author: Ray Thornton, Justice.

text:
    ARKANSAS STATE RACING COMMISSION v. WAYNE WARD, INC.
    01-229
    57 S.W.3d 198
    Supreme Court of Arkansas
    Opinion delivered October 25, 2001
    [Petition for rehearing denied December 6, 2001.]

      Mitchell, Williams, Selig, Gates & Woodyard, PLLC, by: Byron Freeland, for appellant.

      Rieves, Rubens & Mayton, by: Kent J. Rubens, for appellee.
   Ray Thornton, Justice.

The Arkansas State Racing Commission (“the Commission”), appeals the January 11, 2001, decision of the Crittenden County Circuit Court reversing the Commission’s order that affirmed the order of the South-land Greyhound Park Board of Judges (“the Board”) redistributing the winner’s purse from the eleventh race at Southland Greyhound Park (“Southland”) on May 31, 1997, because of a violation of the rules prohibiting drugs. The Commission contends that the circuit court’s decision should be reversed because the Commission’s decision was not arbitrary, capricious, or otherwise characterized by an abuse of discretion and is supported by substantial evidence. We agree and reverse.

The facts of this case are not in dispute. Ward is the owner of a greyhound dog, Royal Duke, that finished first in the eleventh race at Southland on Saturday, May 31, 1997. Royal Duke’s urine sample, which was taken following the race, was found to contain Dimethyl Sulfoxide (“DMSO”), an anti-inflammatory drug. The trainer admitted to applying DMSO to Royal Duke on the Wednesday prior to the race.

Rules 1226, 1230, and 1233 of the Rules and Regulations Governing Greyhound Racing in Arkansas (“the Rules”) prohibit the administration of any drug prior to a race and provide for a fine to be assessed against the trainer and a forfeiture of any purse claimed by the owner of a dog testing positive for any prohibited drug. Pursuant to these Rules, the Board, in Ruling #16 of 1997, fined the trainer $25.00 and ordered the purse of $11,000.00 to be redistributed to the owner of the second place dog.

Ward appealed the action of the Board to the Commission, arguing that the redistribution of the purse violated the Eighth Amendment to the Constitution of the United States, as well as its counterpart in the Arkansas Constitution, and that it deprived him of due process. Ward also contended that the Rules are arbitrary and irrational in their operation because the penalty only applies when the offending dog wins the race; the penalty to the owner is disproportionate to the trainer’s fine; the wagering public is not protected because the public collects wagers as though the offending dog had won; DMSO is neither a performance enhancing nor performance retarding drug; and DMSO does not get reported all the time, even though the Rules prohibit the presence of any amount of DMSO.

On November 20, 1997, the Commission conducted a hearing. On January 31, 1998, the Commission entered its findings of fact and conclusions of law and its order denying Ward’s appeal and ordering the purse to be redistributed in accordance with the Commission’s Rules.

Ward filed a petition to review the order of the Commission with the Crittenden County Circuit Court, pursuant to Ark. Code Ann. § 25-15-212(h) (Repl. 1996). The circuit court held a hearing and, on December 29, 2000, entered its- order finding that the Commission Order of January 31, 1998, was not supported by substantial evidence, and was an abuse of discretion and was arbitrary and capricious. It is from this order that the Commission brings this appeal. We note that this case has been certified to us. We accepted jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(1) & (b)(3) because of the constitutional questions argued by Ward.

Standard of Review

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

The standard of review in this area of the law is well-developed. The appellate court’s review is directed not toward the circuit court, but toward the decision of the agency. That is so because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999); Social Work Licensing Bd. v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998); Files v. Arkansas State Highway and Transp. Dep’t, 325 Ark. 291, 925 S.W.2d 404 (1996). Our review of administrative decisions is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra; In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992).
These standards are consistent with the provisions of the Administrative Procedure Act, Ark. Code Ann. § 25-15-201 — 25-15-214 (Repl. 1996), which requires that the scope of appellate review under the Act be limited. According to the Act, it is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency’s decision or whether the agency’s decision runs afoul of one of the other criteria set out in section 25-15-212(h). Arkansas Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998). We review the entire record in making this determination. Id. We also note that in reviewing the record, the evidence is given its strongest probative force in favor of the agency’s ruling. Arkansas Health Servs. Agency v. Desiderata, 331 Ark. 144, 958 S.W.2d 7 (1998).

Smith, supra; see also Jackson, supra. We have also held that between two fairly conflicting views, even if the reviewing court might have made a different choice, the board’s choice must not be displaced. Jackson, supra (citing Northwest Sau & Loan Ass’n v. Fayetteville Sav. & Loan Ass’n, 262 Ark. 840, 562 S.W.2d 49 (1978)).

The relevant section of the Arkansas Administrative Procedure Act provides:

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

Ark. Code Ann. § 25-15-212(h).

For its sole point on appeal, the Commission argues that the circuit court erred in finding that the Commission’s decision was arbitrary, capricious, or otherwise characterized by an abuse of discretion and was not supported by substantial evidence. The Commission argues that its decision was not arbitrary, capricious, or otherwise characterized by an abuse of discretion and was supported by substantial evidence because it merely applied the Rules to the undisputed facts in making its conclusion to redistribute the purse.

In response to the Commission’s arguments, Ward contends that the circuit court correctly found that the Commission’s order redistributing the purse was arbitrary and capricious and not supported by substantial evidence because the Commission did not conduct a de novo review of the case, but merely “rubber stamped” the Board’s ruling. Ward further argues that the Commissioners lacked the expertise regarding racing to make the decision. Ward also contends that the Rules themselves operate in an arbitrary and capricious manner. Specifically, Ward argues that it is arbitrary and capricious that the presence of a substance that neither enhances nor retards performance results in the loss of a purse, and it is arbitrary and capricious that only winning owners are to be punished. Finally, Ward seeks to contest the Commission’s order redistributing the purse as a violation of both the United States and Arkansas Constitutions.

The pertinent Rules are Rules 1226, 1230, and 1233, which are published in the 1980 edition of the Rules. These Rules are contained in the section entitled “Corrupt, Fraudulent and Prohibited Practices.” Rule 1226 provides:

Except for lawful administration of medication, no person shall administer, or permit to be administered, any drug in any manner whatsoever, internally or externally, to any greyhound entered or to be entered in a race, prior to the race.

Rules and Regulations Governing Greyhound Racing in Arkansas, Rule 1226 (1980) (emphasis added).

Rule 1230 provides:

Any trainer, attendant, owner, or other person who shall be adjudged guilty of any participation in or knowledge of the administration of any drug to any entry in a race or otherwise unlawfully tampering with greyhounds for the purpose of increasing or retarding the speed of such greyhound shall for the first and second offenses be punished to such extent as the Board of Judges rule, and for the third offense may be thereafter ruled off and denied a license for fife. It is provided, however, that the owner of a greyhound to which a drug has been unlawfully administered, or which has been unlawfully tampered with, or any entry of which such greyhound is a part, shall be denied any part of the purse and the purse shall be distributed as in the case of a disqualification. If said purse is paid before disqualification, then the proper owner entitled to said purse may recover from those who had received such purse. In the event that a greyhound establishes a track record in a race and it later develops that the chemical analysis of any sample taken from such greyhound indicates the presence of a narcotic, stimulant, depressant or local anesthetic, then such track record shall be null and void.

Rules and Regulations Governing Greyhound Racing in Arkansas, Rule 1230 (1980) (emphasis added).

Rule 1233 provides:

The Trainer shall be responsible for and be the absolute insurer of the condition of an entry he enters regardless of the acts of third parties. Should the chemical or other analysis of saliva, urine or blood specimens prove positive, showing the presence of any narcotic, stimulant, depressant, chemical or drug of any kind or description, the trainer may, in the discretion of the Board of Judges, subject to appeal to the Commission, be fined, suspended or ruled off the track. In addition, any other person shown to have had the care or attendance of the entry shall not participate in the purse distribution.

Rules and Regulations Governing Greyhound Racing in Arkansas, Rule 1233 (1980) (emphasis added).

Substantial Evidence

The Commission argues that the circuit court erred in concluding that its decision to redistribute the purse was not supported by substantial evidence. The Commission argues that its decision was supported by substantial evidence because it was merely applying the Rules to the undisputed facts. We agree.

. [4] Substantial evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture. Smith, supra (citing McQuay, supra; Bohannon v. Arkansas Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995)). The challenging party has the burden of proving an absence of substantial evidence. Smith, supra. To determine whether a decision is supported by substantial evidence, the record is reviewed to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Arkansas State Highway & Transp. Dep’t v. Kidder, 326 Ark. 595, 933 S.W.2d 794 (1996). When reviewing the evidence, the court gives it its strongest probative force in favor of the agency. Id. The issue is not whether the evidence supports a contrary finding, but whether it supports the finding that was made. Id. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. Smith, supra (citing McQuay, supra). We must affirm the agency’s decision if there is substantial evidence to support it. Smith, supra (citing Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980).

In the present case, there was substantial evidence to support the d'ecision of the Commission to redistribute the purse. It was undisputed that the trainer had applied DMSO to Royal Duke on the Wednesday prior to the Saturday race. It was also undisputed that a urine sample taken from Royal Duke after the Saturday race tested positive for DMSO through a qualitative test. Under Rule 1226, DMSO is a prohibited drug because, according to that rule, “no person shall administer, or permit to be administered, any drug in any manner whatsoever, internally or externally, to any greyhound entered or to be entered in a race, prior to the race.” Rules and Regulations Governing Greyhound Racing in Arkansas, Rule 1226 (1980) (emphasis added). Moreover, under the RCI Guidelines and Model Rules, the applicability of which was not disputed by either party and which was admitted into evidence, DMSO is a Class 5 drug, for which the recommended penalty is zero to fifteen days suspension, with a possible loss of purse and/or fine. Finally, there was no contention that DMSO was not an illegal drug. Consequently, under Rules 1230 and 1233, loss of the purse is the penalty to the owner for administration of any drug prior to the race. The Commission’s findings of facts and conclusions of law reflected the application of these undisputed facts to the Rules.

In reversing the Commission’s decision to redistribute the purse, the circuit court relied on several factors, including the trainer’s stipulated testimony that he administered DMSO four days before the race, testimony that DMSO can be found in the urine twenty-four to forty-eight hours after administration, testimony that DMSO is not reported as a positive unless it is over thirty-six micrograms per milliliter, and testimony that indicated that DMSO does not necessarily improve the performance of the dog. However, the Commission’s Rules strictly prohibit the administration of any drugs prior to a race. In addition, the Commission’s Rules do not specify a time limit for the safe administration of such drugs before a race. Finally, the Commission’s Rules provide a penalty to the owner under Rule 1230 and Rule 1233, regardless of whether the use of a drug increases or retards the performance of the dog.

We have recently held that between two fairly conflicting views, even if the reviewing court might have made a different choice, the board’s choice must not be displaced. Jackson, supra. It was not within the purview of the circuit court to substitute its judgment for that of the Commission. Moreover, we have held that the Commission is expressly authorized to “take such other action, not inconsistent with law, as it may deem necessary or desirable to supervise and regulate, and to effectively control in the public interest, horse racing in the State of Arkansas.” Jackson, supra (quoting Ark. Code Ann. § 23-110-204(a)(6) (Repl. 1999) (emphasis added)).

Because the Commission applied the undisputed facts to its Rules, we hold that the Commission’s decision to redistribute the purse is supported by relevant evidence that a reasonable mind might accept as adequate to support its conclusion. Accordingly, we reverse the decision of the circuit court on this point.

Arbitrary and Capricious

The Commission also argues that the circuit court erred in concluding that its decision to redistribute the purse was arbitrary and capricious. We agree.

We outlined our rule regarding the determination of whether an administrative action is arbitrary and capricious in Smith, supra. We stated:

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

Smith, supra.

In the present case, we have concluded that there was substantial evidence to support the Commission’s decision to redistribute the purse. Therefore, under our case law, which states that a decision cannot be classified as unreasonable or arbitrary once substantial evidence is found, the Commission’s decision could not have been arbitrary and capricious. See Smith, supra (citing Wright, supra). Moreover, the Commission’s decision was not arbitrary and capricious because there was no proof that the Commission’s action in redistributing the purse was willful and unreasoning action, without consideration and with a disregard of the facts or circumstances of the case. Rather, the Commission set forth both the findings of fact and conclusions of law supporting its decision to redistribute due to the positive drug test.

Ward argues that the Commission’s order was arbitrary and capricious because it did not conduct a de novo review of the Board’s decision. As support for this argument, Ward relies on the statements of two of the commissioners, Mr. Roussel and Mr. Lorence, who each indicated a hesitation to overrule the Board’s decision during the Commission hearing. However, while the statement by the two commissioners reflected some misunderstanding as to the standard of review the Commission was to apply during the hearing, that misunderstanding was resolved when the Commission’s counsel informed the Commission that it was required to apply a de novo standard of review:

Let me explain, the Commission is to try this case de novo. What you need to do is base your decision on what you heard today, and just because the judges rules one way, that shouldn’t be a factor in your decision.

In reaching its conclusion, the Commission considered the undisputed facts in conjunction with its rules, and, in doing so, was aware of its duty to apply a de novo standard of review to the Board’s decision to redistribute the purse. Therefore, we cannot say that the Commission failed to apply a de novo standard of review. Accordingly, we reverse the decision of the circuit court on this point as well.

Reversed and remanded to reinstate Commission’s order.

       In response, Ward argues that the Commission’s decision to redistribute tire purse violated the Eighth Amendment to both the Constitution of the United States and the Arkansas Constitution, and that it deprived him of due process. However, neither the Commission nor the circuit court issued a ruling on these arguments. It is well settled that to preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling below. E.g., Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001) (citing Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998)). Accordingly, we reject this argument without reaching the merits. Nevertheless, while the constitutional argument has not been preserved for appeal in the present case, we note that we have recently addressed the question whether the redistribution of a horse racing purse because of the possession of a prohibited electrical device in violation of racing rules deprived the owner of his constitutional rights and determined that we could not conclude that the owner’s constitutional rights were violated. See Jackson v. Arkansas Racing Comm’n, 343 Ark. 307, 34 S.W.3d 740 (2001).

       DMSO is a Class 5 drug under the Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rules, adopted by the Association of Racing Commissioners International (“the RCI Guidelines and Model Rules”), which were revised in October of 1996.

       The Commission’s Findings of Fact and Conclusions of Law provide:

        FINDINGS OF FACT OF THE ARKANSAS RACING COMMISSION

      Based on the testimony and evidence presented, the Commission makes the following findings of fact:
      1. Royal Duke, owned by Wayne Ward, Inc., won the 11th race at Southland Greyhound Park on May 31, 1997. The winner’s share of the purse was $11,000.
      2. Subsequent to the race, the Commission took a urine sample from Royal Duke, which tested positive for DMSO. DMSO is a compound used as a topical anti-inflammatory which easily penetrates the skin to help reduce swelling.
      3. Mr. Ward admitted that his trainer used DMSO in spray bottles, and did not contest the fact that DMSO was found in the urine sample of Royal Duke.
      4. Mr. Ward argued that the penalty imposed, the forfeiture of the entire purse of$ll,000, was too severe since, according to Mr. Ward, DMSO does not affect the performance of a dog.
      5. Under the Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rule, adopted by the Association of Racing Commissioners International, Inc., DMSO is a Class 5 drug.
      6. A violation for the presence of a Class 5 drug has a recommended penalty of 0 - 15 days suspension with a possible loss of purse and/or fine under the Model Rules.

        CONCLUSIONS OF LAW OF THE ARKANSAS RACING COMMISSION

      Based on the testimony and evidence presented, the Commission makes the following conclusions of law:
      1. DMSO is a prohibited drug under the Commission’s rules.
      2. Under the Commission’s rules, if a dog tests positive for any prohibited drug, the owner forfeits the purse.
      3. The Commission does not believe that forfeiture of the purse is too severe of a penalty in this case, and notes that it is within the range of penalties recommended by the Model Rules adopted by the Association of Racing Commissioners International, Inc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Eric Z. GRILLOT v. STATE of Arkansas
    CR 01-792
    57 S.W.3d 180
    Supreme Court of Arkansas
    Opinion delivered October 25, 2001

      Ralph J. Blagg; Ed. Webb & Associates, by: Lynn D. Lisk and Pat Marshall, for appellant.
    No response.
   Per Curiam.

Appellant, Eric Z. Grillot has filed a motion for a rule on tíre clerk. In Grillot v. State, 346 Ark. 25, 53 S.W.3d 525 (2001), we ordered appellant’s attorney, Ralph J. Blagg, to file a motion for rule on the clerk in which he accepted full responsibility for not timely filing the transcript in this case. Mr. Blagg timely filed his motion, and now accepts responsibility for the late tender of the transcript.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

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

Appellant has retained other counsel, Lynn Lisk and Pat Marshall of Ed Webb and Associates, in this matter, and they have entered their appearance and motion for substitution of counsel of record. That motion is granted, and Ralph Blagg’s motion to withdraw as counsel is also granted.

The motion filed by Lynn Lisk and Pat Marshall to file a belated appeal is hereby granted. The clerk shall establish a briefing schedule.


text:
    Jacinto HENDERSON v. STATE of Arkansas
    CR 01-616
    57 S.W.3d 179
    Supreme Court of Arkansas
    Opinion delivered October 25, 2001
    Q. Byrum Hurst, Jr., for appellant.
    No response.
   Per Curiam.

Appellant Jacinto Henderson, by and through his attorney, has filed a motion for rule on clerk. Appellant’s attorney, Q. Byrum Hurst, Jr., admits in his motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Terry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986)(per curiam)).

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


text:
    Charles Anthony MARTIN v. STATE of Arkansas
    CR 01-1072
    57 S.W.3d 178
    Supreme Court of Arkansas
    Opinion delivered October 25, 2001

      Patrick Benca, for appellant.
    No response.
   Per Curiam.

Charles Anthony Martin seeks permission to file a belated appeal with this court. On October 20, 2000,

appellant entered a conditional plea of guilty to a charge of manufacturing methamphetamine after the trial court denied his motion to suppress various items of evidence. Martin’s plea agreement specifically provided, “This is a conditional plea under Ark. R. Cr. P. 24.3, and may be withdrawn upon successful appeal.” The trial court sentenced him to ten years in prison. After entering his plea, Martin advised his attorney that he wished to appeal the court’s ruling on his suppression motion. According to Martin’s affidavit accompanying the present motion, his attorney, Dale Finley, assured Martin that he would file a notice of appeal on Martin’s behalf; however, by June of 2001, Finley had not yet filed the notice. At that time, Martin verified with the Cleburne County Circuit Court that the notice of appeal had not been filed. When Martin called Finley to advise him that the record with the clerk’s office did not contain a notice of appeal, Martin further averred that Finley had assured Martin that the notice of appeal was filed or that the notice was on its way to be filed.

On October 2, 2001, Martin, through another attorney, Patrick J. Benca, filed the present application for belated appeal. The partial transcript filed the same date does not reflect that Finley ever filed a notice of appeal. Under Ark. R. App. P. — Crim. 16, trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the supreme court, unless permitted by the trial court or the supreme court to withdraw in the interest of justice or for other sufficient cause. See also Green v. State, 216 Ark. 313, 634 S.W.2d 140 (1982). Further, we have held that the failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal amounts to a denial of the defendant’s right to effective assistance of counsel and constitutes good cause for granting a belated appeal under Ark. R. App. P. — Crim. 2(e). See Woodruff v. State, 323 Ark. 448, 916 S.W.2d 104 (1996); Blakely v. State, 279 Ark. 141, 649 S.W.2d 187 (1983). To date, Finley has not filed any response to Martin’s allegations.

We remand this matter to the trial court for a hearing to settle the record in order to determine whether Martin had requested Finley to file a notice of appeal. The parties have thirty days from the date of this per curiam to settle these issues.


author: Tom Glaze, Justice.

text:
    James Edward HAYNES v. STATE of Arkansas
    CR 01-414
    58 S.W.3d 336
    Supreme Court of Arkansas
    Opinion delivered November 1, 2001

      Phyllis J. Lemons, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

James Haynes appeals from his first-degree murder conviction and life sentence, raising three points for reversal. We find that none of them has merit, and we affirm.

Malvern police responded to a call at 430 Oak Street during the late afternoon of June 29, 1999, and found two bodies in a back bedroom. One person, eighteen-year-old Shamone Haynes, was unresponsive and was pronounced dead at the scene, but the other person, James Haynes, was still breathing. As emergency medical personnel worked to stabilize him, he stated that he had shot himself and wanted to die. He also said he had shot Shamone, his niece, because he did not want Shamone “to go through all the trouble in life.” Haynes was taken to the hospital in Hot Spring County and later transported to UAMS in Little Rock.

After Haynes was arrested and charged with capital murder, the Hot Spring County Circuit Court ordered him to undergo a mental evaluation. Dr. Paul Deyoub conducted the evaluation on September 17, 1999, and concluded that Haynes was competent to stand trial and, at the time of the shootings, had been able to conform his conduct to the requirements of the law. Dr. Deyoub diagnosed Haynes with “major depressive disorder, recurrent, moderate,” and noted that he had borderline intellectual functioning, but he was never psychotic and knew right from wrong.

After Dr. Deyoub filed his report, Haynes filed a motion requesting a second, independent mental evaluation. The court ordered the second evaluation on December 10, 1999, and on February 4, 2000, Haynes was examined by Dr. Mary Wetherby. Haynes filed a notice on August 24, 2000, pursuant to Ark. Code Ann. § 5-2-304 (Repl. 1997), asserting that he intended to rely on the affirmative defense of mental disease or defect.

The trial court held a competency hearing on August 31, 2000, at the end of which, the judge ruled both sides had presented compelling evidence, and when he weighed both arguments, he could not “find one balancing any heavier than the other in favor of incompetency.” The judge ruled that Haynes was competent, and noted that the question of Haynes’ sanity at the time of the commission of the crime would be a question for the jury. Haynes was tried and convicted of first-degree murder by a jury on September 1, 2000.

Of his three points on appeal, we first consider Haynes’s argument that there was insufficient evidence to convict him of first-degree murder, since double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to the others. See Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001). A motion for a directed verdict is a challenge to the sufficiency of the evidence, and the test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id.

At trial, Haynes moved for a directed verdict at the close of the State’s case, stating as follows:

First of all, we move for a directed verdict of acquittal. The law first requires that the State prove premeditation, deliberation. And the State has failed to introduce any evidence whatsoever to establish the premeditation necessary for a conviction of capital murder. And without that having been proven this case shouldn’t go to the jury. . . . Not only on capital murder but any lesser included offenses. There has not been necessary elements to prove the offense. There is insufficient evidence totally.

Haynes again moved for a directed verdict at the close of his own case, asserting once more that the State had “failed to meet their burden to show the specific elements of capital murder or any lesser included elements.” The trial court denied the motion.

This court has held that, in order to preserve challenges to the sufficiency of the evidence supporting convictions for lesser-included offenses, defendants are required to address the lesser-included offenses either by name or by apprising trial courts of the elements of the lesser-included offenses questioned by their motions for directed verdict. See Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). In Ramaker, the defendant had been charged with capital murder but convicted of first-degree murder. Because Ramaker had failed to move for a directed verdict on the lesser-included offense of first-degree murder, this court held he was procedurally barred from challenging the sufficiency of the evidence on appeal. See also Webb v. State, 328 Ark. 12, 941 S.W.2d 417 (1997); Jordan v. State, 232 Ark. 628, 917 S.W.2d 164 (1996). In Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992), this court noted that the mens rea for first-degree murder does not require premeditation and deliberation; rather, the State need only prove that the defendant purposefully caused the death of another. Thus, the elements of capital murder and first-degree murder are different. Here, Haynes did not mention first-degree murder by name, nor did he apprise the trial court of any of the elements of first-degree murder; instead, he simply moved for directed verdict because the State had not met its burden as to “any lesser-included offenses.” In accordance with the reasoning set out in Ramaker, we hold Haynes is procedurally barred from challenging the sufficiency of the evidence.

For his second point, Haynes argues that the trial court erred in determining that he was competent to stand trial. Ark. Code Ann. § 5-2-302 (Repl. 1997) provides that “[n]o person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist effectively in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.” A criminal defendant is presumed to be competent, and the burden of proving incompetence is on the accused. Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994). The test of competency to stand trial is whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational, as well as factual, understanding of the proceedings against him. Id. On appellate review of a finding of fitness to stand trial, we affirm if there is substantial evidence to support the trial court’s finding. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996).

On this issue, the trial court was presented with conflicting expert testimony at the competency hearing. Dr. Mary Wetherby, a neuropsychologist, examined Haynes in February of 2000. From her evaluation and from interviews with Haynes’s family members and co-workers, Dr. Wetherby concluded that Haynes suffered from various deficits, including impaired memory and impaired expressive language functioning. Dr. Wetherby also noted that Haynes had been experiencing a change in personality over the two years after his son’s death, which caused Haynes to suffer from extreme depression. Her overall conclusion was that Haynes’s intelligence was in the borderline range (he scored a full-scale 73 on the Wechsler Adult Intelligence Scale), and that he had global neurological deficits that would impair his ability to assist his lawyer in his own defense. Wetherby further stated that Haynes had difficulty describing the “players” in the courtroom, and she asserted that his reasoning and expressive language deficits would affect his ability to stand trial. In conclusion, Dr. Wetherby announced her opinion that Haynes was neither competent to stand trial nor able to assist his attorney in his defense.

Dr. Paul Deyoub, who evaluated Haynes in September of 1999, three months after the murder, testified for the State. Dr. Deyoub testified that he conducted a clinical interview with Haynes in order to determine his competency to stand trial, and that although he diagnosed Haynes with having major depressive disorder and borderline intellectual functioning, Haynes was still competent to stand trial and had the ability to appreciate the criminality of his conduct. After pointing out that Haynes had not previously had any experience with the legal system, Deyoub noted that Haynes was “educable” regarding the system, and was able to relate to his attorney and to understand the participants of the legal system. Dr. Deyoub also rebutted some of Dr. Wetherby’s testimony by stating that one could “have all kinds of deficits and still be competent to proceed.”

Dr. Deyoub testified that he found no evidence of psychosis in Haynes. He noted that there was a report from a UAMS physician who consulted briefly on the case when Haynes was brought to the hospital for treatment of his self-inflicted gunshot wound, and that physician stated Haynes suffered from a “psychotic disorder, not otherwise specified.” However, Deyoub pointed out that the UAMS physician opined he was “not sure of the validity of [the] psychosis.” Further, Dr. Deyoub said that he found some indication that Haynes was malingering, or at the very least amplifying his symptoms in order to communicate how depressed he was. Deyoub’s conclusion, based in part on the Competency to Strand Trial Assessment Instrument, was that Haynes could participate in legal proceedings and help his lawyer assist in his defense. He also opined that, at the time of the offense, Haynes was able to conform his conduct to the requirements of the law.

At the conclusion of the hearing, the trial judge stated that he was impressed by Dr. Wetherby’s testing, and said that, while he had some concern about Haynes’s ability to stand trial, the judge was convinced that Haynes knew that he was being tried for the unlawful killing of Shamone. The judge said, “I’m convinced from the reports that have been introduced and the other testimony that he knows that he will be. punished if he’s found guilty.” He concluded his ruling as follows:

When I try to weigh these . . . things, I can’t find one balancing any heavier than the other in favor of incompetency. Consequently, the court’s decision is that the defendant is competent and that he will stand trial. Now, of course, the issue of insanity at the time of the commission of the offense, the legal issue, will be presented to the jury for determination of the facts. I can’t say so I must rule in favor of the State. In other words, I must rule against the defense because the burden of proof is on the defense. And I find the evidence to be pretty equally balanced with some very positive things both ways. But the greater weight of the aspects are in favor of competency.

Thus, faced with conflicting expert testimony, the trial court decided Haynes had not met his burden of proof.

This court will affirm a trial court’s finding of competency if there is substantial evidence to support that finding; here, Dr. Deyoub testified that Haynes was able to identify the charges against him and understand the basic functioning of the court system. The law does not require an accused to identify with specificity the charges filed against him. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996). Rather, § 5-2-302 requires that an accused have the capacity to “understand the proceedings against him.” Id. That threshold was met here, as Dr. Deyoub rendered his opinion that Haynes understood the fundamental nature of the proceedings. Therefore, the trial court’s finding that Haynes was competent to stand trial is supported by substantial evidence.

For his last point, Haynes argues that the trial court erred in denying his motion for a directed verdict of acquittal on his affirmative defense of mental disease or defect. At the close of his case, Haynes moved for directed verdict, asserting that he had “met [his] burden of proof by a preponderance of the evidence as to the mental disease or defect.” The trial court denied the motion both times.

Ark. Code Ann. § 5-2-312(a) (Repl. 1997) provides that “[i]t is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged, he lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirement of law or to appreciate the criminality of his conduct.” Further, Ark. Code Ann. § 5-1-111(d) (Repl. 1997) provides that a defendant must prove an affirmative defense by a preponderance of the evidence. See also Mask v. State, 314 Ark. 25, 86 S.W.2d 91 (1993) (once the State meets its burden of proving the elements of an offense beyond a reasonable doubt, the burden shifts to the defendant to prove an affirmative defense by a preponderance of the evidence).

On appeal, our standard of review of a jury verdict rejecting the insanity defense is whether there was any substantial evidence to support the verdict. Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998). Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Id. Moreover, this court will affirm the jury’s verdict if there is any substantial evidence to support the verdict. Id.

Haynes recites the evidence adduced at trial and then merely asserts that he met his burden of proof by a preponderance of the evidence. That evidence consisted of Dr. Wetherby’s essential repetition of the testimony she gave at the pretrial competency hearing. She noted that Haynes had been diagnosed at UAMS as having “psychotic disorder, not otherwise specified,” and she pointed out that Haynes had been having aural and visual hallucinations at the time of the shooting. Dr. Wetherby also testified that Haynes was not fully oriented when she interviewed him, i.e., that although he was aware of who he was and generally where he was, he did not know the season, date, day, state, country, town or specific location. She also testified as to the battery of tests she conducted on Haynes and concluded again that he suffered from numerous severe neuropsychological deficits, and thus could not appreciate the criminality of his conduct and could not appreciate the wrongfulness of what he was doing when he shot Shamone.

Haynes’s mother, Pearline Murdock, also testified at trial. She averred that Haynes had undergone a personality change after his son was murdered and that he was extremely depressed and nervous. Murdock asserted that Haynes would not have shot Shamone “unless he snapped or something. This was totally out of control.”

The State called Dr. Deyoub on rebuttal, and he reiterated much of his earlier testimony given at pretrial and during the State’s case-in-chief. He testified that he had conducted a forensic evaluation on Haynes, and he concluded that, although Haynes was depressed, he was not psychotic, and he could conform his conduct to the requirements of the law at the time of the shooting.

This court has upheld a trial court’s denial of a motion for directed verdict on the affirmative defense of mental disease or defect, even where the medical testimony was uncontroverted that the defendant was a paranoid schizophrenic. See, e.g., Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). In that case, this court wrote that it recognized that the medical evidence on the issue of insanity was highly persuasive; however, the court continued as follows:

It has consistendy been held . . . that a jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses. Even when several competent experts concur in their opinions, and no opposing expert evidence is offered, the jury is bound to decide the issue upon its own judgment. Testimony by expert witnesses is to be considered by the jury in the same manner as other testimony and in light of other testimony and circumstances in the case. The jury alone determines what weight to give the evidence, and may reject it or accept all or any part of it they it believes to be true. Robertson v. State, 304 Ark. 332, 802 S.W.2d 448 (1991); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979).

Davasher, 308 Ark. at 170. See also Burns v. State, 323 Ark. 206, 913 789 (1996); Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995).

Because there was conflicting testimony on the question of Haynes’s mental state at the time of the offense, the trial court properly permitted the factual question to go to the jury. See, e.g., Franks v. State, 306 Ark. 75, 811 S.W.2d 301 (1991). Here, the jury apparently gave more weight and credibility to the testimony offered by Dr. Deyoub; it was entirely within its province to do so. See Davasher, supra.

The record has been examined for other error pursuant to Ark. Sup. Ct. R. 4-3 (h) and none was found. Therefore, we affirm.

BROWN, J., concurs.


author: Donald L. Corbin, Justice.

text:
    Ross D. GLOVER and Debbie Glover v. WOODHAVEN HOMES, INC.
    01-175
    57 S.W.3d 211
    Supreme Court of Arkansas
    Opinion delivered November 1, 2001

      Dover & Dixon, PA., by: David A. Couch, for appellants.

      Jon Johnson, for appellee.
   Donald L. Corbin, Justice.

This appeal raises an issue of first impression as to the date that interest begins to accrue on a judgment, following a remand and modification by an appellate court. Appellee Woodhaven Homes, Inc., asserts that the chancellor was correct in finding that the interest began to accrue on June 12, 1997, the date that the original judgment was entered. Appellants Ross and Debbie Glover contend that the relevant date is January 19, 2000, the date that the judgment was modified by the Arkansas Court of Appeals. Alternatively, Appellants argue that it is irrelevant when the interest began to accrue because they already tendered a check to Appellee in full accord and satisfaction of the judgment. They argue that the chancellor erred in finding no accord and satisfaction. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(b)(1). We find no error and affirm.

This case originated in a lawsuit filed by Appellee to recover' amounts due under a home-construction contract. The case was tried in the chancery court and resulted in a judgment for Appellee in the amount of $29,435.31, plus attorney’s fees of $2,500.00. Appellants appealed the judgment, and the court of appeals remanded the case with instructions for the chancellor to clarify the manner in which he calculated the damages. See Glover v. Woodhaven Homes, Inc., CA 98-1 (Ark. App. September 30, 1998) (Glover I). Upon remand, the chancellor found that the recalculation showed that Appellee was actually entitled to judgment in the amount of $30,005.75, plus attorney’s fees. On appeal, the court of appeals affirmed the judgment for Appellee, but modified the amount to $24,940.53. See Glover v. Woodhaven Homes, Inc., CA 99-388 (Ark. App. January 19, 2000) (Glover II).

Following the decision in Glover II, the chancery court held a hearing on the issue of when interest on the judgment began accruing. Appellants argued that Glover I reversed and vacated the original judgment, such that it no longer existed. Appellants asserted that interest did not begin accruing until January 19, 2000, the date that the decision in Glover II was delivered. The chancellor rejected Appellants’ arguments and awarded interest on the judgment, as modified on appeal, from the date of the original judgment, June 12, 1997. The chancellor found that Glover I, although styled as a reversal and remand, did not reverse the original judgment, but only remanded the matter for clarification as to how the damages were calculated. The chancellor reasoned that because the first appeal was not a reversal of the merits of the case, the initial judgment against Appellants was never reversed or vacated. Thus, the chancellor found that neither decision from the court of appeals amounted to a reversal of the judgment in favor of Appellee, and that, accordingly, it was proper to award postjudgment interest from the date that the original judgment was entered.

On appeal, Appellants argue that the chancellor erred in finding that interest began accruing from the date of the original judgment. We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Forrest Constr., Inc. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001); Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. With this standard in mind, we review Appellants’ argument.

The issue presented in this appeal is one of first impression in Arkansas: When does interest begin to accrue on a judgment that has been appealed? We conclude that when the appellate decision does not result in an actual reversal of the judgment, the interest begins accruing from the date of the original judgment. We find support for our conclusion in decisions from other jurisdictions.

In Kneeland v. American Loan & Trust Co., 138 U.S. 509 (1891), the Supreme Court held that in determining whether the original judgment was reversed, courts should look beyond the descriptive language used in an appellate decision and ascertain the actual effect of the decision. There, the Court held that the first appeal, although styled as a reversal, was not a true reversal, because all that remained on remand was for the trial court to strike part of the award. The Court held:

While the former decrees were in terms reversed, and the cases remanded for the entering of new decrees, yet the terms of those new decrees were specifically stated; and, in so far as the separate and distinct matters embraced in the former decrees were ordered to be incorporated into the new, it is to be regarded as pro tanto an affirmance. Equity regards the substance, and not the form. The rights of parties are not to be sacrificed to the mere letter; and whether the language used was reversed, modified, or affirmed in part and reversed in part is immaterial. Equity looks beyond these words of description to see what was in fact ordered to be done.

Id. at 511-12 (emphasis added).

Similarly, the California Supreme Court has held that “[i]t is not the form of the order on the first appeal that controls but the substance of that order.” Snapp v. State Farm Fire & Cas. Co., 388 P.2d 884, 887 (Cal. 1964). Citing to Stockton Theatres, Inc. v. Palermo, 360 P.2d 76 (Cal. 1961), the court held that when a judgment is reversed on appeal, the new award subsequently entered by the trial court can bear interest only from the date that the new judgment is entered. Conversely, when a judgment is modified on appeal, either upward or downward, the new amount draws interest from the date of entry of the original order. In Snapp, the plaintiffs had been granted judgment in the amount of $8,168.25. The appellate court reversed the judgment, with directions to the trial court to enter judgment in the full amount of the insurance policy. In the second appeal, the insurance company argued that the trial court was correct to award interest only from the date of the order entered on remand. The supreme court disagreed, holding that the first appeal was, in law and in fact, a modification of the original judgment, as no issues remained to be determined on remand and no further evidence was necessary. The court thus concluded that interest on the modified amount commenced on the date of the original judgment.

More recently, in Ulibarri v. Gee, 764 P.2d 1326 (N.M. 1988), the Supreme Court of New Mexico cautioned that courts must not disregard the substance of an appellate order in deference to its form. The court explained:

The basic rule is that when this Court reverses and effectively wipes out all or a portion of a judgment, rendering it a nullity, and remands for new findings and the award of damages through the exercise of discretion, then interest accrues from the date of the new judgment; but with mere modification, interest accrues from the date of the original judgment.

Id. at 1326. The court thus rejected a mechanical approach to viewing appellate decisions based solely on the terms of art used therein, in favor of the approach set out by the Supreme Court in Kneeland, 138 U.S. 509.

As stated above, this court has never addressed the issue of computation of postjudgment interest following a reversal by an appellate court. However, in Mothershead v. Douglas, 221 Ark. 756, 255 S.W.2d 953 (1953), this court awarded interest from the date of the original order following modification of the judgment on appeal. That case was the fourth appeal from a suit brought by corporate directors against the corporation to foreclose on a mortgage that the directors had purchased to pay off a debt owed by the corporation. The trial court initially found in favor of the directors and ordered foreclosure. On appeal by the intervening stockholders, this court reversed the judgment of foreclosure. See Mothershead v. Douglas, 215 Ark. 519, 221 S.W.2d 424 (1949). While that appeal was pending, however, one of the directors, Douglas, had disposed of some of the foreclosed property. On remand, the chancery court entered judgment against the director, but only for the amount of the property that he or his agent had sold. This court again reversed and directed the chancellor to enter judgment for the full amount of the foreclosure bid. See Mothershead v. Douglas, 219 Ark. 457, 243 S.W.2d 761 (1951). Thereafter, the chancery court entered judgment as instructed by this court, and the stockholders again appealed. In the final appeal, this court modified the amount of the judgment and ordered that interest be awarded from the date of the original judgment confirming the foreclosure sale. This court held:

The record, when this case was before us in our original opinion, above, 215 Ark. 519, 121 S.W.2d 424, shows that the property here involved was sold to and confirmed in E. P. Douglas and the other above named plaintiffs on October 7, 1948, and therefore the interest (as indicated) must be computed from that date.

221 Ark. at 759, 255 S.W.2d at 954 (emphasis added).

From the foregoing holdings, we conclude that when a judgment is affirmed in a modified amount, the new amount draws interest from the date of the original judgment. When, however, the judgment is reversed on appeal, any new award subsequently entered by the trial court may bear interest only from the date that the new judgment is entered. In determining whether an appellate decision is a reversal or merely a modification, we agree with the Supreme Court that we must look not only to the words used therein, but also to the legal effect of the decision. In other words, we are persuaded that the rights of the parties must not be sacrificed by placing form over substance.

Applying these principles to the present case, we conclude that the chancellor was correct to award postjudgment interest from the date of the original judgment. The first appeal, although styled as a reversal and remand, amounted to nothing more than a remand for clarification. Indeed, the opinion specifically reflects the inability of the appellate court to reach the merits of the case, because it was unable to understand how the chancellor arrived at the amount of damages that he awarded. The opinion did not instruct the chancellor to decide any new issues or hear any additional evidence. This conclusion is supported by the language of the second appeal, wherein the court of appeals explained the effect of its first decision:

The remand was therefore limited to clarification of the method used to determine damages and to correction of any erroneous calculations. Beyond that, it was not intended to permit the chancellor to revisit and revise his findings for any other purpose or with any other motivation.

Glover II, CA 99-388, slip op. at 9 (emphasis added).

In sum, the first appeal did not, in any way, reverse or vacate the original judgment entered in favor of Appellee. Moreover, the second appeal was a mere modification of the amount of the judgment awarded to Appellee. Accordingly, because neither the first nor the second appellate decisions amounted to a reversal of the chancellor’s original judgment in favor of Appellee, it was proper to award postjudgment interest from the date of the original judgment. The chancellor was thus correct to look beyond the precise styling of the appellate decisions to determine their legal effect. In reaching our conclusion, we are mindful that the purpose of awarding postjudgment interest, which is governed by Ark. Code Ann. § 16-65-114(a) (1987), is to compensate judgment creditors for the loss of the use of money adjudged to be due them. Estate of Otto v. Estate of Fair, 316 Ark. 674, 875 S.W.2d 487 (1994). We thus affirm the chancellor’s ruling on this point.

Likewise, we affirm the chancellor’s finding that Appellants failed to prove their claim of accord and satisfaction. Appellants claimed below that following the second appeal, they tendered a cashier’s check in the amount of $25,463.90, drawn on Metropolitan Bank, to Appellee’s attorney in full satisfaction of the modified judgment. Appellants claimed tbat they heard nothing from Appellee on the matter until two weeks later when they learned that the check had been used to purchase a certificate of deposit at Metropolitan Bank. Appellants contended that Appellee’s failure to return the check or otherwise respond to the offer demonstrates its acceptance. The chancellor disagreed, finding that the check was never cashed by Appellee and was not accepted by Appellee as full settlement of Appellants’ obligation.

“Accord and satisfaction” is defined as a settlement in which one party agrees to pay and the other to receive a different consideration or a sum less than the amount to which the latter considers himself entitled. Fort Smith Serv. Fin. Corp. v. Parrish, 302 Ark. 299, 789 S.W.2d 723 (1990) (citing Jewell v. General Air Conditioning Corp., 226 Ark. 304, 289 S.W.2d 881 (1956)). The essential elements to prove accord and satisfaction are: (1) proper subject matter; (2) competent parties; (3) an assent or meeting of the minds; and (4) consideration. Smith v. Leonard, 317 Ark. 182, 876 S.W.2d 266 (1994). The key element is a meeting of the minds, such that there must be an objective indicator that the parties agreed that the payment tendered will discharge the debt. Parrish, 302 Ark. 299, 789 S.W.2d 723. Accord and satisfaction is an affirmative defense that must be proved by the party asserting it. Ark. R. Civ. P. 8(c); Parrish, 302 Ark. 299, 789 S.W.2d 723.

The evidence in this case falls woefully short of demonstrating that there was a meeting of the minds of the parties. To the contrary, the evidence shows only that Appellants tendered a cashier’s check to Appellee’s representative, and that the check was never returned to Appellants. There is no evidence showing that Appellee’s representative cashed the check or otherwise accepted the proceeds as full satisfaction of the judgment. During the hearing below, Appellee’s attorney explained that when he received the check, he contacted the bank and reported that the check was not sufficient to cover the judgment. The bank then instructed him to return the check to the bank, at which time the bank would issue a certificate of deposit and hold the money until a decision could be made by the chancery court. The chancellor evidently found this explanation credible, and we defer to the chancellor’s superior position to observe the parties before him. See Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). In short, it was Appellants’ burden to prove that the parties agreed that the amount tendered satisfied the judgment in full. Because they failed to present such proof, we cannot say that the chancellor’s finding on this issue was clearly erroneous.

Affirmed.