text:
    John RICHMOND v. STATE of Arkansas
    CR 95-38
    899 S.W.2d 64
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995

      Tom Garner, for appellant.

      Winston Bryant, Att’y Gen., by; David R. Raupp, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

John Richmond was convicted as an habituál offender on charges of escape in the second degree, aggravated robbery, burglary, theft of property, and possession of firearm by a felon. He was sentenced to sixty-five years in prison in addition to the term he was serving. Mr. Richmond seeks a reversal on the ground that the prosecutor improperly referred in closing argument to the fact that Mr. Richmond did not testify at the trial. He also argues he did not receive a proper examination in response to his request for psychological evaluation. Additional arguments are lack of a contra pacem clause in the information and a tainted in-court identification of him by the victim. We hold the prosecutor’s remark was not improper, the argument made here with respect to the mental examination is not to be considered as it was not made to the Trial Court, the contra pacem clause objection was abandoned, and the in-court identification was reliable. We affirm the conviction.

Mr. Richmond and another inmate escaped from the Arkansas Prison Unit located at Calico Rock. Shortly thereafter, two men posing as construction workers entered the home of Gordon Nichols, who lived within a short distance from the prison. The two men, using a knife and Mr. Nichols’ gun, robbed him of $46, his coat, and his car.

On the following morning, in Ozark County, Missouri, officers located Mr. Nichols’ abandoned automobile while investigating the theft of a Lincoln automobile. Later in the morning, Richmond and his companion were stopped while driving a Lincoln in Oklahoma. The Oklahoma State Trooper who made the stop determined that the car was stolen and the two men in the car matched the descriptions of escapees from Arkansas. Mr. Richmond and his companion were arrested, returned to Arkansas, and charged.

1. Identification

Shortly after he was robbed, Mr. Nichols was shown a photograph of one of the escapees by Assistant Warden Jack Yancey. Mr. Nichols identified that person as one of the men who had robbed him. Warden Yancey could not recall whether the photograph he showed to Mr. Nichols was of Mr. Richmond or the other escapee.

Two days after he was interviewed by Warden Yancey, Mr. Nichols was asked to view a photographic lineup. Officer Tommy Cleveland, who prepared the lineup, testified that Mr. Nichols made an immediate identification of Mr. Richmond and the other escapee.

Mr. Richmond moved to suppress both the photographic lineup and the in-court identification. He contended the showing of the single photo to Mr. Nichols, followed by the photographic lineup, violated his right to due process of law as it constituted a suggestive procedure that tainted any later identification of Mr. Richmond and his companion as the perpetrators of the crime. The Trial Court denied the motions. No argument is made to the effect that the identifications were unreliable.

A pre-trial identification does not comply with due process of law when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the criminal. Even if the identification technique used was impermissibly suggestive, however, testimony concerning it is admissible if the identification was reliable. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977).

The factors to be considered in determining reliability are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the prior description; (4) the level of certainty; and (5) the time lapse between the crime and the confrontation. Bishop v. State, supra. We do not reverse a ruling on the admissibility of an identification unless it is clearly erroneous, and we do not participate in the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification.

Warden Yancey did not recall which inmate’s photograph he showed Mr. Nichols; nor is there any additional indication that the photo was of Mr. Richmond. It is thus difficult to conclude with certainty that the lineup procedure was unduly suggestive.

Even if it can be said that the procedure was suggestive, Mr. Nichols made a reliable identification. He testified he could see the faces of the two people who came into his home and there was adequate lighting and nothing to obstruct his vision. Mr. Nichols had sufficient opportunity to view the faces of the robbers. He testified that while he was under the impression that they were construction workers he conversed with them concerning work being done down the road from his home. The decision to admit the in-court identification was not clearly erroneous.

2. Mental evaluation

Dr. Henderson examined Mr. Richmond at the Arkansas State Hospital. The examination was brief, consisting of some elementary questions. Mr. Richmond objected to the report finding him competent and able to assist effectively in his own defense. He moved for appointment of an independent psychologist to conduct an examination. The motion was denied.

Mr. Richmond argues his psychological evaluation was inadequate because no inquiry was made as to whether he was suffering from any mental disease or defect that would have mitigated his sentence.

Arkansas Code Ann. § 5-2-305 outlines the procedures to be followed when the defense of mental disease or defect is raised. Normally, an evaluation performed under this section does not require a second opinion. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994). Mr. Richmond’s primary citation on this point is Starr v. Lockhart, 23 F.3d 1280 (8th Cir. 1994), in which it was held that an additional opinion may be justified when it has been shown that further examination could aid in the defense.

We decline to consider this argument because Mr. Richmond’s abstract of the record does not show that it was presented to the Trial Court. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794, 798 (1993). Even if we were to consider it, we could not reverse on the basis of the Starr decision in which the defendant presented a history of mental illness not even hinted in the record now before us.

3. Contra pacem clause

Article 7, § 49, of the Arkansas Constitution declares that indictments “shall include ‘Against the peace and dignity of the State of Arkansas.’” We have held each count in an indictment must stand on its own, and therefore each must contain the contra pacem clause. Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988). On the day of the trial, Mr. Richmond’s attorney informed the Trial Court that the information was defective for failure to contain a contra pacem clause at the end of each charge and the amended information had no such clause at all. The prosecuting attorney sought to amend the information to include the contra pacem clause at the end of each charge by reading each charge into the record and adding to each, “against the peace and dignity of the State of Arkansas.” The following colloquy then occurred:

TRIAL COURT: Any Response?
DEFENSE: No. Judge, I just made my objection, and if that cured it, well, then —
TRIAL COURT: Well, the court will grant the amendment. I believe the defendant is aware of all the charges that were initially filed and that they were covered by the amendment anyway. And now this does not change it other than just adding the contra pacem clause after each alleged offense.
DEFENSE: Well, I think from reading Caldwell [v. State, 295 Ark. 149, 747 S.W.2d 99 (1988)] that probably if the prosecutor does amend after it is brought to the Court’s attention, that probably satisfies that.

It appears the objection was relinquished as the relief requested was granted; thus we need not pursue the question whether any prejudice resulted. Sweat v. State, 307 Ark. 406, 820 S.W.2d 459 (1991).

4. Prosecutor’s remark

During his rebuttal closing argument, the prosecuting attorney stated:

And I am asking you again, as I have previously done, to return a guilty verdict on each and every one of those charges, and come back in here and let me talk to you about the appropriate sentences to assess on each one of those charges, that the State has met the burden of proof on each and every element, and I have outlined those to you, and the testimony and evidence that has been submitted in here is uncontroverted, uncontroverted.

The defense moved for a mistrial on the basis that the prosecutor had made a comment on Mr. Richmond’s failure to testify.

Mr. Richmond attempts to distinguish cases in which we held that similar comments, such as “the evidence is undisputed,” or “there has been absolutely no testimony to contradict that. . .” did not constitute prejudicial comments on the defendant’s failure to testify.

A prosecutor may mention the fact that the State’s evidence has remained undisputed. For example, in Beebe v. State, 301 Ark. 430, 784 S.W.2d 765 (1990), the prosecutor stated, “I submit to you that the evidence has not been disputed.” In holding that was not an improper comment on the defendant’s failure to testify, the court noted that the remark was not necessarily improper because the state’s evidence could have been disputed by evidence other than by the testimony of the accused. Similarly, Davis v. State, 174 Ark. 891, 298 S.W. 359 (1927), held that the prosecutor’s argument that the State’s evidence was undenied and uncontradicted was merely a comment that the testimony of the witnesses should be believed because it went undisputed. Mr. Richmond argues those comments were held proper because the defense had failed to create a dispute in the evidence through cross-examination. He contends he thoroughly cross-examined the State’s witnesses, thereby creating an evidentiary dispute. He contends, therefore, that the prosecutor’s argument that the evidence went uncontroverted could only be interpreted as a comment on his failure to testify.

We cannot agree that the remark somehow eliminated the cross-examination of the State’s witnesses from the memory of the jurors and thus caused them to focus on the accused’s failure to testify. It is far more likely, as we suggested in the Beebe and Davis cases, that the attention was directed to the fact that no witnesses were presented by the defense to controvert the State’s evidence.

A mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. We do not reverse a decision declining to grant a mistrial absent an abuse of the Trial Court’s broad discretion in considering the motion. Cook v. State, 316 Ark. 384, 872 S.W.2d 72 (1994). There was no such abuse in this case.

Affirmed.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Albert BESHEARS v. STATE of Arkansas
    CR 94-1109
    898 S.W.2d 49
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995
    [Rehearing denied June 26, 1995.]

      D. Paul Petty, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Albert Beshears entered a conditional plea of guilty to one count of possession of crystal methamphetamine with intent to deliver, and under A.R.Cr.P. Rule 24.3(b), he appeals his denial of his motion to suppress. The search in question was of Beshears’s business property in Algoa, Arkansas, where officers recovered 424 grams of crystal methamphetamine in an office building and twenty-two grams in a cellular phone located in a pickup truck.

Beshears first argues that there was no probable cause for issuance of the officers’ search warrant. He claims the officers’ affidavit used to obtain the warrant was based upon one or more confidential informants whose veracity was not verified. He also asserts conclusory statements were contained in the affidavit, giving no factual basis for authorizing a search. We disagree.

In reviewing a trial judge’s ruling on a motion to suppress, this court makes an independent determination based upon the totality of the circumstances, and in reviewing the evidence in the light most favorable to the appellee, we reverse only if the ruling is clearly against the preponderance of the evidence. State v. Mosely, 313 Ark. 616, 856 S.W.2d 623 (1993). In Rainwater v. State, 302 Ark. 492, 494, 791 S.W.2d 688, 689 (1990), the court made the following analysis:

[T]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and the “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding]” that probable cause existed.

On this subject of search and seizure, our Arkansas Rules of Criminal Procedure 13.1(b) provides the following specific requirements for issuing a search warrant:

The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.

Here, investigator Marvin Poe provided an affidavit which the magistrate relied upon in issuing the warrant. In that affidavit, Poe stated that a confidential informant told him that Albert Beshears was selling crystal methamphetamine. He stated that this information matched information he received from other informants in the past. Poe also stated that he received a call from a “concerned citizen” who stated it was common knowledge on the streets that Beshears was dealing drugs from his grain bins in Algoa. Another informant told Poe that Beshears was supplying drugs to several dealers in the county, including Beshears’s brother, Eddie. Officer Poe further stated in the affidavit that he had an informant wear a body mike on two occasions when the informant purchased crystal methamphetamine from Eddie Beshears. Poe heard the conversations of Eddie and the informant when Eddie stated that he had purchased his drugs from Albert; Eddie further said that Albert had gotten in a pound of crystal methamphetamine. The affidavit further related that Poe later received a call from a concerned citizen who stated that he had seen drugs at Albert Beshears’s grain bins and in his main office. Another police officer contacted Poe and stated that he had received information from a confidential source that Albert had approximately two pounds of crystal methamphetamine at a grain dryer in Algoa. During this period and on four separate occasions, Officer Poe conducted a surveillance of Albert Beshears’s property. Poe’s affidavit reflected that Poe had observed a heavy amount of traffic going in and out of the grain bins and shop building located on Beshears’s property. Poe averred that the traffic involved known drug dealers and individuals who had been convicted for drug offenses. Officer Poe also stated that the informant who wore the body mike had given him information that had led to the issuance of three felony warrants for delivery of a controlled substance.

We conclude Poe’s affidavit set forth particular facts bearing on the informants’ reliability, and related the means by which the information was obtained. In addition, the affidavit further provided a substantial basis for a finding of reasonable cause to believe that contraband subject to seizure would be found on Albert Beshears’s property. In sum, Poe’s affidavit showed that Albert Beshears was in the business of selling drugs and was in possession of crystal methamphetamine at his property, specifically his grain bins in Algoa. One, confidential informants reported that Eddie Beshears had stated that Albert was currently selling drugs and was in possession of crystal methamphetamine. Two, the truthfulness of the informants’ information was given strength by Poe’s own hearing of Eddie making the same statement to the informant(s) when the informant(s) were wired for sound. Three, an anonymous caller stated where the grain bins were located, that he had seen approximately two pounds of crystal methamphetamine along with scales and plastic bags, and stated where the drugs were hidden. Four, information from another officer, whose information came from another confidential informant, corroborated that Albert Beshears had about two pounds of crystal methamphetamine in a grain dryer in Algoa. Five, the investigator’s surveillance revealed activity at the grain bins not consistent with a farming operation and included the presence of people coming and going from the grain bins and office area who the investigator knew to have criminal records for possession of drugs or for selling illegal drugs. Examining investigator Poe’s affidavit in the light of the “totality of the circumstances” made known to the magistrate, we conclude that it reveals there was sufficient evidence to provide a substantial basis for the issuance of the warrant, and the lower court should be affirmed. See Massachusetts v. Upton, 466 U.S. 727 (1984); Illinois v. Gates, 462 U.S. 213 (1983).

Beshears’s second point for reversal is that the search warrant obtained by the officers was limited only to the search of his residence, and therefore, the officers’ search of his business property was unlawful. The record reflects that the search warrant issued was based upon Officer Poe’s affidavit which set out detailed directions to the property to be searched. Those directions are as follows:

The undersigned being duly sworn deposes and says that he has reason to believe that on the premises known as that of Albert Beshears, to get to the property you would travel east out of Newport on Highway 14 east until you get to Amagon, Arkansas. At Amagon, Arkansas, you turn right on Highway 37 and travel 3 and 7 tenths miles. You will come to a sign that reads Algoa, Arkansas. Just past this sign is a driveway. Turn right into this driveway and it will go to the rear of a red brick house. Behind the house is a set of grain bins and two shop buildings. One shop is yellow in color and the other is green in color. The grain bins have a beige building in the middle of them that is used as a scale house for the grain bins. There is (sic) two grain bins silver in color on each side of the beige building.
According to the assessment sheets provided by the Jackson County Assessor’s office the lots are 7 and 8 of Algoa’s original town.
This warrant is to include all offices, shop buildings, storage buildings, grain bins, control rooms, tractors, combines, trucks, trailers, cars, and any other equipment on the property known as the Albert Beshears.

In issuing the warrant to search Beshears’s property, the magistrate relied upon Poe’s affidavit and the directions above, but the warrant, itself, provided, “You are Hereby Commanded to search forthwith the residence in Exhibit ‘A’ for the property herein described . . . .” (Emphasis added.) Exhibit A contained the same directions set out in Poe’s affidavit above but it omitted the paragraphs that mentioned “all offices, shop buildings, grain bins, control rooms” and “other equipment on property known as the Beshears’s property.” Because of this omission and the fact that Beshears’s actual residence was located a distance from his business property, Beshears claims that the officers’ search exceeded the authority granted by the warrant. We find no merit in this contention.

In Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977), Baxter attacked the description of the property in the warrant as “the house occupied by Faron Baxter” as being too vague. This court upheld the warrant, stating that while it was true that the warrant itself was vague, the affidavit attached to the warrant described the location of Baxter’s property with great particularity. In the present case, Poe’s affidavit supporting and attached to the issued warrant clearly described the location of Beshears’s business property and the places thereon containing the contraband. Consistent with the court’s decision in Baxter, other courts have held that a warrant that fails to describe the area to be searched with sufficient particularity can be cured by an accompanying affidavit if the affidavit is attached to the warrant and the warrant incorporates the affidavit by reference. See U.S. v. Gahagan, 865 F.2d 1490 (6th Cir. 1989), cert. denied, 492 U.S. 918 (1989). Here, the warrant Beshears challenges specifically referred to Poe’s affidavit being attached.

We point out that the requirement of particularity of describing the location and place to be searched is to avoid the risk of the wrong property being searched or seized. Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987). This court stated that the test for determining the adequacy of the description of the place to be searched under a warrant is whether it enables the executing officer to locate and identify the premises with reasonable effort and whether there is any likelihood that another place might be mistakenly searched. Costner v. State, 318 Ark. 806, 887 S.W.2d 533 (1994). The risk of misidentification is minimized when the same law enforcement officer who applies for the warrant executes it. Id. And in determining whether a particular description is sufficient under this test, courts must use common sense and not subject the description to hypercritical review. Watson, 291 Ark. 358, 724 S.W.2d 478.

Here, Officer Poe not only conducted a four-day surveillance of Beshears’s business property where the contraband was alleged to be, he also prepared the affidavit, acquired the search warrant and executed it, along with other officers. There was virtually no likelihood that a misidentification of the place to be searched could have occurred. Accord, U.S. v. Gahagan, 865 F.2d 1490 (6th Cir. 1989), cert. denied, 492 U.S. 918 (1989), (when officer executing search warrant is affiant who describes property to judge, and judge finds probable cause to search property as described by affiant, and search is confined to areas which affiant described, then search is in compliance with the Fourth Amendment.) The only reference to a residence in Poe’s affidavit or Exhibit A attached to the warrant issued was Poe’s reference to “a red brick house” (not Beshears’s residence) which was used merely as a landmark by Poe when describing how to get to Beshears’s grain bins and shop buildings. The search warrant itself was captioned “Albert Beshears Grain Bins, Algoa, Arkansas.” As previously mentioned, Poe’s affidavit described how to locate Beshears’s grain bins and other buildings and equipment where the contraband was located and the officers limited their search to that area.

For the reasons above, we affirm.


text:
    John L. KEARNEY v. COMMITTEE ON PROFESSIONAL CONDUCT
    94-1399
    897 S.W.2d 573
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995

      Appellant, pro se.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: John S. Cherry, Jr., and Derek J. Edwards, for appellee.
   Tom Glaze, Justice.

Several complaints were filed against appellant John Kearney. First, James M. Guffy claimed Kearney mishandled a quiet title action, and in doing so, violated Model Rules of Professional Conduct 1.1, 1.3, 1.4(a), 3.4(c) and 8.4(d). The second and third complaints were referrals by per curiam to the Professional Conduct Committee from this court in cases where Kearney petitioned for rule on the clerk for belated appeals. Britton v. State, 314 Ark. 469, 861 S.W.2d 551 (1993); Garrett v. State, 314 Ark. 470, 861 S.W.2d 550 (1993). All three complaints were consolidated for hearing before the Committee. Mr. Kearney brings this appeal from the Committee’s May 26, 1994 decision wherein it suspended his license for six months.

Kearney lists six points for reversal which we are unable to address because of his flagrantly deficient abstract. Ark. Sup. Ct. R. 4-2(b)(2). The transcript itself contains only 62 pages, and Kearney fails to abstract thirteen pages of it, including the Committee’s findings, the Committee’s May 26, 1994 letter decision and the notice of appeal. In addition, significant and relevant information contained in exhibits introduced below have not been abstracted.

Specifically, we point out that, in his argument on appeal, Kearney challenges the Committee’s findings that he had violated certain Model Rules when representing Garrett and Brit-ton in their belated appeals. However, he fails to abstract those findings or what sanctions were imposed for those violations. In addition, Kearney’s abstract only reflects he has appealed the Committee’s May 26, 1994 decision which suspended his license. Whether the Garrett and Britton claims were considered in the Committee’s suspension of Kearney’s license is not clear, since we do not have the Committee’s findings and decision before us.

Next, Kearney also argues the Committee erred in admitting into evidence an informal list of nine prior sanctions, but he fails to abstract that list. Aside from Kearney’s failure to abstract these prior sanctions, he also does not abstract that part of the transcript where his counsel forewent any objection to the admission of those prior violations.

Another example of Kearney’s abstract concerns his contest of Guffy’s affidavit and the Committee’s consideration of it. Below, Kearney objected to Guffy’s affidavit because it was not notarized, but on appeal, he claims that, because Guffy failed to appear at the hearing, Kearney was denied the due process right to cross-examine him. Again, Kearney fails to abstract Guffy’s affidavit and attached pleadings and exhibits even though these items are the focus of his point for reversal on appeal. We should also note that, at the Committee’s hearing, Kearney lodged no objection or obtained no ruling concerning his due process (inability to cross-examine) argument.

And finally, we mention Kearney’s argument that the penalties imposed were greater than warranted by the circumstances. As previously mentioned, the transcript itself reflects prior sanctions against Kearney were considered at the penalty stage of this proceeding, but, again that portion of the transcript was not abstracted. As this court has written numerous times, we will not go to the single transcript. Our review of the case on appeal is limited to the record as abstracted in the briefs, not upon one transcript, since there are seven judges involved in the appellate decision-making process. Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994).

Concerning the severity-of-sanction issue, we also reiterate Kearney’s failure to abstract the Committee’s May 26, 1994 letter decision that related contested factual questions. The Committee noted Kearney never answered interrogatories in the proceeding in which he represented Guffy even though a court had ordered Kearney to do so. The Committee’s letter further related Guffy said that he had incurred a $1,500 judgment due to Kearney’s actions or inactions, and while Kearney agreed to pay the judgment, he did not do so. Kearney’s failure to abstract that part of the record bearing on his decision not to comply with a court order is clearly relevant to the severity of the sanctions the Committee may have considered and imposed against him. Also, while Kearney testified he rectified Guffy’s problem by paying the $1,500 judgment, it is relevant to know the Committee considered Guffy’s statement that Kearney never paid the judgment.

Where the appellant fails to abstract the pleadings, exhibits, orders and final judgment necessary to an understanding of all questions on appeal, the appellate court cannot reach the issues it is asked to decide. Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987). Because Kearney’s abstract is so deficient in omitting relevant parts of the transcript needed in order to consider the arguments raised on appeal, we affirm for failure to comply with Ark. Sup. Ct. R. 4-2(b)(2).

      At the hearing, Kearney testified he paid $1,500 in cash to Guffy’s son-in-law and obtained a signed receipt, but Kearney said he could not locate the receipt.


author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    COLUMBIA MUTUAL INSURANCE COMPANY v. Larry PATTERSON and Roger Perry
    94-778
    899 S.W.2d 61
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles and Roy Gene Sanders, for appellant.

      Kitterman Law Firm, by: Gregory S. Kitterman, for appellee.
   Donald L. Corbin, Justice.

Appellant, Columbia Mutual Insurance Company, appeals an order of the Pulaski County Circuit Court dismissing appellant’s declaratory judgment action and directing a verdict in favor of appellees, Larry Patterson and Roger Perry. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3). For reversal, appellant asserts two points of error. We find no error and affirm.

Appellant filed a complaint against appellees in which it alleged that, at all times relevant, it had in full force and effect an automobile liability insurance policy issued to Patterson; that Patterson had been sued in a separate action by Perry for damages Perry sustained as a passenger in a single-vehicle accident in which Patterson was driving a vehicle owned by Patterson’s employer; and that the policy denied coverage for Perry’s injuries because the vehicle Patterson drove in the accident was used by him without a reasonable belief that he was entitled to do so, and because it was not the “covered auto” under the policy. Appellant prayed for a declaratory judgment that no coverage existed under the policy for Perry’s injuries.

On March 17, 1994, the declaratory judgment action was tried to a jury. The only testimony abstracted by appellant is that of one of its witnesses, Charles Deaton, an individual employed by appellant as a claims adjuster. During Deaton’s testimony, appellant unsuccessfully attempted to introduce into evidence a 25-page photocopy of a purported certified copy of the full policy. The abstract reveals no objection was made on the basis of the “best evidence rule.” At the conclusion of appellant’s proof, appellees moved for a directed verdict on the ground that the allegations of appellant’s complaint were not proved by credible evidence. The motion was granted. The trial court’s order granting appellees’ motion for directed verdict and dismissing appellant’s complaint with prejudice was filed on March 29, 1994. This appeal arises therefrom.

The 25-page writing which appellant sought to introduce into evidence was composed of: (1) a ten-page standardized form which was identified by Deaton as the basic policy provisions common to all automobile policies issued by appellant (identified as “Plaintiff’s Exhibit 4”), and (2) fifteen additional pages which included a cover page, quick reference index, declarations page, and endorsements (identified as “Plaintiff’s Proffered Exhibit 5”). Although it is undisputed that Plaintiff’s Proffered Exhibit 5 was never admitted into evidence, the parties differ as to whether Plaintiff’s Exhibit 4 was admitted. Our review of the abstract shows the trial court initially admitted Plaintiff’s Exhibit 4, but then reversed that ruling and excluded the exhibit. Thus, no part of the 25-page writing was ultimately admitted.

Appellant’s first argument for reversal is that the trial court erred in refusing to admit all of the 25-page writing as inadmissible hearsay because appellant failed to comply with A.R.E. Rule 803(6), the so-called “business record hearsay exception.” Rule 803(6) provides as follows:

Rule 803. Hearsay exceptions — Availability of declarant immaterial. — The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or disagnoses [diagnoses], made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Appellant asserts the trial court mistakenly interpreted Rule 803(6) to require the record’s sponsoring witness be the custodian or “keeper of the record” and have personal knowledge of the record’s content. Appellant acknowledges that Deaton is not the custodian of the record, but contends Rule 803(6) is satisfied if the sponsoring witness is a “qualified witness,” within the meaning of the Rule, and that Deaton was a qualified witness. Further, appellant asserts personal knowledge of the record’s content is not required of the qualified witness by Rule 803(6).

We agree that Rule 803(6) does not require that a custodian or keeper of the record be the record’s sponsoring witness. Rule 803(6) expressly states that, in addition to the custodian of the record, a “qualified witness” may provide the testimony required to lay the foundation for the admission of a business record. See Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994); Smith v. Chicot-Lipe Ins. Agency, 11 Ark. App. 49, 665 S.W.2d 907 (1984). Without addressing the issue of whether Deaton was a qualified witness, we find, for the reasons stated below, that the trial court’s misstatement of the requirements of Rule 803(6) did not result in injury to appellant, and therefore does not constitute reversible error.

After consideration of the trial court’s observations that Deaton lacked personal knowledge of Patterson’s policy endorsements and based on the facts recited below, we conclude that, aside from any hearsay issue, the trial court implicitly held the 25-page writing was not properly authenticated as Patterson’s complete policy by this witness. The requirement of authentication is separate from the requirement that a hearsay document must satisfy an applicable hearsay exception for admissibility. Our conclusion that the 25-page writing was not properly authenticated is consistent with the fact that the objection voiced by appellees at trial was based on lack of authentication, not hearsay. Our conclusion is also consistent with the language of A.R.E. Rule 901 which provides “[t]he requirement of authentication or identification as a condition precedent to admissiblity [admissibility] is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Among the examples of authentication which conform with Rule 901, is “[testimony of a witness with knowledge that a matter is what it is claimed to be.” Rule 901(a), (b)(1).

The 25-page writing was not a self-authenticating document. A.R.E. Rule 902. Hence, appellant was required to comply with Rule 901 and offer sufficient evidence that the document was what appellant claimed it to be, that is, a photocopy of a certified copy of Patterson’s insurance policy. Deaton’s testimony is replete with reference to his lack of knowledge that the 25-page writing was, in fact, a copy of appellee Patterson’s insurance policy. Deaton testified he was without knowledge of the policy endorsements unless permitted to refer to the purported policy declaration page which was, itself, a part of the document to be authenticated, or a computer printout from his office which he did not have with him in court. Further, the purported certification of the 25-page writing which had been photocopied to produce the document offered into evidence consisted of the stamped phrase “TRUE & CERTIFIED” above a stamped cursive signature reading “Pam Señor” on each page. Deaton testified, however, that he was not familiar with Ms. Señor, that she had signed the certified copy prior to the time he was employed by appellant, and that he could not tell the court whether she did or did not sign it.

During an extended bench conference which was continued in camera while Deaton was on the witness stand, the trial court and counsel for the parties debated the admissibility of the policy copy. We find the trial judge’s remarks that the document was unreliable for lack of identification as Patterson’s complete policy are consistent with our conclusion that appellant failed to properly authenticate the document. We note the following excerpts from the record:

THE COURT: The difficulty I’m having here is that I let the basic policy in because this witness testified, not that this policy that was introduced was Larry Patterson’s policy, but that the language of this policy, the basic policy, was what everybody had, that’s why I let it in, it wasn’t in as a business exception to the hearsay rule. Then he testified that he does not know whether or not Columbia would issue, does issue an endorsement that would change one, so that makes this an unreliable document and we don’t have Larry Patterson’s policy.
THE COURT: He can’t testify this is the policy that was in effect, that’s the kicker, if he could testify this is the policy that’s in effect and bring that in under some exception to the hearsay rule —
MR. BAXTER: We’ve already shown, he can’t do that.
MR. SANDERS: He can say that this is Larry Patterson’s policy, based upon the records of the company, which show that this is his policy.
THE COURT: I’m not going to argue with you, I’m not going to receive it into evidence. . . .
THE COURT: I’m not going to accept this document, it is just totally unreliable. I mean, I was willing for it to come in as long as the testimony was simply that every person who has a policy has this particular language, but once he established that, in essence, that “we don’t know whether this is the policy that Larry Patterson had or not.” I’m experienced enough with insurance policies, as are each of you lawyers, that is, boy, if you don’t have an exact copy and somebody is unable to say that this is the policy he had, we’re in deep trouble if we try to speculate on whether that was the policy, especially when we’re talking about policy language, and, often times, one section of a policy can make another section entirely different.

Rulings on evidentiary matters are within the trial court’s discretion, and are not modified by this court absent an abuse of that discretion. On this record, for lack of authentication of the document, we cannot say the trial court abused its discretion in excluding from evidence the 25-page writing. The trial court’s ruling will be affirmed if correct, even if the reason given for that decision was wrong. Higginbottom v. Waugh, 313 Ark. 558, 856 S.W.2d 7 (1993); Riley v. City of Corning, 294 Ark. 480, 743 S.W.2d 820 (1988).

Appellant’s second argument for reversal is that the trial court erred in directing the verdict in light of the fact that Plaintiff’s Exhibit 4 was admitted into evidence and the liability provisions upon which appellant relied to prove non-coverage were contained in that part of the policy. Appellant contended that Plaintiff’s Proffered Exhibit 5 which contained the policy endorsements did not change the coverage provided by the basic policy provisions which were in evidence as Plaintiff’s Exhibit 4.

This argument is based on a false premise and is therefore without merit. As noted above, the record shows that no part of the policy copy was ultimately admitted into evidence. However, even assuming, arguendo, that Plaintiff’s Exhibit 4 was introduced into evidence, we are unable to address appellant’s argument due to his failure to adequately abstract Plaintiff’s Proffered Exhibit 5 for our review on appeal. Jones v. McCool, 318 Ark. 688, 886 S.W.2d 633 (1994).

The trial court’s judgment is affirmed.

Glaze, J., concurs.

Brown and Roaf, JJ., dissent.

904 S.W.2d 218

Robert L. Brown, Justice,

dissenting. I would reverse and remand.

The majority opinion states that Rule 803(6) does not require a custodian or keeper of the record to be the sponsoring witness of an insurance policy but that a “qualified witness” could do so. That is correct, and we have held that the phrase “other qualified witness” under Rule 803(6) should be given the broadest interpretation. Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994). The trial court, however, never considered whether Charles Deaton, the Columbia Mutual claims adjuster, was such a “qualified witness.” Rather, the trial court agreed with Larry Patterson’s counsel that Arkansas Rule of Evidence 803(6) requires that the sponsoring witness be a “custodian with knowledge,” who had to be familiar with the precise terms of the policy. That was incorrect, and that error was the basis for the court’s refusal to allow the insurance policy into evidence.

The majority opinion agrees that the trial court misstated the requirements of Rule 803(6). But the opinion proceeds forward and states that the trial court’s ruling “implicitly” was a finding that Patterson’s insurance policy was not properly authenticated under Arkansas Rule of Evidence 901(b)(1). The majority is affirming in effect on the basis that the trial court was correct in its ruling but for the wrong reason. See West v. G.D. Searle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994).

Rule 901(b)(1) states:

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming to the requirements of this rule:
(1) Testimony of Witness With Knowledge. Testimony of a witness with knowledge that a matter is what it is claimed to be.

In concluding that Mr. Deaton was not a “witness with knowledge,” the majority is making a finding of fact for the first time on appeal. Moreover, a “witness with knowledge” under Rule 901(b)(1) seems directly synonymous with a “qualified witness” under Rule 803(6). Neither “witness” under either rule is required to be a “custodian of the record.”

Mr. Deaton testified that he was familiar with the standard automobile policy issued by the company and the liability section of that policy and that the standard policy is what Larry Patterson had. (Indeed, both Larry Patterson and Roger Perry admitted in their answers to Columbia Mutual’s complaint that Larry Patterson had coverage with the company.) Mr. Deaton then identified for the jury’s benefit the declaration page of the policy that named Larry Patterson as the insured. He next read the “Exclusions” language from the standard policy to the jury. It is the “Exclusions” language that lies at the heart of the litigation.

Much discussion was had at trial about the endorsements to the standard policy and whether Mr. Deaton had knowledge of what the endorsements specifically accomplished. Two points are relevant here. First, the rules do not require that the qualified witness or witness with knowledge know the precise terms of the policy —only that he know that it is the policy at issue. 29A Am. Jur. 2d, Evidence § 1033 (1994); see also New Orleans Saints v. Griesedieck, 612 F. Supp. 59 (E.D. La. 1985). Secondly, neither Larry Patterson nor Roger Perry nor Columbia Mutual ever contended that the endorsements changed the “Exclusions” section of the standard policy in any respect. In fact, Columbia Mutual stated in its appellant’s brief that the endorsements did not alter that facet of the policy, and the appellees did not contest this in their brief. The endorsements are simply not material to the Exclusions issue in this appeal.

Because an erroneous standard was employed to deny admission of the policy, a reversal and remand for trial are warranted. I respectfully dissent.

Roaf, J., joins.


author: Robert L. Brown, Justice.

text:
    Tod HALL v. PULASKI COUNTY CHANCERY COURT, Seventh Division, Honorable Rita Gruber, Presiding
    95-80
    898 S.W.2d 46
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995

      Melinda R. Gilbert, P.A., for appellant.

      Randell Templeton, for appellee.
   Robert L. Brown, Justice.

Petitioner Tod Hall seeks a writ of prohibition against the Pulaski County Chancery Court, Juvenile Division, to deter it from proceeding with a paternity suit. The writ is denied.

On June 13, 1988, Doug Freeman was granted a divorce from Jamie Freeman, now Jamie McFall, in Pulaski County Chancery Court on grounds of general indignities. The decree referred to one child of the marriage, S.F., age ten months. Custody of S.F. was placed in Jamie McFall. Doug Freeman was to pay child support, and he was given visitation rights. On March 2, 1994, Doug Freeman filed a paternity complaint against Jamie McFall and his nephew, Tod Hall, in Pulaski County Chancery Court, Juvenile Division, and alleged that Hall was the putative father of S.F. He prayed that the court order blood testing of all parties, including S.F., and that if Hall was determined to be the father, he be relieved of all child support obligations.

On April 8, 1994, Hall moved to dismiss the paternity suit and gave as his reasons (1) any determination of paternity should be made in chancery court; (2) paternity was decided by the 1988 divorce decree and is res judicata; and (3) Doug Freeman has no standing to seek a paternity determination because he is not a “putative father.” Jamie McFall agreed that there was a high probability that Hall was S.F.’s father and agreed to the blood tests.

On June 24, 1994, Hall moved for summary judgment on essentially the same grounds as those raised in his motion to dismiss. The chancery court, juvenile division, ordered that the 1988 divorce matter in chancery court be consolidated with the paternity suit. The court further ordered that a guardian ad litem be appointed for S.F. Hall next filed various motions seeking clarification and renewing his motion to dismiss on grounds of lack of subject matter jurisdiction. On January 25, 1995, the juvenile court issued a letter opinion denying the motion to dismiss and directing blood tests “as soon as possible.” Hall’s petition for writ of prohibition followed.

The Arkansas General Assembly may vest jurisdiction in separate courts of chancery. Ark. Const, art. 7, § 1. In 1989, the General Assembly passed four acts which apply to paternity jurisdiction. Those four acts are now codified, and the relevant part of each is set forth:

(a) The juvenile court shall have exclusive original jurisdiction of and shall be the sole court for the following proceedings governed by this subchapter:
(3) Proceedings for establishment of paternity ... of a juvenile alleged to be illegitimate.

Ark. Code Ann. § 9-27-306(a)(3) (Repl. 1993).

The juvenile division of the chancery court shall be a trial court with original and exclusive jurisdiction in the counties in which it sits, of... bastardy ... and such other juvenile matters as may be provided by law.

Ark. Code Ann. § 16-13-603(a)(l) (Repl. 1994).

(a) (1) The chancery court shall have concurrent jurisdiction with the juvenile division of chancery court in cases and matters relating to paternity.
(2) The chancery court shall have exclusive jurisdiction of paternity matters which arise during pendency of original proceedings brought under equity jurisdiction.
(3) The juvenile division of chancery court shall have exclusive jurisdiction of paternity matters which arise during pendency of original proceedings brought pursuant to Arkansas Juvenile Code of 1989, § 9-27-301 et seq.

Ark. Code Ann. § 9-10-101(a) (Repl. 1993).

(b) Notwithstanding the provisions of the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., or any other enactment which might be interpreted otherwise, the chancery court or any division of chancery court shall have jurisdiction for all cases and matters relating to paternity.

Ark. Code Ann. § 16-13-304(b) (Repl. 1994).

The parties have premised their respective arguments on these statutes. Doug Freeman contends that he has alleged illegitimacy with respect to S.F., which confers exclusive jurisdiction in chancery court, juvenile division, under § 9-27-306(a)(3). Hall contends, on the other hand, that the original divorce in chancery court is ongoing and that exclusive jurisdiction over paternity rests in that jurisdiction under § 9-10- 101(a)(2).

This court faced a similar dilemma in the case of Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992). In Barnes, Billy Joe Barnes and Anna Barnes (Hicks) were divorced in January 1989. Hicks testified that she and Barnes had sexual intercourse in December 1989. In January 1991, she filed a paternity suit, claiming that Barnes was the father of her child born in September 1990. Barnes claimed that the juvenile division of chancery court lacked subject matter jurisdiction. We disagreed and noted that exclusive jurisdiction in chancery court lies under the statute “when a paternity matter arises during the pendency of an action already within its jurisdiction.” 311 Ark. at 292, 843 S.W.2d at 837. We further emphasized that concurrent jurisdiction lay in both chancery and juvenile courts under §§ 9-10-101(a)(1) and 16-13-304(b) and decided that jurisdiction was appropriate in chancery court, juvenile division.

The case before us is somewhat different from Barnes v. Barnes but analogous. Here, based on what we have before us, the paternity issue did not arise during the original 1988 divorce action, and that is what § 9-10-101(a)(2) requires for exclusive jurisdiction to reside in chancery court. To be sure, there was some proof in the paternity suit that Doug Freeman suspected Tod Hall was the father of S.F. prior to the divorce, but, according to the record, that issue was not raised in chancery court by either Doug Freeman or Jamie McFall or developed in that action in any way. The divorce was concluded in 1988, though the court did retain jurisdiction to modify and enforce the rights of the parties. Under these facts, there are insufficient grounds for finding exclusive jurisdiction in chancery court. Moreover, there is no question but that sections 9-10-101(a)(l) and 16-13-304(b) evince a strong preference by the General Assembly for concurrent jurisdiction in chancery court and in chancery court, juvenile division, over paternity matters. And, finally, Doug Freeman alleges in the paternity suit that S.F. may have been the offspring of a relationship out of wedlock which would confer jurisdiction in chancery court, juvenile division, under § 9-27-306(a)(3). We conclude that jurisdiction appropriately lies in chancery court, juvenile division.

Hall vigorously asserts that the divorce matter decided S.F.’s paternity in 1988 and that this is res judicata or collateral estoppel. Res judicata and collateral estoppel are affirmative defenses to be pursued by Hall in chancery court, juvenile division, but not reasons for denying subject matter jurisdiction in that court. See Tucker Enterprises, Inc. v. Hartje, 278 Ark. 320, 650 S.W.2d 559 (1983).

Because we cannot say that chancery court, juvenile division, is wholly without jurisdiction over this matter, the petition is denied. See West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994).

Writ denied.

      The paternity suit designates her as “Jamie Freeman.”


author: Andree Layton Roaf, Justice. Tom Glaze, Justice,

text:
    David M. CLARK v. SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT
    94-1293
    898 S.W.2d 446
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995

      Clarence W. Cash, for appellant.

      Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd.., by: John C. Calhoun, Jr., for appellee.
   Andree Layton Roaf, Justice.

Appellant David M. Clark appeals from a decision of the Supreme Court Committee on Professional Conduct (Committee). The Committee unanimously found Clark violated Rules 1.1, 1.3, and 8.4(d) of the Model Rules of Professional Conduct and suspended the appellant from the practice of law for a period of six months. We affirm.

In August of 1989, Mrs. Frances Paradiso was injured while visiting a construction site. Mrs. Paradiso and her husband had hired a contractor to construct a home. While visiting the construction site, Mrs. Paradiso leaned against a porch railing which collapsed; she broke her arm and wrist, injured her shoulder, and suffered a shock to her nervous system.

Approximately two years later, the Paradisos hired appellant Clark to represent them in a personal injury action against Virgil Griffin, the general contractor. On February 25, 1991, a complaint was filed in Sharp County Circuit Court against Virgil Griffin, d/b/a Lazy Acres Construction. On September 24, 1991, the defendant filed a motion to dismiss because the complaint was filed in the wrong county and the Sharp County Circuit Court did not have jurisdiction. Appellant Clark admits receipt of the motion to dismiss; however, unbeknownst to appellant, an Order of Dismissal was entered on September 27, 1991. Clark learned of the dismissal from another attorney in June or July of 1993, after the claim was barred by the three year statute of limitations. The Paradisos maintain they were never advised of the dismissal and the suit was never refiled in the proper county.

Upon receipt of the September 24 motion to dismiss, Clark contacted the Paradisos and verified that the suit had been filed in the wrong county. The Paradisos have a Hardy, Arkansas mailing address, and the majority of Hardy is located in Sharp County; however, the Paradisos actually live in Fulton County. Clark testified he informed the Paradisos that the lawsuit needed to be refiled in Fulton County and that he thought they still had a lawsuit. Appellant Clark stated that he “didn’t tell them that I would, but I didn’t tell them I wouldn’t” refile the lawsuit. Mrs. Paradiso testified Clark informed her he was going to refile the lawsuit in Fulton County.

The record indicates the Paradisos continued to contact the appellant’s office during 1991, 1992, and 1993. At least some of the calls concerned a separate matter regarding the Paradisos’ land. Appellant Clark suggested the Paradisos contact another attorney, Larry Kissee, regarding their land. However, the Paradisos continued to contact the appellant regarding the status of their complaint against Griffin. Clark testified that in “most of our conversations they would want to know what was going on and I would tell them that I hadn’t gotten any more response back from the private investigator and that I still wanted them to hire another attorney.”

The appellant asserts that due to his repeated advice to the Paradisos to hire another attorney and his repeated attempts to express the fact that he no longer wanted to represent the Paradisos, the Court should find that the Committee’s decision was clearly erroneous. We review the Committee’s action de novo and affirm unless it is clearly against the preponderance of the evidence. Finch v. Neal, 316 Ark. 530, 873 S.W.2d 519 (1994); Muhammed v. Arkansas Supreme Court Committee on Professional Conduct, 291 Ark. 29, 722 S.W.2d 280 (1986). Further, the Committee’s factual determinations are sustained on appeal unless clearly erroneous because the Committee is in the superior position to determine the credibility of witnesses and weigh the preponderance of the evidence. Colvin v. Committee on Professional Conduct, 309 Ark. 592, 832 S.W.2d 246 (1992). In the instant case, we cannot say the Committee’s decision was clearly erroneous.

The Committee found Clark violated Rules 1.1, 1.3, and 8.4(d) of the Model Rules of Professional Conduct. Rule 1.1, Competence, provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Rule 1.3, Diligence, provides: “A lawyer shall act with reasonable diligence and promptness in representing a client.” Finally, Rule 8.4, Misconduct, provides in part: “It is professional misconduct for a lawyer to: ... (d) engage in conduct that is prejudicial to the administration of justice.”

Appellant Clark admitted that he knew there was a danger the case could be dismissed at any time after the motion to dismiss was filed. Clark testified that after he received the motion to dismiss the “mistake I made at that point probably was not just flat out telling Mr. and Mrs. Paradiso that as far as I was concerned our relationship was ended, and they were going to have to refile, and they should contact another attorney.” In addition, he stated “the mistake I made on the front end was not just saying, when the Motion to Dismiss was filed, you all need to go find another lawyer, instead of trying to continue to do something.” Further, Clark testified that he “should have withdrawn in September ... that’s what I should have done.” However, Clark admits he was the attorney of record and all his discovery had been “informal.”

In its letter opinion to Clark, the Committee stated “You testified that you continued to encourage the Paradisos to seek other counsel, but [you] never sent them a letter to that effect or that you felt their best interests would be served by withdrawing. Neither did you respond to the Motion To Dismiss believing you could request a non-suit and refile.” Even in his brief on appeal, Clark principally asserts he “encouraged” and “suggested” that the Paradisos hire another attorney. Clark did testify that he told the Paradisos they needed to hire another attorney; however, he continued to “work” on the case and simply informed the Paradisos that he had not received any response from the private investigator.

Based upon the findings of fact, the Committee could reasonably conclude the appellant violated Model Rules 1.1, 1.3, and 8.4(d). In fact, the Comment to Rule 1.3 provides in part:

Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. . . . Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so.

The appellant essentially ignored his clients’ case for nearly two years after the defendant’s motion to dismiss was filed. Further, the appellant was aware that the motion to dismiss was well-founded. Although he suggested the Paradisos should obtain another attorney, Clark continued to “work” on the matter and discussed his “progress” with the Paradisos.

For his second point, the appellant asserts the suspension of his law license is excessive discipline considering the facts of this case. The appellant urges the Court to consider the guidelines for sanctions discussed by Justice Glaze in his concurring opinion in Colvin v. Committee on Professional Conduct, 309 Ark. 592, 832 S.W.2d 246 (1992). In Colvin, however, we noted that in the context of criminal law we will not reduce or compare sentences that are imposed within statutory limits. Id. Further, we noted that in the civil context of damage awards, a comparison of awards made in other cases cannot be relied on as a measure of excessiveness. Id. Consequently, because the Committee’s action was within the range of sanctions for a violation of a provision of the Model Rules, we affirmed the Committee’s decision. Id.

Section 7(A) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law provides that when the Committee finds that an attorney has violated any provision of the Model Rules, the Committee is authorized to suspend the attorney for a period up to but not exceeding one year. Because the Committee’s action is within the range of sanctions authorized for a violation of a provision of the Model Rules, the decision of the Committee is affirmed.

Affirmed.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. By its decision today, this court continues its callous disregard of a practicing attorney’s due process rights when imposing serious sanctions against him or her. While Mr. Clark failed to act with due diligence and competence in allowing a statute of limitations to run on the Paradisos’ tort claims, the Professional Conduct Committee and this court is clearly wrong in suspending Clark’s license for the ethical violation. At most, Clark’s action amounts to malpractice which has caused serious harm to the Paradisos, and Clark should be determined liable for his negligent action. Instead, the Committee and this court prevents Clark from practicing law, thereby making it ‘even more difficult for the Paradisos to obtain recompense.

Clark, too, has also been made subject to disparate treatment compared to that imposed previously for similar misconduct. For example, in Walker v. Supreme Court of Arkansas Committee on Professional Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982), the attorney had failed to file a personal injury suit arising from an automobile accident within the statute of limitations period. This court upheld the Committee’s imposition of a “caution” sanction. The court stated the following:

It is also to be noted that the citation levied by the Committee was a “caution” rather than a “reprimand.” We believe such action is not incommensurate with the neglect of appellant Walker as reflected by the evidence in his proceeding.

In a concurring opinion in Colvin v. Committee on Professional Conduct, 309 Ark. 592, 832 S.W.2d 246 (1992), I pointed out that, without clear guidelines for imposing sanctions, the Committee, considering the large number of cases it hears and decides, innocently runs the risk of imposing different sanctions to situations where the same or similar misconduct may be involved.* Again, when comparing the facts and decision in Walker, the Committee’s suspension of Clark’s license is much too severe.

In my mind, the most serious question raised by this court’s decision is why is this court so reluctant to define the court’s permissible sanctions? Shouldn’t attorneys, who have violated the canons, know what punishment can be imposed? Shouldn’t the more serious sanctions of suspension and disbarment be reserved for those attorneys committing intentional and wilful acts such as defalcation or felonies as opposed to acts of negligence? Should an attorney who has committed repeated canon violations, regardless of intent or wilfulness, be subject to the more serious sanctions? If so, shouldn’t this court set forth the standards which would trigger when those serious sanctions apply?

This court’s failure to define its sanctions gives the court and its Committee unbridled discretion when imposing sanctions in any given case regardless of the misconduct involved. This is wrong.

In conclusion, I mention that the issue concerning sanctions and this court’s woeful refusal to define them was raised over two years ago in the Colvin case, but nothing has been forthcoming to address this matter. In fact, there are some court members and attorneys who, for whatever reason, do not think it wise to define sanctions. Frankly, I can think of no valid reason why they should not be defined. Nonetheless, until or unless the Arkansas Bar Association, itself, decides the issue defined hereinabove is worthy of discussion, this court, no doubt, will continue its custom to do nothing on the matter. I will, however, continue to write, hoping sanctions for legal misconduct will eventually be defined. Fairness and due process require it.

      Although not suggested as a complete or final answer, I listed in my concurring opinion certain guidelines that might be considered. Those are as follows:
      (1) WARNING - to be given when there is some reasonable question as to whether there was in fact a violation.
      (2) CAUTION - to be given when there has been a violation but no irreparable harm.
      (3) REPRIMAND - to be given when there has been a violation with irreparable harm.
      (4) SUSPENSION - to be imposed when the violation is intentional or includes moral turpitude.


author: Andree Layton Roaf, Justice. Robert L. Brown, Justice,

text:
    Carolyn ROSS v. UNITED SERVICES AUTOMOBILE ASSOCIATION
    94-444
    899 S.W.2d 53
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995
    [Rehearing denied June 26, 1995.]

      Nolan, Caddell & Reynolds, P.A., by: Bennett S. Nolan, for appellant.

      Daily, West Core, Coffman & Canfield, by: Jerry L. Can-field, for appellee.

      Special Justices Ann Parker and Timothy Grooms, join. Holt, C.J., and Newbem, J., not participating.

   Andree Layton Roaf, Justice.

This is an insurance case that requires us to interpret our underinsured motorist statute, Ark. Code Ann. § 23-89-209 (Repl. 1992), and the amount of recovery an insured is entitled to when underinsured coverage is implied by operation of law.

Carolyn Ross, appellant, was in a motor vehicle accident on March 24, 1992, involving another vehicle operated by Michael Ceola. Ceola was apparently at fault. Ceola was insured with Liberty Mutual Insurance which had a $25,000 liability limit available to Ross for the accident. Ross was insured at the time by United Services Automobile Association, appellee, under a single policy covering four family vehicles with liability limits of $100,000 per person and uninsured motorist coverage of $100,000 per person. Her policy contained anti-stacking language with regard to the uninsured motorist coverage. An informational form accompanying the policy and discussing underinsured motorist coverage provided that it was “optional but if ordered must equal your UM-BI limits, is available in limits of $50,000/100,000 or above.”

Under our holdings in Shelter Mutual Insurance Company v. Irvin, 309 Ark. 331, 831 S.W.2d 125 (1992), and Shelter Mutual Insurance Company v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992), underinsured coverage will be implied by operation of law when there is not a signed rejection of the coverage. There was no signed rejection for the coverage in this case so coverage was implied, and United does not dispute that matter.

The point of contention is how much coverage Ross would receive. She claimed damages of $850,000, but United refused to pay more than $25,000. Ross brought suit against United and United moved for summary judgment alleging that under the underinsured motorist statute, the maximum it was required to pay, where coverage is implied by law, is $25,000. The trial court agreed and granted summary judgment to United.

Ross appeals from that judgment making two arguments: first, she argues that when our underinsured statute is implied by operation of law the insured will be covered to the extent of her injuries, pursuant to the statute; or that coverage should be implied in the amount equal to her liability and uninsured coverages of $100,000, or in the minimum amount available at that time through United of $50,000, pursuant to her policy. She also argues alternatively that she should have been allowed to stack coverage for her three other vehicles insured under the same policy in the amounts of $25,000, $50,000 or $100,000 per vehicle, depending on the resolution of the amount to be implied. We reverse the trial court’s award of summary judgment on the issue of stacking.

LIMIT FOR IMPLIED COVERAGE UNDER ARK. CODE ANN. § 23-89-209

Ark. Code Ann. § 23-89-209 is our underinsured motorist statute and United does not argue that the coverage is not implied in this case. As previously noted, we held in Irwin, supra, and Bough, supra, that the underinsured motorist coverage required to be offered under that statute would be implied by law when the insurance company failed to get a written rejection of the coverage.

The only issue in the case is the amount of coverage that should be implied under § 23-89-209, which provides in pertinent part:

The coverage shall enable the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle. Underinsured motorist coverage shall be at least equal to the limits prescribed for bodily injury or death under, § 27-19-605. (Emphasis added.)

Section 27-19-605 is part of the Motor Vehicle Safety Responsibility Act, and requires $25,000 minimum liability coverage for bodily injury or death. Ross argues she should be able to recover up to the total extent of her damages pursuant to the first sentence of the statutory language quoted above. The insurance company argues that she is limited to the $25,000 minimum figure also referred to in the statute. Ross also argues that in the alternative, the court should look to the policy to imply coverage of either $50,000 or $100,000, based on the minimum underinsured coverage either available or required by United in its informational form.

We have not yet addressed this issue so we have looked to other jurisdictions for some guidance on the amount of coverage allowed when coverage is implied by operation of law. We found three jurisdictions that have addressed the issue, and all of them have held the insured was limited to the amount referred to in the underinsured coverage statute. See Jablonski v. Mutual Serv. Cas. Ins. Co., 408 N.W.2d 854 (Minn. 1987); Insurance Co. of N. Amer. v. Santa Cruz, 800 P.2d 585 (Ariz. 1990); Riffle v. State Farm Mut. Auto. Ins. Co., 410 S.E. 413 (W. Va. 1991).

The reasoning is that the insurer is not required to offer anything more than the limits listed in the statute, and to do otherwise would be to “force upon the insurance company something that is not present in the statute.” Jablonski v. Mutual Serv. Cas. Ins. Co., supra. We find that reasoning sound and adopt that approach in this state. The statutory language relied on by Ross sets forth the general purpose of the coverage, not the amount. Our statute clearly mandates that a minimum of $25,000 under-insured coverage be offered and not an amount equal to the liability insurance purchased by the insured.

Therefore, we hold that, when underinsurance is implied by law under § 23-89-209, the insured will be limited to the minimum amount referred to in the statute of $25,000.

STACKING OF INSURANCE COVERAGE

In addition to the vehicle involved in the accident, Ross had three other vehicles insured under the same policy with United. She argues she should be able to “stack” those coverages toward the ultimate amount of damages she suffered. That is, because coverage will be implied by operation of law for the vehicle involved in the accident, Shelter Mutual Insurance Company v. Irwin, supra, we should also find underinsured coverage by operation of law on her other three cars in the alternate amounts of $25,000, $50,000 or $100,000.

United argues that before deciding whether to stack coverage, we must decide in the first instance if there is a basis for stacking the coverages and argues that none exists in either the policy or in the statute. We do not agree.

We have already recognized the propriety of stacking insurance coverages in Farm Bureau Mutual Insurance Company v. Barnhill, 284 Ark. 219, 681 S.W.2d 341 (1984). In that case we did not discuss the basis for stacking but focused on and found that the anti-stacking clause in the policy was not applicable to the particular case and that stacking was therefore appropriate.

We have also recognized that underinsured coverage will be implied by law where the insurance company has failed to offer it to the insured. See, Shelter v. Irwin, supra. There is no language in the underinsured statute requiring that result, but Irwin was based on our recognition of public policy. We found the legislature had indicated the “significant” and “vital” nature of the coverage and that coverage would be implied when the mandated offer had not been made. We noted this was also the rule in many jurisdictions. We subsequently followed Irwin in Shelter Mutual Ins. v. Bough, supra, and American Casualty Co. v. Mason, 312 Ark. 166, 848 S.W.2d 392 (1993). We have not yet addressed the question of stacking where coverage is implied by law.

There is scant authority on this point and we have found only two jurisdictions that have considered the issue of stacking coverages implied by law and in both cases, stacking was allowed. See Holiman v. All Nation Ins. Co., 288 N.W.2d 244 (Minn. 1980); Riffle v. State Farm Mutual Auto Ins. Co., 410 S.W.2d 413 (W.Va. 1991). In neither of these jurisdictions did the statutes requiring that coverage be offered, authorize or even mention stacking, but the courts found stacking permissible on the basis of those statutes.

In Holiman, the court allowed stacking on the basis that Minnesota law required coverage for each vehicle and that each vehicle contain, or be offered such coverage. In Riffle, the court did not directly address the basis for the stacking, but found, based on the language of the underinsured statute, that while stacking of several cars under one policy was not allowed, the policies themselves could be stacked.

While we have not found any treatises discussing this issue, the relevant question of the limits of that liability is addressed in 3 Alan Widiss, Uninsured and Underinsured Motorist Insurance §32.7 (2d 1992), and is in keeping with the Minnesota and West Virginia cases. It is stated there as the general rule:

When underinsured motorist insurance coverage is imposed by operation of law because an insurance company failed to comply with a legislative mandate, questions sometimes arise about the coverage limits for the insurance. Typically, legislation mandates that when an insurer fails to prove an effective offer, the insurer must provide the minimum coverage required to be offered to the purchaser under the statute. (Emphasis added.)

If we look at the minimum insurance required to be offered by our statute, § 23-89-209, we find there is a basis on which stacking is authorized. The relevant portion of that statute provides:

(a) Every insurer writing automobile liability insurance covering liability arising out of the ownership, mainte nance, or use of any motor vehicles in this state, shall provide underinsured motorist coverage unless rejected in writing by a named insured. (Emphasis added.)

We find the language suggests coverage is required to be offered for every vehicle. While we also note the presence of some ambiguity, that only strengthens our interpretation in favor of the insured. Statutes regulating the insurance industry are generally construed, as are insurance policies, against the insurance company. See 3A Norman J. Singer, Sutherland Statutory Construction, § 70.05 (5th Ed. 1992 ). It is there stated:

In keeping with the judicial policy of construing insurance policies in favor of the insured, legislation enacted for his protection has also usually been liberally construed in favor of the public and the insured ....
The law looks with disfavor upon the forfeiture of the rights of the insured, and so statutes protecting and extending those rights are treated with liberality.

That we will construe such statutes favorably and liberally for the insured is underscored in this case because the statute, in effect, has become part of the policy by operation of law.

Because we find the statute requires the insurance company to offer as a minimum, underinsured coverage for each car, we further conclude that when an insured has more than one car covered with the insurance company, the insured may stack the minimum coverages that should have been offered.

Although United asserts it had an anti-stacking clause in the policy, we note the clause was limited to prohibiting the stacking of policies, and not the stacking of cars within the policy. As we have always done with contracts of insurance, we construe this clause most strongly against the insurer, and find the anti-stacking clause inapplicable. See Home Indemnity Co. v. City of Marianna, 297 Ark. 268, 761 S.W.2d 171 (1987).

When finding insurance by operation of law, we do not speculate as to whether or not the insured would have accepted the offer, but simply find coverage as a matter of law. See Irwin, supra; and Kuchenmiester v. Illinois Farmers Ins. Co., 310 N.W.2d 86 (Minn. 1981), where it was held the insured is not required to prove he or she would have accepted the insurance in order to have it implied by law. The court said:

Not only would that determination be too speculative, it would allow insurers to circumvent the intent of the legislature.

Similarly, we will not speculate as to whether the insured would have accepted the offer for each car but find coverage for each car by operation of law. We find that the trial court should have allowed stacking of coverage of the statutory minimum, for each car that appellant had insured with the company on her policy.

Affirmed in part.

Reversed in part and remanded for proceedings consistent with this opinion.

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

Special Justices Anne A. Parker and Timothy W. Grooms join in this opinion.

Brown, J., concurs in part and dissents in part.

Glaze, J., dissents as to part one.

Robert L. Brown, Justice,

concurring in part, dissenting in part. I concur with the amount of the implied coverage on the automobile involved ($25,000), but I disagree with the court’s decision on stacking. Carolyn Ross had one policy covering four automobiles. Only one of those automobiles was involved in the accident. USAA failed to offer her underinsured coverage. As a result, we must decide USAA’s liability under the operative statute, Ark. Code Ann. § 23-89-209 (Repl. 1992).

Section 23-89-209 is silent on the issue of stacking. It does not deal with it one way or the other. Hence, it cannot be ambiguous on the matter, as the majority concludes. The mere fact that the statute directs that underinsured coverage be offered for each motor vehicle owned by an insured does not translate into stacked coverage when only one of the vehicles is involved in the wreck.

As the majority opinion admits, one case cited by Ross, Rif fle v. State Farm Mut. Auto. Ins. Co., 410 S.E.2d 413 (W. Va. 1991), is concerned with stacking separate policies which covered one vehicle. That is an entirely different fact situation. The only authority for doing what the majority seeks to do in this case is a Minnesota case, Holman v. All Nation Ins. Co., 288 N.W.2d 244 (Minn. 1980).

The policy justification for stacking coverages of several vehicles under one insurance contract involving several cars may have merit. One justification may be that minimum coverage on one vehicle is not a sufficient penalty for failure to offer under-insured coverage. The General Assembly might well want to address this. But today the majority implies a penalty by stacking coverages on vehicles not involved in the accident without a statutory premise for doing so. I cannot go that far, and for that reason I respectfully dissent.


author: Per Curiam.

text:
    Gary ANDERSON v. STATE of Arkansas
    CR 95-488
    898 S.W.2d 53
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995

      John C. Bartlett, for appellant.
    No response.
   Per Curiam.

We treat this motion for rule on the clerk as a motion for a belated appeal. Appellant filed his notice of appeal on December 19, 1994, whereas the judgment was not entered until January 9, 1995. Under our rules the notice of appeal was of no effect. Ark. R. App. P. 4; Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 249 (1991).

We grant the motion for a belated appeal and direct that a copy of this opinion be forwarded to the Committee on Professional Conduct.


author: Per Curiam. Robert L. Brown, Justice,

text:
    Jamie M. Hardin DIEMER, as Administratrix of the Estate of Jerry Keith Hardin, Deceased v. YELLOW FREIGHT SYSTEM, INC., Tremco Incorporated and Roof Maintenance, Inc.
    95-238
    898 S.W.2d 53
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995

      The McMath Law Firm, P.A., by: Sandy McMath, for appellant.

      Friday, Eldredge & Clark, by: Donald H. Bacon, for Yellow Freight System, Inc.

      Allen Law Firm, by: Sandra Jackson, for Tremco, Inc.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Mike Huckabay, for Industrial Painters, Inc.
   Per Curiam.

Appellant’s motion for reconsideration is denied.

Brown, J., concurs.

Glaze and Roaf, JJ., would grant.

Newbern, J., not participating.

Robert L. Brown, Justice,

concurring. I agree that the motion for reconsideration should be denied based on controlling precedent. But I also believe that the time has come for this court to revisit the issue involved in this case. Simply stated, it concerns whether a notice of appeal filed on the same day that the judgment is entered, but minutes before that entry, should be deemed ineffective. We have held that it should be. See Lawrence Bros., Inc. v. R.J. “Bob” Jones Excavating Contractor, Inc., 318 Ark. 328, 884 S.W.2d 620 (1994) (per curiam) (J. Brown and J. Hays dissenting on other grounds); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992), overruling in part Joshua v. State, 307 Ark. 79, 818 S.W.2d 249 (1991). In Lawrence Bros., the facts were similar to the case at hand in that the notice of appeal was filed on the same day as entry of the pertinent judgment, but minutes before. We declared the notice to be of no effect.

Prior to the Kelly decision, this court had treated notices of appeal filed before entry of judgment as becoming effective at the time the judgment was entered. See State v. Joshua, supra; Edmonds v. State, 282 Ark. 79, 665 S.W.2d 882 (1984) (per curiam); Caskey v. Pickett, 272 Ark. 521, 615 S.W.2d 359 (1981); Wilheim v. McLaughlin, 228 Ark. 582, 309 S.W.2d 203 (1958). In Wilheim, Justice George Rose Smith wrote: “Many situations may be conceived in which needless hardship would result from an inflexible rule nullifying every notice of appeal filed before the entry of the judgment.” 228 Ark. at 584, 309 S.W.2d at 204.

Though I would not go so far as some of our earlier cases, I believe that we should amend Ark. R. App. P. 4(a) and its counterpart in the criminal rules, Ark. R. Crim. P. 36.9(a), by per curiam order, so that notices of appeal filed the same day as judgments are treated as timely filed. Part of the problem here is that in many instances clerks determine the precise time when documents are filed on a particular date. The happenstance of when a filing transpires under these circumstances should not determine the rights of the parties.


author: Jack Holt, Jr., Chief Justice.

text:
    Pearl WILLIAMS, as Administratrix of the Estate of Byron Riccardo Williams, deceased v. Jimmy INGRAM
    94-884
    899 S.W.2d 454
    Supreme Court of Arkansas
    Opinion delivered May 30, 1995

      Walker, Roaf, Ivory & Dunklin, by: Woodson D. Walker and Steven R. Smith, for appellant.

      Arnold, Grobmeyer & Haley, by: Jacob Sharp, Jr. and David H. Pennington, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a wrongful death case. The appellant, Pearl Williams, acting as administratrix of the estate of Byron Riccardo Williams, raises three points for reversal: (1) the trial court erred in failing to allow the appellant’s expert to testify concerning the standard of care required of the appellee and the nature and danger of river currents; (2) the trial court erred in failing to give the appellant’s jury instructions dealing with the proper standard of care owed by the appellee, the standard of comparative fault, the applicable federal regulations concerning pleasure craft, and state statutes dealing with water vehicles; (3) the jury’s verdict was not supported by substantial evidence. Finding no error, we affirm the judgment of the trial court.

Facts

On July 9, 1986, decedent Byron Williams, appellee Jimmy Ingram, and Danny Easterling, who were employed together at a Pine Bluff automobile dealership service center, left their workplace and went to Mr. Ingram’s house near the Arkansas River, where he kept a party barge. On the way, they stopped at a liquor store and purchased two six packs of beer.

After they arrived at Mr. Ingram’s house, the three men boarded the party barge, taking the two six packs with them, and proceeded to an area known as Slackwater Harbor. During the period of between ninety minutes and two hours that they were on the river, each of the men consumed several beers. According to the trial testimony of Mr. Ingram and Mr. Easterling, Mr. Williams had somewhere between two and four beers during the excursion.

The record reveals that, at one point, they stopped the boat while Mr. Ingram and Mr. Williams went swimming in about four feet of water. Mr. Williams climbed out of the water and boarded the boat after suffering cramps. Subsequently, the three men resumed their water journey and moved from the harbor area into the Arkansas River with Mr. Williams operating the craft at some point. According to Mr. Ingram, while they were on the river, Mr. Williams asked that they stop and go swimming again. Mr. Ingram stated that he initially refused but then acceded to Mr. Williams’s request.

Once the party barge was stopped, Mr. Ingram entered the water first, followed by Mr. Williams. Mr. Ingram swam back to the boat and climbed aboard. At that point Mr. Easterling called his attention to Mr. Williams, who had gone under the water once and now “had both hands in the air and had his mouth opened, just like he wanted to holler for someone to help him, but he was panicked.”

Mr. Williams went under a second time before the two men on the party barge were able to offer any assistance, and he did not come up again. Mr. Ingram and Mr. Easterling waited in the area for fifteen or twenty minutes but saw no sign of Mr. Williams. The two men then drove the boat to a marina and reported the incident.

An autopsy was performed at the request of appellant Pearl Williams, the decedent’s mother. Dr. Joseph Halka, the forensic pathologist who performed the autopsy, testified that he determined that the cause of death was drowning and that Mr. Williams had a blood alcohol level in the range of .30.

Mrs. Williams filed a complaint in Jefferson County Circuit Court on July 7, 1989, alleging that Mr. Ingram’s “negligent, careless, reckless, and unlawful action” was the proximate cause of Mr. Williams’s death and praying for judgment in the amount of $2,082,200. Following a jury trial on January 26 and 27, 1994, a verdict signed by ten of twelve jurors was returned in favor of Mr. Ingram. The trial court denied Mrs. Williams’s motion for judgment notwitstanding the verdict or for new trial. From that decision, this appeal arises.

/. Expert testimony

In her first argument for reversal, Mrs. Williams contends that the trial court erred in refusing to allow the testimony of David E. Cole, a maritime and marine safety expert, on the requisite standard of care and the nature and danger of river currents. Under Ark. R. Evid. 702, the test for admissibility of expert testimony is whether specialized knowledge will aid the trier of fact in understanding the evidence or in-determining a fact in issue. Banks v. Jackson, 312 Ark. 232, 848 S.W.2d 408 (1993). Mrs. Williams asserts that Mr. Cole’s credentials provided him with specialized knowledge relating to safety standards and river currents that went beyond the general knowledge of an average person and that, in line with Rule 702, would have assisted the trier of fact in understanding the evidence and in determining the facts in issue.

Whether a witness may give expert testimony rests largely within the sound discretion of the trial judge, and that determination will not be reversed absent an abuse of discretion. Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993). On appeal, the appellant must shoulder the burdensome task of demonstrating that the trial court has abused its discretion. Sims v. Safeway Trails, Inc., 297 Ark. 588, 764 S.W.2d 427 (1989).

Mr. Cole stated in his deposition that, as a hearing officer for the Eighth Coast Guard District in New Orleans, he regularly received reports of violations of federal boating regulations. He also noted that “Swimming in any major river like that is dangerous because of the current. . . . People who go swimming in the river usually will get swept away by the current. Or find themselves in a position where they just can’t get back to their boat.”

Although federal maritime and marine regulations may have relevance to the present case, nothing in the deposition indicates that the knowledge displayed by Mr. Cole was so specialized that it was beyond the ability of the trier of fact to understand and draw its own conclusions. See Montgomery v. Butler, 309 Ark. 491, 834 S.W.2d 148 (1992). The potential dangers of the Arkansas River’s currents were not beyond the comprehension of the jury. Moreover, both Officer Bo Fontaine of the Jefferson County Sheriff’s Department and Mr. Ingram agreed in their testimony that the river was “extremely dangerous” at the point where Mr. Williams drowned. Consequently, no prejudice resulted in this regard from the exclusion of expert testimony.

As for Mr. Cole’s proffered testimony on the legal requirements for lifesaving equipment, both Mr. Ingram and Mr. Easterling testified that the party barge was equipped with United States Coast Guard-approved lifejackets, a rope, and a ring buoy. Officer Fontaine testified with respect to the legal requirements for having life jackets on board a vessel. In addition, the trial court instructed the jury on Arkansas statutory specifications regarding the operation of motorboats and vessels, including the duty owed by the operator of a vessel and the requirement that “every motorboat shall have one life preserver, buoyant vest, ring buoy or buoy cushion of the type approved by the commander of the United States Coast Guard in good and serviceable condition for each person on board.”

In sum, the trial court did not err in refusing to allow the administratrix’s expert witness to testify.

II. Jury instructions

Mrs. Williams argues, in her second point for reversal, that the trial court erred in refusing to give four jury instructions. Three of the proffered plaintiff’s instructions were based on federal admiralty and maritime law, while the fourth, which was refused in part and delivered in part, was a modified version of AMI Civil 3d, 601, incorporating Ark. Code Ann. § 27-101-201(a) (Repl. 1994).

With respect to the first three instructions, the 1989 complaint contained the phrase “admiralty and maritime law,” but Mrs. Williams did not invoke the jurisdiction of the federal district court. Under 28 U.S.C. § 1333, the federal district courts have “original jurisdiction, exclusive of the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”

Mrs. Williams made no effort to prosecute her claims under admiralty and maritime law. Neither did she seek or obtain a ruling from the trial court on whether her claims fell within the bounds of maritime tort. On the basis of the characterization of the claim in the 1989 complaint as an admiralty and maritime matter, Mr. Ingram sought to have it dismissed for lack of subject-matter jurisdiction, but the trial court denied the motion without comment.

A maritime tort occurs and admiralty jurisdiction is appropriate “when a potential hazard to maritime commerce arises out of an activity that bears a substantial relationship to traditional maritime activity.” Sisson v. Ruby, 497 U.S. 358, 362 (1990). A federal court will initially assess whether the particular incident is likely to disrupt commercial activity and will then determine whether there is a “substantial relationship between the activity giving rise to the incident and traditional maritime activity.” Id. at 364.

In Southern v. Thompson, 754 F.2d 151, 153 (4th Cir. 1985), the Fourth Circuit Court of Appeals noted that the allegation of navigational error “appears to be the key to admiralty jurisdiction when dealing with small pleasure craft.” Applying the Sis-son analysis in a case involving a diving injury sustained by a houseboat guest, the Ninth Circuit Court of Appeals concluded that the plaintiff had failed to show “a substantial relationship between aquatic recreation off a pleasure boat and traditional maritime activity.” Delta County Ventures, Inc. v. Magana, 986 F.2d 1260, 1263 (9th Cir. 1993).

The Maryland federal district court considered a situation similar to that in the present case in Smith v. Knowles, 642 F. Supp. 1137 (D. Md. 1986). There, the plaintiff had filed suit after the decedent, while intoxicated, had drowned while diving off a pleasure boat. The plaintiff alleged that the defendant had been negligent because he knew that the decedent had been drinking and could not swim and because he did not offer life jackets or make immediate rescue efforts. In concluding that no maritime tort had occurred, the district court observed that, however tragic, the “failures of pleasure craft operators to provide life jackets, or to rescue their passengers,. . . will not impede maritime commerce. ... As a matter of common sense, admiralty jurisdiction was not intended to cover cases like this one.” Id. at 1140.

Given the absence of any maritime tort (and apart from jurisdictional considerations), Mrs. Williams was not entitled to the three maritime jury instructions. Moreover, although the violation of a statute or regulation is evidence that a jury may consider in determining whether a defendant is guilty of negligence, Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983), it was not necessary in the present case for the instructions to have incorporated the provisions of federal law when another instruction based on an Arkansas statute covering essentially the same subject was delivered. In the partially refused, partially delivered 601 instruction, the trial court instructed the jury on the applicable standard of care. It is not error for the trial judge to refuse to give a jury instruction if other instructions cover the issue. Precision Steel Warehouse, Inc. v. Anderson-Martin Mach. Co., 313 Ark. 271-A, 856 S.W.2d 306 (1993), Supp. op. on denial of reh’ing.

The trial court did not commit reversible error in refusing Mrs. Williams’s instructions.

III. Substantial evidence

Finally, Mrs. Williams asserts that the jury verdict is not supported by substantial evidence. Despite her claim that she “renewed” her request for a directed verdict, neither the abstract nor the record indicates that such a motion was renewed or even made in the first place. Mrs. Williams did, however, make a motion for a new trial, which was denied by the trial court.

On appellate review, when a motion for judgment n.o.v. or new trial is denied, the test is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Schuster’s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987). In determining on appeal whether the evidence is substantial, this court need only consider the evidence on behalf of the appellee and that part of the evidence that is most favorable to the appellee. Muskogee Bridge Co. v. Stansell, 311 Ark. 113, 842 S.W.2d 15 (1992).

The evidence as presented at trial has been set forth in detail in the recitation of facts above. It should be added, however, that Mr. Ingram stated that he had no personal knowledge of whether Mr. Williams could swim and that Mr. Easterling reported that Mr. Williams “did tell us that he could swim.” Evidence indicated that Mr. Williams had previously entered the water without serious incident (other than experiencing “cramps”) before he jumped in again to swim and drowned.

Mr. Ingram said that he was “not sure” if he had a ring buoy on board at the time of the drowning. Mr. Easterling testified that “[t]he best I can remember,” the rope on the party barge had a ring attached to it. Mr. Ingram stated that he had ten or fifteen life preservers on the boat, and Mr. Easterling agreed that he “had plenty of life preservers,” estimating the number at “eight or ten or more.”

It is readily apparent from a review of the record that the jury accepted Mr. Ingram’s version of events. Disputed facts and the credibility of witnesses are within the province of the jury to resolve. France v. Nelson, 292 Ark. 219, 729 S.W.2d 161 (1987). A jury has the right to believe or to disbelieve all or any part of the testimony at trial and is in a superior position to judge the credibility of the witnesses. Muskogee Bridge Co. v. Stansell, supra.

As for Mr. Williams’s blood-alcohol content, even Dr. Halka testified that decomposition, which had begun during the five days that the body remained submerged and missing, “will contribute fermentation of body substances, especially in the fluids of the body, and they will contribute [to] a gradual increase [in blood-alcohol content].” The issue of the degree of Mr. Williams’s intoxication was a matter for the jury to resolve, as was the question concerning his ability to swim.

From the evidence presented, when viewed in the light most favorable to Mr. Ingram, there was substantial evidence to support the jury verdict.

Affirmed.

Roaf, J., not participating.