author: Jack Holt, Jr., Chief Justice. Darrell Hickman, Justice,

text:
    NATIONAL LUMBER COMPANY v. ADVANCE DEVELOPMENT CORP., VERMONT PLACE PROPERTIES, et al.
    86-202
    732 S.W.2d 840
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987
    [Rehearing denied September 14, 1987.]

      Appeal from Sebastian Chancery Court; Don Langston, Chancellor; reversed in part and affirmed in part.

      Thompson, Paddock & Llewellyn, P.A., by: Richard L. Spearman, for appellant.

      Harper, Young, Smith & Maurras, by: Robert Y Cohen II, for appellees Vermont Place Properties, Val C. Somers and Carl Brent Roberson, and cross-appellant Vermont Place Properties.

      Gean, Gean & Gean, by: Lawrence W. Fitting, for appellee First America Federal Savings Bank.

      Jones, Gilbreath, Jackson & Moll, by: Charles R. Garner, Jr., for appellee Catherine Burford.

      Phillip J. Taylor, for cross-appellants James Dempsey and Jan Taylor, d/b/a J & J Plumbing Co., A Partnership; Eugene Renfro; and Dick Rogers and Ken Prock, d/b/a Prock and Rogers.

      Morril Harriman, for cross-appellee Citizens Bank & Trust Co.
   Jack Holt, Jr., Chief Justice.

This appeal concerns a real estate development in Fort Smith known as Vermont Place Properties, the liability of general partners in a limited partnership, and priorities among mortgagees, mechanics and material-men involved in the project.

Pat McGowan, Val Somers, and Brent Roberson were general partners in Vermont Place, a limited partnership, formed on January 20,1984, for the purpose of developing a tract of land in Fort Smith by constructing duplexes on it to be either sold or rented. The partnership mortgaged the property for construction purposes. McGowan’s separate company, Advance Development Corp., (Advance) was in charge of developing the project, including contracting with the materialmen and mechanics, hereinafter referred to as “suppliers.” On September 3, 1984, Somers and Roberson discovered that McGowan had not been paying the suppliers nor making interest payments on the mortgages. Five separate lawsuits, filed by the banks holding the mortgages and by the suppliers, were consolidated for trial. On February 14, 1986, the trial court found that McGowan, Advance, and the partnership had so merged their affairs that they were one and the same person. Therefore, appellant, National Lumber Company (National), and various other suppliers, were found to have valid liens because notice was not required pursuant to Ark. Stat. Ann. § 51-608.5. These liens, however, were held inferior to the bank’s construction mortgages. Furthermore, the court held McGowan and his wife were individually liable for the debts but that Somers and Roberson were only liable to the extent of their original capital contributions. It is from that order that National brings this appeal. In addition, a cross-appeal was filed by Vermont Place and by some of the suppliers. We reverse the trial court’s holding limiting the liability of Somers and Roberson and dissolve two of the supplier’s liens. We affirm the remaining issues raised in both the appeal and the cross-appeal. The appeal will be discussed separately from the cross-appeal.

DIRECT APPEAL

1. LIABILITY OF SOMERS & ROBERSON.

The chancellor held in pertinent part as follows:

1. That Pat McGowan, Advance Development Corporation and Vermont Place Properties Partnership so merged their affairs to the extent that they were one and the same person or entity when dealing with the lien holders in this action. . .
10. That the lien holders are entitled to personal judgments against Advance Realty Corporation and Pat McGowan and his wife for any deficiency owing after the property is sold and the proceeds distributed. . . .
11. That it would be inequitable and unfair to hold Brent Roberson, Val Somers and their wives personally liable for all the deficiency, if any, after the property is sold and the proceeds divided. However, they will be personally liable apart from the partnership jointly and severally for the amount of their purported capital contributions to the partnership in the amount of $33,333.34. The lenders and lien holders had a right to rely on the partnership agreement to the extent of this purported contribution by these two partners. Under the circumstances of this case and the facts developed at trial, they should be personally liable for no more than that amount but should not escape liability altogether because they should have kept more control over the affairs of the partnership.

National argues that the trial court’s holding limiting the personal liability of Somers and Roberson is contrary to Arkansas law which makes partners individually liable for partnership debts. We agree.

The following provisions under the Uniform Partnership Act apply to this situation:

65-113. Partnership bound by partner’s wrongful act. Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or ommitting [omitting] to act.
65-115. Nature of partner’s liability. All partners are liable,
(a) Jointly and severally for everything chargeable to the partnership under sections 13 and 14 [§§ 65-113, 65-114].
(b) Jointly for all other debts and obligations of the partnership; but any partner may enter into a separate obligation to perform a partnership contract.

Applying the provisions of the Uniform Partnership Act to the case at bar, when the partners of Vermont Place charged McGowan and his company, Advance, with the responsibility of developing Vermont Place, they effectively made McGowan and Advance agents of the partnership. A partnership is bound by the acts of a partner when he acts within the scope or apparent scope of his authority. Smith v. Dixon, 238 Ark. 1018, 386 S.W.2d 244 (1965). The power of one partner to bind another by his acts is limited to transactions within the scope of the partnership business. May v. Ewan, 169 Ark. 512, 275 S.W. 754 (1925). Here, the partnership agreement provided in part that the purpose of the partnership was to acquire real estate and construct apartment buildings and duplexes for lease or sale. In furtherance of this purpose, the partners agreed that McGowan and Advance would see to the construction of the duplexes. When McGowan acquired labor and materials and then failed to pay for them, he was acting within his apparent authority as a partner and his acts bound the other two partners. That the partners intended to be so bound is exemplified by their actions once they discovered that McGowan had not paid the suppliers. They removed him from the partnership and took over the construction of the duplexes. In doing so, they not only profited from the labor and materials already furnished, but assumed responsibility for the debts attached to the property. McGowan’s failure to pay the suppliers was an omission within the meaning of § 65-113, supra, rendering the partnership liable and the individual partners jointly and severally liable pursuant to § 65-115, supra. The chancellor, in his ruling, acknowledged that the affairs of Advance and Vermont Place were so merged that they had become one entity. Applying this finding consistently necessitates a holding that all three partners were jointly and severally liable, rather than finding only McGowan to be fully liable. Accordingly, the holding of the chancery court that Somers and Roberson were liable only to the extent of their original capital contributions is reversed.

2. CONSTRUCTION MORTGAGE LIENS.

On July 9, 1984, the partners mortgaged tracts 7 and 8 of Vermont Properties to Citizens Bank and Trust Co., of Van Buren. The trial court held that Citizens Bank had a valid construction mortgage in the total amount of $290,868 plus contract interest and that the construction mortgage liens were prior to the labor and material liens of the suppliers because the mortgages were recorded prior to the commencement of the construction of the improvements on each project site; the mortgages contained a purpose clause expressing that the funds were to be used for construction purposes only; and the lenders were unequivocally obligated to make future advances to the borrower for construction purposes.

Arkansas Stat. Ann. § 51-605 (Repl. 1971) provides:

The lien for the things aforesaid, or work shall attach to the buildings, erections or other improvements, for which they were furnished or work was done, in preference to any prior lien or encumbrance or mortgage existing upon said land before said buildings, erections, improvements or machinery were erected or put thereon, and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter; Provided, however, That in all cases where said prior lien or encumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act (emphasis added).

This court has explained that in order to establish the priority of a construction mortgage over a materialman’s lien, “(a) the construction mortgage must be executed before the commencement of the building . . .; (b) the mortgagee must be bound to advance the money for the construction . . .; and (c) that fact must be stated in the mortgage____” Planters Lumber Co. v. Jack Collier East Co., 234 Ark. 1091, 356 S.W.2d 631 (1962).

National and the other suppliers claim that the mortgages given by Citizens Bank did not meet the requirements of a construction mortgage, in that the obligation of the bank to advance the money is not stated in the mortgage.

The mortgages, in pertinent part, provide:

It is expressly understood and agreed that the aforesaid note is given for borrowed money obtained for the purpose of constructing erections, improvements or buildings upon the real estate above described, and that the lien of this mortgage shall extend to such erections, improvements, or buildings as well as to the real estate above described.
The sale is on the condition, that whereas, Grantor is justly indebted unto said Bank in the sum of $70,014 [$77,054 on the other mortgage] evidenced by one promissory note dated 6/29/84 in the aggregate sum of $70,014 [$77,054] bearing interest from date until due at the rate of 14% per annum and thereafter until paid payable as follows: . . .

The parties rely on Lyman Lamb Co. v. Union Bank of Benton, 237 Ark. 629, 374 S.W.2d 820 (1964), where the validity of a construction mortgage was also in issue. There, Welch and his wife executed a note to Union Bank for $2,500 and at the same time executed a mortgage on their lot to secure the note. The mortgage read in part:

This loan shall be used for the purpose of construction of a dwelling house on the above described property and shall cover and secure additional advances to be made by mortgagee to mortgagors in the total amount not to exceed $14,500.

The $2,500 was paid to Welch on the day the note was executed. Construction began and Welch then executed another note for $2,500 to Union Bank and received that money. Welch executed four other notes to the bank for a total of $14,500. This court found that the mortgage was not a prior lien as to subsequent advances because the bank was not obligated to pay the additional amounts. We held:

We find no language in the mortgage here which unequivocally binds the bank to make the additional loans to Welch. Rather, the contrary is indicated by certain language in the mortgage. This language appears:
“The sale [mortgage] is on condition that whereas we are justly indebted unto said mortgagee in the sum of. . . $2,500 evidenced by one promissory note of even date.”

The language of the Citizens Bank mortgage makes it distinguishable from the situation in Lyman. Inasmuch as these mortgages stated that the debt consists of the “aggregate sum” as evidenced by one promissory note, rather than the amount of the first installment only, as was the case in Lyman, Citizens Bank was “unequivocally obligated” to advance the rest of the money making up the aggregate sum for construction purposes. The chancellor did not err in finding the Citizens Bank construction mortgages valid.

In a related argument, the suppliers and National argue that their liens are not inferior to the construction mortgages of Citizens Bank and First America Bank because construction had begun at the site before the mortgages were filed in violation of condition (a) as stated in Planter’s Lumber Co., supra.

The chancellor specifically found that the mortgages were filed prior to the commencement of construction of the improvements on each project site and that the lien holders did not meet their burden of proving that there was any construction of improvements prior to the recording of the mortgages. The chancellor also found that the work that was claimed to have been done prior to recording the mortgages constituted only site preparation and did not constitute construction so as to defeat the priority of the construction mortgages.

This finding of fact by the chancellor is upheld unless it is shown to be clearly erroneous. Ark. R. Civ. P. 52(a).

In Mark’s Sheet Metal v. Republic Mtg. Co., 242 Ark. 475, 414 S.W.2d 106 (1967), this court explained that the commencement of buildings and improvements “means some visible or manifest action on the premises to be improved, making it apparent that the building is going up or other improvement is to be made. . .This must be done with the intention and purpose then formed to continue the building to completion.”

Conflicting evidence was offered as to the type of work begun prior to the filing of the mortgages. National claims that a sewer line was dug and footings were poured before the mortgages were filed. Contrary evidence was offered that a licensed surveyor staked out the lots and put up flags to insure that nothing was started on the lots prior to the filing. In addition, bank officials testified they inspected the lots prior to filing the mortgages for the purpose of determining whether construction had begun. Pictures from their inspections were included in the record and reveal no construction. We have long held that the determination of the credibility of witnesses is best left to the trial court before whom they are testifying. We cannot say the chancellor’s finding that construction had not yet begun was clearly erroneous.

3. CATHERINE BURFORD’S PROPERTY.

The partnership conveyed a portion of Vermont Place containing a residence to Catherine L. Burford on April 30, and August 8,1984. In an amended decree, the chancellor held that the property owned by Burford is deleted from the 3.48 acres known as Vermont Place and is not subject to the liens.

National argues that since Burford’s property was part of Vermont Place as platted and filed on February 6,1984, the liens attached to her property when construction commenced.

Burford contends that she was not even a party to the case which is presently before this court, but rather was a named defendant in a matter which was consolidated for trial with this case. The case in which Burford was a defendant was brought by J & J Plumbing to extinguish an access or driveway easement in favor of Burford across Tract 8. No other party named Burford as a defendant nor sought any relief against her. Burford correctly points out that there is no proof in the abstract that she received any notice that National was claiming a lien on her property. National also has not demonstrated in its abstract that it has met its burden of proving it supplied any materials for use on the Burford property, that it contracted with her, or that the materials it did supply inured to the benefit of Burford. Ragsdell v. Gazaway Lumber Co., 11 Ark. App. 188, 668 S.W.2d 60 (1984). Our Rule 9 requires parties to abstract material parts of the record that are necessary to an understanding of all questions presented to this court for decision. Since National has failed to substantiate its claim against Burford in its abstract, we affirm the chancellor’s decision excluding the Burford property from the liens. See Sup. Ct. R. 9(e).

4. LABORER’S AND MATERIALMEN’S LIENS.

The chancellor found that valid liens were held by several suppliers of labor and materials, including Eugene Renfro, Duboise Electric, and D & L Tile Co. In so holding, the chancellor stated: “All the liens were timely filed or it would be inequitable or unfair to hold that any lien was not timely filed under the facts and circumstances of this case.”

National contends that these three liens were not valid because they were not perfected in a timely manner.

Arkansas Stat. Ann. § 51-613 provides:

It shall be the duty of every person who wishes to avail himself of this act [§§ 51-601, 51-604 — 51-626] to file with the clerk of the circuit court of the county in which the building, erection or other improvement to be charged with the lien is situated, and within one hundred and twenty (120) days after the things aforesaid shall have been furnished or the work of labor done or performed, a just and true account of the demand due or owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit.

Filing a lawsuit against the necessary parties within the 120 day period will also perfect the lien. Burks v. Sims, 230 Ark. 170, 321 S.W.2d 767 (1959).

National claims that the date of Duboise Electric’s last invoice is September 1,1984, and the company filed a lawsuit on December 10,1984. The complaint misdescribed the property on which the lien was sought and was dismissed. The lawsuit was refiled on June 27, 1985. Since a proper description is necessary for perfecting a lien, Speights v. Ark. Savings & Loan Ass’n, 239 Ark. 587, 393 S.W.2d 228 (1965), National contends the lien is invalid.

National states that D & L Tile’s claim is defective in that that company last performed work on July 17,1984, and the lien notice was filed on November 16,1984, some 123 days later. We agree with both arguments. National made a similar contention against Renfro, but withdrew the challenge in its reply brief and now acknowledges that Renfro’s lien was properly filed 118 days after last performing work at Vermont Place.

This court has held that our lien statutes are strictly construed since they provide an extraordinary remedy. Dews v. Halliburton Industries, Inc., 288 Ark. 532, 708 S.W.2d 67 (1986). Since Duboise Electric and D & L Tile did not perfect their liens within the 120 days provided in the statute, their liens must be dissolved.

CROSS-APPEAL

1. STATUTORY NOTICE FOR LIEN CLAIMANTS.

Cross-appellants in this matter are Jack Dempsey and Jan Taylor, d/b/a J & J Plumbing Co., Renfro, DickRogers and Ken Prock, d/b/a Prock & Rogers, and Vermont Place Properties.

Arkansas Stat. Ann. § 51-608.1 (Supp. 1985) provides that no lien may be acquired unless the owner or his authorized agent has received the statutory notice set out in Ark. Stat. Ann. § 51-608.3 prior to the furnishing of such material. Arkansas Stat. Ann. § 51-608.5 provides that this notice requirement does not apply if the transaction is a direct sale to the property owner. A direct sale is defined in the statute as one where “the owner or his authorized agent personally orders such materials from the lien claimant.” The trial court held that McGowan, Advance, and Vermont Place had so merged their affairs as to be one and the same person, so that the statutory lien notice provided for in § 51-608.1 was not required. The court found that by selling the materials to and performing the labor for McGowan and Advance, the lien holders were dealing directly with the owner of the property within the meaning of § 51-608.5. On appeal we decide whether that determination that the statutory exception to the notice requirement applied was clearly erroneous.

We have explained that this court considers whether the material was “charged to, shipped to, and received by” the property owner and whether an invoice and monthly statement were sent to the owner. Duncan v. Davis & Earnest, Inc., 285 Ark. 143, 685 S.W.2d 509 (1985). Here, there was testimony from which the chancellor could have found that the materials were ordered by McGowan and charged to his company Advance. We cannot say the chancellor’s holding in this instance was clearly erroneous and, accordingly, we affirm as to this point.

2. ESTOPPEL.

Vermont Properties next argues that the doctrine of estoppel applies to prevent National and another lien holder, Fondren Construction Co., from asserting their liens because both knew, before construction began, that Advance could not pay its bills as they became due, and both entered into an agreement with Advance to apply currently collected funds to past due debts. In support of this argument, Vermont points out that both companies had worked with Advance for several years and knew that their account was always behind. Vermont Place claims that payments for work done for Vermont Place were charged to Advance’s oldest balance with each company.

We have held that a materialman was estopped to assert his lien where there was evidence of a secret agreement with the contractor to apply the payments to past due accounts, without regard to the account to which the money should have been applied. Howard Building Centre v. Thornton, 282 Ark. 1, 665 S.W.2d 870 (1984). Likewise, we condemn the practice discussed here of applying payments for Vermont Place to a past due account from another, unrelated project. Here, however, we agree with the chancellor that Vermont Place has failed to meet its burden of proof to show any improper or unlawful act on the part of the lien holders. There was no evidence of a “secret agreement” such as the one discussed in Howard Building Centre, and Vermont Place’s arguments in this regard do not rise to the level of proof required to estop the suppliers from asserting their liens. The chancellor’s finding on this point is affirmed.

3. CREDIT FOR CAPITAL CONTRIBUTION.

V ermont Place contends that the trial court erred when it did not give Somers and Roberson credit for the $30,000 they put into Vermont Place to complete construction of the duplexes, and for holding them jointly and severally liable for the total capital contributions.

The additional capital put into Vermont Place was for additional construction and did not satisfy the existing claims of the suppliers. Inasmuch as we are holding Somers and Roberson jointly and severally liable for all of the debts incurred, we find no merit in this argument.

4. USURY.

Vermont states that National is seeking $41,717.01 for unpaid interest, and that during November and December, 1984, interest on Advance’s account with National was computed at the rate of 14 per cent per annum. At that time, according to the testimony of a banking official, the maximum lawful rate of interest was 13 Vi per cent for November and 13 per cent for December. Vermont Place maintains that National’s claim for unpaid interest is void as usurious. There was no mention of interest in the credit application Advance filled out, nor was it mentioned in National’s complaint. Rather, National kept ledgers showing the amount owing on the account on a monthly basis. The testimony at the trial on this issue, reveals that the matter has already been resolved. During the testimony of Charles Towry, a representative for National, he explained that interest was figured during November and December, 1984, at 14 per cent. The following then occurred:

Vermont’s Attorney: Your Honor, at this time we would raise the defense of usury as to certain of the interest charges, like was revealed on the stand,. . . [W]e did not plead the defense of usury. The simple reason for that, in the complaint filed by National Lumber Company, there was no request for interest, whatsoever, within the complaint ... So, we certainly feel that if they are going to request it at this late date, we certainly should be able to raise the defense of usury once, it’s presented to the court.
National’s Attorney: Your Honor, our position is that we object to it, we plead surprise, it has not been pled as a defense in this case. Mr. Towry made clear in the questioning, in which he originally testified to interest, that he was simply asking for the maximum amount of interest to which he was entitled to by law. . . .
We would simply, Your Honor, amend the proof to reflect that we are asking for the maximum amount permitted by law, whatever that amount is.
Court: I will let the banks and Mr. Cohen plead usury and I will let you amend your proof to just show the maximum, Mr. Thompson.

The trial court, in effect, permitted the parties to amend the pleadings during the trial to conform to the evidence as provided in Ark. R. Civ. P. 15(b). In his decree, the chancellor awarded National the principal amount owed to it plus costs and 6 per cent interest from the date of the lien until the date of the decree, and 10 per cent from the date of the decree until paid. The chancellor did not mention the question of usury. The chancellor did not abuse his discretion in permitting the amendment, and the amendment has removed the issue of usury from consideration on appeal.

5. MORTGAGES AS NOTICE.

Arkansas Stat. Ann. § 19-2829(c) (Repl. 1980) provides:

The regulations may govern lot or parcel splits (the dividing of an existing lot or parcel into two (2) or more lots or parcels). No deed or other instrument of transfer shall be accepted by the county recorder for record unless said deed or other instrument of transfer is to a lot or parcel platted and on file or accompanied with a plat approved by the planning commission.

Pursuant to this statute, the City of Fort Smith enacted an ordinance requiring any subdivision of land to be platted and approved by the planning commission. The plat of Vermont Place, filed February 6, 1984, is platted as one lot. The partners then subdivided the property and obtained separate mortgages on each tract. The materialmen argue there was no authority to divide the one lot into two or more lots or parcels and consequently the mortgages were not acceptable for recording and did not serve as notice to the materialmen. Therefore, the materialmen claim, their liens have priority over all mortgages.

The chancellor rejected this argument, holding:

That the fact that the partnership did not follow the provisions of Ark. Stat. Ann. § 19-2829(c) and the City of Fort Smith ordinances in dividing this property into eight tracts is of no consequence and does not defeat the priority of the construction mortgages. It would be unfair, unreasonable and inequitable to do so. The property was merely referred to as tracts for mortgage purposes and treated as separate building contracts. For the lien holders to prevail as prior, they would have to show that there was materials and labor furnished on each building contract site [tract] before the recording of the construction mortgage on that particular site or tract, which they have failed to do.

We agree with the chancellor. Not only did the parties obtain separate mortgages on each tract using a metes and bounds description, but separate building permits were issued by the city on the different tracts, many of the suppliers bid on each tract individually as a separate contract, and the lien claimants asserted their liens by filing suit specifying claims against individual tracts. In American Investment Co. v. Gleason, 181 Ark. 739, 28 S.W.2d 70 (1930), we explained that a mortgage cannot be void for uncertainty if it is possible to ascertain from the description what property is intended to be conveyed. Since the mortgages describe the land sufficiently, they served as adequate notice to the materialmen and they retain their priority over the liens.

Furthermore, since the land was properly divided, the lien holder’s argument that because the land was platted as one tract, any work performed on any part of the property served as a lien on the whole 3.48 acres, must fail. The liens and the mortgages apply only to the tracts they describe or upon which the work was performed or the supplies furnished.

6. NEGLIGENCE OR CONSTRUCTIVE FRAUD.

This final argument by the suppliers is that, by permitting McGowan to misuse the funds, the other partners were negligent and a fraud was committed on the suppliers to the extent that Somers and Roberson should be jointly and severally liable for everything that is chargeable to the partnership.

This theory was apparently not advanced in the pleadings nor ruled on by the trial court, and therefore cannot be raised for the first time on appeal. In any event, we have already found Somers and Roberson jointly and severally liable for everything chargeable to the partnership under a different theory.

7. MOTION FOR COSTS.

Vermont Place has filed a motion for costs of preparing their supplemental abstract, pursuant to Sup. Ct. R. 9(e)(1). In their motion they seek costs of $332.24 and attorney’s fees of $1,565.00. They state that the following items were omitted from National’s abstract: testimony concerning the receipt of the statutory lien notice; the complaint and other pleadings of the other lien holders; the order of consolidation; the notices of appeal and cross-appeal; the exhibits and testimony relating to Advance as a separate corporate entity; and the itemized statements of account of the other lien holders.

In its response, National maintains that its abstract was sufficient to enable the court to understand the issues it raised in its appeal. Since National did not challenge the chancellor’s holding that Vermont Place and Advance and the three partners had so merged their affairs as to be one entity, it argues it did not need to abstract the testimony about receipt of the statutory notice or the exhibits and testimony relating to Advance as a separate corporate entity. National also contends it abstracted a sufficient amount of the record to establish its claim that certain liens were invalid as not timely filed, and that the other matters claimed to have been omitted were surplusage.

We agree. We do not find National’s abstract to have been so deficient as to justify an award of costs to Vermont Place. See Arkansas State Hwy. Comm’n v. Taylor, 238 Ark. 278, 381 S.W.2d 438 (1964). The majority of the items omitted from National’s abstract and supplied by Vermont Place’s were necessary to establish proof for Vermont Place’s cross-appeal. Substantiating Vermont Place’s cross-appeal was the responsibility of Vermont Place, not of National. In its motion for an extension of time to prepare its brief, Vermont Place explained that it had filed a cross-appeal “which requires the preparation of a supplemental abstract of pleadings and testimony.” Costs are only awarded to correct a deficiency in the appellant’s abstract, not to supply proof for the appellee’s own claims. Accordingly, the request for costs is denied.

Reversed in part; affirmed in part.

Hickman, Purtle, and Hays, JJ., concur in part; dissent in part.

Darrell Hickman, Justice,

concurring in part; dissenting in part. I agree with the decision except for the claim of National Lumber Company. National Lumber Company engaged in a practice not uncommon in the building business: it financed the contractor in this case on several jobs and applied any payments, not designated, to the oldest account. In short, it was financing the contractor and protecting itself to the detriment of other materialmen. A materialman that accepts payments from a contractor ought to be duty bound to ascertain the source of the payment before applying it to an account. I would deny its lien on the basis of estoppel and unclean hands. While there was no evidence of a “secret agreement,” the practice amounts to a fraud. A material-man can retire old, stale debts and keep its latest account ripe for a materialman’s lien.

Purtle and Dudley, JJ., join.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Toni O’BRIEN v. CITY OF GREERS FERRY, ARKANSAS, and Arnold McARTY, Herb LAMB, Paul TERPSTRA, Willie Joe NIPP, Aldermen of the City of Greers Ferry; et al.
    87-84
    732 S.W.2d 146
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987

      John Wesley Hall, Jr., for appellant.

      Darryl Graves, for appellee.
   Robert H. Dudley, Justice.

Appellant, Toni O’Brien, a taxpayer and alderman of the City of Greers Ferry, filed suit for a declaratory judgment and an injunction against appellees, who are four other aldermen, the city recorder, and the Cleburne County tax collector. She alleged that the four aldermen and the recorder were illegally holding office and, therefore, their actions were void, and, in addition, the city council had failed to certify the tax rate as required by statute and, therefore, the taxes imposed were invalid. On cross-motions for summary judgment the trial court held that the aldermen and the recorder were not illegally selected and the taxes were validly certified. We affirm the judgment holding that the city officials were validly selected, but reverse and remand for trial that part of the judgment holding the taxes were validly certified.

At an earlier date, four councilmen and the recorder resigned from office. Under the applicable statute, it fell to the remaining aldermen to elect successor officers. In Greers Ferry, the practice was for the mayor to nominate a successor, and the council would then vote on that nomination without a second being made. Both parties agree that the first issue is whether a motion and a second are required for a valid city council vote. While such a procedure is certainly desirable, it is not required by law. Appellant cites us to several statutes and cases in support of her argument, but we do not find any of them persuasive. Ark. Stat. Ann. §§ 19-905 and 19-1111 (Repl. 1980) set out the requirements for filling vacancies on a city council.

19-905. Appointments of officers by council. — All appointments of officers by any council shall be made viva voce, and the concurrence of a like majority shall be required; the names of those voting, and for whom they voted, on the votes resulting in the appointment, shall be recorded, and all such voting shall be public.
19-1111. Vacancy in the office of alderman filled by council. — Whenever a vacancy shall occur, by any reason, in the office of alderman in any city of the second class, the city council shall at the first regular meeting after the occurrence of such vacancy proceed to elect by a majority vote of the city council, an alderman to serve for the unexpired term.

Ark. Stat. Ann. §19-1112 (Repl. 1980) sets out the requirements for filling a vacancy in the city recorder’s office:

19-1112. Vacancy in office of recorder or marshal filled by council. — Whenever a vacancy shall occur in the office of recorder or marshal in any city of the second class from any cause, the city council shall, at the first regular meeting after the occurrence of such vacancy, proceed to elect by a majority vote of all the aldermen a recorder or marshal to serve for the unexpired term.

None of the aforementioned statutes mentions, much less requires, “motions” and “seconds” in making these appointments. Further, in Steward v. Rust, 221 Ark. 286, 252 S.W.2d 816 (1952), a case cited by appellant, we explained:

Appellee says that, under the authority of Hill v. City of Rector, 161 Ark. 574, 256 S.W. 848, the election was void because no resolution was first presented. This case, however, does not define a “resolution.” In our opinion a resolution, particularly when used to express a ministerial act by a deliberative body, need not partake of any definite form and need not be a written instrument. This Court, in Allen v. Morton, 94 Ark. 405, 127 S.W. 450, which involved the election of a treasurer of the University of Arkansas pursuant to a state statute, used this language:
Correctly speaking, his selection is an appointment. It is immaterial how he may be appointed if he is selected by a majority of the board at a meeting authorized by law to do so. The mode of selection does not make it more or less than an appointment by the board.

(Emphasis added.)

It is undisputed that each of the four aldermen and the recorder received a majority vote when each one of them was selected. The fact that there was no formal motion and second does not render their selection illegal.

Appellant next argues that the selection of one of the aldermen was void because the original minutes of the city merely showed that he was selected and it was not until eleven months later that the minutes were amended to show the roll call vote on his selection. Appellant does not deny that a roll call vote was taken and does not contend that the amended minutes are incorrect. She simply argues that the delay was untimely, and therefore, renders the selection invalid. The argument is without merit because there is no question about the accuracy of the amendment, and the delay in entering it caused no harm. The case cited by appellant, Beverly Land Co. v. South Sioux City, 219 N.W. 385 (Neb. 1928), is clearly distinguishable, for in that case there was no record of an ordinance ever being in existence which levied a tax assessment; there was a “glaring fact that on two previous trials in this court on the same assessment no suggestion was made that the original ordinance had been lost”; and a new set of city officials attempted to create the “lost” ordinance nunc pro tunc under the guise of a correction.

Appellant next argues that the trial court erred in refusing to grant a summary judgment in her favor because the City of Greers Ferry did not properly certify its tax rate to the county clerk. The trial court did not err in refusing appellant’s motion for summary judgment, but because there was a genuine issue concerning a material fact, it was error to grant summary judgment for appellees on this point.

Summary judgment should be granted only when a review of the pleadings, depositions, and other filings reveals that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Leigh Winham, Inc. v. Reynolds Insurance Agency, 279 Ark. 317, 651 S.W.2d 74 (1983).

The record before the trial judge on the cross-motions for summary judgment contained an affidavit from the appellant stating that the city council never discussed certification of the tax rate in 198 5, but it also contained an affidavit and exhibit filed by appellees saying the rate was certified in 1985. These two affidavits show that there was a genuine issue concerning the material fact of whether the tax rate was certified and therefore, summary judgment was not proper. Accordingly, we reverse and remand on this issue in order for the factual dispute to be resolved and a ruling made.

The appellant filed a motion asking us to strike the appellees’ brief because of disqualification of counsel. The gist of the motion is that appellees’ attorney of record, and the former circuit judge who heard this case and is now practicing law, violated the Rules of Professional Conduct. We decline to strike the brief. If appellant desires to pursue the matter, she should present it for original action to the Supreme Court Committee on Professional Conduct. We would then hear the appeal, if any, from the Committee’s ruling.

Affirmed in part; reversed in part and remanded.


author: Steele Hays, Justice.

text:
    Sherrell Eugene AVANTS v. STATE of Arkansas
    CR 87-37
    732 S.W.2d 149
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987

      Cross, Kearney & McKissic, by: Othello C. Cross, for appellant.

      Steve Clark, Att’y., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

While on parole from a felony conviction, appellant pled guilty in 1981 to aggravated robbery and criminal attempt rape. He was sentenced to twenty years on each offense. The sentences were ordered to run concurrently with each other and with the balance of the previous sentence.

In 1986 appellant filed a petition to correct the judgment, claiming the running of the new sentences concurrently with the old sentence was a violation of Ark. Stat. Ann. § 43-2829(D) (Repl. 1977). That statute provides that when a person is convicted of a felony committed while on parole from an earlier felony conviction, the sentence on the second conviction shall be served consecutively to the previous felony. Just why the appellant would be motivated to challenge a sentence that erred in his favor, is not clear. Nevertheless, he did so and the trial court recognized the error and corrected the judgment by ordering the later sentences to run consecutively to the previous sentence. However, the trial court did not stop there, it also ordered the two subsequent sentences to run consecutively to each other.

Appellant has appealed. He points out that the trial court cannot modify a valid sentence once execution has begun. Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985); Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984). The state concedes the error and we concur. There was nothing wrong with the sentences for aggravated robbery and attempted rape running concurrently — the trial court had the discretion at the initial sentencing of imposing those sentences concurrently or consecutively. He made them concurrent, and having done so he has no power to change them to consecutive sentences after execution has begun. Campbell v. State, 288 Ark. 213, 703 S.W.2d 855 (1986).

Appellant also contends the trial court erred by refusing to allow him to amend his pleading to a Rule 37 petition. The trial court can treat a motion to correct a judgment as a petition for post-conviction relief under Rule 37, regardless of the style of the pleading, if it alleges grounds cognizable under Rule 37. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Williams v. State, 289 Ark. 385, 711 S.W.2d 479 (1986). However, that is discretionary and it is not obligatory on the trial court to allow appellant to change to a Rule 37 proceeding based on a motion to amend filed a few days before the hearing. Nor has appellant shown how the denial has prejudiced him. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984).

Reversed and remanded with instructions to modify the judgment so that the sentences for aggravated robbery and criminal attempt rape shall be served concurrently in accordance with this opinion.


text:
    Len BLAYLOCK, Chairman, Republican Party of Arkansas v. Carolyn STALEY, Pulaski County Clerk
    87-19
    732 S.W.2d 152
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987

      Bob Leslie, for appellant.

      Ivester, Henry, Skinner & Camp, by: Orin E. Montgomery, for appellee.
   Steele Hays, Justice.

The Pulaski County Clerk contracts with Datafacts, Inc., a computer firm, to maintain the voter registration list on computer equipment, referred to as a computer disc or data module. The list is updated periodically and Datafacts supplies copies of the list at the clerk’s direction on computer printout or on labels for mailing.

The Chairman of the Republican Party, Mr. Len Blaylock, requested a copy of the voter registration list on magnetic tape, offering to pay the reasonable charge of reproducing the list. The clerk furnished a printed list (containing about 180,000 names) at a cost of $498, but refused to supply the list on magnetic tape. Relying on the Freedom of Information Act [Ark. Stat. Ann. § 12-2801, etseq., (Repl. 1979)] Blaylock filed suit asking that the clerk be ordered to supply the list as requested. After a hearing the circuit judge found that “Mr. Blaylock seeks a Writ from the Court to issue upon the County Clerk of Pulaski County, Arkansas, for the purpose of mandating the clerk to deliver the disc to Mr. Blaylock’s possession and thereby allowing the disc to be cloned, either on a like disc, some other type of computer tape and/or a similar process designed for use in compatible computers [.]” The trial court denied Blaylock’s request on the conclusion it was for equipment rather than information.

Blaylock argued in a motion for reconsideration that the court had misinterpreted his request, that he merely wanted the list on magnetic tape rather than on printout which, he maintains, could be done in the office of Datafacts. The trial court’s findings remained unchanged and Blaylock renews the argument on appeal.

Appellant cites a number of decisions from other states which he believes support the premise that information stored on computer tapes is a public record and the public is entitled to have it in the form in which it is kept. Minnesota Medical Association v. State, 274 N.W.2d 84 (Sup. Ct. Minn. 1978); Martin v. Ellisor, 213 S.E.2d 732 (Sup. Ct. S.C. 1979); Menge v. City of Manchester, et al., 311 A.2d 116 (Sup. Ct. N.H. 1973). But we need not look beyond the language of our own Freedom of Information Act to find the answer. Given the liberal interpretation our cases have ascribed to the FOIA [Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968)], the act provides all the guidance necessary. It states that public records include “recorded sounds, films, tapes, or data compilations in any form” and that “all public records shall be open to inspection and copying.” It provides as well that reasonable access to public records and “reasonable comforts and facilities for the full exercise of the right to inspect and copy such records shall not be denied to any citizen.” (Our emphasis throughout.)

However, whether the voter registration list can be furnished by Datafacts on magnetic tape is by no means clear. Appellant’s abstract contains only a sentence from the testimony of Mr. William M. Helms, president of Datafacts (“I could copy the information onto small diskettes in anywhere from four to six hours and it takes about three hours to produce a printout of the information.”) Appellee’s supplemental abstract quotes more extensively from the same witness:

My company does not have the tape drive or tape capabilities to transfer the information on this disk modular (sic) to generate information onto a magnetic tape. We work strictly with diskettes and data modulars (sic). It would take approximately 90 to 100 diskettes to hold the information that is on the disk modular (sic.) We do not have that capacity at Datafacts. The disk modular (sic) is not a tape, and it is not a data compilation. It is a piece of equipment that is used to make data compilations and a program would tell it what type of data compilations to make. (T. 62). (Emphasis supplied).

At one point in the proceedings the trial judge asked Mr. Blaylock a direct question on this point (R.p. 33):

Q. But as I understand, you would have to take that tape there, I guess you would call it that, out of the courthouse and somehow use it and then bring it back. Is that what I am to understand? Do you know?
A. My knowledge is along the line of yours. We were hoping- we’re wanting to be able to purchase this at a reasonable price, probably in tape or disk from a copy they have made.

Thus, the testimony on the methods for reproduction is, to say the least, inconclusive. Such discrepancies cannot be resolved at the appellate level- they belong, of necessity, to the trial court.

In sum, we cannot determine from the abstract whether the magnetic copy that appellant wants can be supplied by Datafacts, or whether the magnetic tape can be obtained only by removing the data module from the office of Datafacts to some outside location for copying. If that is the case, as appellee earnestly insists, and as the trial court found, then we agree with the trial court — the FOIA requires no such measures.

Because the appellant failed to establish his request was one for information and not equipment, the appeal must be disposed of on the basis of ARCP 52, the findings of the trial court are not shown to be clearly erroneous.

Affirmed.


text:
    Andrew SHEPHERD v. Clinton B. LOOPER
    87-16
    732 S.W.2d 150
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987

      L. Gene Worsham, for appellant.

      Rice, Batton, Pierce & Swift, P.A., by: Mackie M. Pierce, for appellee.
   Steele Hays, Justice.

Clinton Looper (appellee) fishes commercially on the Arkansas River. When his sixteen hoop nets were missing, he suspected Andrew Shepherd (appellant) and, with the help of friends, he apprehended Shepherd and then called the police. Looper filed suit against Shepherd for conversion and Shepherd filed a counterclaim for assault and battery. Nine of the nets were recovered after about a week, but the remaining nets were never recovered.

A jury trial was held and Looper was awarded $20,000 in compensatory damages for his nets and lost income and $10,000 in punitive damages. Appellant moved for a new trial and brings this appeal from the denial of his motion.

Appellant’s primary argument for a new trial is that the jury’s compensatory award was excessive, and based only on conjecture and speculation. Appellant concedes appellee proved the value of his nets, approximately $160 each, and the loss of a week’s earnings ($1,000), but contends there is nothing to substantiate the verdict above a total of $2,120.

Lost profits can be recovered in conversion cases and are subject to rules of certainty as are other claims of lost profits. Dobbs, Remedies, § 5.11 (1973). We have held that lost profits must be reasonably certain so the jury is not left to speculate whether there could have been any profits. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985).

Here, the jury had only a vague idea about appellee’s gross income. There was testimony as to how many pounds of fish he caught per week, which ranged from 300 to 1400 pounds, and the price paid per pound for his fish, from $.70 to $2.49 but there was no evidence as to the amount of profits. There was testimony that the size of the catch varied, that appellee had certain costs of doing business, but there was no proof as to what the costs were. From the evidence before it, the jury could only speculate as to lost profits by appellee.

Appellant also submits there was no evidence to support punitive damages. He argues that even if the taking was wrongful, punitive damages are improper if the evidence showed no circumstances of force, oppression or intimidation. Ft. Smith Iron and Steel v. Southern Round Bale Co., 139 Ark. 101, 213 S.W. 21 (1919). There, we found there was only constructive possession of the property and went on to say that punitive damages should not be given unless there was an intentional violation of another’s rights.

From the record it appears appellant admitted having the nets, but claimed he was keeping them to insure the recovery of nets of his own, pursuant to an alleged agreement with appellee. The jury chose not to believe that explanation, and the only other alternative was to infer that appellant, knowing the nets belonged to Looper, had intentionally converted them. The evidence was sufficient to support the award of punitive damages. Ellis v. Feemster, 285 Ark. 385, 687 S.W.2d 835 (1985).

The proof in this case supported the verdicts for compensatory damages of $2,120 and punitive damages of $10,000. Implicit in ARCP Rule 59 is the trial court’s power to grant a new trial where the damages are excessive unless the prevailing party agrees to a remittitur. Williams v. Charles’ Sloan, Inc., 17 Ark. App. 247, 706 S.W.2d 405 (1986). We reverse and remand for the trial court’s refusal to grant a new trial. In some instances where the jury returns a verdict for compensatory damages in an amount greater than the proof will sustain, and an award of punitive damages is not flawed, it may be possible to give the appellee the option of accepting a remittitur to the correct amount. See Brill, Arkansas Law of Damages, § 4-3, and Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972) for a discussion of the correlation between punitive and compensatory damages. However, we have recognized that in law cases the two verdicts are interwoven and an error with respect to one requires a retrial of the whole case. Life and Casualty Ins. Co. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966); Mowery v. House, 234 Ark. 878, 355 S.W.2d 275 (1962). Here, the disparity between the proof of actual damages, $2,120, and the amount awarded, $20,000, is so pronounced the punitive award may have been affected. Gordon v. McLearn, 123 Ark. 496, 185 S.W. 803 (1916).

Appellant’s remaining arguments — the court should have granted a mistrial because of improper innuendos relative to criminal charges and the verdict forms were incorrect — need not be addressed. The verdict forms are not in the record or the abstract and the mistrial motions were entirely subject to the trial court’s discretion.

Reversed and remanded.


text:
    Lowe SMITH v. The ESTATE OF Sadie Hill SMITH
    87-133
    732 S.W.2d 154
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987

      Baim, Gunti, Mouser, Bryant & DeSimone, for appellant.
    No response by appellee.
   Steele Hays, Justice.

Appellant, Lowe Smith, and his wife, Sadie Smith executed a mutual will on July 27, 1985 which provided that each would leave his or her property to the survivor. The will specifically described real property and generally described personal property and provided that on the death of the survivor the real and personal property should be divided equally among two children and seven grandchildren, the appellees.

Sadie Smith died on April 1,1986 and her will was admitted to probate on May 23,1986. Appellant filed a petition to construe the will, requesting that it be found that the will imposed no restriction on the sale, transfer or other alienation of the real or personal property.

The probate judge found that appellant had a life estate in the property and the will gave him no right to convey by deed, will or trust, any part of the estate except the interest of a life tenant. It is from that order that appellant brings this appeal.

The pertinent provisions of the will are these;

II
We intend that this be a mutual will, which will is executed on July 27,1985, and pursuant to an agreement between us to make mutual wills, each leaving his property to the survivor and each agreeing that the survivor leaves his property to the heirs listed in Paragraph V below.
III
We give and devise the following real property to the survivor:
[land description]
IV
We give and bequeath all of our personal property, including money and household furniture and any other form of personal property to the survivor.
V
Upon the death of the survivor, the real property listed in Paragraph III and the personal property listed in Paragraph IV shall be divided in interest in nine equal parts, share and share alike, between our two children, [names of children] and our seven grandchildren, [names of grandchildren].

Appellant argues that the bequest to him in Paragraph III and IV are gifts in fee simple and that the language in Paragraph II and V is not sufficient to limit the gift to a life estate.

The law is clear on this issue, when construing a simple will. First, whenever an estate in lands is created by a will, it is deemed to be an estate in fee simple, if a lesser estate is not clearly indicated. Ahrens v. McNutt, 250 Ark. 941, 467 S.W.2d 721 (1971). Here, the devise of the real property and the bequest of personal property did not indicate clearly any lesser estate than fee simple in Paragraph II, III or IV, so under the rule both would be deemed to be absolute.

Next, we must consider the effect on such a gift, of subsequent gifts in the will:

It is the rule that where property is given in clear language sufficient to convey an absolute fee, the interest thus given shall not be taken away, cut down or diminished by any subsequent vague and general expressions. If it is clearly the intention of the testator that the devisee shall own the fee simple, his subsequent language, directing that what remains of the property at the death of that devisee shall devolve upon a particular person or class of persons, will not cut down the fee to a life estate. The fee, being vested by express and appropriate words, will not be diminished by subsequent words of a vague and general character which are absolutely repugnant to the estate granted. Ahrens, supra.

While this rule of construction is well established, we have not before considered it within the context of a joint will. We are persuaded that the contractual nature of a joint will alters the rule. See 79 Am.Jur. Wills, § 768 et seq.

In United States v. 1,453.49 Acres of Land, 245 F.Supp. 582 (S.D. Iowa 1965) a will was construed under Iowa law. The court dealt with the rule stated above within the context of a joint will:

It is considered that the contractual element which enters into a joint will is the distinguishing feature of the mutual will.. . . [I]n a will of the kind here considered there is a contractual element, and that a subsequent provision devising a remainder, if any, to third persons eliminates the question of repugnancy, and that the devises by the parties are made one in consideration of the other and therefore constitute a contract. . . . The ‘remainderman’ is claiming in such cases not under the testator’s will but rather under the contract wherein the survivor has agreed not to revoke the mutual will. See generally, 79 Am.Jur. Wills, § 782, 783.

The question then is what disposition may the survivor make that is consistent with the terms of the will. It is stated in 85 ALR3d 8, Disposition of Property Under Joint Will:

It is generally held that regardless of the interest given to the survivor in a joint or mutual will, as long as there is no express provision to the contrary the survivor has the power to dispose of the property for necessities, support and maintenance.

Similar language is found in 97 C.J.S. Wills, § 1367:

Where an agreement as to mutual wills does not define the survivor’s power over the property, but merely provides as to the disposition of the property at his death, the survivor may use not only the income, but reasonable portions of the principal, for his support and for ordinary expenditures, and he may change the form of the property by reinvestment and the like; but he must not give away any considerable portions of it or do anything else with it that would be inconsistent with the spirit or the obvious intent and purpose of the agreement.

In United States v. 1,453.40 Acres of Land, supra, the court held, consistent with those principles, that the survivor of a joint will, with terms like those in this will, could not devise a tract of land to a stranger to the will, as it defeated the contract. However, the court found the survivor could use proceeds from condemnation of the property in any reasonable and bona fide manner. To the same effect see Moline National Bank v. Flemming, 91 Ill.App.3d 398, 46 Ill.Dec. 883, 414 N.E.2d 936 (1980).

In the joint will before us, there is no express provision limiting the survivor’s power to dispose of the property. The appellant, therefore, may dispose of the property devised to him for reasonable needs for necessities, support and maintenance.

The decree below is affirmed as modified by this opinion.

       The validity of joint wills, permissible under our cases, Iwerson v. Dushek, 260 Ark. 771, 543 S.W.2d 942 (1976); Janes Exc. v. Rogers, 224 Ark. 116, 271 S.W.2d 930(1954); George v. Smith, 216 Ark. 896, 227 S.W.2d 952 (1950), is not an issue in this case.


author: David Newbern, Justice.

text:
    Patsy BLY v. Morris YOUNG, M.D.
    87-24
    732 S.W.2d 157
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987

      Spears, Sloan & Coleman, by: Gerald A. Coleman, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   David Newbern, Justice.

The question presented in this appeal is whether an employee of the state of Arkansas may be held liable for an act done in the performance of his duties as a state employee to the extent the employee carries liability insurance. We hold that he may, and thus we reverse the circuit court’s holding in favor of the state employee.

The appellee, Dr. Young, is a physician in private practice. He also worked part-time for the Arkansas Department of Health at the Maternal & Child Health Family Planning Clinic in Cross County. In the course of his employment with the state he was consulted by the appellant, Patsy Bly, who sought birth control assistance. The appellee inserted an intra-uterine device (IUD) in the appellant’s uterus. She later was hospitalized, and the device was removed. Thereafter she suffered a miscarriage. She sued the appellee for malpractice.

In his answer the appellee stated that he had noted that the appellant’s uterus was enlarged at the time he inserted the IUD and that he had questioned the appellant about whether she might be pregnant. His answer further alleged that the appellant had taken full responsibility for any result of the insertion of the IUD, and she insisted that she was not pregnant but she had had a recent, normal menstrual cycle. The appellant moved for summary judgment on the basis that he was immune from liability as a state employee, citing Ark. Stat. Ann. § 13-1420 (Supp. 1985). The trial court granted the summary judgment.

In Carter v. Bush, 283 Ark. 16, 677 S.W.2d 837 (1984), two Arkansas highway patrolmen were sued for wrongful death. The case arose from their having stopped two trucks on the highway in a manner so as to block the highway and, it was alleged, cause a motorist to be killed when his vehicle ran into one of the trucks from the rear. The trial court dismissed the action on the basis of § 13-1420. We reversed and said:

We are holding that an employee of the State of Arkansas who had liability insurance to cover negligence in the operation of a motor vehicle can be sued directly and the insurance company held liable for damages caused by the employee’s negligent acts, even though the employee at the time is in the performance of duties as a state employee. [283 Ark. at 19; 677 S.W.2d at 839]

In granting summary judgment in the case before us now, the court cited Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986), as having overruled the Carter case. The action in the Beaulieu case was against employees of the Arkansas Highway and Transportation Department for having wilfully and negligently designed and created an abnormally dangerous intersection which was allegedly the cause of a wreck and injuries to the plaintiffs ward. The action was dismissed by the trial court which held the employees were immune from tort liability for acts within the course of their state employment. On appeal, the plaintiff-appellant argued that the Carter case had held state employees were not immune. We said:

The appellant, quite understandably, argues that the recent case of Carter v. Bush,. . . states that the quoted statute does not provide immunity for officers and employees of the state. The Carter case does provide that the statute is not a grant of immunity. We expressly overrule that part of Carter.

Our overruling of a “part” of the Carter case was thus not a wholesale overruling, and the appellant argues that the Beaulieu case is distinguishable from the case before us now because in that case there was no mention of the employees having insurance coverage. Here, she argues, the situation is exactly the same as in the Carter case because there is a showing that the appellee has malpractice insurance.

The appellant’s argument is correct. Our holding in Carter v. Bush, supra, is applicable here, whereas the Beaulieu case is distinguishable on the basis she asserts.

Reversed and remanded.


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

text:
    Lewis MAGRUDER v. ARKANSAS GAME & FISH COMMISSION
    87-63
    732 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987
    [Rehearing denied September 14, 1987.]

      Smith, Smith & Duke, by: Griffin Smith, for appellant.

      P. Douglas Mays, General Counsel for the Arkansas Game & Fish Commission; and Howell, Price, Trice, Basham and Hope, P.A., by: Robert J. Price, for appellee.

      Hickman, J., would grant rehearing. Purtle, J., not participating.

   David Newbern, Justice.

The question presented in this appeal is whether the appellee, Arkansas Game and Fish Commission, acted unconstitutionally by declaring Lake Maumelle to be a “zone,” as that term is used in Ark. Const, art. 35, § 8, for the purpose of regulating fishing in the lake. We disagree with the chancellor’s conclusion to the extent he said that the commission could regulate the lake as it pleased because its authority was derived from its contract with the Little Rock Waterworks pursuant to which the commission managed the lake. However, we affirm the result and hold that it was not an unconstitutional or otherwise improper use of the commission’s authority to make one lake a zone for the purpose of regulating the fishing there.

The commission issued a regulation saying that black bass under fifteen inches long could not be taken from the lake. In an earlier action, the appellant challenged the regulation, and the chancellor ruled the regulation was violative of Ark. Const, art. 35, § 8, which provides:

The Commission shall have the exclusive power and authority to issue licenses and permits, to regulate bag limits and the manner of taking game and fish and furbearing animals, and shall have the authority to divide the State into zones, and regulate seasons and manner of taking game, and fish and furbearing animals therein, and fix penalties for violations. No rule or regulations shall apply to less than a complete zone, except temporarily in case of extreme emergency.

Thereafter, the commission issued a minute order making every identifiable body of water a separate zone.

Next, the appellant challenged the commission’s action in making each body of water a zone. The chancellor held that the appellant lacked standing to bring the challenge. This court reversed. Magruder v. Arkansas Game & Fish Commission, 287 Ark. 343, 698 S.W.2d 299 (1985). Upon remand, the chancellor upheld the commission’s action, stating in his order:

That the Arkansas Game and Fish Commission has constitutional authority pursuant to Amendment 35 . . . to regulate animal and fisheries resources, as well as statutory and contractual authority in this limited fact situation, and no vested property right exists in the Arkansas Game & Fish Commission for this particular lake, ....

The chancellor relied on Ark. Stat. Ann. § 19-4223 (Repl. 1980) which gives waterworks commissioners authority to manage municipally-owned waterworks, and Ark. Stat. Ann. § 19-4232 (Repl. 1980) which provides that if waterworks commissioners choose to allow fishing on their premises the game and fish commission regulations on fishing will be in effect and “may not be abrogated by the rules and regulations of the operating authority.” His conclusion seemed to be that regardless of Amendment 35, the commission had authority to regulate the lake because the waterworks commissioners had conferred their management authority upon the game and fish commission.

1. The commission’s authority

The appellant’s position is that the commission has no authority to make a lake a zone. He states the order making each body of water a zone “does not ‘divide the state into zones’ ” as the amendment requires. He cites no authority for that statement. He does, however, discuss the history of the amendment, and he cites Arkansas Game and Fish Commission v. Clark, 192 Ark. 840, 92 S.W.2d 699 (1936), in which we held that a commission regulation applying to only one county was invalid. He said the regulation in question was invalid because it applied to less than the whole state and thus violated Amendment 14 and the prohibition of local or special legislation. To the Clark case we would add Depree v. State, 184 Ark. 1120, 44 S.W.2d 1097 (1932), and its similar holding. The appellant argues these cases show the reason for Amendment 35 limiting the commission to regulating entire zones rather than “local” areas.

The problem with the appellant’s argument is that just the opposite can as easily be said. The Clark and Dupree decisions tied the hands of the commission, forcing its regulations to apply statewide despite the obvious variety among the streams, rivers, lakes and lands found in Arkansas. It is at least equally likely that the amendment, enacted in 1945, was passed to untie, or at least to loosen, the knot.

We are thus not persuaded by the appellant’s argument that the commission may not make a zone of a single lake because of any prohibition to be found in Amendment 35. That leaves only the question whether the commission abused its discretion in doing so.

2. Abuse of discretion

Dr. Larry Aggus, a Fayetteville entomologist, testified that the commission’s minute order making each identifiable body of water a separate zone for regulatory purposes was “state of the art fishery management in the United States,” because each body of water may have different requirements as a “management unit” because of the varieties of fish in it and the nature of the lake or stream. Mr. Kim Erickson, Chief of Fisheries of the Oklahoma Department of Wildlife Conservation, testified that, although they are not called “zones,” the management units in Oklahoma are individual bodies of water, each of which may be subjected to special regulation. The testimony of these witnesses and of Mr. Henderson, an employee of the Arkansas Game and Fish Commission explaining the same regulatory need stated by the other witnesses, went unrebutted by the appellant.

We agree with the appellant that, given this approach, the commission could make every acre in Arkansas a separate zone. As long as the commission did so with demonstrable justification related to its constitutionally-defined purposes, the zones would not be illegal.

In Arkansas State Game and Fish Commission v. Stanley, 260 Ark. 176, 538 S.W.2d 533 (1976), we reviewed an injunction which had been issued to prevent the commission from harvesting timber at Bayou Meto. The chancellor’s finding was that the commission’s action was ultra vires, arbitrary, capricious, and unlawful. We reviewed the testimony and reversed. Some of the language of that opinion discussing the powers of the commission under Amendment 35 applies here:

Judicial interpretation of these powers has been rather limited, but this court has, on occasion, been called upon to review various actions and has commented upon the extent of, and limits on, the constitutional grant. We have held that the Commission has a very broad discretion in determining how wildlife shall be conserved. W. R. Wrape Stave Co. v. Arkansas State Game & Fish Comm’n, 215 Ark. 229, 219 S.W.2d 948 [1949]; Hampton v. Arkansas State Game & Fish Comm’n, 218 Ark. 757, 238 S.W.2d 950 [1951]. In Wrape, we said that the Amendment is complete within itself and that it was intended by the Amendment to either provide or leave to the Commission, methods for attaining the ends enumerated. See also, State v. Casey, 225 Ark. 149, 279 S.W.2d 819 [1955]. We have said that the powers of the Commission are broad. Arkansas State Game & Fish Comm’n v. Hornaday, 219 Ark. 184, 242 S.W.2d 342 [1951]; State v. Casey, supra. [260 Ark. at 181-182, 538 S.W.2d at 535]

There may well be a difference of opinion about the propriety of the particular procedure adopted to accomplish the basic purposes of Amendment 35, but it certainly cannot be said that there is not respectable authority supportive of the approach being taken. In considering the matter we must remember that the commission is composed of members having knowledge of and interest in wildlife conservation. [260 Ark. at 189, 538 S.W.2d at 540.]

Amendment 35 does not define “zone.” See Shellnut v. Arkansas Game and Fish Commission, opinion on rehearing, 222 Ark. at 32, 258 S.W.2d at 575 (1953). Given the broad authority the people have conferred on the commission, our previous recognition that the intent of Amendment 35 is to take advantage of the expertise of that body, and the evidence in this case that they are exercising that expertise in a way that is not only reasonable but also laudable in the opinion of professionals, we can hardly say there was an abuse of the commission’s discretion when it made each body of water a separate zone.

One dissenting opinion in this case accuses the majority of not using common sense and of abandoning the constitution rather than interpreting it. No evidence in the record before us supports the conclusion that the designation of each body of water as a separate zone is lacking in common sense. The evidence before the court is that it makes not only common sense but also scientific sense to recognize that each body of water has different characteristics which may require different regulatory approaches. No authority whatever is cited in the dissenting opinion in support of the conclusion that we are abandoning rather than interpreting the constitution.

The other dissenting opinion also cites no authority for its apparent conclusion that a particular body of water cannot constitute a “zone.” Reference is made to the Shellnut case, as being supportive of the majority’s position, and to the Clark case, discussed in Part 1. above, as having been a precursor to Amendment 35 with a different suggestion of the impetus it may have given the authors of the amendment. We disagree that the decision in the case before us now will offer an insidious opportunity for rampant “spot” regulation or zoning. As stated at the outset, the issue here is whether the appellee acted unconstitutionally in making Lake Maumelle a “zone.” We find the appellee made the case required by Arkansas Game and Fish Commission v. Stanley, supra, that its decision was not arbitrary.

Affirmed.

Hickman and Glaze, JJ., dissent.

Purtle, J., not participating.

Darrell Hickman, Justice,

dissenting. We often state that a jury is not required to put aside its common sense in deciding a case. Neither are we.

The issue is not can the Game and Fish Commission make Lake Maumelle a separate “zone,” it is, can the Game and Fish Commission defy the constitution and make every lake, river and stream a separate zone? That is not “dividing the state into zones” as provided in Section 8 of Amendment 35 of the Arkansas Constitution. Lakes are to be in zones, not zones in lakes. Our duty is not to determine the wisdom of the constitution, merely interpret it. The majority concedes that the commission could make a separate zone — presumably for both game and fish — of every acre in Arkansas. The majority is not interpreting the constitution, it is abandoning it.

What happened is this. The Game and Fish Commission decided that black bass under 15 inches could not be taken from Lake Maumelle. The appellant challenged this and proved the commission had not divided the state into zones for regulating fishing. (It had for regulating hunting and has been zoned for hunting since Amendment 35 was adopted.) So the appellant won. What did the commission do? It decided every lake and identifiable waterway would be a separate “zone” just so it could enforce its regulations regarding black bass on Lake Maumelle. What an arbitrary, bureaucratic decision. We don’t know how many “zones” exist for regulating fishing. Evidently, the commission will, willy-nilly, make up the rules as time goes by. The constitution says that the commission shall have the authority to divide the state into zones and “no rule or regulations shall apply to less than a complete zone, except temporarily in case of extreme emergency.” Evidently, this language is now meaningless.

Amendment 35 was adopted because of meddling by the legislators and the politicians with the game and fish laws and regulations. An example of the kind of nonsense that can occur is found in Shellnut v. Arkansas Game & Fish Comm., 222 Ark. 25, 258 S.W.2d 570 (1953), where the commission created a zone including a landowner’s property and then promptly excluded hunting from his property because he refused to lease his land to the commission.

This is not an environmental law case. The issue is interpretation of the constitution. All we have to decide is was the commission’s act constitutional; not was this decision regarding black bass in Lake Maumelle right. Let us assume it was, but the way they decided to enforce that regulation violates the constitution.

If the commission had decided to try to divide the state in zones rather than react to a lawsuit in an arbitrary manner, we might have a different case. But they haven’t tried.

The majority has simply given the Game and Fish Commission the authority to do what it pleases. If the people had wanted to grant unchecked power to the commission, it would have clearly said so. This kind of arbitrary action was anticipated and that was the reason for some of the language in Amendment 35. The majority has made Section 8 meaningless.

I respectfully dissent.

Tom Glaze, Justice,

dissenting. This court’s opinion upon rehearing in Shellnut v. Arkansas State Game & Fish Commission, 222 Ark. 25, 258 S.W.2d 570 (1953) would seem to give support to the majority decision. In Shellnut, Justice George Rose Smith noted that Amendment 35 made no attempt to define the word zone, but said:

To say the least, a zone must be of sufficient size to bear a reasonable relationship to the purpose for which the zone is declared to exist. If, for example, the zoning regulation is intended to further the propagation of deer, the constitution clearly means that the restricted area must be large enough for the accomplishment of that purpose.

222 Ark. at 34; 258 S.W.2d at 576.

The majority court in Shellnut stated that the Commission had failed to adopt a uniform regulation or zoning plan and held an entire 30,000-acre wildlife sanctuary involved there was not shown to constitute a zone. The three dissenting justices, Justice Robinson writing, opined the Commission should have been allowed to zone any area of the state and prohibit hunting in such zone, provided it had not acted in an arbitrary manner.

Here, the Commission has offered proof of its attempt to define zone, as that term applies to fisheries management. It did so by a minute order dated December 16,1985, which in relevant part provides:

It is ordered that fishery zones for sport and commercial fishing regulations shall be defined as identifiable lakes and impoundments which exhibits (sic) obvious lacustrine habitats; and any stream or river reach which exhibits an identifiable continuum of biological properties, and flow patterns with specific boundaries being determined by readily recognizable physical features as specified by the commission; and fishery zones shall be established for scientific application of regulation and management techniques to suit the particular needs of the fishery and such said zones shall be known by their popular or geographic names.

In addition to the foregoing order, the Commission offered certain expert testimony which tended to support the Commission’s action to make each body of water, meeting its definition, a zone for fishery management purposes.

Again, the Shellnut court indicated it would no doubt presume the validity of the Commission’s action if the Commission undertook to adopt a uniform regulation applying alike to all lands within the area. The court further stated once the Commission so acted, it would cast upon the aggrieved landowner the burden of showing that no zone is involved. In view of the Shellnut holding and the proof offered by the Commission in this case, one could surmise that the majority decision handed down today is correct. Nevertheless, I remain troubled by it.

I remain bothered, no doubt, in part, due to the Commission’s manner and timing in issuing its minute order defining zone and in re-promulgating its regulation pertaining to Lake Maumelle. Of course, both events occurred immediately after the court ruled the Commission’s regulation of Lake Maumelle unconstitutional. My main concern, however, is whether the minute order defining “fishery zones” is of much use to the public’s (or this court’s) understanding of that term, especially when that term is so broadly defined and leaves solely to the Commission an almost unlimited discretion to specify, on a case-by-case basis, what is or is not a zone. To me, the so-called zoning plan adopted here does little to guide anyone, and, at least on its face, appears impossible for anyone to know where or how it will be applied.

Finally, I also have problems embracing the idea, as the majority suggests, that the Commission can make every acre in Arkansas a separate zone, so long as it is able to justify such an action. Of course, I have some difficulty in conceiving how such a situation might occur but doubt that the majority actually believes any such action by the Commission could be upheld. My broader concern emanates from the words of limitation employed in Amendment 35, and, when enacted, its framer’s concern, I submit, had little to do with state-of-the-art fisheries management — not to say such an idea is neither important nor laudable.

Undoubtedly, Ark. Const, amend. 35, § 8, gives the Commission the exclusive authority to issue licenses and permits and to regulate the limits and manner of taking game and fish in this state. Nonetheless, clear language is expressed in Amendment 35 that places a proscription on the Commission in its regulation of game and fish and furbearing animals. That language provides:

The Commission shall have the exclusive power and authority ... to regulate bag limits and the manner of taking game and fish . . . and shall have the authority to divide the state into zones and regulate seasons and manner of taking game and fish and furbearing animals therein, and fix penalties for violation. No rule or regulations shall apply to less than a complete zone, except temporarily in case of extreme emergency. (Emphasis supplied.)

In reading the foregoing, I am of the opinion that the framer’s mandate meant the Commission must “divide the state into zones” for regulation purposes so as to avoid any possible arbitrary or capricious selection of a given area or county in the state in order to treat or regulate it differently than other closeby or similar areas in the state. Such interpretation, I think, is clearly borne out by the amendment’s proscription that the Commission shall not apply any rule or regulation “to less than a complete zone, except temporarily in case of extreme emergency.”

In view of the foregoing words of limitation, I ask, how can one avoid what appears to be a clear admonition against “spot-regulation”, i.e., applying a regulation to less than a zone? The answer, of course, is how it was done in this case — instead of “dividing the state into zones,” make each of the rivers, lakes, streams and other water bodies in the state a zone unto itself. Since we have now given credence to the Commission’s labeling water bodies, zones, and equating that with “dividing the state into zones,” this same theory would necessarily apply to the Commission’s power to regulate game and furbearing animals. Thus, so long as the Commission could offer some rationale for its action, it can now label hundreds — maybe thousands — of land areas in the state a zone. In the instant case, the Commission’s action was justified as being the “state of the art” in fisheries management.

As I have already said, we all are for “state of the art” fish and game management but that is a matter which is separate and apart from the clear dictates found in Amendment 35. As the appellant points out, the framers were wary of granting any power to single out landowners or limit areas and apply restrictions not generally shared. That same philosophy is embedded in Amendment 14 to the Arkansas Constitution, prohibiting special and local legislation. See Arkansas Game & Fish Commission v. Clark, 192 Ark. 840, 925 S.W.2d 699 (1936) (wherein the court held invalid as special legislation the Commission’s attempt to enforce deer hunting regulations applicable only to Grant County).

My decision to disagree with the majority has been a difficult one, primarily, I think, because I understand how fish and game management has changed over the past forty-two years, since Amendment 35 was approved by the people of the state. Nevertheless, that is not the legal issue posed here and I have a difficult time in reading the express language used in Amendment 35 to say it was a consideration when it was passed and is a controlling consideration now. Therefore, I respectfully dissent.

Hickman, J., joins in this dissent.


text:
    Robert McCOY v. STATE of Arkansas
    CR 87-46
    732 S.W.2d 156
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987

      William R. Simpson, Jr., Public Defender, Donald K. Campbell III, Deputy Public Defender, by: Cecilia F. Roberts, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen. by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The sole issue presented in this appeal of the appellant’s conviction for rape is whether the evidence was sufficient to sustain the conviction. We find the evidence was sufficient, and thus the conviction is affirmed.

The alleged victim testified that she was in her apartment and asleep with her infant son on a mattress in her living room in the early morning hours of April 5,1986. She was awakened and realized that a person was lying with her and whispering to her that she should do as he said in order to keep from being hurt, and to keep her baby from being harmed. She further testified that her assailant, whom she positively identified as the appellant, had a “butter knife” and she was in fear for her life and for the safety of her son. She testified that the appellant was engaged in sexual intercourse with her when her husband arrived.

The remainder of the testimony, given by the alleged victim’s husband and by the officers who were summoned to the scene, was to the effect that the husband subdued the appellant after a fight and held him until the police arrived. An arresting officer testified that a screwdriver was found in the pants pocket of the appellant and that marks around a window in the alleged victim’s apartment showed that a screen had been pried up. The window was open.

The appellant testified that the alleged victim had invited him to her apartment and submitted consensually to intercourse with him.

Trial by jury was waived by the appellant, and the case was heard by the judge. In reaching his judgment, the judge noted that he found the appellant not to be a credible witness as he had been convicted previously of a number of offenses involving dishonesty.

We affirm the conviction on appeal if there is any substantial evidence to support the verdict. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). The statement of the alleged victim, standing alone, is enough to support a conviction of rape. Sales v. State, 291 Ark. 338, 724 S.W.2d 469 (1987); Hamm v. State, 214 Ark. 171, 214 S.W.2d 917 (1948). Thus, in this case, the evidence was more than sufficient, given the corroborating testimony of the victim’s husband and the police officers who investigated the incident.

Affirmed.


author: Tom Glaze, Justice.

text:
    Charles James ROBINSON v. STATE of Arkansas
    CR 87-48
    732 S.W.2d 159
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987

      William R. Simpson, Jr., Public Defender, Arthur L. Allen, Deputy Public Defender, by: Steff Padilla, Deputy Public

      Defender, for appellant.

      Steve Clark, Att’y Gen., J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals his convictions for rape, robbery and theft of property for which he was sentenced, respectively, as a habitual offender, to life imprisonment, a forty-five-year term, and a twenty-year term, sentences to run consecutively. For reversal, he contends his due process rights were violated by the admission of an in-court identification because the pre-trial identification procedure was unnecessarily suggestive. We affirm.

The evidence showed that appellant entered the victim’s place of employment in the early afternoon of February 17,1986, and, after browsing around the store for about thirty minutes, approached the victim and told her he had a gun. As he directed, she put money from the store as well as her own purse in a bag. Appellant then forced her into a downstairs storage area where he raped her. He fled the scene in the victim’s car. Appellant was arrested early on March 2, driving the victim’s car.

The victim was called to the police station on the morning of March 2, and was placed in a room with ten to twelve other persons who were waiting to view lineups. The victim was the third person called to view the lineup, and she identified appellant as her attacker. Appellant contends the pre-trial identification procedure was suggestive because before she identified appellant, the victim may have heard a statement made by another of appellant’s alleged rape victims that, “He’s there.” Appellant also argues the lineup was tainted because (1) the victim knew the police had a suspect when she was called to the station, (2) she only saw her assailant for approximately forty-five minutes and was upset and scared during that time, (3) she was only able to give a general description at the time of the incident, and (4) she was unable to pick appellant out of a previous lineup.

The factors to be considered in lineup identification cases are opportunity of the victim to observe the crime and its perpetrators, the lapse of time between the crime and the lineup, discrepancies between descriptions given the police and the defendant’s true physical characteristics, the occurrence of pretrial misidentification, the certainty of the witnesses in identifying the accused, and the totality of the facts and circumstances regarding the identification. Manson v. Brathwaite, 432 U.S. 98 (1917); Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987). The trial court held an omnibus hearing at which time it was able to consider these factors and determine whether the pretrial procedures tainted the in-court identification. It ruled there was no taint.

Upon our review of the record, there is no evidence that any objectionable discussion took place in the room among those gathered there to view the lineup prior to the victim’s identification of appellant. While another alleged rape victim testified she told another woman she had seen “him,” there is nothing in the record to indicate appellant’s victim heard the remark or any other remark before she identified appellant. She stated she got a good look at her assailant and was able to pick him out of the lineup easily. The lineup was held within a few weeks of the assault, and there is no evidence the victim viewed appellant in a previous live or photographic lineup and failed to identify him.

As the court stated in Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984), the appellate court does not inject itself into the process of determining reliability unless there is a very substantial likelihood of misidentification. Once the trial court permits the use of identification testimony as evidence, it is for the jury to decide what weight it is to be given. Penn, supra.

The trial court’s ruling that the lineup procedure was not unduly suggestive was not clearly erroneous. Therefore, we affirm.

Affirmed.