author: RAY THORNTON, Justice.

text:
    Milton Harold JACKSON and Mary Ann Jackson v. MUNDACA FINANCIAL SERVICES, INC.
    01-893
    76 S.W.3d 819
    Supreme Court of Arkansas
    Opinion delivered May 30, 2002

      McMath, Vehik, Drummond, Harrison, & Ledbetter, P.A., by: Hank Bates, for appellant.

      Wilson & Associates, P.L.L.C., by: Patrick J. Benca and Daniel L. Parker, for appellee.
   RAY THORNTON, Justice.

This case involves a mortgage and note made by appellants Milton H. Jackson and Mary A. Jackson to Twin Arkansas Home Improvements on May 20, 1985. Appellee Mundaca Financial Services, an assignee and the current holder of the mortgage, filed suit for foreclosure on appellants’ home on September 10, 1999. Appellants answered and filed a counterclaim, alleging that the note and mortgage violated the usury laws of Arkansas.

At the bench trial, appellants argued that the interest rate was usurious under Article 19, Section 13(a)(1), of the Arkansas Constitution because it was greater than five percent above the Federal Reserve discount rate at the time of the contract. Appellee did not dispute that the Federal Reserve discount rate was eight percent on the date the note was made, nor that the interest rate on the note was 16.484% — 8.484% greater than the Federal Reserve discount rate.

Appellee consistently contended that the Arkansas usury ceiling was preempted by certain federal laws. Initially, appellee cited that the loan was a Federal Housing Agency (FHA) approved Title I home improvement loan, and therefore Arkansas’s usury law was preempted under 12 U.S.C. § 1735f. The chancellor rejected that argument because appellee failed to prove at trial that either Twin Arkansas Home Improvement Co. or American Savings and Loan was approved by the U.S. Department of Housing and Urban Development (HUD) to make Title I loans to the State of Arkansas at the time the loan was made. The chancellor’s reasoning was that because these entities were not regulated by HUD, the protection from predatory lending practices did not attach, and therefore, the federal preemption provisions did not apply. We agree.

On June 30, 2000 the chancellor entered judgment for appellants, finding:

1) the mortgage and note were void as to unpaid interest; and
2) Mundaca Financial Services should pay the Jacksons $56,697.42 (the amount equal to doubling the amount of interest paid at that time, and then reducing that figure by the principal still due on the loan); and
3) the Jacksons were due $5,145.00 in attorneys’ fees pursuant to Ark. Code Ann. § 4-57-108.

On July 10, 2000, appellee filed a motion for reconsideration, raising the new argument that because the Resolution Trust Corporation (RTC) was a prior assignee, appellants’ usury claim is barred by the “federal holder in due course” rule and/or the federal common-law D’Oench Duhme doctrine. On August 8, 2000, the chancery court set aside the order in favor of the Jacksons to allow time to consider this new argument. We conclude that the chancellor erred in setting aside her June 30, 2000 judgment, and we reinstate the June 30, 2000 decision.

After reopening the June 30, 2000 decision in a letter opinion dated February 20, 2001, the chancellor rejected appellee’s federal common-law defenses, relying on an Eighth Circuit case that stated:

In light of the United State Supreme Court’s decision in O’Melveny & Meyers v. FDIC, 512 U.S. 79 (1994), we conclude that the extensive statutory framework of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIR-REA — or 12 U.S.C. § 1823(e)) implicitly excludes federal common law defenses not specifically mentioned in the statute.

Divall Insured Income Fund v. Boatmen’s First National Bank, 69 F.3d 1398 (8th Cir. 1995). The chancellor held that the court in O’Melveny removed the federal common-law D’oench Duhme doctrine and the federal holder-in-due-course doctrine as separate bars applicable to Mundaca’s defense, and that for the defense to be barred, it must be by either a specific provision of FIRREA or by state law. The chancellor then rejected appellee’s argument that 12 U.S.C. § 1823(e) applied in this case because the usurious interest rate was included in the note itself.

The chancellor, considering arguments that were not made before the original judgment, then turned to state law and found that appellee was a holder in due course and ruled that under Ark. Code Ann. § 4-3-305 (1991), a holder in due course is immune from usury claims. The chancellor then entered judgment against appellants in the amount of $3,772.22 (the accrued interest of $1,390.48, plus added costs, expenses and fees equal to $1,066.03). The chancery court clerk disbursed $6,228.73 to appellee from funds that appellants previously deposited into the registry of the court.

On March 30, 2001, appellants filed a motion for reconsideration. They argued that appellee was not a holder in due course under Arkansas law because the note contained the language that Federal Trade Commission (FTC) requires that expressly eliminates limitations on assignee liability for debtor claims and defenses:

NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVER HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

Additionally, appellants contended that Arkansas usury law is governed by Article 19, Section 13, of the Arkansas Constitution and that Ark. Code Ann. § 4-3-305 does not create an exception to the constitutional provisions.

On May 1, 2001, the chancellor denied appellants’ motion for reconsideration, finding that appellants’ loan should not be characterized as a “consumer loan.”

On May 24, 2001, appellants filed this appeal. On June 6, 2001, appellees filed the cross-appeal on the limited issue of the insufficiency of the attorneys’ fees awarded to them. We took this appeal in order to review the chancellor’s findings relating to the existence of a “consumer loan” and the finding that Ark. Code Ann. § 4-3-305 provides immunity for a holder in due course from the constitutional prohibition of usury. However, we do not reach these issues because we have determined that the chancellor exceeded her authority in reconsidering her judgment of June 30, 2000. Accordingly, we hold that the judgment dated June 30, 2000, should be'reinstated.

While a chancery court’s findings of fact shall not be set aside unless clearly erroneous, a chancellor’s conclusions of law are not given the same deference. Vowell v. Fairfield Bay Community Club, Inc., 346 Ark. 270, 58 S.W.3d 324 (2001). Accordingly, if a chancellor erroneously applies the law and an appellant suffers prejudice, the erroneous ruling should be reversed. Id.

Appellee first raised the claim that it was immune from the constitutional prohibition against usury because it was a holder in due course in its July 10, 2000, motion for reconsideration following the chancellor’s initial judgment in favor of the Jacksons. Appellee’s argument states an affirmative defense. Rule 8(c) of the Arkansas Rules of Civil Procedure requires a party to raise affirmative defenses in the pleadings: “In responding to a complaint, counterclaim, cross-claim or third party claim, a party shall set forth affirmatively . . . estoppel. . . and any other matter constituting an avoidance or affirmative defense.” Appellants argue that appellee’s defenses premised upon 12 U.S.C. 1819 and by holder in due course arguments are in the nature of estoppel and affirmative defenses that must be pled prior to trial. We agree and conclude that those defenses may not be raised after the conclusion of the trial. See, Ark. R. Civ. P. 8(c).

Claiming holder-in-due-course status is by nature an estoppel defense in that if a defense against paying the note is proven, the respondent may seek to cut off the defense by proving that the plaintiff is a holder in due course. See, 11 Am. Jur. 2d Bills and Notes § 263 (2001). Furthermore, all elements related to holder-in-due-course status must be proven by the claimant of that status by affirmative proof. See, 12 Am. Jur. 2d Bills and Notes § 665 (2001). Defenses that must be set forth affirmatively must be raised prior to trial or be waived. See, 12 Am. Jur. 2d Bills and Notes § 656 (2001).

It has been well established that Rule 8 requires that affirmative defenses including estoppel defenses, such as the holder-in-due-course doctrine, be argued in the pleadings. Wright v. Langdon, 274 Ark. 258, 623 S.W.2d 823 (1981). In Wright, we held that the trial court did not abuse its discretion in denying a third-party defendant’s attempt to amend its answer and assert the defense of limitation and laches, where pleadings had been joined for a year. Id. Defendants were stationed in Alaska, and all the parties had testified, and the case was about to be completed when the third-party defendant tried to interpose new defenses. Id. This court held that third-party defendant’s action was barred by Ark. R. Civ. P. 8. Id.

Appellants also cite Arkansas Rule of Civil Procedure 59(a)(8) as a bar to consideration of appellee’s new claim asserted in its motion for reconsideration. Appellant argues that appellee did not assert any of the grounds for a new trial set forth in Ark. R. Civ. P. 59, and the chancellor should not have considered the new argument based on the holder-in-due-course affirmative defense.

Arkansas Rule of Civil Procedure 59(a) states in pertinent part:

A new trial may be granted to all or any of the parties on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party:
(1) any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial; (2) misconduct of the jury or prevailing party; (3) accident or surprise which ordinary prudence could not have prevented; (4) excessive damages appearing to have been given under the influence of passion or prejudice; (5) error in the assessment of the amount of recovery, whether too large or too small; (6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law; (7) newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial; (8) error of law occurring at the trial and objected to by the party making the application.

Id. (Emphasis added.)

First, we must clarify that, under certain circumstances, motions may be liberally interpreted by the court. Slaton v. Slaton, 330 Ark. 287 (1997). As we stated in Slaton:

We have previously held that motions should be liberally construed, and that courts should not be blinded by titles but should look to the substance of motions to ascertain what they seek. Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987). For example, in Jackson v. Arkansas Power & Light Co., 309 Ark. 572, 832 S.W.2d 224 (1992), we held that a motion to vacate which stated that the judgment was void because “it is contrary to the facts, public policy and is clearly contrary to the preponderance of the evidence” was really a motion for a new trial under Ark. R. Civ. P. 59(a)(6). As in Jackson, Teresa claimed in her motion for reconsideration that the divorce decree was contrary to the preponderance of the evidence, which is a specifically enumerated ground for a new trial under Ark. R. Civ. P. 59(a)(6). Thus, we hold that Teresa’s September 26, 1991, pleading was a motion for a new trial.

Slaton, supra.

In the instant case, appellee’s motion for reconsideration asserted the new argument that because the RTC was a prior assignee, appellants’ usury claim is barred by the “federal holder in due course” rule and/or the federal common-law D’Oench Duhme doctrine. The motion for reconsideration did not rely on any of the eight possible grounds for a new trial described in Ark. R. Civ. P. 59(a)(l)-(8). Rather, appellee’s motion for reconsideration was an attempt to raise an estoppel defense they had not considered previously, clearly not the purpose of Ark. R. Civ. P. 59(a). While appellees framed their motion for reconsideration as a motion for a new trial, they did not state any of the eight possible grounds for a new trial.

In Nazarenko v. CTI Trucking Co., 313 Ark. 570, 856 S.W.2d 869 (1993), we held that a new trial could be granted where an error occurred at trial, but Nazarenko is distinguishable from the instant case in that the party making the application for the new trial objected to the error at trial. In Burnett v. Fowler, 315 Ark. 646, 869 S.W.2d 694 (1994), we held that the trial court did not abuse its discretion by granting a new trial after concluding that evidence that had been admitted and objected to by the party asking for a new trial, was irrelevant and overly prejudicial, substantially affecting the outcome of the trial.

Appellants claim that because appellee made no mention of the holder-in-due-course argument and did not contend for consideration of that principle of law at any time during the pretrial pleadings, brief, or at the January 6, 2000 trial, that the trial court erred in considering the holder-in-due-course argument when determining whether a new trial should be granted. We agree and conclude that Mundaca was barred by Ark. R. Civ. P. 8 from raising the issue of whether it was a holder in due course in its motion for reconsideration. Accordingly, we decline to address the issues on appeal relating to appellee’s holder-in-due-course status. We hold that the chancellor erred in granting the motion for reconsideration, and we conclude that the chancellor’s original order in favor of the Jacksons entered on June 30, 2000, should be reinstated. For that reason appellee’s cross-claim for attorneys’ fees is moot.

We reverse and remand to the trial court for further action consistent with this opinion.

       Briefly, the D’oench Duhme doctrine is the common law rule barring the creation of secret agreements, unrecorded in bank records, and used as defenses from payment of a promissory note. See, D’oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942).

       Ark. Code Ann.§ 4-3-305 states in pertinent part:
      (a) Except as stated in subsection (b), the right to enforce the obligation of a party to pay an instrument is subject to the following:

        (1) A defense of the obligor based on . . . (ii) duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor . . .
      (2) A defense of the obligor stated in another section of this chapter or a defense of the obligor that would be available if the person entitled to enforce the instrument were enforcing a right o payment under a simple contract; and
      (3) A claim in recoupment of the obligor against the original payee of the instrument if the claim arose from the transaction that gave rise to the instrument; but the claim of the obligor may be asserted against a transferee of the instrument only to reduce the amount owing on the instrument at the time the action is brought.
      (b) The right of a holder in due course to enforce the obligation of a party to pay the instrument is subject to defenses of the obligor stated in subsection (a)(1), but is not subject to defenses of the obligor stated in subsection (a)(2) or claims in recoupment stated in subsection (a)(3) against a person other than a holder.


source: Caselaw Access Project

author: JIM HANNAH, Justice. ROBERT L. BROWN, Justice,

license: Public Domain

text:
    D.B. GRIFFIN WAREHOUSE, INC. v. Margaret SANDERS
    01-716
    76 S.W.3d 254
    Supreme Court of Arkansas
    Opinion delivered May 30, 2002

      Daggett, Donovan, Perry & Flowers, PLLC, by: Jesse B. Daggett; and Friday, Eldredge & Clark, by: Robert S. Shafer and William A. Waddell, Jr., for appellant.

      Wilson, Valley & Etherly, by: E. Dion Wilson, for appellee.
   JIM HANNAH, Justice.

Appellant D.B. Griffin Warehouse, Inc. (Griffin), appeals a Phillips County jury verdict awarding Appellee Margaret Sanders (Margaret), individually and as administratrix of the estate of Charles Sanders (Charles), deceased, $1.5 million in damages in a wrongful-death lawsuit for Charles’s death when he fell through a skylight while painting Griffin’s warehouse roof in October 1991. An appeal from the first trial in this case was before this court in D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999) (“Griffin I”), in which the jury awarded damages totaling $488,958. We reversed and remanded finding that the trial court erred in failing to direct a verdict in Griffin’s favor that Delta Hardware and Lumber Company (Delta), the company hired by Griffin to perform the painting work on Griffin’s warehouse roof and for whom Charles worked, was an independent contractor. Upon reversal and remand for a new trial, we limited the remaining issue to Griffin’s liability to Charles as an employee of an independent contractor. This appeal arises from the second trial in this case.

After Margaret received workers’ compensation death benefits from Delta’s workers’ compensation carrier, she brought an action against Griffin for wrongful death, alleging that Griffin had breached specified duties of ordinary care, that it failed to provide certain safety devices that would have prevented his fall, and that it failed to provide him with a safe working environment. As noted, the first trial in May 1997 ended in a jury verdict in Margaret’s favor, but this court reversed and remanded the matter for a new trial due to the trial court’s failure to grant Griffin’s motion for summary judgment on the issue of Delta’s status as an independent contractor. Although we discussed and provided for the trial court Griffin’s duties to Charles, we did not rule on those issues, and specifically noted that the only issue on which the court ruled was the issue of Delta’s status as an independent contractor.

After remand, the parties prepared for a second trial. On July 24, 2000, Margaret filed.a motion to exclude the testimony of John Stiles and Alan Anderson, Griffin’s professional structural engineers who did not testify at the first trial. At the first trial, Griffin’s expert witness, William Flowers, a building contractor whom Griffin engaged after being surprised by plaintiffs witness Odell Davis’s trial testimony that there was a “bend” in the roof after Charles fell, testified as to the structural soundness of the building. On retrial, however, Griffin engaged the services of Stiles and Anderson to testify as to the structural soundness of the building and, specifically, to the condition of the skylight and surrounding metal roof.. Margaret argued in her motion that under the Arkansas Rules of Evidence and case law allowing for the admissibility of evidence, Stiles’s and Anderson’s testimony given at their October 19, 1999, depositions did not rise to the level of expert testimony as their methodology and lack of prior expert designation rendered their testimony unreliable. Margaret argued that Stiles and Anderson did not base their findings on any particular accepted methodology or science, and questioned whether this rendered it “junk science.” Furthermore, Margaret argued that these engineers did not examine the building and skylight area until July 8, 1999, and that eight years had passed from the date of the accident, making any decision on their part unreliable. Finally, Margaret argued that we determined in Griffin I that Occupational Safety and Flealth Inspector Edgar Reed’s testimony indicating that there was “dry rot” around the skylight was “relevant, credible, and competent,” and that this is now law of the case.

On August 2, 2000, Griffin responded to the motion to exclude Stiles’s and Anderson’s testimony. Griffin argued that Stiles and Anderson qualify as experts in the field of structural engineering due to their education and training, both having passed the professional-engineering examination and having worked nearly their entire careers for metal-building manufacturers or in industries utilizing metal buildings. Griffin argued that total preclusion of their testimony would be overly broad, especially considering the plaintiff cannot know what questions will be asked of Griffin’s experts at trial. Finally, Griffin argued that the issue at trial was whether the roof was defective, and Griffin should be allowed to present expert testimony that it was not.

This motion was heard on the first day of trial, November 27, 2000. After hearing arguments, the court granted Margaret’s motion to exclude Stiles’s and Anderson’s testimony. Although the court quoted substantial case law on the admission and exclusion of expert testimony and evidence, the court only provided two reasons to support the exclusion of the testimony. First, the court excluded this testimony due to the remoteness in time from the accident in 1991 to Stiles’s and Anderson’s inspection of the warehouse in 1999. Second, the trial court, relying on one of three considerations we noted in Farm Bureau Mutual Insurance Company v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000), in which we quoted Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991), determined that the admission of this evidence would overwhelm, confuse, and mislead the jury.

Margaret presented her case by calling seven witnesses. She first called David Griffin, owner of D.B. Griffin Warehouse, Inc. He testified that he bought the building in 1989, but that he actually only handled the money involved in the cotton-storage business. He testified that his managers, General Manager Gary Inman and Warehouse Manager Robert Manning, handled the day-to-day activity at the warehouse. He testified that he directed Inman to find a contractor to get the roof painted. He testified on cross-examination that he never saw any pockets of water in the insulation to indicate that the roof ever leaked or that any of the skylights were broken or defective. Finally, he testified that after the accident in 1991, he did not authorize any major repairs of the roof, but that he did authorize the temporary repair with a piece of metal roofing to the hole where the skylight was located.

Manning testified next that he inspected the roof prior to getting bids for the painting contract. Manning, who weighed approximately 290 pounds when he inspected the roof in 1991, testified that he walked the entire length of the roof across the purlins, or steel support beams, and the unsupported tin roofing sections. He viewed the skylights and noted that none were broken or leaking, and he also noted that he did not see any damage around the skylights. Manning also testified that after the accident, he again walked on the roof, and created a temporary repair over the hole. He indicated that he put a piece of tin underneath the open area, secured it with a few screws to the existing pieces of tin, and placed some bricks on top to keep it from blowing away. He indicated that he did not tighten the bolts to make the tin and the open area as close as possible, but rather just put the tin in place to cover the hole, knowing that it would probably leak. On cross-examination, he indicated that the skylight material was affixed to a purlin on either end.

Next, Inman testified that the only connection he had to the warehouse and the painting project occurred when Griffin told him to find a contractor to paint the roof, and Inman hired Delta. He testified that it never came to his knowledge that the warehouse had a leak, defect, or other problem, other than it needed painting.

Following Inman’s testimony, Griffin’s attorney again raised the issue of the exclusion of its experts’s testimony. Griffin’s counsel argued that his experts would have testified about how the skylight was connected to the purlins, and that the experts had reviewed the Metal Building Manufacturers Code and found that the budding was built according-to code. Because Margaret’s attorney attempted to imply that the purlins were not connected to the sides of the lights, and that this somehow was a defect in the building plans, Griffin’s counsel indicated that the ’experts would testify that the building was built to the standard of the industry. Margaret’s attorney responded that Margaret planned to present testimony from Gary Carpenter that it was standard practice to bolt the skylight from purlin to purlin, and this particular skylight was only connected on the ends. The trial court again excluded the experts from testifying, based on the same reasons as before.

Odell Davis Jr. testified next. Davis was one of Charles’s coworkers who was on the roof at the time of the accident. Davis testified that although no one from Griffin advised him personally of any dangers regarding the building or the job, Charles himself told them not to step on the skylights. He testified that they were on the roof for only about ten to fifteen minutes before Charles fell, and that he did not inspect the skylight or the hole after the accident that day. He testified that several days after the accident, he and some other workers went back on the roof to cover the hole with some plastic, and that the roof had “soft spots.” He said that when he put the plastic over the hole, he was laying on his stomach, and that it appeared to him that the tin had bent on one side of the hole. On cross-examination, Davis testified that his work group had painted another part of the roof and found no problems with the roof or the skylights. He also testified that he had made an earlier statement that Charles was stepping backwards as he began spraying a test pattern, and that although Davis saw a bend in the tin, he could not say for sure that that was where Charles stepped. Davis did not see Charles fall. Davis was filling his spray-paint container. Davis heard a noise and looked up to see Charles chest high as he fell through the skylight. Finally, Davis testified that he believed that the screws in this skylight were in the wrong place for proper support, but he conceded that at the first trial he testified that he did not know whether they were in the proper position.

Finally, Margaret called Edgar Reed, the OSHA inspector in 1991, and he testified briefly that, when asked by plaintiffs counsel in 1995 whether the skylight had dry-rotted, he responded, “Yes.” He stated that the skylights were part of the roof.

Following Reed’s testimony, the plaintiff rested and Griffin’s counsel attempted to make its motion for directed verdict. However, the trial court, not wanting to spend “a lot of time now that I think would be best spent before the jury with the trial,” noted that Griffin had preserved its motion but delayed hearing the motion and arguments until the next court recess.

Griffin then presented its case, beginning with Edgar Reed. Reed provided information regarding the OSHA regulations surrounding the painting of a roof, and indicated that the OSHA regulations for painting a roof had been violated. Reed indicated that the skylights should have been guarded with a railing protecting a man weighing up to 200 pounds, or the skylights should have been covered with plywood that would have supported a 200-pound man. Reed noted that here, it was Delta’s obligation, as the employer, to provide these protections. James Moorehead, a safety engineer, testified next and basically reiterated the comments made by Reed, especially highlighting that the employer, Delta, was responsible for protecting its workers on Griffin’s roof.

The court took up the directed-verdict motion following Moorehead’s testimony. Griffin made several points in its argument, including that there was no evidence that the warehouse premises were unsafe, that no one from Griffin knew or should have known that the premises were unsafe, or that the warehouse roof had any sags, leaks, cracks, dents, or depressions in the tin to lead the owner to believe that there was a defective or dangerous condition. Griffin argued that there was no evidence that the skylights were weakened over time, and that even if the actual light was weakened, all of the workers knew not to step on them anyway as they were an obvious danger, weakened or not. Furthermore, Griffin noted that any allegation that Griffin failed to inspect the roof was false because Manning, weighing 290 pounds, walked the entire roof before contracting the job to Delta, and he testified that he saw no dangers or defects in the roof. Additionally, the roof never collapsed with the weight of any of the Delta workers during the two times they were on the roof priming and painting it. Next, Griffin argued that it did not fail to maintain inspection and safety of the roof before assigning the painting job, and that Griffin’s only duty was to warn Delta of any known dangers that were not open and obvious. Griffin also noted that they could not warn of any danger in the housing of the skylight, if it existed, because Manning’s inspection of the roof did not show that, and that the only evidence to this effect was Davis’s testimony that the entire roof felt “soft” and that he thought there was a bend in the tin near the skylight. Griffin argued that there was no evidence as to how Charles fell through the skylight, as no one, including Davis, saw him fall, or saw how or why he fell. Any allegation that the tin “bent” and threw him into the skylight is pure speculation, particularly because there was no evidence that the tin was bent due to Charles’s weight, or that there was even a “dent” in the tin anyway.

Margaret’s attorney responded that the Arkansas Supreme Court already ruled that a material issue of fact remained as to whether there were hidden or latent dangers, and that the evidence conflicted as to the condition of the roof and skylight at the time of the accident. Griffin’s attorney responded that the condition of the skylight was irrelevant, even if it had dry-rotted, because Charles knew before getting on the roof that the skylight was an obvious danger of which the Delta employees had been warned. He continued arguing that there was no direct proof as to how Charles fell, or that the dent in the tin by the skylight was in any way related to the fall. As such, any conclusion was speculation. Following these arguments, the court indicated that it would rule on the motion the following day.

The second day of trial proceeded with Griffin’s next witness, Gary Carpenter. Carpenter, Delta’s owner, testified that he visited the warehouse site after he was awarded the job, and climbed up to the roof to determine what type of primer to use on the metal. Fie described the building as “a typical metal building,” and he indicated that he saw no dents or depressions in the roof that would indicate any type of structural defect. He noted that he observed the skylights, and that they are not structurally sound and should be treated like glass. He stated that he discussed the job and, particularly, the skylights with Sanders and the other two workers prior to undertaking the job, and noted that they, too, had skylights in the building in which they worked. He indicated that although he felt the “spring” or “give” in the metal roofing between the purlins, the building was constructed to regional standards for this part of the country, and that during his inspection he had no concerns about the structural integrity of the building. He indicated on cross-examination that while he thought it was “standard operating procedure” to bolt a skylight “on both ends as well as attached to the metal, to their sides,” he testified that he did not say that the skylight was “supposed to be bolted down to the purlin on both ends and bolted down in the middle,” due, in part, to the fact that not every piece of material ended on a purlin.

Randall Hurd, a contractor, testified next that when his company submitted a bid to paint the warehouse roof, he, too, climbed on the roof to inspect it. He testified that he did not see any structural defects or damages to the roof or the skylights, and that the skylight would not support a person’s weight. He also testified that walking on the tin between the purlins would cause some “flex” but that it was normal. He also indicated that he did not see any creases or bends on any of the roof panels.

Finally, Manning testified again that when he and his crew performed the skylight repair following the accident, he did not see any damage or dents in the ridges and valleys of the tin roof pieces, and that the only damage he saw was to the skylight itself.

Following its case, Griffin renewed its motion for directed verdict on the basis of that argued the day before, and on the basis that, as a matter of law, if the skylight covers or railings had been put in place by Delta, the accident would not have occurred. However, again, the court deferred making a decision on that motion. The parties then discussed the jury instructions, the court charged the jury and gave those instructions, and then prior to closing arguments, Griffin’s counsel indicated that the trial court had declined to rule on the motions for directed verdict. To this, the trial court responded, “The court has not declined to do so. The court has denied.” Counsel gave closing arguments, and the jury retired. During deliberations, Griffin proffered testimony from Stiles’s and Anderson’s depositions, and also photographic evidence of the roof. The jury then returned and rendered its verdict in favor of Margaret Sanders in the amount of $1.5 million dollars. Griffin raises three points on appeal, but because we find that there was no substantial evidence that Griffin breached a duty to Charles, we reverse and dismiss this case.

Griffin argues that the trial court erred in denying Griffin’s motion for a directed verdict on the issues of negligence and proximate cause. Griffin argues that there was no testimony that the condition of the roof, apart from the obvious danger of the skylights and the edge of the roof, presented a risk of harm, nor was there any testimony that Griffin knew or should have known that the roof presented an unreasonable risk of harm either because of the “soft” spots or because of the way in which the skylight was attached to the roof. Griffin asserts that there is insufficient evidence that it breached a duty to Sanders or that any act or omission was the proximate cause of Sanders’s death.

Margaret responds that Griffin knew that the skylight was obviously damaged with dry-rot and that the skylight was a part of the roof. Margaret argues that these “defects” in the skylights, as part of the roof, were corroborated by Davis who testified that Sanders told the workers not to step on the skylights, and that Davis also indicated that they felt “soft spots” when they were working on the roof. He further testified that the tin “gave way” around the skylight where Charles fell through, and that the skylight was defective because it was not attached to the purlins. Margaret argues that this testimony shows the existence of a “defect and hazardous condition.” She argues that this testimony created conflicting evidence, making a directed verdict improper.

A directed-verdict motion is a challenge to the sufficiency of the evidence, and when reviewing a denial of a motion for a directed verdict, this court determines whether the jury’s verdict is supported by substantial evidence. See, e.g., Pettus v. McDonald II, 343 Ark. 507, 36 S.W.3d 745 (2001); Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000); State Auto Property Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999). Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond mere suspicion or conjecture. See State Auto Property Cas. Ins. Co. v. Swaim, supra; City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995); St. Paul Fire & Marine Ins. Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351 (1995).

When determining the sufficiency of the evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered, and we give that evidence the highest probative value. See State Auto Property Cas. Ins. Co. v. Swaim, supra; Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). A motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. ConAgra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). A motion for a directed verdict should be denied when there is a conflict in the evidence or when the evidence is such that fair-minded people might reach different conclusions. Wal-Mart Stores, Inc., v. Kelton, supra; Stalter v. Coca-Cola Bottling Co., 282 Ark. 443, 669 S.W.2d 460 (1984). Under those circumstances, a jury question is presented, and a directed verdict is inappropriate. Wal-Mart Stores, Inc., v. Kelton, supra; Stalter v. Coca-Cola Bottling Co., supra. It is not this Court’s province to try issues of fact; we simply examine the record to determine if there is substantial evidence to support the jury verdict. Wal-Mart Stores, Inc., v. Kelton, supra; City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000).

To begin our analysis, we revisit our decision in Griffin I to determine exactly what we decided in that case to determine how it affects this' decision. In Griffin I, this court determined that the trial court erred in finding that Delta was not an independent contractor, and we reversed and remanded the case for a new trial limiting the issue as to Griffin’s liability to Charles as an employee of an independent contractor. See Griffin I, 336 Ark. at 469. Furthermore, to provide guidance to the trial court for retrial, we also discussed the duty owed by Griffin to Delta and its employees and to state that disputed facts in the first trial existed regarding whether there was a hidden or latent danger about which Griffin should have advised Delta. We based this determination on the supposedly conflicting testimony provided by Manning and Carpenter that their inspection of the roof indicated that there were no defects, while Reed and Davis indicated that the skylight had “dry-rot” and the tin around the accident area had an indentation. We further stated that “we cannot say that there was no ‘evidence of the existence of any defect or hazardous condition,’” and to indicate that we deferred to the jury’s determination of credibility of the witnesses. Griffin I, 336 Ark. at 468. However, on review of the testimony and evidence from the second trial, it becomes apparent that there is no substantial evidence whatsoever that there was a latent defect or danger that caused Charles’s fall.

We laid out Griffin’s duty to Delta and its employees in Griffin I, noting that it is generally recognized that an employer of an independent contractor owes a common-law duty to the contractor’s employees to exercise ordinary care for their safety and to warn against any hidden dangers or unusually hazardous conditions. Jackson v. Petit Jean Electric Co-op, 210 Ark. 506, 606 S.W.2d 66 (1980) (citing Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969)). Furthermore, the duty of an employer of an independent contractor to use ordinary care or to warn of latent dangers does not contemplate a duty to warn of obvious hazards which are an integral part of the work the contractor was hired to perform. Id. An owner may avoid liability by providing timely notice of a latent dangerous condition of which he is, or reasonably should be, aware. Phillips v. Morton Frozen Foods, 313 F. Supp. 228 (E.D. Ark. 1970) (interpreting Arkansas law in St. Louis, I.M. & S. Ry. Co. v. Dooley, 11 Ark. 561, 92 S.W. 789 (1906) and Dixon v. United States, 296 F.2d 556 (8th Cir. 1961)).

The question of the duty owed to the plaintiff alleging negligence is always one of law and never one for the jury. Griffen I, supra; DeHart v. Wal-Mart Stores, 328 Ark. 579, 946 S.W.2d 647 (1997); Lawhon Farm Supply, Inc. v. Hayes, 316 Ark. 69, 870 S.W.2d 729 (1994); Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). If the court finds that no duty of care is owed, the negligence count is decided as a matter of law. Griffen I, supra; Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998); Smith v. Hansen, 323 Ark. 188, 914 S.W.2d 285 (1996). Duty is a concept that arises out of the recognition that relations between individuals may impose upon one a legal obligation for another. Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997), citing W. Prosser, Handbook on the Law of Torts, § 42 at 244 (1971).

As we noted in Griffin I, and as is apparent on retrial, the Delta employees were aware that the skylights posed an obvious hazard or danger that was an integral part of the work Delta was hired to perform. Therefore, Griffin had no duty to warn of these dangers because they were obvious and part of the work. However, the issue becomes whether there were latent dangers or defects known, or reasonably should have been known, to Griffin about which it should have warned Delta. The evidence does not support such a finding, and, therefore, Griffin did not breach a duty to Charles.

In looking at the testimony from the second trial, it is clear that there is no testimony, much less “disputed” testimony, regarding whether there was a known or unknown latent danger or defect in the roof. To understand this, we ask several questions regarding the alleged latent danger or defect, presumably the “bend in the tin,” in order to determine whether a duty was owed. First, the court must ask whether there was actually a “bend in the tin.” According .to the evidence, only Davis testified that he saw a bend in the metal next to the skylight, but he did not say whether the bend existed before the accident, only after the accident, or that Charles was the one who caused the bend when he fell. Carpenter and Inman testified that they did not see a bend or dent in the metal roof next to the skylight. Therefore, as we noted in Griffin I, this particular fact was in dispute. However, in Griffin I, we ended our inquiry there.

Now, we must move to the next question in our inquiry regarding whether, viewing this evidence in the light most favorable to the appellee, this was evidence of a latent danger or defect. In all of the testimony at trial, no witness testified that the bent metal was a danger or defect, latent or otherwise, nor was there any testimony that this was even the cause of the accident. There was no expert who testified about the makeup, pliability, shortcomings, dangers, or defects of a tin roof, and no evidence that one must be warned about the flexibility of such a metal. Rather, while Davis testified that the roof had “soft spots,” the testimony from Carpenter and Hurd indicated that it was normal that metal roofs had a “flex” when one walked on them, and that the building was built to code. Furthermore, even if we assumed, without any evidence indicating such, that the nature of a tin roof is dangerous or defective, the court must ask whether Griffin knew or should have known of that defect or danger after exercising reasonable care and foresight, given the surrounding circumstances. Again, there is absolutely no testimony in this regard. Rather, the evidence indicates that Griffin’s employees and Carpenter and Hurd walked and inspected the roof and never noticed a problem.

Again, the only evidence indicating that there could have been a problem with the tin roof was Davis’s testimony, and he could not say that the bend in the tin, if it even existed, was the cause of Charles’s fall. There is no indication whether this bend existed before the accident, after the accident, or even if it was caused by the accident. Davis did not see Charles when he fell or from what point the fall began. As such, there is no evidence that this bend in the metal roof was even involved in Charles’s fall. Any indication that it was would be mere speculation.

Furthermore, the OSHA investigator’s testimony that the skylight was “dry-rotted” also provides no basis for a finding that there was disputed evidence. In reviewing the transcript here, the OSHA investigator, Reed, testified that the “skylight” was dry-rotted, but not that the metal purlins or supports were dry-rotted. This is important because any allegation that this is a “defect” or “danger” is irrelevant &emdash; the skylights were a known hazard, thus not creating any duty on Griffin to warn of any “defect” or “danger,” whether in the form of dry-rot or otherwise, in the skylight itself. Therefore, any testimony about the “skylight” being hazardous does not create a question of fact creating a duty to warn.

This is a tragic accident, indeed; however, there is no evidence about what caused Charles’s fall, no evidence that a latent danger or defect existed about which Griffin had a duty to warn Delta’s employees, and no evidence that a latent danger or defect caused Charles’s fall. Any allegation of such is pure speculation. Furthermore, any evidence of the skylight’s alleged problems is irrelevant •&emdash;■ the skylight was an admittedly hazardous condition about which the Delta employees were aware, and it was Delta’s responsibility, as the employer, to provide the necessary protections for such obvious hazards. Pursuant to the requisite duties outlined in Griffin I, and on which this case was retried, Griffin did not breach a duty to Charles that caused his death.

Reversed and dismissed.

Brown and Imber, JJ., dissent.

ROBERT L. BROWN, Justice,

dissenting. I would not dis- miss this case but, instead, would reverse and remand for a new trial. In the first appeal in this matter, we made the following statement:

In the instant case, however, disputed facts exist regarding the hidden or latent dangers involved in the painting of appellant’s roof and whether or not those dangers were known or could have been discovered by appellant with reasonable care.

D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 466, 986 S.W.2d 836, 841 (1999) (Griffin I) (emphasis in original).

In Griffin I, we went on to say that the OSHA inspector, Edgar Reed, testified that “it was apparent that the skylights had dry rot.” In addition, Odell Davis testified that he noticed an indentation in the tin around the skylight which suggested that is where the victim, Charles Sanders, had stepped and that the tin had bent and given way. We then concluded:

After reviewing the evidence and all reasonable inferences arising therefrom in the light most favorable to Mr. Sanders, we cannot say that there was no “evidence of the existence of any defect or hazardous condition.” It is well settled that the weight and value of testimony is a matter within the exclusive province of the jury. Esry, supra. We, therefore, defer to the jury’s ascertainment of the credibility of the witnesses who testified about the roofs condition at the time of the accident.
Based upon all of the evidence in this case, we cannot say that no substantial evidence existed to support the jury’s verdict on the issue of Griffin’s liability.

Griffin I, 336 Ark. at 468, 986 S.W.2d at 842. We reversed and remanded because the victim' had been an employee of an independent contractor.

What has changed in the second trial? Nothing of significance as far as I can tell from the proof presented. The testimony from Edgar Reed and Odell Davis is the same or even more favorable to the widow. Indeed, Odell Davis’s testimony is stronger in the second trial. He testified that there were “soft spots” all over the roof and that “all of those skylights. . . were rotten.” He further testified that the tin was “weak all around this skylight.” And he testified the screws into the metal were in the wrong place where the victim fell. It seems woefully inconsistent for this court to now hold that the proof is not sufficient to support the verdict in the second trial when we held that it was sufficient in Griffin I.

Having said that, I believe the trial court erred in excluding part of the testimony of D.B. Griffin’s two engineering experts, Alan Anderson and John Stiles. Had they been allowed to testify, they would have opined about the overall structural integrity of the building and the fact that it was built in accordance with industry standards. That testimony, in my judgment, falls within the parameters of Ark. R. Evid. 702 as technical or other specified knowledge that would assist the trier of fact in reaching a decision. However, I would affirm the trial court in excluding their opinion testimony that there was no bend or crimp in the metal along the skylight and their opinions that the area around the skylight was not defective on the date of the accident. Such opinion testimony invades the province of the jury, and the trial court correctly excluded it.

I further would reverse on the basis of an erroneous instruction that was given to the jury on an employer’s duty to provide a safe workplace. The trial court instructed the jury that: “Every employer and every owner of a place of employment, place of public assembly or public building, shall construct, repair and maintain it as to render it safe.” The genesis for this instruction was Ark. Code Ann. § 11-2-117 (Repl. 2002), which deals with the duty of an employer to maintain a safe place of employment for its employees. We have interpreted the predecessor statute to § 11-2-117 (Ark. Stat. Ann. § 81-108 (Repl. 1960)) as not being applicable unless an employer-employee relationship existed. See Horn v. Shirley, 246 Ark. 1134, 441 S.W.2d 468 (1969). Here, the victim was not the employee of D.B. Griffin but rather was the employee of an independent contractor. Accordingly, I agree with D.B. Griffin that this instruction erroneously placed a duty on the business to make the roof safe for employees of an independent contractor. That is not the law. Rather, the factual issue for the jury to decide was whether hidden or latent dangers on the roof were known to D.B. Griffin or could have been discovered with reasonable care. I conclude that giving this instruction constituted reversible error.

Imber, J., joins.


author: Per Curiam.

text:
    Calvin Lashawn CAMPBELL v. STATE of Arkansas
    CR 01-1181
    76 S.W.3d 271
    Supreme Court of Arkansas
    Opinion delivered May 30, 2002

      Appellant, pro se.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Per Curiam.

Calvin Campbell was convicted by a jury of residential burglary and battery in the first degree and was sentenced to twenty years on each count; he was also charged with the rape of a nine-months’ pregnant woman in connection with that incident, but the jury deadlocked on that charge, forcing the trial judge to declare a mistrial. The court of appeals affirmed appellant’s convictions and sentences in Campbell v. State, CACR 00-543 (Ark. App. January 31, 2001). Subsequently, appellant filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The circuit court denied appellant’s petition without a hearing. This appeal followed.

As the State has pointed out in its brief, appellant has failed to adequately abstract the record for us to conduct a meaningful review of appellant’s issues on appeal. Prior to this court’s modification of Ark. Sup. Ct. R. 4-2, appellant’s claims would not have been considered because of his deficient abstract. However, under the modified rule, cases in which the record is lodged in the Arkansas Supreme Court or Arkansas Court of Appeals on or after September 1, 2001, will no longer be affirmed because of the insufficiency of the abstract without the appellant first having the opportunity to cure the deficiencies. See In re: Modification of the Abstracting System Amendments to Supreme Court Rules 2-3, 4-2, 4-3, 4-4, 345 Ark. Appx. 626, (2001) (per curiam). Therefore, appellant has fifteen days from the date of this opinion to file a substituted abstract, Addendum, and brief to conform to Rule 4-2(a)(5) and (7). See In re: Modification of the Abstracting System, supra; Ark. Sup. Ct. R. 4-2(b)(3). Mere modifications of the original brief will not be accepted. Id. According to Rule 4-2(b)(3), if appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.

Rebriefing ordered.


text:
    Ron and Ramona DAVENPORT, as the Administrators of the Estate of Linda Kay Moore, Deceased, or, in the Alternative, Ron and Ramona Davenport, Individually and as the Heirs at Law of Linda Kay Moore, Deceased, on Behalf of Themselves and All Other Heirs at Law of the Deceased, or All Who are Entitled to Legal Redress for the Death of Linda Kay Moore, Deceased v. Tyrone LEE, M.D.; Conway Regional Medical Center; Craig Cummins, M.D.; and James Throneberry, M.D.
    01-456
    76 S.W.3d 265
    Supreme Court of Arkansas
    Opinion delivered May 30, 2002

      The Boyd Law Firm, by: Charles Phillip Boyd, Jr., for appellants.

      Wright, Lindsey & Jennings LLP, by: Troy Price and Patricia Sievers Harris, for appellees.
   Per Curiam.

Appellants Ron and Ramona Davenport filed a motion to stay, or in the alternative to recall, the mandate issued by this court in Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002). There, this court held that a pro se complaint filed by a non-attorney personal representative in a wrongful-death action was a nullity and thus affirmed the trial court’s dismissal of Appellants’ action.

On April 29, 2002, the final day that Appellants could file a petition for rehearing, they filed a motion requesting an extension of time to file their petition. This court granted their motion and extended the deadline until May 6, 2002. Thereafter, shortly before 5:00 p.m. on May 6, counsel for Appellants contacted the office of this court’s clerk and informed a deputy clerk that two of his employees were on their way to the clerk’s office to file the petition. Because the employees did not arrive until after 5:00 p.m., the petition was untimely, and they were not allowed to file it.

In a last-ditch effort, Appellants have now filed the present motions seeking to stay or recall the mandate and to file the petition for rehearing. Therein, Appellants acknowledge that it is not this court’s duty to ensure that a party files a petition for rehearing within the required time limits. On this point, Appellants are correct. Additionally, where Appellants present no compelling reason as to why they were unable to meet two different deadlines, we will not accept their untimely petition for rehearing.

On a final note, we have reviewed the document attached to Appellant’s petition for rehearing that Appellants’ counsel avers is not the final draft, but rather a pleading styled in the manner of a “closing argument.” In the absence of any indication to the contrary, we presume that this draft of the petition was the one counsel intended to file with this court on May 6, had it been timely. Not only is the petition completely devoid of any citation to authority demonstrating how this court erred legally or factually in its opinion, but its tenor is one of disrespect, bordering almost on contemptuous, toward the members of this court.

As set forth in Ark. Sup. Ct. R. 1-5, “No argument, brief, or motion filed or made in the Court shall contain language showing disrespect for the circuit court.” Just as we will not allow a lawyer to show disrespect for the judges sitting in circuit courts, we will not allow an attorney to show disrespect for the members of this court. See, e.g., White v. Priest, 348 Ark. 783, 73 S.W.3d 572 (2002) (per curiam).

It is well settled that this court expects the members of the bar to fulfill their professional responsibilities, while still maintaining the highest standards of ethical conduct. See Weems v. Supreme Ct. Comm. on Prof. Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975). Accordingly, as this matter implicates violations of the Model Rules of Professional Conduct, we refer Appellant’s attorney, Mr. Charles Phillip Boyd Jr., to this court’s Committee on Professional Conduct to take whatever action may be warranted under the facts and circumstances of this matter.

Motions denied.

Howard W. Brill, Spl. J., joins in this per curiam opinion.

Glaze, J., not participating.


author: PER CURIAM.

text:
    LAKE VIEW SCHOOL DISTRICT NO. 25 of Phillips County, Arkansas, et al. v. Mike HUCKABEE, Governor of the State of Arkansas, et al.

    01-836
    76 S.W.3d 250
    Supreme Court of Arkansas
    Opinion delivered May 30, 2002

      Don Trimble; Wilson & Valley, by: E. Dion Wilson; and Roy C. Llewellen, for appellants.

      Mark Pryor, Att’y Gen.; Dennis R. Hansen, Deputy Att’y Gen., by: Brian G. Brooks, Sr. Ass’t Att’y Gen., and Timothy G. Gauger, Ass’t Att’y Gen., for appellees.
   PER CURIAM.

This is the third appeal from a class action brought by Appellant Lake View School District No. 25 of Phillips County, Arkansas, on behalf of the public school districts, against Appellees, the State of Arkansas and its officers. This case was begun in 1992, and its procedural history is recounted in Lake View Sch. Dist. No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000). See also Tucker v. Lake View Sch. Dist. No. 25, 323 Ark. 693, 917 S.W.2d 530 (1996). On May 25, 2001, the Pulaski County Chancery Court, Second Division, entered an order declaring the State’s system for funding public schools unconstitutional. The trial court did not mandate any particular remedy; however, it did require the State to take certain remedial actions. Additionally, the trial court ordered the State to pay in excess of $9,000,000 in attorneys’ fees to the class’s attorneys.

Both the State and Lake View have appealed the trial court’s order. Lake View filed its notice of appeal prior to the time that the State filed its notice; hence, for purposes of this appeal, Lake View has been designated as the appellant. Accordingly, Lake View bears the burden of abstracting the record in this case, which is quite voluminous. The record on appeal was lodged on September 20, 2001, and a briefing schedule was established by this court. Lake View’s brief and abstract initially were due on October 30, 2001. Due to the unusually large record in this case, Lake View was granted numerous extensions of time to prepare the brief and abstract in this case. On April 18, 2002, Lake View filed its joint abstract, addendum, and brief.

Since the time that this appeal was filed, this court has received many motions. The latest motions, one from the State and one from Lake View, were filed on May 1, 2002. To date, this court has ruled on each motion without issuing a formal opinion. Today, for purposes of clarifying what has occurred already and to avoid confusion and duplication in the future, we issue this per curiam opinion setting out the previous motions and rulings made over the past year. We will then address the two motions currently pending.

On July 30, 2001, the State filed a partial record with this court along with a motion to stay the trial court’s order pending resolution of this appeal. We granted the stay on September 6, 2001.

On September 26, 2001, the State filed a motion to clarify and amend the briefing schedule and to suspend the abstracting requirement. Because both parties had filed notices of appeal, the State asked to be designated as a co-appellant. The State asked that both it and Lake View be instructed to file simultaneous opening briefs, response briefs, and reply briefs. The State also asked this court to suspend its abstracting requirements for the more than 3,500 pages of recorded testimony in this case. We denied that motion on October 18, 2001.

On October 24, 2001, Lake View filed a motion for an extension of time to file its abstract and brief and for other relief. The “other relief’ it sought was an enlargement of the number of pages allowed for its argument and permission to file two separate briefs, each containing twenty-five pages of argument, one on the substantive issues and one on the issue of attorney’s fees. On November 15, 2001, we granted Lake View’s motion, allowing for a total of fifty pages of argument.

From November 2001 to March 2002, Lake View filed four motions for additional time to file its abstract and brief. Due to the unusually large size of the record in this case, each of the four requests resulted in extensions from this court’s clerk. In between those motions, on January 29, 2002, Lake View filed a motion to supplement the record on appeal. We granted that motion on February 14, 2002.

On April 2, 2002, Lake View filed a motion for modification of this court’s requirements for the filing of the abstract and for the service of the abstract on the opposing parties. In that motion, Lake View also sought permission to file separate briefs, one on the substantive issues and one on the issue of attorney’s fees. This latter motion was obviously a duplicate of the motion filed by Lake View on October 24, 2001, and granted by this court on November 15, 2001. On April 4, 2002, Lake View filed a motion to expedite the April 2 motion. On April 11, 2002, this court granted the motion to expedite, but denied the substantive motion; however, that part of the motion that had been granted previously still stood. In other words, our denial of Lake View’s April 4 motion did not alter the fact that we had previously granted Lake View permission to file two separate briefs in this case. Pursuant to our ruling, Lake View was given a final extension to file its abstract and brief by April 18, 2002. The State’s brief was due thirty days afterwards.

On April 16, 2002, the State filed a motion to dismiss Lake View’s appeal and for this court to then designate the State as the appellant and establish a new briefing schedule. The State filed a supplemental motion to dismiss one week later, on April 23, 2002. In its motions, the State contended that Lake View had failed to timely file its abstract and brief in this case, and that Lake View had violated this court’s April 11 order by filing two separate briefs. The latter argument was likely based on the State’s ignorance of our November 15, 2001, ruling that granted Lake View’s request to file separate briefs. This ignorance was undoubtedly compounded by the fact that Lake View made the request on two separate occasions. We denied the State’s motion to dismiss Lake View’s appeal on May 16, 2002. Because we denied that motion, there was no reason for this court to designate the State as the appellant or to establish a new briefing schedule.

In addition to the foregoing motions made by the parties, beginning in October 2001 and continuing through May 2002, this court has addressed numerous motions for permission to file amicus curiae briefs in this appeal. We granted the motions filed by the Arkansas Policy Foundation; the Arkansas State Chamber of Commerce, Inc., and the Associated Industries of Arkansas, Inc.; the Arkansas Advocates for Children and Families; and the Arkansas Public Policy Panel, Inc., and the Rural School and Community Trust, Inc. We denied the motions filed by the City of Little Rock and H.G. Davis.

The two motions currently pending in this case are the State’s motion for an extension of time to prepare a new abstract and Lake View’s motion for sanctions, pursuant to Ark. R. App. P. — Civ. 11, and for summary dismissal of the State’s appeal. We address Lake View’s motion first, as it appears to be more of an extended response to the motions to dismiss filed earlier by the State. Lake View contends that the State’s motions to dismiss were unsupported by legal authority and frivolous. Lake View also contends, without alleging any particular facts, that the State’s attorneys have given interviews to the media for the purpose of demeaning Lake View’s attorneys’ abilities to master the difficulties of this appeal. Lake View seeks both monetary sanctions, as well as the ultimate sanction, dismissal of the State’s appeal.

We deny Lake View’s motion. We do not view the State’s prior motions to dismiss as frivolous, even though we ultimately denied them. We also decline Lake View’s invitation to sanction the State for its attorneys giving allegedly defamatory interviews to the media. Lake View has submitted nothing in the way of support for this allegation, and it is not otherwise apparent that the motion is well taken.

Finally, we address the State’s motion for additional time to prepare a new abstract in this case. The State contends that Lake View’s abstract is deficient, inaccurate, and misleading, and is full of numerous typographical and grammatical errors. The State asserts the following primary deficiencies: (1) Numerous portions of the recorded testimony are completely omitted from the abstract; (2) some of the summarized testimony is seriously misstated or obfuscated; and (3) the recorded arguments of counsel and corresponding rulings from the court are omitted to such a degree that they cannot be understood. The State asserts that these deficiencies are so plentiful that merely providing this court with a supplemental abstract will not provide a reasonably accurate rendition of the record. The State therefore seeks an extension of thirty days to prepare and file a new abstract.

From our review of the abstract, we believe that the State’s motion is well taken. We are particularly concerned with the third type of deficiency, namely that the arguments of counsel and the trial court’s rulings are frequently so scantily abstracted that it is unclear what transpired. For example, there are numerous places in the abstract setting out objections made during a witness’s testimony and the resulting rulings from the court. In some of those instances, information that is necessary to an understanding of the motions and rulings has been omitted. Instead, the abstract reflects only that a brief objection is made, followed by a brief ruling, and then followed by another objection by the same party. In some of these exchanges, it is apparent that intervening testimony, occurring over several pages of record, has been omitted. Such omissions will undoubtedly impair our ability to review this case.

We thus grant the State’s motion to prepare a new abstract in this case. Both sides have gone to great lengths to emphasize to us the significance of this case to the citizens of this state. It is therefore crucial that we have an abstract that clearly reflects the testimony of the witnesses, the arguments of counsel, and the rulings by the trial court. Accordingly, we direct the State to prepare a new abstract in this appeal. We further direct that the State file its abstract and brief on or before July 1, 2002. Like Lake View, the State will be allowed a total of fifty pages of argument.

Lastly, we review the State’s request to be allowed the opportunity to respond to any briefs filed by those school districts who were allowed to intervene below and who opposed the State’s position. We agree that the State should be allowed to respond to any arguments by intervenors that are in opposition to those arguments made by the State in its appeal. Accordingly, we will allow the State to file one brief in response to any and all of the intervenors’ briefs.

In order to avoid any confusion, we establish the following briefing schedule. Lake View must file its reply brief on or before July 16, 2002. Similarly, any intervenors (those school districts who were allowed to intervene below) who wish to file a brief in this matter must do so on or before July 16, 2002. Thereafter, both Lake View and the State will have until July 31, 2002, to file one brief each, not to exceed twenty-five pages, in response to the briefs filed by the intervenors. No motions to extend any of these time periods will be granted absent unavoidable casualty.

Motion for extension of time to prepare a new abstract and for other relief granted; motion for sanctions and for summary dismissal denied.

Imber, J., not participating.


author: WH. "Dub" Arnold, Chief Justice. ROBERT L. BROWN, Justice,

text:
    James FIELDS v. STATE of Arkansas
    CR 01-127
    76 S.W.3d 868
    Supreme Court of Arkansas
    Opinion delivered June 6, 2002

      Horace A. Walker, for appellant.

      Mark Pryor, Att’y Gen., by: O. Milton Fine II, Ass’t Att’y Gen., for appellee.
   WH. "Dub" Arnold, Chief Justice.

Appellant James Fields was found guilty of one count each of aggravated robbery, first-degree battery, aggravated assault, and theft of property by a Pulaski County Circuit Court jury. The trial court sentenced Fields to concurrent sentences of life imprisonment, forty years’ imprisonment, fifteen years’ imprisonment, and thirty years’ imprisonment for the respective offenses. Fields appeals to this court from that judgment, and Fields challenges the admission

of the photographic lineup into evidence and the sufficiency of the evidence. We hold that the argument regarding the pretrial photo lineup identification is barred and affirm the trial court on sufficiency of the evidence.

On July 7, 1998, Tires For Less, a Little Rock tire store, was robbed when Fields entered the business with a gun. The assistant manager was shot, and another person was threatened with a gun. Fields was later identified as one of the robbers through pretrial photographic lineups and in-court identification.

Sufficiency of the Evidence

Fields, in his second point on appeal, contends that the trial court erred in denying his motion for a directed verdict. A directed-verdict motion is a challenge to the sufficiency of the evidence. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995); Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993). As such, it must be addressed by this court before any other points on appeal. Goins, supra; Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994).

It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001) (citing Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995)). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. Only evidence supporting the verdict will be considered. Smith, supra.

After the State rested in the present case, counsel for Fields moved for a directed verdict based on the fact there was no evidence produced linking Fields to the robbery. Subsequently, after the close of all the evidence, counsel for Fields renewed his motion for directed verdict. The trial court denied both motions.

At Fields’s trial, Steven Watt testified that he was an assistant manager at Tires For Less, and at around 4:30 to 4:40 p.m., on July 7, 1998, he was at his desk getting ready to close the business. Watt testified that he heard someone at the window in front of him ask for money. Watt looked up and saw a man with a gun. Watt looked at the individual again, who said, “Do you think I’m playing,” and pulled the trigger, and the bullet struck Watt in the upper left chest. About three or four days after this incident, detectives visited Watt at his home. Watt identified Fields from a photographic lineup. Watt was adamant that no one suggested a choice when he viewed the photographic lineup. In fact, after Watt identified Fields, the detective told him to take his time, look the lineup over, and make sure. Watt, also, made an in-court identification of Fields at trial, stating that he was “absolutely positive” that Fields was the shooter. Watt stated that he was “one hundred percent certain” of the identification, and he recalled that the perpetrator had a face that he would never forget. He stated that the window that he viewed Fields through is probably twenty-four to twenty-six inches wide and around three feet tall, and that he saw Fields from the chest up.

Patrick Mahoney, also, testified at Fields’s trial. He testified that on July 7, 1998, he was fourteen years old and helping Steven Watt, his stepfather, at work at Tires For Less. Patrick testified that at approximately 4:30 to 4:45 p.m., two individuals drove up in a black car. One of the individuals stood by the garage door while the other came in and said “This is a robbery.” Patrick stated that the individual pointed a gun at him and warned him not to move. The individual then went to the window where Watt was working, shot him, retrieved money from an office, and ran out of the building. Patrick testified that he observed the shooter walking from inside the garage door to where Watt’s office was.

Patrick Mahoney further testified that detectives came to his house on July 10, 1998, regarding the incident at Tires For Less. Patrick was able to identify Fields from a photo lineup that the detectives presented to him. Patrick was also able to positively identify Fields at trial.

Richard Stewart, a customer in Tires For Less at the time of the robbery and shooting, testified at trial that a man walked into the store about ten to twelve feet from him, pulled a weapon out of a bag, and announced that a robbery was taking place. Stewart followed the robber to the front of the store and about a minute later, a shot rang out. Stewart told the trial court that he saw the robber run into the office, pick up a bank bag, and leave the store. Some time after the shooting, Stewart was shown a photographic lineup, and he was able to make an identification of Fields with one hundred percent certainty.

John Mahoney was working at Tires For Less on the day of the robbery. While watching television, he heard someone state, “Give me the money,” and, then, heard a gunshot. The robber then ran in and asked John where the money was, and John told him. John stated that he was able to get a good look at the perpetrator, and he was able to give a description of the robber to the police. John was later shown a photograph of the robber and was able to identify him. John stated that he picked the photograph of Fields as the culprit. John, also, identified Fields from the stand at trial.

Appellant Fields argues to this court that the evidence at trial was not sufficient to support the guilty verdicts. However, the State presented three witnesses to the robbery and shooting that correctly selected Fields as the perpetrator from a photographic lineup. Further, four witnesses correctly identified Fields as the perpetrator from the stand at trial. Therefore, we affirm the trial court in denying Fields’s motions for directed verdict because there was evidence forceful enough to compel a conclusion of guilt.

Pretrial Photographic Identification

Appellant Fields argues that the trial court erred in allowing into evidence the pretrial photographic lineup. The trial court ruled, after a pretrial hearing, that the photo lineup used by the police was not overly suggestive and the identifications could be admitted at trial. Fields contends that the photo lineup should have been excluded because the photo lineup had dissimilar looking persons. In particular, Fields was the only person with short hair in the lineup.

A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. King v. State, 323 Ark. 558, 916 S.W.2d 725 (1996); Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). But even when the process is suggestive, the circuit court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be decided by the jury. Neil v. Biggers, 409 U.S. 188 (1972); Monk v. State, supra; Bishop v. State, supra. In determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Hayes v. State, 311 Ark. 645, 846 S.W.2d 182 (1993); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988); see also Neil v. Biggers, supra.

It is appellant’s burden to show that a pretrial identification was suspect. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). When, as here, the photographic identification is followed by an eyewitness identification at trial, this court will not set aside the conviction unless the photographic lineup was so suggestive as to create a substantial possibility of misidentification. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995). In Goins, the court held that an identification issue was not preserved for review where, despite challenging a pretrial photographic identification, the appellants failed to object to the victim’s in-court identification of them. Goins, supra. A contemporaneous objection is required to preserve an issue for appeal. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002).

Here, the issue was not preserved for appeal, and, is therefore barred. Three eyewitnesses identified Fields from the stand as the person who committed the robbery and shooting. Fields did not object to these in-court identifications. Therefore, the photo lineup identification point on appeal is barred.

Rule 4-3 (h)

In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for adverse rulings objected to- by Fields but not argued on appeal and no error is found.

In sum, in light of the evidence presented to the jury, we cannot say that the trial committed error in this case. Accordingly, we find no reversible error in the trial court’s rulings. We affirm the trial court and Fields’s judgment of conviction.

Affirmed.

Glaze and Brown, JJ., concur.

Imber, J., not participating.

ROBERT L. BROWN, Justice,

concurring. This appeal involves a sentence of life in prison. I concur with the majority on the merits of this appeal but write to emphasize my concern over the deficient performance of Field’s counsel in preparing appellant’s brief. On two separate occasions, the State filed motions regarding counsel’s deficient abstracting prior to the submission of the case. On December 6, 2001, the State first moved for this court to direct Fields to comply with Arkansas Supreme Court Rule 4-3(h). We granted that motion. On February 26, 2002, Field’s counsel advised this court that he was “standing by” his original brief. As a result, on March 1, 2002, the State filed a second motion to compel Field’s compliance with Rule 4-3 (h). We denied that motion, and ordered the State to abstract the adverse rulings, as the rule requires. The State did so, and the case has now been submitted for our decision.

Arkansas Supreme Court Rule 4-3 (g) requires that in a felony case, it is the appellant’s duty to abstract and include in the addendum those parts of the record material to the points to be argued in the appellant’s brief. Rule 4-3 (h), which applies to death and life-imprisonment cases, dictates that the appellant “must abstract ... all rulings adverse to him or her made by the circuit court on all objections, motions and requests made by either party, together with such parts of the record as are needed for an understanding of each adverse ruling.” Appellant, in this case, did neither. He merely abstracted the testimony from the suppression hearing involving the photo lineup and the eyewitness identification testimony at trial. He failed to abstract his motion to suppress the photo lineup, the photo lineup itself, his motion for directed verdict, or the trial court’s rulings on the motions. Had the State not provided a supplemental abstract, per our order to abstract all adverse rulings not abstracted by the appellant pursuant to Arkansas Supreme Court Rule 4-3 (h), this court could not have reached the merits of this appeal and rebriefing would have been required. We still were never provided the actual photographs that made up the photo lineup as our rules require. See Sup. Ct. R. 4-2(a)(5).

After reviewing the State’s supplemental abstract and the appellant’s abstract, it is evident that appellant’s counsel neglected his duty to properly abstract the record pursuant to our rules. For the foregoing reasons, I would refer defendant’s counsel to the Committee on Professional Conduct. See McGehee v. State, 327 Ark. 88, 937 S.W.2d 632 (1997) (per curiam).

Glaze, J., joins.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    Brenda HIGGINS v. Alpha BURNETT, et al

    76 S.W.3d 893
    Supreme Court of Arkansas
    Opinion delivered June 6, 2002

      Elmore & Smith, by: Teresa M. Smith; and F.N. “Buddy” Troxell, for appellant.

      Stuart Law Firm, P.A., by: J. Michael Stuart, for appellees.
   W.H. “Dub” Arnold, Chief Justice.

This case involves an action for fraud and conversion filed in Faulkner County Circuit Court against two defendants residing in Lonoke County, involving funds allegedly jointly owned by the appellant and one appellee, the appellant’s mother. Appellees initially filed an answer that denied in separate one-sentence paragraphs each paragraph of the complaint except two paragraphs identifying the parties and their county of residence, raised no affirmative defenses, and did not reserve the right to further plead. Approximately fourteen months later, the defendants filed a motion to dismiss in which they raised, among other defenses, improper venue. The trial court granted the motion to dismiss. Appellant now brings this appeal, asserting the following points:

1) The trial court erred in addressing a defense asserted by appellees which had been waived under Ark. R. Civ. Pro. 12;
2) The trial court erred in granting appellees’ motion to dismiss considering matters outside the pleadings;
3) The trial court erred in dismissing appellant’s complaint where statutory and case law clearly establish appellant’s causes of action are entided to be pursued in the Faulkner County Circuit Court.

We agree with appellant that the trial court erred in addressing a defense asserted by appellees which had been waived under Ark. R. Civ. Pro. 12. Because appellees did not raise their valid defense of improper venue in the answer, or by motion filed prior to or simultaneously with the answer, we hold that the defense was waived; therefore, the case is reversed and remanded on appellant’s first asserted point, leaving no need to address appellant’s other points on appeal.

Arkansas Rule of Civil Procedure 12(h)(1) provides that a defense of improper venue, lack of personal juriscjiction, insufficiency of process or service of process, or pendency of another action between the same parties arising out of the same transaction or occurrence is waived if it is neither made by motion under the Rule nor included in the original responsive pleading. Arkansas Rule of Civil Procedure 12(a) states that “a [resident] defendant shall file his answer within twenty (20) days after service of summons and complaint upon him . . . (thirty days if a non-resident).” Arkansas Rule of Civil Procedure 12 does not specify a time limitation on presenting motions to dismiss. However, both Rule 12(b) and Reporter’s Note 7 [8] to the Rule indicate that a motion to dismiss should be made before filing a responsive pleading.

Further, we clearly held in Inmon Truck Sales, Inc. v. Wright, 294 Ark. 397, 743 S.W.2d 793 (1988), that a motion to dismiss for improper venue must be filed no later than the time at which the original responsive pleading is due. In Inmon, we noted that the weight of judicial authority interpreting Fed. R. Civ. P. 12, which is substantially the same as Ark. R. Civ. P. 12, supports the proposition that a failure to raise the defense of improper venue by motion or responsive pleading within twenty days after service of process is a waiver of the defense. Farmers Elevator Mutual Ins. Co. v. Carl J. Austad & Sons, Inc., 343 F.2d 7 (8th Cir. 1965); W.A. Stackpole Motor Transportation, Inc. v. Malden Spinning and Dyeing Co., 263 F.2d 47 (1st Cir. 1958); United States v. Gross, 276 F.2d 816 (2nd Cir. 1960); Nelson v. Victory Electric Works, Inc., 210 F. Supp. 954 (D. Md. 1962); Totalplan Corp. of America v. Lure Camera Ltd., 613 F. Supp. 451 (D.C.N.Y. 1985); contra Bechtel v. Liberty National Bank, 534 F.2d 1335 (9th Cir. 1976). Moreover, in the instant case, the mere denial of the factual allegation that venue was proper in Faulkner County did not sufficiently raise the legal defense of improper venue. See Southern Transit Co., Inc. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (1998). The mere denial of a factual allegation is not equivalent to stating facts sufficient to support a legal defense. Id. at 177, 966 S.W.2d at 909. Appellees also did not specifically reserve their objection to improper venue. See Wallace v. Hale, 341 Ark. 898, 20 S.W.3d 392 (2000); Farm Bureau Mutual Insurance Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993).

Accordingly, when applying our holdings in Inmon, supra, and Southern Transit, supra, to the case at bar, we hold that since appellees failed to raise the defense of improper venue by motion or responsive pleading within twenty days after service of process, they waived their right to object to venue.

Reversed and remanded.