author: Steele Hays, Justice. Darrell Hickman, Justice, Per Curiam.

text:
    RAD-RAZORBACK LIMITED PARTNERSHIP, REALTY ASSOCIATES DEVELOPMENT, INC., John MARCON, Bruce BURROW, Samuel LASUSA, RAZORBACK SQUARE SHOPPING CENTER, a Joint Venture, FIRST REAL ESTATE DEVELOPMENT CORPORATION v. B.G. CONEY CO.
    85-281
    713 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered July 21, 1986
    [Supplemental Opinion on Partial Rehearing September 22, 1986.]
    [Rehearing denied October 20, 1986.]

      Friday, Eldredge & Clark, by: BillS. Clark, for appellants.

      Wood Law Firm, for appellee and cross-appellant B.G. Coney Company.

      Walter A. Murray, for cross-appellees Shrader Construction Company and Shirley’s Excavating & Clearing, Inc.

      Southern, Allen, East, James & Jones, by: Jack East, III, for cross-appellee River Valley, Inc.

       Holt, C.J., and Purtle and Hays, JJ., not participating.

       Hickman, J-., would grant. Holt, C.J., and Hays, J., not participating.

   Steele Hays, Justice.

This case involves disputes that arose during the construction of The Razorback Square Shopping Center in Little Rock. Appellants are the developers, RAD-Razorback Limited Partnership and others, and appellee is the contractor, B.G. Coney Company. The disputes center primarily around site preparation and earthwork.

Coney brought suit against RAD-Razorback for items of work he claimed were not part of the contract, but were “extra work” that warranted compensation above the contract price. RAD-Razorback took the position that the items were called for by the contract and it counterclaimed for approximately $200,000 in credits to be back charged against Coney for failure to meet the completion date, and for the cost of correcting some parts of Coney’s work which RAD-Razorback claims were improperly performed. The chancellor found for Coney on his claims for extra work and against RAD-Razorback on its counterclaim. RAD-Razorback moved for the appointment of a master and that a new trial be ordered. Those motions having been denied, RAD-Razorback now brings this appeal.

Review of Chancery Cases

Chancery cases are tried de novo on the record on appeal. Dopp v. Sugarloaf Mining Co., 288 Ark. 18, 702 S.W.2d 393 (1986); Rose v. Dunn, 284 Ark. 44, 679 S.W.2d 180 (1984); Walt Bennett Ford v. Pulaski County Special School District, 274 Ark. 208, 624 S.W.2d 426 (1981). However, we will not reverse the findings of the chancellor unless clearly against the preponderance of evidence. ARCP 52. After giving due deference to the superior position of the chancellor to determine the credibility of the witnesses and the weight to be given their testimony, we come to the conclusion that some of the findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. United States v. U.S. Gypsum Co., 333 U.S. 364 (1947).

When arguing on appeal, the burden is on the appellant to demonstrate error and to bring up a record which so demonstrates. S.D. Leasing v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). It is appellant’s burden to present an abstract that will sufficiently show the error. Burgess v. Burgess, 286 Ark. 497, 696 S.W.2d 312 (1985). However, if the appellant’s abstract demonstrates error and a portion of the record has been omitted that would support the court’s finding, the appellee must respond through Rule 9(e)(1) and supply the deficiency in the abstract. Murphy v. Wilson, 228 Ark. 727, 310 S.W.2d 1 (1958).

Undercutting Dispute

The first item for which Coney sought compensation as “extra” work outside the contract, was for undercutting done throughout the construction site. Undercutting is the removal of unsuitable soils and replacement with soil that will properly compact. It is RAD-Razorback’s position that the contract included the undercutting and, alternatively, that Coney waived any right to payment by not presenting a claim for extra work, a procedure specifically required by the contract.

Under the contract Coney was to complete three major phases of the development: the construction of a K-Mart store, site preparation for the entire 18 acre shopping center, and all paving. The contract provisions outlining these phases provide only a sketchy description of the work, with references to other documents for specificity. The three primary items of work are described as follows:

A. [Complete construction of the K-Mart store].
B. Site clearing, demolition, excavation, cut and fill, borrow material to bring entire site to subgrades in building and parking areas including all undercutting of the K-Mart building as outlined in the soils reports prepared by Southwestern Laboratories, Soils Engineering Division, of Little Rock, Arkansas, dated February 9, 1982 and March 23, 1982, all in accordance with site grading plans. (Our italics).
C. All asphalt paving consisting of 8-inch base and 2Vi-inch asphalt topping in parking areas and 10-inch base and 21/2-inch asphalt topping in heavy-duty areas, all in accordance with Soils Engineering’s recommendations, including all paving work on Cantrell Road in accordance with Highway Department specifications. (Our italics).

The soils report was incorporated by reference.

In defense of his position, Coney simply quotes Section B, with the unsupported claim that this provision excludes all other undercutting. Coney may be relying on the rule of construction, expressio unius est exclusio alterius. 17A C.J.S. Contracts, § 312. That rule is not overriding, however, and must bow to an examination of the entire transaction which indicates the contrary. Id. In seeking to harmonize different clauses of a contract, we should not give effect to one to the exclusion of another even though they seem conflicting or contradictory, nor adopt an interpretation which neutralizes a provision if the various clauses can be reconciled. The object is to ascertain the intention of the parties, not from particular words or phrases, but from the entire context of the agreement. Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 493 S.W.2d 439 (1973).

When Section B is examined in isolation, Coney’s theory seems correct. While there is no analogous section in the soils report relating to general site preparation, there are two sections in the report that deal with site preparation for construction, and floor slab preparation, both pertinent to the construction of the K-Mart building and both requiring undercutting.

But by reading further in Section C we find the paving project also is referenced to the soils report. A reading of the soils report makes it clear under the section devoted to paving that some undercutting is contemplated to properly prepare for the paving. Of the six paragraphs in the paving section, half are devoted to discussion of soil content and measures which must be taken by the contractor to deal with each of those problems, including undercutting. The other paragraphs deal with recommended thicknesses of the asphalt and base and with the type of stone to be used in the base.

Given the wording from the soils report, it would be difficult to come to any conclusion except that undercutting was included as part of the obligation in the paving section of the contract. This would necessitate undercutting for a large portion of the shopping center, i.e. the parking lot. And under Section B, Coney is expressly responsible for the undercutting of K-Mart. Thus, the contract includes undercutting on the entire project, except for the other building sites, for which Coney was not responsible. Further preparation of the remainder of the site, including the undercutting, is covered by the requirements in the paving section of the contract.

This interpretation effectively harmonizes conflicting clauses and gives a reasonable reading to the entire contract. But even if we rejected that interpretation, based on a finding the language is ambiguous, we would come to the same result. Where a contract is ambiguous, the court will accord considerable weight to the construction the parties themselves give to it, evidenced by subsequent statements, acts and conduct. Wynn v. Sklar, supra; Organized Security Life v. Munyon, 247 Ark. 449, 446 S.W.2d 233 (1969); Asimos v. Reynolds & Sons, 244 Ark. 1042, 429 S.W.2d 102 (1968). This record reflects that throughout the performance of the contract, Coney did all the undercutting that was required. Not only were there no claims for extra work, there is virtually rothing in the record to indicate the undercutting was of any serious concern to Coney prior to this litigation. Coney insists that complaints were made, but his citations to the record do not bear this out. In fact, Coney admitted that he had never written a letter nor contacted the owner about the undercutting. This position was echoed by his chief superintendent, Charles Toland, who said they had no way to get back to the company and tell the owners about the problem. Yet the evidence shows that throughout the project there were other requests for change orders made by Coney. RAD-Razorback’s expert witness, an architect, testified it is in the contractor’s best interest to have the change order signed prior to going ahead with work and that the order must be signed before the contractor is completely covered on his expenses. He also testified that if the contractor proceeded to perform new work covered by an addenda without saying anything to the owners, without protesting, and without asking for a change order, he would assume the contractor accepted the performance of that portion of the work.

In the face of Coney’s long experience as a contractor and the $30,000 to $40,000 he was claiming for undercutting, it is difficult to understand why there was neither a change order nor a complaint made for the work he now claims was outside the contract. Even where a contract is ambiguous, the parties will be bound to the construction which they themselves have placed upon it. Organized Security Life, supra.

But were we to interpret the contract as Coney urges, we must come to the same view, precluding an award on a quantum meruit basis. The contract contained the standard construction industry provision which requires that a claim for extra work must be made and approved before the work is begun, and without such authorization the contractor cannot recover for that work. No claim was ever made by Coney. Coney’s explanation for this omission was that he thought it was the owner’s responsibility or that the job was “just moving too fast.” Coney testified that he had built three K-Mart stores and about one hundred Wal-Mart stores. From that background it is incredible that Coney would not be fully aware of the consequences of failing to file a work claim for the added compensation he now demands. Nor do we find from the record that this provision in the contract had been waived by previous conduct on the part of RAD-Razorback, as occurred in Sellers v. West-Ark. Construction, 283 Ark. 241, 676 S.W.2d 726 (1984). The general rule pertaining to construction contracts is, absent a waiver or certain circumstances not evident from the record in this case, if it is required, a request for additional compensation must be in writing and cannot be made after the work is completed. Ida Grove Roofing v. City of Storm Lake, 378 N.W.2d 313 (Iowa 1985); Elec-Trol, Inc. v. C. J. Kern Contractors, 284 S.E.2d 119 (N.C. 1981); Chambless v. J.J. Fritch, 336 S.W.2d 200 (Tex. 1960); 13 Am Jur2d § 22, Building and Construction Contracts; 2 ALR3d, Private Construction Contracts-Extras.

We must conclude on the state of this record and the arguments presented by RAD-Razorback, the chancellor’s finding that the undercutting was not required under the contract is clearly against the preponderance of evidence and, accordingly, we reverse the decree on that point.

Sewer Compaction Dispute

Another item in dispute involves a sewer easement of the City of Little Rock. The easement crosses the entire site, a distance of some 1,300 feet. During the course of the construction the city decided to replace the sewer line, creating a problem because the city’s backfill of the trench did not meet the 95% compaction density required under the contract. RAD-Razorback contends Coney agreed to bring the compaction to contract specifications, and to perform this admittedly “extra work” for $7,500. RAD-Razorback relies on a signed change order which reads as follows:

Remove excess dirt placed by city installation of sewer line front and parallel with front of K-Mart store and provide compaction of backfill as required in K-Mart paving specification.

The filling of the trench became a long and involved process due to heavy rains, poor drainage and unsuitable soils and Coney claims approximately $80,000 over the original contract for this work.

The chancellor made no specific finding of fact, he simply announced a judgment for Coney. The record consists of seventeen volumes and countless exhibits, abstracted into 300 pages, with few exhibits abstracted. On issues largely involving an accounting, it is impossible to arrive at any definitive conclusions. Thus, on de novo review we cannot determine whether the judgment is supported by the preponderance of the evidence. While it appears that no change order was ever filed by Coney for the amount claimed over the $7,500 assertedly agreed to, we cannot say with certainty what effect that omission may have had in this case. Nor can we tell whether Coney has documented the expenditures he claims.

Ordinarily we try chancery cases de novo from the record and render the decree which should have been rendered below; however, when the record is such that we cannot end the controversy in this court we will remand that part of the case as justice requires for further proceedings. Walt Bennett Ford v. Pulaski County Special School District No. 213, 274 Ark. 208, 624 S.W.2d 426 (1981). Fish v. Bush, 253 Ark. 27, 484 S.W.2d 525 (1972).We are forced to that recourse in this case, leaving to the chancellor whether to make that determination himself or appoint a master for the purpose of taking proof and making a recommendation. The issues remanded are whether the parties agreed this phase of the work would be performed for $7,500 and, if not, what was the cost to Coney of completing the work.

RAD-Razorback’s Claim

After encountering difficulties with Coney over the completion date and Coney’s financial problems, RAD-Razorback and Coney agreed to a termination before the completion of the project. Coney acknowledged that RAD-Razorback would be due compensation by back charging for the cost of finishing the project and for any remedial work. RAD-Razorback counterclaimed in this suit for the amount it calculated was due which had not yet been recovered from Coney. The court denied the claim.

On appeal, RAD-Razorback has presented a clear case for recovery on its counterclaim and we find no impediment to that claim. Coney does not dispute that RAD-Razorback is entitled to recovery on the completion and remedial work nor does he specifically challenge the amount. Coney makes several arguments attacking the claim on other grounds, none of which are sufficient to defeat RAD-Razorback’s claim.

Coney’s primary defense is the issue of undercutting, arguing that since it was not part of the contract, it could not be charged to him. However, as we found undercutting to be included in the work Coney had contracted to do, this argument is without merit. Coney makes several other arguments to attack RAD-Razorback’s claim but they are conclusory, unconvincing or unsubstantiated by the proof. RAD-Razorback has presented sufficient evidence to show that the dismissal of its claim was clearly against the preponderance of the evidence.

The decree is reversed as to RAD-Razorback’s claim and remanded for further proceedings to establish an accurate accounting of the amounts due.

Cross Appeal from the Judgment Awarded River Valley, Inc.

Cross-appellee, River Valley, Inc., subcontracted with Coney to install a waterline and fire hydrants around the shopping center and to install all plumbing work in connection with the K-Mart store. The chancellor found River Valley, Inc. was entitled to a judgment for $33,380.80 for the balance of its subcontract and at an April 1,1985 hearing Coney acknowledged the validity of the River Valley claim in full.

On appeal Coney asserts a set-off of $275, and a set-off in an amount due Lewis Trenching from River Valley. The latter issue, so far as we can determine, was not presented to the chancellor. River Valley has abstracted a significant portion of the proceedings below to sustain its position that Coney’s appeal from that part of the decree is made in bad faith, and solely for delay. The argument is convincing. The decree with respect to River Valley, Inc. is affirmed and in addition to its printing costs of $276.00, counsel for River Valley, Inc. is allowed a fee of $1,750.

Cross Appeal from the Judgments Awarded to Shrader Construction Company and Shirley’s Excavating and Clearing, Inc.

The chancellor found that Shrader Construction Company and Shirley’s Excavating and Clearing, Inc., joint subcontractors were entitled to a judgment for $107,369.60 representing the unpaid balance of their subcontract with Coney to perform drainage work in connection with the site. Coney has cross-appealed alleging that it was error to allow the full amount of their claims, that he was due a set-off against the amount claimed. We find no proof to support Coney’s position and we have been cited to nothing in the record. It being Coney’s burden to demonstrate error, the judgment awarded these cross-appellees is affirmed. Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981); Poindexter v. Cole, 239 Ark. 471, 389 S.W.2d 869 (1965).

Affirmed in part, reversed in part and remanded.

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

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. The appellants are entitled to a trial and a trial court decision. The trial judge acknowledged he could not decide the case because it was too complicated and further time spent would only delay the case anyway. He simply passed it on to us. We are an appellate court and have no authority to weigh evidence and enter findings of fact. We may only review findings of facts already determined.

It is elementary that every litigant is entitled to a trial. The trial judge quite candidly conceded a master or “panel of experts” should have been used. He should have gone one step further. Conceding the trial was beyond him, he should have appointed a master and ordered a new trial or granted a new trial and asked for another judge to hear the case.

We cannot allow a party to have no trial judgment. However disagreeable and difficult, a decision must be made; however wrong it may be, a litigant is entitled to a decision by a trial court. At least then one can use the reasoning and judgment to argue for correction. The appellants have no remedy in this case. A trial court that cannot render a decision has defaulted. A decision by an appellant court without the power to try the case amounts to no decision at all. I would remand this case for a trial.

Supplemental Opinion on Partial Rehearing September 22, 1986

713 S.W.2d 462

Petition for Rehearing; granted in part and denied in part.

Per Curiam.

In a petition for rehearing Coney argues that the judgment in his favor in the amount of $338,638.00 was admitted by RAD-Razorback to be owed to Coney and that this portion of the judgment should be affirmed. In response, RAD-Razorback admits that it offered to pay that amount but not as a final payment under the contract, for that might mean that it waived its claims against Coney for remedial work and back-charges. RAD-Razorback states that Coney refused to accept the offer. In the circumstances, the judgment in favor of Coney for $338,638.00 is affirmed in the sense that Coney’s underlying cause of action for that amount is no longer in issue, but the affirmance is without prejudice to Rad-Razorback’s claims against Coney with regard to other matters.

There having been no petition for rehearing with respect to the judgments in favor of River Valley, Inc., and Shrader Construction Company, Inc., and Shirley Excavating & Clearing Company, Inc., those judgments have become final.

In other respects Coney’s petition for rehearing is denied.

Hays, J., not participating in the consideration of the case on rehearing.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Rickey Lewis JAMES v. STATE of Arkansas
    CR 86-23
    712 S.W.2d 919
    Supreme Court of Arkansas
    Opinion delivered July 21, 1986

      Williams Law Firm, by: Lynn Williams, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant was charged with capital murder in 1983. The charge was reduced to first degree murder pursuant to a plea bargain and appellant entered a plea of guilty. He was sentenced to life imprisonment in the Arkansas Department of Correction. He subsequently filed a motion for transcript and wrote a letter to the circuit judge stating his intention to proceed under Criminal Procedure Rule 37 to vacate the guilty plea. The judge treated the motion and letter as a request for a hearing and appointed counsel to represent the appellant. Counsel filed an amended Rule 37 petition, alleging in essentially conclusory fashion that (1) appellant did not have a good working relationship with the attorney who represented him when he pleaded guilty, (2) his confession was not voluntary as it was made only to obtain the benefits of a plea bargain, (3) counsel’s advice on the plea bargain was “overreaching,” and (4) counsel failed to bring a prior felony conviction to the attention of the court and further failed to advise him on the effect of the prior conviction on his chances for parole. Appellant did not contend that he was in fact not guilty.

Immediately after the hearing on the petition convened, counsel informed the court that appellant wished to withdraw his petition because he feared that if he were successful in vacating the plea, the prosecutor would be free to charge him with capital felony murder which could result in a sentence of life without parole or death. The trial judge explained to appellant that Rule 37.2(b) provides that a petitioner may file only one petition under the rule, unless his original petition was denied without prejudice to filing a second petition. Despite the fact that appellant was not allowed to simply withdraw the petition and was fully informed that his petition would be dismissed with prejudice, appellant still persisted in his request that the petition be dismissed.

In 1985 appellant filed a second Rule 37 petition, this time contending that the State did not honor the plea bargain. His only support for the allegation was that the maximum sentence for first degree murder was imposed under the plea bargain. He did not assert that he was not guilty of first degree murder. The trial court denied the petition on the ground that appellant had already exhausted his remedy under Rule 37. Appellant brings this appeal.

Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant’s counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Appellant was notified of his right to file a pro se brief within thirty days. See Rules of the Supreme Court, Rule 11(h), Ark. Stat. Ann. Vol. 3A (Supp. 1985). He did not file a brief. The State concurs that the appeal has no merit.

This Court has consistently upheld the provision of Rule 37.2(b) by which a petitioner is limited to one petition for postconviction relief under the rule, unless the first petition was specifically denied without prejudice to filing a second petition. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981). The record clearly indicates that appellant voluntarily dismissed his original petition. His fear of a more severe sentence on retrial did not render his decision to dismiss the petition involuntary. See Mitchell v. State, 271 Ark. 512, 609 S.W.2d 333 (1980); see also Ruiz v. State, 275 Ark. 410, 630 S.W.2d 44 (1982).

If appellant had been found guilty by a jury of first degree murder, he could not have been tried for capital murder since capital murder is a greater degree of the same crime, Fuller v. State, 246 Ark. 704, 439 S.W.2d 801 (1969), see also Green v. State, 355 U.S. 184 (1957), but a petitioner who pleads guilty does not have the same protection. The petitioner who succeeds in having his plea overturned wipes the slate clean and begins anew.

When accepting appellant’s guilty plea to first degree murder, it is obvious the trial judge could not have considered any greater charge. As a result, appellant was never in jeopardy of being convicted of capital murder. The acceptance of a guilty plea to an offense is not an implicit acquittal of all greater included offenses of the crime. Klobuchir v. Pennsylvania, 639 F.2d 966 (1981), cert. denied, 454 U.S. 1031 (1981). A petitioner who attacks his guilty plea is choosing to surrender whatever benefits he may have derived from his plea bargain. See Hawk v. Berkemer, 610 F.2d 445 (6th Cir. 1979); United States v. Williams, 534 F.2d 119 (8th Cir.) cert. denied, 429 U.S. 984 (1976). The State may charge him with whatever offense is appropriate under the facts of the case so long as the decision to charge with a greater crime is not prompted by vindictiveness on the part of the prosecutor to retaliate against the defendant for successfully attacking his original conviction based on his guilty plea. United States v. Williams, supra.

The trial judge questioned appellant at considerable length about his desire to dismiss the petition and the consequences of that decision. Appellant did not allege in his second petition that he did not voluntarily and intelligently choose to dismiss the petition with prejudice, and there is nothing in the record from which we could find that the trial judge was wrong to decline to consider a subsequent petition. On appeal, we affirm the decision of the trial court unless it is clearly against the preponderance of the evidence. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984).

From a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.

Affirmed.

Holt, C.J., not participating.


text:
    Darrell PATTERSON v. Melba SMITH, et al.
    86-99
    712 S.W.2d 922
    Supreme Court of Arkansas
    Opinion delivered July 21, 1986

      Appellant, pro se.
    No response.
   Per Curiam.

Appellant Patterson filed a pro se petition for writ of mandamus in the Circuit Court of Lincoln County, alleging that the keeper of the records for the Arkansas Department of Correction had misfigured his parole eligibility date. Appellant, who was classified by the Department as a third offender pursuant to Act 93 of 1977, Ark. Stat. Ann. § 43-2828 et seq. (Supp. 1985), contended that he should have been classified as a second offender. Under Act 93 a petitioner classified as a third offender must serve at least three-fourths of his sentence, less credit for good behavior, before being eligible for parole. A second offender under Act 93 is eligible for release on parole after serving one-half of his sentence with credit for good behavior. The trial court found that appellant had been convicted three times and was thus properly classified as a third offender for the purposes of Act 93 and denied the petition for writ of mandamus. An attorney was appointed to represent the appellant in the appeal of the trial court’s decision. Counsel for appellant and the State have each filed a brief on appeal; both argue that the appeal has no merit.

Appellant seeks permission to file a pro se supplemental brief. Even though counsel for appellant has conceded that the appeal is without merit, appellant is not entitled to file a supplemental brief unless he can establish that some significant point for reversal has been omitted from counsel’s brief. If this were a criminal appeal, he would be entitled to file a supplemental brief pursuant to our Rule 11(h), which sets out the procedure to be followed when an attorney wishes to withdraw from a criminal appeal which has no merit. Because a petition for writ of mandamus against the Department of Correction challenging the computation of a parole eligibility date is a civil action, Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986), the appellant is not permitted to file a supplemental brief as a matter of course.

The appellant here has not demonstrated that counsel omitted a meritorious point for reversal. Ark. Stat. Ann. § 43-2828(3) provides:

Third offenders shall be inmates convicted of three or more felonies and who have been twice incarcerated in some correctional institution in the United States ... for a crime which was a felony under the laws of the jurisdiction in which the offender was incarcerated, prior to being sentenced to a correctional institution in this State for the offense or offenses which they are being classified.

Appellant was convicted of a felony in Pulaski County in 1975 and served one year of a five-year sentence with four years suspended. He violated parole and was returned to the Arkansas Department of Correction to serve the remaining four years in 1978. In 1979, he was convicted of a felony in Craighead County and sentenced to five years imprisonment. In 1983, he was convicted in Pulaski County of five felonies and received five concurrent ten-year sentences. According to § 43-2828(3), a third offender is one who has been twice incarcerated in some correctional institution for a felony prior to being sentenced to a correctional institution for the offense for which he is being classified. Appellant was classified for the 1983 offenses based on his prior felony convictions in 1975 and 1979; he is therefore a third offender under the statute and not entitled to be classified by the Department of Correction as a second offender.

As appellant has not made a substantial showing that he was entitled to a petition for writ of mandamus against the Arkansas Department of Correction, the motion to file a supplemental brief must be denied. We note secondarily that the handwritten brief which appellant has attached to his motion for permission to supplement could not be accepted under this Court’s Rules in any event. Pro se briefs in civil cases must be typewritten unless this Court has given the appellant permission to file a handwritten brief. Such permission is granted only when an appellant makes a substantial showing that his suit has merit and that he is unable to submit a typed brief. Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986).

In the course of reviewing the briefs and record in regard to the instant motion, we have concluded that the appeal is without merit. It is therefore pointless to consider the matter a second time when the briefs are submitted to this Court. Therefore the appeal is dismissed.

Motion denied; appeal dismissed.

Holt, C.J., not participating.


text:
    Ruth Lucille WILLIAMS v. STATE of Arkansas
    CR 84-45
    712 S.W.2d 924
    Supreme Court of Arkansas
    Opinion delivered July 21, 1986

      Achor & Rosenzweig, by: Jeff Rosenzweig, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant was convicted of robbery and was sentenced as an habitual offender to 23 years’ imprisonment. The judgment was affirmed by the Court of Appeals. Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984). In the last paragraph of the opinion the Court of Appeals found no merit in an objection to certain testimony introduced by the State on rebuttal, but the opinion implied that the testimony might have been excluded had the proper objection been made. That implication doubtless led to this petition, in which petitioner argues that counsel’s failure to object amounted to ineffective assistance of counsel. We find no basis for ordering a hearing upon the matter, which can be fully determined on the record.

The facts, as developed before the jury, are simple. The appellant and her codefendant, Kenneth Parker, were tried separately. Both were known professional shoplifters. Parker stated on cross examination that he worked in his folks’s construction business “when I am not stealing.” Pictures of the appellant and of Parker were posted in the observation booth of the Safeway store where the robbery was committed. All employees knew them by sight.

On the day in question the head clerk, Bettis, saw the appellant when she entered the store. Bettis told Tucker, the assistant manager, he was going up to the observation booth to watch her. From that point he had a clear view of the appellant when she took six steaks and put them underneath her clothing. Bettis ran down to catch the appellant, who at once tried to run away. Bettis and Tucker grabbed her, but she fought back, biting Bettis’s arm several times. Parker, the codefendant, then appeared and helped the appellant free herself. The two ran away and were arrested later.

The appellant and Parker both testified for the defense, denying that the appellant had taken anything. On direct examination Parker said that he had been arrested many times and always went with the arresting officer. On rebuttal the prosecutor called the court’s bailiff, who testified that when he was a deputy sheriff four years earlier he had seen Parker shoplifting and told him he was under arrest, but Parker fled. The only objection to the bailiffs testimony was that he had been in the courtroom during the trial. The Court of Appeals intimated a doubt about whether the bailiffs testimony was either relevant or proper for impeachment.

It is now argued that counsel’s failure to make the proper objection amounted to ineffective assistance of counsel. For that conclusion to be reached it must be shown that counsel’s failure to object undermined the adversarial process and so greatly prejudiced the appellant that she did not receive a fair trial. Elmore v. State, 285 Ark. 42, 684 S.W.2d 42 (1985).

We perceive no substantial prejudice. The State’s proof of guilt was overwhelming, despite the defense testimony that the appellant was simply standing quietly in the store when the two employees seized her. Parker’s credibility had already been demolished by his own admissions and his previous convictions for assault with intent to rob and for thefts. The fact that he had fled four years earlier when placed under arrest was actually irrelevant and certainly did not undermine the fairness of the appellant’s trial. Counsel insists that the matter should be remanded for a hearing, but there is no suggestion of what testimony could be offered that is not already in the record. Such a hearing would be of no value to anyone.

Petition denied.

Holt, C.J., not participating.


text:
    Gloria JOLLY v. George HARTJE, Jr., Circuit Judge; Charles CASTLEBERRY, Faulkner County Sheriff; and Sandy E. JOLLY
    86-68
    713 S.W.2d 241
    Supreme Court of Arkansas
    Opinion delivered July 28, 1986

      William J. Velek, for petitioner.

      Ronald L. Burton, for respondents.
   Per Curiam.

The petitioner has asked us to clarify our order of April 1, 1986, in which we temporarily stayed proceedings below in response to a habeas corpus petition filed by the petitioner, Gloria Jolly. By our order we granted the habeas corpus upon condition the petitioner post a $2,500 bond. We stayed all proceedings while the issues were to be briefed under Rule 16. The only proceedings stayed are those related to the question whether it was or shall be proper to hold petitioner in confinement.


author: George Rose Smith, Justice.

text:
    Mike WALL v. STATE of Arkansas
    CR 86-43
    715 S.W.2d 208
    Supreme Court of Arkansas
    Opinion delivered September 15, 1986

      Ed McCorkle, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant, Mike Wall, was charged with rape in that he had engaged in deviate sexual activity with his stepdaughter, then ten years old. The sufficiency of the evidence is not questioned, it being undisputed that Wall fondled the child and caused her to perform an act of oral sex upon him. The jury found the defendant guilty and fixed his punishment at 40 years’ imprisonment. Three points of error are argued, but they are all without merit.

It is first argued that defense counsel should have been supplied with funds for the employment of a psychiatrist and a psychologist to assist in the presentation of an insanity defense. The trial court had granted a defense request that Wall be sent to the State Hospital for a mental examination. There Wall was examined by a psychiatrist and a psychologist. In a joint report they found that he had a dysthymic disorder (a tendency to despondency) and a mixed personality disorder with antisocial and passive-aggressive traits. The doctors found that Wall appeared to be aware of the nature of the charges, that he was capable of cooperating effectively in his defense, and that at the time of the commission of the offense he did not lack the capacity to appreciate the criminality of his conduct or to conform h<s conduct to the requirements of the law. The report provides no basis for the defense of mental disease or defect, as defined by Ark. Stat. Ann. § 41-601 (Repl. 1977).

After the hospital report had been filed defense counsel made their motion for funds, stating merely that they anticipated raising the defense of insanity and that the requested funds were necessary to provide for that defense. No facts were stated to suggest any basis for the defense. The motion was denied. At a pretrial hearing counsel renewed the motion, but again no facts were stated or proffered. The motion was again denied.

Under our prior cases the denial of the motion was proper, because Wall’s rights were adequately protected by the examination at the State Hospital, an institution which has no part in the prosecution of criminals. Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979); Hale v. State, 246 Ark. 989, 440 S.W.2d 550 (1969). An indigent defendant’s constitutional right to an examination by a psychiatrist was recently discussed in detail in Ake v. Oklahoma, 105 S.Ct. 1087 (1985). There the Supreme Court emphasized the risk of error, absent a psychiatric examination, “when the defendant’s mental condition is seriously in question.” As far as our present case is concerned, the Court stated the appropriate rule as follows: “When the defendant is able to make an ex parte showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.” P. 1097. Here there was no showing, either before or during the trial, that Wall’s sanity was seriously in question.

The appellant’s second and third arguments relate to his confession, which was introduced by the State. We have reviewed the testimony and find no basis for disagreeing with the trial judge’s conclusion that the taped statement was voluntary. Wall was warned of his Miranda rights. Both the deputy prosecutor and the police officer who were present when the statement was taken testified that Wall cried at times and appeared to be upset, but he freely admitted his guilt and said he was ready to take his punishment. The verbatim transcription of the statement confirms the other proof of voluntariness. There is no indication of coercion.

The last argument is that the trial court did not delete all inadmissible portions of the statement before it was read to the jury. The statement was in question-and-answer form, just as it took place, and there were implications that Wall had previously engaged in similar conduct with this same stepdaughter. Under our law, however, direct proof of Wall’s earlier sexual relations with the child would have been admissible in evidence. Williams v. State, 156 Ark. 205, 246 S.W. 503 (1922); Williams v. State, 103 Ark. 70, 146 S.W. 471 (1912). The trial court was right in not deleting the implication of facts that might have been proved outright.

Affirmed.


author: Darrell Hickman, Justice.

text:
    John Ben COLEMAN v. Floyd J. LOFTON, Judge, First Division, Pulaski County Circuit Court
    CR 85-209
    715 S.W.2d 435
    Supreme Court of Arkansas
    Opinion delivered September 15, 1986

      Henry N. Means, III, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The issue in this case concerns the constitutional right to a speedy trial. John Ben Coleman argues that the state’s ten month delay in serving the warrants of arrest irreparably harmed his defense. We find the petition for prohibition unconvincing and deny it.

Coleman was charged with rape and kidnapping. The arrest warrants were issued April 4, 1984, about ten days after the alleged crimes occurred. The warrants were served on February 26,1985, over ten months later. A jury trial was set for November 4, 1985.

Three days before the trial, Coleman filed a motion to dismiss the charges because of the delay in bringing him to trial. Coleman primarily argues that a key defense witness, John Kelly, could not be located as a result of the delay in serving the warrants.

A hearing was held on the motion. Coleman testified about his efforts to locate Kelly. Coleman backtracked the places he and Kelly frequented asking about Kelly. He said he went to Marianna where Kelly lived prior to coming to Little Rock. Coleman heard Kelly had moved to Houston, but said he could not locate him. Coleman also testified as to Kelly’s possible testimony. The trial judge ruled the motion untimely. The trial resulted in a mistrial because of a deadlocked jury.

Coleman petitioned this court for a writ of prohibition to prevent a second trial and to dismiss the charges on the same grounds raised in his motion to dismiss. The only new argument is that another defense witness, Leslie Murphy, who testified at the trial, has since died.

Coleman argues that the trial was not held within the 18 months required by A.R.Cr.P. Rule 28.1. He contends the time begins to run from the date the charges are filed; therefore, his trial was held too late (19 months after the charges were filed). This argument fails because the time does not begin to run until the date of arrest. A.R.Cr.P. Rule 28.2 (a); Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986); Glover v. State, 287 Ark. 19, 695 S.W.2d 829 (1985). Coleman’s trial was held nine months after his arrest. He was in custody, if at all, only briefly.

Alternatively, Coleman argues that even if the time had not run, he was prejudiced by the delay in serving the warrants and entitled to dismissal of the charges. Barker v. Wingo, 407 U.S. 514 (1972); Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980). Wingo set no hard and fast rule regarding a speedy trial. Instead the United States Supreme Court established four factors to be considered in determining if an accused is denied a speedy trial. Those factors are the length of the delay, the reason for delay, the defendant’s assertion of his right to a speedy trial, and actual prejudice to the defendant. Unless there is some delay which is presumptively prejudicial, there is no need to examine the other factors. Barker v. Wingo, supra.

Coleman’s argument must focus on the pre-arrest delay because he did nothing to call the matter to the trial court’s attention during the eight months after the arrest or at the arraignment until the motion to dismiss was filed three days before the trial. Coleman did not request a continuance to permit him more time to locate Kelly. We do not know why the sheriffs office did not serve the warrants in a timely manner. The warrants contained the following information: “John Coleman, B/M, Brown St., Little Rock, AR, Employed at one of the Safeway Stores on 12th LR, AR.” The information for warrant section contained: “John Coleman, Brown St., Little Rock, AR exact address unknown 897-5188 Manager at Safeway 12th St., Little Rock, AR.” However, Coleman’s testimony at the hearing sheds some light on the situation. Coleman testified he lived on Brown Street in Wrightsville, not Little Rock. Coleman also testified he was listed in the telephone directory with the same phone number since 1974 and he worked at Safeway since 1969, but he was off work for a period of time due to an illness. There is no evidence that the warrants were not served deliberately or intentionally to prejudice the defense. Coleman said he had no knowledge about the charges until he was arrested. The victim testified that she told Coleman she would report him to the police.

Any delay between the time the charge is made and the arrest, unless deliberately intended to prejudice the defendant, is not a consideration when determining if his constitutional rights have been violated. United States v. Marion, 404 U.S. 307 (1971). Indeed the petition would be denied perfunctorily if only lapse of time were the argument. In our judgment the rules of criminal procedure requiring trial within a specified period are the outer limits of time to bring a defendant to trial, and trials occurring within those limits are not presumptively prejudicial. Matthews v. State, supra. Therefore, the lapse of time in this case was not presumptively prejudicial. The burden of proof was on Coleman to show he was prejudiced by the pre-arrest delay.

Coleman’s testimony was vague and uncertain about his efforts to locate John Kelly. He argued he could not find Kelly after he was arrested, but in his testimony at the hearing, he indicated that he had mentioned the charges to Kelly. His assertion of what he thought Kelly’s testimony would be was uncorroborated. Even if the testimony was corroborated, it would not go to the issue of guilt or innocence of Coleman but to the victim’s credibility.

The testimony of Murphy, the deceased witness who testified for Coleman at the first trial, can be used at a second trial. Coleman argues that Murphy and Sadie Jiles rented the house from Coleman where the alleged rape occurred. Murphy, however, did not mention to Coleman’s lawyer that the bedroom doors had dead bolt locks and only Murphy and Jiles had keys. Coleman argues this testimony would contradict the victim’s testimony that the rape occurred in the bedroom. Murphy’s unavailability does not prejudice Coleman since Jiles is still available for the second trial and Murphy was available at the first trial for questioning. The trial court denied the petition and necessarily found that the evidence was unconvincing. We agree and find the added allegation far short of the evidence of prejudice required to warrant an outright dismissal of the charges.

Petition denied.


author: John I. Purtle, Justice. Darrell Hickman, Justice,

text:
    Charles R. SINGLETON, Director, et al. v. Harvey E. SMITH and BENEVOLENT PROTECTIVE ORDER OF ELKS LODGE NO. 1987
    86-44
    715 S.W.2d 437
    Supreme Court of Arkansas
    Opinion delivered September 15, 1986

      Donald R. Bennett, for appellants.

      Murphy & Carlisle, by: Marshall N. Carlisle, for appellees.
   John I. Purtle, Justice.

The Alcoholic Beverage Control Board (Board) levied a fine against the Elks Lodge, the holder of a private club permit, for violating the statute concerning advertisements in newspapers. Ark. Stat. Ann. § 48-955 (Repl. 1977). Pursuant to the Arkansas Administrative Procedure Act (APA), the appellee requested judicial review in the circuit court which reversed the decision of the Board. The appellant argues that the circuit court erred in finding the decision by the Board was not supported by substantial evidence. We hold that there was no substantial evidence to support the decision of the Board.

On October 14, 1984, advertisements appeared in two newspapers in Washington County. The advertisements announced that an organization known as “Ducks Unlimited” would hold a banquet at the Elks Lodge on October 17, 1984.

The ads listed a telephone number which could be called for additional information. Also, the sponsors of the ads were identified as name-brand beer distributors. The local Board enforcement officer mailed the ads to the Board. Subsequently a hearing was held before the Director who entered an order finding the appellee guilty of prohibited advertising. The order was appealed to the Board which held that there was substantial evidence to support the decision of the Director. No testimony was offered at the hearing before the Board.

At the hearing the parties stipulated that identical ads (except for the sponsors) appeared in the Northwest Arkansas Times and the Springdale News. The ads began “ATTENTION SPORTSMEN” and announced that the 12th annual “Ducks Unlimited” banquet would be held at the Fayetteville-Springdale Elks Lodge. About half of the ad displayed pictures of ducks in flight and a large portion of the remainder listed door prizes. The only reference to alcoholic beverages was the names of the sponsors of the ads. The telephone number listed was not the telephone of the appellee or any of its employees. The violation report, dated October 18, 1984, charged Harvey Smith and the Elks (appellees) with the violations of advertising beer and advertising without the prescribed “Notice to Members.”

At the administrative hearing two affidavits were introduced. Harvey Smith, agent for appellee, attested that neither he nor the Lodge had any notice or knowledge that the ads would run. Glen Goode, representing Ducks Unlimited, stated that he prepared, delivered and paid for the ads without the aid, knowledge or consent of the appellee. In reaching its decision, the appellant relied upon Board Regulation Section 1.79, which states:

All acts of any servant, agent or employee of the Permittee shall be imputed to the permittee and deemed to be an act of the permittee if done within the scope of such servant, agent, or employee’s scope of authority under the permittee.

The relevant section of the APA (Ark. Stat. Ann. § 5-713 (Supp. 1985)) provides that any person who considers himself injured in his person, business, or property by final agency action shall be entitled to judicial review upon petition to the circuit court and that the agency shall transmit to the court the entire record of the proceedings before the agency. The reviewing court may allow additional evidence to be taken if it is material and there is good reason for the failure to present the evidence at the agency hearing. The circuit court may affirm the agency decision, remand for further proceedings, or reverse or modify the decision “if the substantial rights of the petitioner have been prejudiced because the findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by abuse of discretion.”

By the express terms of the APA, the circuit court may reverse the agency decision if it is not supported by substantial evidence of record. We have previously confirmed this statement of law in the case of Arkansas Real Estate Commission v. Harrison, 266 Ark. 339, 585 S.W.2d 34 (1979), wherein we stated:

Upon review of the action of an administrative board or agency, the circuit court’s review of the evidence is limited to a determination of whether there was substantial evidence to support the action taken, and upon appeal to this court, our review of the evidence is similarly limited. [Citations omitted.]

In Woodyard, Comm’r v. Diversified Insurance, 268 Ark. 94, 594 S.W.2d 13 (1980), we held that a decision by an administrative agency will be reversed if it is arbitrary or capricious or is not supported by substantial evidence. Woodyard expanded Harrison by discussing an additional statutory ground for reversing an agency decision. We reversed the circuit court decision, which had reversed the agency decision, in the case of Ark. ABC Bd. v. King, 275 Ark. 308, 629 S.W.2d 288 (1982). In King we stated:

When reviewing administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the administrative agency’s decision, or was there arbitrary and capricious action, or was it characterized by abuse of discretion. [Citation omitted.]

We again addressed the standard of judicial review of decisions of administrative agencies in Williams v. Scott, Director, 278 Ark. 453, 647 S.W.2d 115 (1983). The principles governing judicial review of agency decisions were determined to be the same as those set forth in Harrison, Woodyard and King. In Williams we stated:

An administrative agency, like a jury, is free to believe or disbelieve any witness. . . . We give the evidence its strongest probative force to support the administrative decision. ... To establish an absence of substantial evidence to support the decision the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded men could not reach its conclusion.

In the present appeal we think the trial court correctly held that there must be substantial evidence to support the agency decision before it will be affirmed. No testimony was taken before the agency. Only the two newspaper ads and the two affidavits were presented to the Board. There was no evidence before the Board that the appellee or its agents, servants, or employees procured the newspaper advertisements. It is undisputed that “Ducks Unlimited” was solely responsible for the production and publication of the ads. There was no knowledge on the part of appellee that the ads were to be published. The Smith affidavit indicated that the appellee actually lost money on the banquet. The only basis for the Board’s decision was that somehow or in some way the appellee must have known about the ads or they would not have been published.

There is no substantial evidence in the record to support the agency decision. Our standard of review, like that of the circuit court, is whether there is substantial evidence to support the agency decision. Under the circumstances and facts of this case we affirm the decision of the circuit court in reversing the decision of the administrative agency.

Affirmed.

Hickman, Smith, and Hays, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The holder of a private club permit with the Arkansas Beverage Control Division is responsible for activities at the club and any action of its agent, servants or employees. Otherwise the rules and regulations of the ABC cannot be enforced.

There is no doubt that the Northwest Arkansas Ducks Unlimited had permission to use the club and placed the illegal advertisement. The Elks Club granted the permission and has to be responsible for the violation. One cannot lend its private club and disclaim responsibility; accountability has to be with the permit holder.

Rule 1.79 of the ABC Regulation provides:

All acts of any servant, agent, or employee of the permittee shall be imputed to the permittee and deemed to be an act of the permittee if done within the scope of such servant, agent, or employee’s scope of authority under the permittee.

The Elks and Ducks Unlimited are respectable organizations, but private clubs which dispense alcoholic beverages have to be rigidly regulated. Those who seek liquor permits accept certain responsibilities which cannot be avoided; those who operate private clubs with a liquor permit do so with the knowledge that their acts and the use of the club are strictly regulated. The permit is a license, not a recognition of a right. The commission and board were clearly justified in this action. I would reverse the trial court.

George Rose Smith and Hays, JJ., join in this dissent.


author: Robert H. Dudley, Justice. John I. Purtle, Justice, David Newbern, Justice,

text:
    Bobbye Farrar BONDS v. SANCHEZ-O’BRIEN OIL AND GAS COMPANY
    86-48
    715 S.W.2d 444
    Supreme Court of Arkansas
    Opinion delivered September 15, 1986

      Steve R. Crane, for appellant.

      Keith, Clegg & Eckert, for appellee.
   Robert H. Dudley, Justice.

The sole issue in this case is whether the lessee of an oil and gas lease has an implied duty upon termination of production, or upon the drilling of a dry hole, to restore the surface of the land, as nearly as practicable, to the same condition as it was prior to drilling. We hold that the lessee has such a duty.

Eddie Smith, the predecessor in title to appellant, Bobbye Bonds, executed an oil and gas lease in July 1977. In 1979, a well was drilled and completed as a producer on the land. At that time the Cotton Petroleum Corporation, the owner of the lease, paid Smith for all location damages and took a release from liability for those damages. In January 1981, Smith executed a warranty deed for the surface to appellant Bonds. In December 1984, the operator of the well, appellee Sanchez-O’Brien Oil and Gas Company, plugged and abandoned the well, but left water pits, concrete slabs, dams, ,and winrock stone on the surface.

There is no need to recite all of the other facts or the pleadings since the parties agree that the issue before this court is whether the operator has a duty to restore the surface. The issue is a matter of first impression in this State.

Some states have adopted reclamation statutes. For example, the Kansas statute requires an operator to remove all equipment, structures and obstacles placed upon the land and to grade the surface, so as to leave the land, as nearly as practicable, in the same condition as it was before the operation, unless the parties have entered into a contract providing otherwise. Kan. Gen. Stat. Ann. § 55-132a (Supp. 1961). The State of Arkansas has no such reclamation statute.

Only a limited number of courts have decided this issue, but the rule adopted by the majority of those that have decided it is that a lessee is under no implied duty to restore the surface of the land to the condition prior to commencement of the drilling. 1 H. Williams & C. Meyers, Oil and Gas Law § 218.12 (1985).

Commentators are divided in their writings. Davis, in “Selected Problems regarding Lessee’s Rights and Obligations to the Surface Owner,” 8 Rocky Mt. Min. L. Inst. 315, 374 (1963), writes:

The conflicting positions taken by the courts in the cited cases have been both justified and condemned by legal writers. Williams and Meyers prefer the rule that refuses to imply the obligation. They reason:
It is well known that some surface damage inevitably results from oil and gas operations on the premises, e.g., from the building of roads and slush pits. The parties to the deed or lease severing minerals must be viewed as having this fact in mind. Their deed or lease contemplates reasonable surface user by the mineral owner or lessee. If a restriction on the surface easements of the latter is intended, it is reasonable to require that such intent be explicit in the instrument; otherwise the risk of injury resulting from reasonable surface user is properly upon the surface owner. If this view is adopted, the liability of a mineral owner or lessee to the surface owner by reason of change of conditions of the premises as a result of drilling and related operations should be limited to those cases involving negligence, willful misconduct, excessive user, breach of duty imposed by statute or valid regulatory order, or breach of an express contractual duty. 1 Oil and Gas Law 239-240 (1959).

Dean Sullivan, on the other hand, expresses a contrary view:

An analysis of the relationship of the parties and the underlying purpose of the lease would indicate that the lessee should be obligated to restore the surface, reasonable wear and tear excepted, even in the absence of an express provision to that effect. Sullivan, Oil and Gas Law 91 (1959).

Davis concludes by suggesting that it is the modern practice of prudent operators to clean up and restore the surface and he urges that:

The failure or refusal to do so would, in fact, constitute an unreasonable surface use that was not contemplated as being included in the rights granted to the lessee. Williams and Meyers argue that if the landowner wants to have his premises cleaned up after operations are completed, he should be required to spell out such requirement in the lease. I would put the shoe on the other foot and require the lessee to negate this obligation expressly or suffer the judicial implication of the duty.

Davis, “Selected Problems Regarding Lessee’s Rights and Obligations to the Surface Owner,” 8 Rocky Mt. Min. L. Inst. 315, 349 (1963).

Cole, in “Oil & Gas: Does the Oil and Gas Lessee Have a Duty to Restore the Surface?,” 25 Okla. L. Rev. 572, 573 (1972) states: “Until recently most courts which had considered the question held that a duty to restore would not be implied. Legislative initiative and changes in the viewpoint of courts, however, have now established a definite trend toward placing the burden of restoration on the lessee.”

We are persuaded that the current trend toward placing the burden of restoration on the lessee is the better view. This viewpoint recognizes a legitimate legal concern for the environment. In recognition of this concept, many responsible members of the oil industry have already voluntarily begun to clean up their abandoned sites, and we must base decisions upon current concepts of what is right and just. To hold otherwise would allow the lessee to continue to occupy the surface, without change, after the lease has ended. This would constitute an unreasonable surface use, and no rule is more firmly established in oil and gas law than the rule that the lessee is limited to a use of the surface which is reasonable. Accordingly, we hold that the duty to restore the surface, as nearly as practicable, to the same condition as it was before drilling is implied in the lease agreement.

Reversed and remanded for proceedings consistent with this opinion.

Smith, Purtle, and Newbern, JJ., dissent.

John I. Purtle, Justice,

concurring in part and dissenting in part. I concur in that part of the majority opinion which holds that restoration is the responsibility of the lessee. However, it is a matter which is subject to contract. I would hold that the appellant in the present case purchased this property with knowledge of the existence of these structures and therefore waived the right to have the appellee remove them.

David Newbern, Justice,

dissenting. The appellant describes herself as an oil well operator who is very experienced in the oil business. She testified she had $400 per acre invested in the two acres which are the subject of this action. She acknowledged she is asking the appellee to spend over $10,000 to repair the two acres despite the payment of $ 1,700 to her predecessor in title for damages to the land in question. Her position, apparently accepted by the appellee, is that she is not bound by the release given by her predecessor because she was unaware of it when she purchased the land.

The majority opinion cites no case holding that a lease of mineral rights carries an implied obligation of the lessee to restore the leasehold, as nearly as practicable, to the condition it was in before drilling. There may be one such case. In Smith v. Schuster, 66 So. 2d 430 (La. App. 1953), the court found such a duty. The basis of the duty was not discussed, and no authority for it was cited. That case was overruled by implication in Rohner v. Austral Oil Exploration Co., 104 So. 2d 253 (La. App. 1958). In the latter case, the mineral lease expressly required the lessee to pay for damages to crops and timber. The court allowed damages for lost corn and watermelons but refused to go further, stating there was no duty beyond the duty not to be negligent in the use of the land. More recently the Louisiana Court of Appeals has found an implied duty to restore the surface, but it has been based on the Louisiana Mineral Code rather than the lease between the parties. See Broussard v. Waterbury, 346 So. 2d 1342 (La. App. 1977).

I agree with the scholarly articles cited in the majority opinion that there has been a trend to enact legislation imposing the duty to restore upon mineral lessees. Montana (Mont. Code Ann. § 82-10-501 to § 82-10-511 (1983); Illinois (111. Rev. Stat. Ch. 1001/2 § 26 (1983); Kansas (Kan. Stat. Ann. § 55-132(a) (1983); Oklahoma (Okla. Stats. Ann. tit. 52 § 318.2 to § 318.9 (WestSupp. 1984-85); and South Dakota (S.D. Cent. Code § 38-11.1-01 to § 38-11.1-10 (1980 and Supp. 1983) have such statutes.

Before the enactment of its statute, Oklahoma allowed the lessor to recover under a nuisance theory, Tenneco Oil Co. v. Allen, 515 P.2d 1391 (Okla. 1973), or negligence theory, Nichols v. Burk Royalty Co., 576 P.2d 317 (Okla. 1977), for surface damages, but I find no Oklahoma case imposing an implied restoration duty in a mineral lease. Likewise, in Kansas, prior to legislation, there was no implied duty. Duvanel v. Sinclair Refining Co., 227 P.2d 88 (Kan. 1951); McLeod v. Cities Service Gas Co., 131 F.Supp. 449 (D.C. Kan. 1955).

Other jurisdictions having no legislation covering the matter hold there is no implied duty upon the mineral lessee to restore the surface. Warren Petroleum Corp. v. Monzingo, 304 S.W.2d 362 (Texas 1957); Amoco Production Co. v. Carter Farms, 703 P.2d 894 (N.M. 1985).

I find no evidence whatever of the “changes in the viewpoint of courts.” While I find some evidence of the legislative trend, I find the judicial one exists only in the hopes and dreams of the authors cited in the majority opinion. In my view we have no business making a blatant change in the law of mineral leases. Rather, I agree with the conclusion of the author of one article cited by the majority:

The best solution to this problem seems to be the adoption of a statute, similar to the Kansas and Illinois statutes, requiring restoration of the premises upon completion of operations.

L. Davis, Selected Problems Regarding Lessee’s Rights and Obligations to the Surface Owner, 8 Rocky Mtn. Min. L. Inst, at 349 (1963).

I respectfully dissent.

Smith, J., joins in this dissent.


author: David Newbern, Justice.

text:
    Lonnie HOWARD v. STATE of Arkansas
    CR 86-30
    715 S.W.2d 440
    Supreme Court of Arkansas
    Opinion delivered September 15, 1986

      William R. Simpson, Jr., Public Defender, by: Jerry Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is an appeal from denial of a habeas corpus petition. The appellant was convicted of failure to appear, a felony. See Ark. Stat. Ann, § 41-2820(2) (Repl. 1977). At the same trial he was convicted of misdemeanor theft by receiving. See Ark. Stat. Ann. § 41-2206(5)(c) (Repl. 1977). The judge sentenced the appellant on the felony conviction to serve three years in the Arkansas Department of Correction with two years suspended. On the misdemeanor conviction, the appellant was sentenced to serve one year in Pulaski County jail, to pay a $250 fine, and to make restitution of $50. The sentences were to be served consecutively.

After the appellant had served the one year not suspended on the felony charge, in the Arkansas Department of Correction, he was transferred to the county jail. He then brought a petition for habeas corpus, contending his sentence to the county jail was unlawful. The trial judge held a hearing at which it was agreed among all parties that the judge had made it clear when sentencing the appellant that the sentences were to run consecutively, and neither the appellant nor the state had advised him of the illegality of the sentences. The judge stated for the record his opinion that by failure to contend the misdemeanor sentence was illegal when it was imposed in conjuction with the felony sentence the appellant had waived his right to challenge it and thus was not entitled to a writ of habeas corpus.

The misdemeanor sentence imposed in this case was void because the court lacked the authority to impose it. Ark. Stat. Ann. § 41-903(3) (Repl. 1977) states:

The power of the court to order that sentences run consecutively shall be subject to the following limitations:
(a) a sentence of imprisonment for a misdemeanor and a sentence of imprisonment for a felony shall run concurrently and both sentences shall be satisfied by service of sentence for a felony ....

When we are confronted with an allegation that a sentence is void or illegal, we consider it a matter of subject matter jurisdiction which we may review whether or not an objection was made in the trial court. Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983). See also Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985).

The denial of the writ of habeas corpus is reversed, and the case is remanded to the circuit court for entry of an order not inconsistent with this opinion.


text:
    Johnny Bill JOHNSON v. STATE of Arkansas
    CR 86-45
    715 S.W.2d 441
    Supreme Court of Arkansas
    Opinion delivered September 15, 1986

      Fritzie Vammen, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, for appellee.
   David Newbern, Justice.

The appellant was found guilty of burglary of, and theft of property from, a warehouse. An accomplice testified that he and the appellant and another person committed the offenses. The appellant argues the accomplice’s testimony was not corroborated and the evidence was not sufficient to show the identity of the allegedly stolen property and value in excess of $200 which is required to support the appellant’s conviction of a class C felony on the theft charge. Ark. Stat. Ann. § 41 -2203(2)(b)(i) (Supp. 1985).

Murie, the accomplice who testified, said the appellant had gone into the warehouse and had removed property and passed it through a broken window into a dumpster outside. Murie said while this was going on he, Murie, was waiting outside by a truck in which they had driven to the warehouse. Murie testified that when the police arrived on the scene he ran into the building to warn the others. The evidence given by police officers showed the appellant and Murie were found on the roof of the warehouse.

Officer Blair testified that when he came to the warehouse he saw an arm sticking out of the broken window dropping merchandise into the dumpster. The arm was clad in a blue denim sleeve. When the appellant and Murie were apprehended, Murie was wearing a denim jacket and the appellant was wearing only a “T” shirt.

1. Corroboration

The appellant argues there was no substantial evidence to show that he entered the warehouse other than Murie’s testimony. His brief suggests he could have climbed up a drain spout on the exterior of the building to get to the roof.

The corroboration of an accomplice’s testimony required by Ark. Stat. Ann. § 43-2116 (Repl. 1977) is sufficient if it shows independently that a crime occurred and the accused was connected with its commission. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984); Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983) (reversed on other grounds). Although Murie, and not the appellant, was found wearing the denim jacket, a fact which tends to detract from Murie’s testimony that he, Murie, was outside the warehouse when the police arrived, it does not detract at all from Officer Blair’s corroborating testimony. In Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980), and in Henderson v. State, supra, we held that flight by an accused may constitute a corroborating circumstance. Completely disregarding Murie’s testimony, we have Officer Blair’s testimony that he saw the crime being committed and found the appellant and Murie on the roof of the building which was the scene of the crime. The appellant and Murie were cold and wet, as Officer Blair testified, because they had been lying on the roof. We hold the corroboration was sufficient. The fact that the appellant was discovered on the roof of the warehouse with no apparent reason for being there other than to escape detection as a participant in the burglary is sufficient.

2. Property Identity and Value

The state called James Edgecomb, a maintenance man at the warehouse, as a witness to establish the identity and value of the property allegedly stolen from the warehouse. Edgecomb had gone to the warehouse the evening of the burglary in response to a burglar alarm call. He testified he later went to the police station and picked up property which was normally carried in the warehouse stock. The police had photographed the property, and Edgecomb identified the property in the photograph as being that which he had retrieved from the police station. He recited values of the various items which, added together, far exceeded $200.

The only objection made by the appellant to Edgecomb’s testimony was that the police should have brought the merchandise rather than a photograph of it to the trial. He cites no authority for that argument. It is well established that, in a criminal case, a witness may testify concerning tangible objects which are involved without producing the articles. Washington v. State, 254 Ark. 121, 491 S.W.2d 594 (1973); Washington v. State, 248 Ark. 318, 451 S.W.2d 449 (1970). It is not a violation of the best evidence rule which applies only to writings, photographs and recordings, Ark. Stat. Ann. § 28-1001 (Repl. 1979), Uniform Rules of Evidence 1002; Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979), nor does it violate the hearsay rule for a witness to testify about a physical object not presented in court. Ark. Stat. Ann. § 28-1001 (Repl. 1979), Uniform Rules of Evidence 801(c); Redman v. State, supra. An accused has no constitutional right to confrontation in the case of physical objects as opposed to witnesses who testify against him. Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985); Redman v. State, supra.

He also contends that property retrieved from a dumpster is likely to have been placed there by someone else and is likely not to have been in working order. The photograph in the record shows apparently undamaged boxes which Edgecomb said contained the merchandise in question. A police detective, Officer Briggs, testified the photograph depicted the merchandise recovered from the dumpster outside the warehouse on the night of the burglary. No evidence was presented to show any of the recovered items were broken.

We find the evidence on identity and value of the property was sufficient. We decline to consider the appellant’s arguments that Edgecomb was allowed to testify to hearsay as to the retail prices of the recovered items and that a proper custody chain was not established with respect to the merchandise because these objections were not raised at the trial. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Affirmed.


text:
    Michael Earl ABRAHAM v. STATE of Arkansas
    CR 81-90
    715 S.W.2d 443
    Supreme Court of Arkansas
    Opinion delivered September 15, 1986

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Michael Earl Abraham was convicted of aggravated robbery and sentenced as an habitual offender with six prior felonies to life imprisonment and a fine of $15,000. We affirmed. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). Petitioner now seeks a copy of the transcript of his trial so that he may proceed in federal court on a petition for writ of habeas corpus. Petitioner contends that he has a compelling need for a copy of the transcript in that he cannot effectively prepare the habeas corpus petition without the transcript.

The motion for transcript is denied. When a petitioner in federal court has a compelling need for a copy of the transcript to proceed under 28 U.S.C. § 2254 (1977), he must make his request to the federal court. If that court finds merit to the request, it will order expansion of the record and compel the state to supply the needed record. See Rules 5 & 7, Rules Governing § 2254 Cases In The United States District Court.

Motion denied.


text:
    ARKANSAS BAR ASSOCIATION, IN THE MATTER OF INTEREST ON LAWYERS’ TRUST ACCOUNTS
    84-90
    709 S.W.2d 400
    Supreme Court of Arkansas
    Delivered May 5, 1986
   Per Curiam.

On September 17,1984, we granted a petition by the Arkansas Bar Association requesting that we permit establishment of a program for collecting interest on monies deposited in lawyers’ trust accounts and for use of the interest earned for certain purposes having to do with furthering legal education and the sound administration of justice in Arkansas. In the Matter of the Arkansas Bar Association, Petition to Authorize a Program Governing Interest on Lawyers’ Trust Accounts, 283 Ark. 252, 675 S.W.2d 355 (1984).

On May 13,1985, this court rendered a per curiam opinion which modified the client notice provision of the court’s original opinion in this matter, providing:

Client consent is not an element of the IOLTA program. However, on the same day as a client’s money is first deposited in a participating attorney or law firm’s trust account, the attorney or law firm shall mail a notice to that client in the form set out below, providing information concerning the procedures and the uses of trust earnings. Subsequent deposits of money of a client who has once been notified may be made without repeating the notice.

Arkansas Bar Association, In the Matter of Interest on Lawyers’ Trust Accounts, 286 Ark. 64, 689 S.W.2d 352 (1985).

The petitioner now asks that we amend and modify our opinion to permit a lawyer to give notice to his clients by posting it in the lawyer’s office.

Our opinion is hereby modified by replacing the language quoted above with the following:

Client consent is not an element of the IOLTA program. However, attorneys and law firms participating in the program shall inform their clients of their participation by posting in their office a conspicuous notice in the form approved by this court and set out in our per curiam order of September 17, 1984, 283 Ark. 252, 261, 675 S.W.2d 355, 358 (1984), providing information concerning the procedures and uses of trust earnings. It is permissible for the Arkansas IOLTA Foundation to provide this required notice to participating attorneys and law firms.

Purtle, J., not participating.


text:
    IN RE: James F. DICKSON
    709 S.W.2d 404
    Supreme Court of Arkansas
    Delivered May 12, 1986
   Per Curiam.

On recommendation of the Committee on Professional Conduct, the Court accepts the surrender by James F. Dickson of his license to practice law.

Purtle, J., not participating.


text:
    IN RE: George L. TAYLOR
    Supreme Court of Arkansas
    Delivered June 2, 1986
    710 S.W.2d 201
   Per Curiam.

Upon recommendation of the Supreme Court Committee on Professional Conduct, George L. Taylor’s license to practice law is hereby reinstated.


text:
    IN RE: ARKANSAS BAR ASSOCIATION RULES AND REGULATIONS FOR MANDATORY CONTINUING LEGAL EDUCATION
    85-302
    711 S.W.2d 446
    Supreme Court of Arkansas
    Delivered May 30, 1986
   Per Curiam.

We approve the concept of mandatory continuing legal education for all members of the bar of this court. We commend the Arkansas Bar Association and its Special Committee for Mandatory Continuing Legal Education chaired by W. Russell Meeks, III, for the effort it has expended in placing before us a proposal of rules and regulations for the creation and implementation of such a program.

As the ultimate sanctions for failure to participate in any mandatory continuing legal education scheme must include revocation of the license of the nonparticipant, we feel a deep responsibility for close supervision of any such program we may eventually adopt. Although the proposal before us gives us virtual control of the membership of the commission to be in charge of the proposed program, we would like to have it operated by and through a more closely associated agency of our court.

For this purpose and many others we find ourselves in need of a court administrator, one of whose functions would be to supervise and direct mandatory continuing legal education with, perhaps, an advisory board composed much as the proposed commission. At present we have no authority or funds to employ such an administrator. We are considering, among other alternatives, raising our supreme court bar membership dues sufficiently to cover the cost. We are directing our Judicial Department to study the means by which other states’ highest courts maintain supervisory control of and support financially their continuing legal education efforts.

We also view an effective program of continuing legal education as being inextricably related to the matter of legal specialization. The inordinately slow development, thus far, of a legal specialization program for the members of our bar has been, in part, the result of lack of a focal point for supervision of the program. We likewise applaud the efforts of the Arkansas Bar Association and its Board of Legal Specialization for the voluntary work of its members in generating proposals in the specialization program. However, until we are able to come up with the means of supervising and funding both these programs, we do not want them to start. We know and appreciate our responsibility in these matters, but we must decline to be involved in any program in which we are not exercising that responsibility as directly and as well as we possibly can.

We share with the Arkansas Bar Association and other members of our bar the desire to institute programs of legal specialization and mandatory continuing legal education which are highly competent. Our plan is to have those programs as soon as we can assure ourselves we are able properly to exercise our supervisory authority and responsibility.

We wish to thank also the many individuals and groups who responded to our invitation for comments on the Arkansas Bar Association proposal. We will maintain those responses in our file, and we will find them useful when we are ready to begin establishment of the program.

Petition denied.

Purtle, J., not participating.

Hickman, J., concurs that it is premature to decide this matter.


text:
    IN RE: BOARD OF CERTIFIED COURT REPORTER EXAMINERS
    711 S.W.2d 775
    Supreme Court of Arkansas
    Delivered June 16, 1986
   Per Curiam.

The Board of Certified Court Reporter Examiners has recommended that Regulation 13 be amended so that a trial judge may grant an emergency non-renewable certificate for a period of one hundred twenty days. Therefore, the first paragraph of Regulation 13 is amended to read:

13. In the event of an emergency where no Certified Court Reporter is immediately available, a judge of a circuit or chancery court may, in his discretion, grant a one hundred twenty day, non-renewable emergency certificate in order to continue the conduct of the court’s business; provided a copy of the one hundred twenty day emergency certificate shall be forthwith filed with the Clerk of the Arkansas Supreme Court and Secretary of this Board.


text:
    IN RE: THE BOARD OF CERTIFIED COURT REPORTER EXAMINERS AND RULE 12, RULES OF THE SUPREME COURT AND COURT OF APPEALS
    82-283
    711 S.W.2d 831
    Supreme Court of Arkansas
    Delivered July 7, 1986
   Per Curiam.

The Board of Certified Court Reporters has petitioned us to adopt a uniform set of standards for all transcripts. The Board’s recommendations have been approved by the Arkansas Court Reporters Association.

Interested parties have generously given their advice, opinions, and recommendations regarding what these standards should be. The great majority responding to the petition favors some sort of uniform guidelines. A majority is against abandoning legal size paper. Most of the specific objections made regard the form to be used in transcribing the questions, answers, colloquy, and other material. Many prefer a form that sets the testimony apart completely from the symbols “Q” and “A” for easy reference.

We have adopted the proposal of the Board of Certified Court Reporters with some exceptions. We are not yet ready to abandon the use of legal size paper, and we are not yet convinced we should require the use of lined and numbered pages. Most all of those responding agree that the left margin should begin 1% inch from the edge of the page. However, since we accept the fact that the number of lines on a page may be reduced to 25, we see no reason to not require that the margin begin at one inch. No longer will we make exceptions to our rules requiring that all records be bound at the top; reporters and clerks are reminded that records not so bound will be rejected by the clerk. Such transcripts are far easier to read than those bound at the side and will give the transcript purchaser more for the money.

It is difficult to find a consensus on the form to be used for questions and answers, colloquy and other exhibits. Nearly all responding proposed a slightly different form. We have adopted a standard which we think satisfies the need for substance on a page and a form that provides ready reference to the reader.

The example attached to the Board’s petition is all in capital letters which is generally referred to as the upper case. We were unaware this was an acceptable practice for transcripts. We will require all transcripts to be in the lower case.

We amend Rule 12 of the Rules of the Supreme Court to read:

(i) MUST BE RIBBON PRINT. — The record must be made out in plain typewriting of first impression, not copies, on 8 Vi" x 14" paper and fastened at the top of the page. Records prepared with the aid of a computer may be on 8 Vi" x 11" paper. All transcripts shall be prepared by certified court reporters according to the following rules:

(1) No fewer than 25 typed lines on standard 8 Vi" by 14" paper.
(2) No fewer than 9 or 10 characters to the typed inch.
(3) Left-hand margins to be set at no more than 1".
(4) Right-hand margins to be set at no more than
(5) Each question and answer to begin on a separate line.
(6) Each question and answer to begin at the left-hand margin with no more than 5 spaces from the “Q” and “A” to the text.
(7) Carry-over “Q” and “A” lines to begin at the left-hand margin.
(8) Colloquy material, quoted material, parentheticals and exhibit markings to begin no more than 15 spaces from the left-hand margin with carry-over lines to begin no more than 10 spaces from the left-hand margin.
(9) All transcripts must be prepared in the lower case.
(10) All depositions prepared for use as evidence in any court shall comply with these rules with these exceptions:
(A) 8'/2" x 11” paper may be used.
(B) The left-hand margin to be set at no more than Vk".
(C) Binding may be on the left.

This rule is effective January 1, 1987. All depositions prepared and all transcripts certified after December 31, 1986, shall conform to these guidelines.

Justice Hickman, being a member of the Certified Court Reporters Board, did not participate in the final approval of the standards.


text:
    AMENDMENT TO RULE 11(g) OF THE RULES OF THE SUPREME COURT AND COURT OF APPEALS
    712 S.W.2d 291
    Supreme Court of Arkansas
    Delivered June 30, 1986
   Per Curiam.

Paragraph (g) of Rule 11 of the Rules of the Supreme Court and Court of Appeals is amended, effective today, so that the paragraph will read:

(g) Printing of Abstracts and Briefs for Indigent Appellants. — When an indigent appellant is represented by appointed counsel or a public defender, his attorney may have the abstract and briefs reproduced by submitting the double-spaced typewritten manuscript to the Attorney General not later than the due date of the brief. In such instances the time for the filing of the Attorney General's brief is extended by five days.


text:
    IN THE MATTER OF THE RULES OF THE SUPREME COURT AND THE COURT OF APPEALS
    712 S.W.2d 295
    Supreme Court of Arkansas
    Delivered July 7, 1986
   Per Curiam.

In order to bring Rule 8(c) and Rule 11(f) of the Rules of the Supreme Court and the Court of Appeals into agreement, Rule 11 (f) is hereby modified by striking out the following sentence:

The appellant’s brief in chief, before its printing, shall not exceed 40 double-spaced typewritten pages, with a similar 10-page limit upon the reply brief, except that if either limitation is shown to be too stringent in a particular case it may be waived by the Court on Motion.

And substituting therefor the following:

The argument portion of the appellant’s brief shall not exceed 25 double-spaced typewritten pages or 30 printed pages, with a similar 15 typewritten and 20 printed page limit upon the reply brief, except that if either limitation is shown to be too stringent in a particular case it may be waived by the Court on Motion.

IT IS SO ORDERED.