author: Robert L. Brown, Justice.

text:
    The TRAVELERS INSURANCE COMPANY and Dan Ray v. Honorable Kim M. SMITH and Anna F. Smith
    97-415
    947 S.W.2d 382
    Supreme Court of Arkansas
    Opinion delivered July 7, 1997

      Davis, Cox & Wright PLC, by: Don A. Taylor and David L. McCune, for petitioners.

      Jeff Slaton, for respondents.
   Robert L. Brown, Justice.

This is a petition for a writ of prohibition filed by petitioners The Travelers Insurance Company, the workers’ compensation insurance carrier for Gerald Johnson Trucking Company, and Dan Ray, who is employed by Travelers as a claims adjuster. The respondents are circuit judge Kim M. Smith and the claimant’s widow, Anna F. Smith. We deny the petition.

On September 30, 1996, respondent Anna F. Smith filed an amended complaint against Travelers Insurance and Dan Ray seeking damages for misrepresentation and the tort of outrage. Anna Smith alleged that her husband, Alva Smith, was killed in a one-vehicle trucking accident in Washington County in the course of his employment with Gerald Johnson Trucking Company. After Alva Smith’s death, Anna Smith authorized Charles Farmer, Jr., a representative of the Sisco Funeral Chapel, to arrange her husband’s funeral and handle matters with Travelers Insurance.

The complaint alleged that although the Washington County Coroner and the Arkansas State Police had determined that the cause of Alva Smith’s death was massive head trauma, Dan Ray represented to Farmer that no workers’ compensation benefits would be paid until an autopsy had been performed. It was further alleged that Ray stated to Farmer that Travelers Insurance first had to determine whether the true cause of Alva Smith’s death was a heart attack or other pre-existing condition. Ray, according to the allegations, never took steps to have the autopsy performed and failed to authorize the embalming of Alva Smith’s body. Anna Smith claimed that Ray made the following misrepresentations to her: (1) that an autopsy was required; (2) that if Alva Smith had suffered from a heart attack or other pre-existing condition immediately prior to the accident, his death would not be compensable; and (3) that he (Ray) was making efforts to obtain an autopsy. Anna Smith alleged that the misrepresentations were made for the purpose of inducing her to refrain from embalming her husband’s body and proceeding with the funeral. As a result, Anna Smith incurred refrigeration costs, and, due to the delay in embalming, was unable to have an open-casket funeral. She claims that she experienced severe and extreme mental anguish, which Ray knew would naturally and probably result from his conduct.

Travelers Insurance and Ray answered and asserted affirmatively that Anna Smith’s claim was barred by the exclusive-remedy provision of the Workers’ Compensation Act or, alternatively, by the fact that she accepted workers’ compensation benefits paid by Travelers Insurance on behalf of Gerald Johnson Trucking Company and, thus, had elected her remedy. The petitioners next filed a “Motion to Dismiss and for Summary Judgment,” claiming again that Anna Smith’s exclusive remedy lay under the Workers’ Compensation Act and that she had elected her remedy by accepting death benefits in the amount of $32,910.

The trial court denied the motion to dismiss and for summary judgment. In a letter opinion, the trial court reasoned that Anna Smith was not seeking damages on the account of the death of her husband and that the injuries she allegedly suffered did not arise from Alva Smith’s employment. The court further noted that the Workers’ Compensation Act did not provide a remedy for her alleged wrong and that her action was therefore not barred by the exclusive-remedy provision. The court also denied summary judgment and, in doing so, ruled that genuine issues of material fact existed as to the claims of misrepresentation and outrage. Travelers Insurance and Ray filed a “Motion for Additional Findings and for Reconsideration,” which was dismissed by the trial court. This petition for writ of prohibition followed.

I. Exclusive Remedy

Petitioners’ first ground in support of prohibition is that Anna Smith’s lawsuit is at odds with the exclusive-remedy provision of the Workers’ Compensation Act. See Ark. Code Ann. § ll-9-105(a) (Repl. 1996).

We begin by addressing our standard of review. A writ of prohibition is an extraordinary writ that is appropriate only when the lower court is wholly without jurisdiction. Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996); West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994). When considering the propriety of issuing the writ, this court’s review of jurisdiction is limited to the pleadings. Western Waste Indus, v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996); Nucor Holding Corp. v. Rinkines, supra. Where the encroachment on workers’ compensation jurisdiction is clear, a writ of prohibition is warranted. Western Waste Indus, v. Purifoy, supra; Nucor Holding Corp. v. Rinkines, supra.

In asserting that the circuit court is wholly without jurisdiction to hear Anna Smith’s claim, Travelers Insurance and Ray rely primarily on three cases — Johnson v. Houston General Ins. Co., 259 Ark. 724, 536 S.W.2d 121 (1976); Cain v. National Union Life Ins. Co., 290 Ark. 240, 718 S.W.2d 444 (1986); and Liberty Mut. Ins. Co. v. Coleman, 313 Ark. 212, 852 S.W.2d 816 (1993). In Johnson v. Houston General Ins. Co., supra, the claimant suffered a compensable injury and was awarded benefits to be paid in one lump sum. When the payment was not forthcoming, the claimant filed a complaint against his employer’s workers’ compensation insurance carrier and alleged that payment was being withheld for harassment purposes, which resulted in substantial mental anguish. We affirmed a dismissal of the complaint on grounds of exclusivity of the workers’ compensation remedy. We noted that, in addition to having the remedy of a 20% penalty and interest for late payment, the claimant could have petitioned the Commission to require his employer to post a bond as security for the award. We also noted that the claimant had the option of filing a certified copy of the award with the circuit clerk and enforcing the judgment. In other words, the claimant had remedies under the Act.

The holding in Johnson was subsequently applied in Cain v. National Union Life Ins. Co., supra. In Cain, the claimant filed a complaint against the workers’ compensation insurance carrier and pled that the insurer stipulated that it was liable for all medical expenses but then failed to make payment. The claimant claimed that this failure caused him emotional distress. The trial court dismissed the complaint, and this court affirmed the dismissal, citing Johnson v. Houston General Ins. Co., supra.

Our holdings in Cain and Johnson were the foundation for this court’s opinion in Liberty Mut. Ins. Co. v. Coleman, supra. In Coleman, claimant suffered an injury to his right hand and arm for which his employer’s workers’ compensation carrier partially acknowledged coverage and paid some benefits. The claimant then sought therapy from a pain clinic based on an orthopedic surgeon’s recommendation that therapy was necessary if the claimant hoped to regain the use of his hand and arm. The doctor’s recommendation was initially denied by the carrier but later accepted. The claimant’s right arm had to be amputated below the elbow, and the claimant filed an action against the carrier, alleging that its intentional refusal to authorize the treatment and to pay his medical expenses constituted bad faith and outrage and resulted in the amputation of his arm. The carrier unsuccessfully moved for dismissal on grounds of exclusivity in the trial court.

The carrier next petitioned this court for a writ of prohibition, which was granted. We held that the result was controlled by our holdings in the Johnson and Cain decisions. We reasoned that the claimant’s tort action arose from the nonpayment of benefits because it was clear that the decision not to authorize treatment at the pain clinic initially was based on financial considerations. Therefore, claimant was limited to remedies provided by the Workers’ Compensation Act. Specifically, we determined that the claimant should have petitioned the Commission and presented proof that the pain-clinic expenses were reasonable and necessary given the extent of his injury.

Travelers Insurance and Ray now contend that Anna Smith’s tort action falls directly within the holding of Liberty Mut. Ins. Co. v. Coleman, supra, because she is asserting the intentional torts of outrage and misrepresentation arising out of the nonpayment of benefits. They claim that, as in Coleman, Ray’s conduct occurred while in the course of determining whether Alva Smith’s injury was compensable and whether certain benefits should be paid and that respondent should be limited to the statutory penalties provided in Ark. Code Ann. § 11-9-802 (Repl. 1996). Petitioners also assert that public policy favors a holding of exclusivity because the alternative is that many claimants could subvert remedies under the Workers’ Compensation Act in favor of tort actions simply by alleging outrageous conduct in connection with the nonpayment of benefits.

We agree with the respondents, however, that the Johnson, Cain, and Coleman decisions are inapposite to the instant case for two reasons: (1) this case does not involve an improper delay in payment of benefits; and (2) the Workers’ Compensation Act does not provide a remedy for the claim of Anna Smith. As to the first point, Anna Smith properly argues that her claim did not arise from the failure to pay benefits promptly. Indeed, her complaint does not reference the issue of failure to pay benefits. Furthermore, the validity of the Johnson, Cain, and Coleman decisions clearly rests on the premise that the claimants were provided with an exclusive remedy under the Workers’ Compensation Act which they sought either to forego or to supplement with their tort actions.

In the instant case, we cannot construe Anna Smith’s claims of misrepresentation and extreme mental anguish to be an aggravation of an initial, compensable injury suffered by her husband. Furthermore, the Workers’ Compensation Act does not provide a remedy for Anna Smith’s alleged injury. The Act defines “compensable injury” as follows:

(i) An accidental injury causing internal or external physical harm to the body . . .;
(ii) An injury causing internal or external physical harm to the body and arising out of and in the course of employment . . .:
(iii) Mental illness as set out in § 11-9-113 ....

Ark. Code Ann. 11-9-102(5)(A) (Repl. 1996) (emphasis added). In turn, Ark. Code Ann. § ll-9-113(a)(l) (Repl. 1996), provides that a mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee’s body. Clearly, these statutes set out a requirement that a physical injury precede and cause the mental injury in order for the mental injury to be compensable under the Workers’ Compensation Act. See generally John D. Copeland, The New Arkansas Workers’ Compensation Act: Did the Pendulum Swing Too Far?, 47 Ark. L. Rev. 1, 16-19 (1994). We conclude that under the Workers’ Compensation Act, there is no remedy for Anna Smith’s extreme mental anguish.

The question then becomes whether the lack of a remedy answers the jurisdictional question. Professor Larson has this to say about the issue:

If. . . the exclusiveness defense is a “part of the'quid pro quo by which the sacrifices and gains of employees and employers are to some extent put in balance,” it ought logically to follow that the employer should be spared damage liability only when compensation liability has actually been provided in its place, or, to state the matter from the employee’s point of view, rights of action for damages should not be deemed taken away except when something of value has been put in their place.

6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 65.40, at 12-55 (1997) (footnotes omitted). See also Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So.2d 90, 93 (Ala. 1989)(“[A]n employer is protected from tort liability only as to injuries expressly covered by the language of the [Workers’ Compensation] Act.”); Scott v. Wolf Creek Nuclear Operating Corp., 928 P.2d 109 (Kan. App. 1996)(exclusivity applies only when a plaintiffs claim is compensable under the Kansas Workers’ Compensation Act); S.B. Foot Tanning Co. v. Piotrowski, 554 N.W.2d 413, 419 (Minn. App. 1996)(“[W]here an employee’s injuries are within the workers’ compensation statute, the rights and remedies afforded the employee, employer, and others who may have any right of action on account of the employee’s injury are governed exclusively by the workers’ compensation statute to the exclusion of all other remedies.”); Stratemeyer v. Lincoln County, 915 P.2d 175 (Mont. 1996) (allowing a tort action for emotional-distress injuries because such injuries did not fall within the scope of the Montana Workers’ Compensation Act); Errand v. Cascade Steel Rolling Mills, Inc., 888 P.2d 544, 548 (Or. 1995) (“By providing for an employer’s freedom from ‘other’ liability, it may be inferred from the exclusivity provision that there must exist, as a predicate for that freedom, some actual liability under the Workers’ Compensation Law before the exclusivity provision may protect the employer from ‘all other liability.’”).

Permitting Anna Smith’s claims for misrepresentation and outrage in circuit court is entirely consistent with Professor Larson’s theory on the allowance of claims for the intentional infliction of emotional distress:

If the essence of the tort, in law, is non-physical, and. if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a makeweight, the suit should not be barred. But if the essence of the action is for recovery for physical injury or death, . . . the action should be barred even if it can be cast in the form of a normally non-physical tort.

6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 68.34(a), at 13-180 to 13-190 (1997) (footnote omitted). Because Anna Smith’s action is one manifestly premised on a nonphysical injury, and because her injury is not compensable and beyond the scope of coverage of the Workers’ Compensation Act, we hold that it is not barred by the exclusive-remedy provision of the Act.

II. Election of Remedies

Travelers Insurance and Ray next urge that the writ should be granted since Anna Smith received workers’ compensation benefits and, therefore, elected her remedy. This court has described the election-of-remedies doctrine as follows:

[T]he general rule as to election of remedies is that, where a party has a right to choose one of two or more appropriate but inconsistent remedies, and with full knowledge of all the facts and of his rights makes a deliberate choice of one, then he is bound by his election and cannot resort to the other remedy.

Lively v. Libbey Memorial Physical Medical Ctr., 317 Ark. 5, 9, 875 S.W.2d 507, 509 (1994), citing Gentry v. Jett, 235 Ark. 20, 365 S.W.2d 736 (1962). In the context of this case, an election of remedies would bar the instant litigation if it is shown that Anna Smith either received or could have received compensation for her injury under the Workers’ Compensation Act. Lively v. Libbey Memorial Physical Medical Ctr., supra; Riverside Furniture Co. v. Rodgers, 295 Ark. 452, 749 S.W.2d 664 (1988).

Because Anna Smith had no remedy under the Workers’ Compensation Act, her claim cannot be thwarted for election-of-remedy reasons. We deem this ground for granting the writ to be without merit.

Writ denied.

       The proper party as respondent to a petition for writ of prohibition is the circuit court and not the individual judge or the claimant’s representative. See Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997).


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice. Brown, J.,

license: Public Domain

text:
    Jimmy GREEN v. COCA-COLA BOTTLING COMPANY
    96-1059
    948 S.W.2d 92
    Supreme Court of Arkansas
    Opinion delivered July 7, 1997

      Searcy Wood Harrell, for appellant.

      Michael J. Dennis, for appellee.
   Annabelle Clinton Imber, Justice.

This is a workers’ compensation case that we initially agreed to review upon Coca-Cola Bottling Company’s petition. Upon further examination, we conclude that the petition for review was improvidently granted. Accordingly, the petition is denied, and the Court of Appeal’s decision in Green v. Coca-Cola Bottling Co., CA95-1117 (Ark. Ct. App. Aug. 21, 1996), remains the binding ruling in this case.

The underlying facts of this case are undisputed because the parties presented the case to the Workers’ Compensation Commission on a stipulated record. On July 1, 1992, Jimmy Green sustained a compensable injury while working for the Coca-Cola Bottling Company (“Coca-Cola”). On March 23, 1993, Green traveled to his doctor’s office in Pine Bluff for an appointment regarding his earlier injury. When Green was approximately eight miles outside of Pine Bluff, he observed an elderly woman experiencing car trouble on the side of the highway. Because Green was early for his appointment, he decided to turn around in a private driveway so that he could assist the stranded motorist. While attempting to turn into the driveway, Green was struck from behind and injured.

Green applied for workers’ compensation benefits for the injuries he sustained while traveling to the doctor’s office. The Workers’ Compensation Commission applied the “quasi-course of employment” doctrine, which the Court of Appeals has previously adopted and summarized as follows:

activities undertaken by the employee following upon his or her injury which, although they take place outside the time and space limits of the employment, and would not be considered employment activities for usual purposes, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury.

Preway, Inc. v. Davis, 22 Ark. App. 132, 736 S.W.2d 21 (1987); Wolfe v. City of El Dorado, 33 Ark. App. 25, 799 S.W.2d 812 (1990); Eagle Safe Corp. v. Egan, 39 Ark. App. 79, 842 S.W.2d 438 (1992) (citing Arthur Larson & Lex L. Larson, Larson’s Workers’ Compensation Law § 13.11(d) (1997)). The Commission found that Green’s journey to the doctor’s office fell under the “quasi-course of employment” doctrine because the trip was a reasonable and necessary activity relating to the prior compensable injury. The Commission, however, concluded that Green deviated from his otherwise compensable journey when he attempted to assist the stranded motorist. Because Green’s deviation did not advance the employer’s interest and was not causally related to a risk reasonably incident to the employment, the Commission held that Green’s injuries were not compensable.

On appeal, the Court of Appeals agreed with the Commission that Green’s journey to the doctor’s office fell under the “quasi-course of employment” doctrine. However, the Court of Appeals applied a different standard from that used by the Commission to determine whether Green’s attempt to assist the stranded motorist was an impermissible deviation from an otherwise compensable journey. Specifically, the Court of Appeals applied Larson’s “prohibited-conduct” test which declares that:

When the injury following the initial compensable injury arises out of a quasi-course activity, such as a trip to the doctor’s office, the chain of causation should not be deemed broken by mere negligence in the performance of the activity, but only by intentional conduct which may be regarded as expressly or impliedly prohibited by the employer.

Id. (citing Larson, supra, § 13.11(d)). Because there was no proof that Green’s attempt to assist the stranded motorist was prohibited by Coca-Cola, the Court of Appeals held that Green’s injuries were compensable. Accordingly, the Court of Appeals reversed the Commission’s ruling and remanded the case for further proceedings.

We granted Coca-Cola’s petition for review pursuant to Ark. Sup. Ct. R. l-2(e) (as amended by per curiam July 15, 1996). In their briefs and during oral arguments, both Coca-Cola and Green assume that the “quasi-course of employment” doctrine is the appropriate standard to apply in this case. Although the Court of Appeals has previously recognized this doctrine, this court has never adopted Larson’s “quasi-course of employment” doctrine nor have we been asked to do so in this case.

Moreover, we have never determined the appropriate test for ascertaining whether a claimant has deviated from a “quasi-course of employment” journey. Although the parties have offered no guidance in this area, our research reveals that courts have applied a variety of tests to resolve the deviation inquiry. In this case, the Court of Appeals applied Larson’s prohibited- conduct test. Other jurisdictions, however, have focused upon the temporal and geographic extent of the deviation. Cheryl M. Bailey, Workers Compensation: Compensability of Injuries Incurred Traveling To or From Medical Treatment of Earlier Compensable Injuries, 83 A.L.R.4th 110, § 14 (1991). Some courts have applied the “positional risk doctrine” which states that the injury is compensable if the conditions of employment place the claimant in a position which requires him by ordinary standards of humanity to undertake the rescue. D.L. Cullifer & Son, Inc. v. Martinez, 572 So.2d 1360 (Fla. 1990); Larson, supra, § 28.00. Other courts have focused on whether the deviation is insubstantial, and whether the “good-samaritan” act promoted good will toward the claimant’s employer. Bunny Bread et at. v. Shipman, 267 Ark. 927, 591 S.W.2d 692 (1980); Larson, supra, §§ 19.00 and 27.22.

In sum, there are several ways to analyze the fact pattern presented by this case. The parties, however, have faded to argue which standard should be adopted by this court. We are hesitant to resolve such an important issue of first impression without a specific request to do so and without adequate legal argument upon which to base bur decision.

For these reasons, we find that the petition for review was improvidently granted. Accordingly, we decline Coca-Cola’s request to review the decision of the Court of Appeals in Green v. Coca-Cola Bottling Co., CA95-1117 (Ark. Ct. App. Aug. 21, 1996). See Hamilton v. Jeffrey Stone, Co., 297 Ark. 24, 759 S.W.2d 792 (1988) (refusing to review a decision from the Court of Appeals after the petition was initially granted by this court).

Review denied.

Brown, J., dissents.

Brown, J.,

dissenting. I dissent and would address the issue of substantial evidence.


author: Annabelle Clinton Imber, Justice.

text:
    Albert SIMS v. STATE of Arkansas
    CR 97-157
    947 S.W.2d 376
    Supreme Court of Arkansas
    Opinion delivered July 7, 1997

      Montgomery, Adams & Wyatt, PLC, by: James W. Wyatt, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

This is an interlocutory appeal of the circuit court’s order denying the transfer of an aggravated robbery charge to juvenile court. We affirm the trial court’s denial of the motion to transfer.

The appellant, Albert Sims, was charged with aggravated robbery, residential burglary, and theft of property in Pulaski County circuit court. At the time of the alleged offenses, Sims was fourteen years of age. Sims subsequently filed a motion to transfer the case to juvenile court.

At the transfer hearing, Cynthia Yvonne Mahomes, Sims’s juvenile court probation officer, testified on behalf of Sims. She testified that on February 13, 1996, Sims was placed on a one-year period of probation for burglary and theft of property. Prior to Sims’s involvement in juvenile court, he had lived in a shelter due to his mother’s inability to provide housing for him. While at the shelter, Sims was respectful and cooperative. Mahomes added that Sims did not receive recommended rehabilitative services due to the fact that he was arrested again only weeks after his placement on probation. Mahomes testified that Sims was not a bad kid, and that he would benefit from rehabilitative therapy and services. She concluded that Sims would not have much chance for rehabilitation if he was convicted and sent to prison.

The State called Litde Rock police officer Jeffery Norman as a witness. Norman investigated the robbery of Mary O’Donald, which occurred on March 6, 1996. O’Donald was sitting in her kitchen when three individuals entered her residence wielding large knives. The intruders demanded money, and O’Donald gave them approximately $100. The robbers also searched a bedroom and stole a watch belonging to O’Donald’s husband. After-wards, they taped O’Donald’s hands behind her back, one told her “not to try anything funny,” and then left the residence.

Norman testified that on March 26, other officers were investigating the presence of suspicious persons in a neighborhood when they encountered Sims. The officers questioned Sims, who said that he was there with an individual named Michael Johnson. Both Sims and Johnson were brought to the police station and questioned by a Detective Tribble. While Tribble questioned Johnson about several burglaries that had occurred in the area, Johnson admitted his involvement in the March 6 robbery. Norman testified, without objection, that Johnson informed Tribble that Sims was one of two others who participated in the robbery. Norman testified that Sims ultimately confessed to his participation in the robbery to Detective Bob Wortham.

Following the hearing, the trial court transferred the residential burglary and theft-of-property charges to juvenile court, but declined to transfer the aggravated robbery charge. Sims brings this interlocutory appeal pursuant to Ark. Code Ann. § 9-27-318(h) (Supp. 1995), arguing that the trial court erred in denying the motion to transfer the aggravated robbery charge to juvenile court.

We have often stated the factors the trial court must evaluate in deciding a motion to transfer, and our standard of review on an appeal of such a decision. Arkansas Code Annotated § 9-27-318(e) requires the trial court to consider the following in deciding a transfer motion:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

If the trial court decides to try the juvenile as an adult, its decision must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(f). However, in making its determination, the trial court does not have to give equal weight to the statutory factors. Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996); Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996). This court has often said that the serious and violent nature of an offense is a sufficient basis for denying a motion to transfer. See, eg., McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997); Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996). We will not overturn the trial court’s determination unless it is clearly erroneous. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995).

In the present case, the record reflects that the trial court-evaluated all three of the statutory factors in denying the transfer motion. In its findings, the trial court recognized that Sims had been on probation for less than a month at the time the alleged aggravated robbery occurred. Moreover, Sims was placed on probation for serious offenses — burglary and theft. The trial court also considered the testimony from Norman that all of the intruders were armed with knives, and that the victim was left “incapacitated” when the perpetrators left.

Based on the serious and violent nature of the aggravated robbery charge, a Class Y felony, and the State’s evidence tending to link Sims with the crime, we cannot say that the trial court was clearly erroneous in denying the motion to transfer the aggravated robbery charge to juvenile court.

Affirmed.

       Following Norman’s testimony regarding Sims’s confession to the robbery, defense counsel announced “I’m going to object or at least have a chance to voir dire [Norman] before we go into [Sims’s] statement.” On voir dire, defense counsel ascertained that Norman was not actually present when Sims made any statements to the police. Defense counsel ultimately “objected] to [Norman’s] testimony if he wasn’t there and doesn’t have any first-hand knowledge of it.” However, Sims never obtained a ruling on this objection. Moreover, while Sims points out that Norman had no personal knowledge of the statements, on appeal he does not make the separate legal argument that the trial court erroneously considered inadmissible testimony. At any rate, we have held that hearsay admitted without objection may constitute substantial evidence to support a ruling in a juvenile-transfer case. See Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996).


author: Ray Thornton, Justice.

text:
    Rebecca WHEELER v. PHILLIPS DEVELOPMENT CORPORATION and Evergreen Four Limited Partnership
    97-187
    947 SW.2d 380
    Supreme Court of Arkansas
    Opinion delivered July 7, 1997

      W. Christopher Paul, for appellant.

      Snellgrove, Laser, Langley, Lovett & Culpepper, by: P. Sanders Huckabee, for appellees.
   Ray Thornton, Justice.

Appellant Rebecca Wheeler was injured when she stepped on a rock that was on the sidewalk of her apartment community, which is owned by appellees Phillips Development Corporation and Evergreen Four Limited Partnership. Freda Morris Hulen, the apartment manager, was operating a weedeater in the vicinity at the time. Appellant, who is a diabetic and legally blind, filed a complaint alleging that appellees had a duty of care to keep the premises safe because it is occupied primarily by elderly, handicapped, and disabled persons. She alleged that Ms. Hulen knew or should have known that the rock was on the sidewalk and that appellees, through their agent, breached their duty of care to her in failing to keep the sidewalk clear of dangerous objects.

AppeEees moved for summary judgment, denying that they owed her a higher duty of care than that of a landlord to a tenant, and arguing that appeEant had faded to present a genuine issue of material fact on the aEegation of negligence. An affidavit by Ms. Hulen accompanied the motion, stating that she had not caused a rock to be on the sidewalk, and that she was unaware of any rocks on the sidewalk.

In her response to the motion, appeEant argued that Ms. Hulen’s statement that it was her duty to manage the apartments and maintain the lawn, stating further that “I mow, weedeat, and then clean off the sidewalk” created a genuine issue of material fact as to whether appeEees had assumed a duty to keep the area safe. Appellant offered in support of her motion an affidavit from Leo Roger Cox, who stated that he saw Ms. Hulen operating the weedeater ten to fifteen feet from the sidewalk where appellant was injured, that Ms. Hulen knew or should have known that the rock was there, and that Ms. Hulen was the only person he saw in the area. Appellant also stated in her own affidavit that Ms. Hulen knew or should have known that the rock was there. However, appellant did not offer any lease agreement, ground rules, or any other document or evidence to reflect that appellees had assumed a higher standard of care for their tenants than applicable to a normal landlord-tenant relationship. The evidence offered in response to appellee’s motion for summary judgment failed to raise a genuine issue of material fact as to whether appellees assumed a duty to keep the common areas safe, and we agree with the ruling of the trial court.

It is appropriate to sustain a grant of summary judgment if the record before the trial court “shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Tullock v. Eck, 301 Ark. 564, 567, 785 S.W.2d 31, 46 (1993); Ark. R. Civ. P. 56(c). Appellees, as movant for summary judgment, bear the burden of showing that there is no issue of material fact. Gleghorn v. Ford Motor Credit Co., 293 Ark. 289, 737 S.W.2d 451 (1987). All evidence must be viewed in light most favorable to appellant, as she is the party resisting the motion, and she is also entitled to have all doubts and inferences resolved in her favor. Tullock, supra. However, she may not rest upon the mere allegation of her pleadings, but her response by affidavits or other evidence as provided by Ark. R. Civ. P. 56 must show specifically that there is a genuinely disputed issue of material fact. Guthrie v. Kemp, 303 Ark. 74, 793 S.W.2d 782 (1990).

Appellant argued to the trial court, as she does on appeal, that appellees owed a duty to her as an invitee to use ordinary care to keep the common sidewalk safe. This is an incorrect statement. A tenant is not an invitee on her landlord’s premises but has a right equal to that of the landlord to exclusive possession of the property. Glasgow v. Century Property Fund XIX, 299 Ark. 221, 772 S.W.2d 438 (1989). Since 1969, when we decided Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969), we have adhered to what is known as the Massachusetts rule; that is, that a landlord has no duty to a tenant to remove hazards from common areas unless such terms are spelled out in the lease. Id.', see also Bartley v. Sweetser , 319 Ark. 117, 890 S.W.2d 574 (1994). When there is no evidence of an agreement or assumption of duty that removes a landlord from the general rule, we will sustain a grant of summary judgment for the landlord. Hall v. Rental Management, Inc., 323 Ark. 143, 913 S.W.2d 293 (1996). Further, the question of whether a duty is owed is always a question of law and never one for the jury. 65th Center, Inc. v. Copeland, 308 Ark. 456, 825 S.W.2d 574 (1992). Appellant offered no evidence of such an agreement, she has merely shown that appellees were maintaining the grounds. We do not agree with her argument that such measures reflect an assumption of a duty to keep the common areas safe. We hold that the trial court was correct in granting appellees’ motion for summary judgment, and affirm.

Affirmed.


author: Per Curiam.

text:
    BRISTOL-MEYERS SQUIBB COMPANY, et al. v. SALINE COUNTY CIRCUIT COURT
    97-558
    947 S.W.2d 12
    Supreme Court of Arkansas
    Opinion delivered July 7, 1997

      Shook, Hardy & Bacon, by: David Brooks and Deborah Moeller; Baxter, Wallace & Jensen, by: Ray Baxter; Wright, Lindsey &Jennings, by: M. Samuel Jones III and Claire Shows Hancock, for petitioners Bristol-Meyers Squibb Company and Medical Engineering Corporation.

      Friday, Eldredge & Clark, by: Donald H. Bacon, for petitioner HCA Health Services of Midwest, Inc.

      Mitchell, Williams, Selig, Gates & Woodyard, by: Mark N. Nalbert, for petitioner Physician’s Surgery Center of Arkansas, Inc.

      Friday, Eldredge & Clark, by: Tonia P. Jones, for petitioner Baptist Health Center d/b/a Baptist Medical Center; St. Joseph’s Regional Health Center.

      Clevenger, Angel & Miller, by: Richard L. Angel, for petitioners James Billie, M.D.; James D. Billie, M.D., P.A.; Norton Allen Pope, M.D.; John H. Brunner, M.D.; and Hot Springs Medical Group, P.A. d/b/a Burton Eisele Clinic.

      Laser, Wilson, Bufford & Watts, P.A., by: David M. Donovan, for petitioners John Edward Allen, Jr., M.D., Individually, and Arkansas Surgery Clinic, P.A.

      Mitchell, Williams, Selig, Gates & Woodyard, by: R.T. Beard, for petitioners James S. Beckman, Jr., M.D., Individually, and Fayetteville Plastic Surgey Clinic; John D. McCracken, M.D., Individually; Robert Grandt Vogel, M.D.; Thomas H. Allen, M.D., Individually, and Arkansas Plastic Surgery Association, Ltd.

      Huckahay, Munson, Rowlett & Tilley, P.A., by: Mike Huckabay, for petitioner St. Vincent Infirmary.

      Boswell, Tucker, Brewster & Hicks, by: Robert A. Ginnaven III, for respondents.
   Per Curiam.

This is a petition for writ of prohibition filed by the defendants in a case that involves what are alleged to be faulty breast implants. Complaints have been filed by 19 plaintiffs against both Bristol-Meyers Squibb Company (Bristol-Meyers) and Medical Engineering Corporation (MEC) for (1) strict liability in tort for supplying a defective and unreasonably dangerous product, (2) negligence in the design and manufacture of the product, and (3) fraud in the marketing and distribution of the product. The 19 plaintiffs also assert claims for strict liability in tort based on supplying a defective product against defendant doctors and medical facilities residing and located in Washington County, Garland County, and Pulaski County. Of the 19 plaintiffs, only one, Brenda Davis, resides in Saline County, where the action was filed.

Plaintiffs claim that venue is proper in Saline County because they have brought an action for fraud, and pursuant to Ark. Code Ann. § 16-60-113(b) (1987), venue is proper in any county where any one plaintiff resides. Defendants respond that the real character of the action is one for personal injury, which, pursuant to Ark. Code Ann. § 16-60-112(a) (1987), requires that the action be brought either in the county where the accident occurred or in the county where the plaintiff resided at the time of the injury. Defendants petition this court for a writ of prohibition to the Saline County Circuit Court to dismiss the claims of those 18 plaintiffs, other than Brenda Davis, who did not reside in Saline County at the time of their alleged injury. We agree with the defendants and grant the writ.

In Coca-Cola Bottling Co. v. Kincannon, Judge, 202 Ark. 235, 150 S.W.2d 193 (1941), this court discussed the applicability of Act 314 of 1939, now codified at § 16-60-112(a):

This act is — as it professes to be — a venue statute, and localizes actions for personal injury by requiring that such actions shall be brought (a) in the county where the accident occurred which caused the injury or death, or (b) in the county where the person injured or killed resided at the time of the injury [.]

Coca-Cola Bottling Co. v. Kincannon, Judge, 202 Ark. at 237-38, 150 S.W.2d at 194. The term “accident” has been defined as the “incident” or “wrongful act” that caused the injury. Coca-Cola Bottling Co. v. Kincannon, Judge, 202 Ark. at 239, 150 S.W.2d at 194. Furthermore, the “injury” complained of must be corporeal or physical in nature. See, e.g., Belin v. West, 315 Ark. 61, 864 S.W.2d 838 (1993); Tilmon v. Perkins, 292 Ark. 553, 731 S.W.2d 212 (1987). The application of this venue provision to cases involving recovery for personal injury is mandatory. Forrest City Machine Works v. Colvin, 257 Ark. 889, 521 S.W.2d 206 (1975).

In their second amended complaint, plaintiffs asserted claims against Bristol-Meyers and MEC for fraud and negligence and a claim against all defendants for strict liability in tort. Although numerous causes of action are pled, this court has long held that venue is controlled by the provisions of the Arkansas Code rather than the characterization of a claim given by a plaintiff. See, e.g., Arkansas Bank & Trust Co. v. Erwin, 300 Ark. 599, 781 S.W.2d 21 (1989)(holding that personal-injury statute applied to a claim for negligent entrustment that resulted in death); Evans Laboratories v. Roberts, Judge, 243 Ark. 987, 423 S.W.2d 271 (1968)(holding that personal-injury statute controlled even though plaintiff asserted a claim for breach of implied warranty that resulted in physical injury). Furthermore, when two or more actions are pled that lie in different venues, venue is determined by the real character of the action and the principal right being asserted. See Fraser Bros. v. Darrah Co., 316 Ark. 297, 871 S.W.2d 367 (1994); Frank A. Rogers & Co. v. Whitmore, Judge, 275 Ark. 324, 629 S.W.2d 293 (1982); Atkins Pickle v. Burrough-Uerling-Brasuell, 275 Ark. 135, 628 S.W.2d 9 (1982).

Based on the review mandated by our case law, we conclude that plaintiffs’ primary purpose is to recover damages for personal injury suffered due to the use of the implants during their breast-augmentation procedures. As a result, the mandatory provisions of § 16-60-112(a) must be applied. See Forrest City Machine Works v. Colvin, supra. Undoubtedly, plaintiffs have stated facts sufficient to support an action for fraud against Bristol-Meyers and MEC that, under other circumstances, would provide an appropriate venue for all plaintiffs against Bristol-Meyers and MEC in Saline County. See Ark. Code Ann. § 16-60-113(b). See also Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995). However, viewing the complaint as a whole in order to determine the real character of the action, it is clear that plaintiffs seek a recovery that would otherwise require each to proceed either in the county where the accident occurred or where each resided at the time of the injury. See Ark. Code Ann. § 16-60-112(a). See, e.g., Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989). Saline County is an improper venue as to the 18 plaintiffs whose accident occurred in either Washington County, Garland County, or Pulaski County, and who did not reside in Saline County at the time of the injury.

Based on our review of the pleadings, we determine that the writ should issue to the Saline County Circuit Court with instructions to dismiss the claims of those plaintiffs other than Brenda Davis.

Writ granted.

Glaze and Thornton, JJ., not participating.


text:
    Keith Dzhon HILLS v. STATE of Arkansas
    CR 97-540
    947 S.W.2d 14
    Supreme Court of Arkansas
    Opinion delivered July 7, 1997

      Ed Webb, for appellant.
    No response.
   Per Curiam.

Appellant, Keith Dzhon Hills, has filed this Motion for Belated Appeal through his attorney, Ed Webb. On March 8, 1996, Mr. Hills’s probation was revoked, and he was sentenced to serve three years in the department of correction. He filed an untimely notice of appeal on February 7, 1997. In his motion, Mr. Webb admits that the notice of appeal was filed untimely due to an error on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).


text:
    Raymond SANDERS v. STATE of Arkansas
    CR 97-679
    952 S.W.2d 133
    Supreme Court of Arkansas
    Opinion delivered July 7, 1997

      Petitioner, pro se.
    No response.
   Per Curiam.

Raymond Sanders was found guilty of capital felony murder in the death of Frederick LaSalle and sentenced to life imprisonment without parole. We affirmed the judgment. Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992). The mandate was issued October 23, 1992.

On December 4, 1992, Tona M. DeMers, counsel for Sanders, filed in the trial court a petition pursuant to Criminal Procedure Rule 37 challenging the judgment. On October 1, 1996, Sanders filed a pro se amended petition under Rule 37. There is no order in the record relieving DeMers as counsel and nothing which explains why the original petition remained pending for nearly four years. The trial court entered an order on October 10, 1996, declaring the Rule 37 petition to be untimely and dismissing it. A timely pro se notice of appeal was filed by Sanders on November 8, 1996. The record was not tendered to this court within ninety days as required by Rule 5(a) of the Rules of Appellate Procedure, and Sanders, by his attorney Jeff Rosenzweig who is representing him pro bono, now seeks a rule on clerk to have the record lodged belatedly.

The sole issue before us at this juncture is whether petitioner Sanders has established good cause for the failure to lodge the record in a timely manner. If petitioner had been proceeding pro se throughout the Rule 37 proceeding, or if the record reflected that the attorney who filed the original Rule 37 petition had been relieved as counsel, we would not hesitate to find that petitioner had failed to exercise diligence in pursuing the appeal. Fie was, however, not proceeding pro se orginally, and his attorney, Tona M. DeMers, was obligated to obtain a ruling on the Rule 37 petition and remain as petitioner’s attorney until relieved by the trial court or this court. Rule 16 of the Rules of Appellate Procedure — Criminal provides that counsel, whether retained or court-appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or this court to withdraw. The rule applies to appeals of orders denying postconviction relief. Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989). Even though petitioner Sanders filed an pro se amended petition and a pro se notice of appeal, his attorney had not been relieved and was thus obligated to continue representing him, which included lodging the Rule 37 record here.

Because attorney Jeff Rosenzweig has undertaken to represent Sanders pro bono, we will accept his appearance as counsel and relieve Ms. DeMers. The motion for rule on clerk is granted.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Motion granted.


text:
    Earl SKILES v. STATE of Arkansas
    CR 97-515
    947 S.W.2d 14
    Supreme Court of Arkansas
    Opinion delivered July 7, 1997

      Keith Watkins, for appellant.

      No response.
   Per Curiam.

Earl Skiles, by his attorney, has filed a motion for a rule on the clerk which we treat as a motion for belated appeal.

His attorney, Keith Watkins, admits in his motion that the notice of appeal was filed before the judgment due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


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

text:
    NETTLETON SCHOOL DISTRICT v. Pam OWENS
    96-1083
    948 S.W.2d 94
    Supreme Court of Arkansas
    Opinion delivered July 14, 1997

      Womack, Landis, Phelps, McNeill & McDaniel, by: Lucinda McDaniel and Jeffrey W. Puryear, for appellant.

      Henry, Walden, Halsey & Mixon, by: Barbara Halsey, for appellee.
   W.H.“Dub” Arnold, Chief Justice.

This case involves the interpretation of the Teacher Fair Dismissal Act, codified at Ark. Code Ann. § § 6-17-1501 to -1510 (Repl. 1993). The trial court found that appellant Nettleton School District failed to strictly comply with the Act when it terminated appellee and cross-appellant Pam Owens’s contract for the 1993-94 school year. Both parties appeal the trial court’s order. We affirm the trial court’s ruling that the termination of Ms. Owens’s contract was void.

Ms. Owens entered into a contract with the district to serve as a counselor at University Heights Elementary School for the 1993-1994 academic year. At approximately 8:00 p.m. on January 11, 1994, Ms. Owens, accompanied by her three children, went to her classroom. According to Ms. Owens, prior to going to the school, she had consumed one glass of wine and had taken one tablet of prescription medication for anxiety and stress. She became drowsy while in the classroom and put her head down on her desk. When the children could not awaken her, they called their father, whom Ms. Owens had served with a divorce complaint the previous day. Mr. Owens contacted principal Kay Darby, who in turn contacted administrator Michael Johnson. The three proceeded to Ms. Owens’s classroom. According to Ms. Owens, she became upset and began crying when her husband entered her classroom.

According to principal Darby, she found Ms. Owens asleep on the floor of the classroom on the night in question. It was Ms. Darby’s opinion that Ms. Owens was intoxicated, as she could smell alcohol on her breath. Mr. Johnson also observed that Ms. Owens had been drinking. Ms. Darby and Mr. Johnson helped Ms. Owens to her car, and Mr. Owens drove the children home.

When Ms. Owens reported to work the following morning, principal Darby asked her to take some time off work. Thereafter, Ms. Owens checked herself into Green Leaf Hospital for treatment for chemical dependency and anxiety. On January 21, superintendent John Sawyer hand delivered a letter to Ms. Owens notifying her that she was suspended. In the letter, Mr. Sawyer stated that, because she had been under the influence of alcohol in her classroom on January 11, he would recommend to the school board that she be terminated due to her violation of the district’s Drug Free Work Policy.

The school board conducted a hearing on February 24, 1994, at which superintendent Sawyer distributed to each board member three documents, which, according to him, led to Ms. Owens’s suspension: 1) a memo from principal Darby to Mr. Sawyer dated January 19, 1994, which included not only a summary of the January 11 incident, but reports that Ms. Owens had been suspected of drinking at school activities on May 14, 1993, and September 21, 1993; 2) a letter written by Mr. Johnson dated January 12, 1994, in which he related that Ms. Owens had previously appeared on campus in an intoxicated condition; and 3) Mr. Sawyer’s January 21, 1994, notification letter to Ms. Owens. Ms. Owens and her treating physician at Green Leaf, Dr. David Silas, testified at the hearing. According to Dr. Silas, while Ms. Owens had developed a dependency on alcohol, she was not a chronic alcoholic. Ms. Darby and Mr. Johnson also testified at the hearing. The board inquired about the January 11, 1994, incident, as well as the 1993 incidents. At the conclusion of the hearing, the board went into executive session for approximately two hours, after which superintendent Sawyer recommended in an open session that Ms. Owens be terminated. The board voted unanimously to accept Sawyer’s recommendation. No other vote was taken.

On March 3, 1994, Ms. Owens received a letter from board president Lennie Hogan. According to Mr. Hogan, the board unanimously concluded that the following were the true reasons for her termination: 1) she violated the district’s Drug Free Work Place Policy; 2) she violated the district’s personnel policy; 3) she failed to meet the expectations of an elementary counselor; and 4) her termination was in the best interests of the students.

Ms. Owens filed suit in Craighead County Circuit Court, alleging that the board’s action was arbitrary and capricious. The trial court conducted a hearing, at which Ms. Owens testified on her own behalf. Following her testimony, the district moved for directed verdict. The trial court denied the motion, after which the district presented the testimony of Ms. Darby, Mr. Johnson, Mr. Hogan, and board member Richard Carvell. At the conclusion of the hearing, the trial court ruled that Ms. Owens’s termination was void due to the district’s failure to conduct a separate vote on whether the reasons in support of superintendent Sawyer’s recommendation for termination were true. On March 12, 1996, the trial court entered an order awarding Ms. Owens the balance of her contract for the 1993-94 school year, but denying her request for attorney’s fees for representation at the board hearing and before the Arkansas Employment Security Division. On April 4, 1996, the trial court entered an order denying Ms. Owens’s claim for attorney’s fees for representation in the circuit court action.

On direct appeal, the district claims that the trial court erred in fading to grant its motion for directed verdict at the close of Ms. Owens’s case. Because the district waived any reliance on its motion when it chose to go forward and put on its own case, its contention is meritless. See Willson Safety Prods, v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990).

The district further challenges the trial court’s ruling that it failed to strictly comply with the Act when it terminated Ms. Owens’s contract without conducting a separate vote on the truth of each reason given in support of the recommended termination. The provision in question, § 6-17-1510(c), provides as follows:

Subsequent to any hearing granted a teacher by this subchapter, the board, by majority vote, shall make specific writte„n conclusions with regard to the truth of each reason given the teacher in support of the recommended termination or nonrenewal.

The trial court ruled that the termination of Ms. Owens’s contract was void because the district, while voting unanimously to accept superintendent Sawyer’s recommendation of termination, failed to conduct a separate vote on the reasons or the truth of the reasons in support of the termination. The district argues that § 6-17-1510(c) does not require a separate vote. Describing the termination of Ms. Owens as “unique,” the district contends that the board’s vote on the recommended termination and the vote on the reasons given in support of the recommendation were simultaneous and thus were in compliance with the Act. In support of its argument, the district refers to board president Hogan’s March 3, 1995, letter to Ms. Owens, in which he related the board’s unanimous conclusion that there were four true reasons for her termination: 1) violation of the district’s Drug Free Work Place Policy; 2) violation of the district’s personnel policy; 3) failure to meet the expectations of an elementary counselor; and 4) that Ms. Owens’s termination was in the best interests of the students. While the plain language of the statute does not speak in terms of a “separate” vote, § 6-17-1510(c) plainly requires a majority vote on the truth of each reason given the teacher in support of the recommended termination. The board must make specific written conclusions with regard to each of these reasons. Board member Richard Carvell testified that the only vote taken by the board was to accept Mr. Sawyer’s recommendation:

Mr.. Hogan: We are in open session to the press. Mr. Sawyer, do you have a recommendation?
Mr. Sawyer: Mr. President, my recommendation is that Pam Owens be terminated from Nettleton Schools as of February 25, 1994, and that would begin tomorrow.
Motion: Ed Wilson, to accept the recommendation of the Superintendent.
Second: Richard Carvell
Action: 5-0
Motion: Ed Wilson, to adjourn at 9:00 p.m.
Second: Richard Carvell
Action: 5-0

Regarding Mr. Hogan’s March 5 letter, he admitted at the hearing before the trial court that he did not write it, but merely signed it after it was presented to him by superintendent Sawyer. According to Mr. Carvell, the board did not vote to authorize Mr. Hogan to write the letter to Ms. Owens. Moreover, the parties stipulated that the board’s vote to accept superintendent Sawyer’s recommendation to terminate Ms. Sawyer’s contract was the only vote taken at the hearing and that there was no separate vote on the four issues supporting the termination.

The trial court found that Ms. Owens’s termination was void because the board failed to conduct a separate vote on the reasons or the truth of the reasons in support of the termination. We conclude that the district did not strictly comply with § 6-17-1510(c) when the board failed to obtain a majority vote with regard to the truth of each reason given Ms. Owens in support of the recommended termination. We will affirm the ruling of a trial court if it reached the right result, even though it may be for a different reason. Summers Chevrolet, Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992). In this case, the trial court reached the correct result, even though we affirm that result for a reason other than the one stated.

The district’s failure to obtain a majority vote with regard to the truth of reasons in support of the recommended termination becomes even more troublesome when considered together with Ms. Owens’s point on cross-appeal that the district failed to give her notice that incidents in May 14, 1993, and September 21, 1993, would be considered at the hearing. At the conclusion of the hearing, the trial court addressed this issue as follows:

[T]he incidents in May and September of 1993, they weren’t part of the reasons the superintendent gave in his letter, but there was testimony related to those reasons. In fact, the board members asked questions in the transcript about those two instances, and if those incidents were a part of the reason for termination, then I couldn’t uphold the termination because they weren’t — The teacher wasn’t given notice in the superintendent’s letter that those were part of the grounds for termination. I don’t know that those were part of the reasons.

The provision at issue, § 6-17-1507(c), provides that “[t]he notice (of termination recommendation) shall include a simple but complete statement of the grounds for the recommendation of termination ...” Without information that the 1993 incidents would be considered, Ms. Owens’s “preparation for a hearing was well nigh impossible.” Hamilton v. Pulaski County Special Sch. Dist., 321 Ark. 261, 900 S.W.2d 205 (1995). While Messrs. Carvell and Hogan testified that everyone on the board understood that he or she was voting only on the four grounds cited in the superintendent’s letter, their testimony contradicts the superintendent’s opening address at the hearing:

At this time Mr. President I would like to hand out to you three documents. One is a document . . . written by Kay Darby, the other is (by) Mike Johnson and the third is part of, it is the letter that was hand delivered by Kay Darby and myself to Pam Owens on approximately the twenty-first of January.
Mr. President I know you’ve had the opportunity to, you and the board, to review the three documents that are in front of you. Those documents led to the suspension that was issued and in that suspension there was a recommendation for termination . . .

(Emphasis added.) As the trial court observed, there was testimony regarding both the May and September 1993 incidents at the hearing. The board members asked questions about both incidents. If, contrary to the superintendent’s opening remarks, the 1993 incidents indeed were to have no bearing whatsoever on the board’s decision to terminate, we question the purpose behind their presentation to the board. Because the notice of termination recommendation did not include the 1993 incidents, we must conclude that the district failed to comply with § 6-17-1507(c). When considering the violation of this provision together with the district’s violation of § 6-17-1510(c), we hold that the district’s decision to terminate Ms. Owens’s contract was void.

Ms. Owens further contends that the district faded to engage in remedial or rehabilitative measures as mandated by § 6-17-1504(c). She also complains that the district did not strictly comply with § 6-17-1507(c), which requires that the superintendent send his notice of termination recommendation by registered or certified mail. Our holding that the termination of Ms. Owens’s contract was void due to the district’s failure to strictly comply with § § 6-17-1510(c) and 6-17-1507(c) renders moot any claims by Ms. Owens that the district failed to strictly comply with other provisions of the Act, as a district’s termination of a teacher is void unless the district strictly complies with all provisions of the Act. See § 6-17-1503 (emphasis added). With limited exceptions not applicable here, this court does not address moot issues. Leonards v. E.A. Martin Machinery Co., 321 Ark. 239, 900 S.W.2d 546 (1995).

On cross-appeal, Ms. Owens claims that the trial court erred in refusing to award her attorney’s fees. The trial court entered his judgment on Ms. Owens’s appeal of her termination on March 12, 1996. In this order, the trial court denied Ms. Owens’s request for attorney’s fees for representation at the board hearing and before the Employment Security Division. Ms. Owens filed her notice of cross-appeal on April 22, 1996, which recited that she was appealing the trial court’s March 12 judgment. On April 4, 1996, the trial court entered an order denying Ms. Owens’s request for attorney’s fees for representation in the circuit court action.

The district asserts that Ms. Owens’s claim for attorney’s fees for the circuit court representation is procedurally barred since she did not appeal the April 4 order. We agree, as we have held that the issue of attorney’s fees is a collateral matter. Mason v. Jackson, 323 Ark. 252, 914 S.W.2d 728 (1996). Because no notice of appeal was filed from the April 4 fee order, we will not review this issue.

Regarding the attorney’s fees issue pertaining to the board and Employment Security Division representation, neither was a civil action. See Sosebee v. County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556 (1995). Thus, the attorney’s fees statute, Ark. Code-Ann. § 16-22-308 (Repl. 1994), does not apply, and the trial court was correct in denying Ms. Owens’s request in his March 12 order. Based on the foregoing, we affirm the decision of the trial court.

Affirmed on direct appeal; affirmed on cross-appeal.

Brown, J., concurs.

Corbin, J., dissents.

Robert L. Brown, Justice,

concurring. I agree with Justice Corbin that the majority of the court construes Ark. Code Ann. § 6-17-1510(c) erroneously; however, the majority, in my view, was correct in determining that the school district had failed to comply strictly with Ark. Code Ann. § 6-17-1507(c) (Repl. 1993). For that reason, I concur in the judgment.

The court interprets § 6-17-1510(c) to require two separate votes. Section 6-17-1510(c), however, provides no such thing:

(c) Subsequent to any hearing granted a teacher by this sub-chapter, the board, by majority vote, shall make specific written conclusions with regard to the truth of each reason given the teacher in support of the recommended termination or nonrenewal.

Ark. Code Ann. § 6-17-1510(c) (Repl. 1993). This language only mandates that written conclusions be made by majority vote. As counsel for Owens conceded during oral argument, it is not impermissible for one vote to cover both the termination and the conclusions supporting the termination so long as the requirements of the Act are satisfied. Counsel for Owens merely disputed that one vote here was meant for both purposes.

Both school board member Richard Carvell and school board president Lennie Hogan testified that everyone on the board understood what was being voted on in the single vote following their two-hour closed session. The single vote, according to Carvell and Hogan, was to resolve whether the four grounds cited in the notice of termination were true and whether Ms. Owens should be terminated. The parties then stipulated that the other board members’ testimony would match that of Carvell and Hogan. Added to this evidence is the follow-up letter from board president Hogan to Ms. Owens informing her that she had been terminated. In the letter, Hogan reported that the school board had unanimously concluded that the four grounds were true.

The Hogan letter coupled with the testimony from board members Carvell and Hogan provide unmistakable proof that the school board, by majority vote, made specific written conclusions regarding the truthfulness of the reasons given for the recommendation of termination in strict compliance with the statute. Nothing else was required to satisfy the elements of Ark. Code Ann. § 6-17-1510(c), and the majority errs in saying that more was required.

Nevertheless, the judgment should be affirmed on direct appeal under Allen v. Texarkana Pub. Sch., 303 Ark. 59, 794 S.W.2d 138 (1990), and Murray v. Altheimer-Sherrill Pub. Sch., 294 Ark. 403, 743 S.W.2d 789 (1988). In those cases, we recognized that teachers are entitled to rely on the “simple but complete” statement of reasons for nonrenewal or termination. See Ark. Code Ann. § 6-17-1507(c) (Repl. 1993).

In Allen we held that the school district failed to make a simple and complete statement of reasons for nonrenewal when specific acts in issue before the board were not mentioned in the recommendation of nonrenewal. We said:

To allow the superintendent and the board to delve into ad libbed charges renders meaningless the requirements of sections 16-17-1507(b) [sic] and 16-17-1507(c) [sic], and our language in Murray that teachers are entitled to rely on a simple and complete statement of reasons as to nonrenewal of their contracts.

Allen v. Texarkana Pub. Sch., 303 Ark. at 63, 791 S.W.2d at 140. This rationale applies equally well to the facts before us, and I agree that the Nettleton School District ran afoul of this principle when it presented two other reports of suspected drunkenness at school without providing proper notice to Owens.

Donald L. Corbin, Justice, dissenting. I dissent because I believe the majority’s interpretation of Ark. Code Ann. § 6-17-1510 (Repl. 1993) is incorrect, especially given the facts presented in this case. During the hearing before the trial court, testimony was taken from board member Richard Carvell and board president Lennie Hogan. After hearing their testimony, the parties stipulated that the remaining board members would duplicate the statements of Carvell and Hogan; thus, their testimony was automatically received.

Both Carvell and Hogan testified that the board members understood that superintendent Sawyer’s recommendation for Owens’s termination was based upon the four reasons outlined in the letter advising her of her suspension. Both members stated that they understood that the purpose of the special hearing was to consider the four issues listed in the letter of suspension. Both members stated that the board had discussed the four issues during executive session, and that when they had returned to the hearing on the record and Sawyer made his recommendation, they understood that they were voting on the four issues as discussed. Hogan testified further that he asked every board member if he understood what the board was voting on, and that everyone understood. Finally, when asked by the trial court what they would have done if they had not agreed with all four reasons for termination, both Carvell and Hogan indicated that had there been any doubt on any of the issues, they would have asked for an individual vote on each of the issues. There was no such doubt, as the board unanimously agreed to terminate Owens on the reasons presented. After the hearing, a letter reflecting the four grounds for termination was sent to Owens from Hogan.

In my opinion, the testimony by the board members indicates that the board complied with the statutory requirements set out in section 6-17-1510(c), which requires nothing more than a majority vote with written conclusions as to the truth of each reason given for termination. The majority’s decision would require a separate majority vote on each of the four reasons given for termination. I interpret that section as requiring a majority vote to terminate with written conclusions on each separate reason given. Here, the school district complied with section 6-17-1510(c) in that the board unanimously voted to terminate Owens, after having discussed each of the four reasons for termination in executive session, and a follow-up letter reflecting each of the board’s written conclusions was sent to Owens.

Notwithstanding the majority’s conclusion that the district failed to give Owens proper notice of the two 1993 drinking incidents, I believe the majority’s interpretation of section 6-17-1510(c) is unduly technical, and I respectfully dissent. Furthermore, I believe the fact that the district may not have given Owens notice as to the prior drinking incidents, does not warrant a determination by this court that the district acted arbitrarily or capriciously. To the contrary, any testimony concerning prior incidents of Owens’s intoxication on campus or at school activities was merely extraneous because the district based its determination to terminate Owens on the four grounds set out in the suspension letter.

In light of the trial court’s finding that the school district had not acted arbitrarily, capriciously, or without a rational basis in terminating Owens from her employment, I would remand this case with instructions that the trial court enter an order in favor of the school district.