author: David Newbern, Justice. Tom Glaze, Justice.

text:
    Leon MASK v. STATE of Arkansas
    CR 93-329
    869 S.W.2d 1
    Supreme Court of Arkansas
    Substituted Opinion on Denial of Rehearing September 27, 1993

      Burbank, Dodson & McDonald, by: Jack W. Barker, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.

       Original opinion was delivered July 12, 1993.

   David Newbern, Justice.

The appellant, Leon Mask, was convicted of two counts of aggravated robbery and one count of kidnapping and sentenced to three forty-year prison terms to run consecutively. He argues the Trial Court erred by (1) failing to run his sentences concurrently, (2) allowing one of the robbery victims to sit at counsel’s table after testifying, (3) failing to hold a pretrial hearing on the issue of his competency to stand trial, (4) finding him competent to stand trial, (5) overruling his directed verdict motion. We must reverse on the second point. After a discussion of the evidence, we will first address point 5, Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), and then move on to other points which may arise upon retrial. We will not address the point complaining about error in imposing consecutive sentences because no objection was raised at the trial. Fellows v. State, 309 Ark. 545, 828 S.W.2d 847 (1992).

Altheia Henderson testified that a man she later identified as Mask entered Rainbow Food Mart # 5 in El Dorado at approximately six o’clock in the evening of January 20th, 1992, as she began her cashier shift. Mask paid for gasoline and left the store. Ms. Henderson testified he returned shortly thereafter and went to the bathroom located inside. He then got a cup of coffee and waited until the remaining customers had left. He approached the counter, pointed a gun at her, and asked for the money contained in the cash register and safe. He then forced Ms. Henderson at gunpoint to get into his car and drove to Rainbow Food Mart § 3, another convenience store in El Dorado.

On the way to the second store Mask became upset and again threatened Ms. Henderson with the gun when she did not promptly answer his question regarding how much money had been in the safe. When Mask left the car to enter the second store, Henderson fled to a nearby house and called the police. She identified Mask from photographs prepared by the police and identified him at trial as the robber.

Patricia Curry testified of working at Rainbow Food Mart # 3 when Mask entered the store, pointed the gun at her, and took the money from the cash register. Ms. Curry was able to provide police with the license number of the car Mask was driving. It was traced to Mask’s sister who said Mask had borrowed her car that evening.

At trial, Mask relied exclusively on the defense of not guilty by reason of insanity. He testified he did not remember any of the events occurring after six o’clock in the evening on the 20th. He did not remember committing any robberies and only turned himself in to the police to find out what had happened and why he was in trouble. He stated he heard strange sounds, saw visions of people talking to him, and had tried to commit suicide three times after the arrest. Mask’s father testified his son had not been himself since the arrest and needed psychological help.

In rebuttal, the State offered the testimony of Dr. John. Anderson, a licensed psychologist employed by the Arkansas Division of Mental Health. Dr. Anderson was the primary evaluator responsible for determining whether Mask was competent to stand trial and whether he was legally responsible for his actions at the time of the alleged offenses. At the conclusion of the examination, Dr. Anderson found Mask suffered from no mental disease or defect which might render him incompetent to stand trial or not responsible for his actions. Instead, Dr. Anderson diagnosed Mask as “malingering,” which meant he was feigning a mental illness for some secondary purpose. Dr. Anderson based this diagnosis in part on the fact that Mask was uncooperative with examiners by refusing to answer questions but would interact well with other patients during recreational activities. Dr. Anderson found Mask’s behavior inconsistent with a mental disease or defect and found no medical explanation for the behavior other than malingering.

1. Directed verdict

Mask asserts the Trial Court should have directed a verdict in his favor because the State failed to sustain its burden of proving he purposely committed the crimes and because he proved he was not guilty by reason of insanity by a preponderance of the evidence. Once the State meets its burden of proving the elements of the offense beyond a reasonable doubt, the burden shifts to the defendant to prove an affirmative defense by a preponderance of the evidence. See Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992).

The question on appeal from a denial of a directed verdict is whether there is substantial evidence to support the verdict. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). The State presented substantial evidence that Mask employed physical force with the purpose of stealing the money in the cash registers and safe. Ark. Code Ann. § 5-12-103(a)(1) (1987). There was substantial evidence that Mask forced Henderson into his car at gunpoint with the purpose of facilitating the commission of another aggravated robbery. Ark. Code Ann. § 5-11-102(a) (1987). The testimony of the two victims provides substantial evidence of Mask’s intent to commit the crimes.

Mask’s main argument concerns his affirmative defense asserted at trial that he was not guilty by reason of mental disease or defect. He contends there is insufficient evidence to support the jury’s finding that he was sane or had the mental capacity necessary to perform the crime.

It is well settled that Mask had the burden of proving his affirmative defense by a preponderance of the evidence. Ark. Code Ann. § 5-2-312 (1987); Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979). Mask failed to offer any substantial evidence that he suffered from a mental disease or defect. Although he claimed he heard sounds, saw visions, and tried to commit suicide, the jury is not required to believe the testimony of the accused. Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985). The State offered expert testimony, uncontradicted by other expert testimony, that Mask suffered from no mental disease or defect at the time of the offenses. There was substantial evidence to support the jury verdict.

2. Seating of victim

The Trial Court committed reversible error by allowing Ms. Henderson to sit at counsel’s table during the trial. After Ms. Henderson testified, the State requested she be allowed to sit at counsel’s table during the remainder of the trial. Defense counsel objected on the ground that the seating arrangement would prejudice Mask and inflame the jury. The Trial Court overruled the objection, determining Henderson had a right to be seated at the table under Ark. R. Evid. 616. Colloquy among counsel and the Trial Court was as follows:

MS. COMPTON: [Deputy Prosecutor] We call Judy Dumas and also ask the Court to allow the victim of the aggravated robbery to be seated at counsel table with us.
MR. BARKER: [Defense Counsel] Your Honor, may we approach?
THE COURT: Yes, sir.
COUNSEL AT THE BENCH OUT OF HEARING OF THE JURY:
MR. BARKER: Your Honor, I’m going to object to her sitting at the counsel table. This is a crime against the. State of Arkansas. I don’t think that it would serve any purpose other than to prejudice my client and inflame the jury’s passion. I think it’s completely unnecessary. Therefore, I would object.
THE COURT: The objection is overruled. Under Rule 616, the victim of a crime may sit at counsel table throughout the trial.
MR. BARKER: Yes, sir.
MS. COMPTON: Thank you, your Honor. I don’t have any problem with her sitting some place other than at the counsel table. She does want to be in the courtroom.
THE COURT: I don’t want her talking to other people. That’s why she should sit at the counsel table.
MS. COMPTON: I understand.
THE COURT: There’s too much conversation going on.
MS. COMPTON: I understand.

Mask contends allowing the victim to sit directly in front of the jury unduly emphasized her testimony and unfairly prejudiced him. He concedes there is no way to know for certain whether the seating arrangement had any improper effect on the verdict, but we observe that the jury recommended the maximum number of years on each charge short of life imprisonment.

As a general rule, a trial court may control the seating arrangement in the courtroom, and unless a party suffers some prejudice from the arrangement, seating is not a ground for reversal. Webster v. State, 284 Ark. 206, 680 S.W.2d 906 (1984). In this instance, however, Ark. R. Evid. 616, which we adopted in our opinion in Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986), is relevant. The Trial Court misinterpreted it. It says nothing about allowing a victim of a crime to sit at counsel’s table. The Rule states:

Rule 616. Right of victim to be present at hearing. — Notwithstanding any provision to the contrary, in any criminal prosecution, the victim of a crime, and in the event that the victim of a crime is a minor child under eighteen (18) years of age, that minor victim’s parents, guardian, custodian or other person with custody of the alleged minor victim shall have the right to be present during any hearing, deposition, or trial of the offense.

Mask concedes that, pursuant to Rule 616, Henderson had a right to remain in the courtroom after she testified. The question is whether Mask was prejudiced by her sitting at counsel’s table as opposed to sitting in the spectator area of the courtroom.

In Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989), we reversed a conviction when the Trial Court allowed three policemen who had testified against Moore to sit inside the railing in the courtroom, in a place normally reserved for parties, directly in front of the jury, during closing arguments. Despite the fact that the policemen were not in the courtroom during the testimony of any other witnesses, the State argued their presence was necessary to give the Court security from a rumored escape attempt. We held the case presented a manipulation of the seating arrangement in the name of security to emphasize the testimony of certain witnesses over others. The occurrence was tantamount to the Trial Court expressing an opinion on the credibility of witnesses. We see the same danger here. Moore was given the maximum sentence. Mask was given the maximum number of years for each of the three offenses, and the three 40-year sentences were stacked, resulting in a sentence to 120 years imprisonment.

Arkansas Rule of Evidence 615 deals with exclusion of witnesses from the courtroom upon motion or upon the initiative of a trial court. It makes an exception which precludes exclusion of “a party who is a natural person.” It also allows for an “officer or employee of a party that is not a natural person designated as its representative . . . or a person whose presence is shown by a party to be essential to the presentation of his cause.” It too says nothing about allowing a witness to sit at counsel’s table.

Ms. Henderson was not a party to this case. The prosecuting party was the State of Arkansas. Some states allow the victim of a crime to sit at counsel’s table by statute. See, e.g., Crove v. State, 485 So.2d 351 (Ala. Cr. App. 1984). We have no such law. In the Moore case we recognized that it was improper for a trial court, in the name of security, in effect to comment on the evidence. We see no significant difference between this case and that one.

3. Competency to stand trial

a. Right to a hearing

Mask argues the Trial Court erred by not holding a pretrial hearing on his competency to stand trial. Prior to trial, Mask notified the Court of his intention to raise the affirmative defense of mental disease or defect, and he was subsequently committed to the State Hospital for examination. On October 22,1992, the examiners provided the Court with their report stating Mask was aware of the nature of the charges filed against him and was capable of cooperating effectively with an attorney in the preparation of his defense.

Arkansas Code Ann. § 5-2-309(b) (1987) provides that if neither party contests the competency finding, the court may make the determination on the basis of the examiner’s report. If the finding is contested, the court shall hold a hearing on the competency issue. Ark. Code Ann. § 5-2-309(c) (1987). Here, there is no indication in the record that Mask contested the finding, and thus according to the language of the Statute, the Court was not required to hold a hearing on the issue.

b. Competency determination

Mask next states the Trial Court erred by finding him competent to stand trial. As stated previously, the report which was uncontradicted stated Mask was able to understand the proceedings against him and assist in his own defense. Ark. Code Ann. § 5-2-302 (1987). We find no evidence which would support a finding that Mask was incompetent to stand trial. A defendant in a criminal case is ordinarily presumed to be mentally competent to stand trial, and the burden of proving incompetence is upon the defendant. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980); Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978).

Reversed and Remanded.

Glaze and Corbin, JJ., dissent.

Tom Glaze, Justice.

No cognizable legal reason exists which authorizes the majority court to reverse this case. The court’s decision not only improperly invades a trial judge’s responsibility and province to conduct a fair trial as the circumstances arise and warrant, it also presumes the jurors in this case were incapable of reaching a fair verdict on the overwhelming evidence of guilt presented them.

Mask concedes Altheia Henderson, the victim of Mask’s crimes, had a right to remain in the courtroom during the trial. His only objection is that Ms. Henderson was permitted to sit at the counsel table. After Mask’s counsel made her objection, the trial judge said, “I don’t want her [Henderson] talking to other people. That’s why she should sit at the counsel table.” The judge added, “There’s too much conversation going on.” Defense counsel offered no response to the trial judge’s remarks.

The judge is not merely the chairman of the trial, who must remain mute until a party calls upon him or her to make a ruling, the judge has some responsibility for the proper conduct of the trial and the achievement of justice. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). This court has also said that a trial court’s rulings on matters pertaining to the conduct of trial and the admission of evidence are within the judge’s discretion, and such rulings will not be set aside absent a manifest abuse of discretion. Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982).

Here, the trial judge gave a sound reason why he seated Ms. Henderson at the counsel table, and defense counsel stood mute, giving no countermanding reason for seating Henderson elsewhere in the courtroom. In my view, it is nonsensical to say that the mere seating of the prosecuting witness in a courtroom can automatically be reversible error when the witness is placed at the counsel’s table. After all, if Henderson’s seating distance from the jurors was defense counsel’s concern, Ms. Henderson could have seated herself on the spectator’s front row near the jury box to make the jurors mindful of her presence. If defense counsel’s concern was the jurors’ perception of the victim’s alliance with the state in this trial, I pose the question, “Are jurors so ignorant of the criminal trial process that they do not know the state’s case rests largely on the victim’s account of how she was criminally violated?” The state’s case against Mask depended upon two victims’ accounts of Mask’s crime spree, and I suggest jurors are intelligent enough to know the prosecutor is relying on these victims’ testimonies and descriptions of what occurred in order to convict Mask of the charges filed against him.

In the present case, it is easier to speculate that Mask’s, not Henderson’s, presence at counsel’s table was what produced the sentences he received. Mask’s guilt was proved by overwhelming evidence and a recitation of the evidence is set out in the majority opinion. Mask committed two robberies at gun point and a kidnapping. Mask offered no proof he did not perform these crimes, and the jury had every reason based on the evidence to give Mask the sentences imposed, and it is rank conjecture to suggest Henderson’s mere presence at the counsel’s table caused such sentences. The state properly points out that Mask concedes in his brief that he could show no prejudice resulted by the victim’s presence at the prosecution’s table. Nonetheless, the majority court takes it upon itself to find prejudice by asserting the jury recommended “the maximum number of years imprisonment short of life.” Of course, the jury could have recommended life imprisonment but instead recommended forty years. Clearly, Mask did not receive the maximum punishments and the majority court’s sleight-of-hand and improper attempt to re-define “maximum sentence” in its effort to show prejudice and reversible error is patently wrong. To require reversal, Mask was required to demonstrate prejudice. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). Prejudice does not arise out of “thin air” as the majority has attempted to do in this case.

Also, I note that the majority opinion mentions that somehow Henderson’s presence was tantamount to the trial court’s expressing an opinion on her credibility as a witness, but there is nothing in the record that reflects the jurors were aware of the trial court’s ruling on this matter or of its concern as to how to conduct or control the trial.

In conclusion, it was Mask’s burden on appeal to show the trial judge manifestly abused his discretion when he ruled Henderson should sit at counsel’s table. The reason given by the trial judge reflected his attempt to assure nothing the victim might say or do during trial would keep Mask from getting a fair trial. Under these circumstances, the trial judge’s ruling was in Mask’s best interests; certainly Mask made no attempt to show otherwise. Even if you accept the majority’s assertion that error occurred here, such an error was harmless. When the evidence of guilt is overwhelming, an error of even constitutional proportions may be found to be harmless beyond a reasonable doubt. Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990); Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987). I should also note here that the majority cites Moore v. State, 299 Ark. S.W.2d 834 (1989), where this court reversed because law enforcement officers were allowed to sit inside the courtroom railing. That case was a 4-3 decision, but factually that case is so distinguishable it is in no way controlling. There, police officers had no right to be in the courtroom during trial; here the victim(s) had every right to be present throughout the entire trial under our Rule of Evidence 616.

The majority is wrong to reverse this case under the facts set out in the opinion. For the foregoing reasons, I would affirm.

Corbin, J., joins this dissent.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Bobby McCLURE v. STATE of Arkansas
    CR 93-71
    858 S.W.2d 103
    Supreme Court of Arkansas
    Opinion delivered July 12, 1993

      Robert T. Rogers, II, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

On July 12,1991, an information was filed on Bobby McClure charging him with kidnapping, attempted rape, felon in possession of a firearm, and battery in the second degree. The firearm charge was later severed by McClure’s motion, and the rape and battery charges were nolle prosequi by the state. On June 4,1992, McClure was convicted by a jury of kidnapping and sentenced to forty years imprisonment. McClure appeals from that conviction based on sufficiency of the evidence.

The facts are that in the early morning of Saturday, July 6, 1991, Heather, who was sixteen years old at the time, drove to the Red-X Express Mart where she called her boyfriend on the pay phone. The Red-X was located on Highway 62 in Carroll County near Alpena, Arkansas; the pay phone was located outside and on the backside of the store. Heather saw a man staring at her and because of the man’s strange behavior, she ended her conversation. As she was returning to her car, the man grabbed and dragged her toward his truck which was parked behind the store. While the store was well lit on the front, the area behind it was in shadow.

As the man was trying to get Heather into the cab of his truck, he threw her to the ground and repeatedly hit her, choked her, threatened to break her arm and kill her, and partially pulled off her shirt. Heather found a gun on the truck seat and threatened the man with it, but he took it away from her. After he got her into the truck, Heather continued to fight by trying to get out of the truck. While holding on to her by the hair, the man drove out of the store parking lot and down the highway. Approximately one-half block from the store, Heather was able to open the passenger door, slide out of the moving truck, and escape.

During the scuffle Heather’s screams alerted Ruby Gatlin, who lived near the Red-X, and could see the back of the store from her bedroom window approximately 150 feet away. Although it was still dark during the attack, Ruby was able to identify the approximate size and shape of the assailant, the coloring of his clothing, the type and general coloring of the vehicle involved, and corroborate Heather’s story of her struggle and abduction. J.R. Ashcock, a lieutenant and crime investigator with the Carroll County Sheriffs Office, got McClure’s name from the store clerk as someone who had been present at the store that morning.

At approximately 5:18 a.m. that same morning, Bobby McClure was arrested for DWI, speeding, and driving without a license in Madison County. During a vehicle search, a gun was found behind the driver’s seat.

McClure challenges the sufficiency of the evidence based upon inconsistent statements made by the victim and Ruby Gatlin, and the lack of physical evidence connecting him to the crime. He claims that while he was present at the Red-X on the morning of the assault, he was not the one who committed the crime. McClure moved for a directed verdict both at the close of the state’s case-in-chief and again at the close of the case, thus preserving his appeal based on sufficiency of the evidence.

When the sufficiency of the evidence is being challenged on appeal, we review the evidence in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. We do not weigh evidence on one side against the other; we simply determine whether the evidence in support of the verdict is substantial. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another, and requires more than mere speculation or conjecture. Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991). It is permissible to consider only the testimony which supports the verdict of guilt. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Wilson v. State, 307 Ark. 21, 817 S.W.2d 203 (1991).

In this case the evidence supporting McClure’s conviction is more than substantial including the victim’s identification of him as her assailant and abductor. Heather testified that she had noticed McClure watching her while she talked on the phone and that she saw him face to face during the attack while he was choking her. At the hospital she was able to give the investigator a description of her assailant and his clothing. That description was corroborated by Ruby Gatlin. Both described the man as tall having long dark hair and wearing dark clothing. Heather was also able to describe the man as having a full beard. Upon his arrest in Madison County on the morning of the abduction, McClure had long dark hair and a full beard, and was wearing dark clothing. On July 19, 1991, Heather identified McClure’s photograph immediately from among a group of six and identified him again in court as her assailant. Further, she was able to point out the differences in McClure’s appearance at the trial compared to the way he looked on the morning of the kidnapping.

Additionally, the store clerk, Michael Langston who knew McClure because he lived near the store and had come into the store before, testified that on the morning of the crime while taking the trash out, he saw McClure standing toward the rear of the store and that Heather was on the phone nearby. Also, Stanley Jones, who worked with McClure at Tyson Foods in Green Forrest, was at the Red-X the morning of the abduction, and testified that he saw McClure drive into the parking lot to the back of the store and park, and that he also saw a “young lady” on the phone.

McClure argues that neither the victim nor the eyewitness ever positively identified his truck as the one involved in the crime. And that each woman described the truck involved as different in color from his, and both were equivocal as to the presence or absence of a tailgate. Further, he argues that Heather described the gun she found in the truck of her assailant as silver with a wooden handle, but that his gun was silver with a brown plastic handle. McClure argues that the discrepancies in this testimony are critical details that prove that he was not the one who assaulted and abducted Heather.

We reject his arguments. Heather identified both a photo of McClure’s truck as similar to the one involved in the crime and his gun as similar to the one she had found in the truck. Further, Heather was able to describe the inside of the cab including the fact that the truck had a big horn which she blew in her struggle and attempts to attract help, the passenger-side door handle which she used to effect her escape, and a multicolored, woven seat cover. While the descriptions of the outside of the truck and the gun do not perfectly match McClure’s truck and gun, neither victims nor eyewitnesses are expected to notice and remember every detail while a crime is in progress. Any discrepancies that occur in the testimony are for the jury to resolve. White v. State, 39 Ark. App. 52, 837 S.W.2d 479 (1992). See also Smith v. State, 271 Ark. 671, 609 S.W.2d 922 (1981).

Certainly, the unwavering testimony of the victim that McClure was her abductor coupled with her identification of him both in a photographic lineup and in the courtroom is substantial evidence. Added to that is her general description of the outside and the specific details of the inside of McClure’s truck, as well as the presence of a gun in the truck. Heather’s testimony regarding the crime is corroborated by the testimony of the eyewitness, Ruby Gatlin. Additionally, the testimony of Michael Langston and Stanley Jones place McClure and his truck at the Red-X on the morning of the abduction and directly in the vicinity of Heather as she talked on the phone.

Any discrepancies in descriptions of details were minor and were within the providence of the jury to resolve. The jury could believe or disbelieve any of the testimony totally or in part. Because substantial evidence supports McClure’s conviction, we affirm.


author: Tom Glaze, Justice. Robert L. Brown,

text:
    Reverend G. Edward WEST v. Bishop Henry Allen BELIN, Jr.
    93-205
    858 S.W.2d 97
    Supreme Court of Arkansas
    Opinion delivered July 12, 1993
    [Rehearing denied September 13, 1993.]

      Karr, Hutchinson & Stubblefield, by: Charles Karr, for appellant.

      Mays & Crutcher, P.A., by: Richard L. Mays, for appellee.
   Tom Glaze, Justice.

This case arises from a dispute between Reverend G. Edward West, an itinerant elder and member of the African Methodist Episcopal (AME) Church, and Bishop Henry Allen Belin, who presided over the Twelfth Episcopal District (Arkansas and Oklahoma) of the AME Church. The AME Church is a hierarchical church with the power of the church reposed in its bishops with the highest judicial body being the Judicial Council. The church’s organizational structure and authority of its various governmental divisions are contained in its Book of Discipline.

On June 6, 1990, West brought suit in Sebastian County Chancery Court against Bishop Belin, alleging Belin had violated AME Church doctrine as interpreted by the Judicial Council and the neutral principles of law by (1) threatening to remove West from all offices he holds in the church and (2) collecting, receiving or obtaining monies not provided for in the General Budget of the AME Church. On June 6, Chancery Judge Don Langston issued an ex parte temporary restraining order (TRO), finding he had jurisdiction and prohibiting Belin from removing West from any office and from obtaining monies as charged in West’s verified complaint. This TRO was served on Belin on June 27, 1990. On July 17, 1990, Belin moved to dismiss West’s action stating (1) the court had no jurisdiction since AME is a hierarchical church, (2) West had failed to exhaust his remedies within the ecclesiastical courts of the AME Church, and (3) the AME Church was a necessary party and had not been named or served.

West next took action on August 8,1990, by filing a petition citing Belin to show cause why he should not be held in contempt for violating the court’s June 6 TRO. In his petition, West alleged that, on December 13, 1989, the AME Judicial Council had issued its Declaratory Decision whereby persons (bishops) taking actions that violate the General Budget of the AME Church may subject those persons “to charges and/or civil lawsuit.” West further asserted Belin violated the Council’s Declaratory Decision and the court’s TRO by receiving offerings taken at annual church conferences. Belin again responded, stating the chancery court had no jurisdiction over religious tribunals or their decisions.

Chancellor Langston held a hearing on West’s petition on December 11, 1990, and Belin appeared only through counsel. The chancellor again found he had jurisdiction of the cause, found Belin was in contempt of the court’s June 6 TRO, sentenced Belin to thirty days in the detention center, fined him $1,000.00, but gave Belin forty days within which he could appear and purge himself of any contempt. Judge Langston directed that if Belin failed to respond, a body attachment order would issue for his arrest and incarceration. Belin failed to respond to the judge’s admonition, so an order was required and subsequently signed by Chancery Judge John YanWinkle and issued on August 28,1991. We note that at this stage of the litigation below, Belin either elected not to appeal the chancery court TRO or contempt order or he failed to lodge a timely appeal from them. However, on December 23,1991, Judge VanWinkle made another attempt to encourage Belin to respond to court directives by issuing another order directing him to surrender, and if he failed, Belin would be assessed $100.00 per day until he did surrender. Belin appealed that December 23 order, but through new counsel, he also filed a motion on April 15,1992, requesting the court to vacate its earlier December 11, 1990 contempt order.

While Chancery Judge Charles Garner (the third chancellor involved in the proceeding) denied Belin’s April 15,1992 motion to vacate the December 11 order, he later held a hearing to dissolve the court’s June 6 TRO, and after hearing evidence and argument, entered an order dated July 21,1992, which not only set aside the TRO, but also “all proceedings, pleadings, motions, findings and orders.” Judge Garner held he had no subject matter jurisdiction because the parties’ dispute involved religious doctrines and practices over which civil courts have no authority, and West had failed to pursue remedies available within the AME Church. Relying upon the July 21 order, Belin subsequently asked the chancery judge to dismiss any pending appeals and to refund the $5,000.00 supersedeas bond he had posted in connection with, those appeals. The judge granted Belin’s requests, and West appeals from the lower court’s July 21, 1992 order.

For reversal, West contends the trial court erred in dismissing his suit for lack of subject matter jurisdiction. He argues the chancery judges had initially determined chancery court had jurisdiction when issuing the TRO, the December 11,1990 order finding Belin in contempt and the August 28, 1991 order directing Belin to be arrested and incarcerated. Because Belin failed to lodge a timely appeal from these orders, West concludes Judge Garner was procedurally barred by law of the case from raising the jurisdiction issue in the later July 24,1992 proceeding.

We first mention Potter v. Easley, 288 Ark. 133, 703 S.W.2d 442 (1986), upon which West relies. There, this court stated that the doctrine of the law of the case requires us to adhere to our decision on the first appeal even though we might think it to have been wrong. Potter hardly applies here since no appeal had been taken from any of the three above-described orders. Other cases cited by West also involve situations where a prior appeal had been lodged and decided and are similarly inapposite to the facts before us now. In short, West offers us no cases where the doctrine of law of the case has been applied by this court when no appeal was involved.

While we find no merit in West’s law-of-the-case argument, the question still looms as to whether Judge Garner had the power to set aside all orders previously issued by the chancery court, including the three mentioned hereinabove which had been entered for more than ninety days and from which no appeal was taken. We have held frequently that the trial court loses the power to act under ARCP Rule 60(b) after ninety days from the filing of the judgment, decree or order with the clerk. City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989); Diebold and First Nat’l Bank of Wynne v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987).

Clearly, this court has held that a trial court retains jurisdiction to modify or vacate an injunction beyond the time limit placed on other types of orders or decrees. Carter v. Colson, 228 Ark. 629, 309 S.W.2d 328 (1958); Haberman v. Van Zandvoord, 1 Ark. App. 203, 614 S.W.2d 242 (1981). Thus, Judge Garner possessed authority to vacate the chancery court’s June 6,1990 TRO even though it had been entered for more than ninety days. See ARCP Rule 65(c). He heard the case on its merits and determined the proof did not support injunctive relief against Belin, and accordingly, he dissolved the court’s TRO. In this respect, we note that, while the grant or denial of injunctive relief is within the jurisdiction of chancery court, the findings and conclusions of law made at the preliminary hearing, at which the TRO was granted, are not binding at the trial on the merits. Patterson v. Masem, 774 F.2d 251 (8th Cir. 1985). Because West challenges the lower court’s decision based upon law of the case and not on its merits, we affirm that part of Chancellor Garner’s decision that the evidence presented failed to support continuing injunctive relief.

Finally, we must still consider whether Judge Garner had the power to set aside the chancery court’s December 11, 1990 contempt order and August 28, 1991 body attachment order. Undisputedly, both orders were well outside ninety days from their having been filed, and Belin appealed neither order.

We are first met with the general rule that a judgment entered without jurisdiction of the person or the subject matter or in excess of the court’s power is void and may be collaterally impeached. Wood v. Goodson, Judge, 253 Ark. 196, 485 S.W.2d 213 (1972). In Wood, this court granted a writ of certiorari and held the Miller County Circuit Court had no power to prohibit the news media from publishing that which transpires in open court and ruled an order prohibiting Wood from publishing a trial verdict was void. This court also vacated contempt orders against Wood holding in effect that Wood could not be held in contempt for disregarding a void order.

The case at hand is unlike Wood. As discussed earlier, because this cause involved West’s request for injunctive relief, Chancellors Langston, VanWinkle and Garner retained jurisdiction throughout these proceedings until it could be decided whether chancery court had jurisdiction to grant the injunctive relief requested by West. In other words, this case is not one where the court is wholly without jurisdiction to grant the relief sought. See Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986); Brown v. Kennedy Well Works, Inc., 302 Ark. 213, 788 S.W.2d 948 (1990).

A court having equity powers may be given jurisdiction to decide its own jurisdiction as any other court may be given such power. However, if a court has equity powers, it may have the additional authority to preserve the status quo by way of an injunction, so that its jurisdiction to decide its own jurisdiction is preserved. See Prof. Don B. Dobbs, Law of Remedies § 2.7 (1973). The case of United States v. United Mine Workers, 330 U.S. 258 (1947), illustrates this principle quite well. There, the government was operating coal mines during difficulties associated with World War II. It had a contract with the Mine Workers Union, headed by John L. Lewis. Lewis took the position that the union could terminate the contract, and that if a new contract of his liking was not signed, he would call a strike. The government sought a declaratory judgment to the effect that the union could not terminate the existing contract, and it obtained a temporary restraining order to prevent Lewis from calling or supporting a strike. Lewis and his union violated the TRO and later were cited for contempt of court for doing so. Lewis and the union defended on the ground that the court lacked any jurisdiction to issue any injunction in the case, that its order was void and therefore obedience was not required and disobedience could not be punished. Lewis relied on the Norris-LaGuardia Act, which virtually eliminated federal court jurisdiction to issue any restraining order in any case involving or growing out of any labor dispute. The Supreme Court rejected Lewis’s defenses and upheld the fines imposed by the lower court upon finding Lewis in contempt. One of the Court’s grounds for upholding the lower court’s contempt orders was that “the District Court unquestionably had the power to issue a restraining order for the purpose of preserving existing conditions pending upon its own jurisdiction.” In other words, since the district court had the power to decide its own jurisdiction, it also had the power to make its decision effective, or at least to keep the way open for a meaningful decision. See Dobbs, Law of Remedies § 2.7 at page 87; see also Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940).

As mentioned above, Chancellor Langston assumed jurisdiction of West’s complaint and issued a TRO to prevent Belin from violating AME Church Doctrine by threatening removal of West from office and from obtaining monies not provided in the church’s General Budget. While the general rule is that religious controversies are not a proper subject for inquiry by civil courts, and that ecclesiastical decisions of church tribunals are binding on a civil court, Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976), where the controversy involves issues of ownership in church property, the state has an obvious and legitimate interest in providing a forum in which these disputes can be peacefully resolved, so long as the resolution by the court does not involve consideration of any doctrinal matters. Jones v. Wolf, 443 U.S. 595 (1979). If the property issue can be resolved by an approach based on neutral principles of law, the constitutional principles of the First and Fourteenth Amendments regarding separation of church and state are not violated. Id. See also Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986); Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988).

In his complaint and petition, West related factual allegations that Belin had improperly obtained monies in violation of AME Church Doctrine as interpreted by the Judicial Council and that neutral principles of law had been violated as well. In addition, he alleged administrative remedies had been pursued within the church and his remedy was now at law in the civil courts.

In sum, we hold that Chancellor Langston had the power to issue the June 6 TRO for the purpose of preserving existing conditions until the court decided its own jurisdiction in this matter. Accordingly, the court’s contempt order issued as a result of Belin’s violation of that TRO is valid. Judge Garner simply had no power to set aside the contempt orders that Belin never properly challenged. Although given every opportunity by the chancery judges to present his case and to purge himself of any contempt, Belin ignored the pending proceeding with impunity. He was wrong to do so. Any relief to Belin from the chancery court’s contempt and body attachment orders must result from the chancery court’s discretion not to enforce the dictates of those orders since Judge Garner was without authority to set them aside.

From the foregoing, we affirm in part and reverse and remand in part.

Brown, J., concurs in part and dissents in part.

Robert L. Brown,

concurring in part and dissenting in part. I agree with that part of the majority’s opinion affirming the lack of jurisdiction of the first chancellor over ecclesiastical matters. I question, though, whether we should uphold the contempt sanction against the appellee, thereby affirming a fine and jail sentence, when the first chancellor lacked jurisdiction over this matter. I further question whether we should reverse part of the third chancellor’s order based on a legal theory that was not argued at trial or to this court on appeal.

The majority is correct, as a general proposition, that a trial court retains the power to enforce a TRO by contempt sanctions pending a determination of its own jurisdiction over the subject matter. See United States v. United Mine Workers of America, 330 U.S. 258 (1947); Hayes v. Towles, 95 Idaho 208, 506 P.2d 105 (1973). But that proposition appears not to be applicable in this case since the TRO which resulted in the contempt citation was not issued to allow the first chancellor to decide jurisdiction. Indeed, the court said it had jurisdiction in the order. The stated reason for the TRO was to keep Bishop Belin from removing Reverend West from office or obtaining church money.

Decades ago, this court said in discussing contempt sanctions for violating preliminary or permanent injunctions: “However, when the pleadings show on their face that the court is wholly without jurisdiction of the subject matter set forth therein, any preliminary order made or final judgment rendered is void.” Pitcock v. State, 91 Ark. 527, 534, 121 S.W. 742, 745 (1909). In 1968, the California Supreme Court held that where the trial court acted in excess of its jurisdiction in issuing the TRO, violation of the void order should constitute no punishable wrong. In Re Berry, 65 Cal. Reptr. 273, 436 P.2d 273 (1968).

More importantly, I do not believe that the law surrounding this issue is so crystal clear that we should decide the question without giving counsel an opportunity to argue the point. The majority is saying that the first chancellor had jurisdiction only to issue the TRO and then enforce the order through contempt sanctions; otherwise, he lacked jurisdiction over the subject matter. The majority is also saying that the third chancellor who voided the first chancellor’s contempt order lacked the power to do so. I do not, however, perceive a lack of subject matter jurisdiction in the third chancellor to rule on the question which would entitle us to raise the issue on our own. Can we, then, reverse the third chancellor on a point not argued? I do not think so.

It has become a legal maxim that we will not entertain arguments not made below. See, e.g. Johnson v. Ramsey, 307 Ark. 4, 817 S.W.2d 200 (1991); Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991). We should decline to do so in this case.

       Belin appealed the chancellor’s denial of the motion to vacate.

       When Carter was decided, the controlling law was that a trial court had no authority to receive a judgment after the court’s term had expired. The term of court was later changed to ninety days and is now incorporated in ARCP Rule 60(b). See City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989).

       The AME Book of Discipline provides under the duties of the Judicial Council the following:
      h. Members . . . are hereby required to seek a final determination of any dispute arising between said members and the church and/or any department thereof by exhausting all legal remedies provided in the Discipline before civil proceedings are engaged in by the said member in his/her own behalf or any one similarly situated.


author: Robert L. Brown, Justice.

text:
    Melvin Ricky DANIELS v. COLONIAL INSURANCE COMPANY
    92-1389
    857 S.W.2d 162
    Supreme Court of Arkansas
    Opinion delivered July 13, 1993

      Spencer, Spencer, Depper & Guthrie, by. Robert L. Depper, Jr., for appellant.

      Wright, Chaney, Berry & Daniel, P.A., by: William G. Wright, for appellee.
   Robert L. Brown, Justice.

This case is an appeal from a summary judgment in favor of the appellee, Colonial Insurance Company. The appellant, Melvin Ricky Daniels, raises several issues of material facts which, he contends, remain to be decided. We disagree that the circuit court erred in rendering summary judgment, and we affirm.

On July 21,1988, the appellant’s wife, Sherri Daniels, went to the Colonial offices in Camden at the appellant’s request to purchase car insurance. Colonial’s agent, M.H. Woodring, assisted her in completing an application that was two pages long. On the first page of the application the appellant was shown as owner of the automobile. On the same page, both Sherri Daniels and the appellant were listed as “drivers in household.” Each was further shown as “living with spouse.”

On the second page of the application there was a heading which read “COVERAGE REJECTION STATEMENTS — MUST BE SIGNED BY NAMED INSURED IF COVERAGE NOT PURCHASED.” Below that was a paragraph entitled “UNDERINSURED MOTORIST BODILY INJURY COVERAGE REJECTION STATEMENT.” This paragraph stated that underinsured motorist coverage had been explained to the applicant and that the applicant had rejected it. Sherri Daniels signed at the end of that rejection paragraph as applicant. Sherri Daniels’s and Mr. Woodring’s signatures also appear at the end of the application, with Sherri Daniels again designated as the applicant.

Colonial prepared a Declarations Page, which set forth the policy coverages as requested by Sherri Daniels and designated the appellant as the named insured. Underinsured motorist coverage was not included. The policy itself included the following under “Definitions:”

2. You and your mean the policyholder named in the Declarations and spouse if living in the household.

The appellant renewed the policy on the same terms as originally issued once every two months over the next two years, or 12 times. At no time after the application date did the appellant ask that underinsured motorist coverage be added. Nor was an additional premium paid for that coverage.

On July 20, 1990, while operating his 1986 Nissan pick-up truck in Ouachita County, the appellant was involved in an automobile accident with a third party. The medical expense resulting from appellant’s injuries exceeded $50,000.00. The third party was responsible for the accident and had maximum coverage of $25,000.00, which was paid. The appellant thereafter sought to collect the remaining $25,000.00 from Colonial under his alleged underinsured motorist coverage. Colonial refused to pay the $25,000.00 on the basis that the appellant through a named insured, Sherri Daniels, had expressly waived the coverage.

On June 6,1991, the appellant filed a declaratory judgment action against Colonial, contending that he was entitled to $25,000.00 as underinsured motorist benefits and that Colonial had refused his demand. As part of discovery, the appellant answered Colonial’s interrogatories and stated that his “estranged wife” had filled out the application for insurance on July 21,1988. He admitted in those same answers that he asked her to obtain insurance for his vehicle, but he denied that he authorized her to waive any insurance. The appellant also stated that he had never received the Declarations Page which informed him about what coverage he had or the policy itself. He admitted that he had received a copy of the insurance application, which was attached as Exhibit “A” to his interrogatory responses.

Colonial answered and moved for summary judgment on several bases, including the fact that Sherri Daniels was an insured who could reject the underinsured motorist coverage. The appellant also moved for summary judgment and urged that he was the sole named insured and had never waived underinsured motorist coverage as required by the application.

The circuit court awarded summary judgment to Colonial and found that the appellant authorized Sherri Daniels, his wife, to buy car insurance for him; the appellant received a copy of the application completed by his wife; the appellant was not charged for underinsured motorist coverage; and the policy did not provide such coverage. The court concluded that Sherri Daniels was an insured under the policy who had the right to reject the underinsured motorist coverage.

For his first point, the appellant argues that various material questions of fact remain to be decided rendering summary judgment inappropriate. He also contends that Sherri Daniels was not the named insured and, thus, could not reject coverage.

We have recently summarized our standards for summary judgment review:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Forrest City Mach. Works v. Mosbacher, 312 Ark. 578, 583, 851 S.W.2d 443 (1993); Higginbottom v. Waugh, 313 Ark. 558, 856 S.W.2d 7 (1993).

We agree with the circuit court that Sherri Daniels was a named insured who could reject the coverage at issue as stated in the application. The appellant contends that because he is listed on the Declarations Page as the named insured, he is the only named insured who could waive coverage. The application in this case, however, did not identify a named insured but identified both the appellant and Sherri Daniels as “drivers in the household” and as living with their spouses, the clear reason being to specify drivers who would be covered. In addition, the Definitions section of the policy stated that “You and your mean the policyholder named in the Declarations and spouse if living in the same household.”

A distinguished treatise has this to say about insureds under automobile policies:

Every contract of insurance specifies an insured. In addition, policies of automobile liability insurance generally define certain other persons, commonly described by class, as additional or other insureds.

12 Couch on Insurance 2d (Rev. ed. 1981), § 45:267, pp. 581-582. We are required to construe the words of insurance policies in their plain and ordinary sense. Duvall v. Massachusetts Indem. & Life Ins. Co., 295 Ark. 412, 748 S.W.2d 650 (1988). Focusing on the plain meaning of the language of the appellant’s application and policy, it is clear that Sherri Daniels was an insured who was named.

The appellant contends that by denoting Sherri Daniels’s status on the date of the application as “estranged” in his answers to interrogatories, this creates a fact question surrounding her marital status and living arrangements. But the word “estranged” has different levels of meaning and does not necessarily equate to divorce, separation, or life in a different household. Moreover, Colonial presented the application and policy as proof of Sherri Daniels’s status. Once Colonial made a prima facie case, the appellant was required to meet proof with proof to create an issue of fact. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992); Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985). The mere use of the word “estranged” falls far short of what is required to prove that Sherri Daniels was not a named insured. Without countervailing proof that the appellant and Sherri Daniels were not drivers living in the same household, Colonial’s evidence must stand. And as a named insured, Sherri Daniels was well within her rights to reject any coverage offered to her.

The appellant also claims that the circuit court erred in refusing to grant his motion for summary judgment. This court has stated repeatedly that the denial of a motion for summary judgment is not subject to review or appeal. See, e.g., McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991); Hastings v. Planters and Stockmen Bank, 307 Ark. 34, 818 S.W.2d 239 (1991).

Affirmed.


text:
    IN RE the Matter of the ESTATE OF Delbert Allen SPEARS, Deceased Jimmie Lee Bowling, Jr. and Gay Taylor Bowling v. Skeet Lavonda Renee Spears, Administratrix of the Estate of Elebert Allen Spears, Deceased
    93-223
    858 S.W.2d 93
    Supreme Court of Arkansas
    Opinion delivered July 12, 1993

      H. Oscar Hirby, for appellants.

      Tracy F. Bagwell, for appellee.
   Robert L. Brown, Justice.

The claimants and appellants, Jimmy Lee Bowling and Gay Taylor Bowling, filed a claim against the estate of Delbert Allen Spears, deceased, but did so outside of the three-month period under the statute of nonclaim. The probate court denied the claim. The appellants appeal on the basis that they were denied a hearing to present their case. They further contend that they were creditors of the estate who could be reasonably ascertained, and as such, the applicable statute of limitations was two years. Alternatively, they urge that the statutes requiring actual notice to reasonably ascertainable creditors are unconstitutional on their face and as applied in this case. We affirm the probate court’s decision.

The decedent, Delbert Allen Spears, was a licensed real estate broker and a principal owner of Spears and Tisdale Realty Company. He was also an owner of S & T Homes, Inc., a Little Rock housing construction corporation that was used to build housing on property sold through Spears and Tisdale Realty.

On January 3,1989, the decedent and the appellants, Jimmy Lee Bowling and Gay Taylor Bowling, closed two real estate transactions. The decedent took title to the appellants’ land and house located at 8623 Duncan Drive in Little Rock in exchange for a lot owned by Spears and Tisdale Realty, also in Little Rock, and a new house to be constructed on the lot by S & T Homes. As part of the consideration for the land swap, the decedent assumed the outstanding balance owed on a note and mortgage on the Duncan Drive property. The decedent, as owner of the Duncan Drive property, continued to make note payments as they came due until May 30, 1990, when he conveyed the property by warranty deed to his brother, John Spears. Eight months later, on February 1, 1991, the decedent’s brother stopped making payments, and the Duncan Drive property went into default.

On May 20,1991, the appellants were notified and demand was made upon them for payment of the note on the Duncan Drive property. Only then were they apprised of the fact that the decedent had died prior to the default on September 21,1990, and that the Duncan Drive property had been conveyed to the decedent’s brother. Notice and demand were presented to the appellee, Skeet Lavonda Renee Spears, administratrix of the decedent’s estate, on June 18,1991. She took no steps to clear the default. As administratrix, she had published the requisite statutory notice in The Benton Courier, a Saline County newspaper, for two consecutive weeks beginning October 22,1990. The three-month statute of nonclaim established by Ark. Code Ann. § 28-50-101(a) (Supp. 1991) expired on January 22, 1991, which was prior to the default.

The Duncan Drive property went into foreclosure, and a deficiency judgment was entered against the appellants and in favor of the holder of the note and mortgage for the amount of $24,314.90. The appellants, in turn, made demand upon the decedent’s estate for payment of the deficiency judgment, but the estate refused payment. The appellants then filed a claim against the estate on June 23,1992, seeking damages in the amount of the deficiency with interest from October 15, 1991, together with exemplary damages for fraud, deceit, and misrepresentation on the part of the decedent.

On July 22, 1992, the estate responded to the claim filed against it, noting that the first inkling it had of a potential claim appeared in a letter from the appellants’ attorney dated June 18, 1991 — more than seven months after the first publication of notice to creditors. Prior to June 18,1992, the estate contends, the claim was neither known to it nor reasonably ascertainable. The burden of proof on the issue, according to the estate, was on the creditor claiming entitlement to actual notice. Denying the claim, the estate requested a hearing before the Saline County Probate Court for a determination of whether the appellants, as creditors, were known or reasonably ascertainable to the administratrix and therefore entitled to more than constructive notice.

On August 20,1992, it is disputed what occurred. The estate asserts that a hearing was held on the claim. The appellants argue that it was in fact a conference among the attorneys and the probate court. On September 29, 1992, before the entry of the order resulting from the August 20,1991 hearing, the appellants filed a motion requesting an evidentiary hearing on all facts still disputed by the estate and raising for the first time the constitutionality of the notice provisions to creditors in the Probate Code. The following day, September 30,1992, the probate court replied by letter that the motion was denied because the appellants had an opportunity to present evidence at the August 20, 1992 hearing and chose not to take it. The afternoon of October 1, 1992, the appellants filed with the Saline County Probate Clerk a proffer of facts and a deposition of the administratrix taken on August 12,1992, in connection with litigation pending in Pulaski County Circuit Court and the decedent’s estate.

In its resulting order, filed on October 2, 1992, the probate court found that notice of appointment of personal representative and notice to creditors was published on October 22, 1990, the three-month limitation on filing claims set forth in the statute of nonclaim, § 28-50-101 (a), ended on January 22, 1991, and the appellants filed their claim on June 23,1992. Because the claim of the appellants was not known to or reasonably ascertainable by the administratrix at the time of first publication of notice, reasoned the court, the requirements of Ark. Code Ann. § 28-40-111(a)(4) (Supp. 1991) concerning notice to creditors known or reasonably ascertainable by the personal representative within one month from first publication of notice were not applicable to the estate or to the administratrix.

In addition, the probate court declared that the claim did not become ascertainable during the three months following the first publication of notice. Therefore, the administratrix had no duty to send actual notice to the appellants. Turning to the nonclaim statute, the probate court ruled that the appellants had failed to file their claim within the three months required, which barred their claim for recovery against the estate.

Also, on October 2, 1992, a second order was entered denying the appellants’ request for an evidentiary hearing. The probate court reiterated that the appellants had an opportunity to present their case on August 20,1992. It also found that the facts necessary to decide the claim were undisputed and that an additional hearing to put facts into the record which were irrelevant to the ruling on the claim was unnecessary. Further, the court found that the issues raised with respect to the unconstitutionality of the Probate Code notice provisions were not raised at the first hearing and, thus, untimely.

On October 12, 1992, the appellants filed a motion for amendment of order and trial on the merits of the case. The motion was deemed denied on the 30th day under Ark. R. App. P. 4(c). The estate was then closed on November 24, 1992.

I. EVIDENTIARY HEARING

The appellants first contend that they were denied an evidentiary hearing and the chance to make a record on their claim. It is clear, however, from the probate court’s letter of September 30, 1992, and the order of October 2, 1992, that the court considered the proceeding it conducted on August 20,1992, to be a hearing. Indeed, the court specifically found that a hearing was held. Furthermore, as the court plainly stated in its letter to appellants’ counsel on September 30, 1992, the attorney was given the opportunity to present evidence at the previous hearing and chose not to take it.

On appeal, the decision of the probate court will not be reversed unless it is clearly erroneous. Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992). Here, the parties are in irreconcilable conflict over whether a hearing occurred. The probate court found that a hearing was held. We presume, absent contrary information in the record, that what transpired on August 20,1992, supports the probate court’s findings. See King v. Younts, 278 Ark. 91, 643 S.W.2d 542 (1982); Armbrust v. Henry, 263 Ark. 98, 562 S.W.2d 598 (1978); Phillips v. Arkansas Real Estate Commission, 244 Ark. 577, 426 S.W.2d 412 (1968). The appellants have presented nothing to contravene the finding that a hearing was held except their assessment of what occurred. Thus, we cannot say on the basis of the record before us that the probate court erred in finding that the appellants were afforded an opportunity to present evidence and forfeited it.

II. REASONABLY ASCERTAINABLE CREDITORS

Appellants’ primary argument is that they were reasonably ascertainable creditors who were not given actual notice and that the two-year statute of limitations applies under Ark. Code Ann. § 28-50-101 (h) (Supp. 1991), which would preserve their claim.

The relevant statutes read in pertinent part:

(a)(1) Promptly after the letters have been granted on the estate of a deceased person, the personal representative shall cause a notice of his appointment to be published stating the date of his appointment and requiring all persons having claims against the estate to exhibit them, properly verified to him, within three (3) months from the date of the first publication of the notice, or they shall be forever barred and precluded from any benefit in such estate.
(4) Within one (1) month after the first publication of the notice, a copy of the notice shall also be served upon each heir and devisee whose name and address are known and upon all unpaid creditors whose names, status as creditors, and addresses are known to or reasonably ascertainable by the personal representative in accordance with § 28-1-112(b)(1), (2), or (3). If, thereafter, the names and addresses of any such creditors are ascertained^ copy of the notice shall be promptly served upon them. The burden of proof on any issue as to whether a creditor was known to or reasonably ascertainable by the personal representative shall be upon the creditor claiming entitlement to such actual notice.

Ark. Code Ann. § 28-40-111(a)(1) & (4) (Supp. 1991).

(h) Notwithstanding any other provisions of this section to the contrary, the claims of all known or reasonably ascertainable creditors shall be barred at the end of two (2) years from date of first publication of notice to creditors, even if they have not been provided actual notice in accordance with § 28-40-111(a)(4).

Ark. Code Ann. § 28-50-101(h) (Supp. 1991).

Both statutes were either amended by or the result of Act 929 of 1989, which itself was a response in part to the United States Supreme Court’s decision in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988). In Pope, the Court held that actual notice by means such as mail service was required for reasonably ascertainable creditors under the Due Process Clause and that constructive notice by publication did not suffice.

The first question before us is when must the appellants be deemed to be reasonably ascertainable creditors of the estate and entitled to actual notice. The estate argues, and the probate court found, that the creditors must be reasonably ascertainable during the three-month period of the statute of nonclaim. The appellants, however, urge that if they were reasonably ascertainable any time during the two-year period under § 28-50-101(h), that is sufficient.

The probate court correctly found that a creditor of the estate must be subject to identification during the three-month statute of nonclaim. This makes eminent sense. Otherwise, all estates would be subject to a two-year administration on the basis that a creditor might surface with a legitimate claim after the three-month period and be entitled to a two-year limitations period before being barred. We are not willing to conclude that the General Assembly intended for all estates to be two years in duration because of the potential that additional claims might come to light subsequent to the nonclaim period.

The next issue, then, is whether the appellants’ claim was reasonably ascertainable during the period between first publication of notice — October 22, 1990, and the three months thereafter, ending on January 22,1991. Since the loan was not in default until February 1,1991, no claim had crystallized against the estate until that time.

The appellants assert that the administratrix of the estate was not diligent in identifying the appellants as potential creditors of the estate who were entitled to actual notice during the nonclaim period. However, there was no evidence of record presented to the probate court on August 20, 1992, to support the fact that she was not. The mere filing of a proffer of facts and the administratrix’s deposition on October 1, 1992, which was a month and a half after the court’s decision on August 20 and the day before the court entered its order, did not translate into evidence under Ark. R. Civ. P. 32. Indeed, there is nothing in the record to suggest that the deposition was brought to the probate court’s attention either at the August 20 hearing or thereafter. We will not consider evidence for purposes of appeal that was not considered by the trial court, regardless of whether the evidence may have merit. Kolb v. Morgan, 313 Ark. 274, 854 S.W.2d 719 (1993). The appellants simply did not satisfy their burden as required by § 28-40-111(a)(4).

The remaining issues raised present no basis for reversal. The appellants did not advance the constitutional points until September 29, 1992, well after the August 20, 1992 hearing where a decision by the probate court was made. We agree with the estate and the probate court that those issues and arguments were not timely made and are not preserved for our review. See Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). Nor do we conclude that there was any evidentiary or procedural basis for the probate court to amend its October 2, 1992 orders pursuant to Ark. R. Civ. P. 59(a).

Affirmed.

       The appellants state that the decedent took title to the Duncan Drive property and then deeded it to his brother. Certain documents in the record suggest that S & T Homes, Inc. may have actually taken title and later been grantor of the deed to the decedent’s brother.


author: Dale Price, Special Chief Justice. David Newbern, Associate Justice,

text:
    ARKANSAS LOUISIANA GAS COMPANY, a Division of Arkla, Inc.; Arkla Exploration Co., Arkoma Production Co.; Stephens Production Company and Stephens, Inc. v. David P. TAYLOR
    92-581
    858 S.W.2d 88
    Supreme Court of Arkansas
    Opinion delivered July 12, 1993

      Daily, West, Core, Coffman & Canfield, by: Jerry L. Canfield, for appellant Arkansas Louisiana Gas Company.

      Ball & Mourton, Ltd., by: E.J. Ball and Andy E. Adams, for appellant Stephens, Inc..

      Charles S. Chambers and Turner & Mainard, by: James C. Mainard, for appellee.
   Dale Price, Special Chief Justice.

At issue in this case is whether a decision in a federal court case operates as res judicata to bar the litigant from participating as a passive claimant in a subsequent class action suit brought in state chancery court.

In 1983, appellee Taylor filed a complaint in federal court in the Western District of Arkansas seeking to cancel or reform thirty-one (31) of his oil and gas leases, twelve (12) of which are included in the present suit. Taylor also requested other relief that was substantially the same as that requested in the present litigation.

A thirteenth lease between the parties known as the Stubblefield Lease was in existence at the time of the federal litigation, but was not included in the 1983 federal court suit. It was, however, stipulated that the Stubblefield Lease was not only in existence, but that gas wells located on the existing drilling unit were in production when the federal court suit was litigated. The district court found in favor of the appellants, and the Eight Circuit Court of Appeals affirmed. Taylor v. Arkansas Louisiana Gas Co., 604 F. Supp. 779 (W. D. Ark. 1985), aff'd, 793 F.2d 189 (8th Cir. 1986).

In 1986, several other mineral rights owners of the Cecil Gas Field with identical fixed rate leases filed suit against the appellants in Franklin County Chancery Court. Three separate actions were filed, and all were consolidated into one class action. A representative plaintiff was named, and the court certified the lessors as a class under ARCP Rule 23. Appellee was a member of the class. The class was defined as:

All those persons holding an interest as lessor in “fixed-price” leases in the Cecil Gas Field, located in Franklin, Sebastian and Crawford Counties, Arkansas, and whose interests are affected by “new” wells drilled by any of the Defendants from and since December 31,1982, including wells to be drilled in the future during the pendency of this action.

The issues, grounds, and relief sought in the class action suit were substantially the same as in Taylor’s complaint filed in 1983.

The appellants answered the complaint with various defenses. They specifically pled that Taylor could not participate in the class action because his rights in the leases had been settled by the federal court, and, therefore, Taylor’s claims were barred by res judicata and collateral estoppel.

On December 13, 1989, the trial court entered an interim decree which found that the parties’ actions over the years effectively modified the “fixed-price” leases into “market-value” leases. The parties then voluntarily entered into a class-action settlement which provided that payment to Taylor was subject to his class claim not being barred by res judicata.

Appellants filed a motion for summary judgment to determine whether Taylor’s participation in the class was barred. The chancellor ruled that the federal court’s decision did not involve the three wells located in a drilling unit that was not included in the federal suit. The chancellor also ruled that appellee’s participation in the class action with respect to wells that were not in the 1983 suit was an additional reason why appellee was not barred by res judicata.

The court denied appellants’ motion for summary judgment. Taylor then filed his own motion for summary judgment. The appellants filed a motion to reconsider their own motion for summary judgment. By agreement of the parties, Stephens’s and Arkla’s motion for reconsideration and Taylor’s motion were submitted to the court for decision on stipulated facts. The trial court granted Taylor’s motion for summary judgment and denied Stephens’s and Arkla’s motion for reconsideration. The order was entered on January 21, 1992, and Stephens and Arkla appeal to this court.

Appellants argue that Taylor is precluded from participation in the settlement agreement by the doctrine of res judicata. This court restated the general rules relating to res judicata in Robinson v. Buie, 307 Ark. 112, 114, 817 S.W.2d 431, 432-33 (1991), as follows:

Under the doctrine of res judicata or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. [Citation omitted.] Privity of parties within the meaning of res judicata means “a person so identified in interest with another that he represents the same legal right.” Spears v. State Farm Fire & Casualty Ins., 291 Ark. 465, 725 S.W.2d 835 (1987). Res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those which could have been litigated.

As stated earlier, Taylor owned thirteen (13) “fixed rate” gas leases at issue here. Twelve (12) of the leases were at issue and litigated in the federal court action, while the thirteenth — the Stubblefield Lease — was in existence when that case was litigated. Some wells on the Stubblefield Lease were in production at the time the federal court suit was litigated and could have been included in the federal litigation, but appellee failed to do so.

Appellants take the position that Taylor’s present claim for relief could have been raised by him in Taylor v. Arkansas Louisiana Gas Co., 604 F. Supp. 779 (W.D. Ark. 1985), and the judgment rendered against Taylor in that case constitutes a complete bar to any recovery in this case. We agree.

[T] he test in determining whether res judicata applies is whether matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein. . . . [W] hen the case at bar is based on the same events and subject matter as the previous case, and only raises new legal issues and seeks additional remedies, the trial court is correct to find the present case is barred by res judicata.

American Standard v. Miller Eng’g, 299 Ark. 347, 351, 772 S.W.2d 344, 346 (1989).

In Ward v. Davis, 298 Ark. 48, 765 S.W.2d 5 (1989), we set forth the required elements for res judicata to apply. We stated:

The claim preclusion aspect of the doctrine bars relitigation in a subsequent suit when: (1) the first suit resulted in a judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or a cause of action which was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies.

Id. at 50, 765 S.W.2d at 6. The chancellor relied upon Harris v. Whitworth, 213 Ark. 480, 211 S.W.2d 101 (1948), in holding that the 1986 federal court decision did not constitute res judicata or collateral estoppel. The chancellor found additional support for his ruling that res judicata did not apply in the fact that this was a class action, that three of the wells had not been drilled at the time of the 1986 federal court decision, and that the three wells were not mentioned in the federal court opinion.

The Harris case, upon which the chancellor relied, was a probate case and is distinguishable on its facts. Those facts were that Ancel Harris sued the administrator of his father’s estate alleging a partnership with his father and asked that he be given possession of the partnership assets to wind up the partnership affairs. Ancel next filed suit against his brother and sister seeking specific performance of one contract between himself and his father that allegedly was an agreement to convey a small farm to him. Both cases were dismissed for failure of proof on February 1, 1986, and were appealed. Ancel thereafter filed a claim against his father’s estate on April 1, 1946, before the affirmance of the decisions by this court. No formal plea of res judicata was interposed, although it was insisted that the affirmance by this court constituted a bar since the witnesses and testimony were substantially the same as in the first two cases.

We held that despite Ancel Harris’s failure to establish an express contract and having been mistaken about the proper action he should have brought, he still had a right to seek to recover from the estate on a quantum meruit basis. The chancellor in this case also cites 46 Am. Jur. 2d Judgments, § 402 (1969), which reads:

The doctrine of res judicata may be said to adhere in legal systems as a rule of justice. Hence, the position has been taken that the doctrine of res judicata is to be applied in particular situations as fairness and justice require and that it is not to be applied so rigidly as to defeat the ends of justice or so as to work an injustice.

We hold that there is no injustice or unfairness involved. Taylor had a full and fair trial in the federal district court and a full and fair appeal of the adverse judgment rendered against him. He also could have litigated the Stubblefield Lease had he so chosen.

There have been no Arkansas cases decided on the issue of whether being certified as a member of a class would in and of itself nullify the application of the doctrine of res judicata. We adopt the position that res judicata can prevent a person from being certified as a class member in a class action. In McDonald v. Heckler, 612 F. Supp. 293 (D.C. Mass. 1985), disability claimants brought an action challenging certain policies of the Secretary of Health and Human Services. The Secretary moved to dismiss the action, and the claimants moved for class certification. One of the Secretary’s arguments for dismissal was that certain claimants who had previously appealed a denial of their benefits to the courts and received a final decision in that proceeding were barred under res judicata from participating in the class action. The federal court held that the claims of those proposed class members who had appealed their denial of benefits to the courts and received a final court decision were barred from participating in the class action by res judicata.

The chancellor should have granted appellant’s motion for summary judgment and dismissed Taylor’s claim.

Reversed and dismissed with prejudice.

Holt, C.J., and Brown, J., not participating.

Dudley, Newbern, and Corbin JJ., concur.

David Newbern, Associate Justice,

concurring. The result reached by the Court’s opinion has my wholehearted support. Just as wholeheartedly, however, I must disagree with the rationale expressed. The correct basis of the opinion should be collateral estoppel and not res judicata.

Since our decision in Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985), we have struggled, with some success, to keep the distinction between the two doctrines clear in our minds and thus clear in application. See Toran v. Provident Life Ins. Co., 297 Ark. 415, 764 S.W.2d 40 (1989); East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986); Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985). I fear this decision is a step back into the past when we tended not to know the difference.

Res judicata does not apply here because the Stubblefield lease is a transaction separate from the others which were sued upon earlier. The majority opinion citation of language from Robinson v. Buie, 307 Ark. 112, 817 S.W.2d 431 (1991), is inapposite because the Stubblefield lease could not have been litigated in the previous action for the reason that it was not sued upon. While that may seem an overly simplistic statement, nothing in the law requires that a party having more than one claim, arising from separate transactions, bring all the claims at one time.

Equally inapposite is the language cited from American Standard v. Miller Engineering, 299 Ark. 347, 772 S.W.2d 344 (1989). This is not a case where the second suit was based on the same “event” or “subject matter” as the previous litigation. It was an entirely different lease; an entirely different transaction although the same issue was involved in the previous litigation as is involved here.

The Restatement of Judgments 2d, § 24., in speaking of claim preclusion, another name for res judicata, states:

(1) When a valid and final judgment rendered in an action extinguishes the plaintiffs claim pursuant to the rules of merger or bar (see §§ 18,19), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.
(2) What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.

Here are two illustrations given under § 24 of the Restatement of series of connected transactions:

A brings an action against B Co., a street railway company, alleging that the motorman was negligent in starting the car while A was alighting and that as a result A broke his arm. After a verdict and judgment for A, A brings a new action against B Co. alleging that after alighting from the car he fell into a trench negligently left by B Co. beside the road and broke his leg. The action is precluded.
On the false accusation that A was engaging in disorderly conduct at a racetrack, B Co., the owner of the track, caused A in successive acts to be assaulted, slandered, physically detained, and prosecuted criminally. A sues B Co. for the assault and slander. If a judgment is rendered that extinguishes the claim, A may not maintain a second action for the detention or for malicious prosecution.

While a plaintiff may not split a cause of action, it is obvious in a case such as this that he has more than one cause of action. Comment h. to § 24 of the Restatement gives this explanation:

h. Joinder of multiple claims. As provided in this Section, a plaintiff who brings an action upon part of a claim and succeeds or loses on the merits may not sue to recover upon the rest of the claim. Thus the plaintiff is under some compulsion not to split a claim. There is no like compulsion on a plaintiff who has a number of claims against a defendant to join them in a single action; he may join them if he wishes, but he is not obliged to do so out of fear that he will lose any claims that he omits to join. Joinder of multiple claims is permissive, not compulsory. Rule 18(a) of the Federal Rules of Civil Procedure is typical. It provides: “Joinder of claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as he has against an opposing party.”
This still leaves the possibility that a plaintiff, actually having a single claim but mistakenly believing that he has a number of them, may commence a limited lawsuit and then run afoul of the rule against splitting. A plaintiff must take this risk into account in framing his action.
* * *

Arkansas R. Civ. P. 18(a) is not different from F.R.C.P. 18(a) in any way that would be significant here.

In my view, the facts of this case fit squarely within the concept of collateral estoppel as that doctrine is described in Restatement of Judgments 2d, § 27:

When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.

The issue now before us was litigated between these parties in the federal proceedings. The decisions there were essential to the judgment rendered. The doctrine of collateral estoppel applies, and Mr. Taylor is precluded from relitigating them.

Dudley and Corbin, JJ., join in this concurrence.