author: Bradley D. Jesson, Chief Justice.

text:
    Christine M. JONES v. Jerry A. JONES
    95-1150
    931 S.W.2d 767
    Supreme Court of Arkansas
    Opinion delivered November 4, 1996

      The Perroni Law Firm, PA., by: Samuel A. Perroni and Carla Nadzam, for appellant.

      Grinder Law Firm, by: Helen Rice Grinder, for appellee.
   Bradley D. Jesson, Chief Justice.

This is a child-custody modification case. On Sunday morning, December 13, 1992, after receiving ex parte letters from a psychologist and psychiatrist employed by appellee Dr. Jerry A. Jones, the chancellor entered an emergency order providing that Dr. Jones was not required to return the parties’ minor child, Cameron, to the custodial parent, appellant Christine Jones. Two additional ex parte orders and one ex parte communication later, Ms. Jones was also deprived of weekday visitation. Following yet a fourth ex parte order and a hearing on Dr. Jones’s petition for permanent change of custody, the chancellor found that the following changes in circumstance warranted changing custody to Dr. Jones: (1) Ms. Jones was unable to provide for Cameron’s emotional needs; (2) Ms. Jones had moved from Conway, where Dr. Jones lived, to the higher crime area of Little Rock; and (3) Dr. Jones had recently remarried and thus had a more stable family situation. Ms. Jones appealed, and the Court of Appeals affirmed the chancellor’s ruling in Jones v. Jones, 51 Ark. App. 24, 907 S.W.2d 745 (1995). We granted review pursuant to Ark. Sup. Ct. R. l-2(a)(ll) and (f)(1), as we have decided a previous appeal involving the parties. See Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995). Upon a de novo review of the entire record, we conclude that the chancellor erred in shifting the burden of proof away from Dr. Jones, the party seeking modification, to require Ms. Jones to prove her ability to adequately provide an emotional and stable home environment for the child. When viewing the erroneous shifting of the burden of proof on this issue together with the chancellor’s faulty reliance on Ms. Jones’s move to Little Rock and Dr. Jones’s remarriage as material changes in circumstances, we must conclude that the chancellor’s decision to change custody to Dr. Jones was clearly erroneous. For the reasons set forth below, we reverse and remand with instructions to reinstate the original custody order.

The one-sided nature of these proceedings requires a detailed recitation of the facts. The parties’ son, Cameron, was born on October 27, 1989. Dr. Jones, an OB-GYN physician, participated in his son’s delivery, as did his current wife, Diana, who was the labor nurse. While Diana’s and Dr. Jones’s relationship began in September 1990, Dr. Jones and Christine Jones were not divorced until November 13, 1990, just shortly after Cameron’s first birthday. The divorce decree awarded custody of Cameron to Ms. Jones, provided that Dr. Jones was to pay $2,000.00 per month in child support, and required that both parties communicate and correspond with each other regarding Cameron’s health, education, and welfare. The following April, Dr. Jones and Diana, who had custody of a child from a previous marriage, were married. That same year, Christine Jones, also a nurse, got a job with a Little Rock doctor and moved to Little Rock. Dr. Jones opposed the move and offered Ms. Jones $20,000.00 for down payment on a house if she would stay in Conway. According to the parties’ counselor, Arnold Murray, Dr. Jones told him in January of 1992 that, if Ms. Jones did not allow him more visitation with Cameron, he would take her to court and take the child away from her because he had more money to pursue the case than she did.

In April of 1992, without informing Ms. Jones, Dr. Jones took Cameron to his friend and medical school classmate, Dr. Justin A. Ternes of Fayetteville, for an evaluation. Dr. Jones related to Dr. Ternes that Cameron had been biting and hitting himself. Dr. Ternes recommended that Cameron see Dr. Gayle Harrison, a developmental psychologist in Litde Rock. Dr. Harrison began seeing Cameron in August of 1992. After observing him for five months, Dr. Harrison noted that Cameron was making progress. Sometime in November of 1992, Dr. Jones told Dr. Harrison that he was thinking of getting custody of Cameron. On November 13, Dr. Harrison spoke with Dr. Jones’s attorney, Helen Rice Grinder, by telephone. On December 3, Ms. Grinder went to Dr. Harrison’s office, at which time Dr. Harrison noted on her file that Dr. Jones planned to seek permanent custody. The following Thursday, December 10, Dr. Harrison saw Cameron and determined that he had regressed to the point that he needed to remain with Dr. Jones. Approximately 4:30 p.m. the next day, Dr. Harrison faxed a letter directly to the chancellor. In her letter, Dr. Harrison reported that Dr. Jones had brought Cameron to her office after having picked him up from Ms. Jones’s home. She observed that Cameron’s behavior had significantly regressed, as he had hidden in a corner, was withdrawn, fearful, clingy, hypervigilant, and unusually disorganized. Dr. Harrison attributed the cause of this behavior to Christine Jones, for Dr. Jones had told her the child had just come from her home.

After receiving a copy of Dr. Harrison’s letter, Ms. Grinder requested a letter from Dr. Ternes. Dr. Ternes, expressing a similar concern that an emergency change in custody was necessary, composed a letter to the chancellor and faxed it to Ms. Grinder’s office. On Sunday morning, December 13, 1992, Dr. Jones attached these letters to his petition and affidavit for permanent change of custody and emergency ex parte relief. The chancellor issued an emergency order providing that Dr. Jones was not required to return Cameron to Ms. Jones. On December 14, Ms. Jones received notice that an emergency custody hearing would be held on December 16. This was the first time she learned that Cameron was receiving therapy.

Following a brief hearing on December 16, the chancellor concluded that there was some evidence of danger to Cameron and ruled that temporary custody would be placed with Dr. Jones. However, in contravention to his finding that Ms. Jones posed a danger to Cameron, the chancellor expressed his desire that the parties setde their custody dispute before the Christmas holidays and announced that Ms. Jones would be awarded “standard” visitation. On December 18, without first submitting the proposed precedent to Ms. Jones’s counsel, the chancellor entered a second ex parte order, prepared by Dr. Jones’s counsel, which provided that Ms. Jones’s weekday visitation was subject to Dr. Harrison’s review and that Ms. Jones was not to take Cameron to any other psychologists or psychiatrists without court approval. The order also abated Dr. Jones’s $2,000.00 per month child-siipport obligation. Despite Ms. Jones’s objection to the ex parte nature of these proceedings, the chancellor entered yet a third ex parte order on January 4, 1993, revoking her weekday visitation. This order was precipitated by Dr. Harrison’s second ex parte communication to the chancellor recommending that transitional situations be kept to a minimum to avoid detriment to the child.

On January 14, 1993, Ms. Jones filed a motion asking the chancellor to reconsider his three ex parte orders and to recuse from the case. Without ruling on the recusal issue, the chancellor sent a letter to the parties on March 22, indicating that he was granting Dr. Jones’s request that Dr. Wrenda Gallien be appointed to perform a psychological examination of Diana and him. The chancellor issued a fourth ex parte order on April 20, in which he appointed Dr. Gallien’s firm, the Family Guidance Center, to compare parenting abilities of Dr. Jones, Diana Jones, and Christine Jones. The order made no provision for the testing of Cameron.

The final hearing on Dr. Jones’s permanent-custody petition began on February 15, 1994. On March 7, the chancellor entered a written order granting Dr. Jones’s petition on the basis of three factors: (1) Ms. Jones was unable to provide for Cameron’s emotional needs; (2) Ms. Jones had moved from Conway, where Dr. Jones lived, to the higher crime area of Little Rock; and (3) Dr. Jones had recendy remarried and thus had a more stable family situation.

In reviewing chancery cases, we consider the evidence de novo, but will not reverse a chancellor’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. ARCP 52(a). Generally, courts impose more stringent standards for modifications than for initial determinations of custody. Jeff Atkinson, Modern Child Custody Practice, § 9.02 at 452 (1986). In Arkansas, child custody is determined by what is in the best interests of the child, and it is not altered absent a material change in circumstances. Purtle v. Committee on Professional Conduct, 317 Ark. 278, 878 S.W.2d 714 (1994); Ark. Code Ann. § 9-13-101 (Repl. 1993). The majority of states follow this approach. Atkinson, Modern Child Custody Practice, § 9.05 at 458. Using these basic principles as guideposts, we will now discuss separately the three changes in circumstances on which the chancellor relied.

Christine Jones’s move to Little Rock

Ms. Jones challenges the chancellor’s finding that her move from Conway to the Hillcrest area in Little Rock constituted a material change in circumstances. At the final hearing, Dr. Jones presented the testimony of Jim King, a private investigator he had employed to complete a crime-statistical comparison of his and Ms. Jones’s respective neighborhoods. King looked at a ten-block area of Ms. Jones’s Hillcrest neighborhood and a ten-block area of Dr. Jones’s Pippinpost neighborhood in Conway. Having gathered statistics from the Arkansas Crime Information Center, King testified, over Ms. Jones’s objection, that a person was “99 percent more likely to become a victim of crime in the Little Rock area than in the Conway neighborhood.” Finally, King characterized the Hill-crest neighborhood as a “war zone.” While the chancellor was evidently persuaded by Dr. Jones’s argument, we find it lacking in both legal and factual support.

Under Dr. Jones’s theory, the parent living in the statistically safer neighborhood, town, or city should have an advantage in custody disputes. This has never been the law in Arkansas, and we refuse to make such an inequitable principle part of our jurisprudence. In determining support awards, we have encouraged divorced spouses to acquire financial independence. For example, we have held that a court, under proper circumstances, may impute an income to a spouse according to what could be earned by the use of his or her best efforts to gain employment suitable to his or her capabilities. Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988). In this case, Ms. Jones, in an effort to support herself and her child, moved to Little Rock after obtaining a job there. Thus, it would be inconsistent for us to allow our courts to impose a custody penalty as a price of compliance with our policy of encouraging economic autonomy.

In Ising v. Ward, 231 Ark. 767, 332 S.W.2d 495 (1960), we reversed a chancellor’s decision denying a divorced wife’s application for permission to take her three-year-old child to Oklahoma where she and her new husband wished to establish their home. The chancellor’s disapproval was based solely on the trailer home’s location, as the trailer sat on a hill or ridge some fifty to one hundred yards from the edge of Tenkiller Lake. We wrote:

If one is inclined to be fearful the threat of danger can be discovered everywhere, in the crowded streets of the city or, as here, in the comparative seclusion of the countryside. We know, however, that in Arkansas and throughout America thousands and thousands of children, representing many generations, have grown up from infancy next to rivers, to lakes, to mountain slopes, and to countless other natural conditions fully as hazardous as those existing near Tenkiller Lake. An attempt to shelter a growing child from every possible danger is manifestly futile, and it is certain that complete security cannot be achieved by means of a court decree. In practice the responsibility for choosing a child’s environment must ordinarily rest upon the parent having custody of the child. The normal love of a parent, especially of a mother, for her child provides the best possible assurance that the infant will not be needlessly exposed to danger. We find in this record no proof to persuade us that the appellant cannot be relied upon to look after her daughter in the new home that she and her husband wish to occupy.

231 Ark. at 770.

Other jurisdictions have recognized the inherent flaws in Dr. Jones’s argument. We find the case of Fitzsimmons v. Fitzsimmons, 722 P.2d 671 (N.M.App. 1986), particularly instructive. In that case, the husband, in seeking an original award of custody, argued that, while he remained in the small town of Grants, New Mexico, the wife’s new residence in Albuquerque posed a danger to their children. While the trial court was persuaded by the husband’s argument, the New Mexico Court of Appeals reversed:

The logic of [husband’s] argument is faulty. A person, through no fault of his own, can be a crime victim in any American community. . . To accept husband’s argument would require us to find that living in Albuquerque is inherently dangerous, and custody should never be awarded to a parent residing there. To state the proposition is to expose its fallacy.

722 P.2d at 678. See also King v. King, 500 P.2d 267 (Or. App. 1972) (husband’s claim that wife lived in a neighborhood with a high incidence of crime rejected as a change of circumstances justifying a change in custody). Similarly, we are not persuaded that Ms. Jones’s move to Little Rock, in and of itself, was a material change in circumstances. To the extent the chancellor relied on this faulty premise in making his decision on the permanent-custody issue, his ruling was in error.

Dr. Jones’s remarriage

Ms. Jones also contests the chancellor’s reliance on Dr. Jones’s remarriage as a material change in circumstances. While we have previously held that remarriage of one of the parties is a factor that may be considered when deciding what is in a child’s best interest, we have applied this principle to modifications of support obligations. Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987); Reynolds v. Reynolds, 299 Ark. 200, 771 S.W.2d 764 (1989). Regarding matters of child custody, Professor Atkinson recites the majority view that a change of circumstances of the noncustodial parent, including a claim of an improved life because of a recent marriage, is not sufficient to justify modifying custody. Atkinson, Modern Child Custody Practice, § 9.07 at 462-463; lisee also Delgado v. Silvarrey, 528 So.2d 1358 (Fla. App. 3 Dist. 1988) (father’s remarriage and anticipation of higher standard of living did not amount to circumstances sufficient to support change in custody); Spoor v. Spoor, 641 N.E.2d 1282 (Ind.App. 3 Dist. 1994) (changes in lifestyle, including remarriage, do not warrant a change in custody). When examining the facts in this case, we cannot agree that Dr. Jones’s remarriage constituted a material change in circumstances.

Dr. Jones married his present wife, Diana, five months after the parties’ divorce. He admitted at trial that their relationship began in September 1990, predating the parties’ November divorce. During oral argument, Dr. Jones agreed that, at the time of the original divorce decree, it was within his reasonable contemplation to remarry.

In Fullmer v. Fullmer, 761 P.2d 942 (Utah App. 1988), immediately following the parties’ divorce, the husband remarried a woman who was pregnant with his child before the divorce was final. While the husband stipulated to the initial custody arrangement that the wife be awarded custody, he petitioned for modification only sixteen months later. In his petition, he claimed that, while the wife’s full-time job would cause the child’s placement in day care, his new wife was a full-time homemaker. The Utah Court of Appeals rejected his argument, reasoning that the alleged change in circumstances was within the reasonable contemplation of the husband and thus not legally cognizable:

It is also reasonable to assume that respondent would remarry soon after the parties’ divorce and have another child as . . . his second wife was pregnant with respondent’s child before the parties’ divorce was final. Given respondent’s awareness of the circumstances at the time he voluntarily entered into the stipulation which awarded appellant custody, we find his petition to modify custody the very type of litigation and harassment from which our supreme court has attempted to protect custodial parents.

761 P.2d at 947-948.

Stated simply, Dr. Jones cannot use the circumstances he created as grounds to modify custody. Given his awareness of the circumstances at the time he voluntarily entered into the agreement to award custody of Cameron to Ms. Jones, we cannot agree that his remarriage constituted a material change in circumstances.

Cameron’s emotional needs

The remaining factor alleged by Dr. Jones was that Ms. Jones had borderline personality disorder with a continuing mental and emotional problem that had caused Cameron to suffer emotional problems. The chancellor found that Ms. Jones’s inability to provide for the emotional needs of the child was a material change in circumstances that justified modification of the original custody award.

A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered. Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988). The party seeking modification of the child-custody order has the burden of showing a material change in circumstances. Carter v. Carter, 19 Ark. App. 242, 719 S.W.2.d 704 (1986). While an agreement of the parties regarding custody is not binding on the courts, it is of some importance as tending to show attitude at the time the original divorce suit was filed. Burnett v. Clark, 208 Ark. 241, 185 S.W.2d 703 (1945).

In this case, at the time the original decree was entered, Dr. Jones agreed that Ms. Jones would have custody of Cameron. The chancellor recognized in his final order that both parties must have considered each other to be fit and proper persons to have custody of the child, and that the custody in Ms. Jones was what both parties felt to be in the best interest of the child at the time. Both parties agreed to communicate and correspond with each other regarding Cameron’s health, education, and welfare.

In violation of this agreement, Dr. Jones, giving no notice to Ms. Jones, took Cameron to see Dr. Ternes in April of 1992, then Dr. Harrison in August of 1992. One week after meeting with Dr. Jones and his attorney regarding Dr. Tones plans to change custody, Dr. Harrison faxed an ex parte letter to the chancellor claiming that an emergency existed necessitating that Cameron not be returned to his mother. At the request of Dr. Jones, Dr. Ternes composed a letter containing a similar recommendation and faxed it to Dr. Jones’s attorney, who in turn delivered it to the chancellor along with Dr. Jones’s verified petition and affidavit. After receiving this information from Dr. Jones and the experts he had employed, the chancellor granted his request for emergency ex parte relief.

Professor Atkinson criticizes ex parte communication between an expert and the judge as improper. Atkinson, Modern Child Custody Practice, § 12.16 at 148 (Supp. 1995). We agree. The letters from Dr. Harrison and Dr. Ternes were not under oath, see Ark. Code Ann. § 16-40-103(b)(Repl. 1994), and should not have been considered by the chancellor.

We are further troubled by the chancellor’s second ex parte order, which gave Dr. Jones’s expert, Dr. Harrison, the authority to modify Ms. Jones’s weekday visitation if she found it was detrimental to the child. Professor Atkinson observes that, although a court may base its decision on the opinion of an expert, it cannot delegate to the expert the power to make a decision. Atkinson, Modern Child Custody Practice, § 12.15 at 687; see abo Shapiro v. Shapiro, 458 A.2d 1257 (Md. App. 1983). In Arkansas, chancery courts have subject-matter jurisdiction to decide the custody, support, and visitation of a child born of the marriage. McCormac v. McCormac, 304 Ark. 89, 799 S.W.2d 806 (1990). Not only did the chancellor delegate jurisdiction of the visitation question to Dr. Jones’s expert in this case, Dr. Harrison exercised this extraordinary grant of power by way of her ex parte letter to the court stating that Ms. Jones’s weekday visitation should be terminated. The chancellor entered a third ex parte order to this effect on January 4, 1993, thus denying Ms. Jones’s weekday visitation. While it is permissible for the chancellor to base an award of custody or visitation after hearing the opinions of experts, we resolve that he cannot delegate this judicial function to someone outside the court, especially to an expert employed by one of the parties.

After receiving a request from Dr. Jones that Dr. Wrenda Gallien be appointed to perform a psychological evaluation, the chancellor entered a fourth ex parte order appointing Dr. Gallien’s firm, the Family Guidance Center, to compare parenting abilities of Dr. Jones, Diana Jones, and Christine Jones. While a comparison of parenting skills might well be appropriate in determining an initial award of custody, the chancellor’s fourth ex parte order seems to gloss over the issue before him — whether a material change in circumstances and the best interest of the child necessitated a change in custody.

The expert testimony presented at the final hearing on this alleged change in circumstances included the following. Dr. William Siegal treated Ms. Jones in 1987 and diagnosed her as having a borderline personality disorder. Dr. Avram Jeffrey Zolten of the Family Guidance Center examined Ms. Jones and observed that she exhibited paranoid behavior. However, he agreed that he and Ms. Jones encountered difficulties when Ms. Jones wanted to tape record the evaluation. While Dr. Zolten found no evidence that she was incapable of adequate parenting, he expressed concern regarding Ms. Jones’s statement that, when she raised her voice to discipline Cameron, he would run to the corner and cry. Dr. Warren Douglas examined Ms. Jones nine times in 1993 and “totally disagreed” with Dr. Siegal’s diagnosis that she had a borderline personality disorder. He observed that she was very stable, and had no concerns about her parenting abilities or skills.

Dr. Harrison and Dr. Becky Porter treated Cameron and opined that he had been traumatized by a female authority figure. While neither doctor saw Ms. Jones, both testified that her home presented an unstable environment for the child. Dr. Wrenda Gal-lien, the court-appointed psychiatrist, testified that Cameron should remain with his mother. She opined that the child would suffer severe trauma if custody were changed because he would be taken from his mother, who had raised him for the two years since the divorce. Dr. Gallien also criticized Dr. Harrison’s ex parte communication with the chancellor. According to Dr. Gallien, this conduct both constituted and resulted in a “travesty of justice.”

Despite the many experts who testified at the final hearing, we note the absence of a disinterested evaluation of the minor child. We think it significant that the chancellor, through its second ex parte order, provided that, while Ms. Jones’s weekday visitation was subject to review by Dr. Jones’s expert, Ms. Jones could not take Cameron to any other psychologists or psychiatrists without court approval.

While the chancellor specifically rejected Dr. Jones’s contention that Ms. Jones suffered from borderline personality disorder, he made the following finding in his written order:

While [Ms. Jones] has proven that she is able to function adequately and competently in most areas of her social and work life, the Court questions [her] ability to adequately provide an emotional, stable and wholesome home for the child.

(Emphasis added.) The chancellor’s finding that Ms. Jones had not proven that she was able to provide an emotional and stable home environment for Cameron convinces us that he erroneously shifted the burden of proof to Ms. Jones. The chancellor’s repeated entry of ex parte orders, his reliance on ex parte communications from Dr. Jones’s expert, Dr. Harrison, and his failure to appoint a neutral expert to examine the child, lead us to the conclusion that Dr. Jones was somehow relieved of the legal burden to prove that a material change of circumstances and the best interest of the child warranted modification of the initial custody order.

We are mindful of the fact that, as a result of today’s decision, Cameron, now age six, will face another change of custody. Yet to uphold the chancellor’s shifting of the burden of proof in this case would be to undermine the very purpose of our elevated standard of proof in modification proceedings — to promote stability and continuity in the life of the child. In sum, when viewing together the repeated entry of ex parte orders, the erroneous shift of the burden to Christine Jones to prove her emotional stability, and the chancellor’s faulty reliance on her move to Little Rock and Dr. Jones’s remarriage as material changes in circumstances, we must conclude that the chancellor’s decision to change custody to Dr. Jones was clearly erroneous. In so holding, it is unnecessary for us to address Ms. Jones’s remaining arguments pertaining to the temporary custody award. Vairo v. Vairo, 27 Ark. App. 231, 769 S.W.2d 423 (1989).

Reversed and remanded with instructions to reinstate the original custody order.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Arkansas, Department of Finance and Administration v. Brandon K. TEDDER
    96-429
    932 S.W.2d 755
    Supreme Court of Arkansas
    Opinion delivered November 4, 1996

      Beth B. Carson, Chief Counsel, for appellant.

      Michael A. Skipper and Stephen W. Tedder, for appellee.
   Bradley D. Jesson, Chief Justice.

This is an interlocutory appeal from an order certifying a class action. The appellee, Brandon K. Tedder, purchased a used Ford Bronco for $4,900.00 and paid $220.50 in sales tax on the vehicle. He filed a claim with appellant Department of Finance and Administration for refund of the $220.50 on the ground that the sale of the used vehicle was exempt as an isolated sale under Ark. Code Ann. § 26-52-401(17)(Repl. 1992 and Supp. 1995). Following the Department’s denial of the refund, Mr. Tedder filed suit in chancery court on behalf of himself and all other taxpayers similarly situated. Following a hearing, the chancellor certified a class of persons under Ark. R. Civ. P. 23 as “those persons, parties, or entities who paid sales tax on the consideration for used motor vehicles, trailers, or semitrailers purchased from another person, corporation, etc., not engaged in the business of selling used motor vehicles, trailers, or semi-trailers, between July 14, 1992 and February 12, 1995.” The Department appeals the order of certification on the basis that the chancellor lacked subject-matter jurisdiction to certify the class. We agree with the Department’s argument and reverse and remand.

Our constitution generally prohibits suits against the state. Ark. Const, art. 5, § 20. However, Ark. Code Ann. § 26-18-507(e)(2)(A) (Repl. 1992) permits a taxpayer to sue the state for an improperly collected sales tax only after a refund has been sought and refused or the Commissioner has not acted upon the taxpayer’s request. Since Mr. Tedder is the only taxpayer who had requested a refund and had his application denied, the Department claims that the chancery court did not have subject-matter jurisdiction over the remaining members of the proposed class. In State v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996) (substituted opinion granting rehearing), we resolved this issue in the Department’s favor. Recognizing strong fiscal public policy concerns, we held that full compliance with the statute is necessary before sovereign immunity is waived.

While the Staton case involved a final judgment, both parties in the present case direct our attention to our opinion in Arkansas State Bd. of Educ. v. Magnolia School Dist. No. 14, 298 Ark. 603, 769 S.W.2d 419 (1989), in which we held that, in an interlocutory appeal from a certification order, we would only hear argument on whether the trial court abused its discretion in certifying the class under Ark. R. Civ. P. 23. We agree with the parties that Magnolia School District is distinguishable. In that case, the parties had provided no authority that the defenses of sovereign immunity and lack of standing, would, if proven, deprive the chancery court of jurisdiction. 298 Ark. at 604. Conversely, in this case, these issues have been fully developed. As we recognized in Staton, the question of subject-matter jurisdiction is always open and can be raised at any time. Staton, slip op. at 4; see also Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995); Arkansas Dept. of Human Serv. v. Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105 (1993). It does not matter how the question of subject-matter jurisdiction arises; we can raise the issue on our own motion. Arkansas Dept. of Human Serv. v. Estate of Hogan, supra.

In the case before us, Mr. Tedder was the only taxpayer who complied with § 26-18-507(e)(2) (A) and thus caused the state, through the Department, to waive sovereign immunity. Because the proposed class of taxpayers had not complied with this statute, we hold that the chancellor erred in certifying the class and reverse. Reversed and remanded.

Newbern, Corbin, and Brown, JJ. dissent. See dissenting opinions in State v. Staton, 325 Ark. 341, _, _ S.W.2d _, _ (October 28, 1996)(substituted opinion granting rehearing).


author: Tom GLAZE, Justice.

text:
    Michael CARTER v. STATE of Arkansas
    95-1022
    932 S.W.2d 324
    Supreme Court of Arkansas
    Opinion delivered November 4, 1996

      Horace J. Fikes, Jr., Sharon M. Fortenberry, and C. Thompson Owens, for appellant.

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

Appellant Michael Carter, thirteen years old, confessed to a murder committed on November 20, 1994. Following a bench trial, Carter was found guilty of capital murder and adjudicated a delinquent. He raises two points for reversal on appeal, but we affirm because Carter has failed to abstract that part of the record that bears on the points raised.

Carter first contends the trial court committed reversible error by refusing to suppress his custodial confession. Below, Carter argued his statement resulted from an illegal arrest. He also argued other grounds, including the police officers improperly failed to advise him of his rights, they denied him counsel, and failed to obtain an informed and voluntary waiver of his right against self-incrimination. The trial court held an in camera hearing on Carter’s suppression motion, and the trial court rendered its rulings at the end of that hearing. Carter has abstracted none of this lengthy hearing, and even though the record reflects three and one-half pages, setting out the trial court’s rulings concerning Carter’s custodial statements, Carter has abstracted none of them.

Carter’s abstracting deficiency extends to his second argument on appeal as well. At trial, Carter objected to the admission of his confession, claiming the waiver-of-rights form he signed prior to giving his statement failed to comply with Ark. Code Ann. § 9-27-317(g)(2)(A) (Supp. 1995). Again, Carter’s abstract fails to reflect that part of the record dealing with the trial court’s ruling on the § 9-27-317(g) (2) (A) issue.

Under Ark. Sup. Ct. R. 4-3 (g), it is the duty of the appellant in a criminal case to abstract such parts of the record which are material to the points argued in appellant’s brief. Manning v. State, 318 Ark. 1, 883 S.W.2d 455 (1994). Appellant’s failure to abstract such material parts of the record precludes this court from considering those points on appeal. Jackson v. State, 316 Ark. 509, 872 S.W.2d 400 (1994). Because Carter’s abstract is flagrantly deficient, we affirm pursuant to Ark. Sup. Ct. R. 4-2 (b)(2). See Haynes v. State, 313 Ark. 407, 855 S.W.2d 313 (1993).

       No law enforcement officer shall question a juvenile who has been taken into custody for a delinquent act or criminal offense if the juvenile has indicated in any manner that he:
      (i) Does not wish to be questioned;
      (ii) Wishes to speak with a parent or guardian or to have a parent or guardian present; or
      (iii) Wishes to consult counsel before submitting to any questioning.


author: Tom Glaze, Justice. Hani W. FIashem, Special Justice, JOHN Harris Jones, Special Justice,

text:
    Paul A. SCHMIDT, Pauline B. Schmidt, Paul G. Schmidt and Acro Corporation v. PEARSON, EVANS, and CHADWICK, a Partnership; C. Thomas Pearson, Jr.; Marshall Dale Evans; Charles R. Chadwick; Stephen R. Bigger; Steven Tennant, P.A.; and Steven Tennant
    95-519
    931 S.W.2d 774
    Supreme Court of Arkansas
    Opinion delivered November 4, 1996

      Henry McDermott, for appellants.

      Davis, Cox & Wright, by: Constance G. Clark, Walter B. Cox, and Don A. Taylor, for appellees Pearson, Evans, and Chadwick, a Partnership, C. Thomas Pearson, Jr., Marshall Dale Evans, and Charles R. Chadwick.

      Warner, Smith, & Harris PLC, by: G. Alan Wooten and Kathryn Stocks Campbell, for appellees Stephen R. Bigger, Steven Tennant, P.A., and Steven Tennant.
   Tom Glaze, Justice.

The appellants, Paul A., Pauline B., and Paul G. Schmidt, bring this legal malpractice suit against attorneys C. Thomas Pearson, Jr., and Steven Tennant for their alleged negligence committed in Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991). Schmidt involved the Schmidts’ lender-liability action against Mcllroy Bank & Trust. This court affirmed an award of summary judgment dismissing the Schmidts’ suit against Mcllroy Bank because they failed to make a timely amendment to their complaint alleging their status or standing as guarantors of their corporation’s (Aero’s) debts. In other words, the Schmidts had not pled any individual cause of action under their separate guaranty contract against the Bank. Presented with a case of first impression in Schmidt, this court held that filing a motion to amend the pleadings was unnecessary under Ark. R. Civ. P. 15(a), and that until the pleadings were amended and a request was made to strike a pleading, the trial court was not required to determine whether prejudice or undue delay would result from the amendment. Because the Schmidts had had ample time to amend their pleadings to allege their guarantor status, but had failed to do so, we upheld the trial court’s granting of Mcllroy Bank’s second request for summary judgment, which dismissed the Schmidts’ action.

We believe a recitation of the facts leading up to the present legal malpractice action might be helpful. The Schmidts were the sole shareholders of Aero Corporation, a family farming and egg-producing business. The Schmidts had had a business relationship with Mcllroy Bank & Trust since 1976. At the time the lender-liability cause of action arose, Mcllroy Bank held Aero’s secured notes, mortgage, and checking accounts. The notes and the mortgage were secured by the personal guarantees of the Schmidts. In 1986, the Bank’s employees were replaced by employees of Banc-shares, which was in the process of purchasing the Bank. The evidence showed the Bank agreed to extend payments under the secured notes and to allow the Schmidts to temporarily overdraw on Aero’s checking accounts. However, after Aero overdrew its checking accounts, the Bank closed the accounts, filed a foreclosure suit in chancery court, and made demand for payment under the secured notes. The Schmidts filed for Chapter 11 bankruptcies, but voluntarily dismissed them later.

The Schmidts, through their original attorney, Larry Froelich, then filed their lender-liability complaint in circuit court against the Bank, seeking $15 million in compensatory and $1 million in punitive damages for Aero and themselves as shareholders. However, as previously noted in our discussion of Schmidt, the Schmidts failed to request relief as guarantors. While those actions in circuit and chancery court were pending, the Schmidts employed attorney, C. Thomas Pearson, Jr., to pursue their lender-liability suit and to defend the Bank’s foreclosure action. With the Schmidts’ approval, Pearson engaged the assistance of Steven Tennant as co-counsel.

In 1988, the appellants’ original counsel, Larry Froelich, withdrew, leaving Pearson and Tennant as attorneys of record in the lender-liability suit and Tennant as attorney of record in the foreclosure case. See McIlroy Bank & Trust v. Acro Corp., 30 Ark. App. 189, 785 S.W.2d 47 (1990) (where judgment for the Bank was reversed and remanded, because the chancellor signed the foreclosure consent decree in error). On retrial of the foreclosure action, the Bank was awarded $634,279.20 plus 10% attorney’s fee. The Schmidts’ property was sold at foreclosure for $30,000, leaving an outstanding judgment against them.

On August 3, 1990, the Schmidts filed a complaint against their attorneys for breach of contract and for legal malpractice in both the lender-liability and foreclosure actions. Specifically, the Schmidts alleged, among other things, that Pearson and Tennant willfully and negligendy allowed Aero’s corporate charter to be revoked, failed to properly dissolve Aero and preserve its cause of action against the Bank, and failed to properly amend the lender-liability complaint to include the Schmidts as guarantors. The Schmidts sought in excess of $7 million in damages and refund of all amounts paid to Pearson and Tennant. A jury trial was held on August 9-11, and September 15-16, 1994, and by interrogatories the ten-member jury found both Pearson and Tennant negligent. On September 26, the trial court entered judgment against Pearson and Tennant for damages of $880,609.74 in favor of the Schmidts and $3.1 million in favor of Aero. On that same date, Pearson and Tennant filed a motion for judgment notwithstanding the verdict, and in the alternative, for new trial and stay of judgment.

On October 25, the trial court entered its order granting Pearson and Tennant their motion for JNOV finding there was insubstantial evidence to support the verdict. The trial court also conditionally granted them a new trial because of other irregularities in the proceedings. On appeal from that order, the Schmidts argue the trial court abused its discretion in granting Pearson’s and Tennant’s motions for JNOV and new trial, and they also argue the trial court abused its discretion in finding it had erred by (1) failing to strike two veniremen; (2) failing to exclude hearsay evidence; and (3) allowing introduction of testimony regarding Pearson’s and Tennant’s expenditure of monies advanced for litigation costs. Because we find the Schmidts failed to show Pearson and Tennant negligently and proximately caused the Schmidts’ damages, we affirm.

In reviewing this matter on appeal, we are guided by the rule that a trial court may enter judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict of the jury and the moving party is entitled to judgment as a matter of law. McLaughlin v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996). Furthermore, a trial court may not substitute its view for that of the jury, and the jury’s verdict must be clearly against the preponderance of the evidence in order to be set aside. The standard regarding a motion for a new trial is the same. See Ark. R. Civ. P. 50(b). Also, on appeal, this court views the evidence and all reasonable inferences therefrom in the light most favorable to the party for whom the original judgment was entered. McLaughlin, 324 Ark. at 368.

We next turn to those principles that control in legal malpractice actions, and we are met by the rule that an attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of the client. Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996). And, in order to prevail under a claim of legal malpractice, a plaintiff must prove that the attorney’s conduct fell below the generally accepted standard of practice and that this conduct proximately cause the plaintiff damages. To show damages and proximate cause, the plaintiff must show that but for the alleged negligence of the attorney, the result in the underlying action would have been different. Id.; see also Tyson Foods, Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374 (1996); Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995); Shaffer v. Wilkes, 65 F.3d 115 (8th Cir. 1995); Vanderford v. Penix, 39 F.3d 209 (8th Cir. 1994).

In deciding this case, we can assume the Schmidts presented sufficient proof to have prevailed in their underlying lender-liability action against Mcllroy Bank. Even so, we conclude their evidence falls short in showing Pearson’s and Tennant’s actions negligendy and proximately caused the Schmidts’ damages. The Schmidts point to five instances where Pearson and Tennant negligently performed, causing the Schmidts to sustain damages. We consider each instance in the order the Schmidts discussed them in their brief.

The Schmidts first complain of Pearson’s and Tennant’s use of a $11,000 nonrefundable retainer for payment to themselves, other attorneys, and secretaries, rather than for discovery and copying costs. The Schmidts contend that they entered an oral, contingency contract with Pearson and Tennant, and agreed to provide them with an initial $10,000 retainer for discovery, deposition, and copying costs; apparendy, an additional $1000 was paid later. The Schmidts argue Pearson and Tennant were negligent in the use of this retainer.

Whether Pearson and Tennant spent the retainer as the parties agreed is an issue dealing with breach of contract, and not one of negligence. See Robertson v. White, 633 F.Supp. 954 (W.D.Ark. 1986) (the failure to perform a promise implied in a professional relationship sounds in contract, rather than tort). On this point, we note that Paul G. Schmidt testified and conceded the $10,000 paid Pearson and Tennant was nonrefundable and, as a consequence, the evidence reflects there was no duty to return any portion of the retainer to the Schmidts. And while the Schmidts offered some testimony that the retainer should have been spent for depositions, they failed to show what depositions should have been taken or what depositions may have made a difference in proving their case. In addition, from the record as abstracted, the jury was not given an interrogatory on the Schmidts’ breach-of-contract claim, nor did the jury return a finding that a breach of the retainer contract occurred. When the issues are submitted to the jury on interrogatories, failure to request a finding on one issue is a waiver of that issue on appeal, and this court cannot say what the jury would have found. Olmstead v. Moody, 311 Ark. 163, 842 S.W.2d 26 (1992). Further, even if the retainer was negligendy used, the Schmidts fail to show that the misapplied expenditures proximately caused the loss of their lender-liability suit.

The Schmidts also complain that even though they paid this retainer on January 5, 1988, Pearson and Tennant did not enter their appearance until three months later in April. We note that the Schmidts made no argument on this issue, and this court will not consider assignments of error that are unsupported by convincing argument or authority. Fayetteville Sch. Dist. v. Ark. State Bd. of Education, 313 Ark. 1, 852 S.W.2d 122 (1993).

Second, the Schmidts contend Pearson and Tennant ignored the Bank’s settlement offer of $500,000 in the foreclosure action, and did no evaluation or investigation of their lender-liability case until after the offer was withdrawn on November 21, 1988. The Schmidts point to Tennant’s testimony that he waited so he could use the Bank’s evidence presented in the foreclosure hearing to get a “free shot” at what the Bank’s testimony would be in the lender-liability case. Tennant testified after he heard the Bank’s evidence, he “decided we had a hard, hard row to hoe.” The Schmidts contend Pearson and Tennant were negligent in not deposing the Bank’s employees while the foreclosure settlement offer was still viable. In response, Pearson maintains the settlement offer was discussed between the parties, and ultimately rejected.

The Schmidts presented no evidence showing the Bank’s settlement offer in the foreclosure action should have been accepted, nor if it had been accepted that its acceptance would have caused them to prevail in the lender-liability action. In fact, the Schmidts’ expert testified he had no opinion regarding whether the Bank’s settlement offer should have been accepted. Instead, the Schmidts merely assert the deficiency judgment against them would have been less had the settlement offer been accepted.

An attorney is not a guarantor that his judgment is infallible and is not liable for an error of judgment made in good faith. Spivack, Shulman & Goldman v. Foremost Liquor Store, Inc., 124 Ill. App.3d 676, 465 N.E. 500 (Ill. App. 1 Dist. 1984). Finally, from the record as abstracted, the jury was not asked to return a finding as to whether Pearson and Tennant were negligent in the foreclosure action. Without more, the Schmidts cannot claim on appeal that the attorneys’ acts in one cause of action were the proximate cause of their loss in a different cause of action.

Third, the Schmidts maintain Pearson was negligent in not dissolving Aero pursuant to Ark. Code Ann. §§ 4-26-1101 -1109 (Repl. 1991), thereby preserving Aero’s only asset of any value, namely, its lender-liability action against the Bank. For support, the Schmidts point to the statements of their legal expert, Richard Downing, who testified that a reasonable attorney would have paid Aero’s back franchise taxes and filed a certificate of dissolution, thus allowing Aero to wind down its affairs and pursue its suit against the Bank in its corporate name. Then, Downing testified, the reasonable attorney would have amended the complaint to include the Schmidts as guarantors.

But Pearson contends dissolving Aero would have resulted in the very thing the Schmidts did not want, that is the appointment of a receiver, thereby depriving the Schmidts of their assets. Pearson cites Downing’s testimony acknowledging that dissolution would have allowed Aero’s creditors to force the Schmidts into a receivership. Additionally, Pearson points out the Schmidts voluntarily withdrew from Chapter 11 bankruptcy because of the threat of receivership, and Paul G. Schmidt testified that a receivership was not an option. Finally, Pearson contends the issue of whether to dissolve Aero was a question of professional judgment made after discussing the issue with his clients, and after considering the consequences and whether such action would serve the best interest of his clients.

An attorney is not liable to a client when acting in good faith, he makes mere errors of judgment. Cianbro Corporation v. Jeffcoat & Martin, 804 ESupp. 784 (D.S.C. 1992); Martinson Manufacturing Co., Inc. v. Seery, 351 N.W.2d 772 (Iowa 1984); Spivack, Shulman & Goldman, 124 Ill. App.3d 676, 465 N.E.2d 500 (1 Dist. 1984); George v. Caton, 93 N.M. 370, 600 P.2d 822 (1979); Herston v. Whitesell, 348 So.2d 1054 (Ala. 1977); Talbot v. Schroeder, 13 Ariz. App. 230, 475 P.2d 520 (1970); Meagher v. Kavli, 97 N.W.2d 370 (Minn. 1959). In the present case, the evidence showed Pearson used his best judgment in not dissolving Aero, which might then be forced into receivership and liquidation. See § 4-26-1103(2) and (3).

Fourth, the Schmidts contend Pearson and Tennant should have amended the lender-liability complaint to include the Schmidts as guarantors of Aero’s debts. The Schmidts note the Bank apprised Pearson and Tennant of this deficiency in the Bank’s second motion for summary judgment, yet Pearson and Tennant failed to respond properly. See Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991). The Schmidts point to the testimony of their legal expert who testified Pearson and Tennant were negligent in waiting until the hearing on the summary judgment motion to request an amendment to the complaint. Pearson and Tennant countered with testimony from their own legal expert.

As a matter of law, attorneys are not liable for mistaken opinion on a point of law that has not been settled by a court of highest jurisdiction, and on which reasonable attorneys may differ. Cianbro Corp. v. Jeffcoat & Martin, 804 ESupp. 784 (D.S.C. 1992); Martinson Manufacturing Co., Inc. v. Seery, 351 N.W.2d 772 (Iowa 1984); Brown v. Gitlin, 19 Ill. App.3d 1018, 313 N.E.2d 180 (1974); Martin v. Burns, 102 Ariz. 341, 429 P.2d 660 (1967); Meagher v. Kavli, 97 N.W. 370 (Minn. 1959). As Pearson and Tennant point out, the disagreement between their legal expert and the Schmidts’ was sufficient evidence that, as a matter of law, Pearson and Tennant were not negligent in failing to amend the Schmidts’ complaint before the summary-judgment hearing. Further, they note this court’s split decision in Schmidt reflects that the issue was unsettled and reasonably subject to differing opinions among the experts. Accordingly, we conclude that the trial court here was within its authority to determine, as a matter of law, that Pearson and Tennant were not negligent in failing to amend the complaint before the summary-judgment hearing since whether Pearson and Tennant should have filed an amendment in these circumstances involved an unsettled legal issue over which experts could reasonably disagree.

Finally, the Schmidts contend it was negligent of Pearson and Tennant to request $1000 to appeal the foreclosure action when they had $4000 of the Schmidts’ money remaining in the attorneys’ trust accounts. Further, the Schmidts contend Pearson and Tennant were negligent in failing to appeal the foreclosure decree or, alternatively, return the $1000 to them. But as Pearson and Tennant point out, the issue of the $1000 is a contract issue and not one sounding in tort. Pearson also notes even if they had appealed the foreclosure decree, no evidence was presented at trial that the Schmidts would have prevailed and obtained reversal of the decree. Ultimately, the issue of the $1000 and appeal of the foreclosure decree is not a proximate cause of the Schmidts’ failure to prevail in their lender-liability action.

We hold the trial court was correct in finding no substantial evidence to support the verdict against Pearson and Tennant for legal malpractice. None of the issues presented by the Schmidts was the proximate cause of the loss of their lender-liability claim against the Bank. Therefore, attorneys Pearson and Tennant were entitled to judgment notwithstanding the verdict as a matter of law. Because of our holding, it is unnecessary to discuss the trial court’s alternative grant of a new trial based on questions of procedural irregularities. We affirm.

Jesson, C.J., Dudley and Newbern, JJ., not participating. Special Chief Justice CAROLYN B. WITHERSPOON joins this opinion. Special Justices HANI W. HASHEM and JOHN HARRIS JONES concur.

Hani W. FIashem, Special Justice,

concurring. I concur with the result reached by the majority. However, I write this separate opinion to bring attention to an earlier error of this court. Here, the most troubling allegation made by appellants relates to their prior lender-liability claim. See Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991). Appellants contend that the appel-lees, acting as their attorneys, failed to amend their complaint in the lender-liability case to allege a separate cause of action on behalf of the Schmidts as guarantors of the notes of Aero Corporation.

In Schmidt v. McIlroy Bank, the appellees herein represented appellants in a lender-liability action against Mcllroy Bank. In their complaint appellees alleged damages on behalf of Aero Corporation and damages for the Schmidts as stockholders, but did not ask relief for the Schmidts as guarantors of the notes owed by Aero Corporation. The trial court granted summary judgment against Aero Corporation on the ground that its charter had been revoked for failure to pay franchise taxes. Mcllroy Bank filed a subsequent motion for summary judgment against the Schmidts individually. In their response to the second motion for summary judgment the appellee attorneys stated, “The plaintiffi should be allowed to amend their complaint to permit the real parties to prosecute the action.” At the hearing on the second motion for summary judgment, the appellee attorneys sought to amend their complaint. “We ask the court to allow the plaintiffi to amend the complaint for the sole purpose to include the individuals as guarantors and state a cause of action that would not leave any question . . .” The trial court recognized the appellee attorneys’ request to amend the complaint, however, the trial court stated that it would deny the oral motion to amend the complaint as being untimely. The trial court then granted summary judgment against the Schmidts. This court affirmed the decision of the trial court in Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991).

In the current appeal, the appellants contend that their attorneys were negligent in the lender-liability action in requesting permission to amend their complaint to state a separate cause of action for the Schmidts as guarantors, as opposed to simply going forward and filing an amended complaint. ARCP 15(a) allows a party to amend its pleadings at any time without permission of the court. The corresponding federal rule requires leave of the court before an amended complaint can be filed under similar circumstances. See FRCP 15. The point that is most troubling to me, irrespective of this technical distinction, is that the trial court, in ruling on the motion for summary judgment, recognized that the appellee attorneys had requested permission to amend their complaint, yet denied the oral motion to do so. The supreme court affirmed, holding that the oral motion to amend the complaint was unnecessary and the trial court ruling was invited error. See Schmidt v. McIlroy Bank & Trust. The dissent by Justice Brown in Schmidt v. McIlroy Bank & Trust states -with greater eloquence than I am able to muster the problems attendant in following this strict interpretation of ARCP 15 regarding amendment of pleadings. The decision in Schmidt v. Mcflroy Bank & Trust is bad law. This court should take its earliest opportunity to reverse that decision, and adopt the position of Justice Brown’s dissent in that case.

In spite of the fact that the appellee attorneys could have simply filed an amended complaint in the lender-liability action, without asking permission of the court, I do not find this sufficient basis to support a finding of legal malpractice. Schmidt v. Mcflroy Bank & Trust was a case of first impression, with two justices of the supreme court, including the chief justice, dissenting. As stated earlier in the majority opinion, an attorney is not liable for a mistaken opinion on a point of law that has not been setded by the court of highest jurisdiction, and on which reasonable attorneys may differ. Here, not only was the issue regarding a request to amend the complaint under ARCP 15 not a settled issue in this jurisdiction, even the supreme court justices, the ultimate legal experts in this jurisdiction, were unable to agree upon the final resolution of this issue. If two supreme court justices disagree as to the outcome of a particular issue, it seems implausible to hold a practicing attorney to a higher standard.

JOHN Harris Jones, Special Justice,

concurring. Jury verdicts in favor of appellants for approximately $4.86 million were set aside by the trial judge and judgment notwithstanding the verdicts rendered in favor of appellees, dismissing the appellants’ claims for malpractice for lack of substantial evidence.

The claims against appellee attorneys Pearson and Tennant arose out of a lender-liability action on behalf of appellants against Mcllroy Bank & Trust. In February 1986, Mcllroy, under new ownership, terminated its lending relationship with appellants which had extended over the preceding ten years and in March 1986 sued to foreclose on its collateral.

Appellants filed for Chapter 11 bankruptcy and in August 1986 filed a lender-liability suit against Mcllroy in the bankruptcy court. The following month appellants dismissed without prejudice their lender-liability claim. Appellants withdrew from bankruptcy in September 1988.

There must be a rational basis in the evidence to warrant the giving of an instruction. Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996). Here, none of the State’s case-in-chief is summarized in the abstract. The trial court ruled on the proffered instructions after the State rested its case. The discussions and objections concerning instructions are not abstracted. We are informed only that appellant submitted three proposed instructions on lesser-included offenses and that the trial court ruled that it would instruct on burglary, but not any lesser-included offenses. An abstract must include all material “necessary to an understanding of all questions presented to the Court for decision.” Ark. R. Sup. Ct. 4-2 (a) (6). We have said that the argument made to the trial court and the trial court’s ruling are “vital” to a review of the ruling by this court. Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993). Here, the abstract gives us only the three proffered instructions, part of appellant’s testimony, and the result of the instruction conference. We do not have sufficient material to folly understand the issue. Appellant quoted part of his argument to the trial court and the trial court’s comments in the argument section of his brief, but we have stated that scattering transcript references throughout the argument is not a substitute for a proper abstract. Moncrief v. State, 325 Ark. 173, 925 S.W.2d 776 (1996); Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993).

The court of appeals’ opinions in this case confirm that appellant’s abstract is not sufficient to give an understanding of the trial below and the issues presented on appeal. The majority opinion held that appellant’s abstract was sufficient, but the majority opinion contains five statements of fact that are not found in the abstract. The dissenting opinion quotes directly from the transcript of the instruction conference to show that only the State’s evidence had been introduced when the trial court considered the instructions. The trial judge stated, “I’m just going to instruct at this time on residential burglary.” The abstract did not reflect this and appellant does not discuss it. Yet, one of the primary issues would be whether appellant waived the issue by not renewing it, or whether the court had a duty to change its ruling on its own motion, an issue we cannot reach because none of this is reflected in the abstract.

Affirmed.

       Additional background is found in Mcllroy Bank & Trust v. Acro Corp., 30 Ark. App. 189, 785 S.W.2d 47 (1990).

       While Aero is listed in the style of this case as a plaintiff and an appellant, Aero was determined to be a nonexisting corporation in Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991). At trial, Paul G. Schmidt testified Aero did not exist after 1986.


author: ROBERT H. Dudley, Justice.

text:
    Jackie BETTS v. W.T. BETTS, Edward Betts, Billy C. Betts, Imogene Kellogg, and Louise Simmons
    96-529
    932 S.W.2d 336
    Supreme Court of Arkansas
    Opinion delivered November 11, 1996

      J. E. Sanders, for appellant.

      D. Scott Hickam, for appellees.
   ROBERT H. Dudley, Justice.

R.C. Betts and Elsie Betts, who were in their eighties, had twelve children and owned 160 acres in Montgomery County. Six of their children thought their father was uncaring about their mother and, at times, was even menacing toward her. These six children thought that their father’s mental stability had deteriorated with advanced age, and, in August 1989, one of the six, Cecil Betts, filed a petition seeking the involuntary commitment of R.C. Jackie Betts, one of the six who took the father’s side, drove R.C. to the law offices of Bill Mitchell, and, there, R.C. employed Mitchell to contest the commitment petition. Mitchell successfully represented R.C., and the petition was dismissed. On the same day the petition was dismissed, August 8, 1989, Elsie Betts died. This left R.C. as the sole owner of the 160 acres. On August 10, 1989, the following letter to the editor appeared in the Glenwood Herald News:

Editor: We would like for all the people who think Robert Betts is such a fine person, to call him up and congratulate him. He has refused his wife of 63 years, Elsie Betts, the right to die in peace by withdrawing all the money out of the bank and refusing to pay her doctor and hospital bills. Signed, Her children.

Shortly after the letter appeared in the local paper, on September 11, 1989, R.C. returned to Bill Mitchell’s law office and had a warranty deed prepared that conveyed the 160 acres to himself and one of his sons, Jackie Betts, as joint tenants with the right of survivorship. R.C. Betts died on May 10, 1990. Mitchell, the lawyer who drafted the deed, died on the same day.

Five of Jackie Betts’s brothers and sisters filed this action against Jackie: the five plaintiffs and one defendant, Jackie, are the six who took the father’s side in the family dispute. The plaintiffs alleged that the purpose of the deed to Jackie was to avoid probate and that Jackie was supposed to convey title to himself and the five brothers and sisters after R.C.’s death. The five brothers and sisters alleged that Jackie refused to convey title and asked that a constructive trust be imposed on the 160 acres. The chancellor imposed a constructive trust. Jackie appeals the ruling. We affirm.

In one of Jackie’s points for reversal, he argues, “The establishment of a constructive trust as to one of two joint tenants eliminates the unities of tide, interest, and possession in that the establishment of the trust or the constructive trust from the date of delivery of the deed prohibits the constructive trustee from enjoying the use and benefit of the estate so granted and thereby abolishes by its very nature the benefits of the estate to be acquired.” We do not reach the argument. The abstract does not reflect that the argument, or any similar argument, was made in the trial court. A nonjurisdictional argument cannot be raised for the first time on appeal. Prudential Ins. Co. v. Frazier, 323 Ark. 311, 914 S.W.2d 296 (1996); Arkansas Dep’t of Human Servs. v. Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105 (1993).

In his other point for reversal, Jackie argues that the trial court erred in imposing a constructive trust on the property because the five brothers and sisters did not meet the appropriate burden of proof. A constructive trust is a remedial rather than a substantive institution. Brasel v. Brasel, 313 Ark. 337, 339, 854 S.W.2d 346, 347 (1993). In the case of constructive trusts, an obligation is imposed in order to prevent unjust enrichment. Id. “Such trusts arise whenever it appears from the accompanying facts and circumstances that the beneficial interest should not go with the legal tide.” Andres v. Andres, 1 Ark. App. 75, 81, 613 S.W.2d 404, 407-08 (1981). In Edwards v. Edwards, 311 Ark. 339, 843 S.W.2d 846 (1992), we wrote:

The term “implied trust” encompasses both constructive trusts and various types of resulting trusts. See 76 Am. Jur. 2d Trusts §§ 159-163 (1992); W Fratcher, V Scott on Trusts §§ 404 through 404.2 (1989) (describing the three types of resulting trusts) and § 462 (describing constructive trusts). Hickman v. The Trust of Heath, House & Boyles, 310 Ark. 333, 835 S.W.2d 880 (1992); Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). A constructive trust arises in favor of persons entitled to a beneficial interest against one who secured legal title either by an intentional false oral promise to hold the tide for a specified purpose, or by violation of a confidential or fiduciary duty, or is guilty of any other unconscionable conduct which amounts to a constructive fraud. Andres v. Andres, supra.

Id. at 343, 843 S.W.2d at 848.

We further stated:

A constructive trust is imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. The duty to convey the property may arise because it was acquired through fraud, duress, undue influence or mistake, breach of a fiduciary duty, or wrongful disposition of another’s property. The basis of the constructive trust is the unjust enrichment that would result if the person having the property were permitted to retain it. Ordinarily a constructive trust arises without regard to the intention of the person who transferred the property.

Id. at 343-44, 843 S.W.2d at 849 (quoting William F. Fratcher, V Scott on Trusts § 404.2 (1989)).

In Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996), we set out the burden of proof in the trial court and the standard of review on appeal as follows:

To impose a constructive trust, there must be full, clear, and convincing evidence leaving no doubt with respect to the necessary facts, Tillar v. Henry, 75 Ark. 446, 88 S.W.573 (1905), and the burden is especially great when a tide to real estate is sought to be overturned by parol evidence. Nelson v. Wood, 199 Ark. 1019, 137 S.W.2d 929 (1940). The test on review is not whether the court is convinced that there is clear and convincing evidence to support the chancellor’s finding but whether it can say the chancellor’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, and we defer to the superior position of the chancellor to evaluate the evidence. Brasel v. Brasel, 313 Ark. 337, 854 S.W.2d 346 (1993); Wright v. Wright, 279 Ark. 35, 648 S.W.2d 473 (1983). See also Davis v. Davis, 48 Ark. App. 95, 890 S.W.2d 280 (1995). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986).

Id. at 333, 925 S.W.2d at 789.

In support of his argument on this point, Jackie cites testimony that was contrary to the finding of the trial court. However, the fact that there was testimony contrary to the trial court’s finding, without more, is not sufficient for us to reverse the finding. The test is whether the trial court’s finding was clearly erroneous, and a finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Nichols, 325 Ark. at 333, 925 S.W.2d at 789.

Here, the chancellor’s finding that R.C. Betts intended the 160 acres to be shared by the six children who were loyal to him and that Jackie breached a duty or broke a promise to do so is supported by the testimony that six of the children were in good standing with R.C. and six were not and by the file of Bill Mitchell, the attorney who prepared the deed, but died on the same day as did R.C. The file contained an intake sheet dated August 8, 1989, that stated that it involved a guardianship. Under the heading of “remarks” were the names of all twelve children. The top six names on the list were the six children that were not in good standing with their father. On the right side of those names, the word “no” was written. The seventh name, Walter T. Betts, was underlined. The other five, who were also in good favor, were listed under Walter’s name. A separate sheet stated at the top, “160 acres— Montgomery,” and fisted the twelve children. The six children who were in good standing with their father had checks by their names. The names with the checks were Jackie’s and the five appellees. Bruce Garnett, an attorney who shared offices with Mitchell, testified that he thought the fine under Walter T. Betts’s name on the intake sheet indicated those who were to benefit and those who were not to benefit. Garnett testified that he had no specific knowledge concerning the checks by the individuals’ names on the other sheet. According to Garnett, Mitchell would have understood the potential for acrimony and litigation if he were to draw up a deed for a joint tenancy in which the survivor was supposed to hold the property in trust and this condition was not recited in the deed. Garnett testified that there was no routine way to handle trusts and that it was not uncommon for rural clients to be apprehensive about complex documents. He testified that it would not be uncommon for Mitchell to caution a client about the potential for acrimony, but to then go ahead and draft the deed as the client wanted. The warranty deed to R.C. and Jackie in joint tenancy with right of survivorship was in the file, as was a copy of the bitter letter to the editor.

Further testimony supporting the chancellor’s findings was ap-pellee Imogene Kellogg’s testimony that she was present when Jackie promised again and again that he would divide the property six ways if R.C. would put his name on the deed; appellee Edward Betts’s testimony that his father told him that he wanted the six children who were in his good graces to have the land; and appellee Louise Simmons’s testimony that R.C. told her that he was putting Jackie’s name on the deed because he knew that he would do what is right and divide the land among the six children in good standing.

On the other side, evidence that specifically went against the chancellor’s finding, included appellant Jackie Betts’s testimony that his father did not want the land divided and that his father left the land to him without imposing any conditions; appellant’s testimony that his father was bothered by appellee Louise Simmons’s statements that she was not interested in owning property in Arkansas and that she would sell it if any were left to her; appellant’s testimony that R.C. did not trust Edward Betts; appellant’s testimony that R.C. thought appellee Imogene Kellogg was wonderful when she took care of him, but he later thought she was talking about him and disclosing their conversations behind his back; testimony by appellant about the close relationship he and his father had; and the absence of a clear notation in the attorney’s file about a trust.

There was other evidence that R.C. intended for the land to be divided three ways. This testimony included the testimony that appellee Imogene Kellogg, appellee Edward Betts, and appellant were the main caretakers of their father; testimony by appellee Imogene Kellogg that appellant told her that their father had changed his mind and that the land was to be divided between appellant, appellee Imogene Kellogg, and appellee Edward Betts; and testimony by appellee Edward Betts that he reminded his father that he had said that he and Imogene Kellogg were to get a share for having helped take care of him and that his father said he did not cut them out and would take care of it after he got out of the hospital.

In sum, there was a conflict in the evidence. The basic conflict came down to whether appellant Jackie Betts or appellees Imogene Kellogg, Edward Betts, and Louise Simmons were to be believed and the significance to be given the attorney’s file. The chancellor saw and heard the witnesses. He saw how they responded to both direct and cross-examination and was in the superior position to evaluate their credibility. We cannot say that we are “left with the definite and firm conviction that a mistake has been committed.” See RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). Accordingly, we affirm.

Affirmed.


text:
    Shirley CHLANDA v. ESTATE of Milford G. FULLER
    96-625
    932 S.W.2d 760
    Supreme Court of Arkansas
    Opinion delivered November 11, 1996

      Ledbetter & Associates, LTD, by: Thomas D. Ledbetter and Eichen-baum, Scott, Miller, Liles, & Hester, P.A., by: Leonard L. Scott and Peter B. Heister, for appellant.

      Johnny L. Nichols, for appellee.
   ROBERT H. Dudley, Justice.

This case involves the construetion of a will. Milford G. Fuller and Evelyn Coleman were married in 1944 and had no children during their lengthy marriage. In 1961, they contemporaneously executed wills. Evelyn Coleman Fuller died on December 19, 1994. Her will, which was admitted to probate, left all of her estate to her husband, Milford G. Fuller. Milford G. Fuller died on January 23, 1995. His heirs are eleven cousins and an aunt. Three of the cousins petitioned the probate court to appoint coadministrators. Their petition stated that Milford Fuller died intestate. The probate court appointed coadministrators. Shirley Chlanda, who was the sister of Evelyn Fuller, subsequendy filed a petition to admit Milford G. Fuller’s will to probate. His will was admitted.

Paragraph three of Milford G. Fuller’s will is set out below with the contested words highlighted:

In the event my said wife should predecease me or our deaths should occur so closely one to the other that it would be impossible to determine which deceased first, I give, bequeath, devise, and covey unto my mother and father, Luther Arnold Fuller and Clara Ethel Fuller of Harrison, Arkansas, and my wife’s mother and father, Thomas S. Coleman and Julia Coleman of Herculaneum, Missouri, all the property that I die seized of be it real, personal, equitable or mixed, and wherever located. My mother and father, or the survivor thereof, to share equally with my tvife’s mother and father, or the survivor thereof, in said Estate. [Emphasis supplied.]

Petitioner Shirley Chlanda is the daughter of the Thomas S. Coleman and Julia Coleman. Both her parents and Milford G. Fuller’s parents, Luther Arnold Fuller and Clara Ethel Fuller, predeceased Milford G. Fuller. In her petition, she asked the probate court to construe the words “my wife’s mother and father, or the survivor thereof,” to mean the heirs of her mother and father. The coadministrators objected on the ground that the will was definite and certain. They filed a motion for summary judgment in which they contended that the will clearly meant that the estate was to go to the wife’s parents or whichever of them survived the other. The trial court granted the coadministrator’s motion for summary judgment. Shirley Chlanda appeals. We affirm the grant of summary judgment.

The primary issue before the probate court was whether the words “wife’s mother and father, or the survivor thereof,” are uncertain or ambiguous. The trial court ruled:

When construing a testamentary document to arrive at the testator’s intention, one does not look at the intention that existed in the testator’s mind at the time of execution, but that which is expressed by the language of the instrument. . . . Parol evidence is admissible only for the purpose of showing the meaning of the words used in the will when they are ambiguous, and not to show what the testator intended as distinguished from his expressed words.
[T]he Court would have to find that the term “survivor” is ambiguous or uncertain. The Court cannot, and in order to realize the desire of the petitioner the Court would have to change the word from singular to the plural, and impute words to the documents to create a new group of beneficiaries not otherwise denominated, referred to, or implied in any way. The Court would, in essence, be called upon to engraft a new document to the one at bar. [Citations omitted.]

On appeal, Shirley Chlanda’s first assignment is that the probate court erred in ruling that the will was definite and certain and that extraneous evidence could not be admitted to show the intent of the testator. She contends that surrounding circumstances should be considered even in determining whether there is an uncertainty. The probate court ruled that the testator’s intent could be gathered from the will itself. See Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977). The ruling was correct. The language “my wife’s mother and father, or the survivor thereof,” in the ordinary usage of the words, means to the survivor of the mother and father. This common sense use of the English language is buttressed by the fact that the will was drawn by a lawyer, and the word “heirs” could have easily have been substituted for the word “survivor” if that were the intent of the testator. See In re Miner’s Estate, 129 Vt. 484, 282 A.2d 827 (1971). Contrary to Chlanda’s argument, a probate court is not required to resort to forced construction and extend the meaning of the language in the will by speculating about surrounding circumstances. See Acklin v. Riddell, 42 Ark. App. 230, 856 S.W.2d 322 (1993). The rules of construction are used to determine the testator’s intent when it is not clear from the face of the will “rather than because the testator knew of such rules and principles and adopted them deliberately.” William J. Bowe, Page on The Law of Wills, § 30.4 at 14-15 (1961 & Supp. 1996). Extrinsic evidence is not permissible to show intent in disregard of the express words used in the will. In re Estate of Conover, 304 Ark. 268, 801 S.W.2d 299 (1990). It is presumed that the testator knew the contents of the will that he executed. Armstrong v. Butler, 262 Ark. at 39, 553 S.W.2d at 457.

Shirley Chlanda next argues that a holding that the language is definite and certain will result in partial intestacy, and a court should construe a will to avoid partial intestacy. It is correct to state that there is a presumption in the rules of construction that “a person who takes the time and effort to make a will does not desire partial intestacy.” Kidd v. Sparks, 276 Ark. 85, 90, 633 S.W.2d 13, 16 (1982). However, a probate court should not resort to the rules of construction unless the intent of the testator, as shown by his expressed words, is in doubt. Id. at 89-90, 633 S.W.2d at 16; see also Armstrong v. Butler, 262 Ark. at 39, 553 S.W.2d at 457.

Shirley Chlanda next contends that, in any event, extrinsic evidence is admissible to identify a beneficiary. Again, this rule of construction is not used unless there is some ambiguity. An appropriate application of the use of the rule to identify beneficiaries is found in Jesseph v. Leveridge, 205 Ark. 665, 170 S.W.2d 71 (1943), where the testatrix bequeathed jewelry to “her niece,” but that person was actually her grandniece. Id. at 666, 170 S.W.2d at 72. The chancellor correcdy found that “nephews and nieces,” as used in the will, was ambiguous. Id. at 667, 170 S.W.2d at 74. Here, there is no such ambiguity.

In the next point of appeal Chlanda argues that the word “survivor” may mean heirs or issue, and this is especially true if the word “thereof” is added. We are not aware of any Arkansas cases addressing the subject, but the meaning of the word “survivor” has been the subject of litigation in courts across the United States for many years. Appellant is correct in stating that in some cases the word “survivor” has been interpreted to mean heirs or issue, but in almost all of those cases there is something else in the will that indicates such an intent. See A.M. Swarthout, Annotation, Gift Over to Surviving Members of a Group of Share of Deceased Member as Creating Absolute Interest in Last Survivor, 166 A.L.R. 1272, 1291 (1947). The clear majority of cases cited in the annotation hold that the term “survivor” refers to the person among the designated class who oudives the other. See, e.g., Estate of Mohr v. Ernst, 7 Cal. App. 3d, 86 Cal. Rptr. 731 (1970).

Chlanda next contends that the probate court erred in granting summary judgment. The standard of review for a grant of summary judgment is familiar. Summary judgment should only be granted when it is clear that there are no disputed issues of material fact. Gann v. Parker, 315 Ark. 107, 865 S.W.2d 282 (1993). It is appropriate, however, to sustain a grant of summary judgment if the record before the trial court “shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Tullock v. Eck, 311 Ark. 564, 567, 845 S.W.2d 517, 519 (1993); Ark. R. Civ. P. 56(c).

Chlanda, citing Ferguson v. The Order of United Commercial Travelers of America, 35 Ark. App. 100, 814 S.W.2d 267 (1991) (supplemental opinion on denial of rehearing), notes that questions of intent are particularly inappropriate for summary judgment. It is true that, as a general matter, questions of intent are inappropriate for summary judgment, but, where, from the face of a written instrument, there is no doubt about the meaning of the instrument, summary judgment is appropriate. Here, because there was no facial ambiguity, there was no genuine issue of material fact about whether parol evidence could be admitted, and summary judgment was proper.

Chlanda next argues that we should reverse and remand because the probate court did not allow discovery. The argument is without merit for either of two reasons. First, the abstract does not contain a summary of an order denying discovery, and we are not certain that the probate court made a ruling on this issue. It is incumbent upon an appellant to produce a record sufficient to demonstrate error, Mayo v. State, 322 Ark. 383, 920 S.W.2d 659 (1995), and the record on appeal is confined to that which is abstracted. Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995). We have repeatedly held that the burden of obtaining a ruling is upon the movant and that unresolved questions and objections are waived and may not be relied upon on appeal. Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990). Second, the discovery request related to extrinsic evidence. Extrinsic evidence was not considered on the motion for summary judgment; thus, even if the probate court did rule, appellant could not have been prejudiced.

Finally, Chlanda asks us to follow the reasoning of the Supreme Court of Texas in reversing a grant of summary judgment in White v. Moore, 31 Tex. Sup. Ct. J. 662, 760 S.W.2d 242 (1988). We decline to do so, for the language used in that will is materially different from the language in the will before us. In that case, the decedent left her estate “to my six children [naming them] and to the survivor or survivors of them at the time of my death, share and share alike.” The Supreme Court of Texas held that summary judgment should not have been granted because the word “survivors” was sufficiently ambiguous to require extrinsic proof. The majority opinion noted that the word “survivors” might have been intended to mean “heirs.” There, the words did not narrow the class named to one survivor of the class, but rather left it to the survivors (plural) at the time of death of the testator. Here, the words used are “my wife’s mother and father, or the survivor thereof.” This is an unmistakable declaration that the two individuals named in the class are to enjoy the right of survivorship in the event of the death of one of them. As such, the chancellor was correct in the granting of summary judgment as to the meaning and effect of the will.

Affirmed.


author: David Newbern, Justice. Tom GLAZE, Justice,

text:
    Henry HAYNES v. FAULKNER COUNTY, Arkansas; John Wayne Carter, as County Judge of Faulkner County; and Faulkner County Museum Commission
    96-388
    932 S.W.2d 328
    Supreme Court of Arkansas
    Opinion delivered November 11, 1996
    [Petition for rehearing denied December 23, 1996.]

      Callis L. Childs, for appellant.

      Gill Law Firm, by: Glenn E. Kelley, for appellee Faulkner County Museum Commission.

      Graddy & Adkisson, by: Larry Graddy, and Hartje & Collier, by: Linda Collier, for appellees.
   David Newbern, Justice.

This case is about county government. The dispute arose when Faulkner County decided to build a new building to house the county library and to create a commission to operate a museum in the building which had previously housed the county library. The appellant, Henry Haynes, and other concerned citizens voiced objections to the proposed disposition of the old library building. They claimed that the courts in Faulkner County badly needed space and that the County therefore should have reserved the old library building for the judiciary’s use. In their view, it would have been more economical for the County to improve the judicial facilities by renovating the old library building than to renovate and expand the Courthouse. The objections were not well taken by the county authorities, and Mr. Haynes sued the County, the County Judge, and the County Museum Commission to enjoin them from implementing their plan. Except when necessary to distinguish among them, we will refer to the appellees collectively as “the County.”

The Chancellor entered summary judgment in favor of the County with the exception that she invalidated a 99-year lease of the old library building executed by the County Judge and the Commission. Although the Chancellor found that the County and the Commission could not enter into a formal lease, she found that the County Judge had the authority to assign the use of the building to the Commission.

Mr. Haynes has raised three main points in his appeal, none of which has merit. We therefore affirm on the appeal. As the Chancellor did not err in invalidating the lease, we affirm on the County’s cross-appeal as well.

The appeal

Í. Administration of justice

Mr. Haynes contended that the County should have reserved the old library building for the courts in order to satisfy its mandatory duty under Ark. Code Ann. § 14-14-802(a)(l)(1987) to provide for the administration of justice. In support of his claim, Mr. Haynes cited a letter written by the trial judges of Faulkner County to the County Judge complaining about their lack of sufficient space to operate the courts and about the seeming unwillingness of the County to do anything about it. With his pleadings before the Chancellor, Mr. Haynes submitted discovery responses, including a proposed floor plan, purporting to show that it would have been better if the County had made two courtrooms out of the old library building rather than creating only one new courtroom in the Courthouse. It was contended that money to be spent in providing for county officials who would move out of the Courthouse into a new building to make way for one renovated courtroom was far in excess of that which would be spent creating two courtrooms in the old library building. According to Mr. Haynes, this created an illegal exaction.

The Chancellor agreed that the County was obliged by § 14-14-802(a)(l) to provide for the administration of justice. She cor-recdy concluded that providing for the administration of justice was a “mandatory service” and that providing a museum was a “discretionary service” the County was authorized to offer. See § 14-14-802(b) (2) (C)(v). In granting summary judgment, the Chancellor observed that Mr. Haynes’s claim did not allege that the County had failed to provide for the administration of justice. The Chancellor interpreted the claim as stating “only that Faulkner County’s proposed method of providing for both mandatory and discretionary services is more expensive than providing for just mandatory services.”

Mr. Haynes argues that his complaint did allege that the County had failed to provide for the administration of justice. Looking at the complaint in its various amended forms, and taking its language as a whole, we must agree with the Chancellor. The gravamen of the complaint is not that the County has failed to provide for the administration, of justice but that it has chosen a more expensive way of doing it than Mr. Haynes would have liked. While we are mindful of the fact that the County may have only three courtrooms to house its five judges, we cannot conclude that fact, if proven, would demonstrate a failure to provide for the administration of justice. With respect to the point discussed here, we hold the Chancellor correcdy concluded that there was no remaining genuine issue of material fact and that the County was entitled to judgment as a matter of law. Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988).

2. Reviewability and jurisdiction

Mr. Haynes styles his second argument as follows: “The Assignment of the Building by the County Judge to the Commission, Pursuant to Ark. Code Ann. § 14-14-1102(b)(3), is Reviewable in Either Chancery Court or Circuit Court.” On appeal, Mr. Haynes contends the Chancellor failed to review his allegations that the assignment of the building by the 99-year lease was an illegal exaction and that the County Judge breached a fiduciary duty in executing the lease. He then argues that either chancery or circuit court may have jurisdiction of an illegal-exaction suit, but he asks that we remand the case to the Chancellor for transfer to the circuit court. We decline to do so.

The order entered by the Chancellor stated it was entered in response to the County’s motion for summary judgment. Perhaps inadvertendy, the order concluded with a remark to the effect that the complaint was “dismissed.” We are convinced, however, that the Chancellor did not refuse to review the illegal-exaction and breach-of-trust claims. Rather, she ruled they were without merit and denied the injunctive relief sought. The Chancellor considered the items of proof proffered by the parties and entered a summary judgment pursuant to Ark. R. Civ. P. 56. The Chancellor did not lack jurisdiction of Mr. Haynes’s claims, and there was no need to transfer the case to circuit court.

Arkansas Const, amend. 55, § 3, and Ark. Code Ann. § 14-14-1102(b)(3)(1987), provide that the County Judge is the custodian of county property and is therefore authorized to determine how the property shall be used. Moreover, § 14-14-802(b) (2) (C)(v) and §§ 13-5-501 through 13-5-504 (Repl. 1995) authorize the County to provide for a county museum. In light of these provisions, we agree with the Chancellor that, as a matter of law, the assignment of the building to the Commission was not an illegal exaction.

3. Conflicts of interests

Mr. Haynes alleged the County Judge who signed the lease with the Commission, Judge Ferrell, and his successor who was to administer the lease, Judge Carter, engaged in a breach of trust. Because the judges were both members of the Faulkner County Historical Society, which had lobbied for the museum before the Quorum Court, Mr. Haynes contended the judges should have disclosed their membership and should have been disqualified from participating in any transactions concerning the old library building.

In her order, the Chancellor noted that the Quorum Court had condoned the assignment of the building to the Commission in an Ordinance of July 22, 1992. She also noted that, in accordance with Ark. Const, amend. 55, § 3, the County Judge presides over the Quorum Court “without a vote but with the power of veto.” She concluded that there was no proof that the judges had displayed conflicts of interests in carrying out the wishes of the Quorum Court. She found no breach of trust, and we agree.

The cross-appeal

The County argues on cross-appeal that the Chancellor erred in invalidating the lease by which the County assigned the old library building to the Museum Commission. The Chancellor held the lease void primarily because she viewed it as an improper attempt on the part of the County to contract with itself. As she saw it, the issue was whether the Museum Commission was an autonomous entity sufficiently separate from the Quorum Court and the County Judge to permit the agreement. After holding in the negative, the Chancellor observed that the disposition of the old library building by assignment of it to the Museum Commission, as opposed to leasing it to the Museum Commission, was appropriate pursuant to § 14-14-1102(b)(3). We agree with the result she reached.

A county may enter enforceable contracts. See Boone County Abstract & Title Co. v. Boone County, 252 Ark. 255, 478 S.W.2d 429 (1972); Watts & Sanders v. Myatt, 216 Ark. 660, 226 S.W.2d 800 (1950). The cited cases are, however, ones in which the persons with whom the counties contracted were not county entities. This case is different because the Museum Commission, whether an autonomous county entity or not, is nonetheless a creation of Faulkner County, and the property it sought to lease is county property. Section 14-14-1102(b)(3) gives the county judge the authority to “assign or not assign” county property at will. The statute does not mention duration of assignment. We conclude it was the intention of the General Assembly that the authority of a county judge to assign the use of county property, at least as that authority pertains to assignment of it among county entities, be unfettered by agreements such as the one attempted here.

Affirmed on appeal, and affirmed on cross-appeal.

Glaze, J., concurs.

Tom GLAZE, Justice,

concurring. I join with the majority opinion regarding its decision on direct appeal, but concur with the result reached on cross-appeal. Summarily stated, I agree that the chancellor was correct in concluding there is no legal authority to lease county property to county entities. Counties are created by the authority of the legislature, and they derive all their powers from the source of their creation, except where the Constitution of the state otherwise provides. City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W.2d 930 (1949). Here, the county had no statutory authority to enter into a contract with the Musuem Commission.

The services the county may provide include a museum, and the county has the power to provide the necessary facilities to support such a service. Ark. Code Ann. §§ 14-14-802(b)(2)(C)(v) and -803 (1987). However, nowhere is there law cited that a county can enter a 99-year lease contract with a county entity to provide such county property or facility. Rather, Ark. Code Ann. § 14-14-1102(3) (1987) sets out the extent of a county’s authority in this respect as follows:

CUSTODY OF COUNTY PROPERTY The county judge, as the chief executive officer of the county, shall have custody of county property and shall be responsible for the administration, care, and keeping of such county property, including the right to dispose of county property in the manner and procedure provided by law for the disposal of county property by the county court. The county judge shall have the right to assign or not assign use of such property whether or not the county property was purchased with county funds or was acquired through donations, gifts, grants, confiscation, or condemnation. (Emphasis added.)

In sum, the county has the foregoing statutory authority to assign necessary facilities to county officers or county entities, but that power is not exhausted when once exercised; instead, the assignment of county offices or facilities may be changed whenever public convenience will be promoted by the change. See Penix v. Shaddox, 165 Ark. 152, 263 S.W.2d 389 (1924).