to suit for tort because it is a charitable organization is meritless for another reason. We have never said that charitable organizations are altogether immune from suit. While we affirmed the trial court’s dismissal of a case on the ground that the charitable organization was immune from liability in George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999), no argument was raised in that case that a charitable organization is not subject to suit for tort, as was argued in the present case. We have repeatedly stated that the property of a charity cannot be sold under execution issued on a judgment rendered for the nonfeasance, misfeasance, or malfeasance of its agents or trustees. See, eg., Fordyce & McKee v. Woman’s Christian Nat’l Library Ass’n, 79 Ark. 550, 96 S.W. 155 (1906) (emphasis added). We have also recognized that the charitable-immunity doctrine as promulgated in Fordyce and its progeny has become a rule of property. See Williams v. Jefferson Hosp. Ass’n, 246 Ark. 1231, 442 S.W.2d 243 (1969) (citing Helton v. Sisters of Mercy, 234 Ark. 76, 351 S.W.2d 129 (1961); Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 S.W.2d 529 (1957); Fordyce, supra). In addition, we stated in Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953), “Judge Rose, [in Fordyce], commented on the statutory authority for suit, drawing a distinction between the right to sue and the power to execute in satisfaction of the judgment.” Croswell, supra (citing Fordyce, supra). Our analysis indicates that a charitable organization may have suit brought against it and may have a judgment entered against it, but such judgment may not be executed against the property of the charity. We conclude that even if facts had been pled to allege that Forrester-Davis is a charitable organization, we would nevertheless affirm the trial court’s finding that Ark. Code Ann. § 23-79-210 does not apply because we have never held that charitable organizations are completely immune from suit, but rather, we have only held that they are immune from execution against their property.

Affirmed.

Imber, J., not participating.

       Ark. Code Ann. § 21-9-301 provides:
      It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance. No tort action shall lie against any such political subdivision because of the acts of its agents and employees.

        Id. (emphasis added).


author: JIM HANNAH, Justice.

text:
    Crystal LUEBBERS, Teresa Ballard, Kenisha Bryant, and Cheryl King v. ADVANCE AMERICA, CASH ADVANCE CENTERS OF ARKANSAS, INC.
    01-1182
    74 S.W.3d 608
    Supreme Court of Arkansas
    Opinion delivered May 9, 2002
    [Petition for rehearing denied June 13, 2002]

      The Nixon Law Firm, by: David G. Nixon and Paige E. Young, for appellants.

      Bowman and Brooke LLP, by: Robert M. Buell and Charles K. Seyfarth; Wright, Lindsey & Jennings LLP, by: Claire Shows Hancock, for appellee Advance America, Cash Advance Ctrs. of Ark., Inc.

      Morgan & Turner, by: Todd Turner, for appellee Phyllis Garrett.

       Glaze, J., not partipating.

   JIM HANNAH, Justice.

Appellants Crystal Luebbers, Teresa Ballard, Kenisha Bryant, and Cheryl King appeal the Clark County Circuit Court’s order requiring them to post a $750,000 bond to stay the execution of a court-approved settlement between members of a class, to which appellants belong, and Appellee Advance America Cash Advance Centers of Arkansas, Inc. (Advance America).

This limited appeal is part of a larger class-action lawsuit between a class of approximately 19,000 members and Advance America, a check-cashing company. Appellants here are class members of the plaintiff class. Appellee Phyllis Garrett is a designated representative of the class. On July 18, 2001, the circuit court approved a settlement agreement between Advance America and the class through its representatives. Appellants disapproved of this settlement agreement, and their disapproval has spawned several appeals.

Appellants first filed a motion to intervene as separate parties in the class action, after the settlement was struck. The circuit court denied this motion. The appellants filed their first notice of appeal from this denial on August 10, 2001. This appeal was docketed as CA 01-1218. Appellants lodged a partial record in connection with this appeal.

Also on August 10, 2001, appellants filed a second notice of appeal,, appealing the circuit court’s order approving the settlement agreement. This appeal was docketed as CA 01-1190. On November 2, 2001, appellants lodged a complete record of proceedings with this court for this second appeal.

In response to the two notices of appeal filed on August 10, 2001, the class representatives filed a motion for appellants to post a supersedeas bond. The circuit court ordered a hearing on the matter for September 5, 2001, and on September 11, 2001, the circuit court granted the motion to post bond and ordered the appellants to post the bond in the amount of $750,000. On September 20, 2001, appellants filed a third notice of appeal seeking appellate review of the bond requirement. This appeal is docketed as CA 01-1182. Appellants lodged a partial record for this third appeal. This is the subject of this current appeal before the court.

On October 3, 2001, the class representatives filed a motion to strike the September 20, 2001, notice of appeal in CA 01-1182, which dealt with the appeal of the order to post a supersedeas bond. On November 2, 2001, the class representatives filed a motion to show cause why the appellants here should not be held in contempt for failing to comply with the circuit court’s order to post bond. The motion to strike and the contempt issue were set for hearing in the trial court on December 10, 2001. On December 5, 2001, the December 10, 2001, hearing was temporarily stayed by this court pending our decision on the appellants’ petition for writ of prohibition requesting this court to prohibit the trial court from striking their notice of appeal from the settlement-approval order. We granted the appellants’ petition for writ of prohibition on December 13, 2001.

On November 13, 2001, the appellants filed a petition for writ of prohibition or for certiorari to bar the circuit court from requiring a supersedeas bond. This petition was docketed as 01-1251. Three days later, on November 16, 2001, the appellants filed a second petition for writ of prohibition to bar the circuit court from striking their notice of appeal. This petition was docketed as 01-1268. On December 13, 2001, this court denied the appellants’s petition for writ of certiorari to bar the circuit court from requiring a supersedeas bond, holding that because the circuit court’s order to post the bond was entered prior to the filing of the appeals, the circuit court still maintained jurisdiction to enter such order. As such, this court determined that the record on its face did not indicate that the trial court was “wholly without jurisdiction,” and a writ of certiorari was improper. This decision, however, did not reach the merits at to whether the circuit court could require appellants to post such a bond, the issue that is before us now. Also on December 13, 2001, this court granted the appellants’s petition for writ of prohibition to prohibit the circuit court from dismissing their appeal from the circuit court’s order approving the settlement. We determined that dismissal of an appeal is not a proper matter for the trial court, and the circuit court no longer had jurisdiction to act on the motion to dismiss because the records had been filed in the appeals.

Appellants now ask us to determine whether the trial court erred in granting the class representative’s motion to require appellants to post a supersedeas bond for a stay pending their appeal of the underlying orders approving the class-action settlement and denying appellants’s motion to intervene.

On appeal, the appellants make three arguments. First, they argue that the trial court did not have the authority under Arkansas Rule of Civil Procedure 62(d) and Arkansas Rule of Appellate Procedure — Civil 8 to order them to post a supersedeas bond when they had not requested a stay pending appeal of the trial court’s order approving the settlement between the class and Advance America. They note that we have no cases directly on point, but several federal courts have addressed this exact issue under Federal Rule of Civil Procedure 62(d) and have held that the trial court cannot require the posting of a bond when no stay has been requested. Second, appellants argue that the trial court cannot maintain a contempt action against them for failure to comply with the court’s order to post the bond because the bond requirement may only follow the request of a stay, and no party has requested a stay in this action. Therefore, failure to comply with the posting order also cannot be reached. Third, appellants argue that if this court determines that the trial court acted within its authority to require the bond, the trial court abused its discretion in this case in ordering them to post a bond for $750,000. The appellants assert that they do not have the means to post that much for a bond, as evidenced by the fact that they were part of a class of people who had to get payday advances from Advance America, resulting in this action in the first place. They argue that requiring a bond here would, in effect, be a denial of due process to people who cannot afford to appeal if the bond is required.

Advance America argues in response first that the trial court had the authority to order the appellants to post the supersedeas bond because the trial court retained jurisdiction since the record had not yet been lodged in the underlying appeal. It also asserts that these same arguments were made in the appellants’s petition for writ of prohibition, and that this court denied the arguments then. Second, Advance America asserts that the trial court can hold appellants in contempt for failing to comply with an order of the court. Absent a supersedeas, a trial court retains jurisdiction to enforce its orders, and no supersedeas was filed here. Third, Advance America argues that the trial court did not err in requiring the appellants to post a bond because courts determine on a case-by-case basis the extent to which a judgment is in jeopardy and require sufficient security to protect that judgment. Fourth, Advance America argues that the appellants’s appeal is premature because an order to post bond is not a final appealable order from which an appeal may be had. The trial court is still considering the matter after it held a show-cause hearing on January 14, 2002, and there is no indication as to whether the court will require, through a contempt order, the bond to be posted. Finally, Advance America argues that the appellants lack standing here because they have not been aggrieved by the order because they have not posted the bond to date. The class representative, too, filed a brief, arguing essentially the same matters as did Advance America in its points on appeal.

In looking at the merits of this issue, we determine that appellants do not have standing to appeal this issue because they are not parties who may take independent action in the underlying class action. Rather, they are class-member objectors at this juncture. Their motion to intervene was denied by the trial court, and unless this court reverses that order in that upcoming appeal, appellants will not be independent parties to this class action.

We are cognizant of the fact that in the class action, they are members of the plaintiff class. However, the general rule is that class members lack standing to appeal a decision approved by the class representatives. Haberman v. Lisle, 317 Ark. 600, 884 S.W.2d 262 (1994) (citing Croyden Assoc. v. Alleco, Inc., 969 F.2d 675 (8th Cir. 1992)). However, in Haberman we stated:

We point out, though, that an unsatisfied class member is not without alternatives. An unsatisfied class member’s options are to move to intervene as of right, collaterally attack the settlement approval by filing a separate suit challenging the adequacy of the class representation, or he may opt out. See Croyden, 969 F.2d 675, 678. The rationale of the class action is to render manageable litigation involving numerous class members who would otherwise all have access to court via individual lawsuits. As was emphasized in Croyden, if each dissatisfied class member could appeal individually, litigation would be uncontrollable, and the purpose of class actions would be defeated.

Haberman, 318 Ark. at 180. Here, appellants did not opt out, nor did they file a lawsuit to challenge the adequacy of the class representation. Therefore, their only recourse was to attempt to intervene, which they have tried to do. The trial court, however, denied this motion, and appellants have appealed that decision, which they may do. See Cupples Farms Partner v. Forrest City Prod. Credit, 310 Ark. 597, 839 S.W.2d 187 (1992). However, until their intervention issue is decided, the appellants are not independent parties to this action, other than as class-member objectors who have no right to independently appeal the class settlement. Therefore, it follows that the appellants are not “parties” to the class-action proceeding and, as such, cannot appeal a ruling by the trial court on an order to post a bond. Because we dismiss this appeal due to the appellants’s lack of standing, we do not reach any other issues in this appeal.

Appeal dismissed.

Glaze, J., not participating.

       Although Crystal Luebbers is named as an appellant in this action, the trial court granted her motion to withdraw as a party of record in this matter on December 5, 2001.

      ' The Eighth Circuit Court of Appeals in Croyden, supra, determined that unnamed class members who object to a settlement must move to intervene, and they will be denied standing to appeal if they have not done so. Croyden relies in part on Marino v. Ortiz, 484 U.S. 301 (1988), in which the Supreme Court held that settlement objectors who were not class members, but who would have been affected by the settlement, could not appeal from the settlement order because they had not intervened and, thus, were not parties to the action. Croyden and Guthrie v. Evans, 815 F.2d 626 (11th Cir. 1987), in particular, have extended Marino’s holding to apply to unnamed class members who have yet to successfully intervene, such as the appellants here.


author: PER CURIAM.

text:
    Carl Gene McGHEE v. STATE of Arkansas
    CR 02-353
    74 S.W.3d 627
    Supreme Court of Arkansas
    Opinion delivered May 9, 2002

      Scott Adams, for appellant.
    No response.
   PER CURIAM.

On May 6, 1999, movant Carl Gene McGhee was convicted of various drug offenses. On May 25, 1999, his attorney retained for his appeal, Scott Adams, filed a notice of appeal. Three extensions of time were then granted for filing the record, with the ultimate deadline for filing the record being September 30, 1999. McGhee’s record was tendered for filing on October 4, 1999. The Supreme Court clerk refused to file the record because it was late. No motion for rule on clerk was filed on McGhee’s behalf. On December 20, 1999, the record was returned to McGhee’s counsel, Scott Adams. Nothing further apparently was done on the matter.

On April 11, 2002, McGhee with new counsel filed a motion for Belated Appeal or motion for Rule on Clerk and tendered a record for his appeal for a second time. His new counsel argues on McGhee’s behalf that though the record was not timely filed under Ark. R. App. P. — Crim. 2(e), this court should allow a belated appeal or lodging of the late record because McGhee was unaware his record had not been timely filed. McGhee files an affidavit in support of his contention.

We remand this matter to the trial court to determine why the record was not timely filed and why a motion for rule on clerk was not pursued. We are further interested in learning why nothing has been done on this appeal by counsel, Scott Adams, for two and a half years. When we receive the trial court’s findings, we will decide the motion pending before us.


text:
    OAKWOOD HOMES CORPORATION; Oakwood Mobile Homes, Inc.; Oakwood Acceptance Corporation; Schult Mobile Homes; American Bankers Insurance Group; Assurant Group; and Fortis Incorporated v. Joseph and Sheila WOODALL; Cecil, Kevin, and Dixie Abbott; John and Joetta Tatum; Terry and Deborah Burkholder; and Joseph Combs
    02-349
    74 S.W.3d 626
    Supreme Court of Arkansas
    Opinion delivered May 9, 2002

      Wright, Lindsey & Jennings LLP, by: Roger D. Rowe and Stephen R. Lancaster, for appellants Oakwood Homes Corporation; Oakwood Mobile Homes, Inc.; Oakwood Acceptance Corporation; and Schult Mobile Homes.

      Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Byron Freeland and Derrick W. Smith, for appellants American Bankers Insurance Company of Florida; Amerian Bankers Insurance Group; Assurant Group; and Fortis Incorporated.

      Cauley Geller Bowman & Coates, LLP, by: Steven E. Cauley, Curtis L. Bowman, and Gina M. Cothern; Curtis Rickard; Niblock Law Firm, by: George H. Niblock and Raymond L. Niblock, for appellees.
   PER CURIAM.

Pending before this court are two motions to stay trial court proceedings pending appeal. At issue in the underlying litigation is class certification of a group of mobile home buyers. One motion is filed by appellants Oakwood Homes Corporation, Oakwood Mobile Homes, Inc., Oakwood Acceptance Corporation, and Schult Mobile Homes (“Oak-wood”). The second motion is filed by appellants American Bankers Insurance Group, Assurant Group, and Fortis Incorporated (“American Bankers”). Both Oakwood Homes and American Bankers contend that because their appeals concern whether the trial court erred in refusing to compel arbitration agreements of potential class members, that issue needs to be resolved on appeal before appellees Joseph and Sheila Woodall and others can pursue class certification and discovery on the merits of their lawsuit.

This court is well aware of the policy favoring arbitration in this state and the right to an interlocutory appeal under the Arkansas Arbitration Act. See Ark. Code Ann. § 16-108-219(a)(l) (1987); Ark. Rule App. P. — Civil 2(a)(12). We are also cognizant of Ark. Code Ann. § 16-108-202(d), which reads:

(d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section, or, if the issue is severable, the stay may be with respect thereto only. When the application is made in the action or proceeding, the action for arbitration shall include the stay.

This court has stayed trial court proceedings in the past when an appeal is pending on the failure to compel arbitration. See, e.g., The Money Place, LLC v. Barnes, 01-1361, Motion for Stay of Trial Court Proceedings Pending Interlocutory Appeal, granted. (April 4, 2002). However, we are advised that this case may involve disparate classes in that certain potential class members may not have entered into arbitration agreements and certain potential members may not have purchased insurance from American Bankers. The question has also been raised as to whether a supersedeas bond required under Ark. R. Civ. P. 8 is required pending this interlocutory appeal? The motions to stay trial proceedings pending the arbitration appeal apparently were not presented to the trial court for resolution.

We conclude that this is a matter for the trial court to address. Accordingly, we remand for the trial court to determine whether a stay of trial court proceedings should be granted, and if so, whether a supersedeas bond is required.

Remanded.