author: W.H. “Dub” Arnold, Chief Justice. Robert L. Brown, Justice,

text:
    WAL-MART STORES, INC. v. Carolyn BINNS
    99-810
    15 S.W.3d 320
    Supreme Court of Arkansas
    Opinion delivered April 27, 2000
    [Petition for rehearing denied June 1, 2000.]

      Joe Mazzanti, Judge;

      Williams & Anderson, LLP, by; Leon Holmes and Steven W. Quattlebaum, for appellant.

      Gibson & Hashem, P.L.C., by: Hard W. Hashem; Sara Sawyer, and Ogles Law Firm, by: John Ogles, for appellee.

       Glaze and Brown, JJ., would grant. Corbin, Imber, and Smith, JJ., not participating. (Special justices appointed.)

   W.H. “Dub” Arnold, Chief Justice.

Appellant, Walsticappeals e. circuit-court judgment, based upon a jury verdict, awarding appellee, Carolyn Binns, $750,000.00 in compensatory damages and $2,000,000.00 in punitive damages relating to Binns’s abuse-of-process and malicious-prosecution claims against Wal-Mart. On appeal, Wal-Mart contends that the circuit court erred by failing to direct verdicts on both claims because Binns failed to prove (1) the essential elements of the tort of abuse of process, and (2) the elements of the tort of malicious prosecution, namely, lack of probable cause and malice. Additionally, Wal-Mart argues that Binns was erroneously awarded punitive damages based upon a lesser degree of scienter than was required for the underlying tort. Although the appeal was originally filed in the Court of Appeals, we granted appellant’s request for supreme-court jurisdiction and accepted the case to consider a significant issue needing clarification or development of the law. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. R. 1-2(b)(5) (1999). After considering the issues on appeal, we find merit in appellant’s arguments. Accordingly, we hold that the circuit court erred by failing to direct verdicts on the abuse-of-process and malicious-prosecution claims, and we reverse the award of punitive damages.

Background

Carolyn Binns was an employee in the Monticello, Arkansas, Wal-Mart lay-away department. David Craig and Tim Langley, two of Wal-Mart’s managers, suspected Binns of theft through falsification of computer cash-register entries. In support of management’s belief that Binns had taken money from the registers, Wal-Mart points to the following facts: (1) on numerous occasions Binns canceled the final payment on a lay-away account shortly after a customer paid off the account and received the merchandise; (2) the register cash reports failed to show an “overage” when Binns performed this function; (3) Craig and Langley believed that the cash reports should have shown an overage in that situation; and (4) no other Wal-Mart employee performed the function Binns performed.

Following an internal investigation and questioning of Binns, Langley called the Monticello Police Department and reported the results of Wal-Mart’s investigation. Detective Charles Cater continued the investigation at the Wal-Mart store and, according to Langley, reviewed the entire file compiled by management, including detail tapes, cash reports, Langley’s notes, and payroll archives, that reflected the cancellation of final lay-away payments and the fact that the cash drawer was not “over” on the days on which these layaway payments were canceled. Detective Cater copied some portion of the file and sought an arrest warrant for Binns. Following a probable-cause hearing, a warrant was issued for Binns’s arrest. Flowever, approximately one year later, the prosecuting attorney nolle prossed the charges against Binns, apparently based upon insufficient evidence. Subsequently, Binns filed an action against WalMart for negligent prosecution, abuse of process, and malicious prosecution. Although the circuit court granted Wal-Mart summary judgment on the negligent-prosecution claim, a jury ultimately returned a verdict in Binns’s favor on the remaining claims.

Appellee’s principal witness at trial was Kevin Parker, a former Wal-Mart assistant manager at the Monticello store while David Craig was manager. Parker testified as an expert witness regarding procedures Wal-Mart employees should follow in a theft investigation. He also tendered his opinion as to what cash reports and computer records would reveal when a final lay-away account payment was made, canceled, and money remained in the cash drawer. Significantly, Parker acknowledged that management believed they had probable cause to bring charges against Carolyn Binns. Moreover, he testified that, based upon his review of the evidence and his personal knowledge of Craig, there was no ill will, spite, hatred, or spirit of revenge at work.

Wal-Mart timely moved for directed verdicts on both the abuse-of-process and malicious-prosecution counts. In response, Binns argued that based upon Kevin Parker’s testimony, probable cause did not exist for her arrest and Craig and Langley were incompetent and negligent in referring her to authorities. She also suggested that Wal-Mart’s motivation was that “[t]hey didn’t know the computer system, . . . They didn’t know how to run it.” In fact, she described their conduct as a “mistake” because they did not ask her any questions about how the computer ran and mistakenly concluded that she took money. Notably, Binns also admitted that she had no indication that either Craig or Langley were motivated by revenge, ill-will, spite, or hatred.

Binns also averred that Wal-Mart used the criminal prosecution in an effort to extort money from her. However, her own recollection belies that claim. She testified that Langley told her, “No matter what you say we’re going to prosecute; you’re going to pay this money back.” In light of this statement, Binns argues that the evidence was sufficient for the jury to infer malice, a required element for the tort of malicious prosecution. The circuit court agreed and denied appellant’s directed-verdict motions. From the verdict and damages awarded in favor of appellee, comes the instant appeal.

I. Abuse of process

Wal-Mart’s first point on appeal challenges the circuit court’s denial of its directed-verdict motion on Binns’s abuse-of-process claim. In reviewing the trial court’s denial of appellant’s directed-verdict motion, we must view all reasonable inferences in the light most favorable to Binns and affirm the jury’s verdict if there is substantial evidence to support it. Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another, forcing or inducing the mind to pass beyond suspicion or conjecture. Garrett v. Brown, 319 Ark. 662, 665, 893 S.W.2d 784, 786 (1995). Here, we conclude that the jury lacked sufficient evidence to support the verdict, and we reverse.

In order to prove the tort of abuse of process, a plaintiff must establish the following elements: (1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but (2) perverted to accomplish an ulterior purpose for which it was not designed, and (3) a willful act in the use of process not proper in the regular conduct of the proceeding. Union Nat. Bank of Little Rock v. Kutait, 312 Ark. 14, 16, 846 S.W.2d 652, 654 (1993). The key to an abuse-of-process claim is improper use of process after issuance, even when issuance has been properly obtained. Id. As distinguished from malicious prosecution, abuse of process “is somewhat in the nature of extortion or coercion.” Id.

In the instant case, Binns failed to introduce sufficient evidence to support her abuse-of-process claim. First, she produced no evidence that Wal-Mart committed an abusive or coercive act after the arrest warrant was issued. Second, she introduced no evidence that the process was initiated to accomplish an ulterior purpose for which it was not designed. In fact, Binns’s own testimony failed to support her theory that Wal-Mart threatened criminal prosecution in an effort to extort money from her. According to Binns’s, Langley told her, “No matter what you say we’re going to prosecute; you’re going to pay this money back.” The tenor of Langley’s alleged statement is that Binns would not escape prosecution regardless of her promise to pay. Likewise, appellee’s suggestion that Langley attempted to have her criminal charges reinstated after they were nolle prossed is not sufficiently borne out by the record. Langley testified only that he may have made one phone call to the prosecutor after he learned that the criminal charges were nolle prossed.

In sum, we cannot say that substantial evidence supported the jury’s findings that Wal-Mart’s actions were undertaken to accomplish an ulterior purpose for which the process was not designed. Nor can we find substantial evidence in the record that Wal-Mart acted wilfully in the use of process after issuance. Viewing all reasonable inferences in the light most favorable to appellee, we reverse the circuit court’s denial of appellant’s direct-verdict motion, and we reverse the jury’s verdict.

II. Malicious prosecution

Wal-Mart’s second point on appeal assigns as error the circuit court’s denial of its directed-verdict motion with respect to Binns’s malicious-prosecution claim. Again, when we review the trial court’s denial of appellant’s directed-verdict motion, we must view all reasonable inferences in the light most favorable to Binns and affirm the jury’s verdict if there is substantial evidence to support it. Garrett, 319 Ark. at 665, 893 S.W.2d at 786. We have held that the essential elements of the tort of malicious prosecution are (1) lack of probable cause, and (2) malice. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 31, 781 S.W.2d 31, 33 (1989). Significantly, the two elements are not interchangeable, although malice may be inferred from lack of probable cause. Id. Probable cause for prosecution must be based upon the “existence of facts or credible information that would induce the person of ordinary caution to believe the accused person to be guilty of the crime for which he is charged.” Id.

Generally, ordinary caution is a standard of reasonableness and an issue for the jury. Id. However, when the facts relied upon to establish probable cause are undisputed, the question of whether probable cause exists is one for the courts. Keebey v. Stifft, 145 Ark. 8, 21, 224 S.W. 396, 400 (1920). If Wal-Mart, as the defendant in this malicious-prosecution case, “believed and had grounds for entertaining ‘honest and strong suspicion’ that (Binns] was guilty” of a crime, it was entitled to a directed verdict. See id. Here, Wal-Mart claims that its employees, Craig and Langley, believed and had grounds for an honest and strong suspicion that Binns was taking money from the cash registers because (1) she canceled customers’ final lay-away payments shortly after they left the store with merchandise, and (2) cash reports revealed no corresponding cash overage. Notably, Binns introduced no evidence to contradict Wal-Mart’s argument that Craig and Langley believed that the cash report should have shown an overage under these circumstances. In fact, she suggested that they made a “mistake.” Viewed in the light most favorable to Binns, we cannot say that the jury had substantial evidence to find that Wal-Mart lacked probable cause.

To maintain a malicious-prosecution action, Binns must also prove the existence of malice. See Kable v. Carey, 135 Ark. 137, 142, 204 S.W. 748, 750 (1918). In support of the malice element, Binns relies upon the expert testimony of Kevin Parker, who reported that the Wal-Mart computer system would not have shown an overage when she canceled the last payment, even if she did not remove from the drawer the amount of the canceled payment. However, Parker also testified that, in his opinion, Craig and Langley believed that they had probable cause to conclude that Binns was taking money from the register. Moreover, based upon his evidentiary review and personal knowledge, Parker admitted that he did not believe that Craig and Langley’s actions in initiating the criminal proceedings arose from ill will, spite, or a spirit of revenge. Similarly, Binns’s own testimony confirms her belief that Wal-Mart management acted out of incompetence.

In the absence of any evidence of malice, the malicious-prosecution claim dissolves. Moreover, we expressly reject Binns’s argument that malice may be presumed from appellant’s negligence. Viewing all reasonable inferences in the light most favorable to Binns, we hold that the jury lacked substantial evidence to satisfy the elements of malicious prosecution. Accordingly, we conclude that the trial court erred by failing to direct a verdict in Wal-Mart’s favor, and we reverse the jury’s verdict.

III. Punitive damages

Wal-Mart’s final point on appeal is that the circuit court erred by permitting punitive damages to be awarded based upon a lesser degree oí scienter than was required for the underlying tort. The jury returned a general verdict for damages, awarding Binns $750,000.00 in compensatory damages and $2,000,000.00 in punitive damages, attributable to both the abuse-of-process and malicious-prosecution claims. Based upon AMI 2217, the circuit court instructed the jury that “in order to recover punitive damages from [Wal-Mart], Carolyn Binns has the burden of proving that the defendant intentionally pursued a course of conduct for the purpose of causing damage.” (Emphasis added.) In selecting AMI 2217, the court declined Wal-Mart’s proffered instruction requiring Binns to prove ' that Wal-Mart “intentionally and maliciously pursued a course of conduct for the purposes of causing damages to Carolyn Binns, carried out with the state of mind characterized by hatred, ill will, or a spirit of revenge.”

Appellant notes that the use of AMI 2217 under the instant facts creates an inconsistent standard for awarding punitive damages when the underlying tort involves malice. We agree. For example, the underlying claim of malicious prosecution (which could have formed the sole basis for the challenged punitive-damages award), requires that the plaintiff prove intent and a spirit of ill will, hatred, or revenge. However, the jury instruction submitted inconsistendy permits an award based on a lesser degree of scienter, merely proof that the defendant intentionally pursued a course of conduct for the purpose of causing damage. In hght of the nature of appellee’s claim, we conclude that the circuit court erred by submitting AMI 2217 to the jury because the instruction is inadequate for a tort requiring proof of malice. We reverse the circuit court’s judgment and award of punitive damages.

Special Associate Justices W.H. “SONNY” DILLAHUNTY and JONANN CONIGLIO FLEISCHAUER, join.

Glaze and Brown, JJ., dissent.

Corbin, Imber, and Smith, JJ., not participating.

Robert L. Brown, Justice,

dissenting. The majority opinion stice, evidence to support a jury verdict in favor of the appellee, Carolyn Binns. It is no wonder. The majority opinion examines only the evidence favorable to WalMart in its analysis. This is exactly the opposite of what the law requires.

To decide whether a jury’s verdict is supported by substantial evidence, we have adopted the following ground rules. It is not within this court’s province to try issues of fact; rather it is our task to review the record for substantial evidence to support the jury’s verdict. City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000). In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the fight most favorable to the party receiving the judgment. D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 469, 986 S.W.2d 836 (1999). If there is any substantial evidence to support the verdict, we affirm the trial court. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987). We have further held that the weight and value of testimony is a matter within the exclusive province of the jury. Routh Wrecker Serv. Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998); Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). Thus, what the majority should have done but fails to do in the instant case is view the evidence in the fight most favorable to Binns and to give that evidence its strongest probative force.

Strangely, the majority does not even mention the evidence favorable to Binns, much less give it its strongest probative force. In disregarding our oft-stated standard of review, the majority discards decades of jurisprudence followed by appellate courts in Arkansas and virtually every other state in this country. The net result is that our jury system is undermined by what amounts to a weighing of evidence and a retrial of the case at the appellate level.

a. Abuse of Process

The critical test for determining if the tort of abuse of process has been committed is whether there has been an improper use of process after its issuance to accomplish a purpose for which the process was not designed. Routh Wrecker Serv., Inc. v. Washington, supra.

The crux of Binns’s case was the expert testimony of a former Wal-Mart manager, Kevin Parker. Parker’s status as an expert is not contested by Wal-Mart in this appeal. He testified that Wal-Mart employees, Tim Langley and David Craig, only furnished the prosecutor with one piece of the evidentiary puzzle and that was the detail tapes from the cash registers. According to Parker, what they should have examined and turned over to the prosecutor were the daily cash reports to show whether the cash in the register drawer at the end of each day was long (too much) or short (too little). He further testified that store management is required to review the cash reports every day to ascertain whether the cash is short or long. If Binns had actually taken money, it would have shown up on the cash report, according to Parker. Finally, he made the point that once the lay-away account is closed after final payment, canceling the final payment of an inactive account has no effect on the money received. The only way to determine if money is missing is to examine the cash reports.

In sum, Parker concluded that had Craig and Langley looked at the cash reports, they would have known no money was missing from the cash registers. The warrant for Binns’s arrest issued at WalMart’s request on April 12, 1994. She was charged with a felony and a misdemeanor on May 25, 1994. It was not until June 5, 1995, more than year later, that the prosecutor dropped the charges. The prosecutor stated that he was doing so because there was insufficient proof based on Wal-Mart’s own records. Surely more than a year was sufficient time for Wal-Mart to examine the cash reports to determine whether cash was actually missing. This, according to Parker, Wal-Mart failed to do. More importantly, this failure by Wal-Mart allowed the prosecution against Binns to continue for over a year without providing the prosecutor with proof that cash was actually missing. According to Parker, the detail tapes proved nothing.

This court has held that allowing a prosecution to continue without providing all of the facts can constitute abuse of process. Routh Wrecker Serv., Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998); Harmon v. Carco Carriage Corp., 320 Ark. 322, 895 S.W.2d 938 (1995). That is exactly what occurred in this case.

I am, of course, aware of the fact that Langley and Craig testified that they had the cash reports and concluded that money had been stolen. But Parker, Binns’s expert, contradicted this testimony and testified that Langley could not have seen the cash reports. This was a credibility issue for the jury to resolve, and not this court. Union Pac. R.R. Co. v. Sharp, supra. Our function is to decide whether Parker’s testimony constitutes substantial evidence of abuse of process. And this court has made it perfeedy clear in the past that the testimony of an expert witness in support of a claim equates to substantial evidence unless it is shown that the opinion is without reasonable basis. Dixon Ticonderoga Co. v. Winburn Tile Mfg. Co., 324 Ark. 266, 920 S.W.2d 829 (1996); Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993); Wallace v. Williams, 263 Ark. 702, 567 S.W.2d 111 (1978).

There is no doubt that substantial evidence supporting the jury verdict existed on this count.

h. Malicious Prosecution

Wal-Mart mounts an offensive on the malicious-prosecution verdict on two bases: (1) Craig and Langley truly believed that Binns had stolen money, and (2) neither Binns nor Kevin Parker testified that the two Wal-Mart employees were malicious people. The first basis, of course, is self-serving, and the second is irrelevant since the determination of malice falls within the province of the jury. Furthermore, we have made it clear that malice can be inferred from a conscious indifference to the resulting consequences. See Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998). Again, the majority falls into the trap of recounting evidence supporting Wal-Mart’s theory of the case rather than examining and analyzing the evidentiary basis for Binns’s claim.

On the element of probable cause, Kevin Parker testified that had Langley and Craig looked at the cash reports, they would have known that probable cause was nonexistent. In addition, he recounted for the jury’s benefit that Wal-Mart had violated its own internal policies by not confirming employee theft by eyewitness testimony, a confession, or tapes from a video camera. It merely relied on the detail tapes which Parker made clear do not confirm an actual shortage of cash.

Malice may be inferred from a lack of probable cause. Corders v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). There was, too, Langley’s statement to Binns on March 28, 1994: “No matter what you say we’re going to prosecute; you’re going to pay this money back.” Again, in complete disregard of our standard of review, the majority interprets this statement in a light favorable to Wal-Mart. The jury, however, could have readily interpreted Langley’s comment as a threat to prosecute to get Binns to pay the money he suspected she had stolen. That, of course, would be evidence of malice. And if Wal-Mart failed to supply the critical cash reports to the prosecution in timely fashion, which Kevin Parker maintains were completely exculpatory, the jury could have accepted this as further evidence of malice. Finally, there was a telephone call by Langley to the prosecutor after the charges were dropped. Langley testified that he was not sure he tried to “meet” with the prosecutor to have the charges reestablished, but he did make a telephone call after the charges were dropped. Again, the jury could have taken that as an indication of malice.

In short, Wal-Mart pursued criminal charges against Binns for more than a year when, according to Kevin Parker, the cash reports exonerated her and when Wal-Mart had failed to follow its own procedures to establish employee theft. The prosecutor ultimately dropped charges due to insufficient evidence based on Wal-Mart’s records. A combination of the above easily qualifies as substantial evidence of malicious prosecution.

c. Punitive Damages

As a final point, the majority criticizes the trial judge for instructing on punitive damages for intentionally pursuing a course of conduct for the purpose of causing damage when that is precisely what our Model Jury Instruction provides and what we have confirmed in at least one decision. See AMI 2218, formerly AMI 2217; see also Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996). For the majority to blithely disregard AMI instructions and the Crooms case with no explanation is unfair to Binns in the extreme.

Of course, the majority need not reach the punitive damages point at all, because the majority would affirm no compensatory damages for Binns. Our cases are legion to the effect that there must be an award of compensatory damages to support an award of punitive damages. See, e.g., Limited Stores, Inc. v. Wilson-Robinson, 317 Ark. 80, 876 S.W.2d 248 (1994); Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988).

I conclude that the majority does a disservice to the parties in the case and to our common law when it fails to follow our standard of review, to discuss apposite case authority, or to examine evidence supporting the jury’s verdict and the resulting judgment. I would affirm the jury verdict.

Glaze, J., joins.

       The 1999 codification of AMI, Civil, lists former AMI 2217 on punitive damages as AMI 2218.


source: Caselaw Access Project

author: DONALD L. Corbin, Justice.

license: Public Domain

text:
    Corey DEWBERRY v. STATE of Arkansas
    CR 99-1079
    15 S.W.3d 671
    Supreme Court of Arkansas
    Opinion delivered April 27, 2000

      James Scott Hudson, Jr., Judge;

      Jim Pedigo, Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   DONALD L. Corbin, Justice.

Appellant Corey Dewberry stice. County Circuit Court of five counts of aggravated robbery, five counts of theft of property, and one count of aggravated assault. He was sentenced to five terms of life imprisonment, five terms of thirty years’ imprisonment, and twelve years’ imprisonment, respectively. Hence, our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1 — 2(a)(2). Appellant’s attorney has filed a motion to withdraw and a brief stating that there is no merit to the appeal. See Anders v. California, 386 U.S. 738 (1967); Ark. Sup. Ct. R. 4-3(j)(l). Appellant has not filed a pro se brief, as contemplated by Rule 4-3® (2). The State agrees that there is no merit to the appeal and recommends that Appellant’s convictions be affirmed. We conclude that counsel’s no-merit brief is not in compliance with Anders and Rule 4-3®, and we order rebriefing.

Appellant’s convictions arose from an incident that occurred at a bowling alley in Texarkana. The evidence showed that Appellant entered the business wearing a ski mask and carrying a gun. Appellant demanded money and jewelry from the five employees therein. He threatened to kill some of the employees and held one of the females at gunpoint during much of the time. One of the employees managed to call 9-1-1 while the robbery was occurring. As a result, the police were waiting outside the business when Appellant left. Appellant came out of the building with his gun raised and walked toward one of the officers. The officer responded by firing his gun. Other officers fired as well, and Appellant was hit by one of the shots. Appellant was arrested and charged with five counts of aggravated robbery and theft of property, for each of the five victims. He was also charged with committing aggravated assault on a police officer.

Appellant moved for a directed verdict at the close of the State’s case and then at the conclusion of all the evidence. The trial court denied both motions, and Appellant was convicted on all counts. During the course of the trial, Appellant made a motion to represent himself. The trial court denied the motion. No other adverse rulings were made during the trial. There was, however, one adverse ruling made prior to trial, when the trial court denied Appellant’s motion for a continuance. The argument portion of counsel’s brief discusses the issue of sufficiency of the evidence. It does not, however, discuss the two additional adverse rulings, which have been abstracted by the State pursuant to Ark. Sup. Ct. R. 4-3(h). As such, the brief does not comply with Rule 4-3®(l), which provides in pertinent part: Although the State has cured any abstracting defect by supplementing the additional adverse rulings, the fact remains that counsel’s argument addresses only the lack of merit regarding the sufficiency of the evidence. This court cannot affirm an appellant’s conviction without any discussion as to why a particular ruling by the trial court should not be meritorious grounds for reversal. See Skiver v. State, 330 Ark. 432, 954 S.W.2d 913 (1997) (per curiam); Whitfield v. State, 326 Ark. 762, 934 S.W.2d 484 (1996) (per curiam).

A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The abstract section of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the trial court. [Emphasis added.]

Accordingly, we direct Appellant’s attorney to submit a new brief containing a discussion of the merit of any issue that can be raised regarding the denial of the motions for continuance and self-representation. The new brief shall be filed on or before June 6, 2000. In accordance with Rule 4-3 (j) (2), Appellant will then have thirty days from that date to raise any additional arguments regarding those issues.

Rebriefing ordered.


author: Robert L. Brown, Justice.

text:
    Allyson HUNT v. Bryan HUNT
    99-855
    15 S.W.3d 334
    Supreme Court of Arkansas
    Opinion delivered April 27, 2000

      John Lineberger, Chancellor;

      Conner & Winters, P.L.L.C., by: John R. Elrod, Ruth Ann Wisener, and Vicki S. Bronson, for appellant.

      Shemin Law Firm, by: Kenneth R. Shemin, for appellee.
   Robert L. Brown, Justice.

This case is before us on ticfollowing e. grant of appellant Allyson Hunt’s petition to review an unpublished supplemental opinion of the court of appeals. The issue on review is whether the non-marital stock of appellee Bryan Hunt should be used to satisfy the margin debt he owes to Smith Barney or whether that debt should be deemed marital debt to be shared equally by the parties.

On December 17, 1987, Allyson Hunt and Bryan Hunt were married, and during the course of their ten-year marriage, they had four children. On June 18, 1997, Bryan Hunt filed for divorce, and on November 19, 1997, a divorce decree granting him a divorce and custody of the four children was entered. During their marriage, Bryan Hunt held several upper level management positions at J.B. Hunt Transport, Inc., while Allyson Hunt acted mainly as a homemaker. The salient points of the divorce decree regarding division of property are these:

• Bryan Hunt is to pay Allyson Hunt alimony at the rate of $2,750 a month for five years.
• Allyson Hunt is to keep her separate personal property, including certain furniture, paintings, jewelry, and clothing.
• 9,572 shares of J.B. Hunt Transport Co. are marital stock, while all remaining shares of J.B. Hunt stock held by Bryan Hunt are non-marital property (approximately 250,000 shares).
• 250 shares of Hunt Capital Corporation are marital stock to be divided evenly.
• A promissory note from Layton Stewart made payable to Bryan Hunt in the amount of $450,000 is marital property.
• 300 shares of Best Motor Company are marital property to be divided evenly. $2,170,000 borrowed from J.B. Hunt and Johnelle Hunt is a debt of the company.
• A federal income tax refund in the amount of $43,063 and an Arkansas state income tax refund in the amount of $13,823 are marital property.
• The parties’ residence at 5505 Bryant Place in Springdale is marital property.
• The following margin debts of Hunt Capital Corporation and Bryan Hunt are marital debts to be divided equally:
Smith Barney $649,584
John Tyson 3,000
Nations Bank 63,328
Montgomery Securities 132,794
Bear Stearns 247,594
• Bryan Hunt’s partnership interest in Hunt Capital Partnership in the amount of 25% of the profits and 50% of the losses is marital property.
• Bryan Hunt is to pay the cost of future counseling for Allyson Hunt, her health insurance for three years, and her attorney’s fees.

Following entry of the divorce decree, Allyson Hunt moved (1) to amend the divorce decree so as to have her share of one-half of the marital assets and all of her separate property transferred to her immediately, and (2) to hold Hunt Capital Corporation solely liable for all of the margin debt. The chancery court granted the transfer of the marital property but denied the request concerning the margin debt.

Allyson Hunt appealed the divorce decree to the court of appeals and raised several points. Initially, the court of appeals affirmed the chancery court across the board in an unpublished opinion. Hunt v. Hunt, CA 98-766 (March 3, 1999). On rehearing, the court of appeals entered an unpublished supplemental opinion, wherein it granted Allyson Hunt’s petition in part and denied it in part. Hunt v. Hunt, CA 98-766 (July 7, 1999). At issue was the marital debt arising out of the margin debt of Hunt Capital Corporation associated with the investment houses of Bear Stearns, Merrill Lynch, Montgomery Securities, and Smith Barney. Margin debt generally accrues, where the purchaser buys stock and finances part of the purchase price by borrowing against the stock purchased. Louis and Seligman, Fundamentals of Securities Regulation, p. 707 (Little Brown & Co. 1995).

The court of appeals found that the chancery court did not err in holding Allyson Hunt responsible for one-half of this margin debt. However, the court of appeals went further and held that the non-marital stock pledged by Bryan Hunt as collateral for the margin accounts of Bear Stearns, Merrill Lynch, and Montgomery Securities should be used first to satisfy the margin debts. The court of appeals denied the petition for rehearing with respect to the margin debt owed by Bryan Hunt to Smith Barney and stated that the money resulting in this debt was used (1) to pay part of the purchase price of the residence in Springdale, (2) to pay part of the furnishings for that residence, and (3) to pay living expenses. Two of the six court of appeals judges dissented from this decision and would have ordered Bryan Hunt’s non-marital stock to be used to pay the Smith Barney debt also.

We initially note that the court of appeals’s supplemental opinion holding that the non-marital stock of Bryan Hunt be used to satisfy the margin debts owed to Bear Stearns, Merrill Lynch, and Montgomery Securities is not at issue in our review and, thus, stands as a modification of the divorce decree. The point, which is the subject of this review, is whether Bryan Hunt’s non-marital stock should also be used to pay the margin debt he owes to Smith Barney.

Allyson Hunt asks this court to determine that Bryan Hunt’s non-marital stock in J.B. Hunt Transport Services, Inc. held in his personal Smith Barney account (#165-23869-11) be used to satisfy the margin debt owed to Smith Barney or, alternatively, that she not be held responsible for this debt. She disputes the fact that the loans made on this Smith Barney account were used to pay for household or living expenses and claims that during their marriage, Bryan Hunt derived substantial income each month from his employment at J.B. Hunt Transport Co. which was used for their living expenses. She maintains that the chancery court should have made an unequal division of property, which it had the authority to do under Ark. Code Ann. § 9-12-315 (Repl. 1998). Moreover, she contends that Bryan Hunt offered to pay all of the margin debt prior to the divorce decree, including the debt he owed to Smith Barney. Finally, she contends that she is being saddled with payment of one-half of the $649,584 Smith Barney margin debt when she has not been given sufficient assets or income from the marital estate to satisfy that debt.

Bryan Hunt merely points to his testimony at trial where he stated that the Smith Barney loan was used to pay cost overruns on construction of the residence which totaled almost $400,000; to pay for furnishings in the home which totaled approximately $200,000; and to support the parties’ standard of living. He further claims that any offer by him to pay all margin debt was made in a proposed pretrial property division, which is not binding, and he concludes that the chancery court did not err by attempting to make an equal distribution of assets and debts.

We begin by observing that this court reviews chancery cases de novo on the record, and we will not reverse a finding of fact by the chancery court unless it is clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). In reviewing a chancery court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Myrick v. Myrick, supra.

All marital property must be distributed equally under our divorce law unless the chancery court finds such a division to be inequitable. Ark. Code Ann. § 9-12-315(a)(l)(A); Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988). The chancery court has the authority to make an unequal division of marital property under the statute. If an unequal division is made, the court must take the following factors into consideration: the length of the marriage; age, health and station in life of the parties; occupation of the parties; amount and sources of income; vocational skills; employability; estate, liabilities, and needs of each party and opportunity of each to further the acquisition of capital assets and income; contribution of each party in the acquisition, preservation, or appreciation of marital property, including services as a homemaker; and the federal income tax consequences of the court’s division of property. Ark. Code Ann. § 9-12-315(a)(l)(A)(i-ix).

In the instant case, the chancery court found that Bryan Hunt’s margin debt in Smith Barney account #165-23869-11 was a marital debt due to the benefit bestowed on both parties by these loans. That benefit was made clear by Bryan Hunt’s testimony where he stated that this Smith Barney debt was incurred to finance cost overruns on the construction of the parties’ residence, for furnishing the house, and generally to pay for the parties’ lifestyle and living expenses. Allyson Hunt did not refute this in her own testimony and, indeed, confirmed the high cost of the house and the furnishings. Allyson Hunt, however, now urges this court to follow its caselaw. She claims that this court has sanctioned an unequal division of property, when the husband’s non-marital property or high income warranted such a result. She directs our attention specifically to Hale v. Hale, 307 Ark. 546, 822 S.W.2d 836 (1992), and Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983).

Neither case, however, provides precedent for the instant case. In Hale, for example, we affirmed the chancery court’s recognition that the husband had formally volunteered in a mortgage agreement to put up 119 acres of non-marital land as security for the parties’ consolidated debt loan. Under these facts, we agreed with the chancery court that this mortgaged land should be used to satisfy that debt. Similarly, in Richardson, we affirmed the chancery court’s division of property and debts which took into account the husband’s high income. We refused to hold that the chancery court had clearly erred in that regard.

In the case before us the extent of Bryan Hunt’s monthly income is at issue as well as the profitability of the various marital assets. The chancery court heard the testimony of the parties and other witnesses and sought to produce an even division of the assets and debts. Allyson Hunt adduces the Hale and Richardson cases as authority for reversing the chancery court in the instant case. However, in both of those cases, we affirmed the division of property by the chancery court and held that that court had not erred. Likewise, we conclude that the findings of the chancery court in dividing the assets and debt in the case at hand are not clearly erroneous.

We additionally note that the Smith Barney account in dispute in this review (#165-23869-11) was in the name of Bryan Hunt and not in the name of Hunt Capital Corporation, as the other margin accounts at issue before the court of appeals appear to have been. The record shows account activity in this Smith Barney account for the years 1996 and 1997. For a two-month period in 1996, J.B. Hunt Transport Services stock was placed in the Smith Barney margin account, but it was not in the margin account during 1997. There is nothing in the record to support the proposition that the J.B. Hunt Transport Services stock was pledged as security or collateral for the Smith Barney margin debt. Indeed, Allyson Hunt does not argue that it was. Rather, she contends that fairness dictates that the non-marital stock be used to pay off the debt.

In her petition for review, Allyson Hunt argued for the first time that the chancery court erred in not following a statute, which she contends is on point. That statute reads:

No bargain or contract made by any married person, in respect to his or her sole and separate property or any property which may come to him or her by descent, devise, bequest, purchase, or gift or grant of any person, and no bargain or contract entered into by any married person, in or about the carrying on of any trade or business, under any statute of the state, shall be binding upon his or her spouse, or render his or her person or property in any way liable therefor.

Ark. Code Ann. § 9-11-508 (Repl. 1998). This statute also formed the basis for the dissent to the supplemental opinion in the court of appeals. In support of her argument, Allyson Hunt points to Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991), and Davis v. Baxter County Reg’l Hosp., 313 Ark. 388, 855 S.W.2d 303 (1993). Neither Medlock nor Davis were divorce cases, however, where the propriety of the division of marital property was at issue. Rather, both cases involved the common-law doctrine of necessaries and the impact of § 9-11-508 on that doctrine. A statute that deals with spousal liability to third-party creditors is not controlling on the issue of marital debt associated with division of property in a divorce case. They are simply two disparate and distinct matters. We conclude, therefore, that § 9-11-508 is inapposite and note once more that Allyson Hunt did not raise the statute in support of her position to the chancery court or initially to the court of appeals but only did so in her petition for review before this court.

We turn, finally, to the overarching argument made by Allyson Hunt that her share of the Smith Barney debt is staggering, and the marital assets she has received and her potential for enhanced monthly income are meager by comparison. She alludes to the high mortgage debt on the residence which consumes any equity and the personal debt owed to J.B. and Johnelle Hunt by Best Motor Company. As for her interest in the Layton Stuart promissory note, her counsel at oral argument characterized that as virtually worthless, because it is being offset by another obligation in a comparable amount. With respect to the marital property she has received, she values that at only $115,000.

We will not speculate on the earning potential of Best Motor Company, the future viability of the Layton Stewart promissory note, or the value of any other marital asset received by Allyson Hunt. Suffice it to say that the chancery court thoroughly examined this matter as is evidenced by the record in this case and examined the credibility of the witnesses. The court of appeals then modified the divorce decree with regard to payment of Hunt Capital Corporation’s margin debt in a manner with which we take no issue. We further observe that should the economic situation of Allyson Hunt change, her award of alimony may be subject to modification. Ark. Code Ann. § 9-12-314(a) (Repl. 1998); Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998).

We affirm the divorce decree as modified by the court of appeals.

IMBER, J., not participating.


author: LAVENSKI R. SMITH, Justice.

text:
    NEWCOURT FINANCIAL, INC. v. CANAL INSURANCE COMPANY
    99-1249
    15 S.W.3d 328
    Supreme Court of Arkansas
    Opinion delivered April 27, 2000

      Floyd “Pete” Rogers, Judge;

      Barrett & Deacon, by: D.P. Marshall Jr. and James D. Bradbury, for appellant.

      Ledbetter, Cogbill, Arnold & Harrison, LLP, by: Rebecca D. Hattabaugh, for appellee.
   LAVENSKI R. SMITH, Justice.

Appellant Canal Insurance Company (“Canal”) petitioned for review from a court of appeals decision remanding the case to the Crawford County Circuit Court for a determination of attorney’s fees to be awarded to Appellee Newcourt Financial, Inc. (“Newcourt”), under Ark. Code Ann. § 23-79-208. We granted the petition pursuant to Arkansas Supreme Court Rule l-2(e). However, upon review, we agree that the case should be remanded for determination of fees, penalty, and interest.

Facts

In early 1996, Mike Fisher bought a commercial truck and financed it through Newcourt. He insured it with Canal in a policy issued January 3, 1996. Attached to the policy was a “Loss Payable Clause” which indicated that any loss or damage would be payable to Newcourt in accordance with its Hen interest. It further provided that Newcourt’s right to payment “shall not be invalidated by an act or neglect of [Fisher]....” On November 30, 1996, Fisher, while traveling on Interstate 40 near Webbers Falls, Oklahoma, lost control of his truck, ran off the road, and overturned. Shortly after overturning, the truck caught fire and burned. The truck was a total loss. Fisher properly reported the loss to Canal and requested payment under the insurance policy. Canal investigated the claim and ultimately denied payment. Canal believed that Fisher intentionally caused the fire. It denied the claim contending that loss due to arson is specifically excluded from coverage under the policy.

To have its rights and obligations under the policy determined, Canal filed a declaratory-judgment action in the Crawford County Circuit Court on March 20, 1997. Canal sought a decision by that court that Fisher purposely caused the truck fire and that Canal, therefore, had no duty to pay under the policy due to arson. It also alleged that if Fisher’s acts caused the loss, Newcourt should be denied coverage under the loss-payee clause as well. Canal named both Fisher and Newcourt in the complaint and served them separately. Canal specifically alleged that “Mike Fisher and Newcourt each have or claim an interest which would be affected by a declaration regarding coverage under the Canal policy, and therefore they are necessary parties to this lawsuit.” In substance, Canal requested only for a determination from the court whether Fisher caused the loss by intentional conduct.

Newcourt answered and counterclaimed on April 15, 1997. Fisher answered on April 24, 1997. In its counterclaim, Newcourt requested two things. First, Newcourt requested payment of all attorney’s fees, twelve percent penalty, interest and costs under several statutory provisions, including Ark. Code Ann. § 23-79-208. Second, Newcourt requested that it have judgment against Canal for the full amount of its interest in the policy proceeds for the loss that occurred. Newcourt asserted that even if Fisher committed arson, it would still be entitled to payment under the terms of loss-payee clause. Canal filed an amended complaint and an answer to Newcourt’s counterclaim on April 25, 1997.

The circuit court tried the matter to a jury on August 17, 1998. The jury returned a verdict in Fisher’s favor finding no arson. Flowever, the parties disagreed about the effect of the declaratory judgment. Both Newcourt and Fisher filed posttrial requests for attorney’s fees. Canal responded on August 31, 1998, arguing that because it brought a declaratory-judgment action, attorney’s fees were only allowed under Ark. Code Ann. § 23-79-209, and that fees could only be paid to Fisher’s attorney. Canal also argued that fees were not allowed to Newcourt under Ark. Code Ann. § 23-79-208.

The trial court entered its judgment on August 31, 1998, wherein it declared that “insurance coverage existed for the loss of the 1996 Marmon truck owned by Defendant, Mike Fisher and financed by Defendant, Newcourt Financial, Inc.” Furthermore, the court ordered Canal to pay the insurance policy proceeds to Fisher and Newcourt, as their interests appear. Finally, the court awarded $3,300.00 in attorney’s fees to Fisher as “holder” of the policy. However, the court denied attorney’s fees to Newcourt as loss-payee, citing Ark. Code Ann. § 23-79-209. On September 14, 1992, Newcourt filed a motion to amend judgment and requested a hearing before the court to present its issues, which the trial court denied. Newcourt timely filed its notice of appeal on October 2, 1998, and an amended notice on November 13, 1998.

On appeal to the Arkansas Court of Appeals, Newcourt argued that the trial court erred in failing to award the statutory penalty of twelve percent prejudgment interest, and reasonable attorney’s fees under Ark. Code Ann. § 23-79-208. In response, Canal contended that Newcourt was not entided to any remedies because this was a declaratory-judgment action governed by Ark. Code Ann. § 23-79-209, not Ark. Code Ann. § 23-79-208. Canal contended that Ark. Code Ann. § 23-79-209 does not provide for fees for a party in Newcourt’s position. The court of appeals, in its October 6, 1999 opinion, determined that Newcourt satisfied the requirements of Ark. Code Ann. § 23-79-208 and was entitled to the policy proceeds plus the penalty and fees required under Ark. Code Ann. § 23-79-208. The court of appeals remanded the matter to the trial court to determine the correct amount of fees and costs due Newcourt.

Standard of Review

On a petition for review, we consider the case as if it were originally filed with this court. Raynor v. Kyser, 338 Ark. 366, 993 S.W.2d 913 (1999); ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). Because the trial judge rather than the jury decided the issue of attorney’s fees, the standard of review on appeal is whether the trial judge’s findings were clearly erroneous. Ark. R. Civ. P. Rule 52(a); Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998); McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998). We view the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee. Id. On review of an issue of statutory interpretation, we are not bound by the decision of the circuit court. Fiowever, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998); Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977).

Attorney’s fees

At issue in this case is the interpretation of two insurance statutes that address payment of attorney’s fees. When read together these provisions resolve the instant case. Ark. Code Ann. § 23-79-208, entided “Damages and attorney’s fees on loss claims,” states in pertinent part: ■

(a)(1) In all cases where loss occurs and the cargo, fire, marine, casualty, fidelity, surety, cyclone, tornado, life, health, accident, medical, hospital, or surgical benefit insurance company and fraternal benefit society or farmers’ mutual aid association liable therefor shall fail to pay the losses within the time specified in the policy after demand made therefor, the person, firm, corporation, or association shall be liable to pay the holder of the policy or his assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorney’s fees for the prosecution and collection of the loss.

Its statutory neighbor, Ark. Code Ann. § 23-79-209, entitled “Allowance of attorney fees in suits to terminate, modify, or reinstate policy,” states in pertinent part:

(a) In all suits in which the judgment or decree of a court is against a life, fire, health, accident, or liability insurance company, either in a suit by it to cancel or lapse a pohcy or to change or alter the terms or conditions thereof in any way that may have the effect of depriving the holder of the pohcy of any of his rights thereunder, or in a suit for a declaratory judgment under the policy, or in a suit by the holder of the pohcy to require the company to reinstate the pohcy, the company shall also be liable to pay the holder of the pohcy all reasonable attorneys’ fees for the defense or prosecution of the suit, as the case may be.

These two provisions address attorney’s fees in different types of lawsuits, both of which happen to be present in this case. It must be borne in mind that this case involves both a claim for declaratory judgment by Canal and a counterclaim for payment of the insurance claim and attorney’s fees by Newcourt. The declaratory-judgment action implicates section 23-79-209, whereas the counterclaim issues are governed by section 23-79-208.

I. Arkansas Code Annotated § 23-19-209

From its plain language section 23-79-209 applies to actions where judgment is ultimately rendered against certain insurance companies in suits initiated by the companies. It specifically includes a declaratory-judgment action. It also applies to suits filed by holders of policies seeking to reinstate a canceled policy. In this case, Canal filed a declaratory-judgment action to determine whether coverage existed under the facts. Specifically, Canal prayed for the following relief:

FIRST: That the damages to the 1989 Marmon truck insured by the Canal pohcy were intentionally caused by the actions of the Defendant, Mike Fisher and that, therefore, coverage does not exist under the Canal Insurance Company policy with respect to any claim asserted by Mike Fisher or Newcourt arising out of the loss resulting from the November 30, 1996 incident.
SECOND: That, in the alternative, that the damages to the 1989 Marmon truck insured by the Canal policy were intentionally caused by the actions of the Defendant, Mike Fisher, and that, therefore, the Plaintiff, Canal, is entitled to judgment against Mike Fisher in the amount of any monies that Canal is held to be liable to Newcourt arising out of Mike Fisher’s intentional acts.
THIRD: That Canal Insurance Company is entitled to recover its costs herein and have all other just and proper relief.

Clearly, Canal asked the court to “declare” whether coverage existed under the policy. A declaratory-judgment action seeks to avoid uncertainty and insecurity with respect to rights, status, and other legal relations. See Ark. Code Ann. §§ 16-111-101 et seq. Canal’s complaint for declaratory judgment asked the court to determine a right or immunity on its behalf. It sought no other relief. Here, the jury declared that the facts did not support an allegation of arson and that coverage existed under the insurance policy. Accordingly, the fees awarded to Fisher under section 23-79-209 were proper as he is the “holder” of the policy and the prevailing party in the declaratory-judgment action. Canal questioned Fisher’s coverage, and his defense defeated the declaratory-judgment action, entitling him to fees for his defense in that action. The trial court’s award of attorney’s fees to Fisher is therefore affirmed.

II. Arkansas Code Annotated § 23-79-208

Section 23-79-208, as contrasted with section 23-79-209, applies “in all cases where loss occurs and the ... insurance company ... therefore shall fail to pay the losses within the time specified in the policy after demand [is] made....” Ark. Code Ann. § 23-79-208(a)(1). In this case, because the declaratory-judgment action “orders nothing to be done,” it was only Newcourt’s counterclaim which would enable the circuit court to order any affirmative relief to Newcourt or Fisher. By ordering that Canal pay benefits to Newcourt, the circuit court effectively granted Newcourt’s counterclaim under section 23-79-208. This section allows fees, penalties, and interest to the “holder of the policy or his assigns.”

In its decision, the circuit court denied attorney’s fees and costs to Newcourt, finding that section 23-79-209 does not authorize attorney’s fees to a loss-payee. If based solely upon the language of section 23-79-209, that would appear to be the correct finding since section 23-79-209 only allows fees for the “holder”of the policy. However, because the court ordered payment under the policy, it necessarily did so pursuant to the counterclaim for payment for a “loss” under section 23-79-208 since the declaratory-judgment action would not provide such relief. By contrast, attorney’s fees, costs, and the 12% penalty are due the “holder” or his “assigns” in a section 23-79-208 action.

In their briefs, the parties summarize cases involving an award of fees under sections 23-79-208 and 23-79-209 and their predecessors, and the relation between these two sections. However, none of the cases cited by either party directly addresses the issue of the award of attorney’s fees to the loss-payee under section 23-79-208. Canal asserts that Mid-South Ins. Co. v. Dellinger, 239 Ark. 169, 388 S.W.2d 6 (1965) (decision under prior statute), “stands for the proposition that the denial of attorney’s fee, penalty and interest in a declaratory judgment action” in cases such as this is appropriate. Contrary to Canal’s assertion, this court actually determined that when an insured is required to defend an action by an insurer and files a counterclaim for attorney’s fees and the penalty under section 23-79-208, such fees may be available. However, the Dellinger court determined that “justice is fully served by denying an attorney fee in this particular case.” Dellinger, 239 Ark. at 172. (Emphasis added.) Therefore, despite Canal’s contention, Dellinger actually supports an award for fees in a counterclaim under section 23-79-208 for defending a section 23-79-209 declaratory-judgment action when a loss is actually recovered. However, Dellinger did not involve a loss-payee.

As Canal notes, we held in Home Ins. Co. v. Crawford, 251 Ark. 843, 475 S.W.2d 889 (1972), that a section 23-79-208 claim for penalties and fees is permissible as a counterclaim against an insurer’s section 23-79-209 action. This is entirely consistent with the implication in Dellinger. The Crawford court stated:

No error was committed in the allowance of the 12% penalty pursuant to Ark. Stat. Ann. § 66-3238 (Repl. 1966) [Ark. Code Ann. § 23-79-208] on the counterclaim filed by appellee. That statute provides for the payment of the penalty where a loss has occurred and the insurer fails to pay after demand has been made therefor. We can find nothing in Ark. Stat. Ann. § 66-3239 (R.epl. 1966) [Ark. Code Ann. § 23-79-209] that prevents the allowance of the penalty upon a counterclaim for a loss.

Crawford, 251 Ark. at 845. Crawford was the insured under the policy and, as in Dellinger, no loss-payee participated as a party.

Canal strongly argues that this court has already held that a loss-payee is not entitled to the section 23-79-208 remedies. See Farmers Mutual Ins. Co. v. Lane, 278 Ark. 53, 643 S.W.2d 53 (1982). We disagree. In Lane, the trial court ordered Farmers to pay the penalty and fees under section 23-79-208 for failure to make timely payment to the insureds, the Lanes. The Lanes’ insurance contract had a designated loss-payee, a Mrs. Smith, who ultimately received the insurance payments. The insurance company argued that the Lanes were not entided to fees under the statute because the insurance policy had lapsed before the loss occurred. The Lanes’ policy had, in fact, lapsed before the loss occurred, but the loss-payee still had an enforceable right to payment from the insurance company for ten days after the policy expired. The loss occurred within the ten-day period. The court, in effect, held that because the Lanes had to bring the action to recover the insurance payment on behalf of the loss-payee who still had rights under the policy, the Lanes were entitled to the fee and penalty under section 23-79-208. Lane is clearly distinguishable from the instant case. The loss-payee in Lane was not a party to the action and made no claim for attorney’s fees. The insured filed the claim and pursued it to judgment. Given those facts, it was entirely reasonable for the court to award the penalties and fees to Lane while ordering that the insurance proceeds go to the loss-payee.

As the court of appeals noted, this court has held that a loss-payee is an “insured” in the sense that it can sue to enforce a policy under which it would ultimately be paid. See Huddleston v. Home Life Ins. Co. of New York, 182 Ark. 1036, 34 S.W.2d 221 (1931). See also Lucas County Bank of Toledo v. Am. Cas. Co., 221 Ark. 916, 256 S.W.2d 557 (1953) (Lucas discusses the difference between open and standard loss-payee clause language. Specifically the court emphasized that standard clauses, such as in the instant case, could not be invalidated by “any act of the owner”). We further stated in Federal Life & Cas. Co. v. Weyer, 239 Ark. 663, 391 S.W.2d 22 (1965) that “[I]t is well settled that attorney’s fees and penalty attach if the insured is required to file suit....” In Equitable Life Assurance Soc. v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974), we stated:

The fee is allowed only to reimburse an insurance policyholder or beneficiary for expenses incurred in enforcing the contract and to compensate him in engaging counsel thoroughly competent to protect his interests. (Citations omitted.) It is not the property of the attorney, but is indemnity to the litigant. (Citations omitted.) The purpose of the statute is to permit an insured to obtain the services of a competent attorney and the amount of the allowance should be such that well prepared attorneys will not avoid this class of litigation or fail to devote sufficient time for thorough preparation. (Emphasis added.)

Rummell, 257 Ark. at 91. Given the rationale for the statute, it would seem reasonable that if the loss-payee, as a beneficiary of the policy, brought the lawsuit to enforce payment which would ultimately be paid to it, the loss-payee’s attorneys should be allowed the fee.

Section 23-79-208 does not limit recovery of penalties and fees to just the holder of the insurance contract. It also permits recovery by the “assigns” of the holder. In the instant case, the express language of the loss-payee clause in Canal’s policy assigned Fisher’s payment rights under the insurance policy to Newcourt commensurate with Newcourt’s security interest. Newcourt thus became an assign of Fisher for purposes of section 23-79-208.

In conclusion, we hold that Newcourt, based upon its express contract rights to payment of insurance proceeds commensurate with its interest in the insured’s property, was entitled to seek enforcement of those contract rights under section 23-79-208. Newcourt’s entitlement to payment did not depend upon whether or not Fisher committed arson. The loss-payee clause stated that fact plainly. Additionally, as an assign of Fisher, Newcourt was also entitled to the attorney’s fees and penalties available under section 23-79-208, including prejudgment interest. The trial court correctly granted Fisher attorney’s fees for his defense of Canal’s section 23-79-209 claim. It also correctly awarded insurance proceeds to Newcourt as loss-payee. It should have also granted Newcourt penalties, interest and fees for its prosecution of a separate successful claim under section 23-79-208. Therefore, we reverse and remand to the trial court for entry of an order consistent with this opinion.

Affirmed in part; reversed in part, and remanded.

        Newcourt Fin., Inc. v. Canal Ins. Co., 67 Ark. App. 347, 1 S.W.3d 452 (1999).

       The purpose is further detailed in the Commentary to this Act which states:
      The Declaratory Judgment may be either affirmative or negative in form and effect; it may determine some right, privilege, power or immunity in the plaintiff, or some duty, no-right, liability or disability in the defendant. The judgment is not based on any wrong already done or any breach committed. It is not required to be executed, as it orders nothing to be done. It simply declares rights and duties so that parties may guide themselves in the proper legal road, and, in fact, and in truth, avoid litigation. (Emphasis addded.)


author: PER CURIAM.

text:
    Jimmy EASLEY and Vickey Wagner Easley v. STATE of Arkansas
    CR 00-144
    15 S.W.3d 343
    Supreme Court of Arkansas
    Opinion delivered April 27, 2000

      Mathis & DeJanes, by: Winston C. Mathis, for appellant.
    No response.
   PER CURIAM.

Jimmy Easley and Vickey Wagner Easley, IAM. appellants in this matter, have filed a second amended motion for rule on clerk to enable them to file a record late in a criminal case. Counsel for the Easleys, Winston C. Mathis, accepts full responsibility for failing to file the record in timely fashion. Appellants previously filed a similar motion for rule on clerk, but it was denied because there was no information in the supreme court clerk’s office that the record had been tendered. It has now been brought to this court’s attention that the record was tendered but under an erroneous number. The record has now been tendered under the correct docket number. Appellants’ attorney, Winston C. Mathis, admits in the motion that the record was not timely filed due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Paul EMERY v. STATE of Arkansas
    CR 97-993
    15 S.W.3d 672
    Supreme Court of Arkansas
    Opinion delivered April 27, 2000

      Val P. Price, Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   PER CURIAM.

Val P. Price, attorney for Paul Emery, petiIAM. reconsideration of this court’s order issued on February 16, 2000, which denied his motion for attorney’s fees. We conclude that Mr. Price’s petition has merit and, therefore, grant his motion for attorney’s fees.

Appellant Paul Emery was convicted in the Jackson County Circuit Court of one count of rape and one count of sexual abuse. He was sentenced to prison terms of forty years and ten years, respectively. Pursuant to Anders v. California, 386 U.S. 738 (1967), Mr. Emery’s appointed counsel, Val P. Price, filed a motion to be relieved and a brief stating there was no merit to the appeal. Mr. Emery also filed a pro se brief. This court affirmed the convictions and sentences in Emery v. State, CR 97-993, slip op. (Ark. Nov. 4, 1999).

Mr. Price, a state-salaried public defender, filed a motion for attorney’s fees pursuant to Ark. Sup. Ct. R. 6-6 (c) for work done on Mr. Emery’s criminal appeal. We denied the motion for attorney’s fees, citing Rushing v. State, 340 Ark. 84, 8 S.W.2d 489 (2000), where we held that Ark. Code Ann. § 16-87-214 precludes state-salaried public defenders from receiving additional compensation from the State for their services. See also, Ark. Code Ann. §§ 19-4-1601 — 1615. On February 22, 2000, Mr. Price filed a motion for reconsideration of the denial of his motion for attorney’s fees, asserting that he became a state-salaried public defender on January 1, 1998. Fie further states that all of the work for which he seeks compensation occurred prior to that date while he was a part-time public defender paid by Jackson County. Mr. Price does not seek compensation for any work which he performed as a state-salaried public defender.

In view of these representations by Mr. Price, we conclude that he did not become a state-salaried public defender subject to the limitations of Ark. Code Ann. § 16-87-214 until January 1, 1998. We therefore hold that he is entitled to attorney’s fees under Ark. Sup. Ct. R. 6-6(c) for any work on Mr. Emery’s appeal that was performed prior to Mr. Price’s employment as a state-salaried public defender.

Motion Granted.


text:
    Frank WILLIAMS v. STATE of Arkansas
    CR 99-1221
    15 S.W.3d 343
    Supreme Court of Arkansas
    Opinion delivered April 27, 2000

      Alvin Schay, for appellant.
    No response.
   PER CURIAM.

Appellant Frank Williams, Jr., by and through AM. attorney Alvin Schay, has filed a motion for an extension of time to file appellant’s brief. Appellant was convicted of capital murder and sentenced to death by lethal injection. Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). He then filed a petition for postconviction relief, and the petition was denied. He now appeals the denial of that petition.

On October 18, 1999, the record in this appeal was lodged with the clerk of this court and a briefing schedule was set. Appellant’s brief was due on November 29, 1999. On November 23, 1999, we granted an extension for filing the appellant’s brief to January 28, 2000. On January 27, 2000, we granted the appellant an extension for filing his brief to March 28, 2000, and noted that this was the “final extension.” On March 24, 2000, the appellant requested another extension until April 17, 2000, and on April 12, 2000, he requested still another extension until April 27, 2000.

The motion for an extension of time until April 27, 2000, is granted.

We order Mr. Schay to appear before this court at 9:00 a.m. on May 11, 2000, to show cause why he should not be held in contempt for failing to file appellant’s brief within the time frame of the final extension.


author: W.H. “Dub” ARNOLD, Chief Justice.

text:
    Andrew ENGRAM v. STATE of Arkansas
    CR 99-928
    15 S.W.3d 678
    Supreme Court of Arkansas
    Opinion delivered May 4, 2000
    [Petition for rehearing denied June 8, 2000.]

      John B. Plegge, Judge;

      William R. Simpson, Jr., Public Defender; Bret Qualls and Tammy Harris, Deputy Public Defenders, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   W.H. “Dub” ARNOLD, Chief Justice.

Appellant Andrew Raymond Engram appeals ce. judgment of conviction and sentence of death for the June 5, 1997, capital murder and rape of Laura White, a security guard working at Sears in North Little Rock on the date of the offense. Appellant’s execution date was set for June 5, 1999, by the trial court. That date was stayed by order of this court on May 27, 1999, pending appeal.

Appellant filed a timely motion for new trial, which was denied by the trial court. Following the denial of the motion for new trial, appellant filed a notice of appeal of his conviction and sentence. Appellant raises the following six points on appeal:

1) The evidence was insufficient to sustain the verdict;
2) The court denied appellant’s constitutional right to confrontation by refusing to allow him to cross-examine the medical examiner about previous disciplinary action;
3) The court erred in overruling appellant’s objection to a police officer’s testimony that he did not believe appellant was truthful;
4) The overlap between the capital-murder and first-degree murder statutes created an unconstitutional risk that the death penalty was imposed in an arbitrary and capricious manner;
5) The trial court erred in submitting as three separate aggravating circumstances under Ark. Code Ann. § 5-4-604(3) (Repl. 1997) appellant’s three prior convictions for violent offenses;
6) The trial court erred in admitting victim-impact evidence because such evidence is irrelevant under Arkansas sentencing procedures to the considerations for imposition of the death penalty.

We are not persuaded that any of these issues has merit, and we affirm.

I. Sufficiency of the Evidence

The appellant challenges the adequacy of the DNA-identity evidence introduced against him at trial. He contends that DNA evidence alone does not constitute sufficient evidence to support his conviction. At trial, the State’s DNA expert testified that the probability that the semen recovered from the victim belonged to a person other than the appellant was one in 600 trillion. The State contends that the appellant failed to preserve this argument on appeal, as he did not make a specific objection to the sufficiency of the DNA evidence below, but rather made a general objection to the sufficiency of the evidence in that he felt the State had failed to “identify” him as Ms. White’s killer.

We have held that in order to preserve a challenge to the sufficiency of the evidence, a defendant must make below the specific challenge he seeks to make on appeal. E.g., Conner v. State, 334 Ark. 457, 464, 982 S.W.2d 655, 658 (1998). When looking at the record in this case, it is apparent that appellant actually did not make a specific objection to the sufficiency of DNA evidence alone to prove identity. Further, appellant has cited no authority which supports his contention that DNA evidence alone cannot sufficiently prove identity.

As a general rule, where it is not apparent without further research that the argument is well-taken, we do not consider such arguments on appeal. Matthews v. State, 327 Ark. 70, 74, 938 S.W.2d 545, 547 (1997). Still, although appellant failed to offer any authority or convincing argument in support of his position that the DNA evidence alone was insufficient to prove identity to support his rape and capital-murder convictions, given that the appeal involves a sentence of death, we will address the merits of appellant’s argument. See Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999).

When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the fight most favorable to the State. See Sublett v. State, supra; Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Id. Notably, the evidence may be either direct or circumstantial. See Gillie v. State, 305 Ark. 296, 808 S.W.2d 320, (1991). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Gillie, 305 Ark. at 301, 808 S.W.2d at 322 (citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986)).

The appellant has complained that the DNA evidence was insufficient, alone, to prove his identity. Appellant contends in support of his argument that the DNA laboratory was not certified and that this lack of certification significantly weakened the credibility of the results. Such a complaint, which actually has little to do with the sufficiency of the evidence and more to do with the weight of said evidence, is actually a dispute over credibility. In regard to questions of credibility, on appeal, this court views the evidence in the light most favorable to the State, recognizing that it is the jury’s province to resolve credibility disputes. See, e.g., Wilson, 332 Ark. 7, 11, 962 S.W.2d 805, 807. This principle is no less applicable to DNA evidence, when its credibility is being challenged. See Johnson v. State, 326 Ark. 430, 446-47, 934 S.W.2d 179, 186-87 (1996), cert. denied, 520 U.S. 1242 (1997).

Next, appellant wrongly asserts that the DNA evidence was the sole proof of his identity as the perpetrator. His assertion seems to ignore two additional pieces of evidence introduced at trial that at least contribute to proof of his identity. The first is the state trooper’s eyewitness encounter with the appellant at the crime scene on the very night of the crimes; and the second is the appellant’s implausible explanation for being there, given that his time card from his job at Luby’s proved that he did not work that evening. Although circumstantial proof, both are evidence of identity and, in turn, guilt. See, e.g., Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999) (proximity testimony); Remeta v. State, 300 Ark. 92, 777 S.W.2d 833 (1989) (same); Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997) (false explanation of suspicious circumstances). Further, the state presented circumstantial hair and fiber evidence linking the appellant to the crime. While the DNA evidence is substantial standing alone, it is undeniably sufficient when considered with the additional circumstantial evidence adduced at trial.

This court has, since Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996) (holding that DNA evidence is no longer considered “novel scientific evidence”), consistently accepted DNA evidence as proof of guilt. See, e.g., Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996). The appellant’s challenge to the sufficiency of the DNA evidence suggests that these authorities must be rejected; however, he' has faded to provide any compelling reason for so doing.

Finally, in an attempt to prove that the evidence was insufficient to support his convictions, the appellant points to the absence of certain evidence such as fingerprint evidence, and to the inconclusiveness of other evidence linking him to the crimes. In so doing, he actually demonstrates conflicts in the proof for the jury to resolve — that is, to consider and reject or accept. See, e.g., Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999).

Based on the above, viewing the evidence in a light most favorable to the State, we hold that substantial evidence exists to support the appellant’s rape and capital-murder convictions.

II. Cross-Examination Regarding Previous Disciplinary Action against the Medical Examiner

We have held that a circuit court has wide latitude to impose reasonable limits on cross-examination based upon concerns about confusion of issues or interrogation that is only marginally relevant. See Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996). This court will not disturb the trial court’s discretion in such matters unless that discretion was abused. Id. To determine whether cross-examination restrictions infringed upon an appellant’s confrontation rights, we look to the record as a whole to determine if the restrictions imposed created a substantial danger of prejudice to the appellant. Id. Such prejudice is not presumed, but must be demonstrated. Id.; see also Marta v. State, 336 Ark. 67, 80-81, 983 S.W.2d 924, 929 (1999).

In this case, prior to trial, the trial court ruled that the appellant could not cross-examine the medical examiner, Dr. Sturner, concerning an allegation of supervisory misconduct in a previous position he held in another state. The appellant apparently sought to discredit the State’s DNA evidence by suggesting that the samples taken from the victim for DNA testing were in some way wrongly collected, at least in part, due to the previous allegation of misconduct against Dr. Sturner for allegedly failing to adequately supervise his agents during certain forensic autopsies.

The appellant does not dispute that the swabs which matched his DNA were taken from the victim, nor does he dispute that they were taken in a way that caused them to yield a false match to him. In other words, while Dr. Sturner’s presence at, and supervision of, the swab coEection in this case might have some relevancy, the appeEant does not explain how it would have aided in casting any doubt upon the validity of the DNA evidence. Further, he faüs to explain how his proposed cross-examination of Dr. Sturner about his supervision in other cases in another state would have done so. In the absence of a chain-of-custody argument, which the appeEant has not made, it is impossible to discern what fact of consequence would have been made more or less probable by an aEegation of previous supervisory misconduct on Dr. Sturner’s part.

Moreover, appeEant was not prevented by the trial court from conducting any cross-examination of Dr. Sturner. In fact, he cross-examined both Dr. Sturner and the technician who coEected the swabs about the circumstances of the swab coEection and the former’s supervision of the latter. Yet, even having done so, he stiE fails to explain its relevancy for casting doubt upon the DNA evidence.

In short, appeEant has failed to demonstrate any prejudice to his confrontation rights by his preclusion from questioning Dr. Sturner about previous aEegations of supervisory misconduct in another state. We hold, therefore, that the trial court did not abuse its discretion in this regard.

III. Police Officer’s Testimony Regarding Truthfulness of Appellant

At trial, State Trooper Mike Dawson testified that on the night in question, he arrived at the Sears parking lot around midnight to find the appeEant walking near the tent where the victim’s body was later found. Because of the late hour, Trooper Dawson sought to determine appeEant’s reason for being there. AppeEant told Dawson that he had just gotten off work at Luby’s and was waiting for a ride. Dawson testified that he knew the cafeteria closed at 8:00 p.m. Fie added that whEe he assumed Luby’s employees might have to work later than eight o’clock, he “didn’t feel like [Engram] was being truthful.” Counsel for appeEant immediately objected to Dawson’s observation about appellant’s truthfulness and moved for a mistrial, arguing that such testimony was improper. The prosecutor insisted that said comment was unsolicited and that, at any rate, it could be admitted as a present sense impression. The trial court overruled appellant’s objection and denied his motion for a mistrial. Appellant contends that this ruling was in error.

We have held that a trial court has wide latitude in its discretion to grant or deny a mistrial and will not be reversed absent an abuse of that discretion. See, e.g., Ashley v. State, 310 Ark. 575, 840 S.W.2d 793 (1992). Moreover, a mistrial should be granted only where an admonition could not cure any prejudice. Id. Finally, this court will not reverse in the absence of a showing of manifest prejudice. See Marta, 336 Ark. at 77-78; 983 S.W.2d at 929. Under these standards, the trial court clearly did not err.

First, the State was able to demonstrate through other evidence, appellant’s timecard from his employer (Luby’s), that the appellant in fact was lying when he told Trooper Dawson that he had just gotten off work at Luby’s. The timecard revealed that appellant had not worked at all on the evening in question. Under these circumstances, it was not error to deny the appellant a mistrial for the trooper’s unsolicited remark about the appellant’s level of truthfulness. See Ashley, 310 Ark. at 578, 840 S.W.2d at 794 (no error found from the denial of a mistrial in similar circumstances where the defendant’s remarked-upon truthfulness was later proven by other evidence). Further, if the trooper’s remark was prejudicial at all, an admonition would have cured any prejudice. See, e.g., Aaron v. State, 312 Ark. 19, 23-24, 846 S.W.2d 655, 657 (1993). However, the appellant did not seek an admonition. We have held that we will not reverse a trial court for failing to do what it was never asked to do. See Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999); Gooden v. State, 321 Ark. 340, 902 S.W.2d 226 (1995).

The appellant has failed to demonstrate any prejudice suffered as a result of Trooper Dawson’s unsolicited remark. The appellant does contend that the jury, during deliberation, asked for a transcript of the trooper’s testimony, and that this fact, in and of itself, proves that the jury was placing critical importance on his testimony. However, when researching the record, it was discovered that the jury had contemporaneously asked for a transcript of Dr. Sturner’s testimony. Therefore, the appellant’s argument that the jury was placing critical importance on the testimony of one witness, Trooper Dawson, loses any persuasive value it may have otherwise had. We hold that there was no abuse of discretion on this point.

IV Overlap between Capital-Murder and First-Degree Murder Statutes

Appellant contends that the overlap between the capital-murder and first-degree murder statutes creates an unconstitutional risk that the death penalty was imposed in an arbitrary and capricious manner. The appellant concedes that this court has resolved this issue unfavorably to his position in numerous cases. We have most recently done so in Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). This court has found no overlap problem when analyzing the capital and first-degree murder statutes, emphasizing that it is impossible to avoid the use of general language in the définition of offenses. See, e.g., Jones v. State, 328 Ark. 307, 942 S.W.2d 851 (1997).

The appellant suggests that this court has not clearly addressed the overlap question, citing Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6, cert. denied, 454 U.S. 1093 (1981), Beck v. Alabama, 447 U.S. 625 (1980), and Roberts v. Louisiana, 428 U.S. 325 (1976). However, this suggestion by appellant is refuted by his own citation to Ruiz, in which this court clearly explained why any overlap does not run afoul of the principles of Beck and Roberts. In Ruiz, we explained that

[OJur statutory scheme is not flawed as were those of Alabama and Louisiana. Under Alabama law the jury could not consider lesser included offenses in capital crimes and was limited to either an acquittal or a conviction, in which case death was mandatory, and, hence the jury was deprived of the “third option” of a lesser punishment, which the United States Supreme Court held to be unconstitutional. In Roberts, Louisiana’s statutory scheme was found to be deficient. The jury in Louisiana was always instructed as to lesser included offenses (even where the evidence failed to support such a finding), the error of Louisiana’s procedure being that if the jury found both elements of first degree murder, i.e., that the accused had a specific intent to kill while engaged in a felony (in this case robbery) the death penalty was mandatory. In contrast, our scheme binds the jury in no such fashion, as it is free to impose life without parole in preference to death, notwithstanding a finding of guilt on capital felony murder charges. Moreover, if the evidence is such that the jury is instructed on lesser included offenses, it may lessen the punishment accordingly as its further option.

Ruiz, 273 Ark. at 106, 617 S.W.2d at 13.

Finally, the appellant’s argument is predicated on a false presumption — that a jury is making (or must make) a choice between life and death at the guilt phase — which is, as evidenced by the Ruiz case, not true under the Arkansas capital-punishment scheme. This presumption appears to be founded on the appellant’s misinterpretation of the underlying rationale of Beck. The point of Beck, as we have noted previously, is to ensure that a jury is not given a choice only between a conviction for which the defendant must receive the death penalty or an acquittal. See Kennedy v. State, 338 Ark. 125, 129-30 & n.1, 991 S.W.2d 606, 609-10 & n.1 (1999) (per curiam).

The Arkansas capital-punishment scheme avoids such an arbitrary and capricious choice, as the Ruiz court noted, because the jury may ultimately impose a life sentence in preference to death at the penalty phase, even if it finds a defendant guilty of the capital crime. Ruiz, 273 Ark. at 106, 617 S.W.2d at 13; see also Wilson v. State, 271 Ark. 682, 684-86, 611 S.W.2d 739, 740-41 (1981); Camargo v. State, 327 Ark. 631, 642, 940 S.W.2d 464, 467 (1997) (explaining that any overlap between statutes does not create a vagueness problem because constitutionally required narrowing is performed at the penalty phase).

Concisely stated, the fact that the substantive homicide statutes may reflect some overlap in charging at the guilt phase of capital trials simply does not implicate the principles of Beck; we have already addressed and settled this issue in numerous previous cases.

V. Prior Convictions as Aggravating Circumstances

The State proved that the appellant had committed three prior felonies which involved the use or threat of violence to another person; and, the jury was charged by the trial court that it could find an aggravating circumstance for each of those prior felonies, which it did. The appellant now disputes that the jury could be so instructed. Although he concedes that he did not raise this issue below, he alleges that he may do so for the first time on appeal because it concerns a matter essential to the jury’s death-penalty deliberations. The State contends that the jury’s death-penalty deliberations were correct and that they could not have been affected by any alleged mislabeling of the appellant’s three prior violent felonies as three aggravating circumstances rather than as three felonies supporting one aggravating circumstance. We agree.

Clearly, the jury did not consider an invalid aggravator or fail to correctly complete the forms it was given. Moreover, the appellant does not even dispute that the jury could consider all of his prior violent felonies under Ark. Code Ann. § 5-4-604(3). Rather, he only denies that they could each be described in the instructions as a separate aggravating circumstance. He does not explain why they could not be so described, except to say it is “improper and unprecedented. ”

While appellant suggests that previous cases involving defendants with multiple prior violent felonies involved single aggravating-circumstance submissions, other cases suggest the opposite. See, e.g., Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987) (discussing claim of error in using previous homicides as aggravating circumstances under former version of statute). In fact, in Lee v. State, 327 Ark. 692, 942 S.W.2d 231, cert. denied, 522 U.S. 1002 (1997), we noted that the State had submitted three prior felonies and pecuniary gain as aggravating circumstances. We described the latter as the “fourth aggravator” and noted that the jury found “all four” aggravating circumstances — implying that each of the violent felonies was a separate aggravating circumstance under Ark. Code Ann. § 5-4-604(3). Notwithstanding, none of the cases prior to this case have directly decided the question.

The appellant’s argument amounts to a distinction without a difference, in that either way it is described — whether it be as one aggravating factor or three separate factors — the jury is still able to consider the existence of three prior felony convictions. This fact is undisputed. As we have previously explained in concluding that a prior violent felony can have occurred after the capital crime, the purpose of the aggravator is to advise the jury of a defendant’s propensity to violence — that is, to strike again. See Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994), cert. denied, 513 U.S. 1162 (1995).

The fact is that the appellant had “struck” on three previous occasions, and his jury was instructed consistently with this purpose — that each violent felony was an aggravating circumstance of his capital crime. The plain purpose of the aggravator itself sufficiently answers the appellant’s hyperbolic concern that the State might “pad” the number of aggravating circumstances. Again, it amounts to a distinction without a difference, as the jury could obviously, and indisputably, consider each of the prior violent felonies, either way; therefore, the appellant is unable to demonstrate that the separation of the priors as aggravators in any way prejudiced him. As such, we hold that it was not error for the trial court to allow each prior felony conviction to be labeled as a separate aggravating circumstance.

VI. Admission of Victim-Impact Evidence

As in point IV, above, the appellant again concedes that this court has resolved this issue unfavorably to his position in previous cases, as well. Notwithstanding, he contends that this court should declare victim-impact evidence irrelevant under the Arkansas capital-sentencing scheme, relying upon the views of the dissenting justices in Noel v. State, 331 Ark. 79, 95-102, 960 S.W.2d 439, 447-51 (1998) (Newbern, Imber, and Thornton, JJ., dissenting). Appellant’s argument is not persuasive for several reasons.

First, appellant’s argument fails to meet the high burden required to show that the adherence to the principle of stare decisis in this matter is manifestly unjust or patendy wrong, see, e.g., McGhee v. State, 334 Ark. 543, 546, 975 S.W.2d 834, 835 (1998), particularly in fight of the fact that we rejected this argument only two years ago in Noel. See also Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).

Next, the General Assembly has unequivocally declared that victim-impact evidence is relevant to a jury’s determination of the appropriateness of the death penalty. See Ark. Code Ann. § 5-4-602(4) (Repl. 1997); Noel, 331 Ark. at 93-94, 960 S.W.2d at 447. The appellant argues that § 5-4-603 (Repl. 1997) has no place in its required finding for victim-impact evidence. This argument is misplaced. The fact that the jury is not called upon to find that victim-impact evidence existed says nothing about whether such evidence is relevant to its deliberations. Simply put, a jury may consider victim-impact evidence without making any findings about it, just as a jury might consider motive in returning a general verdict. In both circumstances, the jury may consider evidence relevant to the ultimate issue it must decide, without being required to return an express finding about that evidence.

Only through the legislature could the consideration by capital juries of victim-impact evidence be eliminated from the capital-sentencing scheme. This court has rejected an invitation to do so in Lee, supra, where we explained that, due to the virtually unlimited relevancy of mitigating evidence, “the State could legitimately conclude that the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether to recommend that the death sentence be imposed.” Lee, 327 Ark. at 703, 942 S.W.2d at 236; see also Noel, 331 Ark. at 92, 960 S.W.2d at 446 (quoting Lee).

The victim-impact evidence admitted in this case was precisely the type discussed in Payne v. Tennessee, 501 U.S. 808 (1991), and determined to be appropriate by the General Assembly in adopting § 5-4-602. See, e.g., Nooner v. State, 322 Ark. 87, 108-09, 907 S.W.2d 677, 688-89 (1995), cert. denied, 517 U.S. 1143 (1996). As in Nooner, the testimony at issue in this case was the testimony from family members of the victim, her parents, who are certainly persons “profoundly impacted by [her] death.” Nooner, 322 Ark. at 109, 907 S.W.2d at 689.

In short, the admission of victim-impact evidence in this case was consistent with federal and state law and was properly allowed.

VII. Rule 4-3 (h) Compliance

In accordance with Ark. Sup. Ct. R. 4-3 (h) (1998), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal, and no reversible errors were found.

Affirmed.