author: Donald L. Corbin, Justice. Robert H. Dudley, Justice, Robert L. Brown, Justice, Tom Glaze, Justice.

text:
    Jeffrey WILLIAMS v. STATE of Arkansas
    CR 94-352
    895 S.W.2d 913
    Supreme Court of Arkansas
    Opinion delivered April 3, 1995
    [Rehearing granted July 3, 1995.]

      Hood & Conner, by: Jeff R. Conner, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Jeffrey Williams, appeals the judgment of the Washington County Circuit Court, filed October 14, 1993, convicting him of one count of refusal to submit to arrest, a Class B misdemeanor, Ark. Code Ann. § 5-54-103(b) (Repl. 1993), and sentencing him to a $500.00 fine, court costs, and ninety days in the Washington County jail, conditionally suspending the fine and jail term. We have jurisdiction of this appeal pursuant to Ark. Sup. Ct. R. l-2(a)(3) and (d), respectively, because appellant questions the constitutionality of section 5-54-103, and because the appeal was certified to this court by the court of appeals. Appellant asserts four points of error. We find no merit and affirm the judgment.

FACTS

On October 23, 1992, Governor Bill Clinton, the Democratic Presidential candidate, appeared at a rally in support of his campaign in Fayetteville on the campus of the University of Arkansas. The rally was attended by a crowd of approximately 10,000 persons, among them a group of approximately 40 supporters, of the Republican incumbent, President George Bush. Appellant was one of these Republican supporters.

During the rally, University of Arkansas Police Department (“UAPD”) Officer Michael Daub was approached by a Clinton staff worker who said “There’s a fight” and directed Daub to an area near the press table and speakers’ platform. In that area, Daub saw several persons, holding “Bush/Quayle” signs, jumping up and down. Daub observed appellant forcibly and violently knocking the people who stood in front of him with his body as he jumped up and down. Daub stated that appellant “was almost foaming at the mouth,” that the people in front of him “were about ready to take him on,” and that Daub was afraid there would be a large fight and perhaps a riot at the rally.

Daub advised appellant not to push anyone, but appellant continued to do so and replied “I have freedom of speech.” Daub ordered appellant to leave, but appellant did not obey. Daub radioed for backup, and, shortly thereafter, was joined by two UAPD officers, Sgt. John Reid and Lt. Gary Crain, and Deputy Harris of the Washington County Sheriff’s Patrol. Upon arrival at the scene, Reid observed the disturbance. Reid saw appellant standing near Daub, screaming about his rights, and shouting Republican slogans. Reid observed pushing going on in the crowd around appellant. Upon arrival at the scene, Crain also observed the disturbance. Crain saw appellant jumping up and down and bumping into people.

Reid and Crain each advised appellant that he was under arrest and ordered him to move out of the area. Appellant began to leave, then changed his mind and slumped to a sitting position on the ground. Daub and Harris unsuccessfully attempted to pick up appellant. Crain interceded and applied a “pain compliance” technique, intended to motivate appellant to leave on his own power, which was accomplished by Crain first steadying appellant’s head in the crook of Crain’s arm (described by appellant as a “headlock”), then applying pressure with his thumb to a nerve below appellant’s ear. Appellant stood up and walked a few steps. Crain advised appellant to leave the area, or he would apply the pressure again. Appellant walked with the officers to a patrol car where he was examined for weapons and handcuffed for transport. Appellant stated he understood the officers who told him to leave were law enforcement officials, but did not realize he was or might be under arrest until Crain put him into the “headlock.”

Appellant was found guilty of refusal to submit to arrest by the Fayetteville Municipal Court, and appealed his case to the Washington County Circuit Court where a non-jury trial was conducted on September 16, 1993. At trial, Officers Daub, Crain and Reid testified for the prosecution; appellant, five other Republican supporters who attended the rally, and a journalist who had photographed portions of the incident testified for the defense. Conflicting evidence was introduced regarding whether and when appellant was placed under arrest for disorderly conduct, and whether and when he refused to submit to that arrest.

At the conclusion of the trial, the circuit court judge delivered his findings of fact from the bench. The trial court stated that appellant “ha[d] every right in the world” to be at the rally and was exercising constitutionally guaranteed rights. The trial court held that the real issue, however, was whether appellant violated section 5-54-103, a “very simple statute.” The court found that the evidence was overwhelming that appellant knew the UAPD officers were police officers. The trial court found that the proof as to the only remaining issue, that is, whether appellant submitted to arrest, was disputed, and the trial court concluded the issue was one of credibility. The trial court found that, in the totality of the circumstances, appellant “simply for whatever reason chose to ignore the police officers.” The trial court pronounced appellant guilty of refusal to submit to arrest, and, on October 14, 1993, filed the order of guilt and sentence from which this appeal is taken.

ARGUMENT

Appellant presents four points for reversing his conviction for failure to submit to arrest:

(1) the trial court erred in refusing to consider his constitutional challenges to section 5-54-103,
(2) the trial court erred in refusing to admit evidence regarding the illegality of appellant’s arrest for disorderly conduct,
(3) the trial court erred in refusing to permit appellant to use a videotape of the incident in cross-examination, and in refusing to allow narration of the videotape, and
(4) section 5-54-103 is unconstitutional as written and as applied to appellant because it denied him his constitutional rights.

The heart of appellant’s appeal is grounded in the constitutional challenges to section 5-54-103 which he raises in his fourth and final point. It is implicit in each of appellant’s first two points that he is assuming section 5-54-103 is unconstitutional to establish any prejudice to him as a result of the trial errors posited in those points. Therefore, we first proceed to a consideration of appellant’s constitutional arguments.

CONSTITUTIONAL ARGUMENTS

The statutory subsection at issue, section 5-54-103(b), reads as follows:

(b)(1) A person commits the offense of refusal to submit to arrest if he knowingly refuses to submit to arrest by a person known by him to be a law enforcement officer effecting an arrest;
(2) “Refusal,” as used in this subsection, means active or passive refusal;
(3) It is no defense to a prosecution under this subsection that the law enforcement officer lacked legal authority to make the arrest, provided he was acting under color of his official authority;
(4) Refusal to submit to arrest is a Class B misdemeanor. [Emphasis added.]

Appellant argues that section 5-54-103(b) is unconstitutional, as written and as applied in this case, under the First and Fourth Amendments of the federal Constitution, and under Article II, Section 6 of the Arkansas Constitution. The gist of appellant’s argument is that the statute mandated his submission to an illegal arrest during his participation at a political rally, and, therefore, violated his Fourth Amendment right against unreasonable seizures of his person, and his state and federal constitutional rights to freedom of speech.

We do not address appellant’s Fourth Amendment argument which he raises for the first time on appeal. Claiborne v. State, 319 Ark. 537, 892 S.W.2d 511 (1995). Even constitutional arguments which are not raised before the trial court are not properly preserved for our review and are waived on appeal. Id.; Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).

Appellant cites Wright v. Georgia, 373 U.S. 284 (1963), for the proposition that the state cannot constitutionally punish a person for refusing to obey a police officer’s order which itself violates the constitution, and urges that Wright is controlling of this case. In Wright, “six young Negroes, were convicted of breach of the peace for peacefully playing basketball in a public park[.]” Id. at 285. The testimony of the arresting officers themselves, in that case, was that the arrests were based solely upon their intention to enforce racial discrimination in the park. The Supreme Court reversed the convictions as violative of the Equal Protection Clause of the Fourteenth Amendment and as unconstitutionally vague.

On the record before us, we do not agree that Wright is controlling of this case. The Wright decision is clearly distinguishable in two respects. First, the petitioners in Wright did not resist or refuse to submit to their arrests; consequently, the Court did not address the issues raised in this case. Second, the record does not show that appellant’s arrest was based solely upon the arresting officers’ intention to impermissibly interfere with appellant’s First Amendment rights. Cf. Livingston v. State, 610 So. 2d 696 (Fla. Dist. Ct. App. 1992) (reversing conviction for disorderly conduct where the underlying arrest was illegally based solely on defendant’s use of protected First Amendment speech).

Although, as the trial court found, appellant had a right to be at the rally exercising his constitutional rights, the record shows that the UAPD officers also had a colorable basis for their warrantless arrest of appellant where his disorderly conduct was committed in their presence. Ark. R. Crim. P. 4.l(a)(iii). The testimony of the arresting officers does not indicate that the arrest was based solely upon their intention to chill appellant’s rights to freedom of speech. Indeed, the record shows that the UAPD officers did no more than discharge their duty by defusing a potentially dangerous situation before it could escalate into violence.

Appellant cites a federal district court case, United States ex rel. Kilheffer v. Plowfield, 409 F. Supp. 677 (E.D. Pa. 1976), in which the petitioner for habeas corpus had been convicted by a Pennsylvania state court of obstructing an officer in the execution of process when the petitioner gathered with other youths in a public park, insulted police officers, protested police orders to disperse, and then resisted his arrest for disorderly conduct. The petitioner argued that his conviction violated his federal constitutional rights, including freedom of speech. The district court framed the issue before it as, assuming without deciding that the arrest was unlawful, did the petitioner have a federal constitutional right to resist an unlawful arrest? In denying the petition, the district court held “that at least absent unusual circumstances there exists no such federal constitutional right.” Id. at 680 (citing United States ex rel. Horelick v. Criminal Court, 366 F. Supp. 1140 (S.D.N.Y. 1973) rev’d on other grounds, 507 F.2d 37 (2d Cir. 1974)). The federal court summarily disposed of the petitioner’s freedom of speech argument by observing that the state court had concluded the petitioner’s conduct was not protected by the First Amendment.

The proposition for which appellant cites Kilheffer is that a federal constitutional right to resist an unlawful arrest remains in certain limited circumstances, e.g., when the arrest is flagrantly abusive because the arrestee is engaging in an indisputably lawful activity and his resistance is so carefully calculated as to render negligible the risk that physical force need be used. Appellant’s characterization is inaccurate because the Kilheffer court merely observed, in dictum, that it may be that a right to resist an unlawful arrest should be recognized in such circumstances.

In the Horelick decision cited by the Kilheffer court, a habeas corpus petitioner there argued, as does appellant, that his conviction for resisting arrest could not stand because the underlying arrest was unlawful, and resisting it simply constituted disobedience to an unlawful order, which the Supreme Court has held, e.g., Wright, 373 U.S. 284, in some circumstances at least, cannot constitutionally be punished. In rejecting this argument, the Horelick court noted that, although various constitutional bases for such a right have been suggested, none has been accepted by the courts. The Horelick petitioner’s First Amendment rights were not argued specifically.

The Horelick court contrasted cases such as Wright, in which it was held the petitioner could not be punished for refusal to obey an unconstitutional police order, with cases such as the one before it, in which the petitioner argued he could not be punished for refusal to obey an unconstitutional arrest. The district court stated:

The question remains, however, whether resistance to an unlawful arrest more closely resembles refusal to obey an unlawful police order, which is not punishable, than disobedience of a constitutionally defective court order, which the Court has held is punishable by contempt. Walker v. Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967).
An unlawful arrest, like both a police order and a court order, can result in immediate interference with enjoyment of constitutional rights. It differs, however, from the former and resembles the latter in that an unlawfully arrested person like an unlawfully restrained one has open to him an opportunity to vindicate his rights in court. . . . Put oth erwise, the arrest and the court order have built into them the potential of submitting the dispute to the impartial determination of courts of law (including the appellate courts). [Emphasis added.]

Horelick, 366 F. Supp. at 1151. The Horelick court concluded that Walker controlled its decision, not Wright, and held that the petitioner’s resisting arrest conviction was proper because he had no constitutional right to resist the arrest and because the common-law right to resist arrest had been preempted by New York state law.

Similarly, Arkansas has statutorily restricted the common-law right to resist arrest, even if the arrest is illegal. The policy reasons for this modification are stated in the commentary to Arkansas Statutes Annotated § 41-2803 (now section 5-54-103(a)), adopted in 1975, which provides, in pertinent part as follows:

At common law a person could use reasonable nonlethal force in resisting an unlawful arrest.. . . Subsection 41-2803(3) [providing that illegal arrest is no defense to a charge of resisting] aligns Arkansas with Alaska, California, Delaware, Illinois and New Jersey in modifying this traditional rule. See, Annot., 44 A.L.R. 3rd 1078 (1972). A private citizen cannot use force to resist an arrest by one who he knows is a law enforcement officer performing his duties, regardless whether the officer had authority to make the arrest. The place to litigate the legality of an arrest is in a court, not the streets. The principle embodied in subsection (3) is repeated in § 41-512 —justification: use of physical force in resisting arrest prohibited. As discussed in the Commentary to § 41-512, neither that section nor this one applies when the illegality of the arrest stems from use of excessive force by the officer. [Emphasis added.]

See also Kilheffer, 409 F. Supp. 677, 680-82 and Horelick, 366 F. Supp. 1140, 1150-51 (discussing the modern trend to modify the common-law right to resist unlawful arrest).

Consistent with the legislative purpose for section 5-54-103, appellant’s remedy for any violation of his constitutional rights stemming from his arrest was to submit his dispute to the impartial determination of a court of law, including, if appropriate, an action for damages. Kilheffer, 409 F. Supp. 677. His remedy was not to refuse to submit to his arrest.

Our statutes are presumed to be constitutional, and all doubt is resolved in favor of the statute’s constitutionality. Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994); Stone v. State, 254 Ark. 1011, 498 S.W.2d 634 (1973). Appellant has the burden of proving that section 5-54-103(b) is unconstitutional. Beck, 317 Ark. 154, 876 S.W.2d 561. On this record, we find that appellant has not carried his burden of proving that section 5-54-103(b) unconstitutionally violated his freedom of speech rights, as it is written or as it was applied in this case. -

OTHER ARGUMENTS

In light of our holding that appellant has failed "to prove his constitutional argument, we summarily dispose of appellant’s first and second points on appeal, each of which relied upon the success of appellant’s constitutional attack on section 5-54-103 to establish that he suffered any prejudice as a result of the,trial errors alleged in those first two points.

Appellant’s third point for reversal relates to a videotape, approximately nine minutes in duration, depicting portions, of the sequence of events at the Clinton rally which resulted in appellant’s arrest. The videotape was filmed by a defense witness, Micah Neal, who testified that he stood only a few feet from appellant at the rally. The videotape also included an audio track.

During Neal’s direct testimony, the videotape was admitted into evidence, and the trial judge stated that he would view the videotape at the conclusion of all testimonial evidence. The trial judge stated that the videotape “will speak for itself,” and that he would not permit additional narration as the tape was viewed. At the conclusion of the testimony of the final defense witness, the trial judge viewed the videotape, without narration.

Appellant argues that it was error to preclude narration of the videotape. We do not address this argument because the abstract shows that no corresponding objection was made in the trial court, hence appellant has failed to preserve the argument for appeal.

Finally, appellant argues the trial court erred in ruling that appellant could not use the videotape for further cross-examination or in examining recalled witnesses, and that the trial judge erred in refusing to permit him to make a proffer of the excluded evidence. The record shows that, at the conclusion of the testimony of the final defense witness, appellant’s counsel stated that the defense had no other witnesses, excepting those who might be recalled after the trial judge viewed the videotape. Appellant’s counsel also stated he would like to have an opportunity to use the videotape during further cross-examination of the UAPD officers. Appellee’s counsel interjected that the prosecution would be calling no additional witnesses, thus there would be no further cross-examination for appellant. The trial judge instructed appellant’s counsel that the defense would not be permitted to call any witnesses after the trial judge viewed the videotape. Appellant’s counsel stated that he had no further questions for the witness, whereupon the trial judge called a recess and viewed the videotape. The defense then rested.

The following colloquy ensued:

MR. CONNER [APPELLANT’S COUNSEL]: I want to make a proffer at this point for the record what would have happened had I been allowed to show additional — show this tape again in the presence of additional witnesses, what evidence that would have brought out, and I offer it, I proffer it at this point. That’s all I have.
THE COURT: Well, are you saying you have a witness that can look at this tape and basically point out certain subliminal things that I haven’t seen or may not be able to see?
MR. CONNER: Yes, sir. Absolutely. Absolutely.
THE COURT: Who is that witness?
MR. CONNER: There’s a number of them, Judge.
THE COURT: Well, I mean, who?
MR. CONNER: Well, the officers, all three officers, Mr. Williams and the other people who show — you can’t tell who they are, but they can say, “That’s me and here’s what’s happening at this point.” That’s all I’m saying is if I would be allowed to do that, that’s what the evidence would show.
THE COURT: Mr. Conner, I know of no procedure that’s been approved by any court that would permit that. Now, I’ve viewed the tape and I’m going to consider that tape in making my decision and I think I heard what the audio portions of it stated and I think I was able — the monitor is some fifteen feet from me here, it’s a clear monitor. I was able to see what the tape depicted. And I’ve certainly heard numerous witness testify as to what occurred out there. And the issues still in my judgment are rather simple.
MR. CONNER: Yes, sir. I wasn’t attempting fo argue your ruling. I was just trying to make a proffer. *'
THE COURT: I understand what you’re doing and I’m not taking it as argument or anything, but I’m not going to permit you to do it.

This court has stated that a proffer of evidence is governed by Rule 103 of the Arkansas Rules of Evidence. Arkansas Valley Elec. Coop. Corp. v. Davis, 304 Ark. 70, 800 S.W.2d 420 (1990) (citing Jones v. Jones, 22 Ark. App. 267, 739 S.W.2d 171 (1987)). In Jones, our court of appeals considered an issue of first impression in this state, that is, whether a trial court may properly refuse a proffer of excluded evidence, and quoted persuasive authority from the New Mexico Supreme Court which held that the right to proffer excluded evidence is “almost absolute.” Jones, 22 Ark. App. 267, 270, 739 S.W.2d 171, 172 (quoting State v. Shaw, 90 N.M. 540, 565 P.2d 1057 (1977)). The Jones court held that under certain circumstances, a trial court may be justified in rejecting a proffer and noted those examples given by the Shaw court, e.g., when the proffer is untimely or the tendered proof is clearly repetitious.

The trial court in this case did not permit appellant to make a complete proffer of the excluded evidence, that is, the commentary from the witness stand of each recalled witness as he or she viewed the videotape. However, the record shows that the trial court was sufficiently advised of the nature of this excluded evidence to permit it to intelligently consider appellant’s request. Implicit in the trial judge’s ruling is his determination that the excluded evidence was cumulative or repetitious, in light of the fact that ten witnesses, including the three UAPD officers specifically identified in appellant’s limited proffer, had testified as to the events depicted in the videotape, and the trial judge, as the fact finder, had viewed the videotape. On this record, we find the trial court committed no clear error.

Affirmed.

Dudley and Brown, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. In October of 1992, just before the general election, Governor Bill Clinton, then the nominee of the Democratic Party for President of the United States, appeared at a campaign rally on the campus of the University of Arkansas. Appellant Williams, with some members of the Arkansas College Republicans, attended the rally and displayed “Bush\Quayle” signs. Appellant was ordered to leave by an officer of the University of Arkansas Police Department. He refused. Two officers advised appellant that he was under arrest for disorderly conduct and ordered him to move out of the area. He sat down and “went limp.” He was physically removed from the scene and was charged with disorderly conduct and refusal to submit to arrest.

He was found guilty in municipal court and appealed to circuit court. In circuit court he was found guilty of refusal to submit to arrest. He appeals to this court. The majority opinion affirms the conviction for refusal to submit to arrest even though appellant was not allowed to fully present his First Amendment defense to the charge.

At the beginning of the trial in circuit court, appellant’s counsel stated that he wished to challenge the “refusal to submit to arrest” statute, Ark. Code Ann. § 5-54-103 (Repl. 1993), because as it applied to appellant, it violated the First Amendment. The city attorney responded that the constitutional challenge was untimely because it had not been raised by motion ten days prior to trial. See A.R.Cr.P. Rule 16.2(b). The circuit court took the matter under advisement and later refused to consider the constitutional challenge because it was not timely brought. The ruling was in error for two reasons. If the ruling was based on rule 16.2(b), it was in error because that rule establishes that a motion to suppress evidence must be filed ten days before the trial date. The motion was not one to suppress evidence. Rather, it was an argument that appellant had a fundamental right of free speech under the Constitution of the United States and that right, so long as lawfully exercised, was dominant over the state statute, which, as applied, was unconstitutional. Moreover, appellant’s attorney had notified the city attorney of the defense months earlier, and appellant timely raised the issue at trial..

As a result of the trial court’s ruling, appellant was not allowed to put on proof that supposedly would show that all he did was hold up a “Bush/Quayle” sign in exercise of his right to free expression. The trial court ruled that it “was irrelevant whether Mr. Williams was merely holding a sign and doing nothing else wrong or not violating any law or regulation prior to his arrest.” The trial court’s ruling was based only on the applicable parts of Ark. Code Ann. § 5-54-103, which are:

(b)(1) A person commits the offense of refusal to submit to arrest if he knowingly refuses to submit to arrest by a person known by him to be a law enforcement officer effecting an arrest; . . .
(3) It is no defense to a prosecution under this subsection that the law enforcement officer lacked legal authority to make the arrest, provided he was acting under color or his official authority.

Id. § 5-54-103(b)(1) & (3).

It is undisputed appellant refused to submit to arrest and that the university police were acting under color of official authority.

The Attorney General seeks to avoid a remand for proof on the constitutional question by conceding that the arrest of appellant “was illegal because the police lacked probable cause” to arrest appellant for disorderly conduct. The majority opinion accepts the Attorney General’s argument and, in a far-reaching opinion, holds that even when a policeman patently violates a citizen’s First Amendment rights, the citizen must voluntarily submit to that violation or be convicted of a crime. I respectfully dissent. The real question is whether a citizen ought to be convicted of a crime solely for refusing to submit to a patently unlawful deprivation of his First Amendment rights.

The common law right to resist unlawful arrest has fallen into disfavor with the General Assembly and most citizens, as well it should, for practical reasons. Today a person wrongfully arrested can make bail, utilize numerous procedural safeguards, pursue remedies, and initiate civil damage actions against the police officer and the offending government. There is the civilized notion that the place to settle a dispute over the validity of an arrest is in a court of law, and not on the campus of a university or out in the streets. However, to assert that adequate legal remedies now exist to redress false arrests is to misconstrue the rationale behind the right. The right does not exist to encourage citizens to resist arrest, but rather to protect from punishment those who passively resist representatives of the government from illegally taking away fundamental rights. Even when one wholeheartedly accepts the philosophy that unlawful arrests should be dealt with in a civil manner, there still exist a few occasions when fundamental rights guaranteed under the Constitution are patently at risk and stand to be forever lost. Under those limited circumstances it is in violation of the Constitution to convict a person for refusal to submit to an illegal arrest when that nonviolent refusal was essential to the vindication of those rights. See Paul G. Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128 (1969).

The crime of which appellant stands convicted is refusal to submit to arrest, section 5-54-103(b)(1), and not resisting arrest, section 5-54-103(a)(1). The crime of resisting arrest involves affirmative physical force and violence and creates a substantial risk to all in the immediate area. It is the common law right to actively “resist arrest” which has fallen into disfavor. Today’s notion of civility dictates that one cannot resist police by affirmative physical force even for the illegal deprivation of one’s fundamental rights. Quite different, the “refusal to submit” in this case was passively sitting down and “going limp” while the policeman wrongly deprived appellant of his right of free speech.

Freedom of speech is fundamental to the functioning of a democracy. It is a fundamental right guaranteed by the First Amendment. In the limited category of fundamental rights cases, refusal to submit to an illegal abridgement of one’s freedom of speech, without being convicted of a crime, can be essential to the vindication of the right. To dramatize the* fallacy of the reasoning of the majority opinion, assume that the policeman, instead of illegally arresting appellant, illegally arrested now President Clinton for exercising his right of free speech, but President Clinton “refused to submit” to the illegal arrest. The speech at the rally would be forever lost, and, egregiously, under the majority opinion, President Clinton would be subject to punishment for refusing to submit to a patent violation of his fundamental right. Aside from that dramatic hypothetical example, the paradigm case is the one in which the right to refuse to submit is exposed by a typical street incident: A policeman sees a group of men on a corner and tells them to move on. One refuses. In order to maintain his authority, the policeman illegally arrests the man. He refuses to submit and will be convicted of a crime for that refusal to submit. See Chevigny, supra. Another case might be the policeman who walks into a newspaper plant and tells the manager to stop the press. The manager refuses. The policeman illegally arrests the manager. He refuses to submit to the oppression and will be convicted of the crime of refusal to submit. As a matter of principle in a democratic society, it is unconscionable to convict a citizen, no matter what his or her status, for refusing to submit to the illegal deprivation of his right of free speech.

The flaw in the statutes and court decisions which purport to abolish the right to resist is that they create a situation where the citizen is trapped by the legal system. If he obeys a patently arbitrary arrest, he has submitted to oppression, and if he resists, he may be convicted for his resistance. Surely there can be no more embittering experience of the criminal process than such a conviction. The freedom to refuse to obey a patently unlawful arrest is essential-to the integrity of a government which purports to be one of laws, and not of men. Unless it is desirable to kill the impulse to resist arbitrary authority, the rule that such an arrest is a provocation to resist must remain fundamental.

Chevigny, supra, at 1147.

The “refusal to submit” to the illegal denial of one’s fundamental right of speech may be essential to the vindication of that right. As noted by one author:

First amendment rights, in particular, may need such protection. The police frequently arrest political demonstrators even though the demonstrators are acting lawfully. These arrests are often patently illegal, and mild resistance is not uncommon. Resistance, such as going limp, is part of the effort to continue the lawful demonstration. Arrests under these circumstances may be highly provocative, but provocation is not the issue here; reasonable resistance should be legitimated in order to protect the first amendment freedom. Were there no right to resist such arrests, the resisting arrest statute would afford the police an easy tool for curbing the exercise of first amendment rights. Whenever a lawful arrest for demonstrating might be barred by the first amendment, the simplest thing for the police to do would be to arrest the demonstrators unlawfully. The demonstration would then be terminated with little risk of consequences to the police; those who resisted could be convicted of obstructing an officer, while those who submitted would necessarily cease the conduct found offensive by the authorities. As applied to warrantless arrests which patently violate first amendment rights, therefore, any statute which limits the common law right to resist should be held unconstitutional.

Chevigny, supra, at 1138.

The Supreme Court of the United States has expressly held that an accused cannot be punished for violating an illegal and arbitrary police order. In Wright v. Georgia, 373 U.S. 284 (1963), six young black males were playing basketball in a public park customarily used only by whites. The police ordered the young blacks to leave the park. One asked the officer, “[b]y what authority,” but did not create a disturbance as they were transported to police headquarters. Id. at 286. They were charged and convicted of assembling “for the purpose of disturbing the public peace” and not dispersing at the command of the officers. There was no evidence of disorderly conduct or any activity which might be thought to violate a breach of the peace statute. The Supreme Court reversed, and in the pertinent part of the unanimous opinion, wrote:

Three possible bases for petitioners’ convictions are suggested. First, it is said that failure to obey the command of a police officer constitutes a traditional form of breach of the peace. Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution. The command of the officers in this case was doubly a violation of petitioners’ constitutional rights. It was obviously based, according to the testimony of the arresting officers themselves, upon their intention to enforce racial discrimination in the park. For this reason the order violated the Equal Protection Clause of the Fourteenth Amendment. See New Orleans Park Improvement Assn. v. Detiege, 358 U.S. 54, affirming 252 F.2d 122. The command was also violative of petitioners’ rights because, as will be seen, the other asserted basis for the order — the possibility of disorder by others — could not justify exclusion of the petitioners from the park. Thus petitioners could not constitutionally be convicted for refusing to obey the officers. If petitioners were held guilty of violating the Georgia statute because they disobeyed the officers, this case falls within the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute. Cf. Winters v. New York, 333 U.S. 507; Stromberg v. California, 283 U.S. 359; see also Cole v. Arkansas, 333 U.S. 196.

Id. at 291-92 (emphasis added).

The majority opinion endeavors to distinguish Wright from the case at bar by stating:

First, the petitioners in Wright did not resist or refuse to submit to their arrests; consequently, the Court did not address the issues raised in this case. Second, the record does not show that appellant’s arrest was based solely upon the arresting officers’ intention to impermissibly interfere with appellant’s First Amendment rights.

The supposed distinguishing factors can only be inferred by conjecture because the trial court refused to allow appellant to present his evidence that allegedly would have shown that he just held up a “Bush/Quayle” sign and, after the illegal police order, only sat down and “went limp.” The trial court ruled that appellant did not raise his constitutional defenses in a timely manner, and, under the applicable statute, the trial court ruled that it “was irrelevant whether Mr. Williams was merely holding a sign and doing nothing else wrong or not violating any law or regulation prior to this arrest.”

Wright is directly in point and has been held to be in point by other courts. Using similar reasoning, the Supreme Court of Florida held that even though Florida had a “resisting arrest” statute, a conviction under that statute must be reversed when the act of the officer was illegal. Licata v. State, 24 So. 2d 98 (Fla. 1945); see also Livingston v. State, 610 So. 2d 696 (Fla. Dist. Ct. App. 1992).

The majority opinion also cites Walker v. City of Birmingham, 388 U.S. 307 (1967), but that case involved an injunction issued by a court. Process issued by a court stands in a fundamentally different position from an illegal police command. The federal district court in United States ex rel. Horelick v. Criminal Court, 366 F. Supp. 1140 (S.D.N.Y. 1973), rev’d on other grounds, 507 F.2d 37 (2d Cir. 1974), cogently set out the differences as follows:

Undeniably, the Court has held that a person cannot be punished for refusal to obey a police order which violates his constitutional rights. [Emphasis added.] See, e.g., Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S. Ct. 211, 15 L. Ed. 2d 176 (1965); Wright v. Georgia, 373 U.S. 284, 83 S. Ct. 1240, 10 L. Ed. 2d 349 (1963). The question remains, however, whether resistance to an unlawful arrest more closely resembles refusal to obey an unlawful police order, which is not punishable, than disobedience of a constitutionally defective court order, which the Court has held is punishable by contempt. Walker v. Birmingham, 388 U.S. 307, 87 S. Ct. 1824, 18 L. Ed. 2d 1210 (1967).
An unlawful arrest, like both a police order and a court order, can result in immediate interference with enjoyment of constitutional rights. It differs, however, from the former and resembles the latter in that an unlawfully arrested person like an unlawfully restrained one has open to him an opportunity to vindicate his rights in court. These rights are not irrevocably compromised by initial compliance as they are in the case of the person who obeys a police order and who, as a result, forever loses his chance to contest it by allowing the policeman the final say. Put otherwise, the arrest and the court order have built into them the potential of submitting the dispute to the impartial determination of the courts of law (including the appellate courts). The unlawful police order, on the other hand, if obeyed, makes the policeman the final arbiter. [Emphasis added.] This distinction persuades us that Horelick’s situation is controlled not by Shuttlesworth and Wright, but by Walker.

Id. at 1151.

In summary, it is fundamentally correct to excuse a citizen who pas'sively refuses to submit to an unlawful police action that takes away his First Amendment rights. The purpose of excusing that person is not to encourage violence in the streets, but to preserve the sense of personal liberty that is inherent in the right to reject illegal commands. To permit police officials to illegally provoke citizens into committing the crime of “refusing to submit” to an unlawful arrest creates a trap for citizens which must, in the long run, injure the integrity of the judicial system and damage the democracy. I would remand this case so that the constitutional issue might be developed by the parties and considered by the circuit court. For these reasons, I respectfully dissent from the majority opinion.

Robert L. Brown, Justice,

dissenting. I join in much of Justice Dudley’s dissent and write to emphasize that the trial court erred in failing to address the constitutional issues of Mr. Williams’ political free speech. It is not for this court to develop the facts and the law surrounding that issue, but that is exactly what the majority opinion does. Here, the State concedes that the arrest was illegal. Like Justice Dudley, I would remand the matter for the trial court’s consideration and resolution of the First Amendment issue.

SUPPLEMENTAL OPINION UPON GRANTING REHEARING JULY 3, 1995

901 S.W.2d 831

1. Appeal & error — trial court should have allowed appellant OPPORTUNITY TO PRESENT TESTIMONY ON WHETHER PROBABLE CAUSE EXISTED AT THE TIME OF HIS INITIAL ARREST — REQUEST FOR A REMAND TO THE LOWER COURT FOR A FULL DEVELOPMENT OF THE facts granted. — Where the trial court failed to afford appellant the opportunity to present relevant testimony on whether probable cause existed at the time of his initial arrest, the appellant’s request for a remand to the lower court for a full development of the facts was granted.

2. Appeal & error — explanatory testimony concerning a videotape NOT ALLOWED — TESTIMONY PROPERLY EXCLUDED AT TRIAL. — The trial court’s denial of appellant’s request to present explanatory testimony related to a videotape which had been introduced into evidence was not in error.

Petition for Rehearing granted.

Jeff R. Conner, for appellant.

Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Senior Appellate Advocate, for appellee.

Tom Glaze, Justice.

In his original brief in this appeal, Jeffrey Williams argued in his second point for reversal that the trial court erred in refusing to admit his testimony bearing on the illegality of his arrest for disorderly conduct. Specifically, Williams contended he was denied an opportunity to present testimony on whether probable cause existed at the time of his initial arrest. The trial court declared such testimony was irrelevant. Following that ruling, the trial court also denied Williams the opportunity to proffer testimony concerning the probable cause issue. The thrust of Williams’ argument on this point was that the trial court’s rulings frustrated his attempt to show he was doing nothing wrong before the officers ordered him to leave, and no basis existed for the charge of disorderly conduct. In sum, Williams asserted that the “trumped up” disorderly conduct charge was merely used by the officers to remove him and “bootstrap” themselves into obtaining a.conviction for refusal to submit to arrest.

In our original review of this cause, we mistakenly failed to address Williams’ second point as described above. Williams suggests our opinion improperly considered the officers’ testimonies concerning the probable cause issue even though the trial court had refused him the opportunity to develop evidence on that issue. While Williams’ arguments, constitutional and otherwise, seem to overlap and appear confusing in some respects, we are convinced of two things. First, the trial court was wrong in not affording Williams the opportunity to present testimony on whether probable cause existed at the time of his initial arrest. Such testimony was relevant. If probable cause did, in fáct, exist, Williams’ constitutional arguments are arguably preempted even if those arguments had been timely preserved. Second, the trial court compounded its error by denying Williams the opportunity to proffer testimony bearing on the probable cause issue. See Ark. R. Evid. 103(a)(2).

In view of the above, we grant Williams’ request for a remand to the lower court for a full development of the facts. If the constitutional issues argued by Williams are viable after further development of relevant testimony in this cause, the trial court may then address them.

One additional point needs mentioning since this matter will require further evidentiary proceedings on remand. Concerning this court’s original opinion as it involved Williams’ request to present explanatory testimony related to a videotape which had been introduced into evidence, we reiterate our holding that the trial court did not err in excluding such testimony. See Williams v. State, 320 Ark. at 211, 222-223, 895 S.W.2d 913 (1995).

For the foregoing reasons, we grant Williams’ petition for rehearing.

       We here note that, for purposes of this appeal only, appellee concedes that appellant’s underlying arrest for disorderly conduct was illegal for lack of probable cause. However, even assuming, arguendo, that his arrest was illegal for that reason, appellant refers us to no decision in which a court has recognized that a conviction for refusal to" submit to an arrest which was illegal for lack of probable cause, unconstitutionally violated the arrestee’s freedom of speech rights.

      In Walker, the City of Birmingham obtained a temporary injunction restraining the petitioners from participating in a mass street parade without a permit as required by city ordinance. After the petitioners marched in violation of the injunction, a contempt hearing was held. The petitioners sought to attack the injunction, among other reasons, as an unconstitutional restraint upon free speech. The state court had refused to consider the constitutional arguments, ruling the only issues before it were whether it had jurisdiction to issue the injunction and whether petitioner had knowingly violated it. The Supreme Court affirmed the state court, holding that the petitioners could not bypass orderly judicial review of the injunction before disobeying it.

      Subsection 5-54-103(b) was added in 1987, without additional legislative commentary.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    FORD MOTOR CREDIT COMPANY v. TWIN CITY BANK
    94-1114
    895 S.W.2d 545
    Supreme Court of Arkansas
    Opinion delivered April 3, 1995

      Smith & Nixon, by: W. Robert Nixon, Jr., for appellant.

      The Rose Law Firm, A Professional Association, by: Herbert C. Rule III and Steve D. Durand, for appellee.
   Robert L. Brown, Justice.

This case involves a dispute over the cash collateral of a debtor in bankruptcy (One Moore Ford, Inc.) and the claims to that cash collateral by two secured creditors — appellant Ford Motor Credit Company and appellee Twin City Bank (“TCB”). The trial court granted summary judgment in favor of one secured creditor, TCB. We conclude, however, that a material issue of fact remains to be decided, and we reverse the order of summary judgment and remand the matter for trial.

Prior to bankruptcy, Ford Motor Credit provided a wholesale line of credit for One Moore Ford, a car dealership in North Little Rock, and advanced the purchase money for its inventory of vehicles. Under this “floor plan” arrangement, One Moore Ford was expected to repay Ford Motor Credit after the retail sale of each vehicle by sending a check to the credit company for the amount advanced for the vehicle plus accrued interest. On or about December 17,1990, checks payable to Ford Motor Credit and drawn by One Moore Ford on its account at TCB were returned due to insufficient funds. On or about December 20, 1990, One Moore Ford and Ford Motor Credit reached an oral agreement whereby One Moore Ford would continue to sell the vehicle inventory under the floor plan arrangement with a Ford Motor Credit representative on the dealership’s premises. That representative would collect the amount advanced plus accrued interest for each sale. The surplus proceeds for the sale would then be available to One Moore Ford for use as operating expenses. On December 26, 1990, One Moore Ford set up an account at Eagle Bank & Trust for the purpose of depositing the surplus proceeds. Claude Hill, former branch manager of Ford Motor Credit, stated in his deposition that the credit company agreed during December 1990 to allow One Moore Ford to retain the surplus proceeds from the sale of its vehicles. The reasons for the agreement were to provide One Moore Ford with operating capital and to prevent the liquidation of the business. Stan Lockhart, the current branch manager at Ford Motor Credit, corroborated this assessment in his deposition.

On January 14, 1991, One Moore Ford filed a petition for bankruptcy relief under Chapter 11 of the U.S. Bankruptcy Code and continued to operate the dealership as a debtor-in-possession. On January 16, 1991, One Moore Ford established a new bank account at Eagle Bank as a debtor-in-possession and transferred the balance of surplus proceeds, now cash collateral for the debtor’s estate, from the previous Eagle Bank account into the new account. One Moore Ford, as debtor-in-possession, continued to deposit the surplus proceeds into this new account.

On January 16, 1991, Ford Motor Credit filed a motion in bankruptcy court to limit the use of cash collateral, including the surplus proceeds in the Eagle Bank account. By Agreed Order filed January 18, 1991, One Moore Ford and Ford Motor Credit agreed, and the bankruptcy court ordered, that the cash collateral would be handled in the manner approved by the parties in December 1990 before the petition in bankruptcy. Pertinent parts of that Agreed Order read:

The debtor and Ford Motor Credit Company have agreed that Ford Credit is entitled to continue to have its cash collateral handled in the manner that had been jointly approved by the parties prior to filing the petition for debtor relief. The following procedure shall continue until changed by court order.
1. Ford Motor Credit Company’s cash collateral, consists [of] contracts purchased by it from the debtor, generated by sale of wholesale inventory of automobiles.
2. Ford Credit shall be permitted to keep a representative on the debtor’s premises to assure that Ford Credit receives the portion of proceeds of any sale to which it is entitled, the amount necessary to discharge the secured debt on each individual unit;

Also, on January 18, 1991, the bankruptcy court granted One Moore Ford’s motion to allow use of cash collateral for payment of payroll, payroll taxes, and purchase of parts. In its order, the bankruptcy court approved One Moore Ford’s using TCB’s cash collateral for payroll and payroll taxes ($25,000) and for the purchase of parts ($25,000). The bankruptcy court further authorized One Moore Ford to use $23,000 of the cash collateral of Ford Motor Credit held on deposit at Eagle Bank:

The Debtor is further authorized to use cash collateral of Ford Motor Credit Company subject to the terms and provisions of an Agreed Order by and between the Debtor and Ford Motor Credit Company submitted contemporaneous herewith. Such cash collateral that the Debtor may use shall be defined as the Debtor’s portion of the sale proceeds derived from purchase of contracts by Ford Motor Credit Company from Debtor. For purposes of this Order, Debtor shall use $23,000.00 of funds currently held on deposit at Eagle Bank.

One Moore Ford next entered into an agreement for post-petition financing with TCB, and the bankruptcy court conditionally approved the agreement on January 25, 1991. The court found that One Moore Ford could incur secured debt in an amount not to exceed the lesser of cash generated from operations or $1,691,000. Pertinent parts of that approved financing agreement read:

6.2 Costs and Expenses to be Funded; Monthly Budget. (a) TCB shall advance funds to the Debtor to pay the reasonable and necessary costs and expenses incurred by it in connection with the preservation and disposition of accounts receivable, all inventory,... equipment and other property of the Debtor in which TCB has a valid, perfected and enforceable security interest.
9.1 Liens; Security Interests. . . . The security interest of TCB shall be superior to the claims of all other creditors except for the pre-petition perfected claims of Ford Motor Credit Corp. with respect to MOORE FORD’s vehicle inventory and proceeds and except for any pre-petition perfected interests in Borrower’s real property.

From January 25, 1991, until February 21, 1991, One Moore Ford, at the direction of TCB, transferred $185,000 of the cash collateral held in the Eagle Bank debtor-in-possession account, which were surplus proceeds from its vehicle sales, to its debtor-in-possession account at TCB. TCB did not notify Ford Motor Credit or obtain its permission for these transfers. Also, on February 21, 1991, One Moore Ford made a direct deposit of $8,000 into the TCB account: $7,000 was a cashier’s check and $1,000 was cash. There appears to be no dispute that the funds transferred from Eagle Bank to TCB were subsequently used to pay One Moore Ford’s operating expenses. One Moore Ford eventually converted its Chapter 11 bankruptcy to a Chapter 7 liquidation. According to the proof presented in this matter, TCB is left with an unpaid debt of $750,000, and Ford Motor Credit is owed $1,841,032.

On September 18, 1991, Ford Motor Credit filed a complaint against TCB in Pulaski County Circuit Court and alleged conversion of its cash collateral held on deposit at Eagle Bank. Later, on April 2, 1993, Ford Motor Credit amended its complaint to allege that TCB converted its cash collateral when it demanded that One Moore Ford transfer the cash collateral in the Eagle Bank account to the TCB account. On February 18, 1994, Ford Motor Credit filed a third amendment to its complaint, alleging the total amount of the conversion to be $193,000.

On December 22, 1993, TCB moved for summary judgment on grounds that One Moore Ford had used the cash collateral at issue solely for operating expenses and that Ford Motor Credit had consented to the use of those funds for that purpose. On February 22, 1994, Ford Motor Credit filed its own motion for summary judgment and asserted that it was entitled to judgment for conversion against TCB as a matter of law. The circuit court conducted a hearing on the two motions on February 28, 1994, and following the hearing granted summary judgment to TCB. In doing so, the court found that Ford Motor Credit had consented to One Moore Ford’s use of the Eagle Bank cash collateral for operating expenses under the Agreed Order and that Ford Motor Credit had sustained no damages to support an action for conversion because TCB had used the funds in dispute for the operating expenses of One Moore Ford which benefited both secured creditors.

Ford Motor Credit mounts three arguments for reversal: (1) TCB was not entitled to summary judgment as a matter of law because of its conversion of Ford Motor Credit’s cash collateral; (2) the circuit court abused its discretion in denying summary judgment to Ford Motor Credit; and (3) an issue of material fact remains to be decided on whether Ford Motor Credit consented to use of its cash collateral for One Moore Ford’s operating expenses. We agree that an issue of material fact does remain over whether Ford Motor Credit consented to TCB’s use of these funds.

Our oft-stated standard for review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to summary judgment as a matter of law. Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995); Forrest City Machine Works v. Mosbacher, 312 Ark. 578, 851 S.W.2d 443 (1993). The burden of sustaining the motion is on the moving party. Id. All proof must be viewed in the light most favorable to the party resisting the motion, and all doubts and inferences must be resolved against the moving party. Id. However, when the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing genuine issue as to a material fact. Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994); Wyatt v. St. Paul Fire & Marine Insurance Co., 315 Ark. 547, 868 S.W.2d 505 (1994).

TCB vigorously contends in support of affirming its order for summary judgment that Ford Motor Credit consented to the use of the Eagle Bank cash collateral post-petition for payment of One Moore Ford’s operating expenses and that those proceeds were indeed used for that purpose only. It points to the Agreed Order where One Moore Ford and Ford Motor Credit agreed that the credit company was “entitled to continue to have its cash collateral handled in the manner that had been jointly approved by the parties prior to filing the petition for debtor relief.” Furthermore, the Agreed Order provided that Ford Motor Credit could keep a representative on the debtor’s premises to ensure that it received “the portion of proceeds of any sale to which it is entitled, the amount necessary to discharge the secured debt on each individual unit.” According to TCB, that order conclusively evidences Ford Motor Credit’s consent.

Ford Motor Credit urges on the other hand that it never consented to blanket use of the Eagle Bank cash collateral for operating expenses post-petition and premises its countervailing argument on several factors. It argues that the Agreed Order may refer to a pre-petition procedure for depositing funds in the Eagle Bank account, but nowhere does it authorize use of that cash collateral for One Moore Ford’s operating expenses. Ford Motor Credit also points to the Bankruptcy Code which requires either consent by all interested entities or court authorization before cash collateral can be used. 11 U.S.C. § 363(c)(2) (1988). Ford Motor Credit further underscores the fact that the second order of January 18, 1991, authorized using only a fixed amount of the Eagle Bank funds for operating expenses — $23,000. That order does not state or otherwise indicate that it would be blanket or continued authority for use of this cash collateral beyond the specified amount. Ford Motor Credit contends that it consented to One Moore Ford’s use of the $23,000 on that one occasion because One Moore Ford had not yet secured post-petition financing with TCB. According to Ford Motor Credit, once One Moore Ford secured financing from TCB on January 25, 1991, the obligation to pay operating expenses became TCB’s and the Eagle Bank cash collateral could not be invaded. Indeed, Ford Motor Credit refers to the precise language in the January 25, 1991 Financing Order that its perfected claims in vehicle inventory and proceeds would be superior.-

We agree that when read together the two January 18 orders are unclear and inconclusive on whether Ford Motor Credit consented to use of the Eagle Bank cash collateral for operating expenses post-petition. Indeed, the circuit court recognized an ambiguity in the orders, though the parties did not, when it stated:

The problem I have, though, is that there’s an ambiguity with the agreed order and the order allowing use of collateral for payment. We have two affidavits from two gentlemen who had an agreement with One Moore Ford to apparently use the funds as operating expenses. There’s nothing that I can see that’s been filed that said that there was an agreement after January the 18th. And the January ... 18th order is ambiguous in that it states that they are entitled to continue to have its cash collateral handled in the same manner that had been jointly approved by the parties prior to filing the petition. ... I don’t know if there’s a factual issue, though, that we need to decide, and that is what this agreed upon order means. It is not clear. If it in fact means that they continued to use the funds for operating expenses, then I would grant the motion for summary judgment.

It is difficult for this court to conclude that a question of material fact surrounding Ford Motor Credit’s consent to its cash collateral does not exist when the circuit court alludes to the lack of clarity and an ambiguity in the two controlling bankruptcy court orders. When an ambiguity exists in contract language, for example, clearly it becomes a matter for resolution by the trier of fact. See, e.g., Keller v. Safeco Ins. Co., 317 Ark. 308, 877 S.W.2d 90 (1994); McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994).

Moreover, a bankruptcy petition changes the relationship of all affected entities, and here there is conflicting proof on the use of the Eagle Bank funds post-petition. TCB presents the affidavits and depositions of Ford Motor Credit branch managers Claude Hill and Stan Lockhart, One Moore Ford attorney Geoffrey Treece, and then TCB Executive Vice President Robert Birch in support of its case that Ford Motor Credit consented to the use of its cash collateral for One Moore Ford’s operating expenses. Ford Motor Credit counters this proof with the affidavits and depositions of Lockhart, Birch, and One Moore Ford Chief Accountant Terry Mercing that it never consented to the transfer of the Eagle Bank cash collateral to TCB. Lockhart in particular testified to this by affidavit, and Birch admitted that he saw no reason to seek Ford Motor Credit’s permission to transfer the Eagle Bank cash collateral. Thus, not only were the two orders of January 18, 1991, unclear and conflicting on the issue of consent, but the affidavits and depositions submitted by the parties conflict on the extent that Ford Motor Credit knew that TCB was using the Eagle Bank cash collateral post-petition. Ordinarily, cross motions for summary judgment might eliminate all factual issues. But TCB and Ford Motor Credit are diametrically opposed on the factual issue of consent.

We, accordingly, hold that whether Ford Motor Credit consented to a general use of its cash collateral at Eagle Bank for One Moore Ford’s operating expenses after the bankruptcy petition was filed is an issue of material fact that remains to be determined. Nor do we believe that the issue can be resolved simply as a matter of law by reference to the bankruptcy orders for reasons already discussed. Manifestly, if Ford Motor Credit did not consent to the use of its cash collateral and it was wrongfully spent, damage to the credit company would be the result. Nevertheless, we do not reach the issue of whether a conversion in fact transpired in this opinion.

We reverse the order of summary judgment and remand for a trial on the merits. With regard to the remand, we turn to the request of Ford Motor Credit that a different circuit judge try the case due to the fact that the current circuit judge has made a decision on the consent and damage issues. Ford Motor Credit contends that this would militate against an impartial tribunal. We do not agree that this impairs the ability of Ford Motor Credit to obtain a fair trial. We have previously held that when a trial judge granted a directed verdict and we reversed and remanded for trial and the matter was in fact tried, there was no valid reason for the judge to disqualify. Carton v. Missouri Pacific Railroad, 315 Ark. 5, 865 S.W.2d 635 (1993). We noted in Carton that a judge has a duty to remain in a case unless there is some valid reason to disqualify. Moreover, the decision to disqualify rests within the trial court’s discretion. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994); Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). Reversals of summary judgment orders and directed verdicts and remands for new trials occur from time to time. Were we to require a new judge to be substituted in each instance, that would necessitate multiple appointments and exchange agreements that may not in fact be necessary. We decline to do so in this instance.

Reversed and remanded.


text:
    Ena WILSON and Bruce Wilson v. William R. BROWN and Jane Brown
    94-920
    897 S.W.2d 546
    Supreme Court of Arkansas
    Opinion delivered April 3, 1995
    [Rehearing denied May 1, 1995.]

      Robinson, Staley & Marshall, by: Robert L. Robinson, Jr., for appellants.

      Pope, Shamburger, Buffalo & Ross, by: John K. Shamburger, for appellees.

      Holt, C.J., not participating.

   Robert L. Brown, Justice.

This case involves two adjacent businesses — a skating rink and a catfish restaurant — the customers of which use the same driveway for ingress and egress from Highway 25 in Heber Springs. Appellants Ena and Bruce Wilson own the skating rink. Appellees William R. and Jane Brown own the catfish restaurant. The central dispute involves the joint use of an easement strip and alleged interference in that usage by each party against the other.

In 1982, Greers Ferry Development Company, Inc. owned the property abutting Highway 25 which property is now owned by the Wilsons and the Browns, including the easement which is in dispute in this matter. In that year, Greers Ferry Development sold part of its property to the Wilsons’ predecessors, James L. Hawkins and Cherolyn Hawkins, for the purpose of operating a skating rink and stated in the deed: “Grantor reserves unto himself a parking and driveway easement.” That easement was described as having dimensions of 30 feet by 220 feet and ran from Highway 25 to the skating rink. On July 31, 1992, the Wilsons purchased this same property from Heber Springs State Bank, which succeeded to the interest of Greers Ferry Development, “subject to any existing easements.” The Wilsons now operate the skating rink known as Skateland on the property. Prior to that date and on April 7, 1988, the Browns purchased the other part of the Greers Ferry Development property and have operated a catfish restaurant, Mr. B’s, on that property. Since their purchase of the land, they have used the easement for a driveway and for parking. The Wilsons have continued to use the strip for access from the skating rink to Highway 25.

In May 1993, the Wilsons began to experience problems with the Browns’ use of the easement strip. On July 2, 1993, the Wilsons wrote a letter to the Browns instructing them to cease dumping waste water and fish debris onto Skateland’s property and demanding that they also prevent their customers from parking on the property. On August 26, 1993, the Browns filed a petition in chancery court, seeking a temporary restraining order and a permanent injunction against the Wilsons from interfering with their easement. The chancellor temporarily restrained the Wilsons from blocking the easement pending the hearing. On September 13, 1993, the Wilsons answered the Browns’ petition and counterclaimed against the Browns. The Wilsons alleged that the easement reserved was in gross and personal to Greers Ferry Development and, therefore, terminated when Greers Ferry Development’s interest in the restaurant property ceased. Further, they asserted that the actions of the Browns in dumping refuse on the Skateland property and burning trash constituted a continuous trespass and nuisance, and they requested that the chancellor enjoin the Browns and their customers from parking and driving on the easement. As an alternative, the Wilsons sought a declaratory judgment authorizing the Wilsons to erect a fence at the Browns’ expense which would set off the easement strip from the restaurant property. Finally, the Wilsons prayed for a dismissal of the Browns’ petition on the ground that the Browns should not be allowed to come into equity with unclean hands. On December 10, 1993, the chancellor modified the temporary restraining order and directed the Browns not to dump trash on the easement strip or impede ingress or egress to the skating rink property.

On March 3 and 4, 1994, the matter was tried before the chancellor. Following the trial, the chancellor issued a letter opinion finding that the easement was appurtenant to the Browns’ property and not personal to Greers Ferry Development. In his resulting decree, he ordered the Browns to erect a barricade on the easement strip. That barricade, according to the decree, would allow the Wilsons to have the full 30-foot width at the entrance of the easement strip off Highway 25 for the first 10 feet but would then limit the width of the easement to 18 feet rather than 30 feet for the remainder of the strip. On March 31, 1994, the Wilsons moved for an amended decree for the reason that the barricade denied them adequate access to Highway 25. The chancellor denied the motion.

For their first point, the Wilsons urge that the chancellor was wrong in finding that the easement strip was appurtenant to the restaurant property and not personal to Greers Ferry Development. We disagree. This court has explained that easements appurtenant run with the land and easements in gross are personal to the grantors. Merriman v. Yutterman, 291 Ark. 207, 723 S.W.2d 823 (1987); Wallner v. Johnson, 21 Ark. App. 124, 730 S.W.2d 253 (1987). An easement appurtenant serves a parcel of land called the dominant tenement. The property on which the easement is imposed is the servient tenement. Thompson on Real Property, § 60.02(f)(3) (David A. Thomas ed. 1994). An easement in gross does not have a dominant tenement because it benefits one person or entity, not the land. Id. In addition, when we interpret a deed, the primary consideration must be given to the intent of the grantor. Bennett v. Henderson, 281 Ark. 222, 663 S.W.2d 180 (1984). The intent of the grantor should be garnered solely from the language of the deed unless the language of the instrument is ambiguous, uncertain, or doubtful. Id. If the language of the deed is ambiguous or doubtful, it should be construed against the party who prepared it. Id.

The Wilsons rely on Merriman v. Yutterman, supra, and Rose Lawn Cemetery Assoc., Inc. v. Scott, 229 Ark. 639, 317 S.W.2d 265 (1958), for their contention that the failure to reserve the easement in heirs, successors, and assigns renders the easement merely one in gross. In Merriman, this court addressed the following language in a will: “the forty (40) foot driveway from Free Ferry Road, three hundred (300) feet Northward, shall be kept open for the common use of the devisees in this will.” This court held that by stating in his will that the driveway was to be kept open for the common use of the devisees in the will, the deceased evidenced his intent that the easement was personal to those parties. Because the easement was in gross, it was not transferable. In Rose Lawn Cemetery, the grantor conveyed his interest in property to his three sisters “except a strip of land 25 feet wide . . ., which is reserved as a roadway for use of the parties hereto.” The grantor’s children subsequently inquired whether they had an interest in the strip of land reserved by the grantor. This court held that the language in the deed created an easement in gross which was personal to the parties which ended at the grantor’s death. Accordingly, the grantor’s children could claim no interest in the strip of land. We note that in both the Merriman and the Rose Lawn cases the use of the easement was limited to certain individuals. That factor warranted a conclusion that the easements were in gross. To the same effect are Ft. Smith Gas Co. v. Gean, 186 Ark. 573, 55 S.W.2d 63 (1932) and Field v. Morris, 88 Ark. 148, 114 S.W. 306 (1908).

In the case before us, there are several factors that lead us to conclude that the terms of the deed are ambiguous on the issue of whether the easement was intended to be personal to Greers Ferry Development or to run with the restaurant property. The easement language at issue states: “Grantor reserves unto himself a parking and driveway easement.” This language, however, does not provide the reason for the reservation of an easement or for whose use the easement was reserved. It stands to reason, though, that a development company would reserve the easement to run with the restaurant property so as to enhance its marketability. Indeed, it is illogical, as the chancellor concluded, to think that a development company was interested in an easement solely for personal use. The Wilsons were under no illusions about this. They took title to the Skateland property in 1992 subject to existing easements and shared the driveway and parking with the Browns before the litigation commenced in 1993.

We believe that the Greers Ferry Development deed to the Hawkinses in 1982 is ambiguous and that the chancellor correctly considered parol evidence from former officers of Greers Ferry Development and others in finding the easement to be appurtenant. We affirm the chancellor on this point.

For their next point, the Wilsons maintain that the chancellor erred in denying them an injunction against the Browns’ various acts of trespass. The Wilsons list seven examples of conduct by the Browns which, they contend, constitute a continuing trespass:

1. Parking their vehicles on the easement and allowing their customers and employees to park there in such a way as to block vehicular access to the skating rink from the highway;
2. Refusing to ask their customers to move their parked vehicles which blocked the access.
3. Digging trenches across skating rink property and washing grease, waste water, fish waste, and other garbage with a hose from the catfish restaurant property onto the skating rink property.
4. Burning trash day and night in an open barrel close to the skating rink in violation of a city ordinance.
5. Throwing boxes out the back door of the catfish restaurant onto the skating rink property.
6. Refusing to clean up drinking cups, beer cans, whiskey bottles, and so forth that their customers threw out on the easement.
7. Permitting their employees to smoke marijuana and hurl expletives at the Wilsons and the young patrons of the skating rink.

We address several of these allegations as part of our de novo review, since the chancellor did not expressly resolve them. With respect to the allegation that the Browns dug ditches to wash the grease and fish waste from the restaurant onto the skating rink property, that situation appears to have been mitigated. Jane Brown testified that she has installed a drain for her employees to use to dispose of waste water. The allegation of burning trash also appears to be moot. Jane Brown testified that she removed the burn barrel pursuant to instructions from the Heber Springs Fire Chief, Frank Valentine, in October 1993 and that she no longer burns waste on her property.

The chancellor did consider the assertion that the Browns were throwing empty boxes onto skating rink property. Jane Brown testified that she has broken the boxes down and thrown them into the trash dumpster ever since Bruce Wilson first asked her to remove them in the summer of 1993. But in any case, the chancellor in his decree directed that the Browns construct a fence at their expense on their west property line between the restaurant and skating rink to prevent boxes and paper materials from blowing onto the Wilsons’ land. That directive resolves this aspect of the Wilsons’ counterclaim.

With regard to trash on the easement, verbal abuse, and marijuana smoking, the allegations are more appropriate for a claim of nuisance and fall short of what is required for a finding of continuing trespass. The Wilsons also contend that the Browns have engaged in a continuing trespass by parking their cars and allowing their employees and customers to park in the easement which blocks their access to Highway 25. Because we have held that the Browns have an easement for parking and a driveway along the easement strip, there is no basis for trespass. Nevertheless, we address the question of the extent to which the Browns and their customers can block the access of the Wilsons and their customers to Highway 25 under the final point.

For their third point, the Wilsons urge that the chancellor erred in allowing the Browns to come into equity with unclean hands. They cite as examples of unclean hands the same conduct used to support their claim of trespass. The equitable maxim of unclean hands is stated as follows:

The clean hands maxim bars relief to those guilty of improper conduct in the matter as to which they seek relief. Marshall v. Marshall, 227 Ark. 582, 300 S.W.2d 933 (1957). Equity will not intervene on behalf of a plaintiff whose conduct in connection with the same matter has been unconscientious or unjust. Batesville Truck Lines, Inc. v. Martin, 219 Ark. 603, 243 S.W.2d 729 (1951).

Merchants & Planters Bank & Trust Co. v. Massey, 302 Ark. 421, 790 S.W.2d 889 (1990). The chancellor’s decree was silent on this issue. We perceive from the tone of the briefs in this appeal that the rancor between the parties in this matter is considerable and that bitterness has attached. Regardless, on de novo review we do not consider the evidence of unconscientious or unjust conduct on the part of the Browns to be so clearcut and of such a magnitude as to warrant a decision in this matter based on unclean hands.

For their final point, the Wilsons assert that the barricade ordered by the chancellor within the easement strip divested them of land owned in fee simple. We agree that the chancellor was without authority to order the erection of a barricade which effectively took part of their servient tenement without just compensation. This is impermissible. See Ark. Const. Art. 12, § 9. We reverse the chancellor on this point and direct that the chancellor amend his decree to remove the requirement of a barricade.

Two businesses are involved here and the owners of each have an interest in the easement strip as owners of the dominant and servient tenements. We have recognized that in determining the relations between the easement owner and the possessor of the servient estate, the governing principle is that neither should unreasonably interfere with the rights of the other. Jordan v. Guinn, 253 Ark. 315, 485 S.W.2d 715 (1972). We have further recognized that what is reasonable or unreasonable will vary with the facts of the case. Id. It is generally recognized that the holder of the dominant estate has a duty to use the property so as not to damage the owner of the servient estate. Davis v. Arkansas Louisiana Gas Co., 248 Ark. 881, 454 S.W.2d 331 (1970). Conversely, the owner of a servient estate may not erect a barrier that unreasonably interferes with the right of passage by the easement owner. Jordan v. Guinn, supra.

We have held that the restaurant property carries with it a parking and driving easement as an easement appurtenant over the strip in dispute. That does not mean, though, that the Browns can block, impede, or otherwise truncate the Wilsons’ access to Highway 25. That clearly would constitute an unreasonable interference with the rights of the owners of the servient estate. The 30 feet by 220 feet easement strip will continue to be used by the Browns and their customers for parking and a driveway but not in such a manner as to impede or block the ingress and egress of the Wilsons and their customers from the Skate-land building to Highway 25. Nor may the Wilsons or their customers block similar ingress and egress for the restaurant customers along the easement strip.

Affirmed in part. Reversed in part and remanded for an order consistent with this opinion.

Holt, C.J., not participating.

SCALE l K ■ 60 FT. LEGAL DESCRIPTION'S FDR: SKATELAND & MR. Bs CATFISH THIS CRAWIbC PREPARED FROM LEGAL OESCR1PTSCNS FLRNISJ-ED AhC A PREVEUS SURVEY OCTt BY ft IN 19BB. PREPARED BY: CUFTCN W. STARK PQ BOX 176 hEBER SPRINGS. AR 72543 PH>£ 501-362-4062 LECEM3 • FONO IRON PIN A COMPUTED POINT -BONDARY me DECEMBER 22. 1933

      The catfish restaurant also has its own separate entrance apart from the joint driveway.


author: Andree Layton Roaf, Justice.

text:
    Gus M. PANNELL v. STATE of Arkansas
    CR 94-452
    895 S.W.2d 911
    Supreme Court of Arkansas
    Opinion delivered April 3, 1995

      Karen R. Baker, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

This criminal case is an appeal from a conviction for first degree battery. The sole issue raised on appeal pertains to a remark made by the prosecutor during closing argument concerning the defendant’s failure to testify, but we do not reach the merits of that argument. The case was certified to this court from the Court of Appeals on a question of the notice of appeal. We find that no effective notice of appeal was filed from the original judgment and dismiss.

Gus Pannell, appellant, was charged with attempted murder as a result of slashing the throat of another individual during an argument. A jury trial was held on October 12, 1993, and appellant was found guilty of first degree battery and sentenced to seven years imprisonment and a fine of $5,000. A notice of appeal was filed on November 5, 1993, but at that time, judgment had not yet been entered. The Judgment and Commitment Order was subsequently entered on November 9, 1993, but appellant did not appeal from that order.

An order extending the time to file the record on appeal was granted on January 19, 1994, and on April 26, 1994, the judge in the original case entered an order for an “Amended Judgment” for appellant. The only changes in the amended judgment were a notation that the defendant had begun serving jail time on March 13, 1993, and that he had 214 days of credit. Appellant filed a notice of appeal from the amended judgment on the same day it was entered. The record was filed in this court on April 29, 1994.

The issue in this case is whether a timely notice of appeal was filed pursuant to A.R.Cr.P. 36.9(a). We find it was not.

The second notice of appeal was filed pursuant to the amended judgment, which was entered more than 120 days after the entry of the original judgment. In criminal cases, an aggrieved party may seek relief to correct a sentence illegal on its face at any time, but must petition within 120 days to seek relief from a sentence imposed in an illegal manner. Delph v. State, 300 Ark. 492, 780 S.W.2d 527 (1989); Fritts v. State, 298 Ark. 533, 768 S.W.2d 541 (1989). The corollary to that rule is that the trial court is without jurisdiction to modify a sentence once it has been put into execution. Toney v. State, 204 Ark. 473, 743 S.W.2d 816 (1988); Coones v. State, 280 Ark. 321, 657 S.W.2d 533 (1983). A sentence is considered in execution once the court issues a commitment order. Kelly v. Washington, 311 Ark. 73, 843 S.W.2d 797 (1992); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987).

We specifically addressed the question in Delph v. State, supra, as to whether a request for credit for jail time was a request for a modification of a sentence after it had been put into execution. We held that it was.

Under Delph it is clear the trial court in this case was without jurisdiction to modify the sentence. The trial court had already issued a commitment order when the amended judgment was entered in April 1994, and the only change in the new judgment was a credit for jail time. The amended sentence should be vacated with directions to the trial court to reinstate the original sentence. See Redding v. State, supra.

There remains the question of the notice of appeal. Because the trial court was without jurisdiction to amend the judgment, the notice of appeal from the amended judgment was ineffective. The first notice of appeal was also ineffective as it was entered prior to the date of entry of the original judgment. See A.R.Cr.P. 36.9(b); Mangiapane v. State, 314 Ark. 350, 862 S.W.2d 258 (1993); Tucker v. State, 311 Ark. 446, 844 S.W.2d 335 (1993).

The appeal is therefore dismissed.