author: Andree Layton Roaf, Justice.

text:
    THOMSON NEWSPAPER PUBLISHING, INC., d/b/a Northwest Arkansas Times, and S. D. “Dave” Stokes, Individually and as Publisher of Northwest Arkansas Times v. Dan COODY
    94-908
    896 S.W.2d 897
    Supreme Court of Arkansas
    Opinion delivered May 8, 1995
    [Rehearing denied June 12, 1995.]

      Warner & Smith, by; G. Alan Wooten and J. Randall McGinnis, for appellants.

      Rose & Van Winkle, by: Jim Rose III and John Van Winkle', and John J. Watkins, for appellee.

      Williams & Anderson, by: John E. Tull III and Katharine R. Cloud, for amicus curiae Arkansas Press Association.
   Andree Layton Roaf, Justice.

This appeal involves a libel action filed by appellee Dan Coody against the appellants, Thomson Newspaper Publishing, Inc., d/b/a Northwest Arkansas Times (Times), and S. D. “Dave” Stokes, individually and as publisher of the Times. A jury awarded Dan Coody $275,000.00 in compensatory and punitive damages. Appellants raise four points for our review: (1) appellee failed to submit any evidence of libel upon which the jury could base a verdict for appellee; (2) appellee failed to prove actual malice on the part of the appellants by clear and convincing evidence; (3) the trial court erred in allowing evidence of common law malice on the issue of constitutional malice; and (4) the trial court erred in allowing an award of compensatory damages to appellee based upon insufficient and speculative evidence. We hold that the evidence was insufficient to support a finding of actual malice and the judgment is accordingly reversed.

FACTS

Dan Coody and his spouse, Deborah, relocated to Fayette-ville from Texas in 1987. The Coodys had been self-employed home builders in Texas and engaged in home remodeling and carpentry work after moving to Fayetteville. In November 1990, Coody was elected to a four-year term on the City Board of Directors of Fayetteville. Prior to his election, Coody had a strong interest in historical preservation and environmental issues and actively opposed such measures as the location of a bar next to an elementary school. After his election, he opposed the development of a new regional airport in the Bentonville area. In May 1992, Fayetteville voted to change its form of government from city manager to mayor-alderman effective January 1, 1993, and an election was to be held in November 1992 for the new mayoral and aldermanic positions.

Coody announced his decision to run for the position of mayor in August 1992. At the time of his announcement, appellant Dave Stokes was the publisher of the Times and had come to Fayetteville in September 1991 to assume this position. Coody had been openly critical of the Times and Stokes in the months prior to the election, questioning the paper’s journalistic integrity and objectivity, and criticizing the relationship between Stokes and the local Chamber of Commerce. Coody had also attempted to divert the city’s legal advertising away from the Times to a competing area newspaper.

During his campaign for mayor, Coody began hearing rumors that he was secretive about his past prior to moving to Fayetteville, because he had been involved in criminal activities while in Texas. The rumored activities varied from armed robbery, writing hot checks, and conviction for a drug offense. It was also rumored that Coody was abusive to women. Coody paid a visit to Stokes’ office in late September 1992 to inquire if Stokes had heard the rumors and to deny that he had ever been in trouble with the law. Stokes acknowledged hearing the rumors. Coody’s offer to provide Stokes with information to repudiate the rumors was declined. Stokes stated that “[w]e have ways of finding these things out.”

In late September, Coody wrote the Texas Department of Public Safety and the Arkansas State Police, submitting his full name, birthdate and fingerprints, and requested information regarding any felony or misdemeanor conviction. He received replies from both stating that no criminal records were found. Coody delivered copies of these replies to a reporter from the Times and also to the Springdale Morning News.

The election was scheduled for Tuesday, November 3, 1992. On Thursday, October 29, 1992, Stokes learned of a poll which showed that Coody was in the lead for the mayor’s race. On Friday, October 30, 1992, one of Coody’s opponents, Glenn Sowder, held a press conference and aired a recording of a message left by Coody on a telephone answering machine in which Coody, using profanity, complained about one of Sowder’s supporters having accused him of being abusive to his wife and other women. On that same day, Stokes engaged a private investigator to delve into Coody’s background in Texas. Stokes also claimed to have received information on Thursday, October 29, 1992, concerning Coody’s criminal history from a Fayetteville resident who was Coody’s high school classmate in Beaumont, Texas; however, the informant testified that she was not contacted by Stokes until Monday, November 2, 1992, at the earliest.

On Saturday, October 31, 1992, the first of the two articles at issue in this case was published on the editorial page of the paper and attributed to Dave Stokes, publisher. The two column article was captioned in large, bold letters, “It’s time for Coody’s facade to come off,” alleged Coody “set up” a letter writing campaign supporting his candidacy, and mentioned that the author had begun “hearing rumors about Coody” shortly after he declared for mayor but “did not give credence to these rumors,” because of the desire to keep the campaign as clean as possible. The article stated that “it’s time for the gloves to come off” and went on to accuse Coody of attempting to “mislead the public about who he is and what he stands for,” and of exhibiting behavior which casts doubt on his ability to perform under stress. The article included a transcript of the telephone message left for Sowder by Coody with abbreviations and dashes for the profanity used and went on to question, “What’s Coody so nervous about?” The article further accused Coody of attacking the newspaper and Stokes because he could not get his way and dictate what the paper printed, accused him of making slurs against Fayetteville, accused him of making accusations without substance in his capacity as councilman and then backing down when his hand was called, and concluded by stating that Coody’s rhetoric about loyalties for Fayetteville is a “thin facade covering his real loyalty — to himself.”

On Monday, November 2, 1992, Stokes received the private investigator’s report which contained no adverse information on Coody and Stokes also contacted the informant. Coody held a press conference on Monday and provided information regarding his background and work history and also published a full page ad in the Times to counter-act the effect of the “facade” article.

On Tuesday, November 3, the morning of the election, the Times ran the second article, an interview of Stokes, under the byline of reporter Rusty Garrett. The article was captioned “Times publisher defends probe into past of mayoral candidate.” The article stated that Stokes had “taken a leading role” in researching the life and activities of Coody prior to his arrival in Fayetteville and admitted to the employment of a private investigator. The article quoted Stokes as stating he had “uncovered some major discrepancies between information contained in the [investigative] report and that he subsequently received from former Beaumont [Texas] residents who say they knew Coody in high school.” Stokes further alleged that the investigation was necessary because Coody “continually refused to answer [questions about his past] throughout the campaign,” and it was conducted to “get the real truth” concerning Coody. Stokes explained that a similar investigation was not conducted on the other four mayoral candidates because they “had not been the subject of rumors with the ‘severity’ of those circulated about Coody.”

Stokes went on to state that the investigation revealed that Coody’s early life was “very admirable,” and he questioned why Coody had not used information concerning his activities in Texas in his campaign. Stokes stated that the probe failed to turn up any information on Coody’s life between the mid 1970’s and 1986 when he moved to Fayetteville and that the report “had created more questions than it had answered.” Stokes accused Coody of not providing details about his past or outlining his past year-by-year.

After losing the election, Coody filed an action for damages against appellants, alleging that the editorial and article published on October 31 and November 2, 1992, contained defamatory and libelous statements which were made with actual and common law malice. He asked for compensation for actual damages to his emotional well-being, personal dignity, disruption of relationships with friends and family, damage to business reputation, standing in the community, and public image, and also requested that punitive damages be awarded. Appellants appeal from the judgment entered in favor of Coody and from the order denying their motion for judgment notwithstanding the verdict. It is undisputed on appeal that Coody was a public figure.

A defamation action turns on whether the communication or publication tends or is reasonably calculated to cause harm to another’s reputation. Little Rock Newspapers v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983). Furthermore, “[a] public figure may not recover damages for a defamatory falsehood without clear and convincing proof that the false ‘statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1988) (quoting New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). The Supreme Court has recognized that where the first amendment is involved, the appellate court is obligated to make an independent examination of the whole record to make sure the judgment does not constitute a forbidden intrusion on the field of free expression. Harte-Hanks, supra; Fuller v. Russell, 311 Ark. 108, 842 S.W.2d 12 (1992). However, the heightened standard of appellate review applies only to review of the finding of actual malice, and not to the determination of libel. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984). The standard of review for the issue of defamation and other factual findings is whether the jury’s verdict can be supported by substantial evidence. Allred v. DeMuth, 319 Ark. 62, 890 S.W.2d 578 (1994); Little Rock Newspapers, supra.

EVIDENCE OF LIBEL

The jury found, from a preponderance of the evidence, that stated or implied facts published by the appellants in the two articles, were defamatory and false. Coody’s principal contention was that the articles accused him of concealing a criminal past and that he had proven by his own denial and the reports submitted by him from the Texas and Arkansas authorities that he had no such past. Because the articles did not specifically mention the nature of the rumors about Coody’s past but instead indicated that he was misleading the public and had something to hide, his claim was one of defamation by innuendo. See Pritchard v. Times Southwest Broadcasting, 277 Ark. 458, 642 S.W.2d 877 (1982). Also, Coody contends the statements regarding the letter writing campaign, his attempts to control to whom the appellants should listen, and the allegations that he was attempting to mislead the public about who he was and what he stood for were defamatory comments on his fitness and desirability as a mayoral candidate. See Harte-Hanks, supra.

For purposes of this case, we need not review the findings of the jury that the articles in question contained stated or implied facts which were defamatory and false. Appellee, as a public figure, had the additional burden of proving that such false statements were made with actual malice, and he has failed to meet this burden.

ACTUAL MALICE

This court must conduct an independent review to determine whether there was clear and convincing evidence that the statements were made with actual malice. Harte-Hanks, supra; New York Times, supra. The question of whether the evidence in the record is sufficient to support a finding of actual malice is a question of law. Id. In discussing the actual malice standard the court has recognized:

[T]he plaintiff in such an action must prove that the defamatory publication “was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith.

Fuller v. Russell, 311 Ark. 108, 842 S.W.2d 12 (1992) (quoting St. Amant v. Thompson, 390 U.S. 727, 728, 731, 732 (1968)).

At trial, Stokes testified he believed his statements to be true, but this is of little consequence in making the actual malice determination. Id. However, the appellee has failed to present convincing evidence of appellants’ awareness of the probable falsity of the statements. Coody testified he did not conduct a letter writing campaign; however, there is no evidence that Stokes was aware that there was no campaign. Further, Coody testified he did not tell Stokes who “he should and should not listen to” in a conversation they had shortly after Stokes came to Fayetteville to assume the position as publisher of the Times. Based upon the verdict, the jury apparently believed that Coody, in fact, did not make such a statement to Stokes. However, in Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984), the Supreme Court examined the effect of an “inaccurate description of what Seligson [the author] had actually perceived.” The Court noted that the “language chosen was ‘one of a number of possible rational interpretations’ of an event ‘that bristled with ambiguities’ and descriptive challanges for the writer.” Id. The Court concluded that the choice of such language, though reflecting a misconception, does not place the speech beyond the outer limits of the First Amendment’s broad protective umbrella.

Although Bose, supra, addressed the writer’s opinion regarding the quality of a loudspeaker system, we find the principles discussed apply generally to a listener’s perception. Thus, Stokes’ perception, even though possibly mistaken, of a conversation which admittedly occurred must be protected. Coody’s testimony of the event simply does not constitute clear and convincing evidence of actual malice.

As to the rumors and the assertions that Coody was misleading the public, the evidence does not support a finding of actual malice. The chronology of events surrounding the publication of the rumors is as follows: the testimony clearly established that rumors of Coody’s alleged criminal past were circulating prior to October of 1992. Stokes testified he contacted the informant, Ms. Flynn, on the evening of October 29, and, as a result of that conversation, he decided to hire a private investigator. On Friday, October 30, 1992, Stokes hired a private investigator to research Coody’s past. Stokes testified he received the investigator’s report on Monday and he contacted the informant to verify her version.

Ms. Flynn, however, testified she did not remember talking to Stokes prior to the publication of the October 31 article. She testified that, to the best of her knowledge, she was first contacted on Monday, November 2. Ms. Flynn testified she told Stokes that she thought Coody had a questionable, at best, reputation in high school. She believed Coody had been involved with the police, but she did not provide any specifics, and further stated that she informed Stokes these were merely her impressions because she did not have any factual information.

The appellee submits that although failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is a different matter. Harte-Hanks, supra. However, there is no convincing proof that the appellants purposefully avoided the truth. Although there are discrepancies regarding when Stokes contacted Ms. Flynn, there is no proof that Stokes “entertained serious doubts as to the truth of his publication.”

In addition, the appellee cites evidence that Stokes was “hostile” towards Coody. Other employees of the Times testified that Stokes was motivated by his desire not to see Dan Coody in office, that Stokes did not believe Coody was a good candidate, and that he believed he had something to hide. A former employee of the Times testified Stokes stated in June of 1992 that he thought Coody had been involved in illegal activities and he was going to hire a private investigator.

It has been recognized that ill will is admissible circumstantial evidence of actual malice. Harte-Hanks, supra. However, even though there is some circumstantial evidence, the proof does not establish actual malice with convincing clarity. Coody seems to argue that both the hiring of the investigator and then not waiting for his report is evidence of actual malice. Coody also points out that Stokes did not talk to Ms. Flynn prior to the October 31 article, because of her testimony that Stokes first contacted her on Monday, November 2. Nevertheless, reckless conduct is not measured by whether a reasonably prudent man would have investigated before publishing, but whether he, in fact, entertained serious doubts as to the truth of the publication. Harte-Hanks, supra. Appellee has simply not met his burden of proving actual malice by clear and convincing evidence.

CONSTITUTIONAL MALICE AND AWARD OF COMPENSATORY DAMAGES

For appellants’ third and fourth points, they argue that the trial court erred in allowing evidence, of common law malice on the issue of “constitutional malice,” and that the trial court erred in allowing an award of compensatory damages based upon insufficient and speculative evidence. Because we reverse on the issue of actual malice, we do not address these issues.

Reversed and dismissed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jennings and Mitzi OSBORNE v. Arleta POWER, Dick Wallace, Joe H. Smith, Dennis Lucy, Tom Fiser, Catherine Cockrill
    93-1303
    896 S.W.2d 905
    Supreme Court of Arkansas
    Opinion delivered May 8, 1995

      The Perroni Law Firm, P.A., by: Samuel A. Perroni and John R. Pagan, for appellants.

      Gary D. Corum, for appellees.
   Per Curiam.

On December 5,1994, this court affirmed a ruling by the chancery court that appellants’ Christmas light display constituted a nuisance where located. The opinion provided that the Osbornes were free to maintain an unrestricted display at an appropriate location, but issued an injunction directing them to substantially reduce the size and extravagance of the display located in their residential neighborhood. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1994).

On December 16, 1994, this court denied a stay of the mandate. Osborne v. Power, 319 Ark. 52, 890 S.W.2d 574 (1994). On December 19, 1994, appellees filed a motion in which they alleged that appellant Jennings Osborne disobeyed the court’s order by lighting massive portions of the display. Appellees asked that Jennings Osborne be held in contempt of court. In response this court ordered Jennings Osborne to appear and show cause why he should not be held in contempt for willfully disobeying the injunction. Osborne v. Power, 319 Ark. 177, 890 S.W.2d 575 (1994). Jennings Osborne appeared and pleaded not guilty in the original action in this court.

On January 9, 1995, this court issued a per curiam order appointing The Honorable George Cracraft as a Special Master to hear the contempt matter. Osborne v. Power, 319 Ark. 239, 890 S.W.2d 577 (1995); see also ARCP Rule 53.

On January 23, 1995, a petition for rehearing on the merits of the original appeal was denied. Other motions, which are not material to this opinion, have been filed and ruled upon.

On March 31, 1995, the transcript from the contempt hearing was filed, and on April 4, 1995, the Master’s report was filed. The Special Master reports that Jennings Osborne substantially reduced the size and extravagance of the display; that the 1994 display was not calculated to and did not attract unusual numbers of visitors to the neighborhood; that there was little or no sound generated by the display; and that all of Osborne’s actions, if contemptuous, were taken on advice of counsel. Appellees filed a notice of appeal from the Special Master’s report, and appellant Jennings Osborne moved to strike the notice of appeal. We treat the notice of appeal as an objection to the Special Master’s report, see ARCP Rule 53(e)(2), and treat Jennings Osborne’s motion to strike as a motion to strike the objection. We deny the motion to strike the objection. We will hear the objection and response thereto by briefs. The Clerk of the Court will notify the parties the dates their briefs are due. The request for oral argument is denied.

Jennings Osborne filed a motion with the Special Master asking that the contempt citation be dismissed on the ground that this court has lost jurisdiction of the contempt proceeding. We deny the motion.

The Special Master has filed a petition for allowance of fees. We grant the motion and fix the amount of fees at $3,500.00.

Newbern and Brown, JJ., not participating.

Special Justices William S. Arnold and Ernie Wright join in this per curiam.


author: Per Curiam. Donald L. Corbin, Justice,

text:
    William R. SIMPSON, Jr., Public Defender for the Sixth Judicial District v. PULASKI COUNTY CIRCUIT COURT
    CR 95-432
    899 S.W.2d 50
    Supreme Court of Arkansas
    Opinion delivered May 10, 1995

      William R. Simpson, Jr., Public Defender, for appellant.

      Pamela Dean Walker and Clifford Paul Block, for appellee.
   Per Curiam.

Petitioner William R. Simpson, Jr., Public Defender for the Sixth Judicial District, urges in his motions for writ of certiorari, temporary stay of proceedings, and expedited consideration on an emergency basis that there is an intolerable conflict between himself and the criminal defendant he was appointed to represent and that we should issue a writ of certiorari ordering the Second and Seventh Divisions of Pulaski County Circuit Court to relieve him as counsel in two pending capital murder cases. As of this date two partial transcripts have been filed with this Court.

The State has filed motions for writ of certiorari, temporary stay, and expedited consideration that support the position taken by the public defender. Meanwhile, Pulaski County has filed a motion for permission to intervene as an interested party or, in the alternative, for permission to file an amicus curiae memorandum, as well as a motion to join in Mr. Simpson’s motion for temporary stay. In its response to Pulaski County’s motion, the State has indicated that it has no objection to the motion to intervene or for permission, in the alternative, to file an amicus curiae memorandum.

Mr. Simpson was appointed to represent Ledell Lee in a capital murder case in Pulaski County Circuit Court, Second Division (Chris Piazza, Judge), No. CR 93-1249; a capital murder case in Pulaski County Circuit Court, Seventh Division (John B. Plegge, Judge), No. CR 93-2052; and three rape cases in Pulaski County Circuit Court, First Division (Marion A. Humphrey, Judge), No. 93-1797, No. 93-2110 and No. 94-480. On February 17, 1995, Lee, acting pro se, represented to Judge Humphrey that a conflict of interest existed between Mr. Simpson and himself and requested that Mr. Simpson be relieved as counsel in the First Division rape cases. After hearing Lee’s testimony and Mr. Simpson’s response, Judge Humphrey found that a conflict existed and granted Lee’s request, relieving Mr. Simpson from the First Division cases and appointing Dale E. Adams to represent the defendant in those cases.

According to Mr. Simpson, the alleged facts in the First Division rape cases also figure in the Second and Seventh Division capital murder cases. In the Second Division case, set for Monday, May 15, 1995, the State is seeking the death penalty and has announced that it intends to employ the three rape charges as the aggravating circumstances that warrant imposition of the death penalty. In the Seventh Division case, the State has announced that it intends to introduce the three rape allegations in its case-in-chief under Ark. R. Evid. 404(b) (“Other Crimes, Wrongs, or Acts”), although Judge Plegge has ruled, at this point, that the State will not be permitted to use the evidence.

Following his removal from the First Division rape cases, Mr. Simpson filed motions on his behalf, as Public Defender and on behalf of the Office of Public Defender for the Sixth Judicial District in the Second and Seventh Divisions to be relieved from further representation of Lee in the two capital murder cases. In a hearing on the status of the public defender’s office, held on February 22, 1995, Judge Piazza noted that “My position is that whatever has happened in some other court doesn’t govern this.” At a hearing on March 8, 1995, Judge Piazza heard Lee’s motion to determine the status of the Public Defender’s Office. Addressing Lee, Judge Piazza stated that “I understand what Judge Humphrey has done . . . but I have not seen a conflict which would cause this court to relieve [the Public Defender’s Office] from their duty and for me to appoint independent counsel to represent you.” He again stressed that Judge Humphrey’s decision was “not going to be precedent in this court” and refused to relieve the public defender.

At a later hearing, on March 23, 1995, Judge Piazza considered Lee’s amended motion for clarification of status of the Office of Public Defender. Finding that there was no conflict between Lee and his counsel, Judge Piazza refused to relieve the public defender but agreed to sit en banc to resolve the issue of the public defender’s representation. On April 21, 1995, the Second Division Circuit Court heard statements from Lee’s counsel regarding a civil lawsuit that the defendant intended to file against the public defender. Judge Piazza also heard evidence of Lee’s uncooperativeness with counsel. On April 25, 1995, Judge Piazza entered an order refusing to relieve the public defender from representation of Lee in Case No. CR 93-1249.

The proceedings in the Seventh Division of Pulaski County Circuit Court paralleled those in the Second Division. On March 8, 1995, Judge Plegge heard Lee’s motion to determine the status of the Office of Public Defender and, finding that no conflict existed between the defendant and his counsel, refused to relieve the public defender. Subsequently, on March 23, 1995, Judge Plegge entertained Lee’s amended motion for clarification of status of the Office of Public Defender and again found that no conflict existed and refused to relieve the public defender but did agree to sit en banc to resolve the issue. On April 24, 1995, Judge Plegge heard statements from Lee’s counsel regarding a civil suit that the defendant intended to file against the public defender and evidence of Lee’s uncooperativeness with the public defender, which is of record. Once again, in an order entered on April 25, 1995, Judge Plegge declined to-relieve the public defender from representing Lee in Case No. CR 93-2052. The orders entered by Judge Piazza and Judge Plegge on April 25, 1995, mirror each other, consisting of exactly the same phraseology.

Under Ark. Const., Art. 7, § 4, this Court has general -superintending control over all inferior courts. However, a circuit court has the discretion to deny counsel’s motion to withdraw from representing an indigent defendant in a criminal case. Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992). Moreover, a writ of certiorari will not lie to control judicial discretion unless a plain, manifest, clear,- great, or gross abuse of discretion is shown. Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1994). The petitioner for certiorari bears a very heavy burden. Id.

Although the second volume of the partial record before us reflects that the Seventh Division of the Pulaski County Circuit Court heard statements from Lee and his counsel, neither volume contains transcriptions of any of the hearings on March 8, March 23, or April 24, 1995, that resulted in Judge Plegge’s findings. Further, no transcription of any hearing before Judge Humphrey, First Division, has been included. At most, we have Judge Humphrey’s order of March 14, 1995, relieving the public defender from representation of Lee in the three rape cases.

What is available to this Court, having been filed with the Clerk, is a transcription of hearings before Judge Piazza, Second Division, and it is upon this portion of the record that we are obliged to focus in order to determine whether an abuse of discretion occurred. From a review of the partial record, it is evident that Judge Piazza afforded the parties opportunities to be heard concerning the issue of the status of the public defender on four different dates — February 22, March 8, March 23, and April 21, 1995.

On the basis of the partial record before us, we cannot say that Judge Piazza committed a plain, manifest, clear, great, or gross abuse of discretion in refusing to relieve the public defender. Further, we decline to hold that Judge Plegge abused his discretion where the Seventh Division order of April 25, 1995, was entered on the same date and contained the identical language as the Second Division order and where both orders were approved as to form by the deputy prosecutor and the public defender.

Therefore, we deny the petition for writ of certiorari and the alternative motion for stay of proceedings.

Glaze, J., would grant a stay and direct the consolidation of the three separate criminal proceedings pending against Ledell Lee below for the limited purpose to permit the respective parties to supplement the record so as to allow them to brief the issue on whether a conflict of issue exists in the Pulaski County Circuit Court, First Division, which should preclude defense counsel in that court proceeding from serving in Lee’s cases pending in the Second and Seventh Divisions of the Pulaski County Circuit Court.

Corbin and Brown, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. I view with dismay the action — or should I say the inaction — of my respected colleagues in the matter before us.

Their inaction is premised upon the rule of law that a writ of certiorari will not lie to control judicial discretion, unless a plain, manifest, clear or gross abuse of discretion is shown. Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1994) (emphasis added). My colleagues then proceed to determine, based upon a grossly incomplete record, that no manifest abuse of discretion has been demonstrated. They, compound this error further by proceeding to deny the alternative motion for stay.

The bare minimum action called for in these proceedings necessarily involves granting a stay until we can get a complete and consolidated record of the proceedings in the three divisions of the Pulaski County Circuit Court as it relates to the public defender’s ability to serve as the attorney for Ledell Lee.

A prima facie case of a conflict of interest has been presented to the court by the Petitioner William R. Simpson, Jr. This is evidenced by the order of Judge Marion A. Humphrey finding that a conflict of interest existed between Mr. Simpson and the defendant Ledell Lee and relieving Mr. Simpson as counsel in the three rape cases against Lee.

This court should exercise its superintending control over the trial courts in an attempt to reconcile what appears at this time to be differences of opinion among three sitting circuit judges —if for no other reason. More importantly, this court should act now to avoid any possible prejudice to the state’s cases against Mr. Lee that are pending before Judges Humphrey, Piazza and Plegge. Instead of protecting the investment of judicial time already expended, best indications are that a more wasteful expenditure of time will occur. I find our action today to be harmful to the confidence of attorneys in our system of jurisprudence in this state. I strongly believe this court is making a very grave mistake in judgment this day.

I am authorized to state that Justice Robert L. Brown joins in this dissent.


author: Jack Holt, Jr., Chief Justice.

text:
    Melonie MAHAN, and Melonie Mahan as Next and Best Friend of Shawn Mahan v. Keith HALL, d/b/a Keith Hall Rodeo
    94-1341
    897 S.W.2d 571
    Supreme Court of Arkansas
    Opinion delivered May 15, 1995

      Throesch & Throesch, by: John Throesch, for appellants.

      Tom Garner, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a negligence case. The appellant, Melonie Mahan, brought suit against the appellee, Keith Hall, d/b/a Keith Hall Rodeo, and the Sharp County Fair Association, on behalf of herself and her minor son, Shawn Mahan, who was injured while attending a rodeo produced by Mr. Hall. The case was settled as to the Sharp County Fair Association, and at trial, the court directed a verdict in favor of Mr. Hall, which is the basis for Ms. Mahan’s sole point of error on appeal. As Ms. Mahan failed to prove that Mr. Hall was negligent, we affirm.

Facts

On July 8, 1992, sixteen-year-old Shawn Mahan attended a rodeo in Sharp County which was produced by the appellee, Keith Hall, d/b/a Keith Hall Rodeo. Shawn and a friend, Derrick Kildow, went to watch another friend ride in the rodeo, which was located on property owned by the Sharp County Fair Association. While Shawn and Derrick wére standing near a gate outside the arena, but in an area open to the public, a bucking horse broke through the gate, which in turn struck Shawn, causing injuries to his face.

,In a complaint against both Mr. Hall and the Sharp County Fair Association, Ms. Mahan alleged that Shawn was a business invitee of Mr. Hall and the Association, each of whom “owed him a duty to use ordinary care to prevent injuries to him.” Ms. Mahan sought damages for personal injury, both temporary and permanent, pain and suffering, mental anguish, lost wages, and compensatory damages for medical treatment. While Mr. Hall admitted in his answer that the rodeo was open to the public, he denied that he was negligent.

The case settled as to separate defendant Sharp County Fair Association, but proceeded to trial as to Mr. Hall. At trial, Shawn testified that on the night in question, he and Derrick arrived at the arena and sat down in the bleachers before going over to a concession stand to get something to drink. From the concession stand, the two left the arena and walked over to a horse trailer where saddles and rodeo items were being sold and where some smaller children were playing around. According to Shawn, he and Derrick were standing outside the arena watching a rodeo event when the horse bucked off its rider, circled the inside of the arena, then broke through the gate, injuring him. It was also Shawn’s testimony that the rodeo announcer was standing in front of the gate, approximately one foot away from where he and Derrick were standing, and that the announcer blocked his view when the horse came through the gate. ■

Shawn further testified that his cheekbone was crushed as a result of the accident, and that he was unable to move his mouth for approximately three months afterward. According to Shawn, he underwent surgery, and has no feeling on the left side of his face. He further stated that he had problems with his jaw, that he was suffering from frequent headaches, that he was unable to work at his job at IGA for three months, and that he was no longer able to play football. Ms. Mahan corroborated her son’s testimony regarding the extent of his injuries, adding that he was “scared to eat” for a long time after the accident, and that she had incurred medical expenses in the amount of $5372.35.

Derrick Kildow testified that he too was injured when the horse came through the gate, as he had to have stitches after being hit above his right eye. According to Derrick, he and Shawn did not have time to react or to get out of the way when the horse struck the gate, as the announcer was obstructing their view and did not move until the horse got to him and came through the gate.

At the close of Ms. Mahan’s case, Mr. Hall moved for directed verdict on the grounds that Ms. Mahan had failed to show that he had breached a duty of care owed to Shawn or that he was negligent. Ms. Mahan responded that Shawn had paid an admittance to get into the rodeo on the date in question, and, as such, was a business invitee of Mr. Hall, who owed him a duty of care to secure the gate and to see that he was not injured. When the trial court inquired as to the presence of any testimony indicating that Mr. Hall did not secure the gate, Ms. Mahan responded that the fact that the horse came through the gate was “in itself evidence that the gate wasn’t secure,” that Mr. Hall had been producing rodeos for several years and had knowledge of the dangerous propensities of the animals, and that the gate was not maintained in a reasonably safe condition. Mr. Hall argued that Arkansas Model Jury Instruction (Civil) 603 states that “[tjhe fact that an injury, collision or accident occurred is not of itself evidence of negligence or fault on the part of anyone.” The trial court agreed, finding that while Ms. Mahan had proved an accident and had shown where it had occurred, she had not shown any breach of duty on the part of Mr. Hall. It is from the trial court’s granting of Mr. Hall’s motion for directed verdict that Shawn appeals.

Directed verdict

As Ms. Mahan challenges the trial court’s decision to direct a verdict in favor of Mr. Hall, we will review the evidence in a light most favorable to Ms. Mahan, the non-moving party, and give it its highest probative value, taking into account all reasonable inferences. Miller v. Nix, 315 Ark. 569, 868 S.W.2d 498 (1994); Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993). A motion for directed verdict may only be granted if there is no substantial evidence to support a jury verdict. Id.

We have said that the plaintiff has the burden of proving that he sustained damages, that the defendant was negligent, and that such negligence was the cause of his damages. Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993); Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989). Here, there is no question that Shawn sustained injury and resulting damages; rather, the issue before us is whether there was substantial evidence of Mr. Hall’s negligence. See Sanford v. Ziegler, supra. Negligence is the failure to do something which a reasonably careful person would do; a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. Sanford v. Ziegler, supra; White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992).

Ms. Mahan contends that because Shawn purchased a ticket to see the rodeo, he was an invitee of Mr. Hall, who, as the producer of the rodeo, owed Shawn a duty to exercise ordinary care to maintain the premises in a reasonably safe condition. See Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994). While Ms. Mahan asserts that the gate was not maintained in a reasonably safe condition, she presented no such testimony or other evidence to prove this assertion. And while the trial court and counsel for both Ms. Mahan and Mr. Hall allude to testimony that the gate was tied or chained, we find no such testimony in the abstract. It is fundamental that the record on appeal is confined to that which is abstracted. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994).

While Ms. Mahan maintains that the fact that the horse came through the gate was “in itself evidence that the gate wasn’t secure,” we agree with Mr. Hall’s assertion that “[t]he fact that a injury, collision or accident occurred is not of itself evidence of negligence or fault on the part of anyone.” See AMI 603. Granted, Ms. Mahan, her son Shawn, and Derrick Kildow offered testimony that an accident occurred and that Shawn suffered damages, yet they simply presented no evidence that Mr. Hall was negligent. For this reason, we affirm the trial court’s decision to direct a verdict in Mr. Hall’s favor.

Affirmed.


author: Robert H. Dudley,

text:
    Tangie MARTIN v. Susan JETKINS, et al.
    94-1364
    897 S.W.2d 567
    Supreme Court of Arkansas
    Opinion delivered May 15, 1995

      Frye, Mickel & Boyce, P.A., by: Phillip D. Cook, Jr., for appellant.

      Cheryl K. Maples, for appellees.
   Robert H. Dudley,

Justice. Plaintiffs filed a tort suit against defendant Martin. Service was had on the resident defendant on March 23, 1994, but defendant did not answer until April 15, 1994, which was more than twenty days after service was completed. See ARCP Rule 12(a). Plaintiffs filed a motion to strike the untimely answer. Defendant filed a response to the motion. The trial court heard arguments from both parties, found that the answer was untimely and “not excusable under ARCP Rule 55(c),” and struck the answer. No reversible error is shown.

Defendant first argues that the trial court erred in striking the answer because its untimeliness was due to mistake, inadvertence, or excusable neglect as contemplated by ARCP Rule 55(c). However, no evidence was presented in the trial court. Both sides argued the matter in the trial court, and now argue it on appeal, as if there were some understanding or stipulation about the facts. The abstract does not reflect such an agreement, and it would be improper for this court to assume one. Moreover, even if there were a stipulation of facts, and even if defendant proved excusable neglect, defendant still would not prevail.

Both parties treat the trial court’s order as one refusing to set aside a default judgment, see ARCP Rule 55(c), and, even if defendant had made a threshold showing of mistake, inadvertence, or excusable neglect, she also would have to show that she had a meritorious defense to the cause of action. Rule 55(c) provides that a “party seeking to have the judgment set aside must demonstrate a meritorious defense to the action.” [Emphasis added.] In interpreting this provision, we have defined “meritorious defense” as the following:

[E]vidence (not allegations) sufficient to justify the refusal to grant a directed verdict against the party required to show the meritorious defense. In other words, it is not necessary to prove a defense, but merely present sufficient defense evidence to justify a determination of the issue by a trier of fact.

Tucker v. Johnson, 275 Ark. 61, 66, 628 S.W.2d 281, 283-84 (1982).

In this case, defendant only alleged that she had a meritorious defense. She did not present any evidence to justify a determination of the issue by a trier of fact. Consequently, we affirm.


author: David Newbern, Justice.

text:
    Mary R. HADDEN v. Charles HADDEN
    94-1319
    897 S.W.2d 568
    Supreme Court of Arkansas
    Opinion delivered May 15, 1995
    [Rehearing denied June 19, 1995.]

      Roachell & Street, by: Richard W. Roachell, for appellant.

      Appellee, pro se.
   David Newbern, Justice.

Charles Hadden, the appellee, brought an action for divorce against Mary R. Hadden, the appellant, in 1992. Mrs. Hadden contested the divorce and counterclaimed for separate maintenance. Both parties’ claims were denied because the Chancellor found each at fault and applied the doctrine of recrimination. The Chancellor entered support orders against Mr. Hadden in favor of Mrs. Hadden and the parties’ minor daughter. Mr. Hadden later filed a second divorce complaint alleging 18 months separation, and the divorce was granted. The latter order divided the parties’ marital property and awarded alimony to Mrs. Hadden and support for the minor daughter. Mrs. Hadden contends there was error in the division of the parties’ property and in failure to award support of an adult daughter. Because the Chancellor erroneously, declined to divide a particular marital asset without adequate explanation, we must reverse and remand the case.

Mrs. Hadden contends the Chancellor erred by declaring in the divorce decree that the earlier proceeding “resulted in an Order. . . which in effect granted the Defendant a divorce from bed and board; [and] that all property and property rights accruing to or purchased by each of the parties since January 21, 1993, are now found to be non-marital property ...” In particular, she contends she should have received half of the money Mr. Hadden spent prior to the divorce on attorney’s fees as well as half of money he withdrew from a checking account to spend on their adult daughter’s college expenses when they separated in 1992.

7. The support order

In Mason v. Mason, 248 Ark. 1177, 455 S.W.2d 851 (1970), a divorce decree was denied by the Chancellor due to failure of the plaintiff to present corroboration of grounds. The Chancellor nonetheless retained jurisdiction to enter a support order in favor of Mrs. Mason and held Mr. Mason in contempt for violation of it. We affirmed, citing Crews v. Crews, 68 Ark. 158, 56 S.W. 778 (1900), in which a divorce from bed and board was awarded in favor of the wife although absolute divorce was denied because both parties were at fault, with the wife being somewhat less at fault than the husband. Our opinion in the Mason case stated the Chancellor had, despite the lack of corroboration of grounds, “in effect” granted a divorce from bed and board, and we implied that was proper in the circumstances.

It is very important to note that in the Mason case there was no finding of a failure to show a ground for divorce or application of a defense, such as recrimination. There was only a failure of corroboration, and the complaint was not dismissed by the Chancellor. The support order entered was much the same as a temporary order of support which may be entered in a pending divorce action. See Ark. Code Ann. § 9-12-309 (Repl. 1993); Womack v. Womack, 247 Ark. 1130, 449 S.W.2d 399 (1970).

From the perspective of hindsight, and in view of our current marital property laws, it would have been far better had we, in the Mason case, alluded to maintenance pendente lite rather than divorce from bed and board. The difficulty in the case now before us is created by the fact that our current law provides that property acquired by a spouse after a divorce from bed and board is not marital property. Ark. Code Ann. § 9-12-315(b)(3) (Repl. 1993). When a chancellor declines to award a divorce and enters nothing more than a support order necessitated by a family breakup, there is no divorce from bed and board, and there is no basis for holding that property acquired by the parties thereafter is other than marital property unless it falls within some other exception found in § 9-12-315.

As a general proposition, we agree with Mrs. Hadden’s argument that, to the extent the Chancellor may have divided marital property as of the date the first divorce complaint was denied, it was error to do so. The marital property should have been divided and distributed at the time the divorce decree was entered as provided in Ark. Code Ann. § 9-12-315(a). The remaining question is whether Mrs. Hadden has demonstrated any prejudice as the result of the error, absent which we will not reverse. Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986). She contends the Chancellor improperly failed to distribute her share of $3,356.07 taken by Mr. Hadden from a checking account as well as money he spent on attorney’s fees during their separation and prior to the entry of the divorce decree.

2. The $3,356.07

In the divorce decree, the Chancellor stated:

... the Court finds that the plaintiff [Mr. Hadden] had, at the time of his separation, cash in his checking account in the approximate amount of $3,600 which the Court declines to divide as of the date of separation because the plaintiff used the money to pay for . . . [the parties’ adult daughter’s] educational needs.

Mrs. Hadden contends she was entitled to half of that money in accordance with § 9-12-315 unless such a division was found to be inequitable by the Chancellor. She says the reason given by the Chancellor was inadequate. Mr. Hadden argues the Chancellor was only doing equity as contemplated by the statute.

Assuming, as do the parties, that the money in question was available as a marital asset to be divided upon entry of the divorce, the Chancellor erred in declining to grant an equal division of it without adequate explanation. Section 9-12-315(a) provides for distribution of one-half of marital property to each party unless the court finds such a division to be inequitable. It then lists nine factors to be taken into consideration if the division is to be other than equal. Subsection (b) requires the court to state its reasons in the order if an unequal division is declared.

Support of an adult, college student daughter does not fall directly within any of the nine items listed in the statute to be considered in reaching an unequal distribution of a marital asset. The Chancellor’s reason for declining to divide the money spent by Mr. Hadden on the parties’ adult daughter’s college expenses was inadequate. As we discuss below, Mr. Hadden had no obligation to support his adult daughter, thus the payment of her college expenses does not constitute a sufficient reason for refusal to divide the money. We, therefore, must reverse and remand the case to the Chancellor for reconsideration of that part of the decree.

3. Attorney’s fee expenses

Mrs. Hadden argues that any money spent by Mr. Hadden on legal counsel for the divorce should be divided and one-half of the amount should be awarded to her. Implicit in this argument is the conclusion that the funds, if any, spent by Mr. Had-den on the procurement of counsel, were marital funds. It should be noted that the Chancellor made no finding that marital funds were used for this purpose; nor is there any evidence in the abstract or the record that Mr. Hadden used marital funds to pay attorney’s fees.

It is the appellant’s burden to produce a record exhibiting prejudicial error. See Smith v. Babin, 317 Ark. 1, 875 S.W.2d 500 (1994); Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). As there is no evidence in the record nor was there a finding to support any allegation that marital property was involved in the payment of Mr. Hadden’s legal fees, we decline to reverse on this point.

4. Support for adult daughter

Although conceding that a parent usually has no legal obligation to support a child over the age of majority, Mrs. Hadden submits that the Chancellor should have ordered support for the parties’ adult daughter because the evidence showed she suffered from clinical depression at the time she reached the age of majority. The daughter turned 18 in 1988, some four years before the parties separated.

Mrs. Hadden presented the testimony of a psychologist who said the daughter’s depression problem originated during her childhood. No evidence was presented, however, to show that treatment was sought prior to 1992. The Chancellor stated in the decree that Mr. Hadden would not be required to provide the support requested because the daughter “did not have special needs justifying . .. [Mrs. Hadden’s] claim for support at the time she reached the age of majority.”

The general rule is that once a child reaches majority and is not physically or mentally disabled, the legal duty of the parents to support that child ceases. Towery v. Towery, 285 Ark 113, 685 S.W.2d 155 (1985); Hogue v. Hogue, 262 Ark. 767, 561 S.W.2d 299 (1978). The law imposes no duty of support if the child becomes disabled at a later time.

Given the Chancellor’s factual conclusion that the daughter in question had no special need when she reached the age of adulthood, we cannot disagree with the legal conclusion that Mr. Hadden had no duty to support her.

Reversed and remanded.


text:
    Marsha JENKINS, et al. v. HESTAND’S GROCERY, INC.
    94-1370
    898 S.W.2d 30
    Supreme Court of Arkansas
    Opinion delivered May 15, 1995

      Childs & Harper, by: Callis Childs and Ricky Ashlock, for appellant.

      Friday, Eldredge & Clark, by: William M. Griffin III and Betty J. Demory, for appellee.
   David Newbern, Justice.

This is a negligence case. Summary judgment was granted in favor of the appellee, Hestand’s Grocery, Inc. (Hestand’s), with respect to a claim by appellants Marsha Jenkins and her husband, Mike Jenkins. Ms. Jenkins alleged she suffered a fall just outside the Hestand’s grocery entrance on an incline built to aid shopping carts and wheel chairs in negotiating the curb between the sidewalk and Hestand’s parking lot. Ms. Jenkins claimed Hestand’s breached its duty to warn her of an unmarked and unanticipated dangerous condition and she suffered injuries to her neck, back, and nervous system as a result. Summary judgment was appropriate because there was no remaining factual issue in view of the Trial Court’s correct conclusion that Hestand’s had no such duty in the circumstances presented.

Deposition testimony of Ms. Jenkins and of Hestand’s store manager, Mr. Getchall, as well as an affidavit of Ms. Jenkins were before the Trial Court. In her deposition Ms. Jenkins stated she entered the store door from the parking lot, made a purchase, exited, and was returning to her car when she fell. She said, “When I got out of the car and went in, I walked up the slope. When I came out of the store, the slope was still there. However, I didn’t know the slope was there when I went in the front door.” She stated also that her fall occurred when she stepped in the middle of the slope and her foot went forward from under her. She said it was a very slight slope which looked like there was no incline because the asphalt had been “brought right up to the sidewalk.” She landed on her hands and knees which were scraped but did not feel any additional injury until later.

Mr. Getchall stated the store had operated with the same condition in place some 29 years, serving 3000 to 4000 customers weekly without any such incident. He said Hestand’s was unaware of any dangerous or hazardous condition on its parking lot or sidewalk.

In granting the summary judgment motion, the Trial Court remarked that there had been no presentation of an affidavit or other evidence by a person with requisite skills and training to say that the condition in question was dangerous. He also analogized to a situation of which he was personally aware and said in such a circumstance “There are thousands of people that walk there every day .... You’ve got to look and see that because you know it’s there, and you got to miss it and avoid it. Here, we just have a slope, and ... people have to kind of take care of themselves.”

Ms. Jenkins contends there was a remaining genuine issue of material fact and thus summary judgment should not have been granted. Ark. R. Civ. P. 56(c). She argues the Trial Court erred by requiring her to “prove” her case and that her testimony was not properly evaluated.

The duty of Hestand’s to its invitees, such as Ms. Jenkins, is clearly stated in Restatement of Torts 2d, § 343 as follows:

A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to remain upon the land without exercising reasonable care
(i) to make the condition reasonably safe, or
(ii) to give a warning adequate to enable them to avoid the harm.

See Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974), and Dr. Pepper Co. v. DeFreece, 234 Ark. 450, 352 S.W.2d 579 (1962), in which we cited the rule as found in the original Restatement.

Under this rule, the basis of a defendant’s liability is superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. In McClure v. Koch, 433 S.W.2d 589 (Mo. App. 1968), the Missouri Court of Appeals was presented with a case which had been tried to a jury on facts remarkably similar to those presented on the summary judgment motion here. The Court affirmed a judgment for the defendant grocery store, and in discussing Restatement § 343 and the grocery store parking lot ramp said:

The alternative duty to keep the premises in a reasonably safe condition for an invitee or to warn him of the dangerous condition applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls and the like, in that they are known to the invitor but not known to the invitee, and would not be observed by the latter in the exercise of ordinary care. [Citation omitted.] It follows therefore that there is no liability by the occupier or possessor of the premises for injuries from dangers that are obvious, or as well known to the plaintiff injured as to the occupier or possessor of the premises. [Citation omitted.]

While the opinion in the McClure case continues with remarks about the familiarity of the plaintiff with the defendant’s parking lot and the ramp in question, the emphasis could just as well have been on “dangers that are obvious” as opposed to “traps, snares, or pitfalls.” It was held that the plaintiff had failed to make a “submissible case” for the jury to decide.

We agree with the Trial Court’s apparent conclusion that no evidence, was presented by Ms. Jenkins to show that the condition she alleges to have caused her fall constituted a “danger” or that it presented an “unreasonable risk” to invitees. In addition, there was nothing before the Trial Court to'indicate the occupier of the premises, Hestand’s, had any knowledge whatever that the ramp was dangerous or involved an “unreasonable risk” to its invitees.

Affirmed.


author: David Newbern, Justice. Robert L. Brown, Justice,

text:
    Carroll Don NEAL v. STATE of Arkansas
    CR 94-1343
    898 S.W.2d 440
    Supreme Court of Arkansas
    Opinion delivered May 15, 1995

      Andrew J. Ziser, for appellant.

      Winston Bryant, Att’y Gen., by: DavidR. Raupp, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Carroll Don Neal was convicted of delivery of marijuana, possession of marijuana with intent to deliver, and possession of drug paraphernalia. He was sentenced as an habitual offender to 35 years in prison. Mr. Neal raises four points of appeal. (1) He contends Ark. R. Evid. 404(b) was violated by the admission into evidence of testimony about prior, uncharged drug sales. We hold the evidence was admissible to negate his testimony that the drugs found in a police search of his home had been “planted” there by some other person. (2) He argues an affidavit in support of a nighttime search was insufficient. We hold it was sufficient because it asserted that evidence was in danger of being lost if the search were not conducted immediately. (3) Mr. Neal contends the prosecutor misused the prosecutor’s subpoena power. We do not reverse on that argument because no prejudice is shown. (4) Finally, he contends the Trial Court should not have permitted amendment of the information against him to charge he was an habitual offender on the basis of an expunged Kansas conviction. We hold the amendment was not improper. The judgment is affirmed.

In late 1992 and early 1993, the Carroll County Sheriff’s Department investigated possible illegal drug activity at the home of Mr. Neal. In December 1992, a confidential informant purchased cocaine from Mr. Neal and recorded the transaction. On the evening of April 12, 1993, Lt. Hyatt of the Sheriff’s Department arranged for two other confidential informants, Mitch Boyte and Randy Wagner, to attempt a marijuana purchase at Mr. Neal’s home. Lt. Hyatt gave Mr. Boyte $60 in marked bills as buy money and outfitted him with a microcassette recorder.

Mr. Boyte testified that when he arrived at Mr. Neal’s home, he accompanied Mr. Neal to the bedroom and a safe containing marijuana. Mr. Boyte arranged to buy marijuana for $50, gave Mr. Neal the three marked $20 bills, and received ten dollars in change. Mr. Boyte said he observed various items of drug paraphernalia and saw Mr. Neal sell marijuana to another man.

Mr. Boyte brought the marijuana and the tape to Lt. Hyatt. After listening to the tape, Lt. Hyatt made out an affidavit seeking a nighttime search warrant and presented it to Berryville Municipal Judge Kent Coxsey. In the affidavit, Lt. Hyatt set forth the circumstances of both the December 1992 cocaine transaction and the marijuana transaction that had occurred earlier that evening. He also stated facts showing reliability of the informants. In the final paragraph, he gave the reasons for his belief that a nighttime search was justified:

It is further believed that the above described items are in danger of being removed from said premises or destroyed. A night time search warrant is needed because the marked money by its very nature is in imminent danger of being removed from the premises or otherwise disposed of. In addition, according to the statements of the informants there were a number of individuals at the residence who indicated that they were going to buy marijuana. Don Neal has indicated previously that he has sources of information which have alerted him to activities by the Carroll County Sheriff’s Office in relation to him. Based on these circumstances it is believed that any delay of the service of the warrant may result in the destruction of the evidence.

Judge Coxsey issued a search warrant and indicated that it was to be served at nighttime because the house to be searched was difficult of speedy access and the evidence to be seized was in imminent danger of destruction or removal.

Lt. Hyatt and other officers executed the warrant about 9:00 p.m. on April 12, 1993. As a result, marijuana and various items of drug paraphernalia were seized.

Prior to trial, Mr. Neal moved to suppress the evidence that was seized as a result of the search. He stated that the affidavit did not adequately justify the need for a nighttime search, and that the informants whose testimony provided the basis for the warrant were unreliable. The motion was denied.

1. Rule 404(b)

Prior to trial, Mr. Neal moved in limine to prevent the State from offering the testimony of several witnesses who said they had bought marijuana from him in the past. He argued the State sought to introduce that evidence only to prove his bad character and predisposition to commit this type crime and that it was inadmissible according to Rule 404(b). The State responded that the evidence was being offered for other, independently relevant reasons. First, the State noted that Mr. Neal had made a statement claiming the drugs recovered in the search were placed in his home without his knowledge. Indeed, he ultimately testified that two men he did not know came into his home and insisted they owed him $50 and he had one of them throw the money down just to get rid of him. Accordingly, the prosecutor argued that the prior acts would be used to prove that there was an absence of mistake. The State also argued the prior acts could be used to show method of operation. The Trial Court denied Mr. Neal’s motion in limine and allowed testimony concerning marijuana buys after December 3, 1992, “since they can be used to show lack of mistáke or modus operandi.”

The State argues Mr. Neal failed to preserve this argument for appeal because he did not make an objection at trial contemporaneous with the testimony he considered objectionable. We treat the merits of the matter. When a motion in limine seeking to exclude evidence has been denied, the objection raised in the motion may be pursued on appeal without its having been renewed when the evidence was received. Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995).

The State now argues only that the evidence was admissible because it showed method of operation.

Rule 404(b) provides:

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

We have strong doubts whether the evidence of prior drug sales was admissible to show a method of operation. See Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995). In view, however, of the defense asserted by Mr. Neal we have no hesitancy holding that the evidence was admissible. In Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986), we wrote:

We interpret Rule 404(b) as meaning that if the evidence of prior bad acts is relevant to show the offense of which the appellant was accused occurred, and is thus not being introduced to show only bad character, we will not exclude it. While we may not be able to tie the evidence specifically to proof of “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident,” if it has an independent relevancy we will regard it as being, in the words of the rule, “such as” one of those permissible objects of proof.

See also Vernon v. State, 2 Ark. App. 305, 621 S.W.2d 17 (1981).

In view of Mr. Neal’s claim, which was made in his counsel’s opening statement before the jury, that he had no knowledge of the presence of the marijuana in his home, the evidence of the prior sales was relevant to cast grievous doubt upon his testimony.

In his motion in limine, Mr. Neal included an argument that the introduction of the evidence would have a prejudicial effect which outweighed its probative value. Ark. R. Evid. 403. We agree the prejudicial effect was strong, but again in view of the defense Mr. Neal asserted, we cannot say the prejudice was unfair. The decision was within the Trial Court’s discretion, Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993), and we cannot say that discretion was abused.

2. Nighttime search

Mr. Neal contends his motion to suppress the evidence, including bags of marijuana and drug paraphernalia, found in his home should have been granted because the search was illegal. He contends the affidavit supporting the warrant did not justify a nighttime search. In such instances we make an independent determination, based on the totality of the circumstances and reverse only if the Trial Court’s ruling is clearly against the preponderance of the evidence. Richardson v. State, 314 Ark. 512, 863 Ark. 572 (1993); Coleman v. State, 308 Ark. 631. 826 S.W.2d 273 (1992).

Arkansas R. Crim. P. 13.2(c) provides that before a nighttime warrant is issued, the issuing judicial officer must have reasonable cause to believe that:

(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;. . .

Our requirement is that, to serve as a proper basis for a nighttime search, the evidence presented to the magistrate from whom a nighttime search warrant is sought must be of facts justifying such a warrant rather than mere conclusions. Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990).

The affidavit of Lt. Hyatt revealed his chief reason for requesting a nighttime search warrant was his concern that the marked money used by the confidential informants to purchase marijuana from Mr. Neal would be removed from Mr. Neal’s home. He stated that the informants said there were others present who indicated they were going to purchase marijuana. Judge Coxsey could easily have concluded that in the course of doing business the marked money might have been dispatched from Mr. Neal’s home. We hold the nighttime search was justified on the ground that it was necessary to conduct the search as quickly as possible after the purchase the confidential informants reported they had made from Mr. Neal.

3. Prosecutor subpoenas

A prosecutor or deputy prosecutor may subpoena witnesses to appear before him or her with respect to matters being investigated. Ark. Code Ann. § 16-43-212 (Repl. 1994). Mr. Neal argues that the statutory power was violated because defense witnesses were subpoenaed several months after the charges were filed and only one month prior to the original trial date. He argues that the prosecutor’s subpoena power is reserved strictly for investigative purposes, and that the use of this power so late in the proceedings constitutes a clear abuse of that power.

A prosecutor may subpoena witnesses to prepare for trial after charges have been filed as long as the power is not abused. Todd v. State, 283 Ark. 492, 687 S.W.2d 345 (1984). Mr. Neal does not give us a reason for holding there was an abuse in this case. As the State points out, he has neither alleged nor shown any prejudice resulting from alleged misuse of the prosecutor’s subpoena power. In the absence of prejudice, we do not reverse. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).

4. Expunged conviction

The information was amended to allege, and evidence was presented to show, that Mr. Neal was previously convicted in Douglas County, Kansas, of Concealing Property Subject to a Security Interest.

Mr. Neal argues the amendment to the information, made shortly before trial, was untimely. It is well settled that the State may amend an information up to a point after the jury has been sworn but before the case has been submitted to it, as long as the amendment does not change the nature or degree of the crime charged, if the accused is not surprised. Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993).

Mr. Neal contends the Kansas conviction was subsequently expunged and should not have been used to enhance his sentence. In making this argument, he points out the similarities in the definitions of “expunge” and “pardon,” and contends that, as we prohibit the use of a pardoned conviction to enhance a later sentence, an expunged conviction should also not be used for that purpose.

Although a pardoned conviction cannot be used to enhance a later sentence, Duncan v. State, 254 Ark. 449, 494 S.W.2d 127 (1973), our cases clearly support the use of an expunged conviction to enhance a sentence as an habitual offender. Walters v. State, 286 Ark. 166, 690 S.W.2d 192 (1985); Gosnell v. State, 284 Ark. 299, 681 S.W.2d 385 (1984).

Affirmed.

Dudley, Brown, and Roaf, JJ., dissent.

Robert L. Brown, Justice,

dissenting. The majority affirms the introduction of myriad marijuana sales apart from the charge at issue for the reason that they are independently relevant under Rule 404(b). I disagree. As defense counsel argued in his motion in limine before trial, “Mr. Neal won’t receive a fair trial if the jury hears twenty other incidents he’s not being tried on and we’re not prepared to defend on.” The trial court denied the motion and stated that other marijuana buys could be used to prove lack of mistake or modus operandi. The majority opinion discounts those rationales and affirms for a different reason — independent relevancy. The majority opinion also refers to the fact that Neal’s counsel denied selling marijuana in his opening statement. I do not believe that such a denial in opening statement should open the door to wholesale evidence of other crimes. Indeed, what defendant admits the crime in opening statement?

The following testimony was presented by the prosecutor in the State’s case-in-chief: the testimony of Mitch Boyte (purchased marijuana from Neal 20 or 25 times and saw others buy 10 or 12 times), Jamie Edmondson (purchased marijuana from Neal and saw others buy marijuana from him), Mike Bryant (purchased marijuana from Neal 8 or 10 times), and John Shawn Bryant (purchased marijuana from Neal 30 or 40 times). Had Neal denied that he ever sold marijuana as part of his case, this testimony would have been appropriate on rebuttal. See Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). Alternatively, the prosecutor could have charged Neal with these sales and sought to join the various counts for trial. The prosecutor then would have had to show that the sales were part of a single scheme or plan, if severance was requested. See Ark. R. Crim. P. 22.2(a).

The landmark decision of Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), addresses using other bad acts to prove a crime:

No one doubts the fundamental rule of exclusion, which forbids the prosecution from proving the commission of one crime by proof of the commission of another. The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime.

223 Ark. at 333, 266 S.W.2d at 806. In dealing with the same issue that confronts us in this case, we have stated:

In the case at bar the issue for the jury was whether Sweatt had sold LSD to Robbie White. Proof that Sweatt had sold marijuana on other occasions had no relevancy except to show that Sweatt had dealt in drugs before and hence was likely to have done so again. That is precisely the type of proof that must be excluded.

Sweatt v. State, 251 Ark. 650, 652, 473 S.W.2d 913, 914 (1971).

True, we have approved the admissibility of past drug sales in certain cases but only in the limited context of what the defendant told the prosecuting witness about other drug sales he had made that night (Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980) (res gestae)); or in the context of a previous drug sale made to the same prosecuting witness (Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993) (intent)); or in the context of a previous comment the defendant made to the prosecuting witness about selling drugs (Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987) (intent)).

To me, what happened at this trial in the State’s case-in-chief was prejudicial. Had Neal mounted denial as a defense in his case, the four witnesses would have been appropriate for rebuttal. See Pyle v. State, supra. But this is not what transpired.

I respectfully dissent.

Dudley and Roaf, JJ., join.


author: Robert L. Brown, Justice.

text:
    Alge Ray WILLIAMS v. STATE of Arkansas
    CR 95-25
    898 S.W.2d 38
    Supreme Court of Arkansas
    Opinion delivered May 15, 1995

      Janet L. Thornton, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., and Savannah Dyer, Law Student Admitted to Practice Pursuant to Rule XV(E)(l)(b), for appellee.
   Robert L. Brown, Justice.

Appellant Alge Ray Williams contests his 75-year sentence for selling one rock of crack cocaine on grounds of excessiveness. His appeal is without merit, and we affirm.

On December 14, 1993, informant Teresa Lavette Mitchell, accompanied by informant Deborah Box and undercover police officer Maria Bell, drove in one car to the parking lot across the street from the Chat-N-Chew eating establishment in Camden. They all wore body microphones. In the parking lot, Mitchell bought one rock of crack cocaine from Williams for $20. Williams carried the crack cocaine in a plastic film canister. The transaction was recorded on the body microphones of the women as well as by a video camera in the car.

The jury found Williams guilty of delivery of a controlled substance. During the penalty phase of the trial, the State introduced evidence that Williams had seven prior felony convictions: (1) burglary; (2) theft of over $100; (3) breaking and entering and theft of property; (4) escape in the second degree; (5) rape, burglary, and battery in the second degree; (6) escape in the second degree; and (7) possession of a controlled substance with intent to deliver. Williams did not contest the existence of the seven prior convictions. The jury returned a verdict of 75 years. Following the verdict, this colloquy occurred:

THE COURT: Do you know of any legal reason why sentence should not be pronounced at this time?
WILLIAMS: I don’t know —
DEFENSE COUNSEL: Tell him whatever you want.
THE COURT: Do you know of any legal reason why sentence should not be pronounced at this time?
WILLIAMS: Excuse me.
DEFENSE COUNSEL: You can say whatever you want. That’s what I’m telling you. If you want to sáy something to the Judge, then say it.
WILLIAMS: At this moment, no, sir.

The trial court then sentenced Williams to 75 years.

Williams’s one issue on appeal is that a 75-year sentence for selling one rock of crack cocaine was the result of passion and prejudice on the part of the jury and wholly disproportionate to the crime. He urges that we modify the sentence downward and cites Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), as authority for doing so.

This court has previously decided that the power to exercise clemency and reduce sentences is vested in the chief executive of this State and not in the courts. Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990); Osborne v. State, 237 Ark. 5, 371 S.W.2d 518 (1963). If the sentence fixed by the trial court is within the limits set by the legislature, we are not at liberty to reduce it even though we might think it unduly harsh. Id. The exception to this rule is in death penalty cases. See Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991); Andrews v. State, 283 Ark. 297, 675 S.W.2d 636 (1984). We have further carved out extremely narrow exceptions to the general rule where the punishment resulted from passion or prejudice, or was a clear abuse of the jury’s discretion, or was barbarous and unknown to the law, or was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. See Parker v. State, 290 Ark. 94, 717 S.W.2d 197 (1986); Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978); Collins v. State, supra.

Be that as it may, we refrain from deciding this case on the merits. Williams, based on the quoted colloquy, clearly voiced no objection to the 75-year sentence at trial. Moreover, he did not file a post-trial motion raising the issue but did so for the first time on appeal. We have steadfastly refused to review issues which were not preserved at trial. Baker v. State, 318 Ark. 223, 884 S.W.2d 603 (1994); Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992).

Affirmed.


text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES, Division of Economic and Medical Services v. Michelle KISTLER
    94-1409
    898 S.W.2d 32
    Supreme Court of Arkansas
    Opinion delivered May 15, 1995

      Charles Mackey, for appellant.

      Davis Duty, for appellee.
   Andree Layton Roaf, Justice.

Appellant, Arkansas Department of Human Services (DHS), Division of Economic and Medical Services, terminated appellee Michelle Kistler’s participation in the Developmental Disabilities Services Alternative Community Services Waiver Program. Appellee Kistler filed a petition for judicial review pursuant to Ark. Code Ann. § 25-12-212 (Repl. 1992), and the circuit court reversed the appellant’s decision. We affirm the circuit court’s reversal of the appellant’s decision.

Appellee Michelle Kistler, born January 8, 1974, has congenital spina bifida and scoliosis, meningomyelocele paraplegia, hydrocephalus VP shunt, and a neurogenic bowel and bladder. She has a Wechsler Adult Intelligence Scale - Revised (WAIS-R) performance IQ of 68, WAIS-R verbal IQ of 80, WAIS-R full-scale IQ of 73, and a Vineland Adaptive Behavior Score of 109 plus or minus 8. Further, she receives Supplemental Security Income and is Medicaid qualified. She currently lives with, and is cared for by, her mother, Mrs. Jennifer Kistler. Because she is paraplegic, the appellee is confined to a wheelchair, needs assistance to get in and out of her wheelchair, needs assistance with bathing, and she cannot dress her lower extremities.

The Omnibus Budget Reconciliation Act of 1981 (Public Law 97-35, Section 2176) allows states the option of providing home and community based services, as an alternative to institutionalization, to a limited number of individuals with a developmental disability who would otherwise require an ICF/MR (Intermediate Care Facility for the Mentally Retarded) Level of Care. In accordance with the act, the appellant instituted the Developmental Disability Services Alternative Community Services Waiver Program (Waiver Program) and adopted eligibility requirements for applicants. See Medical Services Policy 2075.1.

The appellee was admitted to participate in the Waiver Program on September 18, 1991, with an effective date of August 1, 1991. The appellee was notified on August 19, 1992, that she was no longer eligible to participate in the program and her benefits would be terminated August 29, 1992. The appellee requested a hearing, which was held on November 5, 1992, before Hearing Officer Diana Little of the Appeals and Hearings Section of DHS. On October 18, 1993, the hearing officer issued a decision upholding the termination of appellee’s participation in the Waiver Program. Subsequently, the appellee filed a petition for judicial review in the Circuit Court of Sebastian County.

The Department of Human Services appeals from the circuit court’s order reversing the agency decision. Appellant raises five points on appeal: (1) the trial court erred in awarding attorney’s fees and costs; (2) the trial court erred in the standard of review it used; (3) the trial court erred in substituting its judgment for the judgment of the administrative hearing officer; (4) the trial court erred in reversing the administrative decision upon finding a violation of appellee’s due process rights; and (5) the trial court erred in determining that appellant failed to file the entire administrative record and reversing the administrative decision on that ground.

I. Review of Agency Decision.

The appellant asserts the trial court erred in applying a preponderance of the evidence standard and in substituting its judgment for that of the administrative hearing officer. In reversing the termination of benefits, the circuit court stated:

While it is not entirely clear whether or not the Defendant has formally adopted a specific criteria for entitlement to Alternative Medicaid Waiver Services by reason of mental retardation, the preponderance of the evidence reflects that if indeed any such criteria was established, either by formal action or by custom and usage, it was substantially identical to the criteria established for mental retardation under Section 12.05 C of Appendix 1, Subpart P, Regulation No. 4 (20 CFR § 404 et. seq.) adopted pursuant to the federal Social Security Act set out in Title II of the United States Code (42 USC); and that the criteria for mental retardation employed by the Vineland Adaptive Behavioral Test protocol is substantially identical to that prescribed by the federal guidelines and does not constitute a separate and additional mental retardation criteria; and that the Plaintiff, with a performance IQ of 68, verbal IQ of 80 and a full scale IQ of 73 and with other severe mental or physical impairments meets the aforesaid criteria for mental retardation.

Review of administrative agency decisions both by the circuit court and by the Supreme Court on appeal is limited in scope. Thomas v. Arkansas Department of Human Serv., 319 Ark. 782, 894 S.W.2d 584 (1995). Our review is not directed toward the circuit court but toward the decision of the agency recognizing that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. Franklin v. Ark. Dep’t of Human Serv., 319 Ark. 468, 892 S.W.2d 262 (1995). In addition, this court will not substitute its judgment for that of the agency unless the agency’s decision is arbitrary and capricious. Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 885 S.W.2d 863 (1994). Finally, the evidence is given its strongest probative force in favor of the agency’s ruling, and we do not reverse an agency decision when there is substantial evidence to support it. Thomas, supra.

Because our review is not directed toward the circuit court, we need only review the decision of the agency. On October 18, 1993, DHS issued its final decision terminating Kistler’s participation in the Waiver Program. The sole basis for the hearing officer’s decision to terminate benefits was the determination by the Utilization Review Section of the Office of Long Term Care that Kistler did not meet the ICF/MR Level of Care criteria because of her WAIS and Vineland Adaptive Behavior Scores. The relevant findings of fact and conclusions of law were:

FINDINGS OF FACT
* *
5. The summary of the Administrative Hearing was forwarded to the Utilization Review Section on December 15, 1992.
6. An EMS-704 dated January 12, 1993 was received in the Appeals and Hearings Office which indicated a decision that Ms. Kistler did not meet the criteria for DDS Waiver Services.
7. According to a memorandum from Walter O’Neal, M.D., Medical Director, Economic and Medical Services, dated January 14, 1993, Ms. Kistler was determined to not meet the criteria for ICF/MR level of care because her WAIS-R and Vineland Adaptive Behavior scores exceeded 70, which represents the upper limit of eligibility for ICF/MR level of care.
CONCLUSIONS OF LAW
1. Medical Services Policy 2075 states that Public Law 97-35, Section 2176, the Omnibus Reconciliation Act of 1981 allows states the option of providing home and community-based services, as an alternative to institutionalization, to a limited number of individuals with a developmental disability who would otherwise require an ICF/MR Level of Care.
2. Medical Services Policy 2075.1 lists eligibility requirements that must be met by Waiver applicants, including (#1) that individuals must be developmentally disabled as determined by the Division of Developmental Disabilities Services (DDS), and (#10) that individuals must be determined by the LTC Utilization Review Committee to require an ICF/MR level of care.
3. Medical Services Policy 2075.3 #1 states prior to Waiver acceptance, DDS will administer a comprehensive Diagnosis and Evaluation to determine that applicants are individuals with developmental disabilities. DDS will route form EMS-703, psychological reports, and medical reports to the OLTC Utilization Review Committee.
4. Medical Services Policy 2075.3 #2 states upon receipt of the EMS-703 and other reports, the Utilization Review Committee will determine if the applicant meets the ICF/MR Level of Care requirements. The results will be routed by EMS-704 to the County Office.
5. Medical Services Policy 2075.3 #2 also states if at any time an individual does not meet the requirements for an ICF/MR Level of Care, he/she will not be Waiver eligible.
6. The Level of Care Criteria issued by the Office of Long Term Care governing medical necessity eligibility for the developmentally disabled to be medicaid eligible for services provided in an Intermediate Care Facility for the Mentally Retarded provide that a client must have a diagnosis of developmental disability, due to a severe, chronic disability which: (1) is attributable to a mental or physical impairment or combination thereof, (2) is manifested before age 21; (3) is likely to continue indefinitely; (4) results in substantial functional limitations in 3 or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, economic self-sufficiency; and (5) reflects the client’s need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services which are of life-long or extended duration and are individually planned and coordinated; further, a pre-admission/pre-reimbursement evaluation of the client performed by an interdisciplinary team (including the areas of psychology, medical, nursing, social and habilitation, as a minimum) must determine the need for active treatment, outline the areas of active treatment needed by the client, and state that the needs of the client will be met as a resident in an ICF/MR.
DECISION
In order to be certified for Alternate Waiver Services, an individual must meet the eligibility requirements specified in MS 2075.1, including the need for an ICF/MR level of care. At the time of Ms. Kistler’s annual reevaluation, the Utilization Review Section of the Office of Long Term Care determined that she did not meet the ICF/MR Level of Care criteria, based on her WAIS and Vineland Adaptive Behavior Scores, and this determination was not reversed upon reconsideration of her eligibility following the appeal. One element of the medical necessity determination for an ICF/MR level of care classification considers the degree of functional limitations in the areas of major life activities, which is measured by the Vineland Adaptive Behavior test. Ms. Kistler’s score in this testing did not support a substantial limitation; therefore, she was not determined to meet the ICF/MR Level of Care criteria. . . .

(Emphasis supplied.)

In August of 1992, Ms. Kistler was notified her benefits would be terminated because she: “Does not meet ICF/MR admission criteria.” After the administrative hearing, Walter O’Neal, M.D., Medical Director of the Economic and Medical Services Division, was contacted by the Appeals and Hearings Office. Dr. O’Neal responded in a letter that both Ms. Kistler’s WAIS-R Full Scale IQ and her Vineland Adaptive Behavior Score exceed the upper limits of eligibility for ICF/MR level of care. These scores were from the testing done prior to her admission to the Waiver Program in 1991. No new testing was done for the 1992 reevaluation. Dr. O’Neal stated the upper limits of eligibility were a score of 70 on both the WAIS and Vineland tests, and Ms. Kistler’s “application is denied.” Based upon Dr. O’Neal’s response, the hearing officer affirmed the termination of benefits to Ms. Kistler.

This case is comparable to Franklin v. Arkansas Dep’t of Human Servs., supra, where we reversed the agency’s decision. In his concurring opinion, Justice Newbern wrote “[a] decision can be nothing but arbitrary when it is based upon no discernible standard.” In the instant case, Ms. Kistler’s benefits were terminated because, according to Dr. O’Neal, her WAIS-R Full Scale IQ and her Vineland Adaptive Behavior Score exceeded the upper limits of eligibility for ICF/MR level of care. However, other than the letter from Dr. O’Neal, we are unable to ascertain the “limits of eligibility.”

Medical Services Policy 2075.1 (#10) states that individuals, to be eligible, must be determined by the Long Term Care Utilization Review Committee to require an ICF/MR level of care. In her conclusions of law, the hearing officer states that the Level of Care Criteria issued by the Office of Long Term Care provide that a “client must have a diagnosis of developmental disability, due to a severe, chronic disability which: (1) is attributable to a mental or physical impairment or combination thereof. . . .” The record, however, is devoid of how that determination was made — other than Dr. O’Neal’s statement of the applicable standard. On appeal, the appellant asserts Ms. Kistler did not fall within the definition of developmentally disabled, but the appellant has failed to express how the agency defines developmentally disabled.

The trial court applied federal social security guidelines and found the appellee met the mental retardation requirements. The trial court further found that the appellee has severe physical impairments which were also sufficient to justify an award of Alternative Medicaid Waiver Services. However, in its brief to the circuit court, the appellant contended the Waiver Program falls under the medicaid program which is administered by the appellant and, therefore, the social security regulations should not be applied.

We will not speculate, as the trial court did, that the federal criteria would be substantially identical to the state criteria if any criteria indeed existed. To be invalid as arbitrary or capricious, the agency’s decision must lack a rational basis or rely on a finding of fact based on an erroneous view of the law. See Enviroclean, Inc. v. Arkansas Pollution Control, 314 Ark. 98, 856 S.W.2d 116 (1993). Since the appellant has not established that a discernible standard exists, we hold the termination of the appellee’s benefits was arbitrary.

II. Attorney’s Fees and Costs.

The trial court ordered the appellant to pay all court costs and an attorney’s fee for the appellee’s attorney in the amount of $5,000.00. Our general rule relating to attorney’s fees is that the recovery of attorney’s fees is not allowed except when expressly provided for by statute. State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994); Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). On appeal, the appellee submits that “overriding public policy requires the finding of an implied authorization in the Administrative Procedures Act for the payment of court costs and attorney’s fees to or on behalf of claimants who prevail against State Agencies in administrative reviews.” However, we find no basis for the award of attorney’s fees.

Ark. Code Ann. § 25-15-212 (Repl. 1992) provides the cost of the preparation of the record shall be borne by the agency, and the agency may only recover the cost of the record from the appealing party if the agency is the prevailing party. Thus, the statute provides only that the cost of the record shall be borne by the agency. The terms “costs” or “expenses” when used in a statute do not ordinarily include attorney’s fees. State v. McLeod, supra. Consequently, an award of attorney’s fees is not expressly provided for by § 25-15-212.

Further, § 25-15-212 establishes an entitlement to “judicial review of the action under this subchapter.” Section 25-15-212 establishes the rules and procedures applicable to the process. In Whitlock v. G.P.W. Nursing Home, Inc., 283 Ark. 158, 672 S.W.2d 48 (1984), this Court held the Rules of Civil Procedure do not apply to the judicial review procedure. In fact, we stated that when a party chooses to proceed pursuant to the Administrative Procedure Act he is bound by the procedures set out therein. Id. The procedures set out provide only that the cost of the preparation of the record may be borne by the agency.

Finally, Ark. Const. art. 5, § 20 prohibits awards of damages in lawsuits against the State of Arkansas and its institutions. Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995). In Smith, we recognized that if officers and employees of the State act without malice and within the scope of their employment, they are immune from an award of damages, including attorney’s fees, in litigation. The trial court did not find that any of the DHS employees acted with malice, nor is there any evidence that the employees acted with malice. Consequently, the circuit court had no basis for the award of an attorney’s fee.

III. Statutory and Constitutional Violations.

The circuit court found DHS failed to inform Ms. Kistler of the existence of a substantial body of evidence considered by the hearing officer, and the failure to make her privy to all the evidence material to and considered in arriving at the administrative decision constituted a deprivation of her right to due process as guaranteed by the Arkansas and United States Constitutions, thereby rendering the administrative decision fatally defective. In addition, the court found the appellant “failed to file the entire administrative record of the administrative proceedings with this court within ninety (90) days after the filing of Plaintiff’s petition as required by Ark. Code Ann. 25-15-212(d)(1) and therefore defaulted in its duties and obligations as specifically prescribed by the Act.” Because we find the agency’s decision was arbitrary, we need not address these points.

In sum, we affirm the circuit court’s reversal of the agency’s decision terminating Ms. Kistler’s benefits and reverse the circuit court’s award of an attorney’s fee.


text:
    John Michael BRAY v. STATE of Arkansas
    CR 95-436
    898 S.W.2d 37
    Supreme Court of Arkansas
    Opinion delivered May 15, 1995

      Robert W. Bush, for appellant.
    No response.
   Per Curiam.

The appellant, John Michael Bray, has filed a motion for rule on the clerk. His attorney, Robert W. Bush, admits that the record was tendered late due to a mistake on his part. We find that such admission of fault by an attorney in a criminal case is good cause to grant the motion. See Tarry v. State, 288 Ark. 172, 702 S.W.2d 904 (1986).

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