text:
    Gary D. LESTER v. MOUNT VERNON-ENOLA SCHOOL DISTRICT
    95-873
    917 S.W.2d 540
    Supreme Court of Arkansas
    Opinion delivered March 18, 1996

      Roachell Law Firm, by: Travis N. Creed, for appellant.

      Brazil, Adlong, Murphy & Osment, by: William C. Brazil and Amy Brazil, for appellee.
   David Newbern, Justice.

This is a Teacher Fair Dismissal Act case. The Act is found at Ark. Code Ann. §§ 6-17-1501 through 6-17-1510 (Repl. 1993). Garry Lester appeals the decision of the Faulkner County Circuit Court which affirmed the decision of the Mount Vernon-Enola School Board (the Board) to terminate his teaching contract. Mr. Lester contends the Board’s hearing in response to his request to review the Superintendent’s termination recommendation was not held within the time period prescribed by the Act. Mr. Lester made additional arguments, but as we agree with his point on the timing of the hearing, we need not address them. We reverse and remand the case for further proceedings.

The incident which led to Mr. Lester’s termination occurred on Friday, August 26, 1994. It involved the use of inappropriate language by Mr. Lester during a homeroom class period he supervised.

During the weekend following the incident, Mr. Lester learned that parents of students who had been present during his admitted indiscretion and the superintendent, Mr. Bakker, did not approve of his conduct. On Friday night, a parent confronted Mr. Lester and expressed his displeasure with the language that was used during his child’s homeroom class. Then, on Sunday night, Mr. Lester received a call from Mr. Bakker, who informed him he was not to report for his bus driving or for teaching duties. Mr. Bakker also told Mr. Lester to report to his office on Monday.

Mr. Lester met with Mr. Bakker and Mr. Guffy, the principal of the high school on Monday, August 29, 1994. He was informed of the complaints received from parents concerning the “joke” he told, and that as a result, they were going to recommend the termination of his contract to Board. On September 2, 1994, Mr. Lester received the following written notice from Mr. Bakker:

You are hereby notified that you are suspended with pay, effective immediately and that I intend to recommend that your contract with the Mount Vernon-Enola School District be terminated. The reasons for my recommendation are as follows: The use of inappropriate language to teenage female students.
You have the right to a hearing on this recommendation before the school board. If you desire a hearing, you must make a request for same, in writing to may office, within thirty days of your receipt of this letter. The hearing will be held at the next regular school board meeting following the receipt of your request for a hearing, unless a later date is agreed to in writing.
If you request a hearing, you have the right to be represented by the person of your choice, and if you so request in writing, a record of the hearing will be preserved and a transcript will be provided to you at no cost.

After receiving the written notice from Mr. Bakker, Mr. Lester talked with each of the five members of the Board to ascertain how each would vote on Mr. Bakker’s recommendation. Mr. Lester believed at least three would vote against termination. Mr. Lester testified that the President of the Board, Owen Leach, recommended that in light of the three favorable votes, the hearing should take place as soon as possible so Mr. Lester could get back to the classroom.

Mr. Lester sought the advice of his brother, Bobby Lester, Superintendent of the Pulaski County Special School District. Bobby Lester testified he told his brother he should hire an attorney and take the issue to the Board. Bobby Lester also advised his brother to wait the full 30 days allowed by the Act before requesting a hearing, as that would allow time to continue receiving pay and to attempt to resolve differences with the parents of his students.

Despite Bobby Lester’s advice, on September 4, 1994, Garry Lester hand-delivered a letter to the Board in which he requested a hearing before the Board “as soon as possible.”

On September 8, 1994, four days after Mr. Lester gave notice that he wanted a hearing, a special meeting of the Board was called for a hearing on Mr. Bakker’s recommendation. The Act requires that any such hearing “shall take place not less than five (5) days nor more than ten (10) days after the written request has been served on the board, except that the teacher and the board may, in writing, agree to a postponement of the hearing to a later date:. . .” § 6-17-1509(c)(l). The Board voted 3-2 to uphold Mr. Bakker’s recommendation. Mr. Lester appealed to the Circuit Court where he argued that the action of the Board violated the law because the hearing was held too early.

In affirming the Board’s decision, the Court recited the following conclusion, among others:

5. Plaintiff waived his right to strict compliance for a hearing to be held not less than 5 (five) nor more than 10 (ten) days when he requested the hearing to be held as soon as possible. No objection was made and the Plaintiff was not prejudiced by the action of the district. .

Mr. Lester correctly argues that since 1989 the General Assembly has required strict compliance with the Teacher Fair Dismissal Act. Holding the hearing fewer than five days after his request was submitted constituted failure to comply strictly with § 6-17-1509(c)(1).

Prior to 1989, we recognized that “substantial compliance” with the Act was sufficient. See Murray v. Alteimer-Sherrill Public Schools, 294 Ark. 403, 743 S.W.2d 789 (1988). In 1989, however, the General Assembly enacted Act 625, which amended the Act and added this sentence to § 6-17-1503:

A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district strictly complies with all provisions of this subchapter and the school district’s applicable personnel policies.

See also Western Grove School District v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994).

Mr. Lester contends that, by finding that he waived the statutory time period by requesting a hearing “as soon as possible,” and by finding that he was not prejudiced by the timing of the hearing, the Trial Court engaged in a substantial compliance analysis, which contravenes the intent of the General Assembly. In addition to citing Mr. Lester’s letter, the Board notes that Mr. Lester made no objection to the timing of the hearing.

In other contexts in which the General Assembly has stated a strict compliance requirement it has been held that such compliance may be waived. Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993); Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1976). The question here, however, is whether waiver occurred. The evidence does not support the Trial Court’s finding of waiver of the minimum (5-day) period between request and hearing.

In every case of which we are aware, we have held that a waiver of a right requires knowledge of that right on the part of the party alleged to have waived it. In Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980), we quoted from Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978), our standard statement on the subject as follows:

Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of material facts, does something which is inconsistent with the right or his intention to rely on that right. . . . The relinquishment of the right must be intentional. . . .

That case involved waiver of the right to alimony by failure to request it. Other cases in which we have uttered the same or similar language in various contexts include, Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993); Worth v. Civil Service Comm’n, 294 Ark. 643, 746 S.W.2d 346 (1988); and Mobley v. Estate of Parker, 278 Ark. 37, 642 S.W.2d 883 (1982).

While there is evidence that Mr. Lester knew of some, if not most, of his rights under the Act, we have carefully combed the record for any evidence that he was aware of his right to have the hearing no fewer than five days after his request. We found no such evidence.

We might speculate that Mr. Lester would have wanted the hearing held as soon as possible even if he had been aware of his right to have it no fewer than five days after his request. A holding to that effect or a holding that the Trial Court’s finding that there was a waiver implied the necessary knowledge would, however, completely evade the issue and subvert the General Assembly’s strict compliance requirement and obvious intention that a “cooling off’ period occur in these cases. It would also mock our earlier decisions requiring evidence of knowledge as a predicate for waiver. The same would be true if we based affirmance on the failure of Mr. Lester to object to violation of a rule of which there is no evidence he was aware. Absent evidence of the requisite knowledge on Garry Lester’s part of the right purportedly waived, we cannot, in accordance with our precedent, hold that he waived it.

We remand the case to the Trial Court for entry of an order consistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Tom Glaze, Justice. Robert L. Brown, Justice,

license: Public Domain

text:
    Kyle Duane CHERRY v. STATE of Arkansas
    CR 95-885
    918 S.W.2d 125
    Supreme Court of Arkansas
    Opinion delivered March 18, 1996

      Larry Dean Kissee, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Kyle Cherry files this appeal from a trial court decision, denying his Rule 37 post-conviction petition. The trial court held Cherry’s petition was untimely, citing Fox v. State, 309 Ark. 619, 832 S.W.2d 244 (1992), as controlling.

Procedurally, this case commenced with the state initiating a murder in the first-degree charge against Cherry. On July 14, 1989, Cherry pled guilty, and his conviction and life imprisonment sentence were entered on July 17, 1989. Cherry filed a timely appeal, and this court affirmed Cherry’s conviction on June 11, 1990. Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990).

On October 9, 1991, or about sixteen months after the Cherry decision, Cherry filed a petition for writ of habeas corpus in federal district court, and alleged he had been denied post-conviction relief in state court because the trial court had failed to inform him such relief was available under the provisions of Ark. R. Crim. P. 36.4. Rule 36.4, in effect when Cherry was convicted, mandated that the trial judge must address a defendant personally and advise the defendant that, if he or she wished to assert ineffective assistance of counsel, the defendant must do so within thirty days from pronouncement and entry of judgment. (Emphasis added.)

Cherry’s assertion in the federal proceeding was undisputed that, when his conviction was entered on July 17, 1989, the state trial court failed to inform Cherry of his post-conviction remedy under Rule 36.4. The magistrate in the federal habeas corpus proceeding dismissed Cherry’s petition on the basis that Cherry had not, as yet, exhausted his state remedies in state trial court. Cherry then filed this state proceeding asking for post-conviction relief under either Rule 36.4 or Ark. R. Crim. P. 37 (which replaced Rule 36.4 on January 1, 1991), and arguing constitutional due process was denied him because he had never been notified of his right to post-conviction relief. We agree.

In denying Cherry’s request for post-conviction relief below, the trial court relied on this court’s per curiam opinion in Fox. There, Fox had pled guilty to murder on March 22, 1990, but, like in our present case, the trial court failed pursuant to Rule 36.4 to inform him that he could assert ineffective assistance of counsel, if he did so within thirty days from entry of his jüdgment of conviction. Seventeen months later, Fox filed a pro se petition for post-conviction relief under new Rule 37, which replaced Rule 36.4, effective January 1, 1991. The trial court chose to consider Fox’s petition because Fox had never been informed of his right to post-conviction relief under Rule 36.4. While this court agreed that the trial court correctly decided Fox should have been informed of his rights under Rule 36.4 and had the opportunity to present his claim, this court further held that Fox (and other defendants like him) still was required to exercise due diligence in filing his petition. The Fox court then stated the following:

It is not an unreasonable restriction on an appellant for post-conviction relief to require that in those instances where a petitioner pleaded guilty while Rule 37 was not in effect and the petitioner was not advised of the provisions of Rule 36.4, petitions under Rule 37 will not be considered timely unless the petition was filed within ninety days of the date of the reinstatement of Rule 37. (Emphasis added.)

Since Rule 37’s effective date was January 1, 1991, the ninety-day period ended on April 1, 1991. Accordingly, the Fox court dismissed Fox’s appeal because he had waited until August 28, 1991, or nearly eight months, before filing his post-conviction petition.

In applying the Fox decision to the facts here, the trial court held Cherry, too, had filed his petition untimely and was procedurally barred. It concluded that, while the trial court had failed to advise Cherry of his post-conviction remedy under Rule 36.4, Cherry still could have sought such a remedy under Rule 37, effective on January 1, 1991. However, like the defendant in Fox, the trial court found Cherry’s request for post-conviction relief was too late, when he filed his Rule 37 proceeding on December 15, 1994, or years after the April 1, 1991 deadline.

Cherry argues several reasons why the Fox decision should not be used to deny him post-conviction relief. First, he reasserts he was indisputably denied post-conviction relief under Rule 36.4, since the trial court failed to advise him of it at trial. Second, while Rule 37 replaced Rule 36.4 effective January 1, 1991, the actual language in that new rule availed Cherry of no remedy. In this connection, Rule 37 only authorized a defendant the right to file a petition (1) within ninety days of the date of entry of judgment or (2) within sixty days of the appellate court’s mandate, if a direct appeal was taken from the judgment. Because Cherry’s conviction was entered on July 17, 1989, and his appeal had ended on June 11, 1990, Cherry submits that his time to file a petition had long since expired when Rule 37 went into effect on January 1, 1991. Third, while this court in Fox interpreted Rule 37 to extend post-conviction relief to some defendants who had been improperly denied relief under Rule 36.4, Cherry had no knowledge of that interpretation until 1992. As noted previously, Rule 37 provided for no retroactive application. Thus, until Fox was decided on June 15, 1992, Cherry says he was simply unaware that the new rule was available to him.

Finally, Cherry cites Easter v. Endell, 37 F.3d 1343 (8th Cir. 1994), which likewise involved a defendant who had not been informed of his post-conviction rights under Rule 36.4 after he pled guilty to crimes in December of 1989, and later had been denied post-conviction relief under Arkansas’s new Rule 37. The Eighth Circuit discussed the Fox decision and whether Rule 37, as embodied in that decision, met adequate due process requirements to foreclose a federal habeas corpus petition. The Easter court answered no, and relied largely on the following passage set out in Ford v. Georgia, 498 U.S. 411 (1991):

[I]t was proper to decline “to apply a state procedural rule . . . because the defendant . . . could not be ‘deemed to have been apprised of its existence.’” Id. at 423, 111 S.Ct. at 857 (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457, 78 S.Ct. 1163, 1169, 2 L.Ed.2d 1488 (1958)). The rule is that “only a ‘firmly established and regularly followed state practice’ may be interposed by a State to prevent subsequent review ... of a federal constitutional claim.” Id. 498 U.S. at 423-24, 111 S.Ct. at 857-58 (citing and quoting from James v. Kentucky, 466 U.S. 341, 348-51, 104 S.Ct. 1830, 1835-36, 80 L.Ed.2d 346 (1984)). The Court went on to hold that “[t]o apply [a state procedural ruling] retroactively . . . would . . . apply a rule unannounced at the time of petitioner’s trial and consequently inadequate to serve as an independent state ground .... [Such a state] rule, adopted long after petitioner’s trial, cannot bar federal judicial review . . . .” Id. at 424-25, 111 S.Ct. at 858. (If a “rule was not firmly established at the time in question, there is no need to dwell on the further . . . requirement that the state practice have been regularly followed.” Id. at 425, 111 S.Ct. at 858.)

Based upon the foregoing, the Easter court held that, when our court decided in Fox to retroactively grant Rule 37 relief to convicts like Easter, this court was bound to meet Due Process Clause requirements in executing the remedy created. The Eighth Circuit Court then held Easter was entitled to federal court consideration of his petition because Easter could not have known of the state’s rule granting him post-conviction relief or foreseen that such a remedy would be granted him retroactively. Again, we believe the Easter court’s due process analysis is a valid one.

The Easter court’s analysis fell short of deciding that Arkansas’s post-conviction procedures as embodied by Fox were constitutionally infirm, and we think the court again was correct. This court promulgated new Rules 36.4 and 37 because post-conviction remedies were being drawn out extensively and unnecessarily before cases could be concluded. See Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). Rule 36.4, and later new Rule 37, shortened the periods in which convicts could request post-conviction relief. In doing so, this court made every effort to afford convicted defendants due process, but at the same time, put a procedure in place that would offer less opportunity to misuse the federal and state systems to develop legal theories that unnecessarily prolonged meritless cases. Id. We should mention the federal system has done little, if anything, to offer procedures that would dispose of such meritless matters in a more timely manner. In fact, the federal habeas corpus proceedings remain seemingly endless in their treatment of post-conviction matters. In any event, while a few situations have arisen where Rules 36.4 or 37 were not complied with and due process was therefore not extended, those rules have served, and continue to serve, their purpose.

For the reasons set out above, we reverse and remand this cause for a hearing on the merits of Cherry’s petition. In doing so, we overrule the Fox decision to the extent its application denies procedural due process to defendants who had not been timely advised of their post-conviction remedy under Rule 36.4, when that rule was in effect.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. Under this court’s decision in Fox v. State, 309 Ark. 619, 832 S.W.2d 244 (1992) (per curiam), Cherry’s petition for Rule 37 relief was filed in 1995 and was untimely. It was filed more than six years after his conviction in 1989. It was filed more than three years after our decision in Fox v. State was handed down. True, a petition for habeas corpus relief was pending, but Cherry’s lack of diligence in pursuing any post-conviction remedy in state court is patent and obvious.

The Eighth Circuit Court of Appeals in Easter v. Endell, 37 F.3d 1343 (8th Cir. 1994), held that the post-conviction procedures evinced in Fox were not adequate to bar federal habeas corpus relief. Primarily suspect was the retroactive application of the Rule 37 remedy endorsed in Fox. The Court of Appeals concluded that because no state forum was available to hear Easter’s claims under Fox, federal habeas corpus proceedings would proceed.

The same conclusion should apply to this case. Under state law, Cherry’s right to post-conviction relief is foreclosed by Fox v. State and, beyond that, by Cherry’s failure to pursue state remedies even after the Fox decision. Under the reasoning of Easter v. Endell, a foreclosure of state remedies does not bar federal habeas corpus relief under 28 U.S.C. § 2254 (1994). I would affirm the trial court’s decision which has the practical effect of allowing the matter to continue on the federal track.

For that reason, I respectfully dissent.

       Cherry also cites another case, Robinson v. Norris, 60 F.3d 457 (8th Cir. 1995), for the proposition that, even if Cherry had been advised of his rights under Rule 36.4, he would then have been entitled to appointment of separate counsel. We need not reach that issue here, since he is afforded his post-conviction hearing for other reasons. Nonetheless, we would say that, if Robinson stands for the proposition Cherry offers it, that decision would, in our view, be quite suspect.


author: Donald L. Corbin, Justice.

text:
    Phil STRATTON v. ARKANSAS STATE HIGHWAY COMMISSION
    96-58
    917 S.W.2d 538
    Supreme Court of Arkansas
    Opinion delivered March 18, 1996
    Appellant, pro se.

      Robert L. Wilson, Chief Counsel, and William L. Wharton, Staff Att’y, for appellee.
   Donald L. Corbin, Justice.

Appellant, Phil Stratton, appeals the amended order of the Faulkner County Circuit Court, filed on November 15, 1995, granting the motion to dismiss of appellee, Arkansas State Highway Commission, for the reason that appellant’s suit against a constitutional agency of the State of Arkansas is an impermissible suit against the State. Appellant, who is an attorney, commenced this action against a former client, Harve Newton, and appellee. Appellant seeks judgment for his contingency fee for legal services rendered to Mr. Newton in a separate action that was instituted by Mr. Newton against appellee and was settled by appellee’s cash payment directly to Mr. Newton. Appellant’s claim against Mr. Newton, now deceased, was revived in the name of the special administrator and remains outstanding. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(1). We do not reach the merits of this appeal because the judgment of the trial court does not comply with Ark. R. Civ. P. 54(b).

Although the parties do not raise this issue, compliance with Rule 54(b) is a jurisdictional matter which this court is required to raise sua sponte. Reeves v. Hinkle, 321 Ark. 28, 899 S.W.2d 841 (1995). Rule 54(b) provides that, when multiple claims or multiple parties are involved, the trial court may direct the entry of a final judgment as to one or more, but fewer than all of the claims or parties “only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment.” Rule 54(b) provides that, in the absence of such determination and direction, any order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or the parties.

Here, the trial court entered judgment for appellee only. The trial court’s order, as abstracted, reads as follows:

9.
AMENDED ORDER OF DISMISSAL
On November 15, 1995 the court below entered its amended order of dismissal pursuant to Rule 54 (b) Arkansas Rules of Civil Procedure dismissing appellee as a party defendant for the reason appellant’s suit as to appellee was an impermissible suit against the state.

Plainly, the order fails to set forth the requisite express determination, supported by specific factual findings, that there is no just reason to delay the entry of a final judgment. We have previously held that, where no such determination is made, we will dismiss the appeal for noncompliance with Rule 54(b). Barnhart v. City of Fayetteville, 316 Ark. 742, 875 S.W.2d 79 (1994). We have repeatedly held that, where the abstracted order fails to set forth specific factual findings supporting the trial court’s judgment, we will dismiss the appeal for noncompliance with Rule 54(b). E.g., Reeves, 321 Ark. 28, 899 S.W.2d 841; Wormald U.S., Inc. v. Cedar Chemical Corp., 316 Ark. 434, 873 S.W.2d 152 (1994); Davis v. Wausau Ins. Co., 315 Ark. 330, 867 S.W.2d 444 (1993); Franklin v. Osca, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992). We must rely upon the abstracted order because, “as we have often explained, there is only one record and there are seven members of this court. The seven of us will not attempt to use one record.” Reeves, 321 Ark. at 30, 899 S.W.2d at 842.

Thus, we dismiss the appeal without prejudice to refile it at a later date, and remand the case to the trial court for further proceedings. Reeves, 321 Ark. 28, 899 S.W.2d 841; Barnhart, 316 Ark. 742, 875 S.W.2d 79.

Appeal dismissed.


author: Robert L. Brown, Justice. Glaze, J., Robert H. Dudley, Justice,

text:
    Samuel Willie OLIVER v. STATE of Arkansas
    CR 95-30
    918 S.W.2d 690
    Supreme Court of Arkansas
    Opinion delivered March 18, 1996
    [Petition for Rehearing dismissed April 22, 1996.]

      Morehead & Morehead, by: Robert F. Morehead, Esq., for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Samuel Willie Oliver raises two points in his appeal of four convictions for delivery of crack cocaine. He first contends that he was deprived of effective assistance of counsel and did not waive such. He, secondly, urges that his due process rights were violated owing to lack of information about the arresting officer’s medical condition. Neither point has merit, and we affirm.

Samuel Oliver was charged with four counts of delivery of crack cocaine. The State’s principal witness was an undercover investigator, Thomas Washington, who made the four drug purchases from Oliver. Officer Washington later became ill. He originally suffered from environmental encephalitis and multiple brain aneurysms. He also suffered from sarcoidosis, a disease in which lesions develop throughout the body. Oliver tried to discover Officer Washington’s medical records, and his request was denied by the trial court.

Prior to trial, Oliver retained four different attorneys for his defense, and each one was terminated at his request. The last termination of counsel occurred at the omnibus hearing before trial commenced, where Oliver announced his intention to proceed pro se. The following colloquy occurred between Oliver and the trial court:

SAM OLIVER: I’m doing my own pro se.
JOE OLIVER: He’s doing his own pro se.
SAM OLIVER: I filed my own motions already.
JOE OLIVER: And he subpoenaed —
SAM OLIVER: Thomas Washington.
JOE OLIVER: — Thomas Washington, and we have a copy of the subpoenas right here, both of them.
COURT: Well, I’ve got to — to recommend you not do this, Mr. — both Mr. Olivers, you know.
SAM OLIVER: I want to represent —
COURT: You’re proceeding by yourself and think you’re — as I’ve told you before, I think that dangerous to do that.
COURT: Well, I can’t force you to have an attorney. You see, I can’t force one on you and I think it’s against your better interest to do that, but I can’t make you —
SAM OLIVER: I’m prepared —
COURT: — have an attorney.
SAM OLIVER: I’m prepared for the case today.
COURT: At the trial of this case, I will still have an attorney sitting at the counsel table in case you need one.
SAM OLIVER: No, I don’t think so, Your Honor, ‘cause —
COURT: Well, I think so we will. We will have an attorney sitting at the counsel — you don’t have to use him.
COURT: You can ignore him. That’s your preroga^ tive, but there will be one available for you.
Okay, Mr. Smedley, [attorney], I’m going to relieve you. These gentlemen don’t want your services.
SMEDLEY: Thank you.
COURT: That’s against my advice, once again for the record, —
SMEDLEY: It’s against my advice, too.
COURT: — but they don’t have to — they don’t have to have an attorney.

The trial court permitted Oliver to proceed pro se, and standby counsel played an active role in the trial. Oliver was found guilty on all four counts and received a cumulative sentence of twenty years. He appealed his conviction on the basis of insufficiency of the evidence, and the Court of Appeals upheld it in an unpublished opinion. Denial of counsel was not an issue on appeal.

Oliver next filed a petition for relief under Ark. R. Crim. P. 37. He alleged in his petition that he was denied his Sixth Amendment right to an attorney and was forced to proceed pro se. He also alleged that the State withheld essential evidence (Washington’s medical history) in violation of Ark. R. Crim. P. 17 and Brady v. Maryland, 373 U.S. 83 (1963), which effective counsel would have obtained. A hearing was held and following that proceeding, the trial court denied the petition and made the following finding, among others:

5. The defendant was not denied the effective assistance of counsel. The defendant knowingly and voluntarily elected to proceed to trial pro se after being cautioned extensively about doing so by the court. Competent counsel was nonetheless appointed to accompany defendant to trial, was available throughout trial and to the extent called upon by the defendant performed competently and effectively.

No specific ruling was made on whether failure to obtain Officer Washington’s medical records constituted ineffective counsel. Oliver now appeals.

For his first point, Oliver argues that the trial court erred in failing to conduct an inquiry into his financial condition in connection with his ability to hire counsel and, thus, deprived him of the right to have appointed counsel. The State’s initial response is that this argument is procedurally barred because (1) it could have been raised on direct appeal, and (2) it is not an argument cognizable under Rule 37.

This court has previously considered Rule 37 appeals dealing with the issue of denial of counsel. See Costillo v. State, 292 Ark. 43, 728 S.W.2d 153 (1987) (direct appeal not perfected); Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986) (direct appeal not perfected); Leak v. Graves & State, 261 Ark. 619, 550 S.W.2d 179 (1977). Here, Oliver’s argument is that had the trial court inquired into his financial condition, counsel might well have been appointed for him at no expense. The implication is that he did not know that he might qualify for counsel as an indigent, and the inquiry by the court would have alerted him to that fact.

We are troubled by the fact that the denial of counsel under the Sixth Amendment is an issue more appropriately raised on direct appeal. See, e.g., Deere v. State, 301 Ark. 505, 785 S.W.2d 31 (1990). We can perceive of no good reason for permitting a defendant to pursue a direct appeal on unrelated grounds while saving denial of counsel for Rule 37 relief and as “insurance” in the case of an adverse appellate decision. In this case, Oliver knew what his counsel status was at trial and to the extent his Sixth Amendment rights were impaired, this should have been raised on direct appeal. Instead, Oliver contended in his direct appeal that evidence was insufficient for his conviction. This scenario should not be allowed to transpire. We hold that the issue of denial of counsel must be raised on direct appeal or be waived.

By the same token, the caselaw cited above more than suggests that denial of counsel may be raised in a Rule 37 petition. To the extent the cases stand for this proposition, Costillo v. State, 292 Ark. 43, 728 S.W.2d 153 (1987); Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986); and Leak v. Graves & State, 261 Ark. 619, 550 S.W.2d 179 (1977) are overruled.

In overruling these cases, we must consider whether our requirement that this issue be raised on direct appeal should be applied prospectively. We have held that when our cases appeared to go both ways on when an appeal from a denial of a motion to transfer to juvenile court should be taken, it would be unconscionable to deny or foreclose an appellant the right to appeal. Hamilton v. State, 320 Ark. 346, 896 S.W.2d 897 (1995). We conclude that fairness dictates a prospective application of our holding. Oliver could justifiably have relied on the cases now overruled. See Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986). Recently, we overruled caselaw which had held that failure to preserve the issue of insufficiency of the evidence was not grounds for Rule 37 relief. See Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995) (per curiam). We applied the Thomas decision prospectively. We do the same in the case before us.

We next turn to the merits of Oliver’s first point. The Sixth and Fourteenth Amendments to the United States Constitution guarantee that any person brought to trial in any state or federal court must be afforded the fundamental right to assistance of counsel before that person can be validly convicted and punished by imprisonment. Faretta v. California, 422 U.S. 806 (1975); Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995); Kincade v. State, 303 Ark. 331, 796 S.W.2d 580 (1990). It is also well established that an accused has a constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. Faretta v. California, supra; Daniels v. State, supra; Deere v. State, 301 Ark. 505, 785 S.W.2d 31 (1990). But every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Daniels v. State, supra; Kincade v. State, supra; Philyaw v. State, supra. The burden is on the State to show that an accused voluntarily and intelligently waived his fundamental right. Daniels v. State, supra; Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1989). Determining whether an intelligent waiver of the right to counsel has been made depends in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused. Daniels v. State, supra; Gibson v. State, 298 Ark. 43, 764 S.W.2d 617, cert. denied 491 U.S. 910 (1989).

Oliver claims that he did not voluntarily and intelligently waive his right to counsel. He was forced to go to trial pro se, he contends, because he could not afford another attorney and because the trial court failed to inquire into his financial condition or to inform him that he could have had counsel appointed. This court stated in Kincade v. State, supra, that the trial court must inquire of an accused’s ability to retain counsel, and if the accused is an indigent, counsel must be appointed for him. Ark. R. Crim. P. 8.2. The trial court must do more than just make an inquiry. The court must explain to the accused that he is entitled, as a matter of law, to an attorney and must question him to see if he can afford to hire counsel. Gibson v. State, supra.

The present case exhibits deficiencies in the necessary inquiry into the risk of Oliver’s representing himself. Certainly, Oliver’s financial capability to hire counsel was not explored. But one paramount feature distinguishes this case. Oliver had standby counsel throughout his trial who not only advised him but who actively represented him during most of the proceeding. With the exception of the initial cross-examination of Thomas Washington, standby counsel cross-examined each state witness. Counsel also made objections during the State’s case and presented the motion for directed verdict following the State’s case. As part of Oliver’s defense, counsel recalled Officer Washington as his first witness and examined him, as well as the remaining six defense witnesses. Counsel also made the closing argument. Thus, it appears that early on in his trial, Oliver effectively relinquished representation to his standby counsel.

In short, this is not a case where standby counsel did nothing. See Kincade v. State, supra; Philyaw v. State, supra. Rather, the situation bears some similarity to Calamese v. State, 276 Ark. 422, 635 S.W.2d 261 (1982), which offers some guidance. In Calamese, after three continuances to allow the defendant to retain counsel, the trial court proceeded to trial, though the defendant was without counsel. The court appointed two attorneys to assist the defendant on the morning of the trial. Though the defendant was convicted, counsel performed an active role at trial. The defendant argued on appeal that the record did not reflect a voluntary or intelligent waiver. We stated:

It is true there is nothing in the record showing the trial court made any inquiry into appellant’s attempted waiver of counsel, and if she had been permitted to act as her own counsel we would be hard-pressed to deny the argument, as the State has the burden of showing a voluntary and intelligent waiver of counsel. Jackson v. State, 249 Ark. 653, 460 S.W.2d 319 (1970), and United States v. Dujanovic, 486 F.2d 182 (1973). But we are unwilling to sustain the argument where the appellant was not left to represent herself, but was capably represented throughout the trial. Nowhere in the record does it appear that she was called on to represent herself or left unrepresented at any stage of the proceedings, trial or pretrial. Thus, the only conceivable impediment to the appellant is the fact that trial counsel were appointed for her on the morning of trial. However, no argument is offered on that score and in view of the repeated opportunities given her to employ her own counsel, which she had the means and disposition to do, we find no prejudicial error mandating another trial. The circumstances of each case must be examined in their entirety in determining whether a defendant has been adequately represented and on that basis we can reject appellant’s argument. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975); Jackson v. State, supra; Johnson v. Zerbst, 304 U.S. 458 (1938).

Calamese, 276 Ark. at 425, 635 S.W.2d at 262.

It is true that here, unlike the situation in Calamese, Oliver testified at the Rule 37 hearing that he had no money to hire another attorney. He also cross-examined the first State witness himself. But following that, he took full advantage of his standby counsel by allowing him to examine witnesses, make motions and objections, and conclude with a closing argument. We admit to having serious concerns about standby counsel’s being appointed the day of the trial and, thus, having no knowledge of the case, which was also the situation in Calamese. And, as already noted the failure of the trial court to inquire into Oliver’s financial ability to hire counsel was error. Nonetheless, offsetting these concerns are two facts — (1) Oliver was adamant in wanting to proceed pro se, making no reference to a destitute status, and (2) counsel did more than stand by but, rather, provided active representation. There is, too, the consideration that an accused has the constitutional right to represent himself, which Oliver invoked. Under the totality of these circumstances, though the trial court erred in not inquiring into Oliver’s financial situation, we would be hard put to hold that Oliver was denied his right to counsel or that the trial court’s finding on this point, following a Rule 37 hearing, was clearly erroneous. See Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995); see also Wolfs v. State, 255 Ark. 97, 498 S.W.2d 878 (1973).

This case differs from our recent holding in Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995). In Daniels, the defendant had elected to represent himself with standby counsel available. After the State called its first witness, Daniels was removed from the courtroom, and his former counsel went to the trial judge’s chamber and did not participate in the trial. We observed that Daniels was not represented at his trial, and there was no proof of an appropriate waiver. We further emphasized that no inquiry into the risks of proceeding pro se had been made. We held that it was error for Daniels to represent himself without the proper inquiry by the court. Though not determinative, we also took note of the fact that the State conceded error due to absence of counsel. Those facts are far different from what we have before us today.

Oliver next contends that his defense was hampered because the State had not furnished him information of Officer Washington’s medical condition pursuant to his motion and as Ark. R. Crim. P. 17 requires. He argues that both retained counsel and standby counsel were not effective in pursuing this matter. We need not address this point. The trial court did not specifically rule on this issue when denying the petition for Rule 37 relief, and we cannot determine from the court’s order whether it was considered or decided. It was Oliver’s obligation to obtain a ruling on this point in order to preserve the issue for appeal. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). This was not done.

Affirmed.

Dudley and Newbern, JJ., dissent.

Glaze, J.,

concurring. In my view, the appellant voluntarily, knowingly and intelligently waived his right to the assistance of counsel. Nonetheless, the trial court still appointed appellant an attorney who effectively represented him at trial. I would affirm for these reasons alone.

Roaf, J., concurs.

Robert H. Dudley, Justice,

dissenting. Appellant was charged with four felonies. He employed a succession of four attorneys, but for various reasons discharged each of them. He appeared with his fourth attorney at an omnibus hearing and informed the trial court that he wished to discharge the attorney and to represent himself. The trial court did not make a meaningful inquiry into appellant’s ability to employ new counsel, did not make a full inquiry into appellant’s ability to represent himself, did not determine whether appellant made a knowing and intelligent waiver of counsel, but still allowed the attorney to withdraw. The trial court stated that standby counsel would be appointed at trial, but left appellant to represent himself at the omnibus hearing. Immediately before the trial began, appellant was again left to represent himself when the trial court heard and granted the State’s motions to quash subpoenas issued on behalf of appellant. As the trial began, the trial court appointed standby counsel. There has been no showing by the State that standby counsel had notice that he was going to be appointed, that he investigated the case, interviewed witnesses, or discussed the case with appellant. The record does not show that standby counsel participated in voir dire or the selection of the jury. Appellant personally conducted cross-examination of the State’s first and most important witness. Subsequently, standby counsel represented appellant. Appellant was convicted and sentenced for each of the four felonies. He filed a petition for postconviction relief. The trial court denied relief and the majority opinion affirms the denial of relief. I dissent.

In his first point of appeal, appellant contends that the trial court (1) failed to question him about his ability to employ counsel and (2) failed to fully explain the disadvantages of representing himself, and, as a consequence, he did not knowingly and intelligently waive assistance of counsel. The argument has merit.

We recently decided a case with facts that are comparable to the case at bar. In Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995), the defendant and his attorney appeared before the trial court, and the defendant informed the trial court that he wished to represent himself. The trial court stated, “I think it’s a mistake not having Mr. Gibbons [counsel] with you there, but that’s your decision” and “there are procedures that we are going to follow that I suppose you don’t understand in selecting a jury.” Id. at 370, 908 S.W.2d at 639. The trial court informed the defendant that his counsel would remain available, but allowed the defendant to represent himself. Id. The defendant represented himself through jury selection and until the State’s first witness was called. At that time, the defendant became unruly and was removed from the courtroom. In reversing because the defendant did not knowingly and intelligently waive his right to counsel we wrote:

The Sixth and Fourteenth Amendments to the Constitution of the United States guarantee that any person brought to trial in any state or federal court must be afforded the fundamental right to assistance of counsel before he can be validly convicted and punished by imprisonment. Faretta v. California, 422 U.S. 806 (1975); Kincade v. State, 303 Ark. 331, 796 S.W.2d 580 (1990). It is well established that an accused may make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. Deere v. State, 301 Ark. 505, 785 S.W.2d 31 (1990). However, every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Kincade v. State, supra; Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). The burden is upon the state to show that an accused voluntarily and intelligently waived his fundamental right to the assistance of counsel. Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1989).
In Faretta v. California, supra, the United States Supreme Court stated that “[although a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” (quoting Adams v. United States ex rel. McCann, 317 U.S. 269 (1942)). In Gibson v. State, 298 Ark. 43, 764 S.W.2d 617, cert. denied, 491 U.S. 910 (1989), we relied upon Patterson v. Illinois, 487 U.S. 285 (1988), to conclude that the constitutional minimum for a knowing and intelligent waiver of the right to counsel requires that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forego the aid of counsel. Further, we have stated that determining whether an intelligent waiver of the right to counsel has been made depends in each case upon the particular facts and circumstances, including the background, the experience and conduct of the accused. Gibson v. State, supra. To establish a voluntary and intelligent waiver, the trial judge must explain to the accused that he is entitled as a matter of law to an attorney and question him to see if he can afford to hire counsel. Id. The judge must also explain the desirability of having the assistance of an attorney during the trial and the drawbacks of not having an attorney. Id. The last requirement is especially important since a party appearing pro se is responsible for any mistakes he makes in the conduct of his trial and receives no special consideration on appeal. Id.
The appellant was not represented by counsel at his trial and there is no showing on the record that he knowingly and intelligently waived this right. The trial court commented that the appellant appeared to be well versed in the law; however, no real inquiry was made. In fact, the state concedes there was no inquiry. The trial court did not explain the risks or the consequences of proceeding without counsel. See Gibson v. State, supra; Murdock v. State, 291 Ark. 8, 722 S.W.2d 268 (1986). Accordingly, we hold the trial court erred by allowing the appellant to represent himself without making a proper inquiry as required by Faretta v. California, supra.

Daniels v. State, 322 Ark. at 372-73, 908 S.W.2d at 640-41.

The concurring opinion agreed. It provides that the trial judge was “required to ensure appellant knowingly and intelligently waived counsel, once appellant terminated counsel and chose to represent himself.” Daniels v. State, 322 Ark. 367, 375, 908 S.W.2d 638, 642 (1995) (Glaze, J., concurring).

The same reasoning is applicable to the case at bar. Here, there was no inquiry into appellant’s ability to employ counsel, no inquiry into his background or experiences, and no inquiry into his familiarity with criminal law. The record does not reflect that defendant knew what he was doing or that he was aware of the dangers of self-representation. Indeed, the State, in its brief, refers to the adage that one who represents himself has a fool for a client. In sum, the record does not show that defendant knowingly and intelligently waived his fundamental right of assistance of counsel.

The majority opinion admits, “The present case exhibits deficiencies in the necessary inquiry into the risk of Oliver’s representing himself,” and “We admit to having serious concerns about standby counsel’s being appointed the day of the trial and, thus, having no knowledge of the case. . . .” It further admits, “[T]he failure of the trial court to inquire into Oliver’s financial ability to hire counsel was error.” (Emphasis supplied.) Thus, the majority opinion admits that the trial court committed two Sixth Amendment errors involving right to counsel, but, under a totality-of-the-circumstances test, affirms the trial court. The majority opinion reaches the wrong result because it applies the wrong standard.

It is now well settled that Sixth Amendment violations that cast doubt on the fairness of the entire trial process can never be considered harmless. See Holloway v. Arkansas, 435 U.S. 475 (1978) (conflict of interest in representation throughout the proceeding); Gideon v. Wainwright, 372 U.S. 335 (1963) (deprivation of counsel throughout the proceeding); White v. Maryland, 373 U.S. 59 (1963) and Hamilton v. Alabama, 368 U.S. 52 (1961) (absence of counsel from arraignment proceeding that affected the entire trial). The Chapman harmless-error test could not be applied in the foregoing cases because the scope of the violation could not be discerned from the record, and any inquiry into its effect on the outcome of the case would be purely speculative. Satterwhite v. Texas, 486 U.S. 249 (1988).

The Chapman harmless-error test is authorized only in those Sixth Amendment cases where the violation is limited to the admission of evidence obtained without counsel. Satterwhite v. Texas, 486 U.S. 249 (1988). The error in this case involves more than the admission of evidence. Indeed, the majority opinion confesses that the trial court committed errors involving inquiry about, and appointment of, counsel. It is settled that such error cannot be considered harmless, and there is no authority for the totality-of-the-circumstances test utilized in the majority opinion. Reversal and remand is mandated under the Sixth Amendment cases decided by the Supreme Court.

Newbern, J., joins in this dissent.


author: Andree Layton Roaf, Justice.

text:
    MARINE SERVICES UNLIMITED, INC. v. Dennis RAKES and Karen Rakes
    95-1013
    918 S.W.2d 132
    Supreme Court of Arkansas
    Opinion delivered March 18, 1996

      Everett, Shemin, Mars & Stills, by: David D. Stills and John C. Everett, for appellant.

      Stephen Lee Wood, P.A., by: Stephen Lee Wood, for appellees.
   Andree Layton Roaf, Justice.

Marine Services Unlimited, Inc. appeals from the chancery court’s award of judgments to Dennis Rakes, a shareholder and former president, for wrongful termination and to Karen Rakes, also a shareholder, for unpaid wages. The corporation also appeals from the chancellor’s failure to award judgment for certain personal expenses paid by the Rakes from corporate funds without proper authorization. We affirm the judgment of the chancellor, but modify the award as to Dennis Rakes.

Facts

Appellant Marine Services Unlimited, Inc., (MSU) is an Arkansas corporation operating a business in Benton County know as Rocky Branch Marina (marina). Wade Young, Randy Blevins, and appellee Dennis Rakes purchased the business in July 1989. They each paid $50,000 for a one-third interest in the corporation. The corporate minutes of July 12, 1989, reflect a meeting of the Board of Directors in which Dennis Rakes was elected president, Randy Blevins was elected Vice President, and Wade Young was elected Secretary. Karen Rakes was later added to the stock certificate of Dennis Rakes.

Dennis Rakes had a plumbing business at the time, Randy Blevins was retired, and Wade Young was living in Memphis, Tennessee, and working as a pilot for Northwest Airlines. Dennis Rakes was also selected as manager of the business, at a salary of $2500.00 per month; he later closed his plumbing business and worked solely at the marina. Karen Rakes was selected by the shareholders to run the office at the marina. The Rakes managed and operated the marina from June 1989 until October 1992, essentially 365 days per year. During that time, the Rakes were on call 24 hours a day; the telephone lines from the marina were transferred to their residence after hours. Karen Rakes worked without pay for most of the three years.

In 1992, Dennis Rakes injured himself at the marina and aggravated a preexisting medical condition. Mr. Rakes was unable to attend to the business and spent much of the summer bedridden, while Karen Rakes ran the marina.

Sometime during the first week of October 1992, Young and Blevins became concerned about the state of affairs at the marina. Young came to the Rakes’ home, noted Dennis Rakes’ condition, and obtained five or six grocery sacks full of receipts, checks, cash, and other material relating to the business. Young and Blevins held an emergency meeting of the MSU board of directors on October 12, 1992, with the MSU accountant and attorney present, cited a list of failures on the part of Dennis Rakes, and removed him as President and manager of MSU. They also voted to continue paying Rakes’ salary of $2500 net per month; Young and Blevins then assumed control of the business. Neither of the Rakes were given notice of the meeting.

Young and Blevins met again on October 23, 1992, as shareholders, without giving notice to the Rakes. As a “majority” of shareholders, they voted to remove Dennis Rakes as President of MSU and to replace him with Blevins. Dennis Rakes received notice of and attended a shareholders meeting on January 18, 1993. He acknowledged learning at this meeting that he had been removed as manager and president of MSU. He received his salary from October through December 1992 although he performed no services for MSU during the period.

On May 17, 1993, MSU filed a complaint in the Chancery Court of Benton County against. Dennis and Karen Rakes, alleging that Dennis Rakes, in his capacity as manager, acted in a negligent and haphazard manner, that the Rakes had converted corporate property to their personal use, and had failed to account for approximately $60,000 of corporate money. The Rakes denied all allegations in the complaint and filed a counterclaim alleging that Karen Rakes was owed for unpaid wages and that Dennis Rakes was entitled to damages for wrongful discharge. The Rakes also sought compensation for the trade-in-value of two personal vehicles used in the purchase of two corporate vehicles and the value of certain personal property not returned to Karen Rakes.

Chancellor Don Huffman found that MSU had failed to meet the burden of proof in its claims against the Rakes, that Dennis Rakes was wrongfully discharged from his position as President and manager of MSU, that Karen Rakes was entitled to judgment for unpaid wages, and that the Rakes were entitled to judgment for conversion of their personal vehicles and personal property. Dennis Rakes was awarded judgment in the amount of $37,852.22, for his salary plus health-insurance premiums from January 1993 to the time of trial in June 1994, less his earnings from other employment during that period. Karen Rakes was awarded judgment for unpaid wages for 1990, 1991, and 1992 totalling $59,993. The Rakes were awarded judgment of $5900 for the value of their vehicles and personal items.

1. Wrongful discharge

MSU first argues that the trial court erred in determining that Dennis Rakes was wrongfully discharged from his position as manager and in awarding him damages for his wrongful discharge. The by-laws of MSU required that at least three days written notice of special board meetings be given to each member. This requirement also follows the notice requirement found in Ark. Code Ann. § 4-26-805 (Repl. 1991). Dennis Rakes did not receive notice of the October 12, 1992 board meeting; neither of the Rakes received notice of the October 23, 1992 shareholders meeting.

In awarding judgment to Dennis Rakes for wrongful termination, the trial court correctly stated that corporate actions taken at shareholders’ and board of directors’ meetings are illegal and invalid if absent shareholders and directors had no notice of the meetings. However, the trial court further stated that “termination or discharge of employment is illegal or wrongful if it violates some well settled public policy” and that the failure to give notice to Dennis Rakes violated Arkansas statutes and therefore violated public policy in Arkansas. The order also stated that Dennis Rakes was entitled to damages for breach of contract.

On appeal, this court reviews chancery cases de novo and will reverse the findings of the chancellor only if those findings are clearly erroneous. Sunbelt Exploration v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995). It is also well settled that we will affirm the trial court where it reaches the right result, even though it may have announced the wrong reason. Mountain Home Sch. Dist. v. T.M.J. Builders, 313 Ark. 661, 858 S.W.2d 74 (1993).

With regard to Rakes’ employment as manager, this court has often cited the general rule that “when the term of employment in a contract is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at will and without cause.” City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 154 (1994). “Generally, ‘employment is held only by mutual consent, and at common law the right of the employer to terminate the employment is unconditional and absolute.’ ” Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991) (quoting Griffin v. Erickson, 211 Ark. 433, 642 S.W.2d 308 (1982). However, we have acknowledged that an employer should not have an absolute and unfettered right to terminate an employee for an act done for the good of the public. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988).

In Sterling, we recognized four exceptions to the employment-at-will doctrine, stating:

Arkansas law would recognize at least four exceptions to the at-will doctrine, excluding implied contracts and estoppel. These are: (1) cases in which the employee is discharged for refusing to violate a criminal statute; (2) cases in which the employee is discharged for exercising a statutory right; (3) cases in which the employee is discharged for complying with a statutory duty; and (4) cases in which employees are discharged in violation of the general public policy of the state.

Sterling, supra (quoting Scholtes v. Signal Delivery Serv., Inc., 548 F.Supp. 487 (W.D. Ark. 1982)). Accordingly, this court held:

Therefore, we hold that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well established public policy of the state. This is a limited exception to the employment-at-will doctrine. It is not meant to protect merely private or proprietary interest.

Sterling, supra.

We have further stated that public policy has been contravened “when the reason alleged to be the basis for a discharge is so repugnant to the general good as to deserve the label ‘against public policy.’” Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991).

MSU submits that the charge brought against Mr. Rakes at the special meetings held in October 1992 regarding his failure to properly manage the affairs of the corporation was the “reason” for his termination. By holding a majority of shares in MSU, Young and Blevins certainly had the power to terminate Rakes for the reasons given, or for no cause.

However, it is the manner of the termination, and not the reason for it that invalidated the actions taken by MSU at the October meetings. Actions taken at a shareholders’ meeting of which absent shareholders had no notice are illegal. See Red Bud Realty Co. v. South, 96 Ark. 281, 131 S.W. 340 (1910). Further, actions of a majority of the members of a board of directors are invalid if absent directors had no legal notice of the meetings. See Red Bud Realty Co., supra; Bank of Little Rock v. McCarthy, 55 Ark. 58, 14 S.W. 759 (1892).

Although Dennis Rakes was illegally terminated at the October, 1992 board and shareholders’ meetings, he received notice of a shareholders’ meeting in January 1993 and attended this meeting. At trial, Rakes testified that he continued in his position with the corporation until the January 1993 meeting. Blevins testified that Rakes understood that he had been removed as President of MSU and did not voice any objection to his removal at the January 1993 meeting. Rakes also testified to receiving three months salary for October through December 1992, even though he was no longer serving as manager of the marina. Here, Rakes accepted the three months salary payments and did not protest his removal at the January 1993 meeting. His silence or acquiescence in the actions of Blevins and Young amounts to a ratification. Brady v. Bryant, 319 Ark. 712, 894 S.W.2d 144 (1995); Sims v. First Nat’l Bank, Harrison, 267 Ark. 253, 590 S.W.2d 270 (1979).

The trial court erred in awarding Rakes judgment for his salary to the date of trial. We affirm the judgment for wrongful discharge, but reduce it to the sum of $3,323.04 for his salary and health insurance premium for the month of January 1993.

2. Back wages

MSU also contends that the trial court erred in awarding unpaid wages to Karen Rakes because she failed to keep accurate records of the hours she worked, because she is excluded by her management status from coverage under either the Fair Labor Standards Act or the Arkansas Minimum Wage Act, and because the damages awarded were based on speculation and conjecture. This argument fails, for several reasons.

In its ruling on the counterclaim pertaining to Karen Rakes’ unpaid wages, the trial court stated:

Ms. Rakes, was employed at $8.00 per hour but since MSU had a cash flow problem she would not be paid until a later time. Ms. Rakes was never paid and has sued for her wages plus overtime. Ms. Rakes kept no record of her hours worked. Ms. Rakes claims to have worked seven days a week since MSU took over the running of the business plus forty hours per week overtime during the periods of May 1 through September 30 each year. I find that Ms. Rakes worked all but one week in 1990, 1991, and 1992, and that she worked 40 hours per week every week plus 20 hours per week overtime during the period of May 1, through September 30 each year. I find the total wages owed is $64,164.00. I find Defendant’s argument and citations to applicable law to be persuasive.

The trial court did not make a specific finding as to which of the two acts, the Fair Labor Standards Act or the Minimum Wage Act of the State of Arkansas, applied to Karen Rakes’ claim or indeed if either applied. MSU does not dispute that Ms. Rakes worked without being paid. They assert only that Karen Rakes did not prove the number of hours she worked.

The burden of proving damages rests on the party claiming them and the proof must consist of facts, not speculation. Minerva Enter., Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992); Jonesboro Coca-Cola Bottling Co. v. Young, 198 Ark. 1032, 132 S.W.2d 382 (1939).

In this instance, appellee Karen Rakes testified to working at the marina 365 days a year, more than forty hours a week for over three years, most of that time without pay. After hours, the marina’s phones were transferred to her home because the marina received phone calls constantly. Ms. Rakes spent most weekends at the marina on a houseboat because of the hours she worked. Young and Blevins did not take an active role in running the marina until they became concerned about the Rakes’ management of the business. Young, who currently manages the marina, has hired a full time “dock master” and an office manager to assist him in operating the business.

MSU claims that Ms. Rakes was part of the management, administration and ownership of the marina, and is consequently exempted from both the federal and state minimum wage laws as an individual employed in a bona fide executive, administrative or professional capacity. As MSU did not raise this argument below, it is procedurally barred. We have repeatedly stated that we will not consider alleged errors that were not brought to the attention of the trial court. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992). Further, a contention that a business is exempt from the Fair Labor Standards Act coverage is an affirmative defense that is waived if not pleaded. Donovan v. Hamm’s Drive Inn, 661 F.2d 316 (5th Cir. 1981).

MSU also asserts that Ms. Rakes was under a fiduciary duty to accurately account for the number of hours that she allegedly worked at the marina for the past years. However, where employers fail to maintain employment records required by the Fair Labor Standards Act, a lower court can rely upon the employee’s own recollections to determine the number of hours worked for purposes of determining entitlement to unpaid compensation. Mumbower v. H. R. Callicott, 526 F.2d 1183 (8th Cir. 1975).

An employee suing an employer under the Fair Labor Standards Act for unpaid minimum wages or unpaid overtime compensation has the burden of proving that the employee performed the work for which the employee was not properly compensated. Anderson v. MT. Clemens Pottery Co., 328 U.S. 680 (1946). However, we have said that the burden should not be made an impossible hurdle for the employee, and due regard must be given to the fact that the employer has the duty under the act to keep proper records of employment. Id. Also, where an employee produces sufficient evidence to show the amount of work for which the employee was not properly compensated, as a matter of just and reasonable inference, the employer cannot complain that the damages lacked the exactness of measurement that would be possible had the employer kept the records required by the act. Id. Further, the rule that precludes the recovery of uncertain and speculative damages applies only to situations where the fact of damage is itself uncertain. Id. Of course, here it was certain that Ms. Rakes worked for MSU without compensation for almost three years. We cannot say that the trial court erred in awarding judgment to Karen Rakes for unpaid wages.

3. Conversion of Corporate funds

MSU’s final argument is that the trial court erred in not awarding judgment in the amount of the Rakes’ day care expenses, Dennis Rakes’ personal income taxes, and Dennis Rakes’ health insurance premiums paid without proper authorization from corporation funds. We first note that the trial court reduced the judgment for back wages awarded to Karen Rakes by $4171, the exact amount of child care expenses paid from corporate funds. The order stated that “as a matter of equity, [the judgment] should be reduced by $4,171 for unpaid wages . . . .” It is clear that the day care expenses were deducted from the sum awarded Karen Rakes and we need not further consider the point.

There is no dispute that corporate funds were used to pay for the $21,000.00 in tax withholdings for Dennis Rakes, and the premiums on Dennis Rakes’ insurance. However, MSU alleges that it did not know of these payments, while the Rakes allege that Young and Blevins consented to payment of these expenses. Faced with two versions the trial court makes a credibility decision of which witness to believe. Riddick v. Street, 313 Ark. 706, 858 S.W.2d 62 (1993). We cannot say that the trial court’s determination was clearly erroneous.

The Rakes contend that no objections were made to any of the expenses until after Rakes was removed as President and manager of MSU. They further contend that the $21,000 “personal income taxes” are actually the employment and withholding taxes on Mr. Rakes’ salary while President and manager of MSU. The Rakes assert that the corporation agreed to pay him a gross salary of $3200, while MSU argues that the corporation agreed to pay Rakes a gross salary of $2500 and the $700 per month difference amounted to a conversion of corporate funds. Rakes actually received a gross salary of $3200, with $700 withheld as taxes; the $700 per month is the amount in dispute. The minutes of MSU’s October 12, 1992 emergency meeting state that “it is agreed that Dennis should continue to receive his $2500 net salary, as before.” We cannot say that the trial court erred in determining the Rakes were not liable to MSU for conversion of the $21,000.00.

MSU contends that $1998.72 paid for the premiums on Mr. Rakes’ health insurance policy also amounted to a conversion of corporate assets. Once again, MSU argues that it did not know of this expenditure, while Rakes argues that MSU was fully aware of the payments. The trial court determined that MSU did not produce sufficient evidence to warrant an award for conversion. Again we cannot say that the trial court was clearly erroneous in making this finding.

Affirmed as modified.