author: Donald L. Corbin, Justice.

text:
    Deidra M. CHAVERS, Individually and as Personal Representative of the Estate of James Chavers v. GENERAL MOTORS CORPORATION; AlliedSignal, Inc.; and Ford Motor Company
    01-1410
    79 S.W.3d 361
    Supreme Court of Arkansas
    Opinion delivered July 5, 2002

      Patton & Tidwell, L.L.P., by: Nicholas H. Patton; and W. Mark Lanier, Kevin P. Parker, and Patrick N. Haines, for appellant.

      Barber, McCaskill, Jones & Hale, P.A., by: Robert L. Henry, III, for appellee General Motors Corporation.

      Barber, McCaskill, Jones & Hale, P.A., by: Michael E. Hale and Cynthia J. Worthing, for appellee AlliedSignal, Inc.

      Wright, Lindsey & Jennings LLP, by: Edwin L. Lowther, Jr., and Justin T. Allen, for appellee Ford Motor Company.
   Donald L. Corbin, Justice.

This is an appeal of the Hempstead County Circuit Court’s order granting summary judgment. Appellant Deidra M. Chavers filed a wrongful-death action, in both her individual capacity and as representative of the Estate of James Chavers, alleging that Appellees General Motors Corporation (“GM”), AlliedSignal, Inc., and Ford Motor Company, as manufacturers and distributors of asbestos-containing friction products, were responsible for the death of her husband James Chavers. On appeal, Appellant argues that the trial court erred in (1) granting Appellees’ motions for summary judgment, and (2) applying the “frequency, regularity, and proximity” test to the issue of causation. This case was certified to us from the Arkansas Court of Appeals as involving an issue of first impression; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 — 2(b)(1). We affirm.

Mr. Chavers was diagnosed with malignant mesothelioma, a rare form of cancer of the membrane lining the lungs, chest cavity, and abdominal cavity. According to the wrongful-death action filed by Mrs. Chavers, her husband contracted mesothelioma as a result of his exposure to various asbestos-containing products, including brake products manufactured by each of the Appellees. Specifically, GM was responsible for selling various brakes under the Delco name, while AlliedSignal sold brakes under the Bendix trade name.

Prior to his death, Mr. Chavers was deposed in connection with the pending litigation. According to his deposition testimony, one of Mr. Chavers’s earliest known exposures to asbestos occurred while working for E. L. Bruce & Company, a furniture and hardwood flooring company, from 1960-1966. Mr. Chavers believed that the covering found on the overhead pipes in his work area contained asbestos. Mr. Chavers stated that he also worked for many years in the construction industry, performing both residential and commercial construction jobs. He estimated that sixty-five to seventy percent of his career was spent doing construction work. One task he often performed was putting up sheetrock. Mr. Chavers explained that this required him to apply a joint compound that contained asbestos in the seams of the sheetrock. This joint compound was delivered to the construction site dry and contained in a bag. Mr. Chavers was required to dump the bag into a five-gallon bucket and mix it with water. He then applied it to the sheetrock by rolling it on with a stick or trowel. Next, the compound had to be sanded, a process that he described as dusty.

Mr. Chavers also testified that he worked for Burks Wrecking, a demolition company, for two to three years. While employed by Burks, he worked on several large commercial projects in Little Rock, including the demolition of the old Greyhound Bus Station. Mr. Chavers testified that the bus station contained asbestos. He also described this job as one involving a lot of dirt and dust.

Mr. Chavers testified further that he was a “shade tree mechanic.” In other words, he performed mechanical work on his own automobiles, as well as on the automobiles of friends and family members. His work on cars mainly consisted of replacing brakes and transmissions. He started doing this type of work in 1955 or 1956. Mr. Chavers stated that he worked primarily on Fords, but also worked on Chevrolets and Chryslers. He usually worked on older vehicles and did not know whether the brakes he took off were original or replacement parts, but he assumed the brakes had previously been replaced. Mr. Chavers estimated that he changed about twelve to fifteen sets of brakes per year.

When he began performing brake jobs, he primarily worked on drum brakes. Mr. Chavers explained that replacing a set of drum brakes required him to blow dust out of the drum before putting new brakes on the car. Mr. Chavers also stated that he used several different brands of brakes, including Bendix, Wagner, Delco, and AC-Delco. He also recalled on one occasion removing a set of brakes stamped FOMOCO, which stands for Ford Motor Company. According to Mr. Chavers, Bendix was his favorite type of brakes to use and the type he used most often. He bought most of his brakes from Western Auto or Oklahoma Tire and Supply Company (“OTASCO”). Mr. Chavers stated that he continued to do brake jobs until 1999. The last time he replaced drum brakes, however, was in 1998.

Deidra Chavers was deposed on April 12, 2001. She had no knowledge of any specific product that her husband had contact with that contained asbestos. She did state that he told her once that he had heard that the dust at construction sites contained asbestos and that he often came home from his construction jobs dirty and dusty. She stated that her husband never worked as a full-time mechanic; rather, he just worked on cars in the front yard.

Dr. James Bruce, a forensic pathologist, was retained as an expert by Appellant in this case. He was deposed on April 25, 2001. He stated that his knowledge of Mr. Chavers’s work history consisted of the fact that from 1961 through 1977, he was exposed to asbestos materials on various residential and commercial construction sites. Dr. Bruce further stated that these materials consisted of insulation, joint compound, and automotive friction products. He admitted that he did not know what type of asbestos fibers are contained in any of those three materials, except that chrysotile fibers are generally found in automotive friction products. Dr. Bruce opined, however, that any type of asbestos fiber to which Mr. Chavers was exposed during the sixteen-year period could have contributed to his malignant mesothelioma.

He also stated that the most prevalent fibers found in individuals with no occupational exposure to asbestos was chrysotile, probably due to its prevalence in insulation materials in buildings. The following colloquy then took place between defense counsel and Bruce:

Q. If chrysotile is, in your opinion, a contributing factor for mesothelioma, why is it that the general population who has no occupational exposure to asbestos does not have a higher incidence of mesothelioma when they in fact have been exposed to chrysotile?
A. Well, there must be some threshold level, whatever it is, that is generally required to produce changes. We see and have reported people with some ferruginous bodies in their lungs but we have a normal range for that. So the fact that some is there does not mean that there’s enough to cause disease.
Q. So there is a dose relationship situation that exists here? You have to be exposed to enough of the stuff over some period of time to cause the disease?
A. Yes.
Q. You just don’t happen to know what that threshold level is in this case?
A. No, and that’s a point that’s debated, what is the threshold, and I don’t think that’s really been determined. [Emphasis added.]

Bruce also stated that at trial he would testify that all exposures to asbestos, given appropriate latency periods, would be significant factors in Mr. Chavers’s mesothelioma. He further stated, “Each exposure would have the potential to cause disease.” (Emphasis added.) Dr. Bruce typified Mr. Chavers’s exposure through working with friction products as an occupational exposure. The difference between background-level exposures and occupational exposure would be the intensity and duration of the exposure, according to Dr. Bruce. However, he was unable to state the amount of asbestos that Mr. Chavers was exposed to.

Later in his deposition, the following colloquy took place between defense counsel Skip Henry and Dr. Bruce:

Q. You don’t have any independent knowledge of your own about what type product or products Mr. Chavers was exposed to that contained asbestos, do you?
A. No, I don’t.
Q. You basically render your opinion based upon whatever information you’re given on a background sheet by Mr. Campbell’s office, correct?
A. That’s right.

Dr. Bruce admitted that he had no knowledge of Mr. Chavers’s medical information regarding the percent of asbestos in his lung tissue. According to Dr. Bruce, though, even a short, relatively intense exposure may be enough to cause mesothelioma. When asked what he meant by a relatively intense exposure, Dr. Bruce stated that it was a short period of time performing an occupation that would generate a significant amount of fibers. He further explained that such an exposure probably would occur working around commercial construction. He stated that in the 750 cases that he had reviewed, he had made no diagnosis of mesothelioma in a person whose only occupation was that of automobile mechanic.

While being questioned by defense counsel William Harrison, Dr. Bruce gave the following information:

Q. ... In a situation where you have multiple exposures, in order for you to say that an exposure was significant in the sense that that exposure was significant enough to contribute to the causation of meso, what is the criteria that you want to see for that specific exposure?
A. Either known amounts of fibers that the occupation or job produced, or be able to relate that occupation to others that have been measured to show that there’s a significant asbestos burden in the breathable air.

Finally, Dr. Bruce stated that he had all the information and materials that he needed to testify at trial.

GM was the first Appellee to file a motion for summary judgment on May 11, 2001, alleging that there were no genuine issues of material fact. Specifically, GM averred that Appellant had failed to establish product identification of a GM product to which Mr. Chavers was exposed and also failed to establish that GM’s product proximately caused the claimed damages.

On May 15, 2001, AlhedSignal filed a motion for summary judgment alleging a failure to establish product identification. The company also alleged that Appellant failed to present evidence establishing that Mr. Chavers was exposed to an AlliedSignal asbestos-containing product with sufficient frequency, regularity, and proximity, thereby failing to establish the element of proximate causation.

Also on May 15, Ford filed a motion for summary judgment. Therein, Ford alleged that the evidence could only document one exposure of Mr. Chavers to a Ford product, and that as a matter of Arkansas law, one exposure was insufficient credible evidence from which a trier of fact could infer that a Ford product was a substantial factor in causing Mr. Chavers’s illness.

The trial court held a hearing on the motions for summary judgment on June 1, 2001. A written order was subsequently entered on June 25, 2001, granting each Appellees’ motion. Therein, the court made the following findings:

1. There is no genuine issue of material fact with respect to plaintiff s claims against these defendants, and based on the undisputed material facts, AlhedSignal, Inc., Ford Motor Company, and General Motors Corporation are entitled to entry of judgment as a matter of law.
2. With regard to plaintiffs claims against General Motors and AlliedSignal, plaintiff has not or cannot produce sufficient product identification of the Delco (General Motors) or Bendix (AlliedSignal) brake shoes or whether these brake shoes contained asbestos. Plaintiff has also failed to produce evidence that plaintiffs decedent was exposed to asbestos from Delco or Bendix brake shoes. Finally, even if there had been proof that plaintiffs decedent was exposed to Delco or Bendix brake shoes, plaintiff has failed to produce any evidence that this exposure was a proximate cause of the decedent’s mesothelioma.
3. With regard to plaintiffs claims against Ford Motor Company, plaintiff did offer evidence that on one occasion plaintiffs decedent removed a FOMOCO brake shoe from a vehicle. The court finds, however, that this is insufficient product identification to establish that this exposure was a proximate cause of decedent’s mesothelioma.
4. The court further finds that even if plaintiff had produced evidence of sufficient product identification, plaintiff has not satisfied the “frequency, regularity and proximity test” which this court finds would be followed by the Arkansas Supreme Court.

Appellant originally lodged this appeal with the court of appeals, but it was certified to this court as a matter involving an issue of first impression. On appeal, Appellant raises the following arguments: (1) It was error to grant summary judgment on the basis of insufficient evidence that Mr. Chavers was exposed to GM and AlliedSignal brake products; (2) there was evidence that Mr. Chavers was exposed to asbestos from GM and AlliedSignal brake products; (3) there was evidence that this exposure was a proximate cause of Mr. Chavers’s injuries; (4) this court should not adopt the “frequency, regularity, and proximity” test to mesothelioma cases, or if so, it should be relaxed; and (5) this test should not be used in cases involving direct, rather than circumstantial, evidence.

We note at the outset that summary judgment is no longer viewed by this court as a drastic remedy; rather, it is viewed simply as one of the tools in a trial court’s efficiency arsenal. Foreman Sch. Dist. No. 25 v. Steele, 347 Ark. 193, 61 S.W.3d 801 (2001). As we have often stated, summary judgment is to be granted by a trial court if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56; Pfeifer v. City of Little Rock, 346 Ark. 449, 57 S. W.3d 714 (2001); Mashburn v. Meeker Sharkey Fin. Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001); Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).

We have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Fryar v. Roberts, 346 Ark. 432, 57 S.W.3d 727 (2001); Stilley v. James, 345 Ark. 362, 48 S.W.3d 521 (2001). Once a moving party has established a prima fade entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Id.

We first consider Appellant’s argument regarding the appropriate standard to be followed in determining if there is proof of causation in the present matter. Appellant argues that it was error for the trial court to apply the “frequency, regularity, and proximity” test to this case. This test represents another approach to the causation analysis that has been adopted by a majority of courts in dealing with asbestos cases. Appellant claims it was error to apply this test here for two reasons: (1) It is inappropriate because the medical evidence shows that even a minimal exposure to asbestos can cause mesothelioma; and (2) it should only be applied in cases involving circumstantial, rather than direct, evidence. We disagree.

This test has its origins in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986). There, the appellants appealed a district court’s grant of directed verdicts in favor of the manufacturers of asbestos-containing products. The appellants requested that the court adopt a rule that would find a jury question had been established as to whether that product contributed to the plaintiffs disease where the plaintiffs present any evidence that a company’s asbestos-containing product was at the workplace while the plaintiff was at the workplace. In declining to adopt such a broad standard, the Fourth Circuit noted that such a standard would be contrary to Maryland’s law on substantial causation. Instead, the court adopted the district court’s enunciated standard: “Whether a plaintiff could successfully get to the jury or defeat a motion for summary judgment under such a theory would depend upon the frequency of the use of the product and the regularity or extent of the plaintiffs employment in proximity thereto.” Id. at 1162. The Lohrmann court further noted that such a rule was in effect a de minimis rule in that a plaintiff is required to prove more than a casual or minimal contact with the product.

In Jackson v. Anchor Packing Co., 994 F.2d 1295 (8th Cir. 1993), the Eighth Circuit Court of Appeals, in reviewing a grant of summary judgment, affirmed the district court and held that if the issue was presented to us, the Arkansas Supreme Court would adopt the “frequency, regularity, and proximity” test in determining whether proximate cause had been proven in toxic-tort cases. In adopting this test, the Eighth Circuit rejected the plaintiffs’ contention that Arkansas courts would allow a lower standard of proof in situations involving asbestos-exposure cases. Id. The court likewise rejected the plaintiffs’ contention that the Arkansas courts had adopted the theory of alternative liability in concurrent-cause cases. The court found unpersuasive the plaintiffs’ reliance on this court’s opinion in Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971). The Jackson court determined that this court’s opinion in Woodward did not alter traditional notions of causation, nor did it adopt a lower standard of alternative liability.

After rejecting the appellants’ alternative arguments regarding the appropriate standards, the Eighth Circuit concluded that under Arkansas law, asbestos plaintiffs in Arkansas must introduce sufficient evidence to allow a jury to find that more likely than not their exposure to a particular defendant’s product was a substantial factor in producing their injuries. Id. at 1303. The court went on to state:

Consequently, to survive a motion for summary judgment under Arkansas law, an asbestos plaintiff must show that the defendant’s asbestos products were used with sufficient frequency and regularity in locations from which asbestos fibers could have traveled to the plaintiffs work areas that it is probable that the exposure to the defendant’s asbestos products caused the plaintiffs injuries.

Id. at 1303. In affirming the summary judgment, the Eighth Circuit noted that the plaintiffs’ expert witness did not visit the plant where the alleged asbestos exposure took place to determine airflow patterns and the extent to which asbestos fibers could have been disseminated. Thus, the court determined that this expert’s affidavit regarding the asbestos exposure was conclusory and did not provide a basis for denying summary judgment.

The Eighth Circuit again applied this “frequency, regularity, and proximity” test to an asbestos case in Chism v. W.R. Grace & Co., 158 F.3d 988 (8th Cir. 1998). There, the appellants, survivors of a man who died from malignant mesothelioma, sued the manufacturers of asbestos-containing products, alleging that the decedent’s inhalation of asbestos from those products caused his injuries. Noting that the Eighth Circuit, as well as a majority of other courts, had adopted the Lohrmann test in establishing causation, the court stated that the test has four parts: (1) exposure to a particular product; (2) on a regular basis; (3) over an extended period of time; and (4) in proximity to where the plaintiff actually worked. The court then concluded that the appellants had failed to establish causation, because while they showed that the decedent was exposed to Zonolite vermiculite on a regular basis, they failed to establish that that product contained any asbestos that could have caused the asbestos-related form of cancer that caused the decedent’s death. Finally, the court noted that the appellants had had ample time and opportunity to develop supporting expert testimony in an effort to avoid summary judgment.

Similarly, in Wright v. Willamette Industries, Inc., 91 F.3d 1105 (8th Cir. 1996), the court reversed a circuit court’s judgment in favor of the plaintiffs, holding that they failed to produce evidence that they were exposed to hazardous levels of formaldehyde from fibers that drifted from the defendant’s plant. As the court pointed out, the plaintiffs had the burden of proving proximate cause in order to recover under their negligence claim. The court agreed with the defendant that the plaintiffs were required to demonstrate actual exposure to a toxic substance emitted from the defendant’s plant at levels that are known to cause injuries like the ones complained of by the plaintiffs. The court reasoned that it is not enough for a plaintiff to show that a certain chemical agent sometimes causes the kind of harm complained of. “At a minimum, we think there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of that agent that are known to cause the kind of harm that the plaintiff claims to have suffered.” Id. at 1107 (citing Abuan v. General Elec. Co., 3 F.3d 329, 333 (9th Cir. 1993)). The court agreed that the appellees had proved that they were exposed to the wood fibers, but they failed to produce evidence that they were exposed to a hazardous level of formaldehyde. The court further noted that the district court should have stricken the testimony of appellees’expert witness, Dr. Frank Peretti, because his opinion that the appellees’ complaints were more probably than not related to formaldehyde exposure was not based on any scientific knowledge and, thus, was nothing more than mere speculation. Finally, the court concluded that the appellees’ failure to prove exposure at hazardous levels left them unable to carry their burden of proof on the issue of causation.

We conclude that the “frequency, regularity, and proximity” test is the correct test to apply in this case, and we adopt it. Under this test, to survive a motion for summary judgment, Appellant was required to prove the following elements: (1) Mr. Chavers was exposed to a particular asbestos-containing product made by Appellees, (2) with sufficient frequency and regularity, (3) in proximity to where he actually worked, (4) such that it is probable that the exposure to Appellees’ products caused Mr. Chavers’s injuries. See Jackson, 994 F.2d 1295.

Regarding Appellees GM and AlliedSignal, Appellant’s proof fails on the first element, as she has failed to show that it was their asbestos-containing products that were used by Mr. Chavers. Mr. Chavers testified during his deposition that between 1955 and 1999, he changed the brakes on his cars and the cars of his friends and family on an average of twelve times per year. He stated that most of the brake jobs that he did involved drum brakes. He explained that in changing a drum brake, he would have to blow out all the dust on the wheel that came from the old brakes. He stated that it was a dusty process. He stated that .most of the vehicles he did brake jobs on were older vehicles, and that he did not know whether the brake shoes that he was removing were original equipment. Only one time, during the course of those forty-odd years, did Mr. Chavers ever recall seeing anything that would indicate the manufacturer of the brake shoe that he was replacing. That one time, he recalled that the brake had “FOMOCO” on it, which identified it as a brake sold by Ford.

Appellees admitted below that some of the brake products they sold during the years that Mr. Chavers was a “shade tree mechanic” did contain asbestos. Regarding GM’s products, Mr. Chavers identified an AC-Delco brake box and stated that the box looked like the Delco brake boxes that he had purchased. He did not, however, identify any AC-Delco brake parts. Nor did he identify the particular makes and models of the automobiles on which he worked. In its answer to interrogatories, GM offered proof that although some of the brake products it sold did contain asbestos, it also produced replacement brake parts that did not contain asbestos, which were to be used when the original brake products did not contain asbestos.

Regarding brake products made by AlliedSignal, Mr. Chavers identified a box of Bendix-brand brakes. The box he identified were disc brakes, and Mr. Chavers stated that he mostly used brake shoes. AlliedSignal’s answer to interrogatories stated that it manufactured or sold the following asbestos-containing brake products under the Bendix name: brake linings, disc brake pads, brake blocks, and clutch facings. Brake shoes were not listed. The foregoing proof is insufficient to establish a jury question on the issue of product identification. There was no evidence regarding the specific GM or AlliedSignal products used by Mr. Chavers or that the particular products he used contained asbestos.

As for Appellee Ford, Appellant’s case fails on the elements of frequency and regularity. The test requires that Appellant show not only that Mr. Chavers used the Appellee’s asbestos-containing products, but also that the use was sufficiently frequent and regular, such that it was probable that Mr. Chavers’s exposure to the asbestos-containing product caused his illness. As indicated above, the only evidence that Mr. Chavers was exposed to a specific asbestos-containing product is the one time that he recalled removing a set of Ford brakes. Such a one-time exposure does not satisfy that part of the test requiring regularity and frequency. Moreover, even if we were to adopt the “relaxed” test advocated by Appellant, as discussed in Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992), the proof would still fail. The competent medical evidence presented in this case does not support the conclusion that a one-time exposure to asbestos-containing brakes was a substantial cause of Mr. Chavers’s mesothelioma. Id. Accordingly, because Appellant’s proof falls short of the elements required under the “frequency, regularity, and proximity” test, summary judgment was appropriate.

Affirmed.

       Originally, Appellant’s wrongful-death action named numerous other defendants alleged to be engaged in the mining, processing, manufacturing, installation, maintenance, sale, and distribution of asbestos-containing products. On September 10, 2001, the trial court entered an order granting Appellant’s motion to dismiss without prejudice her claims against each defendant, except for the three subject to this appeal.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Teresa BALLARD et al. and Stephen Cain v. Sheila MARTIN et al. and Westark Financial Consultants of Jonesboro, Inc., et al.

    01-1185
    79 S.W.3d 838
    Supreme Court of Arkansas
    Opinion delivered July 5, 2002

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

      Robert Cloar, for Cain appellants.

      On, Scholtens, Willhite & Averitt, PLC, by: Chris A. Averitt, Jay Scholtens, and Kevin J. On, for appellees Sheila Martin and Jimmie Sue Spencer, individually and o/b/o a class of similarly situated persons.

      Jones, Jackson & Moll, PLC, by: Jay W. Kutchka and Mark A. Moll, for appellee Westark Financial Consultants ofjonesboro, Inc.
   Robert L. Brown, Justice.

This is a check-cashing case that presents the issue of whether a class-action settlement was fair and adequate. The appellants are two groups of intervenors, Teresa Ballard et al. and Stephen Cain et al. (collectively referred to as Ballard and Cain). The appellees are Sheila Martin and Jimmie Sue Spencer, individually and on behalf of the class (collectively referred to as Martin), who represent the original class of plaintiffs in this litigation, as well as Westark Financial Consultants of Jonesboro, Inc. (Westark), together with eighteen other check-cashing businesses which voluntarily submitted to the jurisdiction of the Craighead County Circuit Court as defendants as part of Martin’s amended motion for class certification (collectively referred to as Westark defendants). Westark and the other eighteen check-cashing businesses will be referred to jointly as “Westark appellees.”

On appeal, Ballard and Cain challenge the fairness and adequacy of the class settlement between Martin and the Westark defendants. Ballard and Cain raise three additional points: (1) the adequacy of Martin, and class counsel to represent the interests of the class; (2) whether the trial court adequately enforced subpoenas against the Westark appellees; and (3) whether the notice to potential class members was adequate.

On December 8, 2000, Martin, both individually and on behalf of a class, filed the complaint against Westark in Craighead County Circuit Court. According to the complaint, each potential class member had engaged in deferred-presentment check-cashing with Westark. The typical deferred-presentment transaction allowed the customer to write a check for the cash amount exchanged plus a “service charge,” which the check-casher would defer cashing until the customer’s “payday.” On payday, the customer was instructed to pick up the held check in exchange for cash in the face amount of the check. The customer could defer payment by writing a second check for the amount owed, the original service charge, and the new service charge. Martin alleged that these service charges were interest and that Westark had engaged in usurious lending practices in violation of Arkansas Constitution Article 19, section 13. She sought damages on that basis and alleged that the class met the requirements of Rule 23 of the Arkansas Rules of Civil Procedure. On January 8, 2001, she also moved for class certification.

Following the filing of the complaint, Martin commenced discovery. Through one set of interrogatories and requests for production propounded by Martin, information about the arbitration provisions in the customer contracts was elicited. Martin did request limited information relating to Westark’s financial condition. Flowever, it is unclear from the record whether Martin ever received this information. The class was later estimated to include approximately 18,500 members. On April 26, 2001, Martin filed an amended motion for class certification in which the Westark defendants were added as parties defendant. Martin also filed a second amended complaint that same date with the Westark defendants listed as parties defendant.

Sometime in mid-to-late April 2001, Martin and the Westark appellees reached a settlement agreement. On April 30, 2001, the trial court entered an order certifying the class pursuant to Ark. R. Civ. P. 23, adopting the settlement, and requiring notice to the class by publication in the Arkansas Democrat-Gazette and by individual notices to be mailed no later than May 14, 2001. In the settlement, the eighteen Westark defendants agreed to submit to the jurisdiction of the Craighead County Circuit Court with Westark for purposes of settling all claims against them. The settlement was as follows: the nineteen check-cashing businesses would deposit $605,000 into a settlement pool. $435,000 of this amount would be used to purchase Series E bonds totaling $870,000 to pay the claims of aggrieved customers at a rate of one and one-half times any fees paid by those customers. Claims exceeding the face amount of the bonds would not be paid. This settlement amount would be subject to set-off for any outstanding balance due the defendant check-casher for cash advanced and unpaid. The settlement amount, if any remained after the set-off, would be paid to the customer in the form of a Series E savings bond. The savings bonds were worth one-half of their face value until their maturity in sixteen years, and the class member was required to wait six months to cash the bond for the initial one-half value. Class counsel for Martin would immediately receive a fee of $170,000.

The settlement agreement further provided that the Westark appellees would continue to operate their businesses for the next ninety days after the date of the settlement in order to collect any outstanding checks. The settlement provided additionally that if any appellate court ruled that the service charges associated with these transactions were not usurious, then the defendants would be free to operate in any legal manner. The final “opt-out date” for nonparticipation in the class or settlement was fixed at August 15, 2001.

After this order was entered, notice was given to the class members together with the conditions of the proposed settlement. Martin accomplished notice by placing an advertisement in the Arkansas Democrat-Gazette newspaper on May 21, 2001. Class counsel also mailed an individual notification to each potential class member by standard mail on May 16, 2001.

Two groups of objectors moved to intervene after receiving notice. The Ballard group of objectors involved five members and the Cain group of objectors involved twelve members. The Ballard objectors filed a motion to intervene on May 25, 2001. On that same date, they issued subpoenas for the financial records of the Westark appellees. The Cain objectors filed their motion to intervene on June 1, 2001. The trial court granted both motions to intervene on June 1, 2001, at the beginning of the fairness hearing on the proposed settlement.

At the fairness hearing, the trial court allowed the Martin class as well as the Westark appellees to put on evidence supporting the settlement. The Martin class presented the testimony of Martin herself, as well as the testimony of Chris Lawson, a partner at the law firm of Friday, Eldredge, & .Clark in Little Rock. As class representative, Martin testified that she had been kept abreast of the litigation and had approved the settlement. On cross-examination, she admitted to a lack of knowledge about some of the details of the litigation and the settlement agreement. For his part, Lawson testified that he was involved in class actions against check-cashing firms, and that he would advise any clients affected by the proposed settlement to remain in the settlement and not opt out.

The Westark defendants presented the testimony of one witness, Jeff Forsey, who testified in his capacity as the chief executive officer of fourteen of the Westark appellees and as custodian of financial documents for all nineteen Westark appellees. Forsey did not bring all of the subpoenaed financial documents with him but did appear in person at the fairness hearing. The Ballard intervenors moved to enforce the subpoenas, and the Westark defendants moved to quash them. The trial court ruled that Forsey’s personal appearance and his partial production of financial records satisfied the subpoenas, considering how abbreviated the time was that the Westark defendants had to respond to the subpoenas.

On the stand, Forsey testified that the decision to enter into the settlement with the Martin class was a cost/benefit business decision for the Westark appellees. He further testified that the reason that they chose savings bonds as the method of payment was in hope that the settlement would foster “a different perspective on money” among the low-income class members. He added that the businesses he represented at the hearing would have difficulty producing the $605,000 to fund the settlement. On cross-examination, Forsey testified to the financial condition of the Westark appellees. Among other things, he testified that the receipts of the Westark appellees during the ninety-day period after approval of the settlement could exceed the settlement amount of $605,000.

On August 7, 2001, the trial court entered its final order approving the settlement. Ballard and Cain now appeal that order.

I. Fairness of the Settlement

Ballard and Cain first assert that the trial court abused its discretion when it approved the class settlement because the settlement was not fair, reasonable, and adequate. They urge this court, in measuring the fairness of the settlement, to adopt the Eighth Circuit Court of Appeal’s standards set out in Grunin v. Int’l House of Pancakes, 513 F.2d 114 (8th Cir. 1975).

In Grunin, the Eighth Circuit adopted four factors to assist in assessing whether a class settlement is fair and adequate. Those four factors are listed below, with the first factor being the primary measure of fairness and the remaining three being secondary to the first:

(1) the strength of the case for the plaintiffs on the merits, balanced against the amount offered in the settlement;
(2) the defendant’s overall financial condition and ability to pay;
(3) the complexity, length, and expense of further litigation; and
(4) the amount of opposition to the settlement.

Grunin, 513 F.2d at 124 (citing West Virginia v. Chas. Pfizer & Co., 440 F.2d 1085 (2d Cir. 1971); City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974); Young v. Katz, 447 F.2d 431 (5th Cir. 1971)).

The Eighth Circuit further stated in Grunin that the fairness of a class settlement is a discretionary matter that rests with the trial court, and an appellate court should not reverse a trial court’s approval of a class settlement absent an abuse of its discretion. Grunin, 513 F.2d at 123 (citing Ace bleating & Plumbing Co. v. Crane Co., 453 F.2d 30 (3d Cir. 1971)). The Grunin Court quoted the Ace Heating case for the following proposition:

Such a determination is committed to the sound discretion of the trial judge. Great weight is accorded his views because he is exposed to the litigants, and their strategies, positions and proofs. He is aware of the expense and possible legal bars to success. Simply stated, he is on the firing line and can evaluate the action accordingly.

Grunin, 513 F.2d at 123 (quoting Ace Heating, 453 F.2d at 34). The Eighth Circuit continued that the trial court is accorded deference, but that deference is accompanied by a duty to act as a fiduciary who must serve as guardian of the rights of absent class members. Grunin, 513 F.2d at 123 (citing Greenfield v. Villager Indus., Inc., 483 F.2d 824 (3d Cir. 1973); Norman v. McKee, 431 F.2d 769 (9th Cir. 1970); Percodani v. Riker-Maxson Corp., 50 F.R.D. 473 (S.D.N.Y. 1970), aff'd sub nom. Farber v. Riker-Maxson Corp., 442 F.2d 457 (2d Cir. 1971)). It concluded that no court should accept a settlement that is unfair or inadequate, and the burden is on the proponents, of the settlement to show that the proposed settlement meets standards of fairness and adequacy. Grunin, 513 F.2d at 123 (citing City of Detroit v. Grinnell Corp., supra; United Founders Life Ins. Co. v. Consumers Nat’l Life Ins. Co., 447 F.2d 647 (7th Cir. 1971); Young v. Katz, supra).

We adopt the Grunin factors and will proceed to analyze this issue using those factors.

a. The strength of the case for plaintiffs on the merits, balanced against the amount offered in settlement.

Ballard and Cain first argue that the plaintiff class’s chance of success on the merits is great. They also point out the many differences between a possible litigation-generated recovery versus the setdement agreement, including differences in financial benefit to class members and differences to the future of the appellees’ check-cashing businesses. They conclude that the likelihood of success on the merits versus the offered settlement weighs heavily in favor of this court’s finding that the trial court abused its discretion.

(i) Strength on the merits.

We observe, as an initial matter, that this court has never direcdy spoken to the issue of whether the deferred-presentment transactions, such as we have in the instant case, are usurious and violate the Arkansas Constitution. However, many of this court’s cases point to the strong constitutional policy against usury established by Article 19, section 13, of the Arkansas Constitution, both before and after the adoption of Amendment 60 in 1982. Article 19, section 13, of the Arkansas Constitution states in relevant part:

(a) General Loans:
(i) The maximum lawful rate of interest on any contract entered into after the effective date hereof shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract.
* * *
(b) Consumer Loans and Credit Sales: All contracts for consumer loans and credit sales having a greater rate of interest than seventeen percent per annum shall be void as to principal and interest and the General Assembly shall prohibit the same.

Ark. Const. Art. 19, § 13. See also Luebbers v. Money Store, Inc., 344 Ark. 232, 40 S.W.3d 745 (2001) (citing this portion of Article 19, section 13, as potentially applicable to the transactions at issue, but not reaching the merits of the usury dispute). Historically, this court has closely scrutinized what appeared to be a non-usurious transaction on its face to reveal the true usurious nature of the transaction. See Bunn Lumber Co. v. Weyerhaeuser Co., 268 Ark. 445, 598 S.W.2d 54 (1980) (finding transaction usurious where interest on account payable was masked as a service charge); Arkansas Savings & Loan Ass’n v. Mack Trucks of Arkansas, Inc., 263 Ark. 264, 566 S.W.2d 128 (1978) (finding transaction usurious where interest on loan was masked as a pre-loan “commitment fee”); Sosebee v. Boswell, 242 Ark. 396, 414 S.W.2d 380 (1967) (finding transaction usurious where a forfeiture of money placed in escrow was actually interest, but was masked as liquidated damages, processing fees, and expenses); Smith v. Eason, 223 Ark. 747, 268 S.W.2d 389 (1954) (finding transaction usurious where interest on loan was masked as a commission payable to lender’s agent); Strickler v. State Auto Finance Co., 220 Ark. 565, 249 S.W.2d 307 (1952) (finding transaction usurious where interest on loan policy was masked as a service charge and pro rata share of overhead expenses); Wilson v. Whitworth, 197 Ark. 675, 125 S.W.2d 112 (1939) (finding transaction usurious where interest charges were masked as insurance and service fees). We conclude that for decades this court has been willing to delve into the particulars of a financial arrangement to expose its usurious nature. As we said in Sparks v. Robertson, 66 Ark. 460, 463-64, 51 S.W. 460, 462 (1899), “The law shells the covering, and extracts the kernel. Names amount to nothing when they fail to designate the facts.” As a result, it is obvious that the transactions presented in this case would receive exacting scrutiny if they were presented to this court for a merits determination.

Recently, this court rejected an attempt by the General Assembly to rename deferred-presentment interest as a non-usurious fee under Act 1216 of 1999, then codified at Ark. Code Ann. § 23-52-104(b) (Repl. 2000). See Luebbers v. The Money Store, Inc., supra; (holding that the determination of what is interest and what is not interest is for the courts, not the legislature). See also Strickler v. State Auto Finance Co., supra (holding statute unconstitutional as violative of separation of powers where General Assembly tried to deem installment loan fees as non-interest). The Westark appellees may have relied on Act 1216 of 1999 in proceeding to do business in this state. The effect of that reliance, if any, is an issue that has not been resolved by the courts of this state.

The Westark appellees argue that their agreements with their customers provide that any customer disputes must be resolved by arbitration. They note that at the time of the settlement negotiations, only the case of Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 27 S.W.3d 361 (2000), which held that the arbitration agreements at issue could not be enforced due to lack of mutuality of obligation, had been decided by this court. They fur ther refer to the general release of claims signed by most of their customers as a defense against the class-action litigation. Finally, they advance a practical argument. They underscore the fact that eighteen of the nineteen Westark appellees voluntarily submitted to the venue of the Craighead County Circuit Court in order to take advantage of the terms of the settlement. Those eighteen defendants assert that despite their voluntary appearance, they have preserved an objection to venue in the trial court, should the settlement not be consummated. They further assert that if this settlement is thwarted, they will seek to withdraw from the jurisdiction of the Craighead County Circuit Court. If that happens, any success on the merits will be applicable only to Westark and not to the other eighteen Westark defendants.

The arbitration defense seems less valid today than it might have appeared on April 30, 2001, in light of this court’s recent decisions. See, e.g., The Money Place, LLC v. Barnes, 349 Ark. 411, 78 S.W.3d 714 (2002); Cash in a Flash Check Advance of Arkansas, LLC v. Spencer, 348 Ark. 459, 74 S.W.3d 600 (2002); E-Z Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001). In addition, this court has yet to consider the viability of the general-release defense. The point, according to the Westark appellees, is that had they not settled, they would have contested class certification based on these two defenses and appealed any adverse order.

Being mindful of this court’s strong jurisprudence against usury as well as Article 19, section 13, of the Arkansas Constitution, we conclude that Ballard and Cain have a bona fide argument on the merits. However, we quickly add that by concluding as we do, we are not deciding the merits of the usury question in their favor. This distinction was noted by the Grunin court:

[N] either the trial court in approving the settlement nor this Court in reviewing that approval have the right or the duty to reach any ultimate conclusions on the issues of fact and law which underlie the merits of the dispute.

Grunin, 513 F.2d at 123 (quoting City of Detroit v. Grinnell Corp., 495 F.2d at 456 (2d Cir. 1974)). Nor can we proceed in our analysis with any assumption that the class will prevail and collect all damages claimed. Armstrong v. Board of School Directors, 616 F.2d 305 (7th Cir. 1980).

(ii) Potential litigation recovery compared to settlement.

Ballard and Cain also contend that the settlement is inadequate, unfair, and unreasonable when compared to a likely recovery after litigation. They mount two primary arguments to support their position. The first concerns the monetary value of the settlement as opposed to a potential litigation recovery. The settlement agreement contemplates a cash outlay of $605,000 by the Westark defendants, including $170,000 in attorneys’ fees. The face value of the bonds available for claims is $870,000. Ballard and Cain claim that, in contrast, a damage recovery following litigation could be as high as $27 million, based on doubling the fees collected by the Westark appellees. They also emphasize that the $605,000 settlement is subject to a set-off for the amount of any outstanding cash advances owed by individual class members. In a litigated recovery, Ballard and Cain contend that those outstanding debts would be void as consumer loans under Article 19, section 13. Finally, they assert that it is unfair to distribute the settlement funds in the form of savings bonds which will not mature for sixteen years.

Ballard and Cain further point to the continuing viability of the Westark appellees following the setdement. They argue that under the terms of the settlement agreement, the defendant check-cashing establishments will be free to continue their businesses so long as they simply rename the transactions. For example, instead of calling the transactions “deferred presentment transactions,” they claim the Westark defendants could rename the same transactions “pay-day loans” and still comply with the settlement. Indeed, they point out that Jeff Forsey, as CEO of fourteen of the nineteen Westark businesses, testified that he and his board of directors were looking into that very option. By contrast, Ballard and Cain assert that a victory on the merits following litigation would shut down the businesses permanently, either through a judgment that would bankrupt the corporations or through a judgment that concluded the business practices were unconsti tutional.

The Westark appellees make three arguments in response. First, they argue that a settlement is always lower than a potential litigation recovery, because otherwise there would be no incentive to settle. They also claim that their ability to pay a larger sum is limited, and that a large jury verdict would be unrecoverable in any event, because the affected businesses would seek bankruptcy protection. Therefore, they assert that as a practical matter, litigation of the case would be futile. In addition, the Westark appellees cite Petrovic v. Amoco, 200 F.3d 1140 (8th Cir. 1999), for the proposition that once a trial court has determined that a settlement is fair and adequate, the fact that a defendant could have paid more is not a legitimate reason to reject the settlement.

The Westark appellees’ second argument is that the settlement contains a significant benefit to the class that Ballard and Cain do not discuss. Under the settlement, the class members would be able to write off any outstanding debt after the ninety-day period from the settlement date has expired. Thus, class members who did not make a claim under the settlement agreement would not face collection on their checks. Third, they argue that the settlement agreement hastens the class members’ recovery and avoids the delays of litigation.

While we are attuned to the legitimacy of the arguments made by Ballard and Cain, the Westark defendants also make valid points about their defenses. We recognize that the purpose of a settlement is to avoid the delay, expense, and risk of trial. Grunin v. Int’l House of Pancakes, supra. We further are reluctant to hold that this settlement does not fall within the range of reasonableness when compared to what the class might have ultimately recovered. A full recovery of $27 million based on collecting twice the amount of interest paid under section (b) of Article 19, section 13, of the Arkansas Constitution for all other loans is somewhat speculative, considering that the merits of their constitutional claim have never been decided. But even assuming full recovery, a settlement which embraces Series EE Bonds totaling $870,000 and forgiveness of debt after ninety days has considerable value. As one court has put it:

While plaintiffs cannot predict what each claimant will receive, the Second Circuit has held that a settlement can be approved even though the benefits amount to a small percentage of the recovery sought. Grinnell, 495 F.2d at 455. “The fact that a proposed settlement may only amount to a fraction of the potential recovery does not, in and of itself mean that the proposed setdement is grossly inadequate and should be disapproved.” Id. (footnote omitted). The Court explained: “In fact there is no reason, at least in theory, why a satisfactory settlement could not amount to a hundredth or even a thousandth part of a single percent of the potential recovery.” Id. at 455 n.2. In the District Court decision in City of Detroit v. Grinnell Corp., 356 F.Supp. 1380, 1386 (S.D.N.Y. 1972), aff'd in part, rev’d in part, 495 F.2d 448 (2d Cir. 1974), Judge Charles Metzner of this Court found a proposed setdement of 3.2% to 3.7% of the potential recovery “ ‘well within the ball park.’”

In re Milken & Assoc. Securities Litigation, 150 F.R.D. 46, 54 (S.D.N.Y. 1993). In short, we do not find this argument to be dispositive of the issue.

b. The defendant’s overall financial condition and ability to pay.

To a lesser extent, the fairness of the class settlement turns on the Westark appellees’ ability to pay more than the $605,000 to settle the matter under Grunin. Here, Ballard and Cain assert that Jeff Forsey’s own testimony swings this factor in their favor. They point to his statement that during the ninety-day window alone, the Westark appellees could receive check-cashing revenues that exceed the value of the cash outlay— $605,000. They also claim that Forsey’s testimony revealed such liquidity in the Westark appellees’ businesses that a far greater settlement agreement could have been negotiated. According to his figures, the businesses were worth some $2.7 million as of December 31, 2000, after deducting bad debt that they would not be able to collect. The Westark appellees dispute these figures. They also claim that they have little cash on hand and that operating overhead reduces the amount available for the settlement fund. We do not consider the disputed claim that the Westark appellees could have paid more than $605,000 to be a persuasive reason for overturning the settlement.

c. The complexity, length and expense of further litigation.

The third factor in determining the fairness of a class settlement is the burden of litigating the case. This factor is also subordinate to the first factor but should still be considered in determining whether the trial court abused its discretion in approving the settlement. The Westark appellees emphasize that further litigation would have caused delay, and that delay would have caused more members of this low-income transient class to become lost due to relocation. They further point to the immediate benefit of a settlement versus the contingency of protracted litigation. We agree that this bird-in-the-hand argument militates in favor of the settlement.

d. Opposition to the settlement.

The fourth and final factor in determining the fairness and adequacy of a class settlement is the degree of opposition to the settlement. Again, this factor is less important than the first factor. The Westark appellees contend that only seventeen members of the approximately 18,500-member class objected. This is true. Accordingly, this factor also weighs in favor of the settlement. However, one court has sounded a note of caution in this regard:

[A] low level of vociferous objection is not necessarily synonymous with jubilant support. In many class actions, the vast majority of class members lack the resources either to object to the settlement or to opt out of the class and litigate their individual cases.

In re Corrugated Container Antitrust Litigation, 643 F.2d 195, 217-18 (5th Cir. 1981). See also Bell Atlantic Corp. v. Bolger, 2 F.3d 1304, n.15 (3d Cir. 1993) (noting that absent class members “have an insufficient incentive to contest an unpalatable settlement agreement because the cost of contesting exceeds the objector’s pro rata benefit”).

Again, it was the trial judge who was in the trenches and lived with this class litigation. He assessed the risk of litigation, the delay in recovery, the amount of recovery claimed versus the settlement that was struck, as well as the other Grunin factors, and concluded that the settlement was fair and reasonable. We accord the trial court deference in these matters and are unwilling to second-guess the decision based on the arguments presented by Ballard and Cain in this appeal.

e. Collusion

Though not a factor in the Grunin analysis, Ballard and Cain make the further charge of collusion between Martin and the Westark appellees due to the fact that the settlement was reached before the class was certified. Other jurisdictions have held that when a settlement is entered into before a class is certified, the settlement should be subject to heightened scrutiny. See, e.g., In re General Motors Corp. Pick-up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768 (3d Cir. 1995); Bowling v. Pfizer, Inc., 143 F.R.D. 141 (S.D. Ohio 1992). Though it is apparent that the settlement under review was hurried and ultimately global in the number of check-casher businesses involved, there is no proof that the setdement was not made at arm’s length. There are definitely benefits accruing to the class in the form of reimbursements and debt forgiveness. The fact that the class could have gotten more does not translate into collusion. We affirm on this point.

II. Adequacy of Class Representatives

Ballard and Cain next contend that Martin and Spencer were inadequate representatives to protect the interests of the class members and that Martin’s class counsel was likewise inadequate. This issue is decided by our recent case of USA Check Cashers of Little Rock, Inc. v. Island, 349 Ark. 71, 76 S.W.3d 243 (May 30, 2002). As we said in that case, we review a trial court’s grant of class certification under an abuse-of-discretion standard. See USA Check Cashers, supra.

Rule 23(a) of the Arkansas Rules of Civil Procedure has as one of the four prerequisites to a class action:

(4) the representative parties will fairly and adequately protect the interests of the class.

Ark. R. Civ. P. 23(a)(4). See also BPS Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000). This court has previously interpreted that subsection to require three élements:

(1) the representative counsel must be qualified, experienced, and generally able to conduct the litigation; (2) that there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation.

Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 275, 954 S.W.2d 898, 904 (1997). In a similar vein, this court has held that the element of adequacy is met if the class representative displays a minimal level of interest in the action, familiarity with the challenged practices, and the ability to assist in litigation decisions. See Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997).

Martin testified at the fairness hearing that she was pleased with the legal representation provided to her and that her attorneys had kept her informed of what was going on in the case. She also stated that her goal in suing the defendants was to put an end to the check-cashing practices of the Westark appellees. She testified that she talks to her attorneys regularly and is kept abreast of the proceedings. Based on this testimony, we fail to discern any abuse of discretion in the trial court’s finding that Martin is an adequate class representative.

Furthermore, the allegation that the law firm of Orr, Scholtens, Willhite & Averitt is inadequate class counsel is merit-less. These attorneys are currently handling a raft of cases against Arkansas check-cashing businesses. They have extensive class-action experience, and there is nothing to suggest that they are inadequate counsel for the class in this case. This court has held that absent a showing to the contrary, we presume that the class representative’s counsel will vigorously and competently pursue the litigation. See Mega Life & Health Ins. Co. v. Jacola, supra (citing Herbert B. Newberg, Newberg on Class Actions, §§ 3.24, 3.42 (3d ed. 1992)).

We affirm the trial court on this point.

III. Subpoenas

Ballard’s third point, which Cain does not join, relates to the subpoenas for financial documents issued five days before the fairness hearing on June 1, 2001. Ballard sought full disclosure of the Westark appellees’ financial information in order to determine their ability to pay more than the settlement. At the hearing, the businesses, acting through CEO Forsey, only produced a portion of the financial documents sought. Nevertheless, the trial court ruled that this partial production, in addition to the personal appearance and testimony of Forsey, was sufficient in light of the short period of time that the companies had to respond. Ballard argues that this ruling was an abuse of the trial court’s discretion. She points out that it was the short notice to the class — roughly two weeks before the fairness hearing — that prevented her from intervening sooner and from issuing subpoenas in a more timely manner.

It is boilerplate law that a trial court has broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed by this court absent an abuse of discretion that is prejudicial to the appealing party. Loghry v. Rogers Group, Inc., 348 Ark. 369, 72 S.W.3d 499 (2002) (citing Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995); Rankin v. Farmers Tractor & Equipment Co., Inc., 319 Ark. 26, 888 S.W.2d 657, (1994); Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994)). In the instant case, Ballard does not illuminate how she was prejudiced by the lack of additional financial information. Nor does she assert how her challenge to the setdement would have been different if she had obtained full compliance with the subpoenas. We note that Ballard did argue both to the trial court and to this court that total liability to the 18,500 class members was $27 million and that the Westark appellees would bring in more than $605,000 in revenue during the ninety-day period following the settlement date. Certainly, the financial information that she had on hand enabled her to fully mount her arguments against the settlement. In light of the fact that the subpoenas came less than a week before the fairness hearing, it was within the trial court’s discretion to deem partial compliance sufficient. The trial court’s ruling on this issue is affirmed.

IV. Adequacy of the Notice

Ballard’s and Cain’s fourth point is that notice of class certification, the settlement, and the date of the fairness hearing to class members was inadequate for two reasons. First, they maintain that the notice came too close in time to the fairness hearing itself to be effective. Secondly, they argue that the method of notifying the class — standard U.S. mail rather than first-class mail — was inadequate and, thus, did not meet the due process requirements of Rule 23.

Again we turn to the Grunin case for guidance on this point. Due process requires that notice of a proposed settlement be given to a class. Grunin v. Int’l House of Pancakes, supra. The notice given must be “reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. at 120 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). The notice must also reasonably convey the necessary information about the settlement and give interested class members a reasonable opportunity to make their appearance and voice any objections. Id.

This court has addressed a related notice issue before. In SEECO, Inc. v. Hales, 334 Ark. 307, 973 S.W.2d 818 (1998), we said:

The mechanics of notice to class members is left to the discretion of the trial court and is subject only to the reasonableness standard of due process. See Grunin v. Int’l House of Pancakes, 513 F.2d 114, 121 (8th Cir. 1975), cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975). Arkansas Rule of Civil Procedure 23(c) provides in part that “the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” The United States Supreme Court has made reference to the fact that the “best notice practicable” under Federal Rule 23 is individual notice. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Notice by publication is used to supplement individual notice when class members cannot be identified by reasonable efforts. See Eisen v. Carlisle & Jacquelin, Id.

SEECO, Inc. v. Hales, 334 Ark. at 312, 973 S.W.2d at 820-21. In SEECO, Inc., this court held that notice given thirty days prior to the opt-out date was adequate under these standards.

In the case before us, Ballard and Cain claim that the notice was not timely mailed so as to afford due process protection. The notice was mailed on May 16, 2001, and the fairness hearing was held on June 1, 2001. A two-week notice period was simply too short, they claim. On this point, we note that courts have approved notices given to a class within a comparable period before the fairness hearing. See, e.g., Grunin v. Int’l House of Pancakes, supra (holding that notice sent out nineteen days before fairness hearing was not a violation of due process); Armstrong v. Board of School Directors, 616 F.2d 305 (7th Cir. 1980) (holding that notice sent out twelve days before fairness hearing was not a violation of due process). Further, the notice contained an opt-out provision which advised the class members that they could always choose to opt out of the settlement so long as they did so by August 15, 2001. Thus, class members had approximately three-months notice of the opt-out deadline. Opting out of the settlement gave them the recourse to pursue their own claims against the particular check-casher businesses with which they were involved.

There is also the point that Ballard and Cain had an opportunity to appear at the fairness hearing, because they did so through counsel. Ballard even issued subpoenas to the Westark appellees five days before the fairness hearing. Had the abbreviated notice hampered their ability to participate in the fairness hearing on June 1, 2001, it seems that the particulars on how they were handicapped would have been made known to the trial court or to this court.

Next, we consider the method of the individual mailing. In this case, individual notices were mailed to all potential class members by standard mail. Ballard and Cain, however, urge that due to the transient nature of this particular class, the notice should have been mailed first-class U.S. mail, so that the class members could take advantage of forwarding addresses, and class counsel could have undeliverable notices returned to them. We disagree. Martin, in her mailing to class members, claims that she requested return service for undeliverable notices at an additional cost. This was for the purpose of forwarding the notice to transient class members, according to Martin. Ballard and Cain reply that nothing regarding remailing returned notices to new addresses is in the record. But what the record does support is that forwarding addresses were requested by Martin at an added cost which presupposes this was for the purpose of remailing. Though a forwarded notice may have been too late for the June 1 fairness hearing, it certainly was timely notice of the right to opt out of the class. Plus, notice of class certification, the settlement, and the opt-out date (but not the fairness hearing) was supplemented by published notice in the Arkansas Democrat-Gazette, a newspaper with statewide circulation, on May 21, 2001. Granted, published notice may not have been read by some members of the class, but we are unwilling to denigrate published notice completely as offering no due process protection. Because individual notices were sent and the notice was published in a newspaper with a statewide circulation, we conclude that the notice given comported with minimum standards of due process. We affirm the trial court on this point as well.

As a final point, we note that Ballard and Cain have asserted a number of other deficiencies in the notice, the terms of the settlement, and the adequacy of class counsel. Those arguments are as follows: the terms of the settlement are inadequate because the unclaimed funds revert to the Westark appelle'es; the terms of the settlement make no provisions for claimants with judgments pending against them or whose debts have been discharged in bankruptcy; class counsel was inadequate for failing to bring claims against the stockholders of the Westark appellees and their sureties; and the notice to the class was contradictory because it stated both that class members would still need to pay their unsatisfied debt and that collections would cease ninety days after the settlement date. These arguments are largely unsupported by authority and are not fleshed out in the briefs. None of them provides a convincing basis for holding that the trial court abused its discretion in approving the settlement. Furthermore, it is axiomatic that a settlement does not have to be perfect in order to be fair. See, e.g., Joel A v. Giuliani, 218 F.3d 132, 144 (2d Cir. 2000) (“[A] settlement agreement achieved through good-faith, noncoflusive negotiation does not have to be perfect, just reasonable, adequate, and fair.”); Halderman v. Pennhurst State School & Hospital, 610 F. Supp. 1221, 1222 (D.C. Pa. 1985) (“As with all things of this world, the settlement is not perfect. It is, however, a fair, adequate, and reasonable settlement. . . .”).

Affirmed.

Glaze, J., not participating.

       The appellants assert for the first time on appeal that the United States Treasury discontinued Series E bonds in 1980, and thus the settlement agreement is impossible to perform as written. Martin responds that the class of bonds is now called Series EE instead of Series E, and that this oversight should not be a basis for invalidating the settlement. We agree.

       Notice was mailed apparently two days after the May 14, 2001 date specified in the trial court’s order. This two-day delay is not an issue on appeal.

       The record does not reveal whether Jimmie Sue Spencer, the other class representative, was present at the fairness hearing.

       At the fairness hearing, the adequacy of Martin as class representative was specifically attacked.


text:
    Michael Dee MOSELEY v. STATE of Arkansas
    CR 01-1427
    80 S.W.3d 325
    Supreme Court of Arkansas
    Opinion delivered July 5, 2002

      Steven R. Jackson, for appellant.

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Michael Dee Moseley appeals the judgment of the Benton County Circuit Court revoking his probation and sentencing him to a term of imprisonment of six years. For his sole issue on appeal, Moseley contends that the trial court erred in failing to dismiss the State’s petition to revoke for lack of subject-matter jurisdiction. Specifically, he asserts (1) that Act 1569 of 1999 did not overrule this court’s caselaw that a trial court cannot revoke a person’s probation twice or modify or add additional terms to the probation, once the sentence has been placed into execution; and (2) that Act 1569 of 1999 allows a trial court to add a period of confinement after probation revocation only if no period of confinement was included in the original order. We hold that the trial court had jurisdiction to revoke Moseley’s probation following the State’s second petition to revoke, and to sentence him to prison. We affirm the trial court.

On June 22, 1999, Moseley was arrested for the rape of JD, a minor. On August 11, 1999, Moseley was charged with incest, and on January 25, 2000, he pled guilty to sexual solicitation of a minor and false imprisonment in the second degree. Fie was sentenced to ninety days in the county jail, with ninety days credit given for time already served, and six years of supervised probation under Act 346 as a first-time offender. His probation was also conditioned on paying fees and costs: court costs of $150.00, a child and sex offender fund fee of $250.00, a DNA fund fee of $250.00, and a public defender fee of $350.00. The plea agreement and order also provided that Moseley was to participate in a sex offender treatment program, a domestic abuse intervention program, and parenting classes. In addition, he was to have no unsupervised contact with the victim or other minor children in the household unless otherwise ordered by the trial court.

On February 11, 2000, the State filed a petition to revoke Moseley’s probation. In that petition, the State alleged that Moseley had reported to the probation office in the unsupervised company of a minor, that he had admitted to unsupervised contact with the victim, JD, and that he had failed to comply satisfactorily with the sex-offender treatment program in that he had only attended two of eight sessions. On March 1, 2000, the trial court entered a revocation order in which it continued the probation and found Moseley in contempt for violation of its original order. The trial court sentenced him to thirty days in the county jail for contempt with nineteen days’ credit and placed him on intensive supervision for three months. The trial court also extended his period of probation an additional two months, ordered him to pay the fees and costs, and further ordered that a residential plan be prepared to ensure “no contact with minors.” The plan was later devised by Moseley’s wife, Judy, and filed with the trial court on March 9, 2000.

On April 24, 2001, the State filed a second petition to revoke Moseley’s probation. In this petition, the State alleged that Moseley had committed the offenses of driving while intoxicated, criminal mischief, no driver’s license,' disorderly conduct, implied consent, endangering the welfare of a minor, and child passenger protection. Further, the State claimed that Moseley had been in the unsupervised company of a minor and had consumed excessive alcohol in violation of the court’s order and his probation agreement. Attached to the State’s petition was the affidavit of Mark Bernthal, Moseley’s probation officer, in which he stated that according to a police report, Moseley “had his 5 year old son, who was injured, in his lap while driving.” Moseley had struck a rock disabling his vehicle. Fie was intoxicated, according to the affidavit, and became very combative and belligerent when taken into custody.

On June 18, 2001, a hearing was held on the State’s second revocation petition. At the hearing, Moseley presented a motion to dismiss, arguing that because he was sentenced to jail time for contempt in the prior revocation order, the trial court lost jurisdiction over him under this court’s case law. The court took the motion under advisement. On June 20, 2001, Moseley filed his written motion and brief-in-support, reiterating his prior argument that the court had lost jurisdiction of his case. On June 22, 2001, the court held a second hearing on the State’s petition. The court denied Moseley’s motion to dismiss, and said that in the prior revocation hearing of February 28, 2000, the court had specifically continued Moseley’s probation and “put him in jail for contempt of Court for violation of the Court’s orders, and that was done without objection. There was no execution of sentence at all.” The trial court further noted that Moseley’s Act 346 status was still in effect.

The trial court then heard from the State’s witnesses in support of the petition. At the conclusion of the hearing, the trial court noted that the standard of proof was preponderance of the evidence, but that the court was satisfied beyond a reasonable doubt that Moseley had violated his probation by driving while intoxicated, endangering the welfare of a minor, and being in the presence of a minor without supervision. The court revoked Moseley’s probation and sentenced him to six years in the Department of Correction. It further ordered him to pay the balance of his fines and costs of $535 at a rate of $50 per month plus a $5 monthly collection fee, beginning sixty days after his release. The court noted that Moseley had ninety days of jail time credit and ordered him to complete a drug and substance abuse treatment program. A revocation order to that effect was entered that same day, and on July 18, 2001, the court entered its judgment and commitment order.

Moseley claims in this appeal that after the initial probation revocation order of March 1, 2000, and the sentence to jail for contempt, the trial court lost jurisdiction over his case and, therefore, did not have jurisdiction to rule on the State’s second petition for revocation. In making this claim, Moseley relies on this court’s prior caselaw which held that a trial court cannot modify or add additional terms to a defendant’s probation once the sentence has been placed into execution. He cites this court to Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); and Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994). He further contends that while the General Assembly attempted to overturn this court’s decisions by Act 1569 of 1999, the legislative attempt does not affect his case or change this court’s caselaw that once a defendant’s sentence has been placed into execution, the trial court loses jurisdiction over that defendant. He argues that under Arkansas Code Annotated § 5-4-303 (f), a trial court can only act in “limited situations when a defendant continues on a period of suspension of imposition of sentence or a period of probation.” He concludes that because the trial court lost jurisdiction over him when his sentence was executed, the court was without jurisdiction to modify that sentence following the second probation hearing in 2001.

The State responds that the law changed with Act 1569 of 1999, which empowered trial courts to use intermediate sanctions in probation revocations and to modify original sentences where appropriate. The State points out that the legislature specifically declared its intention to allow the use of sanctions formerly deemed impermissible in McGhee v. State, supra and further asserts that reading Act 1569 in the manner Moseley claims would be contrary to the legislative intent expressed in the Act’s emergency clause.

We turn then to an analysis of Act 1569 of 1999. Prior to Act 1569, our caselaw stood for the proposition that a trial court lost jurisdiction to modify or amend an original sentence once that sentence was put into execution. See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001) (citing Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001); DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989) (citing Toney v. State, 294 Ark. 473, 743 S.W.2d 816 (1988); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987))). In 1999, however, the General Assembly enacted Act 1569 which amended Arkansas Code Annotated §§ 5-4-301, 5-4-303, 5-4-304, and 5-4-306. See Act 1569 of 1999. Act 1569 went into effect on April 15, 1999, and this court subsequently held that it was to only be applied prospectively. See Bagwell v. State, supra. In order for Act 1569 to apply to the facts of Moseley’s case, it had to have been in effect at the time the original crime was committed. See id. Here, Moseley’s offenses occurred between May 1, 1999, and June 22, 1999, which was after the effective date of Act 1569. Accordingly, Act 1569 applies to the facts of his case.

Act 1569 amended Ark. Code Ann. § 5-4-301 (d) to add a new subsection (d)(2):

(d)(1) When the court suspends the imposition of sentence on a defendant or places him on probation, the court shall enter a judgment of conviction only if:
(A) It sentences the defendant to pay a fine and suspends imposition of sentence as to imprisonment or places the defendant on probation; or
(B) It sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment.
(2) The entry of a judgment of conviction shall not preclude:
(A) The modification of the original order suspending the imposition of sentence on a defendant or placing a defendant on probation following a revocation hearing held pursuant to § 5-4-310; and
(B) Modifications set within the limits of §§ 5-4-303, 5-4-304, and 5-4-306.

Ark. Code Ann. § 5-4-301 (d) (Supp. 2001). As a result, trial courts are now specifically authorized to modify original court orders and even add penalties to those orders up to the statutory limits.

Moseley first contends that Act 1569 did not effectively overrule this court’s prior caselaw. We disagree. The Emergency Clause of Act 1569 provides, in pertinent part:

It is hereby found and determined by the Eighty-second General Assembly that McGhee v. State, [334] Ark. [543] (Oct. 15, 1998) held that a court revoking a suspended sentence or probation and adding a term of confinement as a condition of the suspension or probation, cannot subsequently revoke at a second revocation hearing and impose a term of incarceration. Therefore, in accord with the sentencing policy of the state contained in Arkansas Code § 16-90-801(c), which provides that there should be a continuum of sanctions with significant intermediate sanctions (including short terms of confinement) utilized when appropriate. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. ...

Act 1569 of 1999, § 8 (emphasis in original).

The Emergency Clause does contain a sentence fragment, but it is clear to us that the legislature intended to overturn this court’s decision in McGhee v. State, supra. This is evidenced by the legislature’s specific reference in its Emergency Clause to a “continuum of sanctions with significant intermediate sanctions (including short terms of confinement).” In addition, Act 1569 was entitled, “An Act to Allow Circuit Courts to Increase Conditions of Probation Following a Revocation Flearing; and for Other Purposes[.]” We have said that “when the construction of a statute is at issue, we will presume that the General Assembly, in enacting it, possessed the full knowledge of the constitutional scope of its powers, full knowledge of prior legislation on the same subject, and full knowledge of judicial decisions under preexisting law.” R.N. v. J.M., 347 Ark. 203, 211, 61 S.W.3d 149, 153 (2001) (quoting Davis v. Old Dominion Freight Line, Inc., 341 Ark. 751, 756, 20 S.W.3d 326, 329 (2000)). Clearly, the legislature was familiar with our decision in McGhee and was taking corrective action regarding it.

We have further said that if the legislature disagrees with this court’s interpretations of its statutes, it may amend those statutes. See Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997). We have no doubt that by enacting Act 1569, the legislature intended to overturn the McGhee decision, and we conclude that it effectively did so. Because of this, the trial court was within its jurisdiction to modify Moseley’s original order by its second revocation order and did not err in denying Moseley’s motion to dismiss.

Moseley next urges that the trial court lacked jurisdiction to sentence him to a term of imprisonment in the state penitentiary because its original order contained a period of confinement.' According to Moseley, only when an original order contains no period of confinement can a later prison term be imposed as part of a probation revocation. He notes our standard of strict construction of criminal statutes and our resolution of doubt in favor of the accused, citing this court to Manning v. State, 330 Ark. 699, 956 S.W.2d 184 (1997). Specifically, he maintains that Ark. Code Ann. § 5-4-304(c), which was added to the Criminal Code by Act 1569, permits imposition of a prison term only if no previous period of confinement had been meted out by the trial court.

We first observe that Moseley concedes this argument was not raised to the trial court. However, the issue involves subject-matter jurisdiction, and this court has held that the trial court’s loss of jurisdiction over a defendant “is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court.” Pike v. State, 344 Ark. at 484, 40 S.W.3d at 799 (quoting Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989)). Thus, even though Moseley did not raise this argument to the trial court, he can raise it on appeal.

Moseley’s contention is without merit. Section 5-4-304, entided “Confinement as condition of suspension or probation,” relates to the imposition of a period of confinement in a local jail as a condition of a suspended sentence or probation. The statute reads:

(a) If the court suspends the imposition of sentence on a defendant or places him on probation, it may require as an additional condition of its order that the defendant serve a period of confinement in the county jail, city jail, or other authorized local detentional, correctional, or rehabilitative facility at whatever time or consecutive or nonconsecutive intervals within the period of suspension or probation as the court shall direct.
(b) An order that the defendant serve a period of confinement as a condition of suspension or probation shall not be deemed a sentence to a term of imprisonment and the court need not enter a judgment of conviction before imposing such a condition.
(c) Following a revocation hearing held pursuant to § 5-4-310 and wherein a finding of guilt has been made or the defendant has entered a plea of guilty or nolo contendere, the court may add a period of confinement to be served during the period of suspension of imposition of sentence or period of probation, if no period of confinement was included in the original order placing the defendant on suspended imposition of sentence or probation.
(d) (1) The period actually spent in confinement pursuant to this section shall not exceed one hundred twenty (120) days in the case of a felony or thirty (30) days in the case of a misdemeanor.
(2) For purposes of this subsection, any part of a twenty-four-hour period spent in confinement shall constitute a day of confinement.
(e) If the suspension or probation of the defendant is subsequently revoked and the defendant is sentenced to a term of imprisonment, the period actually spent in confinement pursuant to this section shall be credited against the subsequent sentence.

Ark. Code Ann. § 5-4-304 (Supp. 2001) (emphasis added). Section 5-4-304(b) makes it abundantly clear that a “period of confinement” in a local jail as a condition of probation and a “term of imprisonment” in the state penitentiary are two entirely different punishments.

Moreover, our Criminal Code, as amended by Act 1569, specifically provides that a trial court can always sentence a defendant, upon a finding of guilt and revocation of his probation, to a term of imprisonment in the Department of Correction for violating his probation:

(f) Following a revocation hearing where the defendant continues on a period of suspension of imposition of sentence or a period of probation, nothing shall prohibit the court from revoking the suspension of imposition of sentence or period of probation and sentencing a defendant to incarceration in the Department of Correction upon finding the defendant guilty at a subsequent revocation hearing.

Ark. Code Ann. § 5-4-303(f) (Supp. 2001). Arkansas Code Annotated § 5-4-309(f) provides further authority for such action by the trial court:

(f)(1)(A) If the court revokes a suspension or probation, it may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty.
(B) Provided, that any sentence to pay a fine or to imprisonment, when combined with any previous fine or imprisonment imposed for the same offense, shall not exceed the limits of § 5-4-201 or § 5-4-401, or, if applicable, § 5-4-501.
(2) (A) For purposes of this subsection, the term “any sentence” includes the extension of a period of suspension or probation.
(B) If, upon revocation, an extension of suspension or probation is made, the court is not deprived of the ability to revoke such suspension or probation again should the defendant’s conduct so warrant.

Ark. Code Ann. § 5-4-309(f) (Supp. 2001).

In short, sections 5-4-303 (f) and 5-4-309 (f) state unambiguously that nothing shall prohibit the trial court from revoking probation and imposing any sentence which might have originally been imposed. This court has held that if the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no reason to resort to rules of statutory interpretation. See Edwards v. State, 347 Ark. 364, 64 S.W.3d 706 (2002) (per curiam). That is certainly the situation with respect to the two statutes at issue.

Accordingly, the fact that Moseley was sentenced to ninety days in the county jail with ninety days credit as a period of confinement in the trial court’s original order of probation does not preclude the court’s order of six years’ imprisonment following the State’s second petition for revocation and a finding of guilt for violating his probation. The original ninety-day sentence to the county jail was merely a condition of the order placing him on probation under § 5-4-304. It had nothing to do with the sentence imposed on him at the revocation hearing of June 22, 2001, for violating his probation. Finally, § 5-4-304(e) specifically contemplates giving credit for time spent in confinement against a term of imprisonment, following a revocation of probation. Fience, Moseley’s argument fails, and § 5-4-304(c) relating to periods of confinement is not controlling.

Affirmed.

Imber, J., not participating.