author: P 'ER CURIAM.

text:
    Teresa BALLARD, Kenisha Bryant, and Cheryl King v. The CLARK COUNTY, Arkansas, CIRCUIT COURT
    01-1251
    61 S.W.3d 178
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001

      The Nixon Law Firm, by: David G. Nixon and Paige E. Young, for petitioners.

      Morgan & Turner, by: Todd Turner, for respondent Circuit Court of Clark County, Arkansas.

      Bowman and Brooke LLP, by: Robert M. Buell and Charles K. Seyfarth; and Wright, Lindsey & Jennings LLP, by: Claire Shows Hancock, for respondents Advance America, Cash Advance Centers of Arkansas, Inc.
   P 'ER CURIAM.

Petitioners Teresa Ballard, Kenisha Bryant, and Cheryl King petition this court for a writ prohibiting Respondent Clark County Circuit Court from requiring Petitioners to post a supersedeas bond pending the outcome of an appeal filed by Petitioners. In support of their petition, Petitioners argue that the circuit court is without authority to order the posting of a bond, as the Petitioners have not requested a stay of the proceedings pending the appeal. We reject this argument, and thus deny the petition.

The present petition arises from an appeal by the Petitioners of the circuit court’s approval of a class-action settlement in a case styled Garrett v. Advance America, No. CIV 99-152. A detailed summary of the facts underlying this matter is set forth in Ballard v. Clark County Circuit Court, 347 Ark. 286, 61 S.W.3d 175 (2001) (per curiam). For purposes of this petition, it is important to point out that Petitioners filed a timely notice of appeal from the circuit court’s order approving the settlement. Thereafter, Phyllis Garrett, the named representative in the class-action lawsuit, filed a motion with the circuit court requesting that Petitioners be required to post a bond pending appeal. The circuit court granted the motion and ordered Petitioners to post a bond in the amount of $750,000. Petitioners have not complied with the circuit court’s order and now petition this court for a writ of prohibition.

At the outset, we note that this petition is styled “Petition for Writ of Prohibition or Certiorari.” This court will issue a writ of prohibition to prevent or prohibit a trial court from acting wholly without jurisdiction. See Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000) (citing Raines v. State, 335 Ark. 376, 980 S.W.2d 269 (1998)). Prohibition prevents an action from occurring. Id. This court has routinely held that a writ of prohibition will not lie for actions already taken. May Constr. Co., Inc. v. Thompson, 341 Ark. 879, 20 S.W.3d 345 (2000); Oliver v. Pulaski County Circuit Court, 340 Ark. 681, 13 S.W.3d 156 (2000). Thus, prohibition is not appropriate in this situation, as the circuit court has already ordered Petitioners to post a supersedeas bond.

A writ of certiorari, on the other hand, is appropriate when it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion by the trial judge, and there is no other adequate remedy. Arnold v. Spears, 343 Ark. 517, 36 S.W.3d 346 (2001); Zimmerman, 341 Ark. 771, 20 S.W.3d 301. It is well settled that certiorari will not be used to look beyond the face of the record to ascertain the actual merits of the controversy, or to control discretion, or to review a finding of facts, or to reverse a trial court’s discretionary authority. Id. (citing Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992)). This court, however, has the discretion to treat a petition for writ of prohibition as if it were properly filed as a petition for a writ of certiorari. Id.

Petitioners’ allegation that the circuit court is wholly without jurisdiction to order them to post a supersedeas bond is insufficient to warrant the issuance of a writ of certiorari. Under Ark. R. App. P. — Civ. 8(b), the clerk of the court which rendered the order being appealed from is the proper party to issue a supersedeas, unless the record has been lodged with the appellate court. In this case, the circuit court issued the order requiring Petitioners to post the bond on September 5, 2001. At that time, the trial court was still vested with jurisdiction over the matter, as Petitioners did not lodge the record with the clerk of this court until November 2, 2001. Thus, it is not apparent on the face of the record now before us that the circuit court’s order requiring a supersedeas bond was a manifest abuse of discretion. Accordingly, we deny the writ.

Along with this petition, Petitioners filed a motion to consolidate the record filed with this petition with the record filed in the pending appeal of this matter. It is unnecessary to address this issue, as it is rendered moot by our denial of the writ.

Writ denied.

IMBER, J., not participating.


source: Caselaw Access Project

author: P ER CURIAM.

license: Public Domain

text:
    Shawn DWILLS v. STATE of Arkansas
    CR 01-1289
    62 S.W.3d 359
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001

      Thurman Ragar, Jr., for appellant.

      No response.
   P ER CURIAM.

Appellant Shawn Dwills has filed a motion for rule on the clerk. The motion reflects that the judgment and commitment order was filed on April 23, 2001, and that the notice of appeal was timely filed on April 27, 2001. An amended judgment and commitment order was filed on April 30, 2001. An order extending the time to lodge the record on appeal was entered on July 30, 2001, more than ninety days after the first notice of appeal was filed. The transcript was not tendered until November 19, 2001.

Under Ark. R. App. P.—Civ. 5(a), the record on appeal must be filed with this court’s clerk within ninety days from the filing of the first notice of appeal. The time for filing the record may be extended, provided that an order of extension is issued within the original ninety-day period. See Ark. R. App. P.—Civ. 5(b). An order of extension was entered in this case, but it was not timely under Rule 5(b).

Appellant’s attorney, Thurman Ragar Jr., admits responsibility for miscalculating the time to file the record on appeal. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam)).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

IMBER, J., not participating.


author: P iER Curiam.

text:
    Obdulio Martinez ESCANDON v. STATE of Arkansas
    CR 01-1249
    61 S.W.3d 843
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001

      Charles E. Ellis, for appellant.
    No response.
   P iER Curiam.

Appellant Obdulio Martinez Escandon, by and through his attornev. Charles E. Ellis, has oetitioned this court for a writ of certiorari to complete the record for his appeal. Appellant was convicted of first-degree murder in Mississippi County and was sentenced to forty years’ imprisonment. On May 4, 2001, Appellant timely filed a notice of appeal and requested a copy of the transcript from the court reporter. A subsequent extension of time to prepare the transcript was granted by the trial court on July 10, 2001. To date, the transcript has not been completed. Appellant now seeks a writ of certiorari directing the court reporter to immediately produce the transcript.

The court reporter who transcribed the proceedings in this case is Nila Keels. This court has already addressed, in two previous opinions, the fact that Ms. Keels is not a certified or licensed court reporter in this state. See George v. State, 346 Ark. 22, 53 S.W.3d 526 (2001) (per curiam); Mitchell v. State, 345 Ark. 359, 45 S.W.3d 846 (2001) (per curiam). Because this is a criminal case, however, we grant the writ. We direct the Honorable Judge Victor Hill, of the Mississippi County Circuit Court, Chickasawba District, to supervise Ms. Keels’s completion of the record and to take whatever action necessary to secure a prompt certification of a complete record for appeal.

We further direct the Supreme Court Clerk to accept the transcript in this case, despite the fact that Ms. Keels is not a licensed or certified court reporter, provided that the attorneys of record in this case certify to our clerk, by affidavit, that the transcript is a true, accurate, and complete record of the proceedings.

Petition granted.

IMBER., J., not participating.


author: P IBR Curiam.

text:
    James Dennis HUDSPETH; Johnny “Red” Hudspeth v. STATE of Arkansas
    CR 01-1222
    61 S.W.3d 842
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001

      David P. Henry, for appellant.
    No response.
   P IBR Curiam.

Appellants James Dennis Hudspeth and Johnny “Red” Hudspeth, by and through their attorney, have filed a motion for rule on clerk. Appellants’ attorney, David P. Henry, states in the motion that the record was tendered late due to an illness he suffered, which he maintains constitutes excusable neglect and unavoidable casualty, thereby entitling appellants to have the record filed and the case docketed by the Clerk.

We find that the attendant circumstances do not constitute excusable neglect or unavoidable casualty; however, as the error is admittedly made by an attorney for a criminal defendant, we find good cause to grant the motion. See In Re Belated Appeals In Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.

ÍMBER, J„ not participating.


text:
    Darwin SHIELDS v. STATE of Arkansas
    CR 01-288
    61 S.W.3d 841
    Supreme Court of Arkansas
    Opinion delivered December 13, 2001

      Gregory E. Bryant, for appellant.
    No response.
   P ER CURIAM.

Appellant Darwin Shields, by and through his attorney, Gregory E. Bryant, has filed a motion for an extension of time to file Appellant’s brief. The brief in this case was originally due on April 23, 2001, but only after the Supreme Court Clerk’s office granted Bryant six extensions of time to file the brief, was it finally filed on July 31, 2001. The brief filed on July 31 did not contain an addendum, but the clerk’s office allowed Bryant to correct this error. The Attorney General’s office then filed a motion requesting that Bryant be ordered to comply with Ark. Sup. Ct. R. 4-3 (h). This court granted the motion and ordered Bryant to submit a revised brief by November 3, 2001. Bryant then filed a revised brief on November 5, but again the brief contained no addendum. The clerk’s office refused to file the brief and sent Bryant a letter stating its reasons for refusing the brief. This motion followed.

In the pending motion, Mr. Bryant accepts full responsibility for having failed to timely file Appellant’s brief. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Johnson v. State, 337 Ark. 609, 990 S.W.2d 553 (1999) (per curiam); Davis v. State, 335 Ark. 136, 983 S.W.2d 122 (1998) (per curiam).

We also refer Mr. Bryant to the Committee on Professional Conduct in connection with his repeated failures to comply with this court’s rules governing the preparation and filing of briefs.

Motion granted.

BROWN and Imber, JJ., not participating.

       November 3 fell on a Saturday, thus the actual deadline for filing the brief was extended until November 5.


author: w .H. “Dub” ARNOLD, Chief Justice. J IM HANNAH, Justice,

text:
    Joyce BOND v. LAVACA SCHOOL DISTRICT
    01-303
    64 S.W.3d 249
    Supreme Court of Arkansas
    Opinion delivered December 20, 2001
    [Petition for rehearing denied January 24, 2002.]

      Mitchell, Blackstock, Barnes, Wagoner & Ivers, by: Clayton Black-stock and Mark Burnette, for appellant.

      Thompson & Llewellyn, P.A., by: James M. Llewellyn, Jr., for appellee.

       Glaze and Hannah, JJ., would grant.

   w .H. “Dub” ARNOLD, Chief Justice.

Joyce Bond appealed from the order of summary judgment entered in favor of her employer, appellee Lavaca School District. The Arkansas Court of Appeals reversed the trial court and remanded the case. Appellee petitioned this Court for review; petition was granted. We now affirm the trial court, thereby reversing the court of appeals’ decision.

The facts of the case are as follows. Appellant is employed by appellee in two capacities. She teaches in certified areas as defined by the school’s administration. She also serves as appellee’s Chapter One Coordinator, an administrative position involving eighteen different major duties, but the primary function is to “insure adherence to and compliance of the regulations and guidelines set by the Federal and State government” for the Chapter One program. Appellant’s teaching contract runs from July 1 through June 30, states that the grade or subject to be taught is “Chapter I Lab,” requires her to teach in certified areas as assigned by administration and any other reasonable and relevant duties as assigned by the principal, indicates that her salary will be paid in twelve installments, and provides that the length of her term of employment is 205 days. The salary schedule attached to her annual contract states that “[e]xtended contracts will result in an increase of .005 per day for each day beyond one hundred [and] eighty five days.” The salary schedule also indicates that certain duties performed by certified personnel will be compensated at a specified rate. However, the salary schedule does not include a special rate of compensation for the Chapter One Coordinator position, a position that is not certified.

On June 22, 1998, appellant filed a complaint in Sebastian County Circuit Court, alleging that for the school years 1993-94, 1994-95, 1995-96, 1996-97, and 1997-98, appellee failed to pay her as required under Ark. Code Ann. § 6-17-807 (Repl. 1999) and § 6-17-204(b)(2) (Repl. 1999). Appellant subsequently amended her complaint to include the years 1998-99 and any time through trial. Specifically, appellant alleged that the Chapter One Coordinator position requires her to work the equivalent of twenty additional days beyond the 185-day standard school year, but that appellee did not pay her proportionately for additional days worked based on her daily rate for tbe regular school year as required under § 6-17-807. She also alleged that appellee violated § 6-17-204(b) by fading to include the Chapter One Coordinator position on its salary schedule and by failing to pay her for additional duties performed.

Appellant and appellee filed competing motions for summary judgment. Appellee asserted that appellant’s action was barred by the Teacher Fair Dismissal Act under Ark. Code Ann. §§ 6-17-1506 and -1510 (Supp. 1999). Appellee also argued that § 6-17-807 only applied when additional days are added to a teacher’s contract from one year to the next, which was not the case here; it maintained that it complied with § 6-17-204(b)(2); and it asserted that appellant waived any complaints she had under her contract when she renewed her contract each year without complaint. In her motion for summary judgment, appellant raised the same arguments as alleged in her complaint, specifically disputed appellee’s waiver argument, and denied that the statute of limitations found in the Teacher Fair Dismissal Act precluded her complaint because this case did not involve nonrenewal of a contract or dismissal.

The trial court found that appellee had not violated the above statutes because the salary schedule provided for an additional increment for days worked beyond the regular school year. The court granted appellee’s motion for summary judgment. It is from this order that the instant appeal now comes. We affirm.

I. Standard of Review

On a petition for review, this Court reviews the case as if the appeal had originally been filed in this Court. Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000); Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999); State v. Brunson, 327 Ark. 567, 570, 940 S.W.2d 440 (1997); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entided to judgment as a matter of law. Dodson v. Taylor, 346 Ark. 443, 57 S.W.3d 710 (2001); Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189, 961 S.W.2d 712 (1998). Once the moving party has established a prima fade entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

II. Compensation Rate

The crux of this case is whether appellant was compensated fairly according to her contract. It is undisputed that appellant contracted to work 205 days and was compensated for 205 days; the question is whether the number of days appellant worked in excess of the 185-day standard school year (i.e., twenty days) should have been compensated on a daily-rate-of-pay basis as defined by § 16-17-807 or on a fixed .005 times her base salary per day for each day beyond 185 days, as specified in her contract pursuant to the supplemental salary schedule prescribed by Ark. Code Ann. § 6-17-204.

The first issue is whether the trial court erred in ruling as a matter of law that appellant’s contract did not violate Ark. Code Ann. § 6-17-807, which governs teachers’ compensation for days worked in addition to the regular school year. This statute provides:

If additional days are aided to a teacher’s contract or if the teacher is required to work more days than provided for under the teacher’s contract, then the teacher’s pay under the contract shall be increased proportionately so that the teacher will receive pay for each day added to the contract or each additional day the teacher is required to work at no less than the daily rate paid to the teacher under the teacher’s contract.

[Emphasis added.]

Appellant argues that the statute mandates that if additional days are added to a teacher’s contract, then the teacher is entitled to be paid the same for each extra day worked as she was paid for each day worked during the standard portion of the contract. She asserts that because she worked the equivalent of twenty extra days in her capacity as the Chapter One Coordinator, she is entitled to compensation for those extra days based on her daily rate of pay instead of the lower rate specified under her contract. Thus, she asserts that her contract violates the statute because she works additional days beyond the normal school year; the provision in the supplemental salary schedule that calculates her daily rate of pay using a multiplier of .005 times her base salary for each additional day worked past the 185 th day compensates her at less than her daily rate of pay. That is, for the first 185 days of her contract, her daily rate is calculated by dividing her base salary by 185. However, using the .005 multiplier, she will be paid less for each additional day worked past the 185th day than she earned during the first 185 days of her contract. Thus, she maintains that she is being paid less than her daily rate, which violates the express terms of § 6-17-807. We disagree and find no violation of § 6-17-807.

There are no prior cases interpreting this statute. The basic rule of statutory construction is to give effect to the intent of the legislature, and when a statute is clear, it is given its plain meaning; the legislative intent is gathered from the plain meaning of the language used. See Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995). The emergency clause in section 4 of Act 712 of 1989, which enacted § 6-17-807, states in part, “the school districts are . . . increasing teacher contract days from one school year to the next with no guarantee to the teacher of a daily pro rata increase in pay based on the salary schedule . . . for the next year.” This statute was passed in response to the school districts’ practice of adding days to the teachers’ contracts from one year to the next without a proportional increase in pay. Clearly, the instant case is not one whereby the school board increased the number of working days from one contract to the next, nor is appellant required to work more days than is required under her contract. As such, we hold that the trial court did not err as a matter of law when it held that appellant’s contract did not violate § 6-17-807.

We also hold that the school’s supplemental salary schedule, which is incorporated into appellant’s contract and which compensates appellant for extra days at a rate less than her daily rate of pay, likewise, does not violate § 6-17-807 and does comply with Arkansas law. The applicable statute provides that “[a] school district shall adopt, in accordance with this subchapter, a supplement to the salary schedule for those certified staff employed longer than the period covered by the salary schedule and for duties in addition to certified employees’ regular teachers assignments.” Ark. Code Ann. § 6-17-204(c)(2) (emphasis added). Appellant argues that appellee violated this statute because its supplemental salary schedule does not provide special remuneration for all of the additional duties performed by certified personnel, and specifically does not include special remuneration for the Chapter One Coordinator position.

The salary schedule defines the base salary for a teacher with a Masters or Specialist Degree and states that the schedule is based on a 185-day contract year. The schedule further states that extended contracts will “result in an increase of .005 per day for each day beyond” 185 days. The schedule specifically lists the compensation rates for the following positions: superintendent, high school principal, elementary principal, head coach, counselor, band director, assistant coach, athletic director, annual sponsor, Gifted and Talented coordinator, cheerleader sponsor, specialist degree, sound system, quiz bowl, dean of students, and assistant band director.

Although the Chapter One Coordinator position, which is a non-certified, administrative position, is not specifically included in the list provided in this section, the statute certainly does not require that certified staff work in positions requiring certified personnel in order to receive remuneration under the supplemental salary schedule for extra work performed. Moreover, a plain reading of the statute compels us to conclude that it guarantees remuneration to certified personnel for those job duties performed in addition to their duties as a certified teacher, regardless of whether those duties are required to be performed by certified personnel.

It is undisputed that appellant is a certified employee and that her duties as Chapter One Coordinator are performed in addition to her regular teaching assignments. It is further undisputed that appellant was provided remuneration for performing those extra duties; the rate of remuneration was, however, calculated using the .005 multiplier, rather than the daily rate of pay. We find no violation of either § 6-17-807 or § 6-17-204 and hold that, when read in harmony together, appellee complied with both statutes by remunerating appellant pursuant to her contract for the 185 days she performed her duties as a certified teacher during the standard school year and by paying her the .005-rate supplemental salary for the job duties she performed in addition to her duties as a certified teacher as a Chapter One Coordinator, a position requiring no certification.

Affirmed. Arkansas Court of Appeals reversed.

Glaze and Hannah, JJ., dissent.

IMBER, J., not participating.

J IM HANNAH, Justice,

dissenting. I must respectfully dissent. I cannot agree with the majority’s analysis of Ark. Code Ann. § 6-17-807. The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Western Carroll Cty. Amb. Dist. v. Johnson, 345 Ark. 95, 44 S.W.2d3d 284 (2001). The language of the statute at issue states, “if additional days are added to a teacher’s contract or if the teacher is required to work more days than provided for under the teacher’s contract. ...” The use of the disjunctive “or” indicates that the statute is aimed at two alternative situations. Clemmons v. Office of Child Spt. Enforce., 345 Ark. 330, 47 S.W.3d 227 (2001). The statute applies where days are added to a contract and also where a teacher is required to work additional days. Thus, it applies where a teacher is required to work additional days. The word “work” is not defined. Its ordinary meaning in this context would simply be work required of the teacher by the district. There is nothing here that limits the work to work where certification is required. To reach the conclusion found by the majority, one must add meaning to the words in the statute that simply is not there. In construing the statute, leaving no word void, superfluous, or insignificant, and giving meaning and effect to every word in the statute, one must conclude the word “work” merely refers to any labor required of the teacher by the district, whether that work is work requiring certification or not. If the Legislature had intended to have said “to teach” rather than “to work,” it would have done so.

Bond contracted to teach in certified areas for the 185-day standard year and to serve as Lavaca School District’s Chapter One Coordinator, a job that does not require teacher certification. Bond contracted to be paid for the position of Chapter One Coordinator by being paid twenty days in addition to the 185 days at the rate of .0005 times her base salary per day, which is less than her contracted certified teacher’s pay. Arkansas Code Annotated § 6-17-807(a) states:

[I]f the teacher is required to work more days than provided for under the teacher’s contract, then the teacher’s pay under the contract shall be increased proportionately so that the teacher will receive pay for each day added to the contract or each additional day the teacher is required to work at no less than the daily rate paid to the teacher under the teacher’s contract.

In this case, Bond was required to work twenty days in addition to the 185 days under the standard contract, and she should be paid at the same rate she is paid as a certified teacher under her contract.

For the above reasons, I respectfully dissent.

Glaze, J., joins in this dissent.


author: R OBERT L. BROWN, Justice.

text:
    James BROWN v. STATE of Arkansas
    CR 01-788
    65 S.W.3d 394
    Supreme Court of Arkansas
    Opinion delivered December 20, 2001

      B. Kenneth Johnson, for appellant.

      Mark Pryor, Att’y Gen., by: Jeffrey Weber, Ass’t Att’y Gen., for appellee.
   R OBERT L. BROWN, Justice.

Appellant James Brown was .convicted by a jury of one count of second-degree battery, a Class D felony, and two counts of terroristic act, one a Class B felony and the other a Class Y felony. He was sentenced to the statutory minimum of ten years in prison for the Class Y terroristic act conviction and a fine of $1.00 for the Class B and Class D felony convictions. He appeals, raising several points: (1) there was insufficient evidence introduced to prove serious physical injury; (2) a judgment of conviction for both second-degree battery and terroristic act violated Arkansas law and the Double Jeopardy Clause of the United States Constitution; and (3) the circuit court erred in denying his mistrial motion. None of these points requires reversal of his conviction, and we affirm.

During the time period relevant to this appeal, Brown lived in Pine Bluff and was an employee of International Paper, as was his wife Shirley Brown. They had two children. Brown and his wife had been married since 1990. In 1995, Brown was diagnosed with colon cancer. After surgery, he took a year-long leave of absence from his job at International Paper and received intensive treatment for the cancer. During this period, he tried twice to return to work, but both times, he was physically unable to do so. During the period from 1995 to 1997, Brown suffered from extreme distress and anxiety about his health, his job, and his marriage. He sought counseling to aid him in handling the psychological impact of his illness. By July of 1997, he was in better health, and he returned to his job. Upon returning to his job in 1997, Brown learned that his wife had been having an affair with another International Paper employee, Kenneth White. He confronted White about the situation and told him to stay away from his wife. After this incident, Brown and Shirley Brown separated.

On the morning of October 27, 1997, Brown drove his truck to a garbage dumpster to drop off some items. He had battery problems with the truck and was forced to walk home. As he walked toward his house, he noticed his wife leaving in her van. His trial testimony did not address the question of why she was at his house when the two of them had apparently been separated for some time. He decided to follow her in his car and proceeded to follow her to Regional Park. He parked his car some distance away from her and watched her, suspecting she was meeting White. At trial, Shirley Brown testified that she had not planned in advance to meet White at the park. She stated that she had seen his vehicle in the park, and only then did she decide to drive into the park to talk to him. She pulled her van over and parked it, waiting for White to approach her.

White, meanwhile, drove through the park toward both Brown’s and his wife’s vehicles. Through a chain-link fence, Brown saw him approaching from roughly 200 to 250 yards away. While White was driving towards Brown, Brown got out of his car and removed his rifle from the trunk. He returned to the front seat of his vehicle, as White approached him slowly. At trial, Brown testified that while White was still in his vehicle and slowly driving toward him, White pulled a handgun and pointed it at him. White denied that he pulled a handgun but admitted that he had one in the front seat of his truck at the time.

At this point, by all accounts, Brown jumped out of his car and motioned for White to stop driving. White did not stop. Brown began firing shots at White. None of the shots hit him. At trial, White estimated that at least five shots were fired into his truck. White testified that he drove off rapidly to the Pine Bluff police station to report the ongoing incident. Brown, however, testified that White drove off slowly and continued to brandish his weapon throughout their encounter.

Pine Bluff police officers began arriving at the scene, as Brown and his wife had their confrontation. Shirley Brown pulled her vehicle out onto the park road as if to exit the park, and Brown began chasing her. They engaged in a high-speed chase for a short distance. Brown rammed his car into the back of his wife’s van, at which time she flashed her lights at the approaching police officer, Officer Larry Plunkett, for assistance. At this point, Brown began shooting at the van from inside his car, shattering his own windshield. Nine bullets hit the van, and two wounded Shirley Brown in the buttocks.

Officer Plunkett began chasing Brown’s vehicle and radioed for an ambulance because he feared that Shirley Brown had been injured. Brown immediately pulled over to the side of the park road, and Officer Plunkett arrested him without difficulty. In searching Brown’s vehicle, Officer Plunkett found the rifle along with two high-capacity ammunition clips and full-metal jacket, lead-ball bullets. Shirley Brown was taken to the hospital by emergency personnel. The two bullets pierced her small intestine. Part of her intestine was subsequently removed, and she spent nine days in the hospital. Thereafter, she was required to wear a colostomy for three months while her intestine healed.

On October 29, 1997, Brown was charged with two counts of terroristic act, one for his shots fired at his wife and the other for the shots fired at Kenneth White. Brown was also charged with first-degree battery for wounding Shirley Brown. That same day, the State moved the circuit court to commit Brown for a psychiatric evaluation, and the circuit court granted this motion. The psychiatric evaluator found Brown to be competent to stand trial but noted that he was under extreme emotional stress.

On March 30, 1999, Brown’s case went to trial. At the trial, Shirley Brown testified that she and Brown, though now separated, resumed living together after the shooting incident, that Brown was a good father, and that he paid the medical bills that insurance did not cover. She testified further that she forgave Brown for the incident, that she felt that she bore some responsibility for it, and that she felt that at the time he was “stressed out” because of her infidelity and his poor health.

At the close of the State’s case, Brown moved for a directed verdict on the first-degree battery charge and claimed that the State failed to prove a serious physical injury to his wife. The defense also moved to have the State elect which charge it wanted to pursue with regard to Shirley Brown, claiming that to allow the State to proceed with both would be violative of the Double Jeopardy Clause for two reasons: both charges arose out of a single course of conduct, and both charges have the same elements. The defense renewed its motion for directed verdict at the close of all the evidence. The circuit court denied both motions.

The jury convicted Brown of the terroristic-act charges: a Class Y felony with regard to the terroristic act in connection with Shirley Brown, and a Class B felony with regard to the terroristic act in connection with White. The jury also convicted Brown of the lesser included offense of second-degree battery, a Class D felony. Though Brown was sentenced to 10 years in prison for the Class Y terroristic act against his wife, the jury sentenced Brown to no fine and no time to serve for the Class B and Class D felonies. The circuit court advised the jury that this was an impossibility under Arkansas sentencing guidelines. The jury then sentenced Brown to ten years and fined him $1.00 apiece for the Class B and Class D felony convictions.

The judgment of conviction was appealed to the court of appeals, and that court affirmed the conviction in a plurality decision. See Brown v. State, 74 Ark. App. 281, 47 S.W.3d 314 (2001). Brown petitioned for review, and this court granted that petition. He raises three arguments on review. We review the matter as if the appeal had originally been filed in this court. Harshaw v. State, 344 Ark. 129, 37 S.W.3d 753 (2001).

I. Sufficiency of the Evidence

Brown argues that the circuit court erred in failing to direct a verdict on the Class Y terroristic act charge and the first-degree battery charge due to the State’s alleged failure to prove that Shirley Brown experienced a serious physical injury. The State responds that Brown was not convicted of first-degree battery but rather of second-degree battery, and because the motion for directed verdict did not address the elements of the lesser included offense, this issue is not preserved for purposes of this appeal. The State also asserts that as to the Class Y terroristic-act conviction, substantial evidence supported the proposition that Shirley Brown suffered a serious physical injury.

We address sufficiency-of-the-evidence questions first because if the judgment of conviction is not supported by substantial evidence, an appellant may not be tried again under the principle of double jeopardy. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). The two convictions will be discussed separately.

a. Battery conviction.

Arkansas Rule of Criminal Procedure 33.1(a) requires that a motion for directed verdict “shall state the specific grounds therefor.” In interpreting this rule, we have held that to preserve the issue of sufficiency of the evidence to support a conviction of a lesser included offense, a defendant’s motion for directed verdict must address the elements of the lesser included offense. Moore v. State, 330 Ark. 514, 954 S.W.2d 932 (1997) (citing Webb v. State, 328 Ark. 12, 941 S.W.2d 417 (1997); Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996)). In Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), this court discussed the rationale behind these holdings:

Other practical reasons have caused us to require that the grounds for the motion be specified. In multiple-count cases, which mandate different degrees of culpability for the lesser included offenses, it is easy for an element of one of the counts for lesser included offenses to be overlooked. Since a general motion for a directed verdict does not specify the missing element, the trial court is not apprised of the proof that was overlooked. As a result, the trial court is not made aware of the deficiency.

Walker, 318 Ark. at 108, 883 S.W.2d at 832 (citing Sanders v. State, 310 Ark. 510, 383 S.W.2d 359 (1992)). Thus, this court has made it clear that a defendant, in making his motions for directed verdict, must anticipate an instruction on lesser included offenses and specifically address the elements of that lesser included offense on which he wishes to challenge the State’s proof in his motion.

At trial, Brown moved for directed verdict specifically as to first-degree battery on the theory that the State failed to prove serious physical injury to Shirley Brown. Brown did not argue any aspect of second- or third-degree battery. Accordingly, Brown waived his opportunity to mount a challenge on appeal to the sufficiency of the evidence supporting his conviction for second-degree battery, and this issue is not preserved for our review.

b. Terroristic act.

Brown’s challenge to the sufficiency of the State’s evidence supporting the terroristic-act conviction is preserved. Brown argued at trial that the State failed to prove by substantial evidence that Brown caused his wife “serious physical injury.” The phrase “serious physical injury” is statutorily defined:

“Serious physical injury” means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ[.]

Ark. Code Ann. § 5-1-102(19) (Repl. 1997). See also Harmon v. State,, 340 Ark. 18, 8 S.W.3d 472 (2000); Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). Whether a victim has suffered serious physical injury is an issue for the jury to decide. Bangs v. State, supra (citing Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991)).

The cases interpreting this definition in the context of sufficiency challenges illustrate the degree of evidence necessary to sustain a finding of serious physical injury. In Harmon, supra, this court affirmed a conviction where the offense was based on serious physical injury and noted that the victim had spent three days in intensive care; had suffered a long-term loss of taste, smell, and memory; and had to undergo facial plastic surgery. Likewise, in Bangs, supra, we affirmed a jury’s finding of serious physical injury where the victim suffered bruises on her forehead and face, two lacerations on her scalp which required staples, and numerous blunt-object injuries to her neck and the back of her head.

This court has also considered whether gunshot wounds constituted serious physical injury on several occasions. In Witherspoon v. State, 319 Ark. 313, 891 S.W.2d 371 (1995), the victim was hospitalized for two days, and a bullet remained lodged in his hip. The victim also suffered superficial graze wounds to his hand and thumb. The shot to the hip narrowly missed his bones and arteries. This court held these wounds to be sufficient evidence of serious physical injury to sustain the conviction. In Henderson v. State, 291 Ark. 138, 722 S.W.2d 842 (1987), this court upheld a jury’s finding of serious physical injury by a gunshot wound where the victim was shot two times in the feet and legs. The victim was hospitalized for one night and one day and could not return to work for a month.

Brown’s argument is that under the statutory definition quoted above (§ 5-1-102(19)), he did not cause Shirley Brown a serious physical injury because she now has made a full recovery. We disagree. The facts indicate that she did in fact suffer a serious physical injury, regardless of her recovery. She was hospitalized for nine days and required surgery to remove a portion of her intestine. She had to wear a colostomy for three months. Clearly, Shirley Brown’s injuries were far more severe than those at issue in either Witherspoon or Henderson, where we upheld a finding of serious physical injury. The circuit court’s decision on this point is affirmed.

II. Double Jeopardy

Brown next contends that he was charged and convicted of both a terroristic act and second-degree battery in violation of his statutory and constitutional rights to be free from being twice put in jeopardy. During the trial, he argued to the circuit court at the close of the State’s case and again at the close of all the evidence that the State should be required to elect between the first-degree battery charge and the terroristic-act charge with regard to conduct relating to Shirley Brown. Now, on appeal, the jury having convicted him of second-degree battery instead of first, he posits three theories on how convictions for both second-degree battery and a terroristic act violate double jeopardy. The State’s response is a procedural argument. It asserts that Brown failed to preserve this point for appeal by neglecting to be sufficiently specific in his motion for directed verdict.

We agree with the State that this issue is not preserved, but do so for a different reason. We believe that raising the issue of double jeopardy in a motion for directed verdict was premature since the motion at that stage of the proceedings could only relate to charged offenses. After the jury’s verdicts on the various convictions were returned, Brown failed to make any motion whatsoever. Brown’s issue on appeal clearly relates to multiple convictions for the same conduct and not to multiple charges for the same conduct, and our Criminal Code makes this distinction very clear:

When the same conduct of the defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense.

Ark. Code Ann. § 5-l-110(a)(l) (Repl. 1997). Thus, a defendant cannot object to a double jeopardy violation until he has actually been convicted of the multiple offenses, because it is not a violation of double jeopardy under § 5-l-110(a)(l) for the State to charge and prosecute on multiple and overlapping charges. It was only after the jury returned guilty verdicts on both offenses that the circuit court would be required to determine whether convictions could be entered as to both based on the same conduct. See Ark. Code Ann. § 5 — 1—110(a)(1) (Repl. 1997); Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993) (citing Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981)).

Because Brown moved for a directed verdict based on double jeopardy before he was convicted of any offense, his motion was ineffective. Because he then failed to object after the jury convicted him of both charges, he waived his double jeopardy argument for purposes of appeal. We conclude that the circuit court committed no error as to double jeopardy, and we affirm the court on this point.

III. Mistrial

For his final point, Brown contends that the circuit court should have granted his motion for declaration of a mistrial because the jury was hopelessly confused during sentencing deliberations. The State maintains in response that there was no abuse of the circuit court’s discretion in denying the motion for a mistrial.

During the jury’s deliberations following the penalty phase of the trial, these events transpired. The circuit court received a series of notes from the jury, asking these questions:

(1) “Do we have to sentence to years & fine or one of [sic] the other?”
(2) “What is the minuim [sic] fine for the Class B & Class D?”
(3) “Can he be sentenced on the Class Y felony, to probation or suspended sentence, or something less than 10 years?”
(4) “What happens if we can not agree to time for the Class Y felony?”

These notes were answered by the judge in writing. The jury then returned a verdict imposing no punishment whatsoever for the Class B terroristic act conviction or the Class D second-degree battery conviction. As to the Class Y felony, the jury did impose a sentence of ten years in accordance with sentencing requirements. The circuit court then reinstructed the jury that it had to impose some sentence within statutory minimums and máximums for Class B and Class D felonies and sent the jury back to deliberate further. The jury returned verdicts of $1.00 fines for the Class B and Class D felonies. Along with these verdicts, the jury returned a note unanimously recommending that the ten-year sentence for the Class Y felony, which they imposed during the first deliberations, be suspended. While the jury was deliberating after initially returning the illegal sentence and being reinstructed by the circuit court, defense counsel moved for a mistrial based on jury confusion, as evidenced by the four notes the jury had sent to the circuit court and by its failure to assess punishment for the Class B and Class D felonies. The circuit court denied this motion.

The declaration of a mistrial is an extreme remedy, which should only be granted when justice cannot be served by continuing the trial. E.g., Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001); Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001); Woods v. State, 342 Ark. 89, 27 S.W.3d 367 (2000). A mistrial should only be declared when the fundamental fairness of the trial itself has been manifestly affected. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996) (citing King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994)). Declaring a mistrial is proper only where the error is beyond repair and cannot be corrected by any curative relief. Taylor v. State, 334 Ark. 339, 974 S.W.2d 454 (1998); Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998). The circuit court has wide discretion in granting or denying a motion for a mistrial, and this court will not disturb the court’s decision absent an abuse of discretion or manifest prejudice to the movant. See Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998); King v. State, supra; Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994).

It appears clear to this court that the jury at first questioned whether it could suspend the ten-year sentence for the Class Y felony and later recommended a suspension. It then showed some reluctance to impose punishment for the Class B and Class D felonies. However, it does not necessarily follow that the jury was confused. The jury was first striving for a way to avoid sentencing Brown to a term of years for the Class Y felony or punishing Brown in any respect for the Class B and Class D felonies. But when the circuit court made it clear that the jury was under a statutory duty to do so, it complied. Under these circumstances, it cannot be said that refusing to grant a mistrial was an abuse of the trial court’s discretion. The jury eventually did return valid sentences for the Class Y, Class B, and Class D felonies that followed the statutory guidelines. The circuit court is affirmed on this point.

Affirmed.

Glaze, J., concurring.

IMBER, J., not participating.

       No issue is raised by the defendant regarding a violation of Ark. Code Ann. § 16-89-125(e) (1987), and we do not address that issue.


author: J IM HANNAH, Justice. T OM GLAZE, Justice,

text:
    ARKANSAS CONTRACTORS LICENSING BOARD v. PEGASUS RENOVATION COMPANY
    01-708
    64 S.W.3d 241
    Supreme Court of Arkansas
    Opinion delivered December 20, 2001

      Gregory L. Crow, for appellant.

      Hartsfield, Almand & Grisham, P.L.L.C., by: Larry J. Hartsfield, for appellee.
   J IM HANNAH, Justice.

Appellant Arkansas Contractors Licensing Board (the Board) appeals the Saline County Circuit Court’s decision to reverse the Board’s decision to revoke Appellee Pegasus Renovation Company’s (Pegasus) contractors license for a violation of Ark. Code Ann. § 17-25-308 (Repl. 1995), allowing revocation of a contractor’s license for, among other things, “misconduct in the conduct of the contractor’s business.” Both parties agree that the facts are undisputed in this case.

During the mid-to-late Spring of 2000, Pegasus, a painting and drywall subcontractor, backed out of two projects, the Petit Jean Electric Cooperative project and the Farm Bureau Child Care Facility project, on which it was the lowest bidder, and breached a third contract already signed with general contractor Flynco, Inc. for the Carlton Bates Office/Warehouse expansion project. The three general contractors who relied on Pegasus’s bids filed complaints with the Board. Flynco, Inc., the general contractor with whom Pegasus signed the contract, also filed suit against Pegasus for breach of contract.

After Flynco, Inc.’s complaint was filed, the Board issued an initial Notice of Hearing on June 21, 2000, regarding the Petit Jean Electric Cooperative project. An Amended Notice of Hearing and Notice of Continuance of Hearing was mailed to Pegasus on July 14, 2000, with the additional notice of the other two complaints on the Farm Bureau and Carlton Bates projects. The notices indicated that Pegasus was being cited for violating Ark. Code Ann. § 17-25-308 for “misconduct in the conduct of the contractor’s business.”

The hearing was held before the Board on August 11, 2000. The Board presented its evidence first, questioning Victor Smith of V.R. Smith and Sons, Inc., the general contractor hired to perform the Petit Jean Electric Cooperative project. Smith testified that his company took bids from various subcontractors for painting and sheet rock work, with Pegasus entering the lowest bid. Smith used that bid in making his company’s contract for the project, and prior to signing the final contract with Petit Jean Electric Cooperative, Smith confirmed Pegasus’s bid with Pegasus’s estimator. However, when Smith sent Pegasus the final contract to sign, Pegasus declined the job by letter and indicated that it would not take any calls from Smith regarding the matter. Smith hired the next lowest bidder, who entered a bid approximately $12,000 higher than Pegasus’s bid. Pegasus’s attorney did not cross-examine Smith.

The Board’s second witness was Bill Mullinax, an investigator with the Board. Mullinax testified that after sending Smith’s complaint to Pegasus, the Board received a response letter from Pegasus indicating that Pegasus had never signed a contract with Smith, and that the next lowest bidder’s $12,000 bid was “a false statement.” Mullinax also indicated that the second complaint came from Alessi Keyes Construction, the general contractor on the Farm Bureau project. Again, the evidence indicated that Pegasus submitted a bid and failed to follow through on signing the contract with the general contractor who relied on that bid for its final bid to Farm Bureau. Finally, Mullinax testified that a third complaint was filed by Flynco, Inc., regarding Pegasus’s breach of contract on the Carlton Bates project.

Finally, the Board’s attorney called J.Wl Henderson, Pegasus’s owner. Questioning verified that Henderson had sent the letters to the general contractors and that Henderson reneged on his low bid offers and on the contract with Flynco, Inc. Pegasus’s attorney, Larry Hartsfield, did not cross-examine Henderson to develop any further information about Pegasus’s failure to honor its bids and contract, nor did he call any other witnesses. However, at the close of evidence, Hartsfield argued to the Board that Ark. Code Ann. § 17-25-308 is unconstitutionally vague because the word “misconduct” does not have a legally recognized meaning, thus leaving the statute without a basis on which to judge the term. Hartsfield also argued that regarding the VR. Smith and Alessi Keyes jobs, there was no legal basis to find misconduct if a bidder withdraws a bid prior to signing the final contract. Furthermore, Hartsfield argued that the term “gross” in the statute modifies, among other words, the word “misconduct” to raise the standard of proof.

After deliberations regarding whether failure to honor a bid rose to the level of misconduct and whether, en masse, these actions by Pegasus reached the level of misconduct, the Board voted three-to-one to revoke Pegasus’s contracting license for violation of the statute. In a decision entered on August 11, 2000, the Board found that Pegasus “failed and refused, without good cause, to perform the work on said projects.” The Board found Pegasus guilty of misconduct in the conduct of its business, thus violating Ark. Code Ann. § 17-25-308. The Board did not rule on Pegasus’s argument that the statute was void for vagueness for use of the term “misconduct.”

Following this decision, Pegasus filed a Petition for Judicial Review in the Saline County Circuit Court pursuant to the Arkansas Administrative Procedure Act. The Board answered on September 13, 2000, and on October 31, 2000, the circuit court stayed the Board’s revocation of Pegasus’s license until the court made its final decision on the case. Pegasus filed its brief to the court on November 27, 2000, again arguing that Ark. Code Ann. § 17-25-308 is void for vagueness because of its use of the term “misconduct.” Pegasus also argued that the statute is an unlawful delegation of legislative power, that the action of the Board was arbitrary and capricious given the facts before it, and that the penalty imposed was too harsh under the circumstances. The Board responded by brief on December 21, 2000, arguing that the statute is not unconstitutional wherein the Board is given the power of the State to act, and that the burden to prove whether the statute is unconstitutional is on Pegasus. The Board argues that the phrase “misconduct in the conduct of the contractor’s business” is not vague, and cites various other administrative statutes providing for a similar phrase for administrative action. The Board also argued that its action was not arbitrary and capricious, and that the penalty imposed was valid. Pegasus replied on January 17, 2001.

The circuit court issued its decision on March 13, 2001, finding that the Board erred in revoking Pegasus’s license. Specifically, the court found that Ark. Code Ann. § 17-25-305 lists qualifications of an applicant for an “original” or “renewal” license, and that the Board did not consider these eight factors in its decision. Furthermore, the court found that the Board did not address issues raised in the general contractors’s complaints regarding Pegasus’s “ability and willingness ... to conserve the public health and safety of the citizens” of Arkansas, and that the grounds for revocation of these licenses with respect to misconduct means “misconduct inimicable to public health ánd safety issues.” As such, the court found “[t]hat to the extent the Arkansas Contractors Licensing Board revoked the contractors license of Pegasus Renovation Company on grounds not relevant to public health and safety issues was arbitrary and capricious.” The court also specifically noted that it declined to rule on the constitutionality of the statute. The court then remanded the case to the Board for a determination consistent with the opinion. The Board appealed to this court instead on April 4, 2001.

We have outlined our standard of review of the decisions of administrative agencies on numerous occasions. In Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 357, 994 S.W.2d 456 (1999), we stated:

The standard of review in this area of the law is well-developed. The appellate court’s review is directed not toward the circuit court, but toward the decision of the agency. That is so because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999); Social Work Licensing Bd. v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998); Files v. Arkansas State Highway and Transp. Dep’t, 325 Ark. 291, 925 S.W.2d 404 (1996). Our review of administrative decisions is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra; In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992).

These standards are consistent with the provisions of the Administrative Procedure Act, Ark. Code Ann. § 25-15-201 — 25-15-214 (Repl. 1996), which requires that the scope of appellate review under the Act be limited. According to the Act, it is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency’s decision or whether the agency’s decision runs afoul of one of the other criteria set out in section 25-15-212(h). Arkansas State Racing Comm. v. Ward, Inc., 346 Ark. 371, 57 S.W.3d 198 (2001); Arkansas Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 941 (1998). We review the entire record in making this determination. Id. We also note that in reviewing the record, the evidence is given its strongest probative force in favor of the agency’s ruling. Arkansas Health Servs. Agency v. Desiderata, 331 Ark. 144, 958 S.W.2d 7 (1998). We have also held that between two fairly conflicting views, even if the reviewing court might have made a different choice, the board’s choice must not be displaced. Jackson v. Arkansas Racing Commission, 343 Ark. 307, 34 S.W.3d 740 (2001) (citing Northwest Sav. & Loan Ass’n v. Fayetteville Sav. & Loan Ass’n, 262 Ark. 840, 847, 562 S.W.2d 40, 52 (1978)).

The relevant section of the Arkansas Administrative Procedure Act provides:

(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.

Ark. Code Ann. § 25-15-212(h) (Repl. 1996). Administrative action may be viewed as arbitrary and capricious only when it is not supported by any rational basis. Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980).

On appeal, the Board argues that the circuit court erred in reversing the Board’s decision to revoke Pegasus’s contractors license. The Board argues that the circuit court erred in finding that it had acted in an arbitrary and capricious manner based on the court’s reading that “misconduct” had to affect the “physical” “public health and safety” pursuant to Ark. Code Ann. § 17-25-305(a). Furthermore, the Board argues that even if the circuit court was correct in its interpretation of that statute, there was substantial evidence to support the Board’s decision, and any determination by the circuit court that Pegasus’s actions were not a threat to public health and safety was in error. Finally, the Board notes that it was in the best position to judge whether Pegasus’s actions were “misconduct.”

Pegasus responds that the circuit court did not err in finding that the Board had acted in an arbitrary and capricious manner, and that the word “misconduct” cannot withstand constitutional review because it is vague, thus rendering that statutory provision void. Pegasus for the first time on appeal also argues that the Board’s acts were ultra vires, and that this court should adopt an additional standard on review, incorporating this standard. Furthermore, Pegasus argues that the circuit court’s interpretation of Ark. Code Ann. § 17-25-305 was correct and that there was not substantial evidence in the record to support the Board’s finding. Finally, Pegasus argues that the Board’s decision was not motivated by its interest in protecting the public health and safety, but instead was motivated by its interest in protecting general contractors.

Despite the fact that both parties cite the standard of review and, presumably, understand that we only review the Board’s decision rather than the circuit court’s decision, both parties direct most of their arguments and brief space to a discussion of what the circuit court decided when reversing the Board’s decision. This is completely incorrect, as our review is to the Board’s decision rather than the circuit court’s decision. See Smith, supra. The posture of this case on appeal is similar to that in Smith. In Smith, the State Police Commission ruled to terminate the employment of an Arkansas State Police Officer for violations of the code of conduct. On appeal to the circuit court from the Commission’s decision, the circuit court reversed the Commission by finding that there was not substantial evidence to support the officer’s termination. The circuit court also placed the officer on six-month suspension and directed that the officer be reinstated after the suspension was over. The Commission appealed to this court, and on review, we only looked to the Commission’s decision to determine whether there was substantial evidence to uphold the Commission’s decision and to decide whether the Commission’s decision was arbitrary and capricious. We did not review the circuit court’s decision or any findings or interpretations made by the circuit court.

This is important to note because the circuit court’s decision in this case is based on statutory interpretation not included in or ruled upon in the Commission’s decision. While the board members very briefly discussed the Board’s duty to the public, there was no ruling on whether “misconduct” was connected to any statutory provision regarding the “public health and safety” as discussed by the circuit court. Rather, the Board found the following in its decision:

FINDINGS OF FACT
1. The Pegasus Renovation Company is a licensed contractor in the State of Arkansas.
2. The Pegasus Renovation Company entered bids on at least three separate projects and thereafter failed and refused, without good cause, to perform the work on said projects.
3. The Pegasus Renovation Company is guilty of misconduct in the conduct of the contractor’s business in violation of Ark. Code Ann. § 17-25-308.
CONCLUSIONS OF LAW
The Pegasus Renovation Company is guilty of violating Section 17-25-308, “misconduct in the conduct of the contractor’s business”.
ORDER
1. The Board voted three to one with one abstention to revoke the license of The Pegasus Renovation Company.

Under the standard of review, we review this order and the entire record, giving the evidence its strongest probative force in favor of the agency’s ruling, to ascertain whether there is substantial evidence to support the agency’s decision or whether the agency’s decision runs afoul of one of the other criteria set put in Ark. Code Ann. § 25-15-212(h). Ward, Inc., supra; Carlson, supra.; Desiderata, supra.

This case deals with the revocation of a contractor’s license. Ark. Code Ann. § 17-25-308, entitled “Grounds for Revocation,” is the statutory provision detailing the requirements for revocation of a contractor’s license. This statute states:

The board shall have the power to revoke the certificate of license of any contractor licensed under this chapter who is found guilty of any fraud or deceit in obtaining a Hcense or for aiding or abetting any contractor or person to violate the provisions of this chapter or for gross negligence, incompetence, or misconduct in the conduct of the contractor’s business.

Clearly, this statute lays out the only reasons the Board could revoke a contractor’s license, and here the Board chose the last provision requiring “misconduct in the conduct of the contractor’s business.” “Misconduct” is not defined in the statutory provisions regarding contractor licensing. It also appears that this court has not defined the term in the context of revocation cases. However, “misconduct” is defined by Black’s Law Dictionary as “a dereliction of duty; unlawful or improper behavior.” Black’s Law Dictionary 1013 (7th ed. 1999).

While we do not review the circuit court’s decision, for clarity’s sake it should be noted that the circuit court referred to Ark. Code Ann. § 17-25-305 (Repl. 1995) to create a basis for reversal of the Board’s decision. The circuit court determined that the Board should refer to the terms in this statute to determine whether a license should be revoked under Ark. Code Ann. § 17-25-308. The statute states in pertinent part:

(a) The Contractors Licensing Board, in determining the qualifications of any applicant for an original license or any renewal license, shall, among other things, consider the following:
(1) Experience;
(2) Ability;
(3) Character;
(4) The manner of performance of previous contracts;
(5) Financial condition;
(6) Equipment;
(7) Any other fact tending to show ability and willingness to conserve the public health and safety; and
(8) Default in complying with the provisions of this chapter or any other law of the state.

Ark. Code Ann. § 17-25-305(a). The clear language of the statute indicates that these elements should be used by the Board to decide when to issue an original license or renew a license. The statute does not state that they will be used to determine if “misconduct” has occurred when considering “revocation” of a license. Thus, by the plain language of the statute, it is clear that the circuit court erred in using these elements, particularly section (7), to determine that “misconduct” is determined by a contractor violating the “public health and safety.” This statute and Ark. Code Ann. § 17-25-308 contain different provisions and requirements for different circumstances and should not be applied interchangeably.

As such, our standard of review requires us to only determine whether substantial evidence supports the Board’s decision, and whether the decision is arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra. Substantial evidence is defined as:

[V]alid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture. The challenging party has the burden of proving an absence of substantial evidence. To establish an absence of substantial evidence to support the decision the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence.

Smith, 338 Ark. at 362 (citations omitted). Pursuant to this definition, we cannot say that the Board erred in concluding that the conduct about which three general contractors complained amounted to “misconduct” under the revocation statute. The proof before the Board was undisputed. Pegasus failed to honor three bids, one of which was an actual contract, causing each general contractor to have to turn to another bidder at substantially higher cost. The letters written by Pegasus not only did not give any defendable reason for the failure to follow through on the bids, but failed in any way to attempt to work out an alternative option for resolution, particularly on the actual contract with Flynco, Inc. In fact, Pegasus specifically stated in its letters to these general contractors that its decisions were “non-negotiable” and that it would “accept no calls” on the matters, thus eliminating any effective mode of communication to resolve the problems. Furthermore, at the hearing, the evidence offered by the Board’s attorney went unchallenged by Pegasus, and Pegasus offered no evidence regarding any defense as to why it could not follow through on the bids or contract. Instead, the evidence only points to Pegasus’s failure to honor its promises and contract or provide any defense for its failure to do so.

In Smith, supra, the court also outlined our rule regarding the determination of whether an administrative action is arbitrary and capricious. The court stated:

Administrative action may be regarded as arbitrary and capricious where it is not supportable on any rational basis. Partlow, supra. To have an administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was willful and unreasoning action, without consideration and with a disregard of the facts or circumstances of the case. Partlow, supra. We have stated that the requirement that administrative action not be arbitrary and capricious is less demanding than the requirement that it be supported by substantial evidence. Beverly Enter.-Ark., Inc. v. Arkansas Health Servs., 308 Ark. 221, 824 S.W.2d 363 (1992). An action is not arbitrary and capricious simply because the reviewing court would act differently. McQuay, supra. Finally, we have held that once substantial evidence is found, it automatically follows that a decision cannot be classified as unreasonable or arbitrary. Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).

Smith, 338 Ark. at 363. As noted, if we find that the Board’s decision is supported by substantial evidence, then the decision cannot be arbitrary and capricious. Furthermore, the Board’s decision is supported by a rational basis in that the Board is bound to regulate the profession, protecting not only the public at large, but even the general contractors who rely on these subcontractors for bids. A subcontractor who does not follow through, without a defendable reason, with the bids it makes can cause a domino effect of substantial proportion, perhaps jeopardizing immediate and future projects for that subcontractor itself, the general contractor, other subcontractors relying on the work from a project, and the customer. Clearly, despite Pegasus’s argument that the Board was only protecting the general contractor, many people rely on one subcontractor’s representation that it will follow through on its bids and contracts. This is a rational basis for the Board to revoke a license.

The Saline County Circuit Court’s decision is reversed. The Arkansas Contractor Licensing Board’s decision is affirmed.

Glaze, J., concurs.

Imber, J., not participating.

T OM GLAZE, Justice,

concurring. I join in the result reached by the majority because there is unquestionably substantial evidence to support the decision rendered by the Arkansas Contractors Licensing Board. However, I am unclear what standard of review the majority is using to reach its decision in affirming the Board.

Obviously, if the Board based its decision on substantial evidence (which we opine it did), the Board’s decision could not be arbitrary, capricious, or an abuse of discretion. E.g., see the Arkansas Administrative Procedure Act, Ark. Code Ann. § 25-15-212(h)(5) and (6); see also Wright v. Arkansas State Plant Board, 311 Ark. 125, 842 S.W.2d 42 (1992). If the issue on review was whether the Board’s action was arbitrary, capricious, or an abuse of discretion (not substantial evidence), the review of the Board’s ruling becomes a closer question. Then the question is whether the Board’s action need only be supported on any rational basis. Someday the court needs to address these two different standards and decide which one applies when reviewing administrative agency decisions.

       At the hearing before the Board, in briefs to the circuit court, and on appeal here, Pegasus attempts to argue that this statute is unconstitutional because it is vague, thus voiding the revocation statute. However, this argument is not preserved for review because Pegasus did not get a ruling on it from the Board, and, while it does not matter for our review, the circuit court specifically declined to rule on the issue of the constitutionality of the statute as well. It is well settled that to preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling below. Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001); Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998). Accordingly, we must reject this argument without reaching the merits.


author: w .H. “Dub” ARNOLD, Chief Justice.

text:
    Carol ROSS v. STATE of Arkansas
    CR 01-177
    64 S.W.3d 272
    Supreme Court of Arkansas
    Opinion delivered January 10, 2002

      Jeff Rosenzweig, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   w .H. “Dub” ARNOLD, Chief Justice.

This is an appeal from a misdemeanor conviction for violation of the requirement to have a horse testing positive on the “Coggins” test for infectious anemia to be destroyed, quarantined, or “permitted to a research facility.” Appellant was fined $250. We affirm.

Buck, a horse belonging to appellant Carol Ross, tested positive for equine infectious anemia on the Coggins test for that illness. Arkansas Code Annotated § 2-40-813 (Supp. 1999) requires that a horse testing positive either be destroyed, or quarantined a quarter-mile from a public road or other horses if tested positive before 1997 (a grandfather clause applicable to Buck), or “permitted to a research facility.” Appellant was tried in Perry County Municipal Court and convicted. She appealed de novo to Perry County Circuit Court and was convicted and sentenced to a $250 fine plus court costs. It is from that conviction that appellant brings the instant appeal.

The issue on appeal is whether Ark. Code Ann. § 2-40-813 is unconstitutionally vague and therefore void, in violation of the due process guarantees of the United States and Arkansas Constitutions, because of the failure to define “research facility” and the failure of the State to provide a mechanism for “permitting” a horse thereto. Appellant asserts that the statute at issue is void for vagueness, both facially and as applied, because it does not give sufficient guidance to persons on how to comply with its terms. The State asserts that the appellant lacks standing to challenge the constitutionality of the statute. We agree that appellant lacks standing.

In numerous cases, we have held that a litigant has standing to challenge the constitutionality of a statute if the law is unconstitutional as applied to that particular litigant. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997); Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994); Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991). The general rule is that one must have suffered injury or belong to a class that is prejudiced in order to have standing to challenge the validity of a law. Morrison, supra; Medlock, supra. Stated differently, plaintiffs must show that the questioned act has a prejudicial impact on them. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996) (holding that Tauber failed to prove that he was prejudiced during sentencing because he received only the required minimum sentence for a DWI, first offense); Garrigus v. State, 321 Ark. 222, 901 S.W.2d 12 (1995). Under these general standing requirements, appellant may arguably have standing. However, the test for determining whether a party has standing to challenge for vagueness is more specific.

When challenging the constitutionality of a statute on grounds of vagueness, the individual challenging the statute must be one of the “entrapped innocent,” who has not received fair warning; if, by his action, that individual clearly falls within the conduct proscribed by the statute, he cannot be heard to complain. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Burrow v. State, 282 Ark. 479, 669 S.W.2d 441 (1984). In the present case, the appellant’s actions fall squarely within the actions described by the statute in that after her horse tested positive on the Coggins test; it appears she failed to quarantine him. Moreover, the appellant never attempted to “permit” her horse to a “research facility,” which is that part of the statute she contends is vague. As such, appellant has no standing to raise this constitutional argument, and we must, therefore, affirm the case.

Affirmed.

IMBER, J., not participating.