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

text:
    Michael Douglas HATFIELD v. STATE of Arkansas
    CR 01-285
    57 S.W.3d 696
    Supreme Court of Arkansas
    Opinion delivered October 25, 2001
    [Petition for rehearing denied December 6, 2001.]

      Henry & Cullen, L.L.P., by: Mark Murphy Henry, for appellant.

      Mark Pryor, Att’y Gen., by: Misty Wilson Borkowski, Ass’t Att’y Gen., for appellee.

       Brown, J., would grant.

   Tom Glaze, Justice.

Michael Hatfield challenges his convictions for rape and kidnapping, for which he was sentenced to life in prison. On appeal, he does not challenge the sufficiency of the evidence. The point he argues is that the trial court erred in failing to obtain his knowing and intelligent waiver of his right to counsel and in permitting him to proceed pro se at trial. This appeal requires us to determine two issues: first, whether or not Hatfield waived his right to counsel; and second, whether he subsequently relinquished his right to self-representation by permitting his attorney to conduct portions of the trial.

Hatfield was charged by information with one count each of kidnapping and rape. The charges stemmed from the abduction of a twelve-year-old girl on September 3, 1999. The information was filed on September 10, 1999, and on September 14, 1999, the trial court appointed public defender Dave Harrod to represent Hatfield. At that time, Hatfield entered a plea of not guilty by reason of mental disease or defect and requested a mental evaluation. Harrod continued to represent Hatfield throughout a number of pretrial hearings, and at a hearing on August 1, 2000, Harrod again announced that they were ready for trial, which was scheduled for August 7, 2000. On August 4, 2000, however, Hatfield filed a letter with the circuit court in which he declared that he had “fired Dave Winslow Harrod as my public defender for conflict of interest and disagreement over trial and case management,” and requested that the court appoint him a different public defender.

Hatfield’s jury trial began on August 7, 2000. That morning, Harrod mentioned Hatfield’s motion, and noted that the court had “indicated by order back to Mr. Hatfield that he either had to use the public defender he was assigned or represent himself.” Harrod also said that Hatfield had “indicated . . . that what he’d like to do if at all possible . . . since he’s unfamiliar with voir dire is for me to sit in and assist in the jury selection and then he would like to represent himself in open court with the jury.” Hatfield agreed with this assessment of the situation, and after addressing several other motions, the court and counsel had the following exchange:

The COURT: Well, you know even if we follow this procedure with you picking the jury then Mr. Hatfield proceeding with the trial. Then you’ll be present during the entire trial and available so he can consult you as necessary. And also, you know, if he wants you to question any witnesses or do anything on his behalf. You’re available to do that; you’re going to be available stand-by.
Mr. Harrod: Well, I didn’t believe that I was going to be able to go fishing, Judge. My assumption was that if he’s going to go ahead and do the trial himself so as not confuse him I can sit aside and if he needs to consult then he can ask the court for a moment and we can confer, and, and — and it should be an orderly process.
The COURT: As long as you’re available.
Mr. Harrod: Yes, sir.
H: H* H* ‡
Mr. HARROD: Judge, I don’t believe there’s anything else that needs to be taken up with regard to the defense. And the defense would be prepared to go forward.
The COURT: Anything else by the State?
PROSECUTOR: We’d ask for just a few minutes to find some cases on . . . the court relieving Mr. Harrod. Because there are some questions and some steps that the supreme court has said that the court has to go through.
THE COURT: Well, he hasn’t been relieved. It’s just that . . .
Prosecutor: He just wants to try his own case.
The Court: Right.
PROSECUTOR: And Mr. Harrod will be here to make objections and . .
Mr. HARROD: Well, not exactly. I’ll be here . . .
The Court: Right, and to consult with.
Mr. HARROD: I’ll — I’ll be available if he’s got a question and or if, you now, if there’s some critical advice he needs, but I’m not going to interfere with his trying the case.
The COURT: Or to proceed with the case if he so elects to allow you to do that.
Mr. Harrod: Whatever, Judge. Yes, sir.
The COURT: So you’re still counsel on the case.
Mr. HARROD: Yes, sir. I just — I just want [it] clear, Judge, that Mr. Hatfield’s desire is to proceed with the case in his own fashion. And his method does not match the defense method, and rather than appear at loggerheads I think his decision to go forward is is reasonable. And I — I think that sitting in a position where I can, you know, if he calls I can be of assistance. I don’t mind doing that a bit. If there’s any question that comes up on his part I don’t mind answering that at all. This is not personal, it’s just — just a —
The Court: Trial strategy.
Mr. Harrod: Trial strategy and case methodology management dis disagreement.
The COURT: Anything further for the State?
PROSECUTOR: Your honor, there’s not anything further as far as on the motions.

(Emphasis added.) After this exchange, attorney Harrod proceeded to conduct voir dire, which occupied the first day of trial. On the second day, Hatfield gave his own opening statement, and conducted cross-examination of six of the State’s eleven witnesses who testified that day.

On appeal, Hatfield argues that he was not given the opportunity to knowingly and intelligently waive his right to counsel. The right of a criminal defendant to proceed pro se was delineated in Faretta v. California, 422 U.S. 806 (1975), where the Supreme Court held that “in order to represent himself, the accused must knowingly and intelligently forgo those relinquished benefits [traditionally associated with the right to counsel].” Faretta, 422 U.S. at 835. The Court further stated that, although a defendant need not have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he “should be made aware of the dangers and disadvantages of self-representation so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Id. (citing Adams v. United States ex ret. McCann, 317 U.S. 269 (1942)). In Faretta, the Court also concluded that a defendant’s technical legal knowledge, as such, is not relevant to an assessment of his knowing exercise of the right to defend himself.

Likewise, this court has long recognized the crucial aspect of informing an accused of his right to represent himself, along with the attendant risks. See, e.g., Williams v. State, 153 Ark. 289, 239 S.W. 1065 (1922); Slaughter v. State, 240 Ark. 471, 400 S.W.2d 267 (1966); Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). Furthermore, our court has held that the trial court maintains a weighty responsibility in determining whether an accused has knowingly and intelligently waived his right to counsel. Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989) (citing Johnson v. Zerbst, 304 U.S. 458 (1938)); Murdock v. State, 291 Ark. 8, 722 S.W.2d 268 (1987). Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights, Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995), and the burden is upon the State to show that an accused voluntarily and intelligently waived his fundamental right to the assistance of counsel. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). Determining whether an intelligent waiver of the right to counsel has been made depends in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused. Oliver, 323 Ark. at 749; Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998).

A criminal defendant may invoke his right to defend himself pro se provided that (1) the request to waive the right to counsel is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. Collin's v. State, 338 Ark 1, 991 S.W.2d 541 (1999); Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999) . A specific warning of the dangers and disadvantages of self-representation, or a record showing that the defendant possessed such required knowledge from other sources, is required to establish the validity of a waiver. Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999) (citing Scott, infra). The “constitutional minimum” for determining whether a waiver was knowing and intelligent is that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forego the aid of counsel. Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1980) (quoting Patterson v. Illinois, 487 U.S. 285 (1988)).

Hatfield’s argument in the instant appeal is that the trial court did not sufficiently advise him of the possible consequences of proceeding pro se. Indeed, it is apparent from the record that the trial court made no inquiry into Hatfield’s understanding of the risks and dangers of representing himself, even though attorney Harrod volunteered to the court that Hatfield’s “case methodology” did not match the “defense method.” While an assessment of how well or poorly Hatfield mastered the intricacies of the law is not relevant to an assessment of his knowing exercise of the right to defend himself, see Faretta, supra, it is evident from the record that, from his conduct before and during trial, he could not have understood the disadvantages or risks he was about to undertake when assuming control of his own defense. Indeed, Hatfield’s cross-examination of several of the witnesses reveals his lack of comprehension of the fundamentals of trial procedure. For example, his examination of the victim’s mother was rambling, and much of it was irrelevant. The prosecutor objected repeatedly to his questioning, and Hatfield became increasingly flustered, at one point asking the court, in reference to the State’s objections, “Is this going to be the entire trial? Object. Object. Object.” Later in the day, as deputy sheriff Richard Houchin testified about photographs of footprints taken at the crime scene, Hatfield essentially incriminated himself during the following exchange:

Hatfield: Okay. And, ah, what about the tracks?
HOUCHIN: I made no reference to whose footprints they were. That’s a true statement.
Hatfield: Sure you did. Sure you did. I’ve got a ■— I’ve got lab number . . . 9912060391K87. What that is — is a copy of my left and right shoe print.

Clearly, Hatfield was unaware of the fundamentals of trial strategy, nor was he aware as to how to conduct cross-examination of the witnesses. Since Hatfield never intended to offer witnesses in his own defense, and his entire case was dependent upon the cross-examination of the State’s witnesses, the trial court should have made Hatfield aware of the dangers and disadvantages in representing himself, as required by Faretta. In prior cases, this court has held that the trial court’s failure to make such an inquiry constituted reversible error. See, e.g., Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995); Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1989); Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989). Here, because the trial court allowed stand-by counsel to remain in the case, it did not make even a limited inquiry into the defendant’s understanding of the legal process before permitting Hatfield to represent himself. This was clearly error on the trial court’s part.

The State, however, urges this court to conclude that, even if the trial court failed to conduct the relevant inquiry, there was still no reversible error because Hatfield effectively relinquished representation to his standby counsel. In other words, the State contends that any deficiencies in the trial court’s Faretta inquiry were rendered moot by attorney Harrod’s active participation throughout the trial, and Hatfield thereby waived his right to proceed pro se. The State points out that Harrod conducted each of the thirteen pretrial hearings in this case. At most of these hearings, Harrod requested continuances, and on March 14, 2000, Harrod announced that he was ready for trial as soon as the State finished producing evidence. At the May 9, 2000, pretrial hearing, Harrod took up a number of motions for Hatfield, including a request that he not be made to go to trial in prison clothing and a motion requesting individual voir dire. Harrod also spent a good deal of time at the May 9 hearing discussing the State’s DNA evidence and the fact that the FBI had not been forthcoming in their test results, and, on the first day of trial, Harrod engaged in voir dire on Hatfield’s behalf. While Hatfield conducted the second day of trial, cross-examining a number of the State’s witnesses that day, on the third day, however, Hatfield became ill and asked the court if Harrod could continue the trial for him, as follows:

Mr. Hatfield: Your Honor, I’ve . . . come down sick. . . . [I]nstead of postponing the trial and going to the doctor I can . . . get a trash can over here in case I have to throw up and I’m requesting that Dave [Harrod] continue the rest of the trial. Ah, we have no — we had no disagreement as far as legal procedures from this point on. It’s just the DNA and the hair samples and maybe a few other witnesses. No problem there. And we just go ahead and resolve this today or tomorrow whenever it’s going to be over.
The COURT: Okay. The court will allow Mr. Harrod to proceed then since you all are acting as co-counsel together.
Mr. Hatfield: Okay. Is that okay with you?
Mr. Harrod: Your Honor, if. . .
PROSECUTOR: Do what the judge tells you.
Mr. Hatfield: Okay.
Mr. Harrod: ... if that’s going to be the case, . . . counsel was informed of this about four minutes before trial started. Ah, the records that I have are not laid out or set up, ah, for the witnesses coming in. I’d ask for a twenty minute recess to get set up.
The COURT: Yes, the court will permit you to get your stuff set up then.

Harrod finished the rest of the trial, cross-examining four of the nine witnesses called by the State that day, including the DNA experts — who offered the most conclusive evidence regarding Hatfield’s guilt — and moving for a directed verdict at the close of the State’s case. That motion was denied, and Harrod rested the defense’s case without calling any witnesses. He again moved for a directed verdict, and it was once more denied. Harrod also offered several proposed jury instructions to the court, and delivered the closing argument. Harrod asked to poll the jury when it returned with its verdict, raised objections to testimony offered by one of the State’s witnesses during the sentencing phase, informed the court that Hatfield would not call any sentencing witnesses, and offered a closing argument to the jury at the sentencing phase.

These circumstances bring us to the State’s counterargument: did Hatfield relinquish his representation to attorney Harrod? The State submits that once a defendant invokes his right to self-representation, he may subsequently waive that right when he “invites or agrees to any substantial participation by [stand-by] counsel.” See McKaskle v. Wiggins, 465 U.S. 168 (1984); see also United States v. Heine, 920 F.2d 552 (8th Cir. 1990). Also in support of this argument, the State cites Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996), and Calamese v. State, 276 Ark. 422, 635 S.W.2d 261 (1982). In Oliver, this court held that the trial court’s failure to inquire into Oliver’s financial ability to hire counsel was error, but still concluded that, because the stand-by counsel provided active representation of the defendant, it would be “hard put to hold that Oliver was denied his right to counsel.” Oliver, 323 Ark. at 751-52. Likewise, in Calamese, the defendant repeatedly asserted to the trial court that she wanted to proceed pro se, and the record was in fact silent as to whether or not the trial court inquired into attempted waiver of counsel. However, Calamese’s “stand-by” attorney immediately assumed an active role as her trial attorney, examining all of the witnesses, making objections to evidence, and presenting a lengthy defense. This court held that the trial court’s error in fading to conduct an inquiry was rendered moot by Calamese’s subsequent relinquishment of the trial to her attorney.

We agree with the State’s arguments. We note that in Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999), we held that the question of whether or not the assistance of stand-by counsel rises to a level where the defendant is deemed to have had counsel for his defense, thereby mooting any assertion of involuntary waiver, is a question that must be answered by looking at the totality of the circumstances. Bledsoe, 337 Ark. at 410 (citing Oliver, supra; Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995)). Our cases on this issue demonstrate that the assistance must be substantial, such that counsel was effectively conducting a defense. Id. (citing Oliver, supra, and Calamese, supra).

In Bledsoe, this court first held that the trial court erred in failing to explicitly inform the defendant of his constitutional right to an attorney. However, the State in that case, as it does here, argued that, even if the trial court failed to inform the defendant of the risks of proceeding pro se, there was still no error because Bledsoe relinquished representation to his stand-by counsel. The Bledsoe court disagreed. There, counsel did not actively participate in the defense during most of the trial; Bledsoe, rather than his lawyer, cross-examined twenty-four of the State’s twenty-five witnesses, raised and argued the only substantive objections during the trial, and presented his own closing argument. While counsel conducted voir dire and gave the opening statement, this court held that the attorney “effectively relinquished” representation to Bledsoe once the State began to call witnesses. Further, although counsel’s participation increased at the end of Bledsoe’s trial, when he reviewed the jury instructions and handled the sentencing phase, this court maintained that Bledsoe was essentially left to represent himself during most of the proceedings.

Here, Hatfield’s trial performance only included opening statement and cross examination of six witnesses; however, every other stage of the defense was handled by counsel, Harrod. While the dissenting opinion goes to some length in assessing Hatfield’s deficiencies in presenting his defense, such deficiencies are not relevant to a Faretta inquiry, nor are they relevant when deciding whether he relinquished his representation to Harrod and whether Harrod’s representation or assistance was substantial. To summarize, Harrod handled all pretrial matters, including thirteen hearings, a full day of voir dire of the jury, the cross examination of four state witnesses (including the DNA experts), moving for directed verdict, making closing argument, offering proposed jury instructions, raising objections, and making closing argument at the sentencing stage of trial. Unquestionably, Harrod, at Hatfield’s request, provided Hatfield effective substantial legal assistance in conducting his defense. Certainly, Harrod could have been in a better position to present Hatfield’s defense if Hatfield had not chosen to make an attempt to proceed pro se; nonetheless, when it came to the actual presentation of his case, he relinquished full discretion to Harrod as to how to conduct significant trial procedures and responsibilities during two of the three days of trial.

The record in this case has been reviewed for other reversible error in accordance with Ark. Sup. Ct. R. 4-3 (h), and none has been found. For the aforementioned reasons, the judgment of conviction is affirmed.

BROWN, Imber, and Thornton, JJ., concur in part and dissent in part.

Robert L. Brown, Justice,

concurring in part; dissenting in part. I agree with the majority that it was error for the trial court not to inquire into Hatfield’s understanding of the legal process and the serious implications of self-representation. Thus, I, too, conclude that there was no knowing or intelligent waiver of his right to counsel. See Faretta v California, 422 U.S. 806 (1975); Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999).

Where I part company with the majority is on whether Hatfield, after he decided to represent himself, relinquished his representation to standby counsel, Dave Harrod. The test for this determination is whether standby counsel’s assistance at trial was substantial such that counsel was effectively conducting a defense. Bledsoe v. State, supra; Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996); Calamese v. State, 276 Ark. 422, 635 S.W.2d 261 (1982). While Dave Harrod did assist as counsel for voir dire and the third day of the trial, I cannot conclude that he effectively conducted a defense. Accordingly, this case turns on whether Hatfield knowingly and intelligently waived his right to counsel. As already stated, I do not believe he did.

What the trial court created in this case was a hybrid situation. Harrod was not relieved as counsel. Yet Hatfield was allowed to try his own case because his defense strategy differed from that of his standby counsel’s:

The Court: So you’re still Counsel on the case.
Standby Counsel: Yes, sir. I just — I just want to [be] clear, Judge, that Mr. Hatfield’s desire is to proceed with the case in his own fashion. And his method does not match the Defense method and rather than appear at loggerheads I think his decision to go-forward is — is reasonable. And I — I think that sitting in a position where I can, you know, if he calls I can be of assistance. I don’t mind doing that a bit. If there’s any question that comes up on his part I don’t mind answering that at all. This is not personal it’s just — just a —
The Court: Trial strategy.
Standby Counsel: Trial strategy and case methodology management dis — disagreement.

The result was that Hatfield represented himself in opening statement and through the first eleven witnesses. The results were catastrophic as evidenced by Hatfield’s admission that his footprints were at the crime scene:

Hatfield: Okay. And, ah, what about the tracks?
Deputy Sheriff: I made no reference to whose footprints they were. That’s a true statement.
Hatfield: Sure you did. Sure you did. I’ve got a — I’ve got lab number 991202, ah, 9912060391K87. What that is — is a copy of my left and right shoe print.

At trial, Hatfield questioned all of the State’s witnesses until the third day of the trial. All told, there were twenty-one witnesses. Of those witnesses, eleven were handled solely by Hatfield. Those eleven witnesses included seminal witnesses for the prosecution, including forensic witnesses:

• Cordellia Ireland, victim’s mother;
• State Police Trooper Dustin Rogers, regarding arrest;
• FBI Agent Daniel Wehr, regarding 29 exhibits from crime scene;
• Sheriff Detective Jack Allen, regarding fingerprints;
• Sheriff Detective Terry Ward, regarding rape exam;
• FBI fingerprint specialist, Kenneth Dunn, regarding fingerprints;
• Sheriff Deputy Lonnie Massey, regarding transporting victim to hospital;
• Sheriff Deputy Richard Houchin, regarding chain of custody for crime scene exhibits (20 exhibits admitted without objection);
• Medical Resident Gwynetta Collins, regarding rape kit and rape exam;
• FBI Lab Instructor Monica Knuckles, regarding chain of custody; and
• State Police Criminal Investigator Lorelei Sellers, regarding victim interview and condition.

It was the forensic evidence that was most damning in Hatfield’s case. Hatfield, of course, knew nothing about chain of custody, the handling of a rape kit, fingerprint matchups, or specialized scientific forensic testimony that the State adduced during the time Hatfield was at the helm of his own defense. As a result, I am hard-pressed to conclude that standby counsel effectively conducted a defense. Not only did he not make the opening statement or cross-examine the State’s first eleven witnesses, he called no witnesses for the defense at all.

The majority relies heavily on the Oliver and Calamese cases, but the facts in those cases are easily distinguishable from the facts of this case. This court observed in the Bledsoe decision:

In Calamese, supra, there was no evidence of any inquiry by the trial court into the appellant’s attempted waiver of counsel, but we determined that the appellant had been effectively represented at trial by the attorney appointed to assist her. We noted that the attorney “immediately assumed a fully active role as trial attorney, conducting the entire interrogation, cross-examination, making objections to evidence and exhibits, presenting a defense with numerous exhibits and four defense witnesses, including eliciting lengthy testimony from the defendant and making a forceful closing argument, all of which was done with evident familiarity.” Id. Under those facts, we held that appellant was not left to represent herself at any stage of the proceedings, and she was not denied her right to counsel. Id.
Similarly, in Oliver, supra, no effective waiver was obtained when the defendant elected to proceed pro se and standby counsel was appointed to assist during trial. As in Calamese, we affirmed the conviction where, with the exception of the defendant’s cross-examination of the first State witness, standby counsel cross-examined each State witness, made objections during the State’s case, and presented a motion for directed verdict at the conclusion of the State’s case. Id. Further, standby counsel recalled the State’s first witness and examined him as well as the remaining six defense witnesses. Id. Counsel also made the closing argument. Id. Under such circumstances, we held that the defendant was not denied his right to counsel because standby counsel not only advised the defendant but “actively represented him during most of the proceeding,” and the defendant “effectively relinquished representation to his standby counsel” early in the trial. Id. (emphasis added).

Bledsoe, 337 Ark. at 410-11, 989 S.W.2d at 514.

Mounting a substantial and effective defense means more than cross-examining State witnesses the third day of the trial. In Calamese, defense counsel presented numerous witnesses and exhibits, made objections throughout the trial, and put the defendant on the stand. There can be little doubt that in Calamese, the standby counsel actively pursued a defense. Likewise, in Oliver standby counsel called six defense witnesses, recalled one of the State’s witnesses, and made objections throughout the State’s case. Looking at Calamese and Oliver, it is apparent from an inspection of those facts that defense counsel was involved in both cases sufficiently to have formed and implemented a defense strategy.

In sum, Hatfield chose to represent himself, but he did so without being made sufficiently aware by the trial court of the dangers and disadvantages of self-representation. See Faretta v. California, supra. Thus, the record in this case fails to establish that he knew what he was doing and made his choice with eyes open. See id. I would reverse and remand for a new trial.

Imber and Thornton, JJ., join.

       While the dissent makes reference to Hatfield’s “handling] solely” eleven witnesses, the record shows that he only cross-examined six of those witnesses, asking no questions of the other five.

       Although the court warned Bledsoe that he would have to conform to the rules and procedures of the court, the court did not explain the consequences of failing to comply with those rules. Thus, this court concluded that Bledsoe did not knowingly and intelligently waive his right to counsel.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Maxine KANGAS v. Gary NEELY
    01-135
    57 S.W.3d 694
    Supreme Court of Arkansas
    Opinion delivered October 25, 2001

      L. David Stubbs, for appellant.

      Horne, Hollingsworth & Parker, A Professional Association, by: Cyril Hollingsworth, for appellee.
   Donald L. Corbin, Justice.

This is an appeal from the order of the Desha County Circuit Court dismissing with prejudice a personal-injury claim filed by Appellant Maxine Kangas against Appellee Gary Neely. The reason for the dismissal was Kangas’s failure to comply with the service requirements of Ark. R. Civ. P. 4(i). The dismissal was with prejudice because the trial court found that the three-year statute of limitations had already run. For reversal, Appellant argues that the order extending the time for service is valid under Ark. R. Civ. P. 6(b)(2), which allows the trial court to enter an order extending a prescribed period for just cause, even after the period has expired. This case was certified to us from the Arkansas Court of Appeals as presenting an issue of first impression. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(b)(1). We affirm.

The facts of this case are not in dispute. On December 27, 1995, Appellant was injured in an automobile accident when the car in which she was riding collided with a car driven by Appellee. Appellant filed a negligence suit against Appellee on December 21, 1998. Appellant did not complete service of process on Appellee within the 120-day period set out in Rule 4(i), which ended on April 20, 1999. However, on the 121st day, April 21, 1999, Appellant obtained an order from the circuit court extending the time for service to May 15, 1999. Appellant completed service within the extended time period. Appellee filed a motion for summary judgment, arguing that because the order granting extension was not entered before the 120-day period expired, it was of no effect. Appellee argued further that the three-year statute of limitations expired on April 20, 1999, thus barring the suit altogether. The trial court agreed with Appellee and dismissed the suit with prejudice.

For reversal, Appellant contends that service was timely under Rule 4(i) because the order extending the time for service was valid under Rule 6(b)(2). Rule 4(i) provides in pertinent part:

Time Limit for Service. If service of the summons is not made upon a defendant within 120 days after the fifing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause. [Emphasis added.]

This court has consistently held that service requirements under this rule must be strictly construed and compliance with them must be exact. Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001); Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998). Thus, service of process under this rule must be accomplished within 120 days after the fifing of the complaint unless the plaintiff has timely filed a motion to extend. Id. If service is not obtained within that time and no timely motion to extend is made, dismissal of the action is mandatory. Id.

The plain language of Rule 4(i) demonstrates that a motion to extend the 120-day period for service must be filed within that time. The record in this case reflects that ho timely motion for extension was made. Notwithstanding, Appellant argues that the order granting extension, entered one day after the 120-day period expired, was valid under Rule 6(b)(2). We cannot reach the merits of this issue because Appellant failed to obtain a ruling from the trial court. The order of dismissal is based solely on an application of Rule 4(i). It was Appellant’s burden to obtain a ruling on the Rule 6 argument, and her failure to do so is a procedural bar to our consideration of the issue on appeal. See Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000); St. Paul Fire & Marine Ins. Co. v. First Bank of Ark., 341 Ark. 851, 20 S.W.3d 372 (2000).

Because Appellant failed to serve Appellee within the 120-day period set out in Rule 4(i) and failed to file a motion for extension prior to the expiration of that period, there was no valid service of process. The order of extension issued on the 121st day was of no legal effect. We thus affirm the trial court’s dismissal of the complaint. Ordinarily, a dismissal under Rule 4(i) is without prejudice; however, if the suit is otherwise barred by the applicable statute of limitations, the dismissal is with prejudice. Keener, 335 Ark. 209, 979 S.W.2d 885; Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). Here, the three-year statute of limitations expired on the 120th day for service. Accordingly, we affirm the trial court’s finding that the dismissal is with prejudice.


text:
    Harold RIGSBY v. Brett RIGSBY
    01-2
    57 S.W.3d 206
    Supreme Court of Arkansas
    Opinion delivered October 25, 2001

      Eddie N. Christian Law Office, by: Joe D. Byars, for appellant.

      Walker, Shock & Cox, P.L.L.C., by: James O. Cox, for appellee.
   Donald L. Corbin, Justice.

This case involves a dispute over the ownership of real property located in Magazine, Arkansas. Harold Rigsby appeals an order of the Logan County Chancery Court finding that the real property is owned jointly by him and his son Brett Rigsby as partners. For reversal, Harold argues that there was no evidence to support the chancellor’s finding of a partnership. This court has jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(7). We reverse that part of the chancellor’s order finding that the real property was jointly owned by Harold and Brett as partners.

The record reflects that Harold purchased a parcel of land from R.V. and Mary Huff in August 1971, for $19,500. Initially, Harold and his family lived in a small trailer located on the property. A short time later, Harold purchased a new trailer home where he lived with Brett until 1984. At that time, Brett suggested to his father that they obtain a bank loan in order to build á new house on the property. The parties then co-signed for a $45,000 loan from Citizens Bank of Booneville. Harold secured the note with a mortgage on the Rigsby Road property. It is undisputed that upon obtaining the loan, Brett agreed to pay the monthly loan payments, while Harold agreed to pay all other bills, including taxes, insurance, maintenance, utilities, and groceries. The parties abided by this agreement until 1997.

On October 27, 1997, Brett filed a complaint in chancery court alleging that he was entided to an equitable one-half interest in the real property owned by his father. The complaint alleged that Brett had jointly entered into a debt on the property, thereafter making all payments due on the debt, and that he had constructed substantial improvements on the property resulting in an increase in its value. Based on these allegations, Brett asserted that he had acquired a one-half interest in the real property. He requested an order directing partition of the property, to the extent that it could not be divided in kind. Brett further requested that a constructive trust be imposed upon his equitable interest in the proceeds resulting from any sale of the real property. Finally, Brett alleged that he and his father were partners in a cattle operation and that he had primarily cared for the catde until his father caused all of the cattle to be sold. He requested an accounting of all the proceeds from the sale of the cattle and that he be awarded a one-half interest in those proceeds. Harold, who denied each of Brett’s allegations, filed a counterclaim for ejectment. He requested that the chancery court award him sole possession of the property and dismiss Brett’s claims against him.

A hearing was held in chancery court on January 13, 1999. While the parties agreed that they originally sought the loan for the purpose of building a new house, there was conflicting testimony regarding the construction of certain improvements on the real property. Brett testified that he made substantial improvements to the land, including clearing parts of the land, fertilizing it, erecting fences, and building a barn. On cross-examination, Brett admitted that he and his father sometimes disagreed about the necessity of those improvements, such as the building of a new barn. He testified that his father tried to dissuade him from tearing down the old barn, and that his father even offered to pay him not to build a new barn. Harold testified that he had no control over his son when it came to his desire to make certain improvements. He also testified that many of the improvements such as the clearing and the pond were completed by Brett for his benefit. Specifically, Harold stated that his son was an avid hunter and that he cleared parts of the land in order to attract dove, deer, turkeys, and other wild game. According to Harold, he did receive some benefit from these improvements; however, he was not allowed to use the cleared land for Iris cattle until after hunting season was over.

The parties also gave conflicting testimony with regard to the cattle operation. Brett stated that he and his father ran cattle on the property. On cross-examination, however, Brett admitted that he worked daily at the Whirlpool Corporation from 7:00 a.m. until 3:42 p.m. Brett also stated that he incurred significant expenses in connection with the cattle operation but was not reimbursed for such expenses. Harold testified that he alone ran the cattle operation but admitted that his son helped occasionally, including taking care of the cattle in 1996 while he was hospitalized.

Finally, there was a conflict in the testimony regarding some of the house payments. Brett stated that he had made every house payment since October of 1984. He admitted, however, that his father made a one-time principal payment of $4,000 in October 1992. Harold stated that he also paid three full monthly house payments, as well as one-half of an additional monthly payment. Harold stated further that he incurred expenses totaling $6,230 for improvements made to the house.

After taking the matter under advisement, the chancellor issued a written order finding that the parties had entered into a partnership in 1984 when they agreed to undertake a mutual debt for the purpose of constructing a new house, and that the real property then became property of that partnership. He found further that Harold was entitled to a $12,606.25 credit, should the property ever be sold, to compensate him for his down payment on the property, and the reduction in principal on the original note prior to its satisfaction. Finally, the chancellor awarded the proceeds from the sale of cattle solely to Harold, but inadvertently stated in the decree’s final paragraph that those proceeds were to be divided equally between Harold and Brett. An amended decree was filed in which the final paragraph was changed to reflect that Harold was entitled to the proceeds from the sale of the catde.

Harold appealed the chancellor’s order, but his appeal was dismissed without prejudice because the chancellor failed to address Brett’s claim for partition. See Rigsby v. Rigsby, 340 Ark. 544, 11 S.W.3d 551 (2000). Upon dismissal, the chancellor conducted a second hearing and made additional findings that were reflected in a revised order. The trial court again found that each party was an equal partner in the ownership of the land, but also found that such ownership extended to all mineral interests. The trial court ordered that the property was to be sold, and that each party was entitled to reserve their respective interest in the mineral rights. The chancellor ordered further that the parties would equally bear all closing costs and expenses related to the public sale of the property, with the remaining proceeds to be divided equally, less the $12,606.25 credit awarded to Harold. Finally, the chancellor found that Harold could remain in possession of the property until it was sold. From that order, comes the instant appeal.

For reversal, Harold argues that the trial court erred in finding that the parties formed a partnership with respect to the real property because there was no evidence to support the existence of a partnership. Specifically, Harold argues that there is no evidence that the parties agreed to carry on a “business for profit” with respect to the real property, or that they ever had the requisite intent to form a partnership. We agree.

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. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Simmons First Bank of Ark. v. Bob Callahan Servs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000). 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.

Under Arkansas’s Uniform Partnership Act, a partnership is defined as “an association of two (2) or more persons to carry on as co-owners a business for profit.” [Ark. Code. Ann.] § 4-42-201(1) (Repl. 1996) (emphasis added). Similarly, this court has defined a partnership as “a voluntary contract between two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, with the understanding that there shall be a proportional sharing of the profits and losses between them.” Wymer v. Dedman, 233 Ark. 854, 859, 350 S.W.2d 169, 172 (1961) (footnote omitted) (quoting Black’s Law Dictionary (4th ed. 1957)).

Although the entity known as a partnership may not always be defined with exact precision, the test for determining the existence of a partnership is well established. See, e.g., Boeckmann v. Mitchell, 322 Ark. 198, 909 S.W.2d 308 (1995). In Gammill v. Gammill, 256 Ark. 671, 510 S.W.2d 66 (1974), this court stated that the primary test of a partnership between the parties is their actual intent to form and operate a partnership. See also Brandenburg v Brandenburg, 234 Ark. 1117, 356 S.W.2d 625 (1962); Culley & Sons v. Edwards, 44 Ark. 423 (1884). The existence of a partnership need be proved only by a preponderance of the evidence. Gammill, 256 Ark. 671, 510 S.W.2d 66. Thus, the threshold question to be decided by this court is whether Harold and Brett intended to form and operate a partnership when they agreed to obtain the bank loan in 1984.

Upon reviewing the record in this case, we are convinced that there was no evidence to support a finding that either party intended to form a partnership. In fact, both parties testified that they undertook the joint debt because they simply wanted to build a new house. The following colloquy between Brett and his counsel during direct examination is illustrative of the evidence submitted regarding the parties’ view of this transaction:

[Counsel]:
Q. You claim an equity in that property out there?
Mr. Brett Rigsby:
A. Yes, sir.
Q. You put money into it with his knowledge?
A. Correct.
Q. And what was your relationship with him? I think you said earlier that you thought you were partners on the catde; how about in regards to the real estate?
A. It was my understanding — he told me to do what I wanted to do with it — some day it was all going to be mine anyway.

At best, this evidence reveals that in choosing to undertake a joint debt and make improvements to the property, Brett relied on his father’s promise to one day convey the real property to him. Moreover, the fact that Harold retained sole legal title to the real property contradicts any suggestion that he intended to form a partnership with his son when he agreed to the joint debt and bill-paying arrangement. Likewise, there was no evidence presented to support a finding that the agreement to build the house had any business related purpose.

In addition to a lack of evidence supporting the existence of a partnership, there were also no facts pled by Brett regarding the existence of a partnership in the building of the house. The only, allegation concerning a partnership was Brett’s claim that he and his father jointly ran the cattle operation, but the trial court specifically found Harold’s testimony on that issue to be more convincing, and found that there was no partnership in the cattle business. As previously pointed out, Brett does not challenge this finding. Based upon a review of the foregoing evidence, we believe that the chancellor erred in finding that the parties formed a partnership in 1984 and that the real property became property of that partnership. Accordingly, we reverse that part of the chancellor’s order regarding the ownership of the real property and the respective mineral interests.

On a final note, we recognize that while normally this court reviews equity cases de novo on appeal, it is sometimes necessary to remand a case to the chancery court for a determination of the parties’ rights. Such was the case in Henslee v. Kennedy, 262 Ark. 198, 555 S.W.2d 937 (1977), where this court stated:

Ordinarily, we decide an equity case on de novo review, but there are exceptional cases in which we exercise our discretion, in the furtherance of justice, to remand to the chancery court for further proceedings when the trial court has tried the case on the wrong legal theory and where we cannot plainly see what the rights and equities of the parties are. This is such a case, because so much turns on weighing the evidence.

Id. at 210, 745 S.W.2d at 943 (citations omitted).

Here, the record is replete with contradictory evidence that is highly relevant to a determination of the parties’ interests in the real property. Because we recognize that the chancellor is in the best position to weigh the credibility of witnesses and to determine the weight to be accorded their testimony, we remand this case for a determination of what relief, if any, Brett is entitled.

Reversed and remanded.

       The chancellor’s order regarding the cattle proceeds is not challenged on appeal.


author: Robert L. Brown, Justice.

text:
    Roy HELTON, Joann Smith, Chair, Phillips County Board of Election Commissioners, Maxine Miller and Joe Howe, as Members of the Phillips County Board of Election Commissioners v. Arlanda JACOBS, Individually and on Behalf of the Voters of Justice of the Peace District 7
    01-125
    57 S.W.3d 180
    Supreme Court of Arkansas
    Opinion delivered October 25, 2001

      Roscopf & Roscopf, RA., by: Charles B. Roscopf, for appellant Roy Helton.
    L. Ashley Higgins, P.A., by: L. Ashley Higgins, for appellants Joann Smith, Maxine Miller, and Joe Howe.

      Wilson & Valley, Trial Lawyers, by: J.F. Valley, André K. Valley, and Don R. Etherly, for appellee.
   Robert L. Brown, Justice.

Pending before this court are two matters. First, there is the appeal of appellants Roy Helton (Helton) and the members of the Phillips County Board of Election Commissioners (Election Commission) from the order of the circuit court, granting appellee Arlanda Jacobs’s petition for writ of mandamus and declaratory judgment and declaring the office of the Justice of the Peace, District 7, Phillips County, to be vacant. The petition by Jacobs was brought individually and on behalf of the voters of Justice of the Peace, District 7. Secondly, there is Jacobs’s motion to dismiss the appeal on grounds that Helton’s notice of appeal was untimely and the Election Commission lacked standing to appeal. We deny Jacobs’s motion to dismiss. We reverse the order of the circuit court, and we remand with instructions to the circuit court.

In May 2000, Jacobs, Helton, and Doris Diane Tyler were all candidates for the position of Justice of the Peace, District 7, in Phillips County. On May 5, 2000, Jacobs petitioned the circuit court for a writ of mandamus coupled with a declaratory judgment to remove Tyler from the ballot because she was not a resident of District 7. A hearing on the petition was set for May 16, 2000, and on that date, Tyler counterclaimed that Jacobs was not qualified as a candidate because his filing fee check had been dishonored by the bank. On May 19, 2000, the circuit court entered findings of fact and conclusions of law as well as a separate order. The court concluded that both Jacobs and Tyler were ineligible as candidates for Justice of the Peace, District 7. The circuit court also ordered the Election Commission not to certify any votes cast for Jacobs or Tyler on election day, which was May 23, 2000. The court stated that there was no time to remove the disqualified candidates from the ballot.

Because the ballots for the primary election had been printed and the computer “chip” for tabulating votes had been programmed, the votes for Jacobs, Helton, and Tyler were counted following the May 23 primary election. The tabulated votes showed Jacobs receiving 234 votes; Helton receiving 162 votes; and Tyler receiving 82 votes. The Election Commission marked through the votes cast for Jacobs and Tyler in the election results submitted with its certification and certified Helton as the winner of the primary election.

On June 15, 2000, Denise Olloway and Jacobs petitioned for a writ of mandamus and declaratory judgment. The petition requested that the circuit court direct the Election Commission to certify Jacobs as the winner of the May 23 primary election, or, alternatively, declare the position of Justice of the Peace, District 7, to be vacant. There was no prayer that the circuit court disqualify Helton as a candidate. The Election Commission answered and prayed that the court dismiss Jacobs’s petition on the basis that the circuit court had found Jacobs was ineligible as a candidate and ordered that no votes were to be certified for him.

On October 5, 2000, this court affirmed the order of the circuit court which disqualified Jacobs as a candidate and which ordered that no May 23 votes for Jacobs were to be certified. See Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000). In that case, we specifically held:

In sum, we conclude that Jacobs’s appeal is without merit and that the trial court correctly determined that any ballots cast for him in the primary election should not have been counted and certified by the election commission. The trial court is affirmed and the mandate is ordered issued within five days unless a petition for rehearing is filed.

Jacobs, 342 Ark. at 255, 27 S.W.3d at 742. On October 20, 2000, Helton moved to dismiss Jacobs’s petition under Ark. R. Civ. P. 12(b)(6) and (8) because of this court’s decision in Jacobs v. Yates, supra. The Election Commission later amended its answer to assert that the grounds set forth in Jacobs’s petition were decided in Jacobs v. Yates, supra. Helton also amended his answer to assert res judicata as an affirmative defense. On November 7, 2000, Helton was listed as an unopposed candidate for Justice of the Peace, District 7, on the general election ballot and was subsequently certified as the winner after the election.

On November 16, 2000, Jacobs’s petition was heard before the circuit court. Based on a stipulation of the parties, Jacobs’s only prayer for relief submitted to the circuit court was that the position of Justice of the Peace, District 7, be declared vacant pursuant to Ark. Code Ann. § 7-5-315 (Repl. 2000), and filled in accordance with law. On December 29, 2000, the circuit court entered its order declaring a vacancy in nomination in the position of Justice of the Peace, District 7, and voiding the certificate of election granted to Helton. The order further provided that Jacobs, as the incumbent Justice of the Peace, would continue as a “holdover” in the office until the vacancy was filled. The order also denied Helton’s motion to dismiss and, by implication, the prayer for dismissal made by the Election Commission. In its order, the circuit court noted that the will of the people should be the guiding principle in election cases and that Jacobs had received the highest percentage of the votes cast on May 23. The court went on to observe that votes are counted for persons who withdraw from a race or die after certification of the ballot or after the fifing period has ended under Ark. Code Ann. § 7-5-315 (7) (A) (Repl. 2000), and that this results in a vacancy in nomination. The court then equated Jacobs’s disqualification before the May 23 primary election to death or withdrawal under the statute and, thus, concluded that a vacancy in nomination had resulted.

Helton and the Election Commission filed the appeal which is before this court today. On January 18, 2001, Jacobs moved to dismiss the appeals of both appellants on separate grounds.

I. Jacobs’s Motion to Dismiss

We first address Jacobs’s motion to dismiss the appeals of Helton and the Election Commission. The motion is premised on Jacobs’s conclusion that his June 15, 2000 petition was an election contest. Because we do not agree that Jacobs’s petition was one contesting the election results between two candidates or that the circuit court’s order resolved an election contest, we deny the motion.

As an initial point, we again observe that Jacobs never disputed the eligibility or qualifications of Helton to stand as a candidate for Justice of the Peace, District 7. Jacobs’s eligibility as a candidate, however, was challenged pre-election by Tyler, and the circuit court agreed that he was disqualified and ordered that any votes cast for him should not be certified. The procedure followed by Tyler for Jacobs’s removal from the ballot was a petition for writ of mandamus and declaratory judgment, which is the procedure this court endorsed in State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989), for pre-election attacks on a candidate’s eligibility to stand for election and for removal of that ineligible candidate’s name from the ballot. See Ark. Code Ann. § 7-5-207(b) (Repl. 2000). See also Tittle v. Woodruff, 322 Ark. 153, 907 S.W.2d 734 (1995). Upon removal, that person is no longer a candidate. An election contest, on the other hand, is a right of action “conferred on any candidate to contest the certification of nomination or the certificate of vote as made by the appropriate officials in any election.” Ark. Code Ann. § 7-5-801 (a) (Repl. 2000) (emphasis added). It is a “post-election contest between two competing candidates.” Jacobs v. Yates, 342 Ark. at 250, 27 S.W.3d at 738. See also Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992); McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959).

What is undisputed in this case is that Jacobs was disqualified as a candidate before the election. Thus, he could not contest the election results as a candidate, as required by § 7-5-801 (a). Because Jacobs’s cause of action was not an election contest, the seven-day limit for a party to appeal an order set out in Ark. Code Ann. § 7-5-810 (Repl. 2000), does not apply. We hold that Helton had thirty days to file his notice of appeal and that it was timely. See Ark. R. App. P. — Civ. 4(a).

Jacobs moves that the Election Commission has no right to pursue this appeal for different reasons. He asserts that the Election Commission, as a nominal party, has no standing to appeal and, further, that it failed to make financial arrangements with the court reporter to prepare the record. We address the financial arrangements point first. Both Helton and the Election Commission stated in their notices of appeal that no financial arrangements had been made with the court reporter yet, but that they both were willing to pay. up to fifty percent of the transcript costs in accordance with Ark. Code Ann. § 16-13-510(c) (Repl. 1999). Attached to Helton’s response to the motion to dismiss was a copy of a letter dated January 5, 2001, from Helton’s counsel to the court reporter ordering the record, along with a copy of a check for $100, as a deposit. Furthermore, we note that the record was timely filed by the appellants. Failure to include financial arrangements language in a notice of appeal no longer renders that notice invalid. In Re: Rule 3, Rules of Appellate Procedure — Civil, 336 Ark. 645 (1999). Under these circumstances, we determine that there has been substantial compliance with Ark. R. App. P. — Civ. 3(e). See Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996). We hold that there is no basis for dismissing the Election Commission’s appeal for lack of financial arrangements.

With respect to the standing of the Election Commission to appeal, we hold that standing was indeed present. We said in Jacobs v. Yates, supra, that the Election Commission had standing to question the qualifications of candidates. Clearly, the issue of candidate qualifications falls within the Election Commission’s duty to assure proper and lawful elections. The same holds true with regard to the Election Commission’s duty to uphold a valid election. In Rubens v. Hodges, supra, this court distinguished the Election Commission’s nominal role in an election contest between adversarial candidates and its role in an action seeking to void an election. In the latter case, we said the Election Commission’s function “is to promote fair elections.” Rubens, 310 Ark. at 454, 837 S.W.2d at 467. See also Phillips v. Earngey, 321 Ark. 476, 902 S.W.2d 782 (1995). That function extends to appealing perceived error by a circuit court in voiding a valid election.

As a final observation on this point, Jacobs urges that both Helton and the Election Commission admitted in their answers that the action brought by Jacobs was a civil action filed pursuant to Ark. Code Ann. §§ 7-5-801, et seq., which is the Election Contest Subchapter. We do not read the appellants’ answers as waiving their rights to contend that this was not an election contest. Rather, we read their answers as admitting that that is how Jacobs had couched his petition. This argument has no merit.

Accordingly, Jacobs’s motion to dismiss is denied.

II. Voiding the Election

We turn next to the appellants’ arguments that the circuit court erred in voiding Helton’s certification as the winner and declaring a vacancy- in nomination. Multiple arguments are presented by Helton and the Election Commission on this point. We consider the prevailing argument, however, to be that the circuit court in its May 19, 2000 order directed that no votes be certified for Jacobs. The court noted that it was too late to remove Jacobs’s name from the ballot, but clearly the order intended that any votes cast for Jacobs were to be of no effect and were not to be counted. We affirmed that decision in Jacobs v. Yates, supra. In accordance with the circuit court’s directive, the Election Commission marked through the tabulated votes for Jacobs in its certification of the election results.

Despite this history, all of Jacobs’s arguments made before the circuit court in connection with his June 15, 2000 petition and now before this court on appeal flow from his assertion that he received a majority of votes cast. That is a faulty premise because any votes cast for Jacobs in the May 23 primary election should not have been counted. No one disputes the disqualification of Jacobs and Tyler. Indeed, the parties stipulated to that fact in the case before us. Moreover, state law is clear that the names of ineligible candidates shall not be printed on the ballot. See Ark. Code Ann. § 7-5-207(b) (Repl. 2000). We are hard pressed, as a result, to give any credence to vote tallies that should not have been done in the first place. Were we to do so, we would be reversing our decision in Jacobs v. Yates, supra, where we explicitly said the votes should not be counted. In sum, Jacobs’s total vote is irrelevant and of no effect, and since his arguments all hinge on his contention that he received most of the votes cast, he cannot prevail.

It is also important to focus in this case on the relief requested by Jacobs in his June 15, 2000 petition for writ of mandamus and declaratory relief. He did not contend that Helton should be declared ineligible or disqualified before the November 7, 2000 general election. Thus, Jacobs did not invoke the procedure for determining candidate eligibility under State v. Craighead County Bd. of Election Comm’rs, supra. On the contrary, he stipulated that his sole prayer for relief was to have the position of Justice of the Peace, District 7, declared vacant under § 7-5-315(7) and to be filled according to law. Section 7-5-315(7) reads:

(7) (A) The votes received by any person whose name appeared on the ballot and who withdrew or died after the certification of the ballot or filing period ended shall be counted.
(B)(i) If the person received enough votes to win nomination or election, a vacancy in the nomination or election shall be declared.
(ii) (a) If the person received enough votes to qualify for a runoff, the person’s name shall appear on the runoff ballot; and
(b) If enough votes are cast for the person to win the runoff, then a vacancy in the nomination or election shall exist.

Ark. Code Ann. § 7-5-315(7) (Repl. 2000) (emphasis added). Thus, § 7-5-315(7), by its terms, applies only to cases in which a person dies or withdraws after certification of the ballot or after the filing period ends. It is not applicable to a case such as we have before us where a candidate has been disqualified before the primary election. Even if we accepted Jacobs’s argument, which we do not, § 7-5-315(7) determines a vacancy in nomination by counting votes. Again, in this case the votes cast for Jacobs are of no effect.

In its opinion, the circuit court relied on the case of Swepston v. Barton, 39 Ark. 549 (1882), in declaring a vacancy in nomination. The court specifically quoted from Swepston that “when a vote for an ineligible candidate is not declared void by statute, the vote she receives, if they are a majority or plurality, will be effectual to prevent the opposing candidate being chosen, and the election must be considered as having failed.” 39 Ark. at 555. See also Davis v. Holt, 304 Ark. 619, 804 S.W.2d 362 (1991). In Swepston, Swepston defeated Barton for the office of Crittenden County Sheriff by a majority of 165 votes at the general election. Thereafter, as part of the election contest, Barton contended that Swepston was ineligible because he had failed to account for or pay over certain revenues he collected for the county. This court did not decide Swepston’s eligibility because there was no ruling on that point by the circuit court.

We deem Swepston to be inapposite as precedent for this case for one critical reason. In Swepston, the ineligibility was asserted after the election in which Swepston had been a candidate and received a majority of the votes cast. In the case at hand, Jacobs was declared ineligible and disqualified as a candidate before the election took place and should not even have been on the ballot. This court has consistently drawn a clear distinction between causes of action that accrue pre-election and those that accrue post-election after the voters have spoken. See, e.g., Doty v. Bettis, 329 Ark. 120, 947 S.W.2d 743 (1997) (prior to election, election laws are mandatory; thereafter, they are directory only).

There is, finally, the point that Jacobs did not press for resolution of his petition for writ of mandamus and declaratory relief regarding a vacancy in nomination before the November 7 general election. As an unopposed candidate, Helton was assured of being certified the winner of the general election under state law. See Ark. Code Ann. § 7-5-315(1) (Repl. 2000). After the general election occurred and Helton was certified the winner, a declaration of a vacancy in nomination was not the appropriate remedy. The circuit court clearly erred in declaring a vacancy in nomination to exist.

We reverse the order of the circuit court and remand this case with the following instructions: (1) Arlanda Jacobs shall immediately cease holding the office of Justice of the Peace, District 7; (2) the order of the circuit court voiding the certificate of election granted to Roy Helton is reversed, effective immediately, and the certificate of election granted to Roy Helton is in full force and effect; and (3) Roy Helton shall immediately begin serving his term as Justice of the Peace, District 7.

Reversed and remanded.

       After the petition was filed, Olloway moved to have her name removed from the style of the case and to dismiss the action with respect to her interests.

       Judge Harvey L. Yates served as circuit judge for the circuit court until October 27, 2000, when he recused. Judge L.T. Simes, II, then became the circuit judge for the case.


text:
    OWNERS ASSOCIATION of FOXCROFT WOODS, INC., and George R. Riley, Jr. v. FOXGLEN ASSOCIATES, an Arkansas General Partnership, and Arthur Hart & Company, P.A.
    01-203
    57 S.W.3d 187
    Supreme Court of Arkansas
    Opinion delivered October 25, 2001

      Quattlebaum, Grooms, Tull & Burrow PLLC, by: J. Leon Holmes, for appellants.

      Eichenbaum, Liles & Hester, P.A., by: James H. Penick, III, for appellees.
   Robert L. Brown, Justice.

This is an appeal brought by appellants Owners Association of Foxcroft Woods, Inc. (Foxcroft Woods), and George R. Riley, Jr. (Riley), from a decree entered in favor of appellees Foxglen Associates and Arthur Hart & Company, P.A. (Hart). In that decree the chancery court granted declaratory and injunctive relief, as requested by Foxglen Associates and Hart. The chancery court found that the public had acquired a prescriptive easement in a drive known as the Southern Drive through usage over fifteen years, and based on this easement, it permanently enjoined the appellants from blocking or otherwise interfering with the public’s right to access the Southern Drive. The appellants appeal on five grounds: (1) the seven-year period for a prescriptive easement did not begin to run until February 1995; (2) no prescriptive easement was acquired due to no claim of right or notice of a claim of right; (3) any prescriptive easement acquired has been abandoned; (4) appellees are estopped from claiming an easement against Riley; and (5) Riley did not acquire his property subject to the prescriptive easement because the existence of such an easement was not apparent from an ordinary inspection of the premises. We affirm the chancery court.

This case was submitted to the chancery court by agreement of the parties based on the pleadings, a stipulation agreed to by the parties, exhibits and depositions, and arguments and briefs of counsel. The facts of this case are taken from the chancellor’s decree and the parties’ stipulation. The dispute that gave rise to this litigation stems from nearly two decades of commercial and dense residential development on the north side of Cantrell Road in west Little Rock. There are four separate properties involved in the dispute: the Foxglen Apartments owned by Foxglen Associates; the Foxcroft Woods condominiums associated with the Owners Association of Foxcroft Woods, Inc.; the Foxcroft Village patio homes, one of which was purchased by Riley; and the Hart property owned by Arthur Hart & Company. The Hart property is situated directly on the north side of Cantrell Road. The other three properties are located approximately one-half block north of the Cantrell Road frontage, behind the Hart property. The Foxglen Apartments are to the west of the Foxcroft Village patio homes. The Foxcroft Village patio homes property is an L-shaped tract situated to the west and north of the Foxcroft Woods condominiums. Attached as an Addendum to this opinion is a map depicting the location of these properties.

At the center of this dispute is a drive known as the Southern Drive that runs east and west from the western edge of the Foxglen Apartments east to Foxcroft Road. The Southern Drive was originally paved with curbing in the early eighties and is forty-five feet in width. The drive borders the Hart property to the north and both the Foxcroft Woods condominiums and the Foxcroft Village patio homes to the south. Approximately five-sixths of the Southern Drive is owned in fee by the Foxcroft Woods condominiums. The remaining one-sixth, at the westernmost end of the drive, is owned in fee by the owner of the southernmost parcel of the Foxcroft Village patio homes, who is Riley. According to the relevant plats and bills of assurance filed by Foxcroft Woods in 1982, the Southern Drive was intended to be a “public service and utility easement[ ].”

From the mid-1980s, the Southern Drive remained open and access to the Southern Drive enabled the residents of Foxglen Apartments and the occupants of the Hart property to turn onto Cantrell Road by way of Foxcroft Road, with a traffic light at that intersection. This meant that these residents and occupants could avoid turning directly onto the often-congested Cantrell Road without a traffic light. The public use of the Southern Drive prompted some response from the Foxcroft Woods condominium residents, the degree and tone of which is a matter of factual dispute in this case. What is clear is that in 1991, residents of four units of Foxcroft Woods condominiums wrote a letter to their Owners Association regarding parking space. They wanted to set up a parking-space-sharing arrangement. In the letter, they noted that parking was very limited, and that this problem was exacerbated by “the fact that the city has a public easement that is heavily traveled as a connector, cut-through, turn around, etc.” The only other documentary evidence of complaints from the Foxcroft Woods condominiums residents is a Foxglen Apartments newsletter issued in July 1998. In that newsletter, Foxglen residents were asked to “refrain from accessing Foxcroft residential area via Foxcroft Condominiums and Patio Homes. . . . [W]e continue to receive reports of our residents violating their privacy. It is our understanding that one of their biggest complaints is Foxglen pet owners walking pets on their property.” The timing of this letter —July 1998 — indicates that it was not the vehicular but the pedestrian traffic that was being reported to the managers of the Foxglen Apartments, because at the time of the newsletter, the Southern Drive was blocked to vehicular traffic.

On February 22, 1995, the City of Little Rock’s Fire Marshal noted on a Preliminary Site Plan for lots in Foxcroft Woods Addition that the private drive was to be closed with access only by the fire department. In the winter of 1995, William R. Lile and the Fire Marshal specifically agreed that the Southern Drive could be blocked to public usage with only the fire department to have access. On July 17, 1996, Vantage Development Corporation, which was owned by Lile and Dr. Jerry Bradley, bought the southernmost lot of the Foxcroft Village patio homes. In July or August of 1997, Lile placed unattached barricades along the western edge of the Southern Drive, thereby blocking the Southern Drive to traffic from the Foxglen Apartments and the Hart property. These barricades were small orange-and-white striped sawhorses that were not affixed to the property. The sawhorses were up except for a few days in 1997. Sometime before June of 1998, the sawhorse barricades were replaced by a cable spanning the drive. The cable was strung from two small steel poles placed on either side of the drive. From the cable hung a six inch by fifteen inch red-and-white sign reading “PRIVATE DRIVE DO NOT ENTER.” From July or August of 1997 forward, the public did not use the Southern Drive to access Foxcroft Road.

In June of 1998, almost one year after the Southern Drive was first barricaded by Lile, Riley bought the southernmost lot of the Foxcroft Village patio homes from Bradley’s and Lile’s Vantage Development Corporation. Riley bought the property for his mother, who was eighty years old at the time. At the time of Riley’s purchase, the Southern Drive was barricaded with the cable and “PRIVATE DRIVE” signs. It was also barricaded in that fashion when he visually inspected the lot before purchasing it. Riley never saw the drive in its former functional state. He asked a resident of Foxcroft Woods condominiums, Reggie Clow, how long the cable had been up, and he learned that the cable had been in place “for over a year.”

At the time of Riley’s purchase in June 1998, a patio home was partially constructed on the lot. Upon completion of the patio home, Mrs. Riley moved into it. The Southern Drive was ten to twelve feet from her patio home. Mrs. Riley, according to her deposition testimony, would never have wanted that property to be her permanent residence if she had known that there was a possibility that traffic would be using the Southern Drive.

In April 1999, Riley and Foxcroft Woods built a wooden privacy fence across the Southern Drive, which replaced the cable and signs. It is this fence that sparked the present litigation. On June 24, 1999, Foxglen Associates and Hart filed the suit for declaratory judgment and injunctive relief against Foxcroft Woods and Riley, which is the subject of this appeal. The specific relief requested was for Riley to take down the privacy fence. Foxglen Associates and Hart contended, first, that the relevant plats and bills of assurance created a recorded easement over the Southern Drive in their favor. Next, they asserted that the public’s continuous use of the Southern Drive from 1982 to 1997 created a prescriptive easement.

In its decree, the chancery court concluded that the plats and bills of assurance did not create a recorded easement justifying the public’s use of the Southern Drive. Rather, the court found that the recorded easement was limited to public service usage, including emergency and utility vehicles. However, the court did find a prescriptive easement in the public’s favor. The court issued the injunction, as Foxglen Associates and Hart requested, to remove any barricade from the Southern Drive but stayed the injunction’s enforcement pending this appeal. Foxglen Associates and Hart did not cross-appeal from the chancery court’s adverse ruling on the recorded easement.

I. Seven-Year Period

For their first point, Foxcroft Woods and Riley contend that the seven-year period for a prescriptive easement did not begin to run until February 1995 because that is when they were first entitled to block the drive. We disagree.

We first discuss our standard of review in chancery cases. This court reviews chancery cases de novo on the record but will not reverse a finding by the chancery court unless it is clearly erroneous. O’Fallon v. O’Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000); Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). 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. Slaton v. Slaton, supra; RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). It is this court’s duty to reverse if its own review of the record is in marked disagreement with the chancery court’s findings. Dopp v. Sugarloaf Mining Co., 288 Ark. 18, 702 S.W.2d 393 (1986) (citing Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Walt Bennett Ford v. Pulaski County Special School District, 274 Ark. 208, 624 S.W.2d 426 (1981)).

Foxcroft Woods and Riley argue that the chancery court erred in concluding that the time period for the public’s prescriptive easement began to run before the Little Rock Fire Marshal gave his permission in 1995 to block the Southern Drive. The chancery court found that the running of the prescriptive easement time period began in the mid-80s, when vehicular traffic began using the Southern Drive to avoid Cantrell Road. We note on this point that all parties stipulated to the following: “From the mid-1980s, the southern drive remained open, and was used by the public for ingress and egress, between Foxcroft Road on the east, and the commercial and multi-family properties to the west, on a regular basis until unattached barricades were put up in August of 1997.”

The argument of Foxcroft Woods and Riley apparently is that they knew that a recorded easement existed for public service, emergency, and utility vehicles. Thus, they believed they could not block the Southern Drive in any respect until they learned that the City Fire Marshal had agreed that a blockade was permissible in February 1995. This being the case, they reason that they operated under a disability to in any way interfere with the drive until February 1995. Since they operated under this disability until that time, they contend that the seven-year period for a prescriptive easement could not begin to run before that date.

This argument fails under scrutiny. Even accepting the fact that a recorded easement for public service and utility vehicles was not waived until February 1995, the recorded easement did not prevent Foxcroft Woods and Riley from taking steps to Emit vehicular traffic to public service and utility vehicles before that time. They could have posted signs to that effect, written letters, or taken other comparable measures, as Foxglen Associates and Hart correctly argue in their brief. They could also have gone into court to protest the public’s use of the drive. Instead, they did nothing for the approximately fifteen-year period during which time the public’s right to use the Southern Drive ripened into a prescriptive easement.

Foxcroft Woods and Riley cite this court to Barbee v. Carpenter, 223 Ark. 660, 267 S.W.2d 768 (1954), in support of their argument, but that case is readily distinguishable. In Barbee, the Carpenter family built a fence across a city street which had never been a through street but rather had served as a cul-de-sac driveway for the Carpenter family as well as for the Barbee family who lived across the street. The Carpenter family held fee tide to the cul-desac. The Barbee family sued under a prescriptive easement theory to force the Carpenters to remove the barricade across what had been their mutual driveway. We pointed out in our opinion that until 1940, the Carpenters’ predecessor in interest to the cul-de-sac land had held defective tide to that portion of his land in that the metes and bounds description was inaccurate. Thus, he was “not legally in a position to protest” his neighbors’ use of his driveway until 1940. In the instant case, however, Foxcroft Woods and Riley were under no disability to contest the public’s use of the Southern Drive. Any disability they were operating under only pertained to public service and utility vehicles.

We affirm the chancery court’s ruling on this point.

II. Claim of Right and Notice

For their second point, Foxcroft Woods and Riley contend that the chancery court’s decision on the prescriptive easement was error because Foxglen Associates and Hart had no claim of right. They further argue that the appellees gave no notice of their claim and that the fact they ceased using the drive when it was barricaded indicates that the usage had been permissive all along.

A prescriptive easement may be gained by one not in fee possession of the land by operation of law in a manner similar to adverse possession. See Paul Jones Jr., Arkansas Titles to Real Property §§ 714, 1499, at 443, 906-09 (1935 & Supp. 1959); Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984) (“Prescription is the acquisition of title to a property right which is neither tangible nor visible (incorporeal hereditament) by an adverse user as distinguished from the acquisition of title to the land itself (corporeal hereditament) by adverse possession.”). Like adverse possession, “prescriptive easements ... are not favored in the law, since they necessarily work corresponding losses or forfeitures in the rights of other persons.” 25 Am. JUR. 2d Easements and Licenses § 45 (1996); Potts v. Burnette, 301 N.C. 663, 273 S.E.2d 285 (1981). In Arkansas, it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that one’s use has been adverse to the true owner and under a claim of right for the statutory period. Manitowoc Remanufacturing, Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991); Neyland v. Hunter, supra; Teague v. Raines, 270 Ark. 412, 605 S.W.2d 485 (1980). This court has said that the statutory period of seven years for adverse possession applies to prescriptive easements. Neyland v. Hunter, supra; Duty v. Vinson, 228 Ark. 617, 309 S.W.2d 318 (1958); Brundidge v. O’Neal, 213 Ark. 213, 210 S.W.2d 305 (1948). That statutory period for adverse possession is set out in Ark. Code Ann. § 18-61-101 (1987). See also Ark. Code Ann. § 18-11-106 (Supp. 1999) (enacted as Act 776 of 1995).

Overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim are being exerted. Stone v. Halliburton, 244 Ark. 392, 425 S.W.2d 325 (1968). Mere permissive use of an easement cannot ripen into an adverse claim without clear action, which places the owner on notice. Manitowoc Remanufacturing, Inc. v. Vocque, supra; Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). Some circumstance or act in addition to, or in connection with, the use which indicates that the use was not merely permissive is required to establish a right by prescription. Craig v. O’Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957). The determination of whether a use is adverse or permissive is a fact question, and former decisions are rarely controlling on this factual issue. Duty v. Vinson, supra; St. Louis Southwestern Ry. Co. v. Wallace, 217 Ark. 278, 229 S.W.2d 659 (1950); Brundidge v. O’Neal, supra. The plaintiff bears the burden of showing by a preponderance of the evidence that there has been adverse, not permissive, use of the land in question. Duty v. Vinson, supra; Brundidge v. O’Neal, supra; Stone v. Halliburton, supra.

Foxcroft Woods and Riley urge that no prescriptive easement was acquired because there was no claim of right by the users of the Southern Drive and no notice to the owners that the usage was adverse. In making this argument, the appellants claim that the usage was permissive, not adverse, and that the usage, as a result, could not metamorphosize into a prescriptive right. They point specifically to the fact that the appellees and the public at large ceased using the Southern Drive for twenty-one months once it was barricaded. They also point to the 1998 Foxglen Apartments newsletter where apartment residents were advised not to violate the privacy of the residents of Foxcroft Woods condominiums and patio homes by walking pet animals or otherwise. This, they contend, was an admission by Foxglen Associates that its apartment residents were not entided to access Foxcroft Road by means of the Southern Drive.

We view this argument by the appellants to be akin to their argument that any prescriptive easement was abandoned, which is discussed under Issue III. But, in addition, we do not agree that the chancery court’s finding that a prescriptive easement was established was clearly erroneous. The chancery court discounted the appellants’ arguments and made these findings and conclusions in its decree:

When there is usage of a passageway over land, whether it be by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know that the usage was adverse, then such usage ripens into a prescriptive easement. Moreover, there is no requirement that a person claiming a prescriptive easement openly communicate their intentions. Gazaway v. Pugh, 69 Ark. App. 297 (2000). Here, the usage of the Southern Drive continued for approximately fifteen years, under circumstances such that the owners of the Southern Drive would be presumed to know that the usage was adverse to them, therefore, a prescriptive easement was established.

The chancery court relied on a court of appeals case, Gazaway v. Pugh, 69 Ark. App. 297, 12 S.W.3d 662 (2000), in reaching its decision. In that case, the court of appeals held that the sheer number of users of a passageway operated to put an owner on notice that the public’s use was adverse to the owner’s title. Gaza-way v. Pugh, supra. In Gazaway, a public prescriptive easement was found against the owner of the land over which many duck hunters seasonally passed. The landowner maintained that he had given permission for family members and friends to use the passage over his land. However, the court found that the large number of users of the road meant that the landowner could not, as a practical matter, have given each of them permission to use the land. Additionally, the court held that there had been “acquiescence to longtime use,” and thus a prescriptive easement in favor of the public accrued over the land. Gazaway, 69 Ark. App. at 303, 12 S.W.3d at 666.

The same principle holds true in the case at hand. We agree with the chancery court that the owners of the Southern Drive would be presumed to know that the public’s usage was adverse to them from the mid-1980s to August of 1997. We conclude that the public use of the Southern Drive for this period of time was sufficient notice of a claim of right.

III. Abandonment

Foxcroft Woods and Riley next posit that even assuming a prescriptive easement came into effect, it was abandoned by Fox-glen Associates and Hart. Specifically, they contend that when the public stopped using the Southern Drive in the summer of 1997 and continued nonusage for twenty-one months, this was proof of abandonment. In short, the appellants urge that the affirmative act of nonusage by the public, including the appellees, was inconsistent with any claim under a prescriptive easement. Moreover, they contend that an act inconsistent with the public’s use, such as barricading a drive, need not continue for the statutory period of seven years.

The chancery court dispensed with the argument of Foxcroft Woods and Riley by observing that for an abandonment to be effective, it must occur for a period of time equivalent to the statutory period necessary to create a prescriptive easement, which is seven years, and nonuse did not continue for that period of time. We agree.

Our law is clear on this point. Once gained, a prescriptive easement may be abandoned by more than seven years of nonuse. Weir v. Trucks, 255 Ark. 494, 500 S.W.2d 923 (1973). Such abandonment allows the owner to reenter and prevent the holder of the former easement from reestablishing its prescriptive right to the use of the roadway. Johnston v. Verboon, 269 Ark. 126, 598 S.W.2d 752 (1980); McLain v. Keel, 135 Ark. 496, 205 S.W 894 (1918).

Foxcroft Woods and Riley, however, contend that barricading a passageway, as distinguished from mere nonuse, obviates the need to satisfy the seven-year period. We do not agree that that is the law. This court has previously addressed this point with respect to the fencing or gating of a strip subject to a prescriptive easement. In Hoover v. Smith, 248 Ark. 443, 451 S.W.2d 877 (1970), we said:

[A] prescriptive easement may be barred after maintenance of a gate for more than seven years, without any action by one claiming the easement to prevent the obstruction, and that failure to take such action during that period constitutes an abandonment of the easement.

Hoover, 248 Ark. at 446, 451 S.W.2d at 879 (emphasis added) (citing Munn v. Rateliff, 247 Ark. 609, 446 S.W.2d 664 (1969)). See also Kennedy v. Crouse, 214 Ark. 830, 832, 218 S.W.2d 375, 376 (1949) (“We have held that if the general public acquiesces for more than seven years in the existence of a gate across a road established by prescription, its conduct amounts to an abandonment of the prescriptive right, entitling the owner to close the gate permanendy.”); Simpson v. State, 210 Ark. 309, 310, 195 S.W.2d 545, 545 (1946) (“Any prescriptive right that the public might have acquired in this road prior to 1928 or 1929 was lost by it when appellant, without objection on the part of the public, was permitted to erect the gates . . . and thereafter for a period of seven years . . . maintain them across this road.”); Porter v. Huff, 162 Ark. 52, 54, 257 S.W. 393, 393 (1924) (“[The holder of the easement] lost any right it may have acquired by acquiescing in a permissive use thereof for a period of more than seven years after the road was closed by gates.”).

The argument of Foxcroft Woods and Riley implicitly calls for us to reverse this long line of cases and hold that merely gating a prescriptive easement will dictate abandonment because it is an inconsistent act. We decline to do so and will adhere to our clear precedent on this point. In the instant case, it is undisputed that traffic on the Southern Drive did not stop for seven years. There were only twenty-one months, at most, of nonuse before Riley put up the fence. The chancery court correctly decided this point.

IV Estoppel

Appellants argue for their next point that Foxglen Associates and Hart knew that the southernmost patio home lot was being sold, and they said nothing about their intention to resume use of the Southern Drive. The appellants assert that this silence estops Foxglen Associates and Hart from breaking their silence at such a late date, after the patio home had been sold to Riley and residence in the home has been established.

Equitable estoppel requires that an innocent person be misled to his or her detriment, so that it would be inequitable to permit the person estopped to change an original position. Exchange Bank & Trust Co. v. Gibbons, 228 Ark. 454, 307 S.W.2d 877 (1957). In order to prove estoppel, the party asserting the defense must prove the following elements: (1) the party to be estopped knew the facts; (2) the party to be estopped intended that the conduct be acted on; (3) the party asserting the estoppel was ignorant of the facts; and (4) the party asserting the estoppel relied on the other’s conduct and was injured by that reliance. Bedford v. Fox, 333 Ark. 509, 970 S.W.2d 251 (1998); Foote’s Dixie Dandy Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980). See also Parker v. Parker, 75 Ark. App. 90, _ S.W.3d _ (2001). The conduct of the party to be estopped may consist of declarations or admissions, or failure to act or speak. American Cas. Co. v. Hambleton, 233 Ark. 942, 349 S.W.2d 664 (1961). The second element of estoppel has been alternatively stated as follows: The person to be estopped must intend that his conduct shall be acted on or must so act that the party asserting the estoppel had a right to believe it is so intended. Foote’s Dixie Dandy Inc. v. McHenry, supra.

The chancery court determined that equitable estoppel would not pertain in this case because Foxglen Associates and Hart were strangers to the transaction for the sale of the patio home that occurred between Riley on the one hand and Bradley and Lile on the other. The chancery court is correct. Foxglen Associates and Hart were not parties to the sale of the patio home to Riley. Yet, the appellants argue that the second element was met because Foxglen Associates and Hart intended by their silence to induce Riley to buy the patio home. This argument requires this court to speculate unduly. There is nothing in the record to show that the appellees (1) knew of the specific pending transaction between Riley and Bradley and Lile, (2) deliberately held their tongues as to the past use of the Southern Drive, and (3) did so with the intent of inducing Riley to buy the patio home property from Bradley and Lile. Were we to subscribe to the appellants’ theory that Foxglen Associates and Hart intended reliance on their silence, we would be engaging in rank conjecture.

We decline to extend the doctrine of equitable estoppel to the facts of this case.

V. Apparentness

For their final point, appellants take issue with the chancery court’s finding that the easement along the Southern Drive was apparent upon an ordinary inspection of the lot, and that due to this apparentness, Riley was on notice of the drive’s history and had a duty to inquire. Riley points to the cable and signs across the Southern Drive blocking traffic at the time. Despite the fact that the Southern Drive was paved and curbed, he argues that he was not put on notice of the possibility of the lot being encumbered with an easement. Riley further emphasizes that he asked about the status of the drive and was told that it had been closed for “over a year.”

This court has held that when ordinary inspection of the premises by a purchaser, followed by reasonable inquiry, would reveal the existence of a servitude, then that purchaser is charged with notice. Armstrong v. McCrary, 249 Ark. 816, 462 S.W.2d 445 (1971) (citing Hannah v. Daniel, 221 Ark. 105, 252 S.W.2d 548 (1952)). When a person has knowledge sufficient to lead him or her to a fact, that person will be deemed to know it. Hannah v. Daniel, supra; Waller v. Dansby, 145 Ark. 306, 224 S.W. 615 (1920). Whether or not an easement is apparent is a question of fact. Diener v. Ratterree, 57 Ark. App. 314, 945 S.W.2d 406 (1997).

The chancery court made the following findings on this point:

George Riley, Jr. is not an innocent purchaser for value. By his own testimony, he was aware of the significance of the open access and non-permanent cable (i.e., it was “apparent”), as evidenced by his inquiry of Reggie Clow. Further, the Owners Association of Foxcroft Woods, through Bill Rea, its president, was well aware of the long and continuously uninterrupted public use. Therefore, Riley cannot contend that the easement was not apparent. As a result of the “apparentness” of the nature of the easement, the law mandates that Mr. Riley exercise ordinary care and diligence in inquiring into the nature of the potential encumbrance. After learning only that the cable had been up for “over a year,” Mr. Riley testified that he did not inquire into anything further, such as why a permanent barrier had not been put up across the access area, nor did Mr. Riley seek to determine or verify the time period the Southern Drive had actually been blocked, or ask how the open access came to be “private.” Considering Mr. Riley contends he would not have purchased the property if he had known the nature of the public access, his actions clearly did not meet the standard of ordinary care and diligence required under Diener v. Ratterree, supra; Waller v. Dansby, supra; Hannah v. Daniel, supra; and Childress v. Richardson, supra. These facts, in addition to the apparent age of the numerous commercial projects abutting or surrounding the Southern Drive, along with the paved, curbed, and open nature of the access with no permanent barrier, provided Mr. Riley with more than sufficient information to lead him to the true facts, that the cable had only been up less than a year, and that the Owners Association of Foxcroft Woods, Inc. had been aware of the public nature of the access for several years, all facts of which Reggie Clow and Bill Rea were aware, based on the minutes of the Foxcroft Property Owners Association and their depositions.

We cannot say that the chancery court clearly erred in finding that Riley was on notice of the potential for an easement burdening his land. There was a paved asphalt road with curbs running across a portion of his lot. That fact alone was sufficient to put Riley on notice. Further, the manner in which the road was blocked was not permanent. There were no posts sunk in the middle of the road, permanently blocking traffic. And the fact that Riley was told that the Southern Drive was closed for over a year begs the question of what was its status before then. We decline to reverse the chancery court on this point.

Affirmed.

GLAZE, J., not participating.

       The chancery court’s order refers to the Southern Drive being open to the public for approximately fifteen years. The stipulation of the parties indicates its was open to the public from the mid-1980s to August 1997.