author: Tom Glaze, Justice.

text:
    SHELTER MUTUAL INSURANCE COMPANY v. Arch IRVIN
    91-247
    831 S.W.2d 135
    Supreme Court of Arkansas
    Opinion delivered May 11, 1992
    [Rehearing denied June 8, 1992.]

      Roy & Lambert, by: James M. Roy, Jr., for appellant.

      Odom & Elliott, by: Don R. Elliott, Jr., for appellee.
   Tom Glaze, Justice.

This case requires our interpreting Act 335 of 1987, codified as Ark. Code Ann. § 23-89-209 (1987), which provides that every insurer writing liability insurance in Arkansas on any motor vehicles in the state shall make available under-insured motorist coverage to their named insureds. About one year after Act 335 became effective, appellee’s automobile was struck by a vehicle driven by Rebecca McClelland, who was insured by Farmers Insurance Group with a policy bearing liability limits of $25,000 per person. Appellee’s total damages were $42,500, and upon receiving policy limits of $25,000 from Farmer’s, appellee became underinsured in the amount of $17,500. Appellee was insured by appellant, Shelter Mutual Insurance Company, but his policy contained no under-insured motorist coverage. Nonetheless, he sued Shelter, alleging Shelter had a duty under Act 335 to offer him under-insured coverage, and it had failed to do so. Appellee asserted that such coverage in the amount of $ 17,500 should be implied by operation of law. The trial court agreed, and from that decision, Shelter brings this appeal.

Act 335, as codified, provides as follows:

(a) Every insurer writing automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicles in this state shall make underinsured motorist coverage available to the named insured, which coverage enables the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle. Coverage limits shall be equal to the limits of liability provided by the underinsured motorist coverage to the extent the coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.
(b) For purposes of this section, private passenger automobile liability insurance shall be defined pursuant to Sec. 23-89-301.

In reading the foregoing, the trial court concluded Shelter was required to make underinsured coverage available to appellee. The parties stipulated that neither Shelter nor its agent gave oral notice of such coverage to appellee, and Shelter never sent or conveyed any written information about the coverage to appellee or, for that matter, to any of its insureds. The court found that, while appellee’s applications for motorist insurance contained the term “underinsured motorist” where optional coverages and their limits were listed, it concluded this mere printing of the term with nothing more fell short of the “shall make available to the named insured” requirement dictated by Act 335.

Until now, our court has not interpreted Act 335. The Eighth Circuit Court of Appeals, however, has done so in the case of Edens v. Shelter Mut. Ins. Co., 923 F.2d 79 (8th Cir. 1991). There, Edens claimed entitlement to underinsured motorist benefits under a Shelter liability insurance policy issued under circumstances similar to the ones in the present case. Shelter argued it complied with the “shall make available” requirement in Act 335 (1) by providing the named insureds with insurance application forms containing a box which they could check if they wanted underinsured motorist coverage and (2) by filing rates and endorsements for such coverage with the Arkansas Insurance Commissioner.

The federal district court in Edens agreed with Shelter. And the Eighth Circuit, in affirming the district court, reasoned that, if the Arkansas General Assembly had intended to require more on an insurer’s part, it could have specified the underinsured coverage information an insurer must provide an insured or provided underinsured coverage that would automatically be a part of the policy unless rejected by the insured. Regarding this latter suggestion, the court pointed out the General Assembly made such an “opt-out” requirement of insurers when offering uninsured and no-fault insurance under Ark. Code Ann. §§ 23-89-403 and 23-89-202, but that legislative body made no such requirement when enacting Act 335. The court suggested this disparate treatment reflected a policy decision of the General Assembly that uninsured and no-fault insurance were considered so vital that they will be assumed to be a part of an insured’s policy unless rejected, while underinsured motorist coverage was less vital or important and must merely be available for election by an insured.

First, we point out that Act 335 has been amended since the Edens case was decided, and the General Assembly now has provided, like in no-fault and uninsured coverage situations, insurers shall provide underinsured motorist coverage to the named insured unless such coverage is rejected in writing by the insured. See Acts 209 and 1123 of 1991. Thus, contrary to the court’s suggestion in Edens, the General Assembly does equate the importance of underinsured coverage with uninsured and no-fault coverages. Of course, Act 335 contained no “opt-out” requirement for underinsured coverage when appellee incurred his damages in 1988, but Acts 209 and 1123 amending Act 335 dispel any notion that the General Assembly considered uninsured coverage less vital than no-fault or uninsured coverages.

The General Assembly also reflected the significance it attached to this new optional underinsured coverage by adopting such coverage by separate enactment, Act 335, mandating insurers to make that coverage available to insureds. Other optional coverages such as collision, comprehensive, fire, theft and windstorm are not statutorily mandated coverages.

If any doubt or ambiguity exists as to the meaning of the “shall make available” language in Act 335 (and from the parties’ respective and well-reasoned arguments, we believe there is), the General Assembly clearly set out in the preamble of the Act that it intended the enactment to require insurers to offer underinsured motorist coverage to insureds purchasing automobile liability policies. Shelter argues, like in Edens, that it met this requirement by listing underinsured coverage along with other optional coverages on Shelter’s application forms. Shelter argues that appellee and his wife, as insureds, signed these applications and had a duty to educate themselves concerning this insurance. Continental Cas. Co. v. Didier, 301 Ark. 159, 783 S.W.2d 129 (1990). While we agree with the principle announced in Didier, we fail to see its relevancy here.

• The General Assembly clearly mandated insurers to offer underinsured coverage to insureds not only because such coverage was new and insureds were generally unfamiliar with this coverage, but also because the General Assembly considered underinsured coverage significant and vital enough to require by law that this new coverage be offered insureds. In amending Act 335 by Acts 209 and 1123 of 1991, the General Assembly attempted to ensure no misinterpretation would result so as to exclude insureds from receiving these new and important benefits provided by underinsured coverage. As previously mentioned, that legislative body had already emphasized the importance of such coverage by requiring issuers to offer it to insurers in the original version of Act 335.

In the present case, appellee offered proof that the application forms signed by him and his wife were furnished by Shelter but that Shelter’s agents never discussed underinsured coverage with them. Shelter stipulated that neither it nor its agent orally notified appellee of such coverage; nor did Shelter or its agents furnish appellee with any written material concerning the coverage between the effective date of Act 335 and the date of the accident. Based on these facts, we believe the trial court was correct in holding Shelter failed to offer underinsured coverage as intended and in the manner required by Act 335.

Because Shelter failed to make underinsured coverage available, we also agree with the trial court’s implying such coverage by operation of law. Appellant contends that because the General Assembly has not imposed a specific penalty for noncompliance, none should be imposed as a matter of law.

Many jurisdictions have implied underinsured motorist coverage by operation of law when the insurer violated its statutory duty. Tucker v. County Mut. Ins., 125 Ill. App. 3d 329, 465 N.E.2d 956 (1984); Siebels v. American Family Mutual Ins., 374 N.W.2d 220 (Minn. 1985); Holman v. All Nation Ins. Co., 288 N.W.2d 244 (Minn. 1980); Blizzard v. State Farm Automobile Ins. Co., 738 P.2d 983 (Or. App. 1987); Dewart v. State Farm Mut. Auto. Ins. Co., 370 S.E.2d 915 (S.C. App. 1988); Bias v. Nationwide Mut. Ins. Co., 365 S.E.2d 789 (W. Va. 1987).

We believe such a remedy is likewise appropriate in the situation before us. In so holding, we refer to that part of Act 335 which provides the underinsured coverage required is to enable the insured to recover from the insurer the amount of damages for bodily injury to which the insured is legally entitled from the operator of another motor vehicle. Considering the facts and stipulations before the trial court, we affirm its award of $17,500 which is consistent with the coverage that Shelter should have offered appellee and the losses he sustained.

For the reasons above, we affirm.


source: Caselaw Access Project

author: Donald L. Corbin, Justice. Steele Hays, Justice,

license: Public Domain

text:
    Willene HENRY and Rich Roth v. Mark Andrew EBERHARD
    91-255
    832 S.W.2d 467
    Supreme Court of Arkansas
    Opinion delivered May 11, 1992
    [Rehearing denied June 15, 1992.]

      Debby Thetford Nye, Chief Counsel, and Bruce P. Hurlbut, Asst. Chief Counsel of the Department of Human Services, for appellants.
    No response from appellee.

      Winston Bryant, Att’y Gen., by; Clint Miller, Senior Asst. Att’y Gen., for intervenor State of Arkansas.

      David J. Manley, of Legal Services of Arkansas, for amicus curiae Arkansas Advocates for Children and Families.
   Donald L. Corbin, Justice.

Appellants, Willene Henry and Rich Roth, appeal an order entered by Judge Crabtree of the Benton County Chancery Court holding them both in criminal contempt for interfering with a previous order of that court. Both appellants are employees of the Arkansas Department of Human Services (DHS). They assign five points of error in the proceedings below. We find no error and affirm.

This appeal revolves around the custody of a minor, Jeffrey Eberhard. This case involves a complex set of facts. There were originally two separate actions going on simultaneously, a divorce action in chancery court and a dependent and neglected action in juvenile court. The two cases were consolidated, so that all issues were determined in the divorce action in chancery court. Appellants were eventually held in contempt and appealed to this court. Appellee did not file a response brief to appellants’ brief. We allowed the state to intervene in the appeal and the Attorney General filed a brief on the state’s behalf. We also allowed the filing of a brief for the amicus curiae, Arkansas Advocates for Children and Families.

Jeffrey Eberhard’s parents had a divorce hearing on February 14, 1991. At the conclusion of that hearing, which was conducted by Judge Huffman of the Benton County Chancery Court, the chancellor announced from the bench that he would grant the defendant, Mark Eberhard, a divorce. Included in that oral ruling was an award of custody of the couple’s son, Jeffrey, to the plaintiff, Rebecca Eberhard. The chancellor announced that Mr. Eberhard’s weekend visitation rights could begin on the upcoming Saturday, February 16, 1991. Because there was evidence at the divorce hearing that Mr. Eberhard had sexually abused Jeffrey, visitation was awarded subject to third-party supervision. These verbal rulings were not written and filed of record with the clerk until March 26, 1991.

On January 29, 1991, prior to the Eber hards’ divorce hearing, appellant Henry had filed a petition for court ordered supervision of Jeffrey pursuant to the dependent and neglected provision of the Arkansas Juvenile Code. The juvenile judge, Judge Crabtree, issued an order on that same day restraining and enjoining Mr. Eberhard’s contact with his son.

In an effort to realize the visitation rights verbally granted to Mr. Eberhard in the divorce proceeding, Judge Huffman first consulted Judge Crabtree and then vacated the restraining order issued in the juvenile court proceeding. Judge Huffman then consolidated the juvenile case with the divorce case so that the related issues of Jeffrey’s custody and visitation could be resolved.

Before Mr. Eberhard’s scheduled visitation with Jeffrey was to begin on February 16,1991, appellant Henry placed Jeffrey in the protective custody of DHS for seventy-two hours pursuant to Ark. Code Ann. § 12-12-509(1987 &Supp. 1991). These actions prevented Mr. Eberhard from visiting his son as permitted by the chancellor in the divorce proceeding.

The contempt proceedings in question began when Judge Huffman issued an order for Henry, her supervisor Roth, and DHS attorney Ron McLaughlin, to appear in his court and show cause why they should not be held in contempt for interfering with the order granting visitation rights for the weekend of February 16, and 17, 1991. Judge Huffman then sua sponte recused from the case and transferred it to Judge Crabtree. Judge Crabtree held hearings on the show cause orders and, after issuing a couple of intermediate orders, issued the final order of contempt on May 23, 1991.

The order entered May 23,1991, found that both Henry and Roth had knowledge of the verbal visitation order and that they both willfully violated that order by taking protective custody of Jeffrey on February 16,1991. Mr. McLaughlin was not found to be in contempt. Initially, Henry was sentenced to ninety days in jail, with eighty days suspended upon the condition that she pay costs and attorney fees incurred by Mr. Eberhard in prosecuting her interference with the verbal visitation order. Roth’s sentence was taken under advisement. On appellant’s motion for reconsideration, the court issued another order which modified Henry’s sentence so that only sixty days of the sentence was suspended; in addition, she was required to take a psychological examination, the results of which were to be reported to the court. The final order issued on May 23, 1991, affirmed Henry’s sentence as per the previous order, fined Roth $250.00, and sentenced him to thirty days in jail, both of which were suspended for one year conditioned on full compliance with all orders of the court.

We note that none of the parties has raised the issue of the suspension of part of the sentence for contempt. However, because the suspension could possibly render this appeal moot, we address this preliminary issue. It is well-settled that suspension of a sentence for contempt is in effect a complete remission of the contempt. Higgins v. Merritt, 269 Ark. 79, 598 S.W.2d 418 (1980); Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967); Stewart v. State, 221 Ark. 496, 254 S.W.2d 55 (1953). When applying this rule concerning remission, we have indicated that when part of the sentence is suspended, the portion that was suspended is remitted but the remaining portion of the contempt still exists. James v. James, 237 Ark. 764, 375 S.W.2d 793 (1964).

This appeal is therefore not rendered moot by the partial suspension of the sentences. Eighty days of appellant Henry’s sentence were suspended and therefore remitted; however, the remaining ten days properly place the issues raised by appellant Henry before us on appeal. As appellant Roth’s sentence was suspended conditionally for a specific period of time, we conclude this suspension amounted to a mere postponement of the contempt rather than a remission. See Johnson, 243 Ark. at 660, 421 S.W.2d at 607. Therefore, the issues raised by Roth are properly before us on appeal.

The trial court did not state whether it was holding appellants in civil or criminal contempt. However, the record reveals that, in addition to the purpose of coercing appellants to comply with previous court orders, the sentences imposed were for the purpose of punishing appellants’ deliberate interference with the court’s order. Thus, this was both a civil and a criminal contempt proceeding. See Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).

We apply the standard of review for criminal contempt because it, as well as the burden of proof, is stricter than that for civil contempt. In a criminal contempt proceeding, proof of contempt must exist in the trial court beyond a reasonable doubt. Jolly v. Jolly, 290 Ark. 352, 719 S.W.2d 430 (1986). On appellate review, we consider the evidence in the light most favorable to the trial court’s decision concerning the contempt and affirm if there is substantial evidence to support its decision. Arkansas Dep’t of Human Servs. v. Clark, 305 Ark. 561, 810 S.W.2d 331 (1991).

Appellants’ first assignment of error is essentially a claim that there is insufficient evidence to support the findings of contempt. Appellants specifically claim it was error to hold them in contempt because they had no direct knowledge of the visitation order, and the charge against them, they did not willfully disobey the visitation order, and they acted in good faith pursuant to an overriding responsibility to protect Jeffrey. Appellant Roth further argues that he is immune from being held in contempt because he acted in his official capacity as DHS supervisor. He relies on Ark. Code Ann. § 12-12-509 (1987), the protective custody provision of the Child Abuse Reporting Act in effect at the time Henry and Roth acted.

In the final order which consists of sixteen pages, Judge Crabtree set forth very detailed findings of fact and explained his reasoning for the conclusion that both appellants were in contempt. With respect to the issue of whether appellants had knowledge of the verbal visitation order, the chancellor found:

In the pleadings the Defendants assert a lack of knowledge of the terms of Judge Huffman’s Order. That simply is not true. Willene Henry quoted Judge Huffman’s Order in her Affidavit completed on Saturday, February 16, 1991, and attached to the Petition for Court Ordered Supervision. She stated under oath, “That on February 14, 1991, Mr. Mark Eberhard was granted four hours visitation with Jeffrey Eberhard with a ‘supervisor of his choice’ ” (quotations in original Affidavit). Throughout the hearing on contempt, Willene Henry and Rich Roth stated they removed Jeffrey Eberhard from the home because of the court-ordered visit and because she believed the visitation was going to occur. They both asserted they had no problem with the supervised visitation but with who the supervisor was going to be, i.e., Craig McNew’s fifteen-year-old daughter.

With respect to the issue of whether appellants willfully violated the visitation order, the chancellor found:

In her Affidavit, Henry stated that Rebecca Eberhard coúld no longer protect the child because the Court had ordered visitation and that she could possibly be found in contempt and incarcerated for refusing to follow the Court Order. Surely, Rebecca Eberhard could protect her child if the occasion arose that required protection. The Department has never alleged, except in the affidavit of February 16, 1991, that Rebecca Eberhard could not properly care for the child or protect the child. The Department has never asked the Court to remove the child from Rebecca Eberhard’s custody and place him in foster care. Again, it wasn’t the supervised visit that agents of the Department disagreed with, but who was to supervise the visit. According to the testimony of Officer Jordan, Willene Henry stated they (presumably she and Roth as agents of DHS) did not like the Judge’s decision and were going to take Jeffrey into custody. In addition, Willene Henry telephoned Mark Eberhard and stated he could not visit with the child because she had taken him into foster care and if he wanted visitation to call her Tuesday morning, as if the final decision was hers and not the Court’s. Henry and Roth took Jeffery Eberhard into custody and placed him in foster care to circumvent the Order issued by Judge Huffman. It is clear that Henry and Roth intentionally violated Judge Huffman’s February 14, 1991, Order.

There is substantial evidence in the record to support these findings. In fact, we need look no further than the testimonies of appellants during the contempt hearing to find the supporting evidence. At two different points during her testimony, Henry admitted that on the evening of February 16,1991, she was aware that Mr. Eberhard was planning to visit Jeffrey on February 16, 1991, and that this visit was the result of an order issued by Judge Huffman. She testified further that she and appellant Roth made a joint decision to take Jeffrey into protective custody.

Roth testified that by the afternoon of Friday, February 15, 1991, he was aware that Judge Huffman had issued an order on the day before granting Mr. Eberhard visitation with Jeffrey. He stated that he and Henry were concerned for Jeffrey’s welfare due to the upcoming court-ordered visitation, and confirmed Henry’s testimony that the two of them made a joint decision to take protective custody of Jeffrey on February 16, 1991.

Appellants’ testimonies regarding the willfulness of their actions taken in violation of the visitation order are corroborated by Bentonville Police Officer Kenneth Jordan. Officer Jordan accompanied Roth to Mrs. Eberhard’s house to take custody of Jeffrey and testified that he overheard Henry say to Mrs. Eberhard that “they didn’t agree with the decision of the Court, that Mr. Eberhard, or that the step-father, or father, had unsupervised [sic] visitation rights to the child.”

The record is overflowing with substantial evidence to support the chancellor’s findings that both appellants knew of the visitation order and willfully and deliberately violated that order by disobeying process and initiating the proceedings to take Jeffrey into protective custody. Accordingly, we cannot say he erred in holding both appellants in criminal contempt for the obviously deliberate interference with the visitation order.

In support of their first assignment of error, appellants claim they should not have been held in contempt because they acted in good faith pursuant to an overriding responsibility to protect children under Arkansas law. Appellants argue that, as they viewed the facts, Jeffrey was a previous victim of sexual abuse and was about to be placed in a situation of imminent peril. They believed he was in imminent peril because of the upcoming visitation by Mr. Eberhard, which appellants allege was to be supervised by the teen-aged daughter of a friend of Mr. Eberhard. Thus, in their professional opinion, Jeffrey was in a situation which warranted their actions. Appellants claim their actions in taking Jeffrey into protective custody were consistent with the Child Abuse Reporting Act and DHS policy. They further claim that the “duties and responsibilities placed on DHS to protect children are paramount” and that “the authority to act to immediately remove a child from a situation deemed by a DHS official to be one in which the child is in imminent peril must carry greater weight to override existing court orders.” Appellants’ view is summarized in their brief as follows, “Likewise, it is inconceivable that the duty of a DHS official would be tempered by the existence of a court order which might be in conflict with the removal of a child from a dangerous situation.”

Appellants’ view of the relationship between the Child Abuse Reporting Act, DHS Policy, and the trial courts of this state is skewed. First, there is simply no evidence in the record to support the allegation that a teen-aged girl was going to supervise Mr. Eberhard’s visit with Jeffrey. Thus, there was no “imminent peril” that would have justified appellants’ actions. Second, appellants claim their actions were consistent with DHS policy, when in fact, their actions were inconsistent with DHS policy. If a situation similar to the one facing Jeffrey placed him in imminent peril, appellants had a duty to notify Judge Huffman of that fact during the divorce hearing. Appellant Henry testified at that hearing. If she was so convinced that Mrs. Eberhard could not adequately protect Jeffrey from Mr. Eberhard, Henry should have so testified. She did not. There is nothing in the record to indicate the chancery court was ever notified of any substantiated reports of sexual abuse of Jeffrey. Furthermore, there is no evidence of compliance with the DHS policy requiring notification of the prosecuting attorney and law enforcement officials of a report indicating sexual abuse of a child. This failure to present this evidence to the chancery court and other authorities is in direct violation of statutory law and DHS Policy. See Ark. Code Ann. § 12-12-507(b) (1987); Cundiff v. Crider, 303 Ark. 120, 792 S.W.2d 604 (1990); DHS, Division of Children and Family Services, Policy Manual 1812.2.1; 1823.1.1.

The Child Abuse Reporting Act and DHS policies are designed to work with the trial courts of this state, not against the courts, as appellants claim. It is inconceivable to this court that appellants would view their determinations of a child’s need for protection as above and beyond any order of a chancellor, especially when the chancellor was not given the benefit of DHS’s knowledge of the substantiated reports of abuse as required by DHS policy.

The evidence reveals that appellant Henry started her investigation of Jeffrey’s case in October 1990. She did not file the petition requesting Mr. Eberhard’s restraint from Jeffrey until January 29, 1991. Mr. McLaughlin testified such a delay was unusual. The evidence further reveals that once aware of the visitation order issued February 14, 1991, for the weekend of February 16 and 17, 1991, appellant Henry again delayed her actions. She made no effort to contact Judge Huffman about her concern for the scheduled visitation. She most certainly could have received his attention by filing another petition or motion for reconsideration. She did nothing except initiate the protective custody proceedings in a willful violation of the visitation order.

The record reveals that appellants were aware of the lower court’s visitation order and that they willfully interfered with it. After evaluating the credibility of the witnesses, Judge Crabtree specifically found that appellants were not acting in good faith when they took Jeffrey into custody. This is not a case in which DHS employees were completely unaware of the civil proceedings being conducted simultaneously with the juvenile proceedings. Appellants were aware of the alleged sexual abuse months before the divorce proceeding. They never filed any kind of action alleging that Jeffrey should be removed from his mother’s home. However, on February 16, 1991, appellant Henry, with appellant Roth’s approval, went to Mrs. Eberhard’s home, accompanied by a police officer, removed Jeffrey and placed him in foster care for three days. They took these actions in complete disregard of any resulting trauma, to Jeffrey or his family. There is substantial evidence to support the finding of a lack of good faith.

Appellants argue they acted as officials of DHS and were therefore immune from being held in contempt pursuant to Ark. Code Ann. § 12-12-510 (1987). This argument of immunity is without merit.

We agree that appellants acted as DHS officials when they initiated taking protective custody of Jeffrey. We also agree that section 12-12-510, and the current statute, Ark. Code Ann. § 12-12-517 (Supp. 1991), presumes the good faith of DHS officials and grants them immunity from civil or criminal liability for their actions in investigating and reporting child abuse. However, section 12-12-510 does not grant immunity from contempt proceedings, because the power of contempt is granted to our courts in the Arkansas Constitution and cannot be abridged by the General Assembly. See Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988). To extend section 12-12-510 to grant immunity from civil and criminal contempt would be an abridgement of the court’s power to punish for disobedience of process; such an abridgement is prohibited. We conclude, therefore, that appellants are not immune from a contempt proceeding and there was no error committed by holding them in contempt of court.

Appellants’ second assignment of error is that both chancellors acted with bias and prejudice in conducting the proceedings to the extent that their constitutional right to present a defense was violated. In addition to merely alleging that error has occurred, appellants must demonstrate the prejudice caused by the alleged error. Smith v. State, 307 Ark. 223, 818 S.W.2d 945 (1991). Here, appellants have not met their burden of showing that prejudice occurred.

Appellants argue that Judge Huffman was predisposed regarding the sexual abuse of Jeffrey and DHS’s pending petition in juvenile court. For whatever reason, be it the allegations of Mr. Eberhard’s sexual abuse of Jeffrey without any substantiated reports from DHS or something else entirely different, Judge Huffman felt compelled to require that Mr. Eberhard’s visitation of Jeffrey be supervised by a third person. Had he been predisposed regarding Mr. Eberhard’s alleged abuse of Jeffrey, he would not have provided the safeguard of supervision when he granted visitation. The supervisory safeguard is convincing evidence that Judge Huffman was not predisposed one way or the other regarding the alleged sexual abuse.

Appellants also argue that Judge Huffman’s consolidation of the divorce case and the juvenile case is evidence of his bias and prejudice. The consolidation was nothing more than an expression of Judge Huffman’s concern that all the custody issues be resolved consistently. There was no bias or prejudice in the consolidation of the two cases. We note that once the show cause orders were issued, Judge Huffman correctly recused from the case in an effort to avoid the appearance of impropriety. We conclude he did not act with bias or prejudice.

With respect to Judge Crabtree, appellants argue he prevented them from presenting a defense to the contempt charge because he called their counsel as a witness. It is true that counsel was called as a witness, however, appellants were still allowed to rebut the charge of contempt. They had a hearing in which the trial judge received evidence and heard their defense. Contempt is a unique proceeding where the judge acts as both trier and finder of fact. Judge Crabtree did not act with bias or prejudice in calling counsel as a witness.

In their attempt to articulate their second assignment of error, appellants make numerous accusations of the lower courts which are disrespectful. Appellants state that a concise picture of what happened in Benton County cannot be presented to this court because they “sincerely believe a spark was ignited that turned into a blaze for reasons other than the administration of justice.” Appellants accuse the trial court of “pursuing an independent agenda” and characterize its conduct as “calculated to lead to the public humiliation of the officials of the Department of Human Services.”

The above-quoted language from appellants’ brief is so offensive that it prompted the intervenor, the Attorney General, to request that the language be stricken from the briefs. Pursuant to Ark. Sup. Ct. R. 6, and McLemore v. Elliot, 272 Ark. 306, 614 S.W.2d 226 (1981), we conclude the intervenor’s motion is well-taken. In McLemore, as a sanction for violating Ark. Sup. Ct. R. 6, we struck the briefs containing the language that was disrespectful to the trial court from the records of this court. The language used in the present case is far more inflammatory and disrespectful than the language used in McLemore. Accordingly, we grant the intervenor’s request to strike pages 462-67 of appellants’ brief from our records.

Appellants’ third assignment of error is that the chancery court acted arbitrarily and erroneously in vacating the juvenile court’s order restraining Mr. Eberhard from visiting his son, Jeffrey. This issue is not properly before us on this appeal.

The restraining order in question was issued in the juvenile court in a proceeding where DHS, as opposed to appellants, petitioned the court for supervision of Jeffrey. Thus, it is DHS, not appellants, that would have been prejudiced by any error in the dissolution of the restraining order. However, appellants’ final notice of appeal from their contempt proceedings does not list DHS as an appellant. As DHS is not a party to this appeal, this issue is procedurally barred. See Ark. R. App. P. 3(e), and Arkansas Dep’t of Human Servs. v. Shipman, 25 Ark. App. 247, 756 S.W.2d 930 (1988).

We note that any prejudice DHS may have encountered by the dissolution of the restraining order was remedied when DHS and the Eberhards reached a settlement concerning Jeffrey’s status as a dependent and neglected child. This settlement suspended Mr. Eberhard’s visitation with Jeffrey for thirty days and provided for supervised visitation thereafter. Thus, DHS’s interest in protecting Jeffrey from sexual abuse was achieved and DHS suffered no prejudice.

As their fourth assignment of error, appellants claim the trial court erred in entering a gag order in violation of their constitutional rights. Appellants claim the gag order violated their rights to a free discussion of the issues and a review in an open forum to ensure a fair trial. Although appellants expressed their general objection to the gag order to the trial court, they never asserted that any of their constitutional rights would be violated by the entry of the gag order. They certainly never argued to the trial court that their constitutional rights of expression, association, and fair trial were violated by the gag order. We have consistently held in criminal appeals that arguments, even constitutional ones, not presented to the trial court will not be addressed on appeal. Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1991).

Appellants’ fifth assignment of error is that the trial court placed appellant Henry in double jeopardy by increasing her jail sentence for contempt. The record does reveal that Henry’s sentence for imprisonment was increased when the trial judge modified the suspension of her sentence from an eighty-day suspension to a sixty-day suspension. However, the record also reveals that Henry did not make an objection to the modified sentence on former jeopardy grounds at the time the sentence was modified. Objections must be timely, Lewis v. State, 307 Ark. 260, 819 S.W.2d 689 (1991), and even constitutional objections are waived unless made to the trial court. Ussery, supra.

Affirmed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. The effect of today’s holding is that when an employee of the Department of Human Services (DHS) undertakes, pursuant to Ark. Code Ann. § 12-12-509 (1987), to take a child into temporary protective custody to prevent imminent danger of child abuse, thereby interfering with court ordered visitation by the parent suspected of causing such abuse, that employee becomes subject to contempt proceedings. Nothing in § 12-12-509 indicates that such power is not to be exercised so as to impinge on visitation rights ordered in a divorce suit, pending or concluded.

But even if the appellants’ conduct in this affair renders them culpable, the fines and jail sentences imposed are seriously disproportionate to the circumstances. These appellants are not disgruntled parties flaunting the authority of the court, nor officious intermeddlers in an affair that does not concern them. Rather, they are agents of that division of state government (DHS) to which the legislature has assigned the specific task of alleviating and preventing child abuse, whether substantiated or merely suspected. Neither appellant was acting pursuant to some personal motive but purely in response to a perceived responsibility under the law. I do not suggest that that responsibility is transcendent to the authority of the trial court, but I do submit that a number of factors mitigate on the side of greater leniency than the singularly harsh sentences imposed. For one thing, the indications of parental abuse were sufficiently serious that the trial court took extraordinary measures; for another, the trial court’s order (verbally delivered on February 14, 1991, but not reduced to writing for six weeks) was decidedly vague in its terms:

THE COURT: And as to visitation, I’m going to order visitation under the conditions, provided for by the defendant that there will be a third party, someone else present when he’s visiting to make sure that if he’s accused there’s some reputable person present that can vouch for his conduct and the child’s conduct throughout that time. And since he’s agreeable to that, I think that’s a good, wise decision, and we’ll do it that way. (R. 532-533).
MS. DUNCAN: Can we start our visitation this weekend? It’s been a long time since Mark has seen his son.
THE COURT: Yes. You bet.
MS. DUNCAN: Thank you.
MR. EVANS: Do we know what, who the third party is going to be in this? Could they submit something so we kind of can at least condition the child?
THE COURT: Well, I’m reluctant to get involved in a situation where we’re talking about this side is having to approve that side. You know. The plaintiff, in other words, are we going to submit a list of names to the plaintiff to see if they’re okay to be the third party?
MR. EVANS: No. I didn’t say that. I didn’t mean to indicate that. It’s— The child, I think, will need to be conditioned to certain, that you’re going and this one’s going to be there and that sort of thing. And if we know who the parties were going to be, then we could lay that foundation.
THE COURT: Okay. If you know who the person is, I don’t mind telling them, but it’s not a condition of the decree. (R. 535-536).
MR. EVANS: Your Honor, was that visitation going to be this weekend or — ?
THE COURT: Yes, as far as I’m concerned. I don’t know any reason why not. (R. 537)
THE COURT: And as far as the visitation is concerned, you know, for how long, I intend ordering, like weekend visitation and holiday visitation in the directive. For this week, you know, for the first time, you might want to, you know, I don’t know how much time you have to visit nor how long, and you might feel it appropriate to visit less than, a shorter period of time.
MR. DUNCAN: Yes sir, that’s what we had discussed, as a matter of fact, was for a period of maybe four hours on Saturday and then again for a period of about four hours on Sunday.
THE COURT: Well, that sounds like you’re using your head.
MR. EVANS: That’s what you’re proposing?
MS. DUNCAN: That’s for this weekend.
MR. EVANS: Yeah. Okay.- And the rest of the visitation, you’re going to set that out at a later time?
THE COURT: I’ll put it in the decree, right. But I’ll try to be pretty standard with it. (R. 538).

For another thing, the law not only imposes an affirmative duty on the appellants, among others, but clothes them with immunity in the discharge of those responsibilities. Ark. Code Ann. § 12-12-510 (1987). Finally, while appellants may have been generally aware of the verbal order, there is no showing that their claim to have been unaware of its terms, is false. Taking these factors into account I believe a more judicious solution would have been an admonition and a warning as opposed to a sizeable fine, a jail sentence and a psychiatric examination.


author: Robert L. Brown, Justice.

text:
    CITY OF POCAHONTAS v. Lee HUDDLESTON, et al.
    91-353
    831 S.W.2d 138
    Supreme Court of Arkansas
    Opinion delivered May 11, 1992

      Throesch and Throesch, by: John Throesch, for appellant.

      Dick Jarboe, for appellee.
   Robert L. Brown, Justice.

This case involves a dispute over the payment of regular salaries and holiday compensation to law enforcement officers. The appellees are employees of the Pocahontas Police Department and include patrolmen, radio operators and dispatchers, and jailers. The City of Pocahontas is the appellant. At issue is whether the City violated state law when it reduced regular salaries in 1985 in order to begin paying holiday compensation in one lump sum. Secondary issues are raised about 1) whether all of the appellees are law enforcement officers, 2) the applicable statute of limitations, and 3) a counterclaim by the City for repayment of mistaken salary payments in 1988. We affirm the circuit court on the decision that the City violated state law when it reduced regular salaries in order to make lump-sum holiday payments. We further hold that the circuit court was correct in denying the counterclaim and in applying a three-year limitations period. We reverse the circuit court on the finding of which employees are affected under state law.

On January 26, 1985, the appellees, who are employees of the Pocahontas Police Department, signed statements that they desired to receive their holiday pay in one payment in December of each year rather than having it spread over the entire year. From 1980 to 1985, the appellees had had their holiday pay prorated over fifty-two weeks and added to their weekly salary payments. The City Council agreed to the lump-sum payment at its regular meeting on February 12, 1985. In implementing the change, the City first reduced the weekly salary payments of the appellees and used that savings to make the holiday payment. This came to a head when certain employees were given a ten-dollar-per-week raise but realized only nine dollars a week with the additional one dollar being held for holiday compensation. On March 31, 1989, the appellees filed suit against the City for declaratory relief and alleged that the City had violated state law by not paying holiday pay in addition to regular pay.

The City answered, denying liability, and pled a three-year statute of limitations for oral obligations as an affirmative defense. The City further counterclaimed that the appellees were overpaid for four years and that the City was entitled to reimbursement of these overpayments. This was denied by the appellees. On November 8, 1989, a bench trial was held before the circuit court. On May 31, 1990, the circuit court entered judgment denying the City’s counterclaim. It further applied a three-year limitations period and found that the appellees who were radio dispatcher/jailers were law enforcement officers entitled to holiday pay in addition to their regular salary.

I. HOLIDAY COMPENSATION

Act 252 of 1985, which was codified as Ark. Code Ann. § 14-52-105 (1987), provided as follows regarding holiday compenation for municipal police departments:

(a) All law enforcement officers regardless of their titles, such as city marshal, employed by cities of the first or second class or incorporated towns shall be compensated for all legal holidays established by the governing body of the municipality.
(b) This compensation shall be based on the law enforcement officer’s daily rate of pay and in addition to the regular pay schedule.
(c) This compensation may be included within the officer’s base pay.
(d) This compensation shall be prorated and paid during the regular payroll periods.

This Act went into effect on March 4,1985. The City changed its holiday payment plan to a one-time payment a month earlier that year on February 12,1985. There is no dispute that the appellees have received a lump-sum payment as holiday compensation since 1985. There is also no argument that, in implementing the new payment plan in 1985, the City reduced weekly salaries to compensate for the holiday payment.

The crucial issue in this case is whether reduction of weekly salaries commencing in 1985 for the holiday lump-sum payments constituted holiday compensation “in addition to the regular pay schedule” as section 14-52-105 requires. The appellees argue that the weekly payments from 1980 to 1985 were regular pay and that reducing weekly pay in 1985 violated the statute. The City on the other hand maintains that it spread holiday compensation over fifty-two payments, beginning in 1980, and that converting to a lump-sum payment in 1985 and reducing weekly pay to compensate for that payment did not constitute a reduction in the regular pay schedule.

There was testimony at trial from several witnesses, including patrolman Bob Smith, criminal investigator Diane Thielemier, and retired officer Don Garrett, that the weekly increases which began in 1980 were considered to be raises and their regular pay. The City Treasurer, Elizabeth Penn, however, was adamant that the increased salaries for the appellees beginning in 1980 included holiday compensation and were not pay raises. The issue then is whether the circuit court’s finding that the City did not pay the appellees holiday pay in addition to their regular salary for three years as required by § 14-52-105 was error. We hold that it was not.

Our law on this point is clear:

When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous (clearly against the preponderance of the evidence). Bassett v. Hobart Corp., 292 Ark. 592, 732 S.W.2d 133 (1987). See also Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980). In reviewing a finding of fact by a trial court, we consider the evidence and all reasonable inferences therefrom in a light most favorable to the appellee. McCartney v. McLaughlin, 296 Ark. 344, 756 S.W.2d 907 (1988).

Jernigan v. Cash, 298 Ark. 347, 349, 767 S.W.2d 517 (1989). There was certainly testimony at trial that by 1985, the weekly pay to the appellees was considered by them to be their regular pay. Admittedly, there was also contradictory testimony from the City Treasurer. Nevertheless, we cannot say that the circuit court’s finding was clearly erroneous, and we, therefore, affirm its decision on this point.

II. LAW ENFORCEMENT OFFICERS

The City next contends that the circuit court’s finding that radio operators, dispatchers, and jailers were law enforcement officers and entitled to holiday compensation was clearly erroneous. We turn, first, to various statutes affecting and concerning law enforcement officers.

The General Assembly finds and determines:

(3) That it is in the public interest that minimum levels of education and training be developed and made available to persons seeking to become law enforcement officers and to persons presently serving as law enforcement officers.

Ark. Code Ann. § 12-9-101(3) (1987).

(1) “Law enforcement officer” means any appointed law enforcement officer who is responsible for the prevention and detection of crime and the enforcement of the criminal, traffic, or highway laws of this state. . . .

Ark. Code Ann. § 12-9-102(1) (1987).

(a)(1) The Arkansas Commission on Law Enforcement Standards and Training shall provide, by regulation, that no person shall be appointed as a law enforcement officer, except on a temporary basis not to exceed one (1) year, unless the person has satisfactorily completed a preparatory program of police training at a school approved by the commission.

Ark. Code Ann. § 12-9-106(a)(l) (1987). The Chief of Police at Pocahontas, Charlie Meridith, testified that the appellees who were radio dispatcher/jailers were not responsible for the investigation, prevention, or detection of crime and did not “write” any criminal or traffic violations. He testified that these appellees had been employed for at least one year but had no plans to attend the Law Enforcement Academy for police training. The appellees counter that wearing uniforms and badges is enough to qualify as law enforcement officers. We disagree. The mere fact that these employees were uniformed and wore badges did not automatically convert them into law enforcement officers as defined by statute. Cf. Pipes v. State, 22 Ark. 235, 738 S.W.2d 423 (1987). We hold that the circuit court clearly erred in finding that the radio dispatcher/jailers were entitled to holiday pay, and we reverse on this point.

III. COUNTERCLAIM FOR OVERPAYMENT

The City counterclaimed and contended that the appellees were overpaid in 1985, 1986, 1987, and 1988, stating:

Through a clerical error, the weekly pay of the plaintiffs was not reduced by the appropriate percentage that was holiday pay and they continued to receive their regular rates of pay, which included holiday pay. Then, in December of 1985, 1986, 1987 and 1988, some of the plaintiffs were paid holiday pay for which they had already been compensated.

The counterclaim was generally denied by the appellees.

In support of the City’s claim, the City Treasurer testified that all of the appellees were paid erroneously for an extra week in 1988 for a total of fifty-three weeks, and she thought this had also happened in 1986. She testified about one employee who was overpaid in 1988 — Don Garrett — and the amount of that overpayment which was $238. No testimony was presented regarding the other appellees. Nor do we know from her testimony precisely when this occurred in 1988, whether it occurred in other years, or how the alleged mistake was made. We do know the City never requested that any overpayment be paid back until it filed its counterclaim in 1989. The appellees presented no proof on this issue.

We can readily understand from our review how the circuit court may have found the City’s minimal proof confusing and inexact on the counterclaim. Indeed, the Treasurer’s testimony about an extra week’s pay in 1988 is different from the allegation in the City’s counterclaim that some appellees were paid holiday pay twice over four years. Except for a sweeping statement by the Treasurer about a mistake made in 1988 and one example, the record is bereft of testimony supporting the allegation of overpayment for four years. City payroll records were introduced as exhibits, but the City failed to show the circuit court or this court on appeal precisely how the alleged overpayments were made. Accordingly, we affirm the circuit court’s decision denying the City’s counterclaim.

IV. STATUTE OF LIMITATIONS

The final issue concerns the appropriate statute of limitations, and precisely whether it should be three years as the circuit court found or five years as the appellees urge. The circuit court hinged its decision on the following code section:

The following actions shall be commenced within three (3) years after the cause of action accrues:
(1) All actions founded upon any contract, obligation, or liability not under seal and not in writing, excepting such as are brought upon the judgment or decree of some court of record of the United States or of this or some other state;

Ark. Code Ann. § 16-56-105(1) (1987). The obligation sued on by the appellees was not under seal and not in writing. Rather it was the City’s obligation to its employees as fixed by statute. These circumstances fit within thbe described actions under section 16-56-105. See Baugh v. Prairie County, 66 Ark. 306 (1899) (county debt to treasurer was subject to three-year statute of limitations). The circuit court did not err on this point.

Affirmed in part; reversed in part.

       Two years later Act 501 of 1987 amended subsection 14-52-105(d) to add that the compensation might be paid, alternatively, in a lump sum in December of each year. Ark. Code Ann. § 14-52-105(d) (Supp. 1991).


text:
    Ray GILBREATH v. UNION BANK, Successor Trustee of the Catherine C. Morgan Trust
    92-52
    830 S.W.2d 854
    Supreme Court of Arkanas
    Opinion delivered May 11, 1992

      Walters Law Firm, P.A., by: Michael Hamby, for appellant.

      Daily, West, Core, Coffman & Canfield, by: Janice West Whitt, for appellee.
   Robert L. Brown, Justice.

This appeal relates to the validity of five tax deeds granted to the appellant, Ray Gilbreath, for mineral interests in land located in Sebastian County. The chancery court entered summary judgment, setting aside a decree which quieted title in those interests in the appellant. The appellant now appeals and asserts error on grounds a) that the Trustee was procedurally foreclosed from attacking the decree, and b) that the chancery court erred in finding the tax deed void. We disagree, and we affirm the chancery court’s decision.

The facts are somewhat involved. On August 31, 1970, Catherine C. Morgan, a California resident, deeded the mineral interests in question to herself as trustee of the Catherine C. Morgan Trust. She was not the owner of the surface rights, and the surface rights were not involved in this litigation. On October 12, 1978, Morgan died, and California First Bank (now Union Bank) was named successor trustee by the California Superior Court. On July 27, 1981, California First Bank (now Union Bank), as Trustee, executed an oil and gas lease in favor of Stephens Production Company covering part of the mineral interests in question. This lease was recorded in the Sebastian County Circuit Clerk’s office on October 31, 1981, but the deed indexes did not reflect that the lessor bank was leasing the mineral interests to Stephens in its capacity as Trustee. The mineral interests were not subjoined to the surface interests for assessment purposes in 1981.

Real estate taxes were not paid on the mineral interests in 1981, and those interests were declared to be delinquent and forfeited to the state that same year. In November 1982, the appellant bought the mineral interests at a tax sale conducted by the Sebastian County Sheriff, and on January 11, 1985, the Sebastian County Clerk granted five tax deeds to him for the mineral interests which he duly recorded on January 14, 1985.

On May 13,1985, the appellant filed a petition to quiet title for the mineral interests and named as defendants Catherine C. Morgan, both individually and in her capacity as trustee, and all other persons, known and unknown, who claimed any interest in the mineral rights. That same day an affidavit for warning order was executed by the appellant, which gave Morgan’s last known address but did not state that her whereabouts was unknown. Also on May 13, 1985, the Sebastian Chancery Clerk issued a Notice of Quiet Title Action for publication as the warning order. On May 17,1985, an appointed attorney ad litem sent a letter to Morgan’s last known address in California which was returned unclaimed on June 18,1985. When no response resulted, a decree quieting title to the mineral interests in the appellant was entered on July 22, 1985.

Four years later, on July 24,1989, the Trustee filed an action to set aside the quiet-title decree on grounds that the appellant’s tax deeds were void because the 1981 assessments of the mineral interests were not subjoined to those of the surface owners. An additional ground for relief was the failure to serve the Trustee, as owner of the mineral interests. The Trustee asked the court to set aside the quiet title decree and for repayment of the royalties paid to the appellant. The Trustee also moved for summary judgment. On July 2,1991, the chancery court granted the Trustee the relief requested and entered summary judgment in its favor.

The pivotal issue in this case is whether the failure of the Sebastian County Assessor to subjoin assessments of mineral interests to assessments of surface interests in 1981 rendered the resulting tax deeds void. We hold that it did. Our law at that time was clear that the failure to subjoin the assessment of mineral interests did void subsequent tax deeds for those interests purchased at tax sales. Garvan v. Potlatch Corp., 278 Ark. 414, 645 S.W.2d 957 (1983); Hurst v. Rice, 278 Ark. 94, 643 S.W.2d 563 (1982); Adams v. Bruder, 275 Ark. 16, 627 S.W.2d 12 (1982); Sorkin v. Meyers, 216 Ark. 908, 227 S.W.2d 958 (1950). We are aware that the General Assembly passed legislation, effective April 15, 1985, to permit separate assessments for severed mineral interests, but that was long after the 1981 assessments which are at issue in this case. See Act 961 of 1985, now codified as Ark. Code Ann. § 26-26-1112 (1987). Accordingly, the chancery court was correct in its decision, and the tax deeds were void from date of the 1981 assessments due to failure to subjoin.

The appellant further contends that the Trustee was foreclosed under Ark. R. Civ. P. 60(k) from coming into court more than ninety days after the quiet-title decree and contesting the validity of that decree. We hold otherwise on the basis that the Trustee, as the owner of the mineral interests, was never appropriately notified by personal service or warning order of the appellant’s lawsuit to quiet title and should not be bound by that decree. See Hurst v. Rice, supra. The Trustee was entitled to have its day in court and to raise the subjoinder issue, especially in light of the language in Ark. R. Civ. P. 60 (k) which specifically provides that the rule does not limit the power of the court to entertain an independent action to relieve a party from a judgment when that party was not served personally with process.

It is undisputed that the Trustee was not personally served. Nor was it constructively served according to procedures required under Ark. R. Civ. P, 4(f)(1). Rule 4(f)(1) reads in part:

(1) Where it appears by the affidavit of a party or his attorney that, after diligent inquiry, the identity or whereabouts of a defendant remains unknown, service shall be by warning order issued by the clerk and published weekly for two consecutive weeks in a newspaper having general circulation in a county wherein the action is filed and by mailing a copy of the complaint and warning order to such defendant at his last known address, if any, by any form of mail with delivery restricted to the addressee or the agent of the addressee.

Here, the affidavit of the appellant did not state that, after making diligent inquiry, Catherine C. Morgan’s whereabouts was unknown which is a condition in the rule for the warning order’s issuance.

Comment 12 to Rule 4 (f) (1) explains the burden that a party must meet to avail himself of service by publication:

The burden is on the party attempting service by publication to attempt to locate the missing or unknown defendant. Such party or his attorney is required to demonstrate to the court, by affidavit or otherwise, that after diligent inquiry, the defendant’s identity or whereabouts remains unknown.

That burden was simply not met in this case. The appellant filed his petition to quiet title in the mineral interests on May 13,1985, and on that same day filed an affidavit for a warning order which said:

That he has made diligent inquiry and that it is his information that the defendant, Catherine C. Morgan, Individually, and Catherine C. Morgan, Trustee, is a nonresident of the State of Arkansas ....

The appellant then listed Morgan’s last known address in California. Also, on May 13, 1985, the Sebastian County Chancery Clerk issued the warning order. Four days later, on May 17, 1985, the attorney ad litem for Catherine C. Morgan sent a certified letter to her California address which was returned unclaimed on June 18, 1985.

Where no diligent inquiry is made under rule 4(f)(1), we have affirmed dismissal of a complaint for improper service of process. See Horne v. Savers Federal Savings & Loan Ass’n, 295 Ark. 182, 747 S.W.2d 580 (1988); Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983). It is obvious in the case before us that the requisite inquiry was not made because the appellant did not conclude in his affidavit that the location of Catherine Morgan was unknown. Accordingly, we hold that the appellant’s affidavit for a warning order is facially defective under Rule 4(f)(1).

To summarize, because there was no subjoinder of mineral interests to surface interests in the tax assessments in 1981, the five tax deeds granted the appellant in 1985 were void. Further, because the affidavit for warning order was deficient on its face under Rule 4(f)(1), constructive service by publication was not effective against the Trustee. Our decision on these points make it unnecessary to reach the other issues raised by the appellant.

The Trustee moves for costs totaling $329.75 occasioned by preparation of a supplemental abstract which it deemed necessary for consideration of the appeal. While the pleadings and discovery requests abstracted by the Trustee were helpful on appeal, we do not consider that they were necessary under Ark. Sup. Ct. R. 9(d) for our understanding of the issues presented. The motion for costs is denied.

Affirmed. Trustee’s motion for costs denied.


author: Jack Holt, Jr., Chief Justice.

text:
    CAGLE FABRICATING AND STEEL, INC., et al. v. Roger D. PATTERSON
    91-322
    830 S.W.2d 857
    Supreme Court of Arkansas
    Opinion delivered May 18, 1992

      Warner & Smith, by: Wayne Harris, for appellant.

      Daily, West, Core Coffman, & Canfield, by: Eldon F. Coffman and Douglas M. Carson, for appellee.
   Jack Holt, Jr., Chief Justice.

This is an appeal from a tie decision of the Arkansas Court of Appeals and its affirmance of the Workers’ Compensation Commission’s award to the appellee, Roger Patterson, of compensation benefits upon a finding that he had sustained a work-related hernia. Cagle Fabricating & Steel Inc., et al. v. Patterson, 36 Ark. App. 49, 819 S.W.2d 14 (1991). Certiorari was granted under Ark. Sup. Ct. R. 29(6)(c). The appellants, Cagle Fabricating and Steel, Inc., et al. (Cagle), assert that the court of appeals’ decision is not supported by substantial evidence and is contrary to law. We agree and reverse and remand.

The underlying facts of Mr. Patterson’s injury are set out in ' the court of appeals’ opinion as follows:

The record contains evidence that on December 28,1988, Patterson, a 29-year-old welder, was pulling a sixty-pound part from a jig when he felt a pulling sensation on his right testicle. He testified that he had a sudden flash of severe pain; that he stopped work and reported the incident to his supervisor; and that the lunch bell rang about that time. The pain subsided during the lunch hour and he went back to work. He said he worked for the next two weeks with a nagging pain which was not really severe but which got worse, and by January 16 the pain became so severe that he went to see his doctor.
In a letter dated March 1,1989, Dr. W.F. Dudding stated that he saw the claimant on January 16, 1989, and his examination, ‘revealed tenderness in the right testicle with no marked epidymal swelling, a mild fingertip inguinal hernia on the right with tenderness in this area.’ His letter then states that ‘a diagnosis of inguinal strain versus small hernia versus epididymitis was entertained and patient was treated with anti-inflammatory medication for about a week.’ The letter also stated that the claimant suffered increasing discomfort and that Dr. Dudding sent the claimant to see a surgeon, Dr. John J. Weisse, who found an inguinal hernia and repaired it on January 20,1989. Dr. Dudding’s letter of March 1, 1989, also stated that the ‘facts are consistent with an on-the-job injury on December 28, 1988, as per Mr. Patterson’s story,’ and ‘it is not unusual that a very small hernia be very painful, yet still be very difficult to detect even by a professional let alone a layman who could not be expected to determine what the problem was.’
The history and physical report made by Dr. Weisse for the claimant’s admission to the hospital states that the doctor’s examination had ‘confirmed a right inguinal hernia.’ As his ‘impression at the time of admission,’ Dr. Weisse recorded a ‘job related right inguinal hernia.’ The ‘operative report’ lists the postoperative diagnosis as a ‘right direct inguinal hernia,’ and describes in detail the ‘hernia repair procedure’ which occurred on January 20, 1989.

Arkansas Code Ann. § 11-9-523 (1987) addresses compensation for a hernia disability and provides in pertinent part as follows:

(a) In all cases of claims for hernia, it shall be shown to the satisfaction of the commission:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That the pain caused the employee to cease work immediately;
(4) That the notice of the occurrence was given to the employer within forty-eight (48) hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after occurrence.

In this case, the Commission initially held that these criteria had been met and made the following findings of fact:

We find that Patterson’s efforts of pulling on the jig and feeling sudden pain in his testicle constitute the sudden effort and severe pain, satisfying the first two criteria. The Administrative Law Judge erred in ruling that the occurrence of the hernia did not ‘immediately’ follow the pulling incident, since ‘immediately’ does not mean ‘instantly’; rather, it is only necessary for the hernia to occur in a time and manner making clear the causal connection between it and the strain that occurred. Osceola Foods, Inc. v. Andrew, 14 Ark. App. 96, 685 S.W.2d 813 (1985). Wefind such to be the case, because Patterson ceased working and complained to his supervisor contemporaneously with the incident. Thus, it can be seen that all requirements of the statute are met if Patterson’s physical distress was such that the attendance of a licensed physician was required within seventy-two (72) hours after the occurrence. The law on this point has been set out in Ayres v. Historic Preservation Associates, 24 Ark. App. 40,747 S.W.2d 587 (1988):
* * * *
We understand the requirements of the fifth subsection to have been effectively negated by the Ayres holding. If the diagnosis of a hernia confirms the fact that the claimant needs a physician, it logically follows that that any claimant who can prove a work-related hernia has satisfied the fifth requirement. Since we find that Patterson did comply with subsections 1 through 4 and that the injury did occur within the scope and course of his employment, he has met his burden ofproof under Section 523(a) and is entitled to appropriate benefits.

(Emphasis added.)

The court of appeals analyzed these findings and determined that all five elements of section 1 l-9-523(a) had been satisfied; we agree with, and countenance, the court of appeals’ analysis of the first four elements in its opinion as follows:

In its opinion the Commission held that the first two requirements of Ark. Code Ann. § ll-9-523(a) (1987) were met because under the law ‘it is only necessary for the hernia to occur in a time and manner making clear the causal connection between it and the strain that occurred.’
As to statutory requirements three and four, the Commission’s opinion states, ‘The employer appears not to deny that Patterson ceased working and complained to his supervisor contemporaneously with the incident.’ This is, of course, a finding of fact. Moreover, no one testified in this case except the claimant. We have already detailed his testimony as to the ‘sudden flash of severe pain’ and that he stopped work and reported the incident to his supervisor. In fact, he testified that he ‘stepped back and put my hands on the table, waited a second’ and ‘hollered to the shop foreman.’ Certainly there is substantial evidence to support the Commission’s finding that the third and fourth statutory requirements were met.

As to the fifth element, we agree with the court of appeals that the “Commission was ... in error in its . . . statement that ‘if the diagnosis of a hernia confirms the fact that the claimant needs a physician, it logically follows that any claimant who can prove a work-related hernia has satisfied the fifth requirement.’ ” See Ayres v. Historic Preservation Associates, supra (citing Osceola Foods, Inc. v. Andrew, 4 Ark. App. 95, 685 S.W.2d 813 (1985)).

However, we cannot accept their finding that the fifth element has been shown by the Commission’s statement that Patterson had “met his burden of proof under section 523(a).” The Commission was required to find as facts the basic component elements on which its conclusion was based pursuant to section 11-9-523 (a), of which a showing that the physical distress following the occurrence of the hernia was such as to require the attendance of a physician within 72 hours after the occurrence is a necessary component. Subsection 1 l-9-523(a)(5) means that the claimant must demonstrate that there was a need to consult a doctor within the 72 hour period.

In Jones v. Tyson Foods, Inc., 26 Ark. App. 51, 759 S.W.2d 578 (1988), it was noted that it is the duty of the Commission to make findings according to a preponderance of the evidence, and that the right to find the facts carries with it a duty to find the facts. In that case, the Commission stated in its opinion that “[w]e have carefully reviewed the entire record herein and after according the claimant the benefit of liberal construction to which she is entitled, we specifically find that the claimant failed to meet her burden of proof by a preponderance of the credible evidence of record.” The court of appeals held that the Commission’s decision did not make specific findings that an appellate court could review and reversed and remanded the decision to the Commission.

We find that the Commission’s language relating to the fifth element in this case is similar to that used in Jones in that it is conclusory and does not detail or analyze the facts upon which it is based. Consequently, we reverse the court of appeals’ decision and remand this matter for a new decision based upon a specific finding regarding compliance with subsection 1 l-9-523(a)(5).

Reversed and remanded.


author: Steele Hays, Justice.

text:
    Steven Charles REAVES, Father and Next of Friend of Chad Steven Reaves v. David Harrison HERMAN, Father and Next Friend of Carrie Magdalene Herman
    92-224
    830 S.W.2d 860
    Supreme Court of Arkansas
    Opinion delivered May 18, 1992

      Boyce R. Davis Associates, by: Boyce R. Davis, for appellant.

      Mark Lindsay, for appellee.
   Steele Hays, Justice.

The appellant, Steven Charles Reaves, and appellee, David Harrison Herman, are the fathers of Chad Steven Reaves and Carrie Magdalene Herman, respectively. Carrie Herman gave birth to an infant boy on September 28, 1990, when she was seventeen years old. The baby’s father, Chad Reaves, was also seventeen at the time of his son’s birth. This appeal arises out of a dispute concerning the child’s surname.

Following the birth of her son, Carrie Herman submitted the name Mitchell Harrison Herman for placement on the child’s birth certificate. Thereafter, the appellant filed a complaint in the juvenile division of the Washington County Chancery Court alleging that the child’s name is Mitchell Harrison Reaves, seeking a determination of paternity and a schedule of visitation and asserting a willingness to pay a reasonable level of support and maintenance commensurate with his earnings.

Following a trial of the issues, the Washington Chancery court entered an order on January 15, 1991, establishing that Chad Reaves is Mitchell’s natural father, vesting custody with Carrie Herman, dividing laying-in and future medical expenses equally between the parties and fixing visitation and support. The court held in abeyance its decision with regard to the surname of the minor child.

On June 6, 1991, another hearing was held concerning Mitchell’s surname. In an order entered June 18,1991, the court held that it was in the best interest of the minor child that his surname remain Herman. Chad Reaves appeals from that finding, raising two points of error. We affirm the trial court’s decision.

The appellant first argues that pursuant to Ark. Code Ann. § 20-18-401(e)(l) (1987) the court was without discretion to apply any surname other than Reaves, however, the appellant quotes the statute as it read prior to a 1989 amendment and the amended statute does not apply to this situation. The applicable section is Ark. Code Ann. § 20-18-401(e)(3) (1987) which provides:

In any case in which paternity of a child is determined by a court of competent jurisdiction, the name of the father and the surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court. In the recent case of McCullough v. Henderson, 304 Ark. 689, 804 S.W.2d 368 (1991), we held that, rather than directing that the surname of the child become that of the father, § 20-18-401 (e)(3) simply states that the father’s full name and the child’s surname shall be entered on the birth certificate in accordance with the court’s order. Thus, appellant’s first argument is without merit.

Secondly, the appellant contends that, if the trial court had discretion, it abused its discretion by failing to require the use of the father’s surname.

There was evidence at trial that Chad was initially angered and shocked by Carrie’s pregnancy and was unwilling to accept the baby until sometime after his birth, but, it is apparent from the testimony that both of Mitchell’s parents are troubled by this dispute and earnestly concerned for Mitchell’s emotional welfare. Chad testified that it was important to him for Mitchell to carry his surname because it might be confusing to Mitchell in the event Carrie marries and uses another last name. Carrie testified that she had no immediate plans to marry and in the future if this was a concern she would retain her maiden name. She also testified that if Reaves had been Mitchell’s last name from his birth she would not have tried to change it, but since he has gone by Herman for so long she was opposed to changing it at this point in time.

Based on the evidence presented at trial we can hardly agree with the appellant that the court abused its discretion since there are no compelling facts that show it would be in the best interests of the minor child to change the surname he has carried since birth. Accordingly, we affirm.


author: David Newbern, Justice.

text:
    Lloyd PARKS, et al. v. HILLHAVEN NURSING HOME of Little Rock, et al.
    91-339
    829 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered May 18, 1992

      Willard Proctor, Jr., for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard, by: Amelia Mosley Russell, for appellee.
   David Newbern, Justice.

This is an appeal from the entry of a summary judgment. We must dismiss the appeal because not all of the claims against all of the parties have been resolved, and there has been no certification pursuant to Ark. R. Civ. P. 54(b) that there is no need for delay in deciding the case with respect to the parties now before us.

The appellant, Lloyd Parks, individually and as administrator of the estate of Mary Parks, sued the appellees, Hillhaven Nursing Home of Little Rock, Dr. John Wolverton, and Little Rock Nursing Center of Little Rock, for the alleged wrongful death of his wife. The Trial Court granted summary judgment in favor of all of the defendants on all of the claims. We reversed. Parks v. Hillhaven Nursing Home, 303 Ark. 557, 798 S.W.2d 106 (1990). Upon remand, two of the three defendants, Dr. Wolverton and Little Rock Nursing Center, again filed motions for summary judgment. The Trial Court granted partial summary judgment in favor of both defendants on counts of medical malpractice, negligence, and wrongful death, but found material issues of fact with respect to the claim of wrongful transfer of the decedent. The Trial Court entered partial summary judgments on May 20, 1991. Mr. Parks sought to appeal, but we dismissed for lack of a final order. Parks v. Hillhaven Nursing Home, 309 Ark. 106, 827 S.W.2d 148 (1992).

On July 3, 1991, the third defendant, Hillhaven Nursing Home, filed a separate motion for summary judgment. In response to a request from Parks the Trial Court extended the plaintiffs time in which to answer the motion until August 12, 1991. On August 20, 1991, no response had been filed, and the Trial Court entered summary judgment in favor of Hillhaven Nursing Home. Mr. Parks again seeks to appeal.

When multiple parties are involved,

the court may direct the entry of a final judgment as to one or more but fewer than all of the . . . parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction any order or other form of decision, however designated, which adjudicates . . . the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all of the claims and the rights and liabilities of all the parties. [Ark. R. Civ. P. 54(b)]

The failure to comply with Rule 54(b) presents a jurisdictional issue in this court which we will raise on our own and, absent compliance, we dismiss the appeal for lack of a final order. Middleton v. Stilwell, 301 Ark. 110, 782 S.W.2d 44 (1990); King v. Little Rock School Dist., 296 Ark. 522, 758 S.W.2d 708 (1988).

Appeal dismissed.


text:
    Janette SANDERS and Willie Sanders v. John BANKS, et al., d/b/a The Food Center
    92-240
    830 S.W.2d 861
    Supreme Court of Arkansas
    Opinion delivered May 18, 1992
    [Rehearing denied June 22, 1992.]

      Wright, Chaney, Berry & Daniel, P.A., by: Bryan L. Chesshir, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: R. Kenny McCulloch, for appellee.
   David Newbern, Justice.

This is a slip and fall case. Janette Sanders, one of the appellants, fell down in a store operated by the appellees, John Banks, Lee Banks, and Bob Banks, doing business as the Food Center. She alleged she slipped on a foreign substance on the floor. We are asked to review the Trial Court’s granting of summary judgment in favor of the appellees to whom we refer collectively as “The Food Center.” The summary judgment was properly entered as, given the test to be applied for negligence in slip and fall cases, there was no genuine issue of material fact remaining after the Trial Court considered the matters properly submitted in behalf of and in opposition to the motion for summary judgment. Ark. R. Civ. P. 56(c).

Janette Sanders and her two children were shopping in the fourth aisle at The Food Center store. While looking at items on a shelf, Ms. Sanders slipped and fell. After the fall, she noticed a “brown, slimy substance” on the floor. She admitted in her deposition that she did not know what the substance was but believed it to have been tobacco juice. Ms. Sanders had no idea whether an employee of The Food Center was responsible for the substance being on the floor or how long the substance had been there prior to her fall. She did state the substance had “gelled,” thus leading her to conclude it had been there a long time. The Sanderses’ son stated in deposition testimony that he saw what looked like the same substance on aisle four floor two days after the accident occurred. The Sanderses subsequently filed suit against The Food Center, claiming the fall resulted in Janette Sanders suffering two broken arms, injured knees, and traumatic arthritis.

The Food Center moved for summary judgment and, in support of its motion, produced the affidavit of Jack Rydner, the store’s assistant manager. Rydner said that to the best of his knowledge no employee of Food Center was aware of a foreign substance on aisle four the day of the accident. No employee had placed the substance on the floor or had been asked to remove it. In deposition testimony Rydner said his duties included constantly checking the floor for foreign objects. All employees were trained to watch for and pick up items on the floor. Two employees inspected the store each morning and evening. He also stated the store was “spot mopped” every night, and the entire store was mopped once a week, but there were now written procedures for cleaning or inspecting. Rydner admitted customers were allowed to chew tobacco inside the store, and that The Food Center provided no disposal facilities for tobacco chewing residue.

The Food Center also presented the affidavit of Allen Thorton, the store’s assistant produce manager and area supervisor. His responsibilities included checking aisles one through six for items out of place. Thorton stated he had gone down aisle four approximately ten to fifteen minutes before the accident occurred and saw no foreign substance on the floor. After learning Ms. Sanders had fallen, Thorton went to aisle four to see if he could help. He did not see a foreign substance on the floor at that time.

To grant a summary judgment, a trial court must, according to Rule 54(c), find from the pleadings, depositions, answers to interrogatories, admissions, and affidavits filed that there is no genuine issue of material fact, and the moving party is entitled to judgement as a matter of law. All reasonable inferences must be viewed in the light most favorable to the party against whom the motion is made, in this case, the Sanderses. Diebold v. Vanderstek, 304 Ark. 78, 799 S.W.2d 804 (1990).

Once the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet proof with proof by showing a genuine issue of material fact. Guthrie v. Kemp, 303 Ark. 74, 793 S.W.2d 782 (1990). When a party cannot present proof on an essential element of her claim, the moving party is entitled to judgment as a matter of law if the motion is properly supported. Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988).

A property owner has a general duty to exercise ordinary care to maintain premises in reasonably safe condition for the benefit of invitees. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). See also AMI Civil 3rd, 1104. The burden of establishing a violation of this duty in a slip and fall case is well established; a plaintiff must show either (1) that the presence of an injury causing substance upon the premises was the result of the defendant’s negligence, or (2) that the substance had been on the premises for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Bank of Malvern v. Dunklin, supra, Safeway Stores Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986). See also AMI Civil 3rd, 1105. With respect to part two of the test, the burden is on the plaintiff to show a substantial interval between the time the substance appeared on the floor and the time of the accident. Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989).

1. Presence of a foreign substance due to negligence

The first issue is whether there was evidence raising a material question of fact whether the alleged presence of the brown, slimy substance was located on aisle four as a result of The Food Center’s negligence. Ms. Sanders did not see the substance prior to her fall and could not positively identify it. She could only speculate that the substance was tobacco juice. She had no idea how the alleged substance came to be on aisle four. The Food Center produced evidence that no employee saw a foreign substance on the floor the day of the accident.

Viewing the evidence in the light most favorable to the Sanderses, we cannot say there was any evidence whatever as to how the foreign matter came to be present or that The Food Center personnel had any knowledge of its presence.

In a similar case, Diebold v. Vanderstek, supra, Diebold slipped and fell on a “green, slimy substance” which allegedly accumulated in the parking lot of the Vandersteks’ shopping center. We upheld the granting of summary judgment in the Vandersteks’ favor. The Vandersteks supported their motion with an affidavit indistinguishable from Rydner’s affidavit. They also introduced Diebold’s deposition which indicated he had no knowledge how the substance came to be on the parking lot or whether the Vandersteks knew about the substance prior to the fall.

In Bank of Malvern v. Dunklin, supra, we held the Trial Court should have directed a verdict in the Bank’s favor because there was insubstantial evidence with respect to the nature of the substance which allegedly caused Dunklin’s fall or how it came to be on the Bank’s lobby floor. As here, there was no evidence that the substance was on the floor due to the Bank’s negligence. See also Johnson v. Arkla, Inc., supra; Safeway Stores, Inc. v. Willmon, supra, Willis v. Crestpark of Wynne, 279 Ark. 456, 652 S.W.2d 625 (1983) (evidence insufficient to show the presence of the substance on the floor was the result of the defendant’s negligence).

2. Evidence of duration of foreign substance presence

We must next consider whether there was a factual issue whether the substance, assuming it was there, had been on the aisle four floor for such a length of time that The Food Center personnel knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Ms. Sanders had no idea how long the substance was on the floor prior to her fall. The closest we can come to finding evidence on this point is her admitted guess that the matter was tobacco juice and that it had “gelled.” Absent some showing that it was actually tobacco juice and evidence as to how long it would have taken it to “gell,” even assuming, again without evidence, that it does gell, there was no evidence that the substance which was allegedly on the floor had been there long enough that store personnel should have had notice of it.

As there is no evidence tending to establish the time between the appearance of the substance on the floor and the time of the accident, we cannot say a question of fact in that respect was presented. See, e.g., Bank of Malvern v. Dunklin, supra; Diebold v. Vanderstek, supra; Safeway Stores, Inc. v. Willmon, supra; Skaggs Co. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986).

Affirmed.


text:
    Thomas GOLDSBY, Jr., Sandra Goldsby, and Mid-South Mortgage Company v. Lindsey FAIRLEY
    92-13
    831 S.W.2d 142
    Supreme Court of Arkansas
    Opinion delivered May 18, 1992

      Butler, Hickey & Long, by: Fletcher Long, Jr., for appellants.

      Snell grove, Laser, Langley & Lovett, by: Glenn Lovett, Jr., for appellee.
   Tom Glaze, Justice.

This appeal involves the procedural question of whether the appellants’ cause of action against appellee for attorney negligence was barred by the three-year statute of limitations. The trial court granted attorney Lindsey Fairley’s motion for summary judgment on the basis that the appellants’ cause of action was barred by the statute of limitations. Appellants argue that the trial court erred in holding that the attorney’s negligence accrued at the time of the negligent act and in holding that appellants’ initial chancery action had not tolled the running of the statute of limitations. We affirm the summary judgement.

The following facts are relevant. Appellants Thomas and Sandra Goldsby owned certain lands in St. Francis County which were mortgaged to the Equitable Life Insurance Society of the Unites States (Equitable). In 1978, the Goldsbys contacted Fairley to handle the selling of this land. The land was sold in three different parcels to a corporation, Triple G. Investments. Attorney Fairley prepared warranty deeds on two of the parcels on March 1, 1979, and a warranty deed for the third parcel on June 2, 1980. The Goldsbys allege that Fairley represented to them that they had a first lien on the lands and that the first mortgage in favor of Equitable had been released.

In 1985, Thomas Goldsby wanted to liquidate his interest in the note and had a real estate agent, Robert McGinnis’ check with Fairley to make sure he had good title. On January 21,1985, Fairley wrote McGinnis a letter reflecting that title in all three parcels was vested in Triple G Investments; his letter made no mention of Equitable’s mortgage. Thomas Goldsby then worked out a deal with First Commercial Bank where Goldsby would assign the Triple G note to First Commercial in complete satisfaction of indebtedness in the amount of $439,131.00. Before the deal was closed, First Commercial discovered that Equitable had a first lien on the lands and backed out of the deal. Equitable then filed a foreclosure complaint against Triple G and the Goldsbys in St. Francis Chancery Court. On June 19, 1987, the Goldsbys filed a third-party complaint against Fairley, alleging attorney malpractice. This third-party complaint was dismissed without prejudice on May 27,1988. On September 19,1988, the Goldsbys filed an action against Fairley in the Crittenden County Circuit Court, and the trial judge ruled that this action was barred by the statute of limitations.

Undisputedly, the three-year statute of limitations applies to actions against attorneys for negligence. Ark. Code Ann. § 16-56-105 (1987). The question is when did the Goldsbys’ cause of action accrue. Appellants contend that their cause of action accrued in December 1985 because that is when they sustained damages from Fairley’s negligence. In other words, appellants had a deal with First Commercial based upon Fairley’s January 21,1985 “title opinion letter,” but the deal fell through in December 1985 when the bank discovered Equitable’s lien on the lands.

Some jurisdictions apply the “date of injury” rule when determining when a cause of action for attorney negligence accrues. See generally Note, Professional Malpractice Limitation of Actions, 13 UALR L. J. 115 (1990); 7 Am. Jur. 2d Attorneys At Law § 221 (1980). But, since 1877, it has been the law in Arkansas that the statute of limitations in an action against an attorney for negligence begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered by the client. Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991); Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). While this court has noted that other jurisdictions use different approaches in determining when the cause of action accrues, we have stated that if such a marked change is to be made in the interpretation of statutes that have long been the law, it should be done prospectively by the legislature and not retrospectively by the courts. Riggs, 283 Ark. 148, 671 S.W.2d 756.

Appellants rely on language contained in Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989), to suggest that this court has recognized the “date of injury” approach. We thoroughly disagree. In that case, Stroud’s attorney failed to file his client’s response to a writ of garnishment, and as a result, Stroud was held liable on the garnishment by default judgment. However, upon Stroud’s attorney’s motion, the default judgment was set aside nunc pro tunc by court order dated December 4,1984. This order was in effect until it was reversed by the court of appeals on February 19, 1986, at which time the judgment creditor sought execution of the default judgment. Stroud subsequently filed a legal malpractice action against his attorney on December 18, 1986. While we recognized the rule that the statuté of limitations begins to run when the act of malpractice occurs, we held that the running of the statute of limitations was tolled when the default judgment was set aside because during that time Stroud had no malpractice claim against his attorney and therefore could show no injury.

In the present case, appellants’ cause of action for malpractice against their attorney accrued in 1980 and never ceased. In other words, unlike in Stroud, the appellants were not prevented for a period of time from beginning their cause of action against their attorney. Thus, we conclude that Stroud is not applicable to the present facts and does not stand for the proposition that Arkansas has adopted the “date of injury” approach to determining when a cause of action for attorney negligence accrues. Under the facts of this case, we conclude the cause of action for attorney malpractice against Fairley accrued in March of 1979 and June of 1980, when he first warranted good title in the properties, indicating Equitable had no lien interest in them.

Even if we accepted appellants’ suggestion that the January 21, 1985 date of Fairley’s “title opinion letter” started the running of the three-year statute of limitations, their cause of action is still barred. In sum, the appellants’ third-party complaint filed on June 19,1987 never mentioned Fairley’s letter, nor their theory that Fairley’s negligence accrued in 1985.

In making a determination on application of statute of limitations, the court looks to the complaint itself. O’Bryant v. Horn, 297 Ark. 617, 764 S.W.2d 445 (1989). Arkansas is a fact pleading state; we do not recognize notice pleadings. Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all averments of material matter. ARCP Rule 9(f). In addition, pleadings are to be drafted in such a manner as to give a party fair notice of what the claims and the grounds upon which it is based. ARCP Rule 8; Newbern, Arkansas Civil Practice and Procedure, § 8-2 (1985).

In appellants’ 1987 third-party complaint, the dates March 1979 and June 1980 are mentioned but not the January 21,1985 date. Without the 1985 date, the complaint and its cause of action filed in 1987 was well outside three years after the negligence occurred in 1980. Fairley’s January 21, 1985 letter was never mentioned until appellants filed their new complaint in circuit court on September 19, 1988. Under the theory of their second complaint, appellants’ cause of action was again outside the period of limitations by about eight months.

We briefly mention the appellants’ suggestion that the savings statute, Ark. Code Ann. § 16-56-126 (1987), is relevant to this case. The savings statute plainly provides that the action must be commenced within the time limits of the statutes of limitations. Since the appellants’ action was not brought within the three-year statute of limitations, the savings statute is inapplicable.

For the reasons stated above, we affirm.