author: Lavenski R. Smith, Justice.

text:
    Charlotte FLENTJE v. FIRST NATIONAL BANK of WYNNE
    99-848
    11 S.W.3d 531
    Supreme Court of Arkansas
    Opinion delivered March 2, 2000

      Richard W. Roachell and Nicana C. Sherman, for appellant.

      Dover & Dixon, RA., by: Charles W. Reynolds, for appellee.
   Lavenski R. Smith, Justice.

Appellant Charlotte Flentje appeals a summary judgment in favor of Appellee First National Bank of Wynne (“FNB” or “the bank”) in her suit alleging gender discrimination under the Arkansas Civil Rights Act. The Arkansas Court of Appeals certified the case to this court because it contains issues of first impression under the Arkansas Civil Rights Act. Hence, we have jurisdiction under Ark. R. Sup. Ct. R. l-2(b)(l). We affirm.

Facts

Flentje began working for FNB in August of 1976. During her eighteen years at the bank, Flentje served as a bookkeeper, a teller, a branch-office manager, and as the bank’s ATM Representative/ Administrator. In September 1993, Flentje underwent a job evaluation by her supervisor, Connie Watts. In this performance review, Watts scored Flentje on a scale of “one” to “five,” with “one” being outstanding and “five” being unacceptable, in twenty-one different work categories. Out of the twenty-one factors, Flentje did not score a “one” in any area, and scored a “five” in the area of “attitude” towards customers and employees. In the other twenty areas, Flentje scored five “fours” for poor work in the areas of quantity of work, speed of work, control over frustration and personal problems, employee relations, and customer relations. Flentje scored six “twos” and eight “threes” in the remaining fifteen areas. Based on this performance review, Flentje was placed on probation for forty-five days.

In January 1994, FNB’s board of directors met and discussed the bank’s low productivity and profits. According to the affidavits submitted by FNB in support of its motion for summary judgment, the bank had been experiencing a significant reduction in income in 1992 and 1993, and the projections for the 1994 fiscal year indicated another potentially low-profit year. The board directed the bank president, Tandy Menefee, to explore methods to reduce costs, including personnel costs, in order to increase profitability. Menefee, in turn, organized a committee of several of the bank’s managers and vice presidents to evaluate options for expense reduction within the bank’s departments. The committee ultimately recommended that four positions be eliminated. FNB terminated Flentje, along with three of her co-workers, on March 21, 1994. Flentje, a single woman, was eight months pregnant at the time. The other positions eliminated included an auditor, a correspondence secretary, and a vice president/business development officer. The bank considered the four to be at-will employees. The bank had no seniority system. Besides the eliminated positions, the bank also canceled creation of two additional new positions, and declined to refill one position when an existing employee quit. In all, seven positions were eliminated in the reduction-in-force decisions.

On April 13, 1995, after her termination, Flentje filed suit in federal court against FNB under Title VII of the federal Civil Rights Act of 1964 and under the Arkansas Civil Rights Act, Ark. Code Ann. §§ 16-123-101 (1993) et. seq. In September 1996, Flentje dismissed her federal lawsuit and filed the instant action in state court. Flentje alleged that FNB terminated her because of pregnancy which, if proven, would constitute gender discrimination expressly prohibited under Ark. Code Ann. § 16-123-107(a)(1). Specifically, Flentje alleged that Menefee and Watts began treating her differently after they learned that she was pregnant, and that Menefee told Watts that Flentje should not have the baby under the circumstances but instead should “get rid of it.” Additionally, Flentje alleged that the bank had discriminated against other employees, including Oscar Thomas, who FNB also discharged in the reduction in force. FNB answered the complaint on November 1, 1996, denying the allegations of discrimination.

Following the initial pleadings, the parties engaged in discovery, including exchanging interrogatories and conducting depositions. The interrogatories and answers to interrogatories were filed with the court. On February 2, 1999, FNB filed a motion for summary judgment, to which it attached affidavits from Menefee, Watts, and Shelby Mitchell, Director of Financial Services for the bank. FNB also attached excerpts from Flentje’s and Menefee’s depositions. In its motion, FNB argued that Flentje could not establish a prima facie case of gender discrimination. FNB argued that Flentje could not show that the Bank used her pregnancy as a determinative factor in her termination nor that the reasons given for the workforce reduction were a pretext for discrimination. FNB further asserted that the Arkansas Civil Rights Act provides that an employer “may avoid liability under this subchapter by showing that his actions were based on legitimate, nondiscriminatory factors and not on unjustified reasons.” See Ark. Code Ann. § 1.6-123-106(c). Using federal cases as guidance because of the paucity of Arkansas cases on point, FNB argued that Flentje did not establish the necessary elements for a prima facie case and that FNB’s reasons for Flentje’s termination were legitimate business reasons.

Flentje responded to FNB’s motion for summary judgment on February 16, 1999, and filed a brief in response, but attached no affidavits or other supporting documents. Flentje argued that FNB’s reasons for terminating her employment were pretextual, and that the actual reason she was terminated was because of her pregnancy. In her brief, Flentje noted that Arkansas case law is nonexistent on this subject, and that federal law, while persuasive, is not binding. The trial court rendered its decision by letter opinion filed April 1, 1999. The trial court granted FNB’s motion for summary judgment. Flentje filed her notice of appeal on April 23, 1999.

Standard of Review

Rule 56 of the Arkansas Rules of Civil Procedure governs disposition of summary-judgment cases. The pertinent language of that rule states:

(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
(e)Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made bn personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

In discussing summary judgment, we recently stated in Mashburn v. Meeker Sharkey Financial Group, 339 Ark. 411, 5 S.W.3d 469 (1999):

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 a 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).
It is further well-settled that once the moving party establishes a prima facie entidement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See Ford Motor Credit Co. v. Twin City Bank, 320 Ark. 231, 895 S.W.2d 545 (1995); Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994).

We recognize a “shifting burden” in summary-judgment motions, in that while the moving party has the burden of proving that it is entitled to summary judgment, once it has done so, the burden then shifts to the nonmoving party to show that material questions of fact remain. See Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999). When the movant makes a prima facie showing of entitlement to a summary judgment, the respondent must discard the shielding cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact. Hughes Western World v. Westmoor Mfg., 269 Ark. 300, 601 S.W.2d 826 (1980). Facts stated in an affidavit must be admissible in evidence if they are to be relied upon in granting or denying summary judgment. Dixie Ins. Co. v. Joe Works Chevrolet, Inc., 298 Ark. 106, 766 S.W.2d 4 (1989).

Summary judgment is not proper, however, “where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable minds might differ.” Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). The object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Id. (citing Rowland v. Gastroenterology Assoc., P.A., 280 Ark. 278, 657 S.W.2d 536 (1983)).

As we further explained in Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998), we will not engage in a “sufficiency of the evidence” determination. We have ceased referring to summary judgment as a drastic remedy. We now regard it simply as one of the tools in a trial court’s efficiency arsenal; however, we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admission on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law. Id. However, when there is no material dispute as to the facts, the court will determine whether “reasonable minds” could draw “reasonable” inconsistent hypotheses to render summary judgment inappropriate. In other words, when the facts are not at issue but possible inferences therefrom are, the court will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds might differ on those hypotheses.

I. The Arkansas Civil Rights Act

The Arkansas Civil Rights Act, originally enacted in 1993, provides citizens of this state legal redress for civil rights violations of state constitutional or statutory provisions, hate offenses, and discrimination offenses. The Act also seeks to prevent retaliatory conduct against those seeking its protection. As the parties herein note, very few cases have been decided under this Act by Arkansas courts. In fact, as one court noted, “there is precious little case law on the subject.”Bobo v. Wolverine Worldwide, Inc., 13 F. Supp. 2d 887 (E.D. Ark. 1998). The Act unequivocally grants to qualified persons the right to be free from employment discrimination “because of gender.” Ark. Code Ann. § 16-123-107(a)(1). The definition section of the Act also makes clear that “because of gender” includes “on account of pregnancy.” Ark. Code Ann. § 16-123-102(1). Hence, should Flentje prove FNB terminated her on account of her pregnancy, she would be entitled to relief under the Act. To date, no Arkansas appellate court has addressed a pregnancy-gender discrimination case. However, Arkansas’s statute specifically provides that courts may look to state and federal decisions interpreting the federal civil rights laws for persuasive authority. A brief review of pertinent federal decisions is in order. Under federal law, a court can review a gender discrimination case under two alternative theories. As the court in Stacks v. Southwestern Bell Yellow Pages, Inc., 996 F.2d 200 (8th Cir. 1993) summarized:

If the plaintiff can demonstrate that an illegitimate criterion was a motivating factor in the employment decision, the burden shifting formula set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), is applied. Under the Price Waterhouse test, once an employee has established that gender was a motivating factor in the employment decision, the burden of persuasion shifts to the defendant, which must show that “it would have made the same decision even if it had not taken the [illegitimate criterion] into account.” Beshears v. Asbill, 930 F.2d 1348, 1353 (8th Cir. 1991). If the plaintiff is unable to produce evidence that directly reflects the use of an illegitimate criterion in the challenged decision, the employee may proceed under the now-familiar three-step analytical framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this test, the burden of persuasion never leaves the plaintiff, but there is a shift in the burden to come forward with evidence: (1) the plaintiff must present a prima facie case consisting of four distinct elements; (2) the defendant must rebut the prima facie case by showing nondiscriminatory reasons for termination; and (3) the plaintiff must show the reasons are pretextual.
Price Waterhouse requires the district court to make an explicit finding whether the case is or is not a “mixed motives” case. This crucial determination establishes which party will bear the burden of persuasion and, as such, the appellate court must have before it a specific finding to review.

In Newton v. Cadwell Laboratories, 156 F.3d 880 (8th Cir. 1998), the Eighth Circuit Court of Appeals further noted that:

After an employee establishes a prima facie case of gender discrimination, the employer must then advance a legitimate, nondiscriminatory reason for the employee’s discharge. See Johnson v. Baptist Med. Ctr., 97 F.3d 1070, 1072 (8th Cir. 1996). If the employer advances a legitimate, nondiscriminatory reason for the employee’s discharge, the employee must present “facts which if proven at trial would permit a jury to conclude that the [employer’s] proffered reason is pretextual and that intentional discrimination was the true reason for the [employer’s] actions.’ ” Id. at 1072 (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 958 (8th Cir. 1995)).

Although not binding on this court, we find this federal analysis helpful and apply it to the instant case.

II. The Shifting Burden of Proof to Rebut FNB’s Nondiscriminatory Termination Reasons

Four elements are necessary to establish a prima facie case of gender discrimination. For Flentje, these would include showing: (1) that she is within the protected class; (2) that she met applicable job qualifications; (3) that her employment was terminated; and (4) that there is some “additional showing” that pregnancy was a factor in her termination. Thomas v. First National Bank of Wynne, 111 F.3d 64 (8th Cir. 1997). Unquestionably, Flentje made sufficient allegations to state a prima facie case. Flowever, she proffered no direct evidence of discriminatory intent, thus making the “mixed-motive” analysis of Price Waterhouse inapposite. We find that the McDonnell Douglas test above, which uses shifting burdens, is the more applicable test on the facts presented here. Because of the prima facie allegations, the burden shifted to FNB to rebut that presumption by showing that it used legitimate, nondiscriminatory factors and not unjustified reasons. To rebut the presumption, FNB cited its low profitability and the need to reduce operating costs, especially in personnel, as a legitimate, nondiscriminatory factor for terminating Flentje and her three co-workers, as well as refusing to create or refill three additional positions at the bank. Regarding Flentje’s termination, Watts, Flentje’s supervisor, recommended terminating Flentje’s employment. Watts’s deposition testimony and supporting affidavit indicated that she would not have suggested Flentje’s termination for her poor work performance alone, but that it was one of the factors which influenced Watts’s decision to recommend Flentje’s termination in the reduction-in-force evaluation. In addition, Watts indicated that she recommended Flentje for termination because her job as ATM administrator could be divided among other employees, and Flentje’s position could be eliminated all together. Watts indicated that she did not recommend Flentje’s termination because she was pregnant, unmarried, or because of her gender. Once FNB provided valid reasons under the statute for termination, it rebutted the presumption created by Flentje’s allegations. The burden then returned to Flentje to present facts which if proven at trial would permit a jury to conclude that FNB’s proffered reason was pretextual and that its actual reason was discriminatory. Bobo, supra.

Flentje did not provide any supporting affidavits or additional evidence with her response to the motion for summary judgment. In fact, she does not argue the facts as presented in FNB’s motion and supporting documents. Instead, Flentje argues that although the facts may not be in dispute, there may still be issues for trial because differing inferences may be drawn from those facts. See Wallace, supra. However, inferences to be drawn from undisputed facts must be more than mere possibilities; they must be such that “reasonable minds” would come to “reasonably” different hypotheses about the bank’s actions. Examining the abstract and record, it is evident that no such reasonable inferences are present and that the appellant thus fails to meet “proof with proof.”

To show the existence of differing inferences, Flentje asserts that she testified in her deposition that her relationship with Menefee “became remote, that he ceased stopping by her office or desk to talk, and rarely looked at her after he learned of her pregnancy.” The excerpt from Flentje’s deposition, which FNB attached with its motion for summary judgment, contains no such statement. Furthermore, Flentje did not attach any depositions or affidavits of her own in support of this contention. The abstract and record contain no such deposition evidence. Consequently, this evidence is not before us, nor was it before the circuit court, and thus cannot be considered. It is well settled that arguments of counsel are not evidence. Johnson v. State, 326 Ark. 430, 450, 934 S.W.2d 179, 189 (1996).

Flentje next asserts that her relationship with Watts, “seemed to become remote.” Flentje’s deposition testimony in the abstract and record indicate the following:

Q: How well did you get along with Connie Watts?
A: We used to get along real well. After I became pregnant, we just didn’t have much to say to each other. I had always tried to help Connie; I stayed a lot of nights and worked with her.
Q: Can you be more specific?
A: It seemed like if I had a question with the ATM, there was either someone in her office with her, or I would walk around to ask her something and she would see me and pick up her phone.
Q: Did she ever tell you she didn’t want to talk to you?
A: No.
Q: Did she ever tell you that there was something about your being pregnant that she didn’t like?
A: No. She told me that if it was her, she would do the same thing.

Based on this exchange, Flentje argues that the reason for the apparent remoteness could be because of the bank’s financial woes, or “another reasonable person could see this change of behavior as shunning and disapproving, and evidence of animus.” There is nothing in Watt’s statements from which a reasonable inference of animus could be drawn. By Flentje’s own admission, she did not confront Watts or ask whether there was a problem. In fact, the only “evidence” is Flentje’s own perception of Watts’s actions. Flentje’s perception, without a supporting affidavit or other form of proof, is insufficient to support a reasonable inference of discriminatory intent. Self-serving statements regarding a witness’s state of mind or her subjective beliefs are no more than conclusions and are not, therefore, competent summary-judgment evidence. Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, (Tex. 1994).

Flentje next argues that her performance review could be viewed in two different ways —■ one, that it was a common tool used to measure employee performance or two, that it was used to create documentation upon which to base the discharge. Flentje also argues that she had not previously been given a performance review, and she questions whether other employees were given the same employment review. Again, however, Flentje provides no proof that she was the only employee who had been given this performance evaluation, or that this was the first time that she had ever been given this evaluation. She provides no evidence that she was the only employee placed on probation, or that pregnancy contributed to the low rating. If more discovery had been needed to produce such evidence, Rule 56(f) of the Arkansas Rules of Civil Procedure specifically provides for it within the context of a summary-judgment motion. Flentje did not file any pleadings under this rule to request more time for discovery.

Next, Flentje refers in her brief to a statement that Menefee allegedly made to Oscar Thomas, an employee who was also terminated in the reduction in force. Flentje argues in her brief that Menefee told Thomas that Menefee had “done his homework” regarding Thomas’s termination. Flentje argues that this carries a negative connotation, and that a reasonable person could infer that Menefee intended to discriminate against Thomas and also against Flentje. FNB’s answer admits that Menefee made the statement to Thomas. Flentje fails, however, to set forth facts connecting the statement to her termination. When opposing a summary judgment supported by affidavit, the responding party cannot rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. Ark. R. Civ. P. 56(e) also makes it clear that the facts set forth must be based upon personal knowledge and be such as would be admissible in evidence. Flentje did not present an affidavit from Thomas regarding this information, and arguments and explanations by an attorney are not proof on which a party can rely in a summary judgment. Johnson, supra.

Flentje next argues that while the bank presented evidence of its financial difficulties, it did not produce some documents that Flentje requested. This failure to produce, Flentje argues, is evidence of that the bank’s financial situation is not as bad as reported. As noted above, Rule 56(f) allows a party in a summary-judgment proceeding to request more time to “meet proof with proof,” and it could have been used to obtain additional discovery.

Finally, Flentje asserts that Watts told her that Menefee told Watts that Flentje should not have the baby, should “get rid of it,” and that she should protect herself. The record and abstract indicate that Flentje alleged this in her complaint, Menefee denied making the statement in both his affidavit and in deposition testimony, and Watts denied in her affidavit to both hearing the statement and telling the same to Flentje. Again, Flentje failed to meet proof with proof other than raising the allegation in her complaint and asking Menefee during his deposition about the statement. We hold that appellant has failed to show that there is a genuine issue as to a material fact or that reasonable differing inferences could be drawn from the undisputed facts. Therefore, the trial court did not err in granting summary judgment.

Affirmed.

       Ark. Code Ann. § 16-123-105(c) provides: When construing this section, a court may look for guidance to state and federal decisions interpreting the federal Civil Rights Act of 1871, as amended and codified in 42 U.S.C.§ 1983, as in effect on January 1, 1993, which decisions and act shall have persuasive authority only.

       In Price Waterhouse the plaintiff demonstrated by documentary evidence and undisputed testimony that the company included gender as a factor in its employment decision.

       In upholding the grant of summary judgment in Thomas (age discrimination case under federal law filed by the three other terminated employees mentioned in this case), the Eighth Circuit Court of Appeals also applied the McDonnell Douglas test as opposed to the Price Waterhouse mixed-motive analysis to uphold the summary judgment. The court determined that there was no “direct evidence” showing a “specific link between the [alleged] discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated” the termination decision by the bank.

       Both federal and Arkansas law recognize that terminations based on legitimate, non discriminatory factors, such as a reduction in force, will allow an employer to avoid liability. See Ark. Code Ann. § 16-23-104(c).


source: Caselaw Access Project

author: Wh. “Dub” Arnold, Chief Justice.

license: Public Domain

text:
    Earl OXFORD, Tommy Lee, and Tom Tinsley v. Jim PERRY, David Harper, Frank Atkinson, and Marcy Porter, In Their Official Capacities As Assessor, County Judge, Collector, and Treasurer for Sebastian County, Arkansas; County of Sebastian, Arkansas; Charlie Daniels, In His Official Capacity As Arkansas Land Commissioner; and Jimmie Lou Fisher, Arkansas State Treasurer; Sebastian County Library Board; Greenwood School District; Hackett School District; Hartford School District; Lavaca School District; Charleston School District; Mansfield School District; Booneville School District; Westark Community College; City of Barling, Arkansas; City of Greenwood, Arkansas
    99-1141
    13 S.W.3d 567
    Supreme Court of Arkansas
    Opinion delivered March 9, 2000

      Oscar Stilley, for appellant.

      Thompson & Llewellyn, P.A., by: James M. Llewellyn, Jr. and John C. Riedel, Deputy Prosecuting Att’y, for appellees Jim Perry, David Harper, Frank Atkinson, and Marcy Porter, and Greenwood School District, Hackett School District, Hartford School District, Lavaca School District and Booneville School District.

      Smith, Maurras, Cohen, Redd, & Horan, PLC, by: S. Walter Maurras and Matthew Horan, for appellee Westark College.
   Wh. “Dub” Arnold, Chief Justice.

This case presents an appeal from a decision of the Sebastian County Circuit Court, Greenwood District, granting summary judgment in favor of all appellees and dismissing appellants’ claims with prejudice. The underlying lawsuit involved an alleged illegal exaction and sought recovery of real-property tax payments assessed for 1996. Notably, appellants also alleged that the lawsuit constituted a refiling of a previous chancery suit, filed on March 11, 1997, in the Fort Smith District of Sebastian County (“Oxford I”). In support of the circuit court’s decision dismissing the instant case, appellees contend that (1) the circuit-court case cannot relate back to Oxford I, and (2) appellants’ claims are barred by the voluntary-payment rule. We agree, and we affirm the circuit court’s grant of summary judgment.

Appellant Earl Oxford is, and was at all times relevant to this action, a citizen of the Greenwood District of Sebastian County, Arkansas. Accordingly, on October 9, 1997, Oxford paid his 1996 real-property taxes to the Greenwood District. Similarly, appellants Tommy Lee and Tom Tinsley are, and have been at all relevant times, citizens of the Greenwood District. Tommy Lee paid his 1996 real-property taxes to the Greenwood District on October 6, 1997, and Tom Tinsley paid his taxes to the Greenwood District on October 10, 1997. Significantly, none of the appellants paid real-property taxes in the Fort Smith District of Sebastian County for 1996. Moreover, appellants do not contend that their tax payments were coerced.

Although we disagree that this case arose from Oxford I, (or from any other previous case filed on the same claim with different parties in a different court), we believe it necessary to review the history of Oxford I to distinguish the instant case. First, appellant Earl Oxford was also the plaintiff in Oxford I. However, appellants Tommy Lee and Tom Tinsley were not parties in that case. Second, the chancery court dismissed Oxford I because the plaintiff’s complaint failed to state facts upon which relief could be granted and because the court lacked proper venue. Third, prior to the chancery court’s dismissal but on the day set for hearing the motions for dismissal, plaintiff’s attorney, Mr. Oscar Stilley, (also appellants’ attorney), attempted to amend the Oxford I complaint by adding additional Fort Smith district plaintiffs to cure the venue problem. The chancellor refused to accept the amended complaint or any other pleading. Fourth, and most importantly, plaintiff Oxford took no appeal from the Oxford I decision.

Ultimately, the chancellor in Oxford I determined that venue was improper because the plaintiff’s residence in the Greenwood District of Sebastian County placed him in a different judicial jurisdiction than the Fort Smith district. Sebastian County is a dual-jurisdiction county, divided into the Fort Smith District, made up of the City of Fort Smith, and the Greenwood District, comprised of the remainder of the County. Each judicial district has its own courthouse and is a separate taxing entity. See Ark. Const, art. 13, § 5. Significantly, the two districts are treated as separate counties for purposes of determining venue. See Prairie Implement Co. v. Circuit Court of Prairie County, 311 Ark. 200, 844 S.W.2d 299 (1992). Venue for an action against public officers must be brought in the county where the cause arose, Ark. Code Ann. § 16-60-102 (1987), and venue is not transitory but local. Therefore, Oxford could not challenge his Greenwood District taxes by filing suit against officials in the Fort Smith District.

Rather than appealing the chancery court’s ruling in Oxford I, Earl Oxford and two new plaintiffs, Lee and Tinsley, filed the instant action in the Sebastian County Circuit Court, Greenwood District, claiming that the action constituted a refiling of Oxford I. The circuit court disagreed and concluded that Oxford I was not a predecessor action to the current action. In fact, the circuit court reasoned that the chancery court never had jurisdiction over the original claim because Oxford was not a citizen of, and did not pay taxes to, the Fort Smith district. Also, the court determined that the statute of limitations was not tolled because the plaintiffs were different in the two cases.

Moreover, because all of the appellants paid the challenged 1996 taxes prior to filing their lawsuit on March 19, 1999, the circuit court found that those payments were voluntary. We have held that taxes paid after a complaint is filed are deemed involuntary and recoverable. See Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998). Consequently, the circuit court dismissed appellants’ claims based upon the longstanding rule that voluntary payment of taxes is a bar to recovery, even when an illegal-exaction claim is based on constitutional grounds. See Mertz v. Pappas, 320 Ark. 368, 896 S.W.2d 593 (1995); City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982).

From the circuit court’s order granting summary judgment in favor of appellees comes the instant appeal. Essentially, appellants suggest that they may benefit from an unappealed and dismissed chancery lawsuit, Oxford I, by (1) filing a new action on the same claim in circuit court, (2) arguing that the chancery court erred by dismissing Oxford I, (3) and appealing the circuit court’s decision to this court. We find no merit in appellants’ arguments, and we affirm.

I. Standard of review

Although appellants’ vehemently challenge the correctness of the chancery court’s decision dismissing Oxford I, the sole issue properly before us on appeal is whether the circuit court erred by granting summary judgment in favor of appellees. Appellants’ confusion of the issues on appeal is made apparent by its erroneous discussion of the proper standard of review. They contend that we should apply the standard of review applicable to appeals from chancery decisions. However, as appellees correctly point out, this is not an appeal from any decision of a chancery court. Rather, this appeal arises from a decision of the Sebastian County Circuit Court, Greenwood District, granting appellees summary judgment.

In reviewing summary-judgment cases, this court need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. The moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the fight most favorable to the resisting party, and any doubts must be resolved against the moving party. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (1999); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992). However, if a moving party fads to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Collyard v. American Home Ins. Co., 271 Ark. 228, 230, 607 S.W.2d 666, 668 (1980).

II. Voluntary-payment rule

In an effort to avoid application of the voluntary-payment rule, appellants attempt to bootstrap this action to Oxford I. However, Oxford I was not appealed and when dismissed, the action was completed, the results were binding on the parties, and the lawsuit is treated as having never been brought. See Austin v. Austin, 241 Ark. 634, 409 S.W.2d 833 (1966). Therefore, appellants cannot revisit the chancery decision in this appeal. Accordingly, we disregard all of appellants’ arguments relating to the propriety of a chancery court’s decision in an unrelated case.

Here, the circuit court granted summary judgment on the basis of the voluntary-payment rule. The reasoning underlying the common-law rule is that governmental entities budget annually and ordinarily spend revenues within each tax year. When the government is on notice that it may be required to refund those taxes, it can make allowance for a possible refund. See Mertz v. Pappas, 320 Ark. 368, 896 S.W.2d 593 (1995) (citing Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d at 578 (1995)). However, if the governmental entity allowed refunds for taxes voluntarily paid in previous years, current and future funds might be required to make the refund and governmental operations would be jeopardized. Id. In the instant case, each of the appellants paid their real-property taxes prior to filing the circuit-court action on March 19, 1999. Therefore, the circuit court’s grant of summary judgment was appropriate.

Finally, appellants argue that the savings statute, Ark. Code Ann. § 16-56-126 (1987), effectually revived the dismissed and unappealed chancery action into the circuit-court case. The savings statute extends the time for a plaintiff to correct a dismissal without prejudice when the statute-of-limitations would otherwise bar the suit. Here, however, the appellants’ argument is entirely unsupported by the facts and the law. Appellants made no argument that any statute-of-limitation period has run with regard to the chancery proceeding and cite no authority for applying the savings statute under the instant facts.

In sum, we conclude that appellants may not maintain a claim for past taxes voluntarily paid, and they may not avoid that fact by resurrecting a previously decided and unappealed case from another court. Viewed in the light most favorable to appellants and resolving any doubts against appellees, we affirm the circuit court’s grant of summary judgment because the challenged taxes were voluntarily paid before the instant suit was filed.


author: TOM GLAZE, Justice.

text:
    Michael ALLISON v. David Kelly DuFRESNE
    99-1224
    12 S.W.3d 216
    Supreme Court of Arkansas
    Opinion delivered March 9, 2000

      Jeanne L. Denniston, for appellant.
    No response.
   TOM GLAZE, Justice.

Appellant Michael L. Allison is an attorney who represented Dottie (DuFresne) Moore in a change-in-custody proceeding which was initiated by Moore’s former husband, David DuFresne. On the date the custody case was set for hearing, Allison did not appear. The chancellor summarily held him in contempt and fined him for failing to obtain the court’s permission to withdraw as Moore’s counsel. Allison seeks reversal of the court’s ruling solely on the basis that, because the court’s action was in the nature of imposing criminal contempt, Allison was first entitled to notice and a show-cause hearing.

To reach Allison’s argument, we need to review the relevant events leading to his being held in contempt. On February 11, 1999, David DuFresne filed his action, seeking custody of his and Moore’s child. Moore engaged Allison as counsel to represent her. Allison filed a response on Moore’s behalf denying DuFresne’s allegations, and DuFresne’s attorney then obtained a June 16, 1999, trial setting. The abstract of record next reflects that, on June 11, 1999, Allison filed a motion to be relieved as Moore’s attorney, asserting he had not been paid a fee. Allison further alleged that, on April 7, 1999, he had notified Moore of the June 16, 1999, setting. He also averred that on June 9, 1999, he had attempted to serve Moore with a copy of his motion to be relieved as counsel. The postal service receipt showed Moore had received Allison’s motion on Monday, June 14, 1999. Moore apparently tried to engage other counsel, Allen Waters, on the evening of June 14, but Waters said that he could only agree to represent Moore if a continuance of the June 16 trial could be obtained.

On the day of the Wednesday, June 16 hearing, Moore appeared with Waters, who explained to the chancellor that he was only recently engaged, and would need a continuance if he was to enter an appearance and represent Moore. The chancellor asked of Allison’s whereabouts since he had not been relieved as Moore’s attorney. The chancellor said that she had talked to Allison and DuFresne’s counsel on June 11 and 14, and told them if they wanted a hearing on Allison’s motion to be relieved as counsel, they should set up a conference call. No such call was arranged. In view of these events and Allison’s failure to appear on June 16, the chancellor found Allison in contempt, fined him $250.00, and reported him to the Professional Conduct Committee.

It is setded law that an act is contemptuous if it interferes with the order of the court’s business or proceedings or reflects upon the court’s integrity. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995); Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 11 (1993). Our court has also made it clear that Rule 64(b) of the Arkansas Rules of Civil Procedure provides a lawyer may not withdraw from any proceeding or from representation of any party to a proceeding without permission of the court in which the proceeding is pending. Dean v. Williams, 339 Ark. 439, 6 S.W.3d 89 (1999). Significantly, our court has further held that, in these attorney-withdrawal matters, the trial court must play an active role in determining whether the requirements of Rule 64(b) have been met. Id. This rule is aimed at protecting the client’s interests, and the trial court must look at a motion to withdraw from the point of view of the client, not the attorney. Id.

While it is clearly an attorney’s burden to comply with the established principles above, a trial court cannot summarily impose criminal contempt and penalties for violating those principles unless such contemptuous acts are committed in the immediate view and presence of the court. See Ark. Code Ann. § 16-10-108(c) (Repl. 1999). In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his defense. Id. These statutory requirements are consistent with our case law where this court has held that criminal penalties may not be imposed on an alleged contemner who has not been afforded the protections that the constitution requires of criminal proceedings. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). The Fitzhugh court held the following: “The Due Process Clause, as applied in criminal proceedings, requires that an alleged contemner be notified that a charge of contempt is pending against him and be informed of the specific nature of that charge.” Id. at 140, 752 S.W.2d at 277. Before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties imposed, and the command must be express rather than implied. Arkansas Dept. of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998).

There are some jurisdictions which have held that, where counsel fails to appear when his case has been called, his absence has occurred “in the presence of the court” and constitutes a direct contempt. See 17 Am. Jur. 2d Contempt § 28 (1990); John E. Theuman, Annotation, Attorney’s Failure to Attend Court, or Tardi ness, as Contempt, 13 A.L.R. 4th 122, at § 9 (Supp. 1999). However, the greater weight of authority appears to hold that, although the absence of an attorney from a trial may constitute contempt, it occurs outside of presence of court and thus is indirect contempt which may not be summarily punished. Id., 13 A.L.R. 4th 122, at § 10. This overriding general principle is consistent with Arkansas’s statutory and case law on this subject as discussed above, which requires that the alleged contemner be informed of the specific nature of the trial court’s charge.

In fairness to the trial court here, it made an unsuccessful effort to contact attorney Allison by directing opposing counsel to find Allison to ask him to attend court, but these efforts by the court also show it was attempting to gather reasons why Allison had failed to show at the June 16 hearing — information the trial court could only acquire through holding a hearing. In this case, the chancellor apparently made no mention of Rule 64(b), nor did she order Allison to arrange a telephone conference or schedule a hearing regarding his motion to be relieved as Moore’s counsel. In this respect, we point out that our court has held counsel to be in direct contempt of court for his failure to appear as scheduled pursuant to a show-cause order. See Streett v. State, 331 Ark. 139, 959 S.W.2d 744 (1998). Here, however, there was no order, so the result is different.

In the instant case, Allison’s acts, or failures to act, cannot be said to have taken place in the immediate view and presence of the court. Allison suggests that, if given the notice and opportunity, he could have offered a meritorious defense that he was not in contempt. That, of course, is yet to be shown or decided, and nothing we have said should be taken to mean that there is no evidence to support a finding of contempt. We reverse only because this criminal contempt proceeding involved indirect contempt which requires that Allison be given a show-cause hearing. We must reverse and remand so the chancellor can afford him such a hearing.

       Permission to withdraw may be granted for good cause shown if counsel seeking permission presents a motion therefore to the court showing he (1) has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel; (2) has delivered or stands ready to tender to the client all papers and property to which the client is entitled; and (3) has refunded any unearned fee or part of a fee paid in advance, or stands ready to tender such a refund upon being permitted to withdraw.

       We are aware of the court of appeals’ case of Arkansas Department of Human Services v. Gruber, 39 Ark. App. 112, 839 S.W.2d 543 (1992), where DHS was held in contempt and assessed a fine when it failed to appear at a placement hearing in juvenile court. It appears there that the trial court found DHS summarily in contempt for failing to appear as ordered, but the court of appeals reversed because DHS was deprived of procedural due process because no notice of the contempt was given to DHS; the case was remanded so the chancellor could conduct a show-cause hearing. Thus, the court of appeals has held that, even though the alleged contemner was ordered to appear and did not, DHS was still entitled to a hearing before being found in contempt. We need not determine whether the Gruber decision is correct because here the trial court issued no order for Allison to appear, which is a fact that is significant when determining whether an attorney or party can be summarily punished for his or her absence.


author: TOM Glaze, Justice.

text:
    Horton O. ELZEA, John Hoyle, and Ronald D. Williamson v. Jim PERRY, David Hudson, Frank Atkinson, and Marcy Porter, In Their Official Capacities As Assessor, County Judge, Collector, and Treasurer for Sebastian County, Arkansas; County of Sebastian, Arkansas; Charlie Daniels, In His Official Capacity As Arkansas Land Commissioner; Jimmie Lou Fisher, Arkansas State Treasurer; Fort Smith School District; the Fort Smith Public Library Board; Westark Community College; City of Fort Smith, Arkansas
    99-1142
    12 S.W.3d 213
    Supreme Court of Arkansas
    Opinion delivered March 9, 2000

      Oscar Stilley, for appellant.

      Thompson & Llewellyn, P.A., by; James M. Llewellyn, Jr.; and John C. Riedel, Deputy Prosecuting Att’y, for appellees Jim Perry, David Harper, Frank Atkinson, and Marcy Porter, and Fort Smith School District.

      Smith, Maurras, Cohen, Redd, & Horan, PLC, by; S. Walter Maurras and Matthew Horan, for appellee Westark College.

      Daily & Woods, P.L.L.C., by; Jery Lee Canfield, for appellee City of Fort Smith.
   TOM Glaze, Justice.

This appeal actually arises from two earlier cases. The first was an illegal-exaction case filed by attorney Oscar Stilley on behalf of Earl Oxford on March 11, 1997, in the Chancery Court of the Fort Smith District in Sebastian County. Named as defendants were the Sebastian County assessor, county judge, collector, and treasurer, and the State Treasurer and Land Commissioner. Plaintiff Oxford’s suit challenged the assessment of 1996 property taxes under Act 758 of 1995. The taxes at issue in that suit were paid in 1997, but because Oxford was a resident of Barling, Arkansas, he was unable to allege that he owned property in the Fort Smith District or paid taxes on any property in that district. Sebastian County is divided into two districts, the Fort Smith District and the Greenwood District. See Ark. Const, art. 13, § 5. These two districts are treated as separate counties for purposes of determining venue. See Prairie Implement Co. v. Circuit Court of Prairie County, 311 Ark. 200, 844 S.W.2d 299 (1992); Jewett v. Norris, 170 Ark. 71, 278 S.W. 652 (1926).

In November of 1998, Stilley amended Oxford’s complaint to add all of the cities, towns, and school districts of Sebastian County, as well as Westark Community College and the Fort Smith Public Library Board. In December 1998, the various defendants filed motions to dismiss under Ark. R. Civ. P. 12(b)(6), for failure to state a claim for relief, and also under Ark. R. Civ. P. 8(a), for failure to allege sufficient facts showing Oxford was entitled to relief. In addition, the defendants objected to venue and jurisdiction, because Oxford, as a resident of the Greenwood District, had no standing to bring an action in the Fort Smith District. Westark also offered as a defense the argument that the taxes were paid voluntarily. Westark’s defense was based on the recognized rule that taxes paid after the filing of a suit seeking a tax refund are considered involuntarily paid and recoverable. It is this rule that played significantly in the two suits Stilley’s plaintiffs filed.

A hearing on the motions to dismiss was set for February 1, 1999. That same morning, Stilley attempted to file a Second Amended Complaint which would have added plaintiffs who had paid taxes in the Fort Smith District. The chancellor refused to permit the amendment on the grounds that it was untimely. On February 3, 1999, the chancellor entered an order dismissing the complaint without prejudice on the two following grounds: (1) lack of venue, as Oxford did not live in the district in which the suit was filed, and (2) Oxford’s failure to state sufficient facts under Rule 8(a), thus depriving the court of subject matter jurisdiction.

Oxford never filed a notice of appeal from the February 3 decision. Instead, on March 15, 1999, Stilley filed a new complaint against the same defendants named in Oxford’s suit, but this second suit was filed on behalf of a new set of plaintiffs — Horton Elzea, John Hoyle, and Ronald Williamson — each of whom actually owned property in Fort Smith. Stilley again filed this lawsuit in the Fort Smith District, but in circuit court, rather than chancery court. Stilley and his new plaintiffs again challenged the 1997 payment of 1996 property taxes; however, it is undisputed that these taxes were paid before the Elzea plaintiffs filed their lawsuit.

The defendant taxing entities again moved to dismiss under Rules 12(b)(6) and 8(a), and also defended on the grounds that, because the taxes were voluntarily paid before suit was filed, any recovery of those tax monies was barred. The Elzea plaintiffs, on the other hand, urged that their suit was merely a re-filing of the original suit filed by Oxford, and that the taxes complained of were paid and collected after that suit was initiated and therefore were involuntary.

Ultimately, both the Elzea plaintiffs and the defendants moved for summary judgment. The circuit court granted summary judgment for the defendants, finding that this second suit involved new plaintiffs and was filed in a different court, and was thus not a “refiling” of the original chancery action, as the plaintiffs contended. Because the second suit was brought in circuit court two years after the Elzea plaintiffs had already paid the 1997 taxes in issue, the court found the plaintiffs were barred from recovering taxes that they had voluntarily paid.

We find this to be a correct application of our law. In Austin v. Austin, 241 Ark. 634, 409 S.W.2d 833 (1966), this court held that “a dismissal . . . leaves the situation as though no suit had ever been brought, and it has the effect of an absolute withdrawal of the claim and leaves [the] defendant as though he had never been a party.” Austin, 241 Ark. at 638, 409 S.W.2d at 836. Because the chancellor dismissed Oxford’s original action, that suit is treated as though it never existed. For that reason, Stilley’s second suit brought on behalf of the Elzea plaintiffs could not relate back to the date of the original chancery suit, thus removing the basis for their claim that the 1996 taxes they paid in 1997 after the Oxford action were paid involuntarily. At the time of the payment of the disputed taxes, none of the circuit court plaintiffs were parties to the action challenging the assessment of property taxes. Plaintiffs do not contend their tax payments were coerced. Therefore, there is no basis for the imposition of an “involuntary” status on any tax payments made by the plaintiffs to this suit.

Arkansas has consistently followed the common-law rule that prohibits the recovery of voluntarily paid taxes, except where a recovery is authorized by a statute without regard to whether the payment is voluntary or compulsory. We follow this rule even when an illegal-exaction claim is based, as it was here, on constitutional grounds. See Mertz v. Pappas, 320 Ark. 368, 896 S.W.2d 593 (1995); City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982). We have held that taxes paid after the filing of a complaint are considered to be paid involuntarily, and thus recoverable. See Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998). In this case, as we have pointed out, the taxes were assessed in 1996 and paid in 1997. The Elzea lawsuit filed by Stilley was not filed until 1999; therefore, because the taxes were deemed voluntarily paid and unrecoverable by the plaintiffs, the circuit court properly granted the defendants’ motions for summary judgment.

The plaintiff-appellants make one other argument which we need not address. They argue that the savings statute, Ark. Code Ann. § 16-56-126 (1987) should apply and that it should somehow recreate an “involuntary taxpayer” status. However, this statute is only used when the original statute of limitations period expires in the interim between the fifing of the complaint and the time at which either a nonsuit is entered or the judgment is reversed or arrested. The statute “only applies to those causes of action which ... would otherwise be barred before the running of one year from the time of taking such nonsuit.” Shelton v. Jack, 239 Ark. 875, 395 S.W.2d 9 (1965) (citing Love v. Cohn, 93 Ark. 215, 124 S.W.2d 259 (1909)). However, in this situation, the original statute of limitations had not yet expired, and thus, the savings statute is simply irrelevant.

For the reasons set out above, we affirm the circuit court’s order granting the defendants’ motions for summary judgment.

       The defendant-appellees raise a number of other arguments for reversal with respect to the propriety of the appellants’ notice of appeal. For instance, the appellees point out that the plaintiff-appellants nominally appealed from the order of the circuit court, but the only issues and arguments raised in the appellants’ brief concern the order dismissing the suit from chancery court, from which no notice of appeal was ever filed. However, while there appears to be some merit in some of the appellees’ arguments, we do not reach them, because we decide the case on the basis of the voluntary-payment rule.

       Defendant-appellee Westark Community College also points out, correctly, that Ark. R. Civ. P. 15(c) cannot be used to somehow relate the Elzea suit back to the Oxford suit. This rule permits the amendment of a pleading to “relate back” to the date of the original pleading. Its purpose is not to permit the relation back of an entirely separate lawsuit to a suit that was properly dismissed and never appealed.


author: Donald L. Corbin, Justice.

text:
    George HAMAKER and Jane Hamaker Bowman v. June Hamaker STRICKLAND
    99-1274
    12 S.W.3d 210
    Supreme Court of Arkansas
    Opinion delivered March 9, 2000

      Wells Law Office, by: Bill G. Wells, for appellant.

      Haley, Claycomd, Roper, & Anderson, by: Richard L. Roper, for appellee.
   Donald L. Corbin, Justice.

Appellants George Hamaker and Jane Hamaker Bowman appeal the judgment of the Bradley County Probate Court denying their claim against the estate of Robert Lee Hamaker. For reversal, Appellants argue that the probate court erred: (1) in finding that the statute of limitations barred their claim against the estate; and (2) in denying their petition to compel an inventory of the estate. This case was certified to us from the Arkansas Court of Appeals pursuant to Ark. Code Ann. § 28-l-116(a) (1987); thus our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 — 2(d). We conclude that the probate court was without jurisdiction to decide this matter, and we reverse.

This case involves a dispute over proceeds from the sale of timber from land owned as a tenancy in common. The record reveals that Robert Lee Hamaker and Reaves Hamaker were brothers who inherited forty acres of land in Banks, Arkansas, from their father George Hamaker. Robert married several times, but never had any children. Reaves married and had two children, Appellants. Robert lived on the land in Banks, while Reaves moved his family to Florida. Following the death of their father, Appellants gained title to the forty acres of land as tenants in common with their uncle.

In 1988, Robert sold $15,970.04 worth of timber from the land. In 1990, he again sold $32,405.72 worth of timber. He never notified Appellants, his co-tenants, of these sales, or shared the proceeds with them. According to Appellants, they visited this property very little. They contend that they did not learn of the timber sales until after their uncle’s death on June 6, 1995. Appellant George Hamaker testified that he noticed much of the timber had been removed from the land when he visited the property after his uncle’s funeral. George in turn notified his sister Jane of the timber removal. Appellants then made inquiries regarding the timber and discovered the two prior sales by their uncle.

Robert died testate, and his will was admitted to probate on June 19, 1996. That will named his widow, Appellee June Hamaker Strickland, as sole beneficiary, as well as personal representative of his estate. The will also provided that in the event his wife predeceased him, his estate would then pass to Appellants. Notice of the will was first published on June 26, 1996. Appellants, however, claimed they did not receive notice until September 21, 1996. Nevertheless, they filed a claim against the estate for $24,187.88, one-half of the proceeds from the sale of the timber, on September 16, 1996. Appellee filed a response, arguing that the claim was barred by the statute of limitations. Appellants subsequently filed a petition with the probate court seeking an order to compel an inventory of their uncle’s estate.

A hearing was held on March 1, 1999, during which the parties stipulated to the facts surrounding the two timber sales. Appellants testified that they visited the land infrequently and did not learn of the timber removal until after the death of their uncle. After receiving briefs on the issue, the probate judge found that the statute of limitations began to run at the time that Appellants’ uncle sold the timber, thus barring Appellants’ claim. Furthermore, he denied the parties’ motion to compel an inventory of the estate. From these orders come this appeal.

Appellants argue on appeal that their uncle as a tenant in common was a fiduciary and had a confidential relationship with them. Therefore, Appellants assert that the statute of limitations did not begin to run until they received notice of the sale. Appellee responds that Appellants’ cause of action sounds in trespass, and that the three-year statute of limitations began to run at the time of the trespass. Although neither party raises the issue, we reverse on the ground that the probate court lacked jurisdiction to hear this matter.

Subject-matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976). In fact, this court has a duty to determine whether or not we have jurisdiction of the subject matter of an appeal. Id. The probate court is a court of special and limited jurisdiction, even though it is a court of superior and general jurisdiction within those limits. Smith v. Smith, 338 Ark. 526, 998 S.W.2d 745 (1999); Hilburn, 259 Ark. 569, 535 S.W.2d 810. It has only such jurisdiction and powers as are expressly conferred by statute or the constitution, or necessarily incident thereto. Id. The constitution vested in the probate courts exclusive original jurisdiction “in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law.” Ark. Const, art. 7, § 34, as amended by Amend. 24, § 1; Hilburn, 259 Ark. at 572, 535 S.W.2d at 812. The judge of the probate court shall be responsible for trying all issues of law and of facts arising in causes or proceedings within the jurisdiction of his court. Id. The probate court, however, lacks jurisdiction to determine contests over property rights and titles between the personal representative and third parties or “strangers” to the estate. Smith, 338 Ark. 526, 998 S.W.2d 745.

We have defined a “stranger” to the estate as one who is not an heir, distributee or devisee of the decedent, or a beneficiary of or claimant against the decedent’s estate. Id. It is true that Appellants in the present matter were designated as contingent beneficiaries in their uncle’s will. Mrs. Hamaker, however, did not predecease her husband, and thus, became the sole heir to his estate. Appellants, therefore, can no longer be considered beneficiaries of their uncle’s estate.

Moreover, Appellants cannot be considered claimants to the estate. In Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994), this court held that the appellants’ claim to real property based on an alleged oral contract between them and their father and their status as remaindermen were not claims against the estate, but rather represented claims made adversely to the estate by those who were not beneficiaries of the estate. That is the situation now before us. Appellants’ claim against the estate is not a claim made as beneficiaries; rather, it is a claim made adversely to the estate by parties with no legal or equitable rights under the estate. The following passage from Ellsworth v. Cornes, 204 Ark. 756, 165 S.W.2d 57 (1942), proves enlightening to the present situation:

The general rule, supported by our own cases, is stated in Gary’s Probate Law, 3d Ed., § 23, p. 20, relative to the power of the probate court to determine the title to contested property, and it is limited as to contestants “to those interested in such property as equitably or legally entitled to some distributive share therein or in the residue, and to creditors who voluntarily and upon general notice and without special citation present their claims. All controversies between executors, administrators and guardians, or those interested in the particular estate, and other persons not interested in it, must be settled in another forum.” King v. Stevens, 146 Ark. 443, 225 S.W. 656, and Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808.

Accordingly, we cannot say that Appellants are claimants against their uncle’s estate simply by virtue of the fact that they claim entitlement to money owed to them by their uncle at the time of his death. Because Appellants are strangers to the estate, the probate court lacked jurisdiction to decide the dispute over the timber proceeds. The foregoing decision does not preclude Appellants from filing a cause of action in a court with proper jurisdiction.

Reversed and dismissed without prejudice.


author: RAY Thornton, Justice.

text:
    Richard Ottis CARMICHAEL v. STATE of Arkansas
    CR 99-1121
    12 S.W.3d 225
    Supreme Court of Arkansas
    Opinion delivered March 9, 2000

      William R. Simpson, Jr., Public Defender; Jeffrey A. Weber, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   RAY Thornton, Justice.

Appellant Richard Ottis Carmichael was convicted of capital murder and sentenced to life imprisonment. Pursuant to Anders v. California, 386 U.S. 738 (1976), and our Ark. Sup. Ct. R. 4 — 3(j)(1), his attorney has filed a motion to withdraw and a brief stating that there is no merit to the appeal previously filed with this court. Appellant’s brief filed by counsel offers two rulings adverse to appellant and states that there are no meritorious grounds for appeal. The State agrees that there is no merit to appellant’s appeal and appellant has not filed a pro se brief arguing additional points for reversal. Based on our review of the issues raised by appellant, together with our consideration of the entire record pursuant to Ark. Sup. Ct. R. 4-3(h), we conclude that there is no merit to the issues raised by appellant, and further that there are no errors with respect to rulings adverse to appellant. Accordingly, we affirm appellant’s conviction and sentence, and grant counsel’s motion to be relieved.

The State charged appellant with capital murder for causing the death of Ms. Terry Kirton, alleging that he murdered the victim with the premeditated and deliberated purpose of causing her death. The evidence presented at trial revealed that police officers responding to a call from appellant at his apartment on the morning of September 9, 1997, found the victim’s partially covered body lying on the couch. Appellant told the officers that after a day of drinking together, he had gone to sleep and awoke to find Ms. Kirton unresponsive. He also volunteered that he had not killed her, a statement the officers found odd because her death was, at that time, considered only a “suspicious death,” not a homicide.

Over the course of the investigation, detectives conducted several interviews with appellant about the circumstances of the victim’s death. Initially, appellant told detectives that he had invited the victim over and they had gotten drunk and had sex several times during the day. He said that the last sex act had taken place on the couch and he had then fallen asleep. When he awoke, he found blood on the floor and on the toilet seat and could not rouse Ms. Kirton.

After the medical examiner began his autopsy of the body, he notified police that Ms. Kirton had suffered trauma to the anal area and that her death appeared to be a homicide. Officers then sought and received consent to search appellant’s apartment and discovered several items investigators described as “sexual devices,” including a pair of table legs wrapped in electrical tape and a length of plastic pipe attached to a pair of boxer shorts. Upon further questioning, appellant admitted that the couple had anal sex and that he had requested the victim use one of the devices on him, but he denied having used any foreign objects on her. He denied that she was bleeding when he went to sleep, or that he had harmed her in any way.

Three days later, after the investigating officers received the medical examiner’s report concluding that the cause of Ms. Burton’s death was homicide, appellant agreed to give police a third statement. He repeated his earlier version of meeting the victim in MacArthur Park and getting drunk and having “rough sex” with her in his apartment, but added that he had “lost control” during sex and had hit her, and that the two had fought. He also said that they had used the sexual devices found by the police on one another, including inserting one of them in the victim rectally. The medical examiner’s report had revealed that the cause of death was strangulation.

Sufficiency of the Evidence

The first adverse ruling we address is the trial court’s denial of appellant’s motion for a directed verdict. At the close of the State’s case, appellant moved for a directed verdict, arguing that the evidence was insufficient to establish that he had acted with premeditation and deliberation. The trial court denied the motion, and, because we find no error in this ruling, we affirm.

On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Cobb v. State, 340 Ark. 240, _ S.W.3d _ (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. The evidence may be either direct or circumstantial. Id. Only evidence supporting the verdict will be considered. Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Whether the evidence excludes every hypothesis is left to the jury to decide. Guilt may be proved in the absence of eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Id.

The evidence presented at trial was sufficient to support appellant’s capital murder conviction. Pursuant to Ark. Code Ann. § 5-10-101(a)(4) (Repl. 1997), a person commits capital murder if “with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.” Id. Premeditated and deliberated murder occurs when it is the killer’s conscious object to cause death and he forms that intention before he acts and acts as a result of a weighing of the consequences of his course of conduct. See Davis v. State, 251 Ark. 771, 475 S.W.2d 155 (1972). Premeditation is not required to exist for a particular length of time. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). It may be formed in an instant and is rarely capable of proof by direct evidence but must usually be inferred from the circumstances of the crime. Id. Similarly, premeditation and deliberation may be inferred from the type and character of the weapon, the tnanner in which the weapon was used, the nature, extent, and location of the wounds, and the accused’s conduct. Id. One can infer premeditation from the method of death itself where the cause of death is strangulation. Id. (citing Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997).

The autopsy revealed that the victim had numerous abrasions and bruises on her body and face, including a contusion to her skull and a laceration on her left ear. In addition, she suffered injuries to her liver and intestines consistent with having been hit or kicked. She also had extensive hemorrhages in her scalp tissue and in the inner aspects of her skull, which the medical examiner testified were consistent with having been punched or slapped and were sufficiently serious to cause a loss of consciousness.

The autopsy further revealed extensive bruising, distention, and lacerations to the anus and rectum, as well as a four-inch-long tear of the intestines and bowel. This was consistent with appellant’s statement to police with regard to the sexual devices that he had put the “big stick” up in her rectum “quite a ways.” Lastly, the autopsy indicated evidence of strangulation, including abrasions around the neck and hemorrhaging of the neck muscles. The conclusion drawn from the autopsy was that the victim died as a result of strangulation, with blunt force injuries to her head, abdomen, and rectum. The medical examiner opined that it would have taken between one and five minutes to strangle Ms. Kirton to death, and he concluded that the head, stomach, and rectal injuries occurred prior to death.

We conclude that the testimony of the medical examiner was sufficient to support the jury’s verdict of premeditation and deliberation as those terms are defined under Arkansas law. Despite appellant’s testimony that he was too drunk to recall much of what occurred, the undisputed evidence was that the victim died of strangulation and that prior to her death she was savagely beaten and sodomized with one or more of several large objects. Furthermore, the testimony of the medical examiner established that it would take anywhere from one to five minutes to cause her death by strangulation, sufficient time in which appellant would have been able to reflect upon his actions and their consequences. The jury could easily have inferred from the numerous injuries to the victim’s internal organs, as well as the autopsy evidence that she was strangled, that appellant acted with the purpose to cause her death. Mulkey, supra. The State introduced sufficient evidence to show that appellant acted with premeditation and deliberation when he killed Ms. Kirton, and, accordingly, the trial court’s denial of appellant’s request for a directed verdict was not erroneous.

Constitutionality of Statutes

The only other objection raised in this case was appellant’s motion to dismiss the capital murder charge because of its asserted overlap with the first-degree murder statute, Ark. Code Ann. § 5-10-102 (Repl. 1997). Appellant argued at trial that the same conduct was proscribed in both statutes, thus rendering the capital murder statute unconstitutionally void for vagueness because it faded to give adequate notice of the proscribed conduct, thus violating due process and depriving him of equal protection under the law. In his motion to the trial court, appellant requested that the capital murder charge be dismissed, or, in the alternative, that the trial court omit the jury instruction on first-degree murder as a lesser-included offense to capital murder, offering only second-degree murder instruction in its stead. The trial court denied appellant’s motion.

The capital murder statute, Ark. Code Ann. § 5-10-101(a)(4) (Repl. 1997), provides that a person commits capital murder if: “With the premeditated and deliberated purpose of causing the death of another person, he causes the death of another person. . . . ”. Id. Murder in the first degree occurs when, “with a purpose of causing the death of another person, he causes the death of another person.” Ark. Code Ann. § 5-10-102(a)(2)(Repl. 1997). On numerous occasions, we have held that there is no constitutional infirmity in the overlapping of the “premeditated and deliberated” mens rea in the capital murder statute and the “purposeful” mens rea in the first-degree murder statute. Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997)(citing Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Greene v. State, 317 Ark. 360, 878 S.W.2d 384 (1994); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992); Van Pelt v. State, 306 Ark. 634, 816 S.W.2d 607 (1991); Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989)). We have explained that it is impossible to avoid the use of general language in the definition of offenses, and that one or the other offense may be established depending on the testimony of witnesses. Id. We have consistently found no constitutional or other impediment to the discretion conferred by the “overlap” upon the State to choose between the two laws in charging a particular homicide. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348, cert. denied 502 U.S. 829 (1991).

Appellant concedes in his brief that he was not prejudiced by any alleged lack of difference between the mens rea of the two statutes. The jury was instructed on the additional charge of murder in the second degree, but found appellant guilty of capital murder, thus never reaching the question of the lesser-included offenses. See AMI Crim. 2d 302 (“If you have a reasonable doubt of the defendant’s guilt on the charge of capital murder, you will then consider the charge of murder in the first degree”). We find no error in the trial court’s denial of appellant’s motion to dismiss on the basis of an asserted overlap between the capital murder charge and that of first-degree murder.

In conclusion, because we find this appeal to be without merit, counsel’s motion to be relieved is granted and the judgment affirmed.

Affirmed.


author: Ray Thornton, Justice.

text:
    Jeffrey HICKS and Ricardus Flowers v. STATE of Arkansas
    CR 99-871
    12 S.W.3d 219
    Supreme Court of Arkansas
    Opinion delivered March 9, 2000

      Joe Kelly Hardin, for appellant Jeffrey Hicks.

      James P. Clouette, for appellant Ricardus Flowers.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellants Jeffrey Hicks and Ricardus Flowers were charged with aggravated robbery, theft of property, and residential burglary as perpetrators of crimes connected with the burglary of Doyle Keith and Debbie Ann Coddington’s home in Saline County. They were arrested while fleeing the crime scene and were tried together. The jury returned verdicts convicting each appellant of the charged crimes. Flowers was sentenced to twenty-five years’ imprisonment for the aggravated-robbery offense and twenty years’ imprisonment for the theft-of-property offense and the residential-burglary offense, with the sentences to be served concurrently. Based on Hicks’s status as a habitual offender, he was sentenced to fife imprisonment, a sentence reviewable by this court in accordance with Ark. Sup. Ct. R. l-2(a)(2). Because there was only one trial and one record, we consider their appeals together. Neither appellant has questioned the sufficiency of the evidence in support of their convictions, so we will only summarize the evidence. Each appellant makes a different assignment of error in seeking reversal, and we affirm the convictions.

On December 28, 1997, the appellants, accompanied by John Fell, who remained in the car, entered the Coddington home while Ashley Coddington, Doyne and Debbie Coddington’s daughter, was on the telephone to a friend. Ms. Coddington told her friend of the intrusion, and when the phone was disconnected, the friend called 911, and the dispatcher sent a police officer to investigate.

Hicks held the Coddington family at gunpoint, requiring Mrs. Coddington to remove her jewelry while Flowers struck Ashley Coddington’s boyfriend, Ronnie Heinz, in the head with his gun. Flowers threatened to shoot Mr. Heinz and forced him to assist in collecting guns and electronic equipment from the home and from Mr. Heinz’s car.

As the appellants fled in the getaway car, Mr. Heinz pursued them in his car, using his cellular phone to report their progress to the 911 dispatcher, describing the location of the getaway car. The dispatcher kept Saline County Deputy Dwain Davidson posted, and when Deputy Davidson’s patrol car met the fleeing suspects and Mr. Heinz’s car on Vimy Ridge Road, he promptly turned his patrol car around, turned on his emergency lights and sirens, and gave chase. The patrol car quickly passed Mr. Heinz’s car, but the fleeing suspects did not stop until they had entered Pulaski County. Deputy Davidson was quickly joined by other police officers, who assisted in the apprehension and arrest of the appellants, as well as in the recovery of the stolen property.

Criminal informations were filed against Hicks and Flowers on February 3, 1998, and on April 22, 1998, Hicks filed a motion for discovery. At a hearing held on July 7, 1998, Hicks failed to appear. However, his attorney was present but did not know where Hicks could be found. A bench warrant was issued for his arrest but was later dissolved when it was determined that Hicks’s parole had been revoked on another sentence, and he had been returned to the Department of Correction until October 1998, when he was returned to the Saline County Jail. On October 20, 1998, Hicks was brought before the Saline County Circuit Court on the charges filed in this case, and the court quashed the failure-to-appear warrant.

On September 20, 1998, Flowers had requested a continuance until October 27, 1998, and at that hearing, held on October 27, 1998, “officially waive[d] speedy trial” between that date and the trial setting, February 19, 1999. On December 10, 1998, Hicks filed a motion requesting a severance of his case from Flowers’s case, but no ruling was obtained on the motion until April 7, 1999. Hicks did not raise speedy-trial considerations as á reason for the requested severance. On February 18, 1999, Hicks filed a motion, adopting each and every motion previously filed by his co-defendant, Flowers, and on that date joined in a new motion for a continuance.

Flowers filed two motions to dismiss, one alleging a violation of his right to a speedy trial, and the other a motion to dismiss based on an alleged illegal arrest and on March 12, 1999, a hearing was held on these motions. The trial court denied Flowers’s motion to dismiss based on speedy-trial violations and Flowers did not pursue this argument on appeal. With respect to Flowers’s allegation of an illegal arrest, after hearing testimony from Deputy Dwain Davidson, the trial court found that Deputy Davidson was in fresh pursuit when he arrested Flowers and denied Flowers’s motion. On April 7, 1999, the trial court denied Hicks’s December 10, 1998, motion for severance of the two cases, and the matter was tried to a jury. Both appellants were convicted, and from those convictions they bring their appeals. Each appellant raises one point on appeal, and we affirm the trial court on both points.

Hicks v. State

Hicks’s sole point on appeal is that the trial court erred in its denial of his motion to dismiss on the grounds that his right to a speedy trial under Ark. R. Crim. P. 28.1 (1999) had been violated.

Rule 28.1 of the Arkansas Rules of Criminal Procedure requires that any defendant charged with an offense in circuit court and held to bail “shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve months” from the date of the arrest. Id. When a defendant is not brought to trial within a twelve-month period, the State has the burden of showing the delay was legally justified. Webb v. Ford, 340 Ark. 281, 9 S.W.3d 504 (2000). Once the defendant has made a prima facie showing of a violation of Rule 28.1, the State bears the burden of showing that there has been no violation, in that some of the time comprising the one-year period provided in the rule is to be excluded as “legally justified.” Jones v. State, 329 Ark. 603, 951 S.W.2d 308 (1997). It is generally recognized that a defendant does not have to bring himself to trial and is not required to bang on the courthouse door in order to preserve his right to a speedy trial. Id. The burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Id. Under Rule 28.2 of the Arkansas Rules of Criminal Procedure, the speedy-trial period commences to run “without demand by the defendant.” Id. See also Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000).

Rule 28.3 of the Arkansas Rules of Criminal Procedure provides in relevant part that:

the following periods shall be excluded in computing the time for trial. Such periods shall be set forth by the court in a written order or docket entry, but it shall not be necessary for the court to make the determination until the defendant has moved to enforce his right to a speedy trial pursuant to Rule 28 unless it is specifically provided to the contrary below. The number of days of the excluded period or periods shall be added to the time applicable to the defendant as set forth in Rules 28.1 and 28.2 to determine the limitations and consequences applicable to the defendant.
(c) The period of delay resulting from a continuance granted at the request of the defendant or his counsel. All continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date the continuance is granted until such subsequent date contained in the order or docket entry granting the continuance.
* * *
(g) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance. In all other cases the defendant acting with due diligence shall be granted a severance so that he may be tried within the time limits applicable to him.

Ark. R. Crim. P. 28.3 (1999).

In the present case, Hicks was arrested for his crime on December 28, 1997, and was tried on April 7, 1999. However, based on the numerous continuances attributable to Hicks and his co-defendant, Flowers, it seems likely that Hicks’s right to a speedy trial had not been violated. We note that on December 10, 1998, Hicks filed a motion requesting severance from Flowers’s case, but no ruling was made on that motion until the date of trial. On February 18, 1999, Hicks filed a motion adopting “each and every motion” that had been filed by his co-defendant, Flowers, who had previously moved for several continuances, and joined in a new motion for an additional continuance. We also note that on February 19, 1999, the trial court continued the trial from February 19, 1999, to April 7, 1999, and excluded this time from the speedy-trial calculation on the motion of both defendants.

Additionally, Hicks failed to include as a part of the record the docket sheet which might reflect relevant court notations that are pertinent to resolving his speedy-trial claim, and without this information we are unable to review this issue on appeal. In Scott v. State, 337 Ark. 320, 989 S.W.2d 891 (1999), a case involving an appellant’s claim of violation of his right to speedy trial, we wrote:

... we affirm on the basis that Appellant failed to include the trial court’s docket sheet in the record on appeal. Without the benefit of being able to examine the entries and notations on the docket sheet, we are at a disadvantage to determine whether the trial court erred in ruling that certain periods of time were excludable under Rule 28.3. It is well settled that the appellant bears the burden of producing a record that demonstrates error, and thus we do not consider on appeal matters outside of the record.

Id. See also, Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992).

While it appears that the time attributable to continuances granted to Flowers and adopted by Hicks, considered together with motions for continuances filed by both co-defendants, tolled Hicks’s speedy-trial calculation, we are unable to reach the merits of this argument on appeal because Hicks failed to include the docket sheet in the record, and therefore the trial court is affirmed.

Flowers v. State

On appeal, Flowers contends that the trial court erred when it denlied his motion for a mistrial or alternatively a continuance after an alleged discovery violation. Specifically, Flowers argues that Deputy Dwain Davidson’s testimony at trial showed that Deputy Davidson had taken measurements to ensure he was in Saline County when he initially observed Flowers, that the existence of these measurements was not disclosed to Flowers prior to trial, and therefore that the trial court should have granted a mistrial or a continuance.

The standard of review for imposing sanctions for discovery violations is whether there has been an abuse of discretion. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 300 (1998). A prosecutorial discovery violation does not automatically result in reversal. Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990). The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose. Absent a showing of prejudice, we will not reverse. Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998).

Rule 17.1 of the Arkansas Rules of Criminal Procedure provides:

(a) subject to the provisions ofRule 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request, the following material and information which is or may come within the possession, control, or knowledge of the prosecuting attorney:
(i)the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial....

Ark. R. Crim. P. 17.1. We have held that this rule requires the prosecutor to provide the names and addresses of the State’s witnesses, but not the substance of their testimony. Holloway v. State, 310 Ark. 473, 837 S.W.2d 464 (1992). We have also noted that a defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation. Rychtarik, supra.

When a party fails to comply with a discovery rule, the court may exercise any of the following options: order that party to permit the discovery or inspection of materials not previously disclosed; grant a continuance; prohibit the party from introducing the material; or enter another order that the court deems proper under the circumstances. Ark. R. Crim. P. 19.7. It is within the trial court’s discretion which sanction to employ. Rychtarik, supra. When testimony is not disclosed pursuant to pretrial discovery procedures, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Id. We have said that a mistrial is an extreme sanction for a discovery violation and is to be avoided unless the fundamental fairness of the trial itself is at stake. Clements, supra. We have also held that the action of the trial court in denying a motion for continuance will not be reversed in the absence of a showing of such a clear abuse of the court’s discretion as to amount to a denial of justice, and the burden rests upon appellant to show that there has been such an abuse. Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983).

In our analysis of this case, we note that Flowers suffered no prejudice as a result of Deputy Davidson’s testimony at trial. There was no concealment by the State of the distances involved nor was any evidence complained of exculpatory in nature. Flowers was provided a list of the witnesses the State intended to call at trial prior to trial and could have interviewed Deputy Davidson or conducted his own investigation into the matter. Next, based on Deputy Davidson’s testimony at the pretrial hearing, Flowers was not misled about the nature of his testimony at trial. Specifically, we note the following testimony from the pretrial hearing:

Q. [PROSECUTOR Standridge] Did you meet those vehicles in route to Cherylwood?
A. [Deputy Davidson] Yes, sir, I did.
Q. And do you recall where you first met them?
A. Yes, sir, it was approximately three-tenths of a mile north of Barth Road.
Q. Was that in Saline County?
A. Yes, sir, it was.
Q. There was some mention about Davis Elementary School
A. Yes, sir.
Q. Where is that in relation to where you were and these vehicles were?
A. It’s about a tenth of a mile from the county line.
Q. Where did you turn around at?
A. It was in a driveway approximately two tenths — or three tenths of a mile north of Barth Road.
Q. And was that in Saline County?
A. Yes, sir.

We observe that this testimony contains the same proof of measurements as that advanced at trial and that there appears to be no concealment of the fact that measurements had been made. The essence of Deputy Davidson’s trial testimony was substantially the same as his testimony at the pretrial hearing and merely confirmed his pretrial testimony that he was in Saline County when he began pursuit.

Any failure to disclose that Deputy Davidson carefully measured the distance involved before giving his testimony did not require the trial court to grant a mistrial or a continuance. We conclude that the State’s failure to provide Flowers with the information that exact measurements had been made supporting Deputy Davidson’s trial testimony did not adversely impact upon the fundamental fairness of the trial. Because there was no clear showing of an abuse of discretion by the trial court, Flowers’s requests for a mistrial or a continuance were properly denied, and we affirm.

4-3 (h) Review

In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.

Affirmed.