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

text:
    Robert David KARNES and Vanetta Karnes, United States of America, Acting through Farmers Home Administration, Anna Karen Karnes Garner, Robert David Karnes, as Executor of the Estate of W.T. Karnes, Deceased, and J.B. Karnes as Special Personal Representative of the Estate of W.T. Karnes, Deceased v. Wanda Janice Karnes MARROW, Laura Nell Karnes Morris, Floy Ellen Karnes Hess and Margaret Sue Karnes Slocum
    93-331
    864 S.W.2d 848
    Supreme Court of Arkansas
    Opinion delivered November 8, 1993

      Daggett, Van Dover & Donovan, by: Robert J. Donovan, for appellant.

      Lohnes T. Tiner, for appellee.
   Tom Glaze, Justice.

This appeal is from a foreclosure action on some acreage (110 acres) located on the Karnes farm, which in its entirety, is approximately 300 acres in Cross County. The Karnes farm had an A.S.C. number (H418) for purposes of government programs and payments. In January 1982, the Karnes farm was owned by W.T. Karnes. On February 4, 1982, W.T. conveyed forty acres of the farm as . an inter vivos gift to his son, appellant Robert Karnes, and three grandchildren as tenants in common. On March 15, 1982, W.T. sold 110 acres to Robert for $82,500 with an interest rate of six percent per annum and payable in twenty annual installments of $7192.73 each, beginning March 15, 1983. The debt was evidenced by a promissory note and secured by a mortgage executed by Robert and Venetta Karnes.

On the same day that the 110 acres were sold to Robert, W.T. executed his will leaving Robert’s promissory note to the appellees, W.T.’s daughters. Prior to and during this time, W.T., Robert, and J.B., another son, farmed the entire acreage.

On December 22, 1990, W.T. died and his 1982 will was admitted to probate. On March 13, 1991, the appellees foreclosed on the 110 acres, alleging Robert had not made any of the annual payments. Robert and the other appellants pled the affirmative defenses of payment, accord and satisfaction, waiver, estoppel, and the statute of limitations.

At trial, Robert claimed that he had agreed to give W.T. the annual income from his two tracts, (the forty and 110 acres), in satisfaction for the annual payment on his promissory note, and that this method of payment continued until W.T.’s death. While Robert admitted he made no direct payments to W.T. and could not produce canceled checks or receipts, he produced records of grain receipts and government payments made on the farm in an effort to determine the total income produced during the years in dispute. From this evidence, Robert requested he be given credit for that portion of the income and government payments that could be attributed to his acreage. Further, he argued that any payments due over five years prior to the suit were barred by the statute of limitations. On counterclaim, Robert asked the court to give him credit on the note for the rental value of the land, contending that W.T. was a “mortgagee in possession” whose estate had the burden of accounting for rents received.

The chancellor dismissed the counterclaim and held that Robert had the burden of proof which he failed to satisfy. However, the court found an agreement between Robert and W.T. existed which was sufficient to toll the statute of limitations, but any attempt at reducing the agreement to a dollar value would require speculation by the court. Following trial, the property was sold at foreclosure sale and was purchased by the appellees for $70,000, with a deficiency judgment awarded against Robert and Vanetta Karnes. This appeal followed the order of foreclosure and deficiency judgment.

First, the appellants claim that the chancellor erred by ignoring the plain language of the mortgage held by W.T. The mortgage in part provides as follows:

In case of nonpayment or failure to perform the agreements herein contained, the said GRANTEE, GRANTEE’S, • heirs and assigns shall have the right and power to take possession of the property herein conveyed and expel any occupant therefrom without process of law; to collect rents and profits and apply same on unpaid indebtedness^]

Appellants argue that this language obligated W.T. as mortgagee in possession to apply rents and profits from the 110 acres to Robert’s debt. In support, they cite a number of Arkansas cases wherein this court applied the general rule that a mortgagee in possession of mortgaged land is liable for all rents and profits collected or rents that could be collected by ordinary diligence. Additionally, the mortgagee in possession must apply those amounts for which he is liable to the debt on the mortgage. Denham v. Lack, 200 Ark. 455, 139 S.W.2d 243 (1940); Robertson v. Read, 52 Ark. 381 (1889). Thus, the appellants claim since W.T. was a mortgagee in possession and was liable for application of the rents and profits to Robert’s debt, the chancellor erred when he found the burden of proof was on the appellants. See 55 Am. Jur.2d Mortgages § 224 (1971).

The threshold question is whether W.T. was a mortgagee in possession. If W.T. was a mortgagee in possession, appellees had the burden to account for the rents and profits received from the mortgaged land. If W.T. was not a mortgagee in possession, the appellants bore the burden to prove payments were made.

Black’s Law Dictionary 912 (5th ed. 1979) defines mortgagee in possession as follows:

A mortgagee of real property who is in possession of it with the agreement or assent of the mortgagor, express or implied, and in recognition of his mortgage and because of it, and under such circumstances as to make the satisfaction of his lien an equitable prerequisite to his being dispossessed.

See also 55 Am. Jur. 2d Mortgages § 193. Accordingly, in order for W.T. to have been found a mortgagee in possession and thus liable for the rents and profits, he must have possessed the mortgaged land (1) because of his status as mortgagee, (2) with the express or implied consent of the mortgagor, and (3) to the exclusion of the mortgagor. See also Armistead v. Bishop, 110 Ark. 172 (1913). Here, W.T. owned more acreage than the 110 acres under the mortgage, and the appellants failed to prove that W.T. had possession as mortgagee of the mortgaged acres to the exclusion of Robert.

In fact the evidence showed that Robert had actual or constructive possession of the mortgaged land during part of the time at issue. In 1982, W.T., J.B., and Robert, as partners, farmed the entire farm with each receiving one-third of the gross. By his own admission, Robert testified that he farmed the mortgaged land in 1984, 1985, and 1986, and that in 1987, he harvested the same land.- In 1988, J.B. Karnes, Betty Karnes, and Archie Stephens (a tenant) farmed the Karnes lands, except for a few acres which W.T. farmed. In 1989 and 1990, J.B. and Betty Karnes and Lynn Murphy, as tenants, farmed the Karnes lands. In 1991, J.B. farmed the Karnes lands.

The appellants point to the government payments made to W.T. as operator of ASC and argue that this is evidence that W.T. was a mortgagee in possession. However, this evidence alone does not prove that W.T. was a mortgagee in possession. As follows, this court has held:

It is, however, essential, before there is an accountability as mortgagee in possession, that the possession must be taken under and by reason of the mortgage, or under such circumstances as would justify a court in treating the possession as being under the mortgage.

Armistead v, Bishop, 110 Ark. 172, 174 (1913) (cite omitted). In accord Pine Bluff Production Credit Assoc. v. Lloyd, 252 Ark. 682, 480 S.W.2d 578 (1972) (no evidence that the mortgagee was ever in possession). Since the appellants failed to prove W.T. was a mortgagee in possession, the burden of proof remained on the appellants to show payments were made on the note.

Second, the, appellants claim that an agreement between Robert and W.T. had modified the promissory note so that W.T. was to apply Robert’s share of the annual crop rental in satisfaction for the annual.payment on the note. The chancellor determined that some agreement was reached, but that he was unable to determine exactly what that agreement was and that any application of a dollar amount or assignment of any rental value to the' agreement would be speculative at best.

The chancellor took particular note of the fact that in 1988, Robert stated under oath in answer to interrogatories that he owed his father $82;500, which was the same amount Robert owed W.T. in 1982. Further, the chancellor found that, during the years in question, the tax records of both Robert and W.T. failed to provide evidence that payments had been made and interest income had been earned.

Payment is an affirmative defense and the burden of proof is on the party asserting it. Miles v. Teague, 246 Ark. 1288, 441 S.W.2d 799 (1969); Pulpwood Suppliers, Inc. v. First National Bank in Stuttgart, 21 Ark. App. 147, 729 S.W.2d 425 (1987). Further, it is for the chancellor to judge the credibility of the witnesses and the appellate court will not reverse a chancellor’s finding of fact unless clearly against a preponderance of the evidence. Dudley v. Little River County, 305 Ark. 102, 805 S.W.2d 645 (1991); Riddick v. Street, 313 Ark. 706, 858 S.W.2d 62 (1993). A review of the record indicates that the chancellor was not clearly erroneous in finding that the appellants failed to prove that payment was made by Robert either under the original promissory note or under some other agreement.

Turning to appellants’ next argument, they cite Ark. Code Ann. § 18-49-101(a) (1987) which provides that suits to foreclose mortgages may be barred if they have not been brought within the period of limitation for a suit on the debt. Section 16-56-111(a) (Supp. 1993) further provides that actions on promissory notes not under seal “shall be commenced within five years after the cause of action shall accrue, and not thereafter.” That statute also provides that partial payment shall toll the limitations period. In accord Billingsley v. Pruitt, 226 Ark. 577, 291 S.W.2d 498 (1956). When the debt is payable in installments, the statute of limitations runs against each installment from the time it becomes due. Bank of New York v. University Partners, Ltd., 719 F. Supp. 1479 (W.D. Ark. 1989) [citing Linke v. Kirk, 204 Ark. 393, 162 S.W.2d 39 (1942)].

Here, the appellants point out that Robert’s promissory note was signed on March 15, 1982, with the first payment due on March 15, 1983, and the foreclosure suit was not filed until March 13, 1991. Thus, under the five-year statute of limitations, appellants assert that the appellees are barred by law from recovering those payments that became due prior to March 13, 1986. This being true, appellants argue the payments due in the years 1983, 1984, and 1985, for a total amount of $21,578.19, are barred. We agree.

In holding the statute of limitations did not bar any of the payments due under Robert’s note, the chancellor found that “some type of an agreement was reached between W.T. and Robert and that agreement was sufficient to toll the statute.” In the same context, the chancellor also said that to reduce the agreement to a dollar amount would be engaging in sheer speculation, and significantly we think, he failed to mention any evidence on which he relied to find an agreement existed between W.T. and Robert. In fact, the judge, as discussed above, very clearly determined that no payments were given W.T. by Robert or the other appellants. The judge was clearly wrong in concluding the statute of limitations was tolled in those circumstances. Therefore, we reverse and remand on this point.

Finally, the appellants claim the promissory note between W.T. and Robert does not control the debt owned on the 110 acres, but instead W.T.’s will controls. Under this argument, the appellants aver a final disposition must be made under the terms of the will, according to the intent of the testator, and that it is clear from the terms of the will that W.T. intended for the appellees to take less than the face amount of the note.

Article VI of the will provides as follows:

To my daughters Wanda Janice Karnes Marrow, Laura Nell Karnes Morris, Floy Ellen Karnes Hess and Margaret Sue Karnes Slocum, I give and devise in equal shares a certain Promissory Note .secured by a mortgage and from Robert David Karnes to myself in the original principal amount of $82,500 and payable in twenty (20) equal annual installments including interest at the rate of 6% per annum.

It is clear from this language that W.T. bequeathed the note to his daughters without limitation. Thus, the daughters received all rights and obligations under the note that were held by the testator. In addition, the daughters can receive no more than what W.T. would be entitled to receive if alive.

In conclusion, because the appellants did not satisfy their burden of proof by presenting evidence that payments were made in satisfaction of the promissory note or a modifying agreement, the appellees as legatees of the note had a right to foreclosure. However, since no payments or partial payments were found to toll the statute of limitations, the payments due in the years 1983, 1984, and 1985 are barred and the judgment amount must be reduced accordingly.

Affirmed in part, reversed and remanded in part.

Newbern, J.,

not participating. Brown, J., concurring in part; dissenting in part.

Robert L. Brown, Justice.

I would affirm the chancellor’s decision across the board.

The majority second guesses the chancellor’s finding óf fact that a separate agreement to apply farm income to note payments was entered into between W.T. Karnes and his son, appellant Robert Karnes, and that payments were made under that agreement. According to the chancellor, the separate agreement and the rent payments tolled the statute of limitations for the years 1983, 1984, and 1985. The specific language in his letter opinion is this:

Although the decedent’s tax returns indicate he received gross rents, it must be remembered that he owned other lands on which rents were received. If the Court were to attempt to account for the rents and profits, it would be engaging in speculation and that is something this Court cannot do. The Defendants have the burden of proof on this issue and the documentary proof does not satisfy that burden.

STATUTE OF LIMITATIONS:

As stated, the Court is unable to resolve the issue of the amount of the rents and profits. It finds, however, that there is proof that some payments were made and that this action is not barred by limitation.
The counterclaim is dismissed.
This case has been presented as well as it could have been presented. What the Court is trying to say is that some type of an agreement was reached between the decedent and his son Robert Karnes. Whatever that agreement was, it was sufficient to toll the statute of limitations. If the Court were to try to reduce the agreement to a dollar amount or assign an obligation to account on a fair rental value, it would be engaging in sheer speculation.

The chancellor found that there was a second agreement between father and son relating to the application of farm income to the debt. He found that payments were actually made pursuant to that agreement. However, the amount of those payments, he concluded, was impossible to quantify, and the appellants did not satisfy their burden of proof in this regard. Nevertheless, the fact of the agreement and the payments of an undetermined amount tolled the statute of limitations in his judgment.

The chancellor’s findings appear entirely reasonable to me. We should be reluctant in this case to substitute our factual findings for those of the chancellor who had the benefit of hearing the testimony and argument on a difficult issue. I would not reverse on this point.

       The appellees did not argue the Statute of Frauds for any modification or novation of the promissory note.


source: Caselaw Access Project

author: Tom Glaze, Justice. Robert H. Dudley, Justice.

license: Public Domain

text:
    Raymond Dale LYNCH v. STATE of Arkansas
    CR 93-293
    863 S.W.2d 834
    Supreme Court of Arkansas
    Opinion delivered November 8, 1993
    [Rehearing denied December 13, 1993.]

      Kenneth G. Fuchs, for appellant.

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

On June 25, 1991, appellant was arrested for burglary and charged with the crime the next day. He was convicted by jury for breaking or entering on August 20, 1992, and sentenced to fifteen years under the Habitual Offender Statute. On appeal, appellant argues three points for reversal.

First, appellant urges that Faulkner County Circuit Judge David Reynolds had no authority to preside over five pretrial hearings or appellant’s trial. The events appellant mentions in support of his argument begin with Faulkner County Circuit/Chancery Judge Watson Villines’ initial pretrial hearing on December 6, 1991. At that hearing, Judge Villines removed appellant’s appointed counsel because of appellant’s dissatisfaction with her. The judge then appointed new counsel, Kenneth Fuchs, who represented appellant throughout the proceedings below and represents him now on appeal.

Judge Villines held a second pretrial hearing on March 2, 1992, but on May 1, 1992, he signed an order transferring the case to Faulkner County Chancery Judge Andre McNeil, apparently because Villines had previously, as an attorney, represented the appellant in an earlier criminal matter. Subsequently, Circuit Judge Reynolds’ case coordinator was doing her customary computer review of pending criminal cases and without Reynolds’ knowledge, or an order, the coordinator transferred appellant’s case to Reynolds’ docket. Judge Reynolds held three pretrial hearings, and later, when appellant filed a speedy trial motion to dismiss on the day set for trial, August 14, 1992, Reynolds held another pretrial hearing. In considering appellant’s speedy trial motion, Reynolds discovered that the appellant’s case had appeared on both Villines’ and McNeil’s docket, and Reynolds stated he needed to learn what had occurred in those two courts before he could rule on appellant’s motion. He then continued appellant’s trial until August 20, 1992.

Two days before trial, Judge Villines, with Judge Reynolds present, conducted a hearing to explain for the record the administrative court history of appellant’s case, and how it became Judge Reynolds’. Appellant’s attorney, Fuchs, expressed surprise over Judge Villines presiding over the hearing, and stated he thought Reynolds would be presiding. Fuchs objected to Villines hearing the matter, stating Villines had no jurisdiction to do so and that appellant would be prejudiced because Judge Reynolds had become familiar with the case and was more knowledgeable of the motions and matters covered at earlier pretrial hearings. Judge Villines recessed the August 18th hearing to the next day so Fuchs could offer further argument, but on August 19th, Judge Reynolds presided and announced Villines had set aside his May 1, 1992 order transferring appellant’s case to Chancery Judge McNeil’s division so the dockets would correctly reflect appellant’s case to be in Reynolds’ division. Villines’ order signed, dated, and entered on August 19, 1992, set out his findings.

Appellant relies on Ark. Code Ann. § 16-13-403(a) (Supp. 1993), which in relevant part provides that circuit judges and chancellors may by agreement temporarily exchange districts-circuits, and may hold court for each other for such length of time as may be practicable. Provision 403(a)(2) further provides the agreements shall be signed by the judges so agreeing and entered on the record. Appellant argues that, when Judge Villines transferred appellant’s case to Chancery Judge McNeil’s division and McNeil had signed the order, only McNeil had jurisdiction to transfer the cause to Reynolds’ division. We disagree.

This court had previously ruled that there was no statutory authorization for the exchange of divisions among circuit and chancery judges within a judicial district. Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992). Section 16-13-403, as amended, now authorizes such exchange of circuits between circuit judges and chancellors within the same districts-circuits. While § 16-13-403(a)(2) provides that the judges agreeing to the exchange shall sign such an agreement, the judges affixing their signatures to the agreement is not a jurisdictional act necessary to effect the exchange. It is the enactment of § 16-13-403 and the judges’ agreement thereunder that empowers the judge-on-exchange to assume authority to hear or try a case. As a circuit judge, Reynolds indisputably had power to hear appellant’s criminal case. Ark. Const, art. 7, § 11; § 16-13-403(b)(l) (Supp. 1993), and Lee, 308 Ark. 114, 823 S.W.2d 837.

Appellant is certainly correct in contending § 16-13-403(a)(2) mandates that the judges, agreeing to exchange a case, sign the agreement and enter it on the record. Nonetheless, such a non-jurisdictional error may be waived. See Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988). In Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984), Boone contended on appeal that reversible error had occurred when the trial court had not made him aware of the trial court’s order changing venue so Boone’s trial would take place in Clay County rather than Craighead County. At the beginning of trial, the trial court asked the parties if they were ready for trial and Boone’s counsel replied, “We are not aware this case had been transferred so we don’t consent, but we are here.” The court held counsel’s statement did not constitute an objection. It further ruled that an objection to be effective must be made at the first opportunity and must apprise the trial court of the specific ground upon which it is based. The court con-eluded Boone had failed to state the basis for his objection and failed to obtain a ruling from the trial court.'

Here, appellant became aware as early as August 3, 1992, that Judge Reynolds would be presiding in this case, and accordingly, Reynolds conducted extensive pretrial hearings in advance of the scheduled trial date which was August 20, 1992. Reynolds held other pretrial hearings on August 12th, 14th, 19th and on the day of trial. As previously mentioned, Reynolds also attended the pretrial hearing on August 18 when appellant’s main focus was that he objected to Judge Villines presiding over any matters pertaining to appellant’s case. Appellant did say at the August 18th hearing that his case “was Judge McNeil’s case” and “no order had been signed returning the case to Villines or transferring it to Reynolds.” Nonetheless, appellant never objected to Reynolds’ presiding over any of the pretrial hearings or appellant’s trial. To the contrary, appellant’s counsel stated over and over again that Judge Reynolds had heard the pretrial hearings, and he was the judge most knowledgeable and familiar with the case. Clearly, Judge Villines had had limited contact with appellant’s case and was indisputably unwanted as a presiding judge by the appellant. In addition, Judge McNeil’s only contact with appellant’s case was the May 1, 1992 order transferring the matter to McNeil.

In sum, appellant waited until two days prior to trial to raise his objection that § 16-13-403(a)(2) had not been complied with, and he only raised the issue then after Judge Reynolds suggested he needed records concerning what action, if any, Villines and McNeil might have previously taken in the case so Reynolds could rule on appellant’s speedy trial motion. In Phillips v. State, 266 Ark. 883, 587 S.W.2d 83 (Ark. App. 1979), our court of appeals properly stated the rule that no party ought to be allowed to assign as error on appeal a ruling by the trial court that might have been corrected in the first instance by timely objection or inquiry. That court further explained that the rule encourages counsel to call the possibility of prejudicial error to the court’s attention so that it can be corrected or, if not, so that a clear opportunity for correction be given. Id.

In the present case, appellant simply failed to offer a timely objection or show any prejudice resulting from Judge Reynolds’ having presided in this case. In fact, if Chancery Judge McNeil had been required to preside after appellant made known his belated objection on August 18th, both the appellant and the state would have been disadvantaged and prejudiced by having a judge who had no prior knowledge of the case. Accordingly, we reject appellant’s argument that Judge Reynolds had no authority to preside in this case.

Appellant’s second argument is that his conviction should be reversed and dismissed because he was denied a speedy trial. Rules 28.1(c) and 28.2(a) require the state to bring the defendant to trial within one year from the date a charge is filed in circuit court, unless the defendant has been arrested and is in custody, out on bond, or has been lawfully set at liberty, in which case time runs from date of arrest. Here time commenced when appellant was arrested on June 25, 1991; he was tried on August 20, 1992, so his speedy trial time was exceeded by fifty-six days. In these circumstances, the state has the burden to show good cause for untimely delay. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987).

First, we mention that the trial court initially set appellant’s original trial date for November 11, 1992, which was well within the twelve-month speedy trial period. Appellant, however, filed a pro se motion on October 17, 1991 to remove his court-appointed counsel, and on October 30, 1991, he asked for a hearing on his motion. Appellant’s motions caused the November 11 trial to be continued, and the court granted appellant’s request for removal of counsel at a pretrial hearing on December 6, 1991. At the same hearing, the court appointed new counsel for appellant. This court has held that, when the defendant is scheduled for trial within the time for speedy trial and the trial is postponed because of the defendant, that is good cause to exclude the time attributable to the delay. Lewis v. State, 307 Ark. 260, 819 S.W.2d 689 (1991). Here, appellant’s pretrial motion caused postponement of his trial, and at the least, the twenty-four day period between November 11 and December 6, 1991 was excludable.

Next, we refer to the trial court’s pretrial proceeding on March 2, 1992, which apparently was set for the purpose of taking appellant’s plea. No plea was forthcoming, and at the hearing’s end, the trial court directed that the time between the appellant’s last court appearance, December 6, 1991, and his new trial date, August 14, 1992, should be charged against appellant for speedy trial purposes. Appellant offered no objection, and we believe the state is correct in excluding this more than seven-month period as well. Obviously, if the foregoing periods are excludable and chargeable to appellant, as we now hold, the August 20, 1992 trial date falls well within the speedy-trial period of one year.

We also recognize appellant’s argument that Rule 28.3(i) of the speedy trial rule requires that all excludable periods shall be set forth by the trial court in a written order or docket entry. However, this court has upheld excludable periods without a written order or docket entry when the record itself demonstrates the delays were attributable to the accused and where the reasons were memorialized in the proceedings at the time of the occurrence. Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1990); Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991). Here, both excludable periods were properly memorialized.

Appellant’s final point concerns his contention that reversal is required because the state caused members of the jury panel to view appellant when he was in a bright orange jail uniform, handcuffs, and a security belt. Appellant’s encounter with the panel occurred at the pretrial hearing on August 19, 1992, which was scheduled for 8:00 a.m. so as to avoid the jury members who were due at 9:00 a.m. Actually, appellant’s counsel was late in arriving for the hearing and this delay aided in appellant still being present in the courthouse when the jurors began arriving. More important, while appellant argues that some of the jurors admitted knowing him, he offered no proof from the jury that any of them ever saw him in restraints. Appellant’s counsel asked several questions of the jurors including whether they could judge appellant impartially, to which all jurors nodded their heads affirmatively.

This court has held that it is not prejudicial per se when a defendant is brought into a courtroom handcuffed or even legcuffed. Townsend v. State, 308 Ark. 267, 824 S.W.2d 821 (1992). And where there is evidence of only a brief, inadvertent sighting by only some of the jurors, no prejudice occurs. Id. Here, Lynch failed to present sufficient evidence that any one of those who were in the courtroom on August 19 actually served on his jury on August 20. His only evidence was his own testimony that he recognized some of the jurors.

For the reasons discussed, we affirm.

Dudley and Brown, J.J., concur.

Robert H. Dudley, Justice.

I concur in the result reached, but do so for a reason different than that expressed in the majority opinion. Appellant was charged with a felony in the Circuit Court of Faulkner County. The act creating the Twentieth Judicial District, of which Faulkner is a part, does not designate divisions for the Circuit Court of Faulkner County. See Ark. Code Ann. § 16-13-2803 (Supp. 1993). There is only one Circuit Court of Faulkner County, regardless of the number of circuit judges in Faulkner County. Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10 (1979). All circuit judges of the Circuit Court of Faulkner County have equal power, authority, and responsibility. See Ark. Code Ann. § 16-13-210 (1987); Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980). Circuit Judge David Reynolds was a duly elected, qualified, and acting judge of the Circuit Court of Faulkner County at the time appellant was tried and convicted. Judge Reynolds had the power, authority, and responsibility to preside over this trial.

Two days before the trial commenced appellant objected to Judge Reynolds presiding. The majority opinion holds that the objection was untimely. There is no authority that provides an objection to the power of a judge to preside must be made more than two days before the trial commences. It is possible, but need not be determined, that such an objection could timely be made at the time of allocution. See Ark. Code Ann. § 16-90-106 (1987). Thus, the objection was timely, and the ruling by Judge Reynolds that he had the power to preside should be affirmed solely on its merits.

Brown, J., joins in this concurrence.

       Section 16-13-403 was amended by Act 51 of 1992 (1st Ex. Sess.) after the Lee case was decided.

       We note the appellant disagrees on whether the trial court made these remarks at the March 2, 1992 hearing. However, at the August 19, 1992 pretrial hearing, this subject arose and the trial court stated it had advised both appellant and counsel that this time would be charged to appellant and counsel responded, saying, “Your Honor, you know, I took it that you were talking to your case coordinator.” From this colloquy, appellant obviously was present when the trial court’s remarks were made, and the record supports the trial court’s finding on this point.

       Appellant also makes reference, under this speedy-trial argument, to the fact that, for a period, he was without counsel of his choice (his first court-appointed attorney), so certain delays should not be charged against him. Of course, the right to counsel of one’s choosing is not absolute. Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (1991).


author: Tom Glaze, Justice.

text:
    Larry REED v. Paul HAMILTON
    93-397
    864 S.W.2d 845
    Supreme Court of Arkansas
    Opinion delivered November 8, 1993

      Hale, Fogleman & Rogers, by: Joe M. Rogers, for appellant.

      Gerald A. Coleman, for appellee.
   Tom Glaze, Justice.

Larry Reed filed this action for conversion against Paul Hamilton and Del Perry Ford, an automobile dealership in West Memphis. After Del Perry was dismissed with prejudice from the lawsuit, Hamilton was tried by a jury which returned a verdict in Reed’s behalf, finding Hamilton was 100% responsible for Reed’s damages in the amount of $2,100. The trial court set Reed’s verdict aside and Reed brings this appeal, claiming the trial court erred in doing so.

On June 25, 1990, Patsy Reed, Larry Reed’s wife, contacted Paul Hamilton, a fleet manager and new car manager of Del Perry Ford. Mrs. Reed requested that Hamilton deliver two trucks, a 1988 and 1989 model, to the Reed family farm in Earle, so that her husband and two sons could look them over. She told Hamilton that Larry was considering buying either one or both of the trucks, but that he might not buy either. Larry Reed had previously purchased at least four vehicles from Hamilton.

On June 26, 1990, Hamilton delivered both trucks to the Reed farm where he spoke with Larry Reed. Reed delivered to Hamilton a $21,200 check payable to Del Perry, and instructed Hamilton to hold the check until Reed made a final decision as to whether he would purchase either of the vehicles. Hamilton indicated that he understood that Larry Reed hád not committed himself to purchasing either truck and assured Reed that he would hold the check until he received further notification.

On June 27, 1990, Reed notified Hamilton that he was only interested in purchasing the 1989 model truck and that he would return the 1988 model. Hamilton agreed to continue to hold the $21,200 check until Reed returned the 1988 truck and delivered a new check for the 1989 truck. Five days later, one of Reed’s employees returned the 1988 truck to the Del Perry lot, but due to a misunderstanding between the parties, there was a failure either to deliver the new check or to pick up the $21,200 check. Reed testified that he had believed his son had met with Hamilton and made the exchange, but learned later that such exchange had not occurred when Reed’s bank notified him that his account was overdrawn. At this time, Reed also learned that his $21,200 check had been cashed on July 2 or July 3.

After discovering that his check had been cashed, Reed contacted Del Perry and was informed that ownership of Del Perry had been transferred to Ford Motor Company on May 30, 1990. Apparently, Hamilton had left the dealership in August of 1990. Del Perry informed Reed that both trucks had been titled to him on June 26, 1990, the date Reed delivered the $21,200 check to Hamilton, and that Del Perry would not honor the earlier agreement Reed had entered into with Hamilton. The title to the 1988 truck was eventually discovered in Hamilton’s desk, and when Reed realized Del Perry would not honor his agreement with Hamilton, Reed sold the 1988 truck back to Del Perry at a $2,100 loss.

At this stage, Reed filed an action for conversion, seeking both compensatory and punitive damages against Hamilton and Del Perry, jointly and severally. Prior to trial, the court entered an order of dismissal as to Del Perry upon its finding that Reed’s claim against Del Perry had been settled. At trial, the jury awarded Reed $2,100 compensatory damages against Hamilton and apportioned the responsibility for Reed’s loss between Hamilton and Del Perry — 100% for Hamilton arid 0% for Del Perry. After-wards, the trial court found that, as a matter of law, Hamilton was not guilty of conversion and set aside the jury’s verdict. The court then dismissed Reed’s complaint with prejudice.

The standard by which we review the granting of a judgment n.o.v. is stated in Lancaster v. Schilling Motors, Inc., 299 Ark. 365, 367-368, 772 S.W.2d 349, 350 (1989), wherein this court stated as follows:

In reviewing the granting of a judgment n.o.v., we affirm only if we find there is no substantial evidence to support the jury verdict. We review the evidence and any reasonable inferences deducible therefrom in the light most favorable to the party against whom the judgment n.o.v. was entered.

In Lancaster, we also noted there that we changed our previous standard of recognizing a broad discretion in the trial court’s setting a jury verdict aside to a more stringent standard favoring the jury’s decision. See Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982).

In reviewing the case at hand, we first look to the proof requisite to establishing liability for the tort of conversion and note such proof requires a showing that the defendant wrongfully committed a distinct act of dominion over the owner’s property which is a denial of or is inconsistent with the owners’ rights. Elliot v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); McKenzie v. Tom Gibson Ford, Inc., 295 Ark. 326, 749 S.W.2d 653 (1988). If the defendant exercises control over the goods in exclusion or defiance of the owner’s rights, it is a conversion, whether it is for defendant’s own use or another’s use. Id. See also, Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991).

In viewing the facts in the light most favorable to Reed, we conclude that Hamilton had agreed to hold Reed’s check until Reed decided whether he wanted either of the trucks. Reed never agreed to purchase the 1988 truck, but instead returned it. Significantly, Hamilton agreed to exchange the $21,200 check that had been deposited with him for an $11,100 check when Reed informed Hamilton that Reed would purchase only one of the trucks. Contrary to the agreement, Hamilton delivered the $21,200 to the Del Perry business manager, and at that time, the titles to both vehicles were transferred to Reed.

In McKenzie, 295 Ark. 326, 749 S.W.2d 653, we held that Tom Gibson Ford, Inc. had no right to deliver a check to Ford Motor Credit Company which McKenzie had previously deposited with Tom Gibson Ford because that delivery was in direct violation of McKenzie’s agreement with Tom Gibson Ford. A salesman at Tom Gibson had assured Ms. McKenzie that her check would be returned to her when she decided against purchasing a vehicle from Tom Gibson Ford. In the present case, Hamilton similarly transferred Reed’s check to Del Perry in direct violation of his agreement with Reed. As pointed out above, we noted in McKenzie that an act of conversion may occur even when the alleged converter derives no personal benefit from the transfer. Therefore, it is immaterial whether Hamilton benefitted from the conversion in this case. Based upon our holding in McKenzie, Hamilton converted the check when he delivered it to the business manager, even if he did not participate in cashing the check; the conversion occurred before the check was ever cashed.

At trial, Hamilton testified, saying, “I knew that I was supposed to hold the check until such time as I was told that they were agreeable to buying one or more or maybe none of the trucks.” He also agreed with Reed that Reed had previously bought trucks from Hamilton personally, rather than purchasing them through the Del Perry Ford entity.

In light of the foregoing circumstances, whether the parties intended that Hamilton agreed to be personally charged with holding the check or whether he agreed to hold the check only as an agent of the Del Perry Ford corporation was a material issue of fact. The evidence presented was sufficient to support the jury’s verdict that Hamilton agreed personally to hold the check and that he transferred the check to Del Perry in direct violation of this agreement.

For the foregoing reasons the trial court’s decision to set aside the jury verdict is reversed with direction to reinstate the verdict.


author: Donald L. Corbin, Justice.

text:
    Bishop Henry Allen BELIN, Jr., Reverend Rickey H. Hicks, Reverend Rufus R. Young, Reverend B.C. Altheimer, and Reverend Michael Washington v. Reverend G. Edward WEST
    93-230
    864 S.W.2d 838
    Supreme Court of Arkansas
    Opinion delivered November 8, 1993

      Mays & Crutcher, P.A., by: Richard L. Mays, for appellants.

      DeLay Law Firm, by: R. Gunner DeLay, for appellee.
   Donald L. Corbin, Justice.

Appellee, Reverend G. Edward West, filed suit against appellants, Bishop Henry Allen Belin, Jr., Reverend Rickey H. Hicks, Reverend Rufus R. Young, Reverend Michael Washington, and Reverend B.C. Altheimer in the Sebastian County Circuit Court alleging claims of promissory estoppel as to Bishop Belin, defamation as to Reverends Hicks and Young, and tortious interference with business expectancy as to all the reverends. This lawsuit began when appellee was not given a pastoral appointment at the Annual Conference of the African Methodist Episcopal Church (A.M.E. Church) in 1990.

Appellee originally filed suit against Bishop Belin on a promissory estoppel claim, alleging that Bishop Belin promised to appoint him as pastor of Bethel Church in Little Rock, Arkansas. Appellee further alleged that he undertook certain financial obligations in reliance on this promise. In his amended complaint, appellee added Reverends Hicks, Young, Washington, and Altheimer as defendants adding claims of tortious interference with business expectancy as to all four reverends, defamation as to Reverends Hicks and Young, and intentional infliction of emotional distress as to the bishop and all four reverends. Appellee alleged that when Reverends Hicks, Young, Washington, and Altheimer became aware appellee was going to be appointed as pastor to Bethel Church, they contacted Bishop Belin and persuaded him not to follow through on his promise, such action constituting an intentional and deliberate attempt to interfere with appellee’s business expectancy. The claim of intentional infliction of emotional distress was dismissed at the close of appellee’s case when appellee stated he did not intend to pursue it. Also at the close of appellee’s case, the trial judge granted a motion for directed verdict on the defamation claim against Reverend Young.

In response to appellee’s amended complaint, the reverends, but not Bishop Belin, filed a motion to dismiss for lack of venue alleging they were each residents of Pulaski County and there was no basis for jurisdiction over them in Sebastian County. The trial court denied the motion as to the four reverends, holding that the claims against them were “personal injury” claims and could be brought in the county in which the injury occurred. Appellee then filed a second amended complaint restating the same claims included in his amended complaint. Thereafter, appellants filed a motion to dismiss on several bases. One basis for the motion to dismiss was that the court lacked jurisdiction to hear the claims because they would require the court to interpret A.M.E. Church doctrine in violation of the First Amendment. Ultimately, appellee filed a third amended complaint realleging the claims contained in his amended complaint and his second amended complaint. After the trial court denied the motion to dismiss, the case was tried to a jury.

The jury returned the following verdicts in appellee’s favor: $15,000.00 on the claim of defamation against Reverend Hicks; $30,000.00 on the claim of promissory estoppel against Bishop Belin; $30,000.00 on the claim of intentional interference with business expectancy against the four reverends. The trial court entered judgment pursuant to the jury’s verdicts. Appellants appeal from that judgment. We reverse and dismiss.

VENUE

Citing Ark. Code Ann. § 16-60-116 (1987), appellants contend venue was improper in Sebastian County. In response, appellee cites Ark. Code Ann. § 16-60-112(a) (1987) and contends proper venue was in Sebastian County. Since a motion to dismiss for improper venue was advanced and ruled upon only as to the claims against Reverends Hicks, Young, Washington, and Altheimer, we address this argument only as it applies to these four appellants.

We look to the record as it appeared when the trial court considered the motion. The trial court made its ruling based upon the allegations in the amended complaint, wherein appellee alleged all five appellants were residents of Pulaski County. The trial court stated the claims advanced were “personal injury” claims and therefore determined jurisdiction was proper in any county in which injury occurred.

Appellee contends that even if the trial court erred in ruling his claims were “personal injury” claims, venue was still proper in Sebastian County because, in response to the four reverends’ motion to dismiss for improper venue, he introduced evidence that Bishop Belin was a resident of Tennessee. Appellee argues that since venue would have been proper as to the claim against Bishop Belin in Sebastian County, venue was also proper as to the claims against the reverends as residents of Pulaski County. Even assuming venue was proper in Sebastian County as to Bishop Belin because he was a nonresident, we have held that a plaintiff cannot establish venue against resident defendants in a county where venue would not be proper based on the fact venue can be had in that county as to a nonresident defendant. Tucker Enterprises, Inc. v. Hartje, 278 Ark. 320, 650 S.W.2d 559 (1983). Therefore, we must consider whether venue was proper in Sebastian County as to the reverends based on the specific claims asserted against them.

We first address the tortious interference claims. There are four elements of a tortious interference claim: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. United Bilt Homes, Inc. v. Sampson, 310 Ark. 47, 832 S.W.2d 502 (1992). This court has consistently held that some type of physical injury must exist to establish venue under section 16-60-112. See e.g. Tilmon v. Perkins, 292 Ark. 553, 731 S.W.2d 212 (1987). Thus, tortious interference with a business interest is not a personal injury claim under section 16-60-112(a).

In the instant case, venue is proper in the county where one of the defendants resides or is summoned. Ark. Code Ann. § 16-60-116 (1987). Since none of the four reverends resides or was summoned in Sebastian County, venue is improper in Sebastian County for the tortious interference claim. The trial court therefore erred in denying the motion to dismiss for improper venue. Accordingly, the claim for tortious interference is dismissed.

We next address the venue argument in regards to the defamation claim. Appellee argues venue is proper in Sebastian County pursuant to section 16-60-112. We have held a defamation suit is not one for personal injury and thus venue cannot be established pursuant to section 16-60-112. See e.g. Tilmon, 292 Ark. 553, 731 S.W.2d 212 (citing Robinson v. Missouri Pac. Transp. Co., 218 Ark. 390, 236 S.W.2d 575 (1951)). In Tilmon, we affirmed our prior holdings that corporeal or physical injuries must exist before venue can be established under section 16-60-112 and Ark. Stat. Ann. § 27-610 (Repl. 1979). Appellee requests us to overrule this line of venue cases and we decline to do so.

Venue in a defamation suit is proper in a county where one of the defendants resides or is summoned. Ark. Code Ann. § 16-60-116. Thus, the trial court erred in denying the motion to dismiss for improper venue. The defamation claim against Reverend Hicks is dismissed.

JURISDICTION

The only argument remaining on appeal is whether the trial court erred in determining it had jurisdiction over the subject matter of the promissory estoppel claim against Bishop Belin. Both sides agree that if this matter involves a religious dispute the trial court did not have jurisdiction.

Appellee cites Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440 (1969), and says he is simply asking us to follow the principle set forth in Hull that it is not unconstitutional for civil courts to resolve legal disputes involving a church or minister so long as the court is not required to interpret church doctrine to render a decision. Appellee contends he is asking the civil courts to render a decision on the merits of the case without consulting A.M.E. Church doctrine or polity.

It is true that the United States Supreme Court has said that if a dispute involving a church can be resolved without addressing ecclesiastical questions, the First Amendment does not prohibit consideration by the civil courts. However, whenever a civil court must resort to the interpretation of church doctrine or polity, the Supreme Court has held that the civil court exercises its jurisdiction in violation of the First Amendment:

[T]he First . . . Amendment] permit[s] hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them.

Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-25 (1976).

This court followed Milivojevich in Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988), and further recognized that religious freedom includes the power of religious bodies to determine for themselves, free from state interference, matters of church government as well as those of faith and doctrine. In short, it is impermissible for the civil courts to substitute their own interpretation of the doctrine of a religious organization for the interpretation of the religious organization. Milivojevich, 426 U.S. at 721.

Appellee relied on the rules in the Book of Discipline in his complaint and at trial as establishing his reasonable reliance on Bishop Belin’s alleged promise of employment. The A.M.E. Church is a hierarchical religious organization and has its own judicial structure. The Book of Discipline contains the law, statutes, historical statements, and guidelines for behavior for all positions in the church. The Book of Discipline also contains rules regarding the settlement of disputes between church members, sets out the method for having these disputes decided, and provides for appeal to the Judicial Council which is the highest judicatory body of the A.M.E. Church.

The A.M.E. Church is divided into districts and subdistricts. Each district is presided over by a bishop and each subdistrict is presided over by a presiding elder. Each church within the district has a pastor. The A.M.E. Church has a General Conference which meets every four years to give bishops their appointments. Bishop is the highest office in the church. Each bishop is assigned to a district. There are also other members of General Conference such as deans and presidents of colleges and seminaries. The laity also sends delegates to the General Conference.

There is also an Annual Conference which is held every year there is not a General Conference. At Annual Conference, ministers are assigned to pastorships, presiding elders are appointed, reports are received, and problems with members of the Annual Conference, bishops, and ministers are addressed. The twelfth district is composed of Arkansas and Oklahoma. Bishop Belin was the bishop of the twelfth district at the time the events involved in this lawsuit occurred. According to the Book of Discipline the bishop appoints the presiding elders for each subdistrict and, in conjunction with the presiding elders, determines the appointments of pastors at the Annual Conference.

It is impossible to decide the promissory estoppel claim in the instant case without inquiring into A.M.E. Church doctrine and polity and drawing conclusions as to what those doctrines provide. In order to prove promissory estoppel, appellee must prove reasonable reliance on the alleged promise by Bishop Belin to appoint him to the pastorship of Bethel Church. This necessarily requires inquiry into A.M.E. Church doctrine and polity to determine whether it is reasonable to rely on the promise of an A.M.E. Church bishop that he is going to appoint one to a specific pastorship. This requires the court to determine whether church doctrine gives bishops authority to promise appointments. Such an inquiry into church doctrine and polity is impermissible under the First Amendment. Therefore, in accordance with Gipson, 295 Ark. 371, 749 S.W.2d 297, this claim is dismissed.

We are mindful of a similar case, Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (D.C. Cir. 1990), in which the D.C. Circuit Court said it would not be improper for the trial court to decide a contract claim based on the allegation that the church district superintendent made an oral promise to find appellant a more suitable congregation so long as no inquiry into ecclesiastical matters are required and only money damages are awarded. However, as we have just demonstrated, determination of the promissory estoppel claim in the instant case cannot be made without inquiry into ecclesiastical matters.

The judgment is reversed and dismissed.

Glaze, J., concurs.


author: ■ Donald L. Corbin, Justice.

text:
    STATE of Arkansas v. Jeffrey Desmond MURPHY
    CR 93-651
    864 S.W.2d 842
    Supreme Court of Arkansas
    Opinion delivered November 8, 1993

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      William R. Simpson, Jr., Public Defender, by: Llewellyn J. Marczuk, Deputy Public Defender.
   ■ Donald L. Corbin, Justice.

Appellant, the State of Arkansas, appeals a judgment of the Pulaski Circuit Court convicting appellee, Jeffrey Desmond Murphy, of first degree criminal mischief and sentencing him to a term of three years in the Arkansas Department of Correction. The state appeals pursuant to A.R.Cr.P. Rule 36.10(b)-(c). This case requires us to interpret Ark. Code Ann. § 5-4-501 (a)(4) (1987) and 1993 Ark. Acts 550, therefore our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(3). We find merit to the state’s argument and reverse and remand.

The state filed a felony information charging appellant as an habitual offender with first degree criminal mischief. The information alleged appellee fired a weapon at property owned by the North Little Rock Housing Authority. At the sentencing hearing, it was revealed that appellee fired shots into an apartment rented by the North Little Rock Police for use as a department substation.

Appellee pled guilty to the criminal mischief charge and admitted having two prior felony convictions for armed robbery and theft. Special Judge R.S. McCullough of the Pulaski Circuit Court, First Division, accepted the guilty plea as freely and voluntarily made and found appellee to be an habitual offender with two prior felony convictions. Sentencing was delayed.

At the sentencing hearing, Judge Marion A. Humphrey of the Pulaski Circuit Court, First Division, dismissed the habitual charges and sentenced appellee to three years, the minimum sentence for first degree criminal mischief, a Class C felony. Ark. Code Ann. §§ 5-38-203(c), 5-4-401(4) (1987 and Supp. 1991). The dismissal of the habitual status was taken on the court’s initiative, without any request by appellant or appellee. The trial court stated that the word “may” in the recidivist statute indicated that an enhanced sentence was at the court’s discretion. The state objected, arguing that because the court had previously ruled that appellee had two prior felony convictions, an enhanced sentence was mandatory. The state brings this appeal arguing that, under the facts presented, the trial court erred in determining an enhanced sentence was discretionary. Pursuant to Rule 36.10(c), the state contends that such an error was committed to the prejudice of the state and that the correct and uniform administration of the criminal law requires our review. We agree with the state’s contention.

Pursuant to Rule 36.10(c), we accept appeals by the state when our holding will set a precedent that is important to the correct and uniform administration of Arkansas criminal law. State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993). Thus, the first question presented is whether this is such a case. This determination brings up a sub-issue concerning the retroactive application of 1993 Ark. Acts 550. If we hold the trial court erred in ruling that enhanced sentencing was discretionary, we will remand for resentencing; and, if we hold Act 550 should apply to appellee retroactively, appellee could receive the same sentence he received this time. Thus, we would have accomplished nothing toward the uniform administration of the criminal law. See Townsend, 314 Ark. 427, 863 S.W.2d 288. Therefore, we must first determine whether to apply Act 550.

Section 7 of 1993 Ark. Acts 550 became effective on July 1, 1993, and amends the habitual offender statute such that the minimum sentences for habitual offenders are equal to the minimum sentences for non-habitual offenders. Section 7 of Act 550 does not state it is to be applied retroactively. Appellee committed the criminal mischief on June 28, 1992, and the order sentencing him was entered on March 30, 1993.

In stating the applicable general rule, we have consistently held since the enactment of our criminal code, that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime. See e.g., Townsend, 314 Ark. 427, 863 S.W.2d 288. We have also held that, in the absence of a provision stating that an act will apply retroactively, the act will apply prospectively only. Townsend, 314 Ark. 427, 863 S.W.2d 288 (citing Arkansas Fire and Police Pension Review Bd. v. Stephens, 309 Ark. 537, 832 S.W.2d 239 (1992)). In Townsend, we affirmed the general rule and stated it applies even when the General Assembly amends an act to reduce punishment after the commission of the crime but before sentencing. Thus, Section 7 of Act 550 would not apply to appellee on resentencing. Consequently, there could be other cases in the same posture as this one. The precedent we set today is therefore necessary to the correct and uniform administration of the criminal law.

The state’s argument on the merits is twofold and both points are valid. The state contends the sentence was erroneous because it violates the doctrine of separation of powers and because the law clearly states that minimum sentencing for habitual offenders is mandatory. Appellee responds by arguing that because the trial court dismissed the habitual charges, the court did not sentence appellee as an habitual and therefore the sentence imposed was not erroneous: Appellee’s response overlooks the doctrine of separation of powers.

Our state constitution reserves the duty of charging an accused to the prosecutor or to the grand jury. Ark. Const, amend. 21, § 1. This court has preserved the separation of powers between the executive branch and the judicial branch by holding that when the trial court amends an information over the state’s objection, the trial court has encroached upon the prosecutor’s constitutional duties and breached the separation of powers. State v. Hill, 306 Ark. 375, 811 S.W.2d 323 (1991). The choice of which charges to file against an accused is a matter entirely within the prosecutor’s discretion, Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992); State v. Brooks, 301 Ark. 257, 783 S.W.2d 368 (1990), and a duty which the trial court should never perform. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800, cert. denied, 112 S. Ct. 3043 (1992).

In the instant case, the trial court initially found appellee to be an habitual offender with two prior felony convictions, but later stated the habitual charges would not be used and dismissed them. The dismissal of the habitual charges was taken on the trial court’s own motion over the state’s objection that sentencing appellee as an habitual offender was mandatory. Clearly, the trial court impermissibly usurped the prosecutor’s constitutional duties and violated the separation of powers when it dismissed the habitual charges. The prosecutor was stripped of his discretion to determine which charges to file against appellee.

In refusing to sentence appellee as an habitual offender, the trial court stated that the word “may” in the recidivist statute indicated that sentencing an accused pursuant to that statute is discretionary with the trial court. The trial court relied on Mathis v. State, 267 Ark. 904, 591 S.W.2d 679 (Ark. Ct. App. 1979). The trial court’s reliance was misplaced. In Mathis, the court of appeals incorrectly indicated that sentencing an accused as an habitual was a matter within the trial court’s discretion. Realizing its error, the court of appeals overruled Mathis in Rogers v. State, 10 Ark. App. 19, 660 S.W.2d 949 (1983).

This court has very clearly stated on several occasions that sentencing under the recidivist statute is mandatory, not optional. State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993); McKillion v. State, 306 Ark. 511, 815 S.W.2d 936 (1991); Woodson v. State, 302 Ark. 10, 786 S.W.2d 120 (1990); Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990). This court has reasoned that the word “may” in the recidivist statute indicates that the jury or the trial court, whichever is considering the sentence to be imposed, has only the discretion to sentence an accused within the range of punishment set out in the recidivist statute. See e.g., McKillion, 306 Ark. 511, 815 S.W.2d 936. We have consistently maintained our position on this issue and do so again today.

The sentence imposed by the trial court was erroneous because it impermissibly usurped the prosecutor’s constitutional duties in violation of .the doctrine of separation of powers and because it was contrary to Hart and its progeny. Because of these errors, we must reverse and remand. In so doing, we direct the trial court to sentence appellee pursuant to the habitual offender statute as it existed on the date appellee committed the crime of criminal mischief. See Freeman, 312 Ark. 34, 846 S.W.2d 660 (relying on Griffin v. State, 276 Ark. 266, 633 S.W.2d 708 (1982)).


author: Robert L. Brown, Justice.

text:
    Sharon GRIGGS v. John COOK and Petroman, Inc.
    93-339
    864 S.W.2d 832
    Supreme Court of Arkansas
    Opinion delivered November 8, 1993

      Robert A. Newcomb, for appellant.

      Jack, Lyon & Jones, P.A., by: Philip K. Lyon and Deborah Sailings, for appellee.
   Robert L. Brown, Justice.

The original complaint brought by the appellant, Sharon Griggs, against the appellees, John Cook and Petroman, Inc., alleged wrongful discharge and the tort of outrage. This appeal is from a summary judgment in favor of appellees. We hold that the appeal from the summary judgment was not timely, and we dismiss the appeal.

From July 25, 1989, until March 18, 1991, Sharon Griggs was employed as a Texaco station manager by Petroman, a subsidiary of Texaco Refining & Marketing, Inc. Her aunt, Jo Carol Moore, also worked for Petroman. Griggs’s immediate supervisor was John Cook, who was a zone manager for Texaco Refining. On June 27, 1990, Griggs was interviewed by a Texaco investigator about a complaint of sexual harassment brought by Moore against Cook. Griggs was listed as a witness to the harassment. Moore was subsequently fired on August 13, 1990. Some seven months later on March 18, 1991, Griggs was terminated by Petroman.

What gave rise to this appeal was a complaint filed by Griggs against Petroman and Cook on November 12, 1991. In that complaint she alleged the torts of wrongful discharge and outrage and asserted that her firing was a retaliatory action taken by the appellees against her because of her witness status in the Moore/Cook sexual harassment matter.

On June 2, 1992, the appellees filed a motion for summary judgment regarding the Griggs complaint and attached Griggs’s deposition and Cook’s affidavit in support. According to Cook’s affidavit, Griggs was fired due to several violations of company policy, including cashing her own personal checks, failing to measure gasoline in the station’s tanks, failing to obtain adequate data from customers with competitor credit cards which led to revenue losses exceeding $1,200, and removing a car from the premises without the authority to do so.

On June 29, 1992, Griggs requested an extension of time to respond to the summary judgment motion until July 13, 1992. No decision was made on the extension request by the circuit judge, but she did not respond within the requested time. Rather, she responded on July 30, 1992. She attached her deposition and Cook’s deposition in support of her response.

On August 5, 1992, Cook and Petroman moved to strike Griggs’s response as untimely. On that same date, the appellees replied to Griggs’s response and emphasized that Griggs had presented no proof that she was terminated due to retaliation for her possible testimony in the sexual harassment matter.

On August 12, 1992, the circuit judge entered his order granting summary judgment to the appellees. In that order, he found that Griggs’s response to the summary judgment motion was not timely, and as a result he took the facts alleged by the appellees as undisputed. Without a material issue of fact, the judge concluded that summary judgment in favor of the appellees was warranted.

On November 3, 1992, Griggs moved to modify the summary judgment pursuant to Ark. R. Civ. P. 60 on the basis that (1) she was denied a hearing prefatory to the summary judgment; and (2) summary judgment was entered by the judge without notice to her.

On November 6, 1992, the appellees responded to the motion to modify and argued that Griggs had shown no prejudice caused by the asserted lapses and added that Griggs’s counsel had seen a copy of the proposed precedent for summary judgment prior to signature and entry.

On November 13, 1992, the appellees filed a supplemental response to Griggs’s motion to modify and urged that the circuit judge had lost the authority to act on the motion under Ark. R. Civ. P. 60(b) due to the passage of 90 days from entry of the original order.

On December 10, 1992, the circuit judge entered an Amended Order. In that order, the judge stated:

While the Court declines to modify its decision with respect to the granting of summary judgment in favor of Defendants, in accordance with Plaintiff’s request, the Court enters the following Amended Order to clarify the basis of its decision.

The circuit judge then went on to say that even considering Griggs’s response and the pleadings, depositions, answers to interrogatories, and affidavits, the summary judgment was still warranted since Griggs had failed to present any evidence that she was a witness in proceedings on behalf of her aunt or that her termination was because of that. The judge stated, concomitantly, that proof was also lacking to raise an issue regarding her claim of outrage. The judge then concluded that his order of summary judgment dated August 13, 1992, “is hereby modified by this Order, which is entered this date now for then.”

Because the issue is dispositive of this matter, we first address the appellees’ argument that Griggs’s appeal is untimely. There is no question that Griggs failed to appeal from the original order of summary judgment within thirty days as required by Ark. R. App. P. 4(a). The question then becomes whether her motion to modify the original order pursuant to Ark. R. Civ. P. 60(b), with the resulting Amended Order, salvages this appeal. Rule 60(b) provides for modification of trial court orders to “correct any error or mistake or to prevent the miscarriage of justice” within 90 days from the time that the original order is filed with the clerk. Griggs’s motion to modify was filed on November 6, 1992 — 85 days after the original order of summary judgment. The Amended Order, however, was not entered until December 10, 1992, which was more than 90 days after the entry of the original order. We are aware that the circuit judge stated that the Amended Order was necessary to “clarify” his original order. Yet, the judge’s Amended Order specifically concludes that the original order was “modified.”

We believe that the circuit judge’s Amended Order was a modification of the original order rather than a clarification. Our conclusion is based on the fact that in the Amended Order the trial judge considered Griggs’s response to the motion for summary judgment and her supporting evidence for the first time. Previously, he had taken the facts alleged by the appellees as undisputed due to the lateness of Griggs’s response. After considering her proof, he again concluded that summary judgment was warranted.

Our law is clear that not only must a modifying order be entered within 90 days of the original order, but the trial court loses the authority to modify an original order under Ark. R. Civ. P. 60(b) after the expiration of 90 days from the entry of that first order. Ware v. Gardner, 309 Ark. 148, 827 S.W.2d 657 (1992); City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989); Diebold v. Myers Gen. Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987). The same holds true in the case before us. The Amended Order, as a modification of the first order, was entered without question more than 90 days after that original order. There was no power in the circuit judge to act at this belated time. This was so even though the motion to modify was filed within the 90-day period. City of Little Rock v. Ragan, supra. The Amended Order, therefore, was void, and any notice of appeal from that void order was of no effect.

Finally, the fact that the Amended Order states that it is modifying the August 13, 1992 Order and is entered “now for then” does not render the Amended Order valid or the appeal timely. We have said that nunc pro tunc orders may be entered to correct a misprision of the clerk, but that the trial court cannot change an earlier record to correct something that should have been done but was not. Bradley v. French, 300 Ark. 64, 776 S.W.2d 355 (1989), quoting Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989). The Amended Order in this case was clearly not for the purpose of correcting a misprision of the clerk. The nunc pro tunc device cannot be used to enter an order in a case when the trial court has already lost the authority to act. See Murry v. State Farm Mutual Automobile Ins. Co., 291 Ark. 445, 725 S.W.2d 571 (1987) (per curiam).

Moreover, even if we did conclude that the effective date of the Amended Order was August 13, 1992, when the circuit judge had the power to act, this would not help Griggs since no notice of appeal was filed with respect to the original order. There is no basis for this appeal.

Appeal dismissed.


author: Robert L. Brown, Justice. Steele Hays, Justice.

text:
    John THOMAS v. STATE of Arkansas
    CR 93-519
    864 S.W.2d 835
    Supreme Court of Arkansas
    Opinion delivered November 8, 1993

      William R. Simpson, Jr., Public Defender, by; Mac Carder, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by; Brad Newman, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant John Thomas was sentenced to an extended term of imprisonment as a habitual offender with more than one but less than four felony convictions under Ark. Code Ann. § 5-4-501 (1987). The single issue on appeal is whether the trial court erred by not merging his prior convictions for breaking or entering and for theft of property into a single felony conviction for enhancement purposes. We hold that error did occur, and we vacate the sentence and remand for resentencing.

In the early morning hours of April 27, 1992, John Thomas made threatening telephone calls to his former girlfriend, Deanna Richardson. That evening, Thomas entered Ms. Richardson’s home and stabbed her repeatedly. On January 26, 1993, he was convicted by a jury of terroristic threatening in the first degree in violation of Ark. Code Ann. § 5-13-301 (1987) and criminal attempt to commit murder in the first degree in violation of Ark. Code Ann. § 5-3-201 (1987).

The trial court determined that Thomas was a habitual offender with more than one but less than four convictions under Ark. Code Ann. § 5-4-501(a)(l) (1987). Thomas had prior convictions for breaking or entering and for theft of property which arose from a single transaction. According to Thomas the convictions resulted from a situation where “some young boys broke into a car and took a radar detector.” The trial court treated the two convictions as two prior felonies. The jury then imposed sentences of twelve years imprisonment for the terroristic threatening and twenty-five years imprisonment for the attempted murder charge. The sentences are to be served concurrently.

This case hinges on statutory interpretation. The issue at hand is whether the General Assembly intended to treat convictions for breaking or entering the object of which was theft as a single felony for enhancement purposes under Ark. Code Ann. § 5-4-501 (c) (1987). The basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. Mountain Home Sch. Dist. v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993). In interpreting a penal statute, “[i]t is well settled that penal statutes are strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed.” Hales v. State, 299 Ark. 93, 94, 771 S.W.2d 285, 286 (1989). However, even a penal statute must not be construed so strictly as to defeat the obvious intent of the legislature. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). In this regard, we will not construe penal statutes so strictly as to reach absurd consequences which are clearly contrary to legislative intent. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Williams v. State, 292 Ark. 616, 732 S.W.2d 135 (1987); Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986).

We begin by comparing the definitions of burglary and breaking or entering:

BURGLARY

(a) A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of commiting (sic) therein any offense punishable by imprisonment.

Ark. Code Ann. § 5-39-201 (1987). (Emphasis ours.)

BREAKING OR ENTERING

(a) A person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle, vault, safe, cash register, money vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box, or other similar container, apparatus, or equipment.

Ark. Code Ann. § 5-39-202 (1987). (Emphasis ours.) In both instances, the purpose to commit a crime is an element of the offense. In the case of burglary, the crime intended must be an “offense punishable by imprisonment.” For breaking or entering, the intended crime must either be “a theft or felony.”

The precise section of the Habitual Offender Act to be interpreted reads:

(c) For the purpose of determining whether a defendant has previously been convicted or found guilty of two (2) or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt. A conviction or finding of guilt of an offense that was a felony under the law in effect prior to January 1, 1976, shall be considered a previous felony conviction or finding of guilt.

Ark. Code Ann. § 5-4-501 (c) (1987).

This court has previously determined that breaking or entering is a lesser included offense of burglary. Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992); Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978). It is true, as the State contends, that § 5-4-501 (c) speaks only in terras of burglary and the felony that was the object of the burglary. Yet, we are unable to conclude that the General Assembly did not also intend to embrace within the category of burglary the lesser included offense of breaking or entering which similarly requires the intent to commit a subsequent crime. To construe the statute otherwise would be to reach the absurd conclusion that the serious offense of burglary and the subsequent felony committed are treated as a single felony conviction under § 5-4-501(c) while the lesser offense of breaking and entering and the felonious object of that crime are treated as two felonies for enhancement purposes. That could not have been the intent of the General Assembly. As we said in Ashing v. State, supra:

Additionally, while recognizing that penal statutes are given a strict construction, the rule is not so rigid that it does not give way to the obvious legislative intent or bow to the plain policy and purposes of the statute. Sutherland, Statutory Construction, § 59.06. The rule of strict construction is not the enemy of common sense and does not require a literal interpretation leading to absurd consequences. Such a reading should be discarded in favor of a more reasonable interpretation.

288 Ark. at 81, 702 S.W.2d at 22.

We do not consider the case of Robinson v. State, 303 Ark. 351, 797 S.W.2d 425 (1990), to be contrary to this decision. In Robinson, the defendant sought to combine convictions of robbery and theft into a single felony for habitual offender purposes. We declined to do so on the basis that § 5-4-501 (c) did not include robbery by its terms, but only burglary. However, robbery is not a lesser included offense of burglary. Breaking or entering is and therein lies the critical distinction between the Robinson case and the case at bar.

We hold, therefore, that the term “burglary” in § 5-4-501 (c) includes the lesser included offense of breaking or entering and that breaking or entering and the object of that offense — in this case, theft — should be considered a single felony conviction for purposes of enhancing punishment.

The sentence in this matter is vacated, and this case is remanded with instructions to modify the sentence in accordance with this opinion.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice.

The majority holds that the General Assembly intended to treat convictions for breaking or entering and its underlying purpose as a single felony for enhancement purposes under Ark. Code Ann. § 5-4-501 (1987). Since neither the language of § 5-4r501(c) nor the commentary indicates the General Assembly intended to consider the two convictions as a single felony conviction for enhancement purposes, I respectfully disagree.

The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Mountain Home Sch. Dist. v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993). And where the language of a statute is plain and unambiguous, we determine the legislative intent from the ordinary meaning of the language used. Id. Further, it is a recognized principle of interpretation that the mention of one thing implies the exclusion of another. 73 Am. Jur. 2d Statutes § 211 (1968); See Sutherland Statutory Construction § 47.23 (1992). Ordinarily there is an inference that omissions are intentional. Id. § 47.25 (1992).

In examining the wording of § 5-4-501 (c), the special exception is clearly limited to the situation in which a defendant has previously been found guilty of burglary and the underlying felony. However, the majority is “unable to conclude that the General Assembly did not also intend to embrace within the category of burglary the lesser included offense of breaking or entering.” Although breaking or entering is a lesser included offense of burglary, that designation is judicial rather than legislative. See Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978). The legislature has not determined by statute that breaking or entering is a lesser included offense of burglary and thus it is implausible to conclude that the legislature intended to treat the lesser included offenses of burglary within the special exception under § 5-4-501(c).

Beyond that, the original commentary to § 5-4-501 demonstrates that the legislature specifically intended to address burglary and its underlying felony. The commentary provides in relevant part:

. . . Although prior to the Code’s enactment most circuit judges treated convictions for burglary and grand larceny as a single prior conviction for purposes of habitual offender sentencing, a few apparently considered such a disposition to constitute two convictions. To achieve some parity of treatment in calculating the number of prior convictions, subsection (c) consolidates a burglary and the offense that was its object into a single felony conviction for habitual offender purposes. . . .

Original Commentary to § 5-4-501. In interpreting a statute, the commentary to a statute is a highly persuasive aid to construction. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993).

Further, the majority concludes that Robinson v. State, 303 Ark. 351, 797 S.W.2d 425 (1990), is not contrary to today’s decision. In Robinson, we held that § 5-4-501 (c) should not be expanded to embrace robbery and the underlying theft. Although the special provision in § 5-4-501 applied to burglary, we concluded that no such provision existed regarding robbery. Id. We declined, in the absence of specific language, to write into the legislation a provision that the legislative branch had failed to enact, presumably by design. Id. The majority now attempts to distinguish the Robinson analysis solely on the ground that robbery is not a lesser included offense of burglary. Again, the “lesser included offense” classification is judicial rather than legislative.

Finally, the majority emphasizes the fact that “the purpose to commit a crime” is an element of the offense of both burglary and breaking or entering. Similarly, Ark. Code Ann. § 5-12-102 (Supp. 1987) provides that “[a] person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” Therefore, “the purpose to commit a crime” is an element of the offenses of robbery, burglary, and breaking or entering. Since the General Assembly has determined that robbery and burglary should not be treated similarly for purposes of enhancement, it is logical to assume it also intended to distinguish burglary from breaking or entering.

While we are not bound by the decision of the trial court, absent a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993). I believe the trial court correctly concluded that breaking or entering and the felony which was the object of that offense were not intended to be merged to constitute a single felony for enhancement purposes under § 5-4-501 and I would affirm the judgment.

Glaze, J., joins this dissent.


text:
    Michael WISEMAN v. Fines BATCHELOR, Jr.
    93-396
    864 S.W.2d 248
    Supreme Court of Arkansas
    Opinion delivered November 8, 1993

      Robert S. Blatt and Phillip J. Taylor, for appellant.

      Davis, Cox & Wright, by: Kelly Carithers and Tim E. Howell, for appellee.
   Robert L. Brown, Justice.

The appellant, Michael Wise-man, contends on appeal that the trial court erred in dismissing his complaint with prejudice. His complaint alleged actual fraud and constructive fraud against the appellee, Fines Batchelor, who was the attorney for an opposing party in prior litigation. He further urges that the trial court erred in not allowing him to amend his complaint prior to dismissal. We disagree on both counts and affirm the dismissal with prejudice.

Michael Wiseman was involved in several lawsuits against Billie Weaver, who retained the appellee as his attorney. The litigation concerned rural property rights in Crawford County. At one point in the dispute, Weaver fired a shot at Wiseman, and Wiseman sued him for damages and prevailed. He was awarded $40,000. Wiseman sought to collect this amount, and Weaver petitioned for Chapter 7 relief in U.S. Bankruptcy Court. Because of misrepresentations in his petition, the bankruptcy court denied Weaver a discharge from his debts on November 14, 1990, and effectively dismissed his petition. In that same order, the bankruptcy court denied Wiseman’s request for Rule 11 sanctions against the appellee and Billie Weaver and stated that the appellee “has the right to believe his client.”

Wiseman then filed the complaint against Batchelor which is the subject of this appeal and alleged actual fraud and constructive fraud, emanating from the misrepresentations made by Batchelor as attorney for Weaver in prior litigation. The appellee moved to dismiss the complaint for failure to state a claim under Ark. R. Civ. R 12(b)(6) and on grounds that it was barred by the doctrines of res judicata and collateral estoppel. After hearing the matter, the trial court dismissed the complaint with prejudice, citing failure to state a claim and lack of venue as its reasons. The court specifically denied dismissal on grounds of res judicata or collateral estoppel.

Wiseman first argues that the trial court erred in finding that he had failed to state a cause of action under Rule 12(b)(6). In considering a motion to dismiss under Rule 12(b)(6), the facts alleged in the complaint are treated as true and those facts are viewed in the light most favorable to the party who filed the complaint. Deitsch v. Tilley, 309 Ark. 401, 833 S.W.2d 760 (1992); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989). In deciding such motions, the trial court must look only to the allegations in the complaint. Deitsch v. Tilley, supra.

We turn then to the complaint filed by Wiseman. The two counts brought against Batchelor are for actual fraud and constructive fraud. We first consider the trial court’s dismissal of the actual fraud count. The complaint alleges the following factual underpinnings in support of fraud:

1. The appellee’s filing of the bankruptcy petition delayed collection of the $40,000 judgment. It further caused a depletion and depreciation of Weaver’s assets.
2. The bankruptcy petition prepared by the appellee failed to include Weaver’s ownership of a tractor and certain land, when the appellee had alleged in pleadings or testified in prior litigation that Weaver owned both.
3. The appellee filed a false pleading on behalf of a woman he did not represent who was party with Weaver to a fraudulent transfer of Weaver’s land.
4. The appellee claimed an exemption of certain land in bankruptcy court on behalf of Weaver in bad faith.

No allegation of Wiseman’s reliance on these misrepresentations was included in the complaint.'

We agree with the trial court that a claim for relief has not been stated. Actual fraud is established by proving the existence of the following five elements: (1) a false representation, usually of a material fact; (2) knowledge or belief by the defendant that the representation is false; (3) intent to induce reliance on the part of the plaintiff; (4) justifiable reliance by the plaintiff; and, (5) resulting damage to the plaintiff. Nicholson v. Century 21, 307 Ark. 161, 818 S.W.2d 254 (1991); McWilliams v. Zedlitz, 294 Ark. 336, 742 S.W.2d 929 (1988); Brill, Arkansas Law of Damages, §35-7, p. 489 (1990). In addition, Act 661 of 1987, now codified as Ark. Code Ann. § 16-22-310 (Supp. 1993), protects attorneys from liability to those not in privity with them but excepts from this protection actions for intentional fraud. See Almand v. Benton County, 145 B.R. 608 (W.D. Ark. 1992) (immunity for attorneys excluded for intentional acts under § 16-22-310).

While alleged misrepresentations by the appellee are included in Wiseman’s complaint and are undisputed for purposes of a 12(b)(6) analysis, we fail to observe, as did the trial court, any allegation of justifiable reliance by Wiseman on the alleged false statements or even any basis for such an allegation. False statements, by themselves, are not sufficient to state a claim for fraud. An assertion of justifiable reliance by Wiseman must accompany allegations of misrepresentation, or there must be some foundation for such reliance set out in the complaint. Here, we see none. Indeed, quite the opposite appears true, since Wise-man contested the misstatements in the bankruptcy petition and ultimately succeeded in having the bankruptcy court deny Weaver a discharge. In our reading of Wiseman’s complaint, the grievance complained of seems more akin to abuse of process by the appellee to hinder collection of a judgment rather than reliance on falsehoods to his detriment. The trial court correctly dismissed this count.

We turn next to the dismissal of the constructive fraud count. We have described constructive fraud as a type of fraud based upon a breach of a legal or equitable duty which the law declares to be fraudulent because of its tendency-to deceive others, regardless of the moral guilt, purpose, or intent of the perpetrator. Miskimins v. The City Nat’l Bank, 248 Ark. 1194, 456 S.W.2d 673 (1970). We can discern in the case before us no legal or equitable duty owed to Wiseman by the attorney for the opposing party. The duty which the appellee was required to perform was to his client, Weaver. To create a duty in an attorney which flows both to the client and to the opposing party seems to be untenable and in diametric conflict. See Smith v. Hurd, 699 F. Supp. 1433 (D. Haw. 1988). Moreover, we are not convinced by Wiseman’s argument that the general duty owed by a lawyer to the public at large as an officer of the court under the Model Rules of Professional Conduct or by virtue of the Attorney’s Oath satisfies the duty prerequisite for constructive fraud.

We note on this point that Wiseman adduces no authority to substantiate his argument that a general duty owed to the public suffices for constructive fraud. We further note where our Model Rules of Professional Conduct specifically state: “Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached.” Scope, Model Rules of Professional Conduct (adopted by Per Curiam Order Dec. 16, 1985).

Finally, Ark. Code Ann. § 16-22-310 grants immunity to attorneys from lawsuits brought by persons not in privity with them except for actions for fraud or intentional misrepresentation. The exception appears to be one for intentional actions. See Almand v. Benton County, supra. Constructive fraud is not an intentional tort. Again, we agree with the trial court that no claim for relief was stated.

For his next point, Wiseman urges that the trial court should have allowed him to amend his complaint to state a claim for relief. He cites this court to his Reply to the appellee’s Motion to Dismiss where he states: “If the Court finds that additional facts need to be plead, then the Court shall allow the Plaintiff to amend his pleading.”

Our rules set forth the procedure for amendment of pleadings:

With the exception of pleading the defenses mentioned in Rule 12(h)(1), a party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.

Ark. R. Civ. P. 15(a).

As best we can glean from the record, no amendment to his complaint was offered by Wiseman. Yet, Rule 15(a) clearly provides that a party may amend the pleadings at any time without leave of the court. Then, it is incumbent on the opposing party to object to the amendment, followed by a court ruling. Wiseman simply failed to offer an amendment, and the issue is not preserved for our review on appeal.

There is an oblique reference both at the hearing on the appellee’s Motion to Dismiss and in the trial court’s Order of Dismissal to a prior third-party complaint wherein Wiseman also alleged fraud against Batchelor. That complaint was dismissed without prejudice. This prior litigation is described to some extent in the parties’ arguments in their briefs. Ordinarily, a second dismissal of an action operates as an adjudication on the merits. Ark. R. Civ. P. 41(b). However, we are unable to determine the precise nature of the prior action due to the dearth of information in the record before us, and for that reason we refrain from affirming on that basis.

We need not address the final point raised by Wiseman relating to venue, since we affirm the trial court on other grounds.

Affirmed.