text:
    Mark Steven CAMBIANO v. James A. NEAL, as Executive Director of the Supreme Court Committee on Professional Conduct
    00-283
    35 S.W.3d 792
    Supreme Court of Arkansas
    Opinion delivered November 16, 2000
    [Substituted Opinion on Denial of Petition for Rehearing delivered December 15, 2000.]

      Jeff Rosenzweig, for appellant.

      James A. Neal, by: Lynn Williams, for appellee.
   Lavenski R. Smith, Justice.

This is an attorney discipline case. Appellant Mark Cambiano appeals from an order of the Conway County Circuit Court dismissing his counterclaim. In his counterclaim, Cambiano sought injunctive relief against the interim suspension imposed by the Supreme Court Committee on Professional Conduct pursuant to Section 7J of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at law. Cambiano contended that Section 7J violates both state and federal constitutions. In conjunction with the dismissal, the trial court also certified its order to be final for appeal purposes pursuant to Ark. R. Civ. P. 54(b). We have jurisdiction pursuant to Ark. Sup. Ct. R. l-2(a)(5) as an appeal involving the discipline'of attorneys-at-law and/or arising under the power of the supreme court to regulate the practice of law The issue before this court is whether Section 7J is constitutional. We hold that it is and accordingly affirm.

Facts

Cambiano received his law license in 1980 and apparently has practiced law in this state since that time. In April of 1997, the federal government indicted Cambiano alleging thirty-one counts of various federal offenses including money laundering and filing a false currency transaction report. Cambiano pled guilty to filing a false currency transaction report and the U.S. Attorney agreed to drop the remaining thirty counts. United States District Court Judge George Howard sentenced Cambiano to three years probation on June 26, 1998. Approximately a month later, the Committee on Professional Conduct (“the Committee”) imposed an interim suspension on Cambiano’s law license. The Committee suspended Cambiano’s law license pursuant to Section 7(E)(3)(a) and (b) and 8B(l)(a) and (b) of the Procedures of the Arkansas Supreme Court Regulating the Professional Conduct of Attorneys at Law (“the Procedures”).

In February 1999, the Committee instituted disbarment proceedings in Conway County Circuit Court citing his conviction as well as the illegal conduct alleged in the federal indictment. Cambiano answered the disbarment complaint on February 18, 1999, and counterclaimed on April 22, 1999. Specifically, Cambiano’s counterclaim requested injunctive relief and a declaratory judgment that the interim suspension during the pendency of the disbarment proceedings under Section 7J of the Procedures was unconstitutional and that it violates his civil rights. Cambiano’s counterclaim sought to have the Rule declared unconstitutional so that he could continue to work for his father, who is also an attorney, while waiting for the disbarment trial. Cambiano argued that the rule violated his rights to free speech and association, due process of law, and was void for vagueness under the Fourteenth Amendment to the Constitution. The Committee responded on May 10, 1999, with a Motion to Dismiss the Counterclaim under Ark. R. Civ. P. 12(b)(6).

The circuit court held a hearing on November 10, 1999 on the motion. There, Cambiano and his father testified about the type of work he would perform at his father’s office should the suspension be lifted. The attorneys for the parties engaged in oral argument about the impact and breadth of the suspension rule, and the trial court ultimately granted the Committee’s Motion to Dismiss the Counterclaim. In granting the dismissal, however, the trial court also determined that the order was final and appealable so that Cambiano could pursue this appeal while the underlying disbarment case proceeded. The actual order was filed on January 3, 2000, and Cambiano filed his Notice of Appeal on January 24, 2000.

Standard of Review

On review of a decision of the circuit court in disbarment cases, we review the matter de novo on the record and will not reverse the trial court’s findings unless they are clearly erroneous. Neal v. Matthews, 342 Ark. 566, 30 S.W.3d 92 (2000). A finding is clearly erroneous when although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). With respect to interpretation of statutes, however, this court is not bound by the decision of the trial court as it is for this court to decide what a statute means. Central & Southern Companies, Inc. v. Weiss, 339 Ark. 76, 3. S.W.3d 294 (1999).

Applicable Rules

This appeal involves the Procedures and their application to a suspended attorney. Under Section 2C(1), the Committee has the authority “to investigate all complaints alleging violation of the Model Rules that may be brought to its attention and impose any sanctions deemed appropriate as provided in Section 5 (Procedure) and Section 7 (Sanctions).” Section 7 states in relevant part:

Section 7. Sanctions.
A. Grounds for Discipline. It shall be grounds for discipline for a lawyer to:
(1)Violate or attempt to violate the Model Rules of Professional Conduct, or any other rales of this jurisdiction regarding professional conduct of lawyers;
B. Serious Misconduct. Serious misconduct is conduct in violation of the Model Rules that would warrant a sanction terminating or restricting the lawyer’s license to practice law. Conduct will be considered serious misconduct if any of the following considerations apply:
(1) The misconduct involves the misappropriation of funds;
(2) The misconduct results in or is likely to result in substantial prejudice to a client or other person;
(3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by the lawyer;
***
(6) The misconduct constitutes a “Serious Crime” as defined in these Procedures.
D. Types of Sanctions. Misconduct shall be grounds for one or more of the following sanctions:
***
(3) INTERIM SUSPENSION: A temporary suspension for an indeterminate period of time of the lawyer’s privilege to engage in the practice of law pending the final adjudication of a disciplinary matter.
E. Imposition of Sanctions. When the Committee finds that an attorney has violated any provision of the Model Rules, the Committee is authorized:
***
(3) To temporarily suspend the lawyer’s privilege to practice law pending final adjudication and disposition of a disciplinary matter. Interim suspension shall be appropriate in the following situations:
(a) Immediately on decision to initiate disbarment;
(b) Immediately upon conviction of a felony notwithstanding pending post-conviction actions;

Central to the issues in this case is Section 7J detailing the restrictions on employment of disciplined attorneys. This section states:

(1) When attorneys have been placed on inactive status, suspended, disbarred, or have surrendered their licenses, they are ineligible to practice law within this jurisdiction until readmitted or reinstated.
(2) While on suspension or inactive status, an attorney shall not be employed in any capacity whatsoever with a lawyer, law firm or lawyer professional association. Employment is construed as the provision of any services or labor for the benefit of the law practice of the employing lawyer or lawyers, whether compensated or not, and irrespective of the location where the services or labor may be performed.
(3) An attorney who has been disbarred or has surrendered his or her law license may be employed by a lawyer, law firm or lawyer professional association to perform such services only as may be ethically performed by other lay persons employed in the law offices. Provided, however, that the following conditions apply:
***
(c)The employed former lawyer shall have no direct contact with any client or receive, disburse, or otherwise handle trust funds or property.

As indicated in Section 2(c), the Arkansas Supreme Court has granted authority to regulate the legal profession in Arkansas to the Committee, and the Court has put into effect specific rules for the discipline and monitoring of disciplined attorneys in the state. Some of these regulations, as noted, limit or terminate a person’s privilege to practice law. Cambiano’s challenge to the rules questions whether some of these rules are violative of the Constitution and whether they should be stricken.

Freedom of Speech and Association

In this appeal, Cambiano argues that an interim suspension under Section 7J violates his constitutional rights. Cambiano makes a three-part argument. First, he contends that his rights to free speech and association under the First Amendment are chilled under the rule because he is not allowed to work for or discuss legal matters with other attorneys even though he has no contact with clients. Cambiano argues that while the Arkansas Supreme Court has “some rights” to regulate the conduct of suspended attorneys, this right is not unfettered, particularly in the area of speech. Cambiano argues that the rule does not only regulate his “commercial” speech, but also his political speech as he may want to express his political opinion in a legal framework.

In response, Neal first responds that the United States Supreme Court has determined that states have broad latitude to regulate professions in their boundaries, and that states could limit an attorney’s First and Fourteenth Amendment rights in order to protect the public. The Procedures include the specific language that an attorney who is convicted of a felony will be suspended pending disbarment, and Section 7J was created to protect the public. Neal argues that the speech involved at issue is “commercial” speech in that it is speech that is made for a business purpose, and that the overbreadth doctrine does not apply to this type of speech. Section 7J does not prevent an attorney from making “political” speech; instead, it prevents an attorney from aiding a client, with or without compensation, which is “commercial” speech. Neal is correct on this point.

Generally, States have a strong interest and a right to regulate professions within their boundaries, and the States bear “a special responsibility for maintaining standards among members of the licensed professions.” Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 460 (1978). In particular, the States’s interests in regulating lawyers is “especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been ‘officers of the courts.’ ” Id. (citing Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975)). However, this right of regulation is not absolute; actions protected by the First Amendment continue to receive at least some level of protection “even when the attorney violates a disciplinary rule he swore to obey when admitted to the practice of law.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1054 (1991).

In the realm of First Amendment speech, the Supreme Court has identified three types of speech, and has assigned varying levels of protection under the First Amendment for that speech. These three have been categorized as “pure speech,” “not-so-pure speech,” and “impure speech.” Chester James Antieau, Modern Constitutional Law § 4.00 et seq. (2nd ed. 1997, Supp. 1999). At issue in this case is whether the speech proscribed by Section 7J is “political” speech, a form of “pure speech,” affording the strictest protection under the First Amendment, or “commercial speech,” a form of “not-so'-pure speech,” which only garners intermediate protection under the First Amendment. Cambiano argues that Section 7J could impair his right to “political speech” which is afforded the highest level of protection. Neal argues that Section 7J only proscribes “commercial speech,” affording it lesser protection which is overcome here by the Committee’s substantial interests in regulating the profession.

To determine the type of speech proscribed here, we must review both the language and effect of Section 7J of the Procedures. As noted, an attorney who is suspended is barred from being employed by any lawyer or law firm in any capacity, for compensation or not, during the suspension. In Section 7J(2), “employment” is “construed as the provision of any services or labor for the benefit of the law practice of the employing lawyer or lawyers, whether compensated or not, and irrespective of the location where the services or labor may be performed.” Section 7J(2). In other words, a suspended attorney may not provide any services to an attorney, for pay or not, at any location, if such services would benefit the law practice. While this provision seems rather broad at first glance, a plain reading of the section indicates that the section curtails commercial speech or an “expression related solely to the economic interests of the speaker and its audience.” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 363-364 (1977); Friedman v. Rogers, 440 U.S. 1, 11 (1979). The Supreme Court’s decisions have recognized “the ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 562 (1980).

As the Supreme Court stated in Ohralik:

Expression concerning purely commercial transactions has come within the ambit of the Amendment’s protection only recently. In rejecting the notion that such speech “is wholly outside the protection of the First Amendment,” Virginia Pharmacy, supra, at 761, we were careful not to hold “that it is wholly undifferentiable from other forms” of speech. 425 U.S. at 771 n. 24. We have not discarded the “common-sense” distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. Ibid. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.

Ohralik, 436 U.S. at 455-456. In Ohralik, a case involving in-person solicitations of clients by an attorney in violation of the Ohio Bar’s rules against such conduct, the Supreme Court noted that:

A lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns. It falls within the State’s proper sphere of economic and professional regulation. (Citation omitted.) While entitled to some constitutional protection, appellant’s conduct is subject to regulation in furtherance of important state interests.

Id., 436 U.S. at 459.

Because the speech here is commercial speech, it is afforded only a “limited measure of First Amendment protection.” Florida Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995). This limited measure of protection for “commercial speech” is in the form of “intermediate” scrutiny which is accomplished by following the four prongs set out in Central Hudson. These prongs include:

In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Central Hudson, 447 U.S. at 566.

We hold that Section 7J directly advances the important governmental interests of consumer protection and the integrity of the legal system. Further we hold that it is no more restrictive than necessary and is thus constitutional. In Lawline v. American Bar Association, 956 F.2d 1378 (7th Cir. 1992), the United States Court of Appeals for the Eleventh Circuit held that Illinois had the right to regulate the practice of law by forbidding attorneys from entering into partnerships with nonlawyers if any of the activities of the partnership consisted of the practice of law. The Eleventh Circuit Court of Appeals found that the State’s interest in preventing incompetent legal assistance was adequate justification for the rule. The plaintiffs in Lawline asserted the same causes of action as those asserted by Cambiano. Regarding the freedom of speech challenge, the court determined that since the state had a legitimate interest to protect, “any abridgment of the right to free speech is merely the incidental effect of observing an otherwise legitimate regulation.” Lawline, 956 F.2d at 1386. Furthermore, the Lawline court rejected the argument that the regulation at issue violated the plaintiffs’s rights to freedom of association because no fundamental right was at issue to trigger the protection. Such is the case here, as there is no fundamental right to work as an attorney or at a law firm. The practice of law is a privilege to engage in commercial activity, not a right. As such, the freedom of association in the First Amendment does not apply.

Cambiano also asserts that Section 7J is overly broad in that it “bans Cambiano’s core political protected speech.” In essence, Cambiano argues that some legal issues on which he could give advice are actually political issues which are protected by a “strict scrutiny” review under the First Amendment. Because we have held the speech at issue to be commercial speech, we also hold the overbreadth doctrine to be inapplicable. See Ohralik; Shapiro v. Kentucky Bar Ass’n, 486 U.S. 466 (1988). Furthermore, while the Supreme Court agrees that “political speech” is the core form of speech protected by the First Amendment, See Ohralik and Gentile, there is a difference between providing legal advice to a lawyer or client, and espousing political views on issues such as the death penalty.

Cambiano attempts to argue that providing legal advice on how to litigate a death-penalty case is “political speech.” However, it is more accurately described as speech with a commercial purpose of representing a client. The rule does not restrict Cambiano from using available public forums to state positions opposing the death penalty. However, to provide specific legal advice to an attorney who is handling a death-penalty case would violate his suspension.

Due Process

Second, Cambiano argues that Section 7J violates the Fourteenth Amendment to the Constitution and Article 2, § 8 of the Arkansas Constitution in that it takes away his right to liberty and property without due process of law and it is void for vagueness. He argues that his liberty interests are the freedom of speech and association, and his property interest is his right to income by assisting other lawyers who practice law. He argues that Section 7J is vague in that does not define the terms “ethically performed” or “direct contact.”

Regarding the liberty and property arguments, Cambiano offers no authority to support his contentions. We have often stated that we will not consider arguments made without authority. National Bank of Commerce v. Dow Chem. Co., 338 Ark. 752, 1 S.W.3d 443(1999); Dobie v. Rogers, 339 Ark. 242, 5 S.W.3d 30 (1999); Farm Bureau Policy Holders v. Farm Bureau Mut. Ins. Co., 335 Ark. 285, 984 S.W.2d 6 (1999).

Cambiano’s argument is premised on the idea that once licensed, he was then conferred a “property right” to practice law. However, this court has stated again and again that “the practice of law is a privilege and not a right.” See In re Petition Butcher, 322 Ark. 24, 907 S.W.2d 715 (1995); In re Petition for Reinstatement of Lee, 305 Ark. 196, 806 S.W.2d 382 (1991). As such, any protections to a law Hcense are only subject to the very lowest of review under the Due Process and Equal Protections Clauses of the Constitution. Certainly, here, more than sufficient reasons exist to suspend Cambiano from the practice of law. He was convicted of a felony, and under this Court’s Procedures, this constitutes grounds for automatic suspension pending an automatic referral for disbarment. As noted by Neal, the reasons to suspend Cambiano and prevent him from having any contact as an attorney with the public is substantial. Furthermore, the court’s right to control the practice of law is, in and of itself, substantial reason to effectuate the suspension in this case.

Cambiano also argues that certain terms in Section 7J are void for vagueness under the Due Process Clause and should be invalidated. Specifically, he argues that the terms “ethically performed” and “direct contact” in the following provisions are unconstitutionally vague:

(3) An attorney who has been disbarred or has surrendered his or her law hcense may be employed by a lawyer, law firm or lawyer professional association to perform such services only as may be ethically performed by other lay persons employed in the law offices. Provided, however, that the following conditions apply:
***
(c) The employed former lawyer shall have no direct contac^ with any client or receive, disburse, or otherwise handle trust funds or property. (Emphasis added.)

Section 7J(3) and (3)(c). As indicated in these two provisions, these definitions apply to a disbarred attorney, not a suspended attorney. Therefore, we consider this challenge a “pre-enforcement facial challenge” which involves a specific standard of review. In Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998), the court discussed the vagueness doctrine and stated:

It is well settled that a law is unconstitutionally vague under due process standards if it does not give a person of ordinary intelligence fair notice of what is prohibited, and it is so vague and standardless that it allows for arbitrary and discriminatory enforcement. See Grayned v. City of Rockford, 408 U.S. 104 (1972); Thompson v. Arkansas Social Serv., 282 Ark. 369, 669 S.W.2d 878 (1984); Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979). When a person brings a “pre-enforcement facial challenge” to the vagueness of a law, the relevant inquiry is whether the ordinance is “impermissibly vague in all of its applications.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) (emphasis added). Likewise, in Planned Parenthood of Minnesota v. State of Minnesota, 910 F.2d 479 (8th Cir. 1990), the Eighth Circuit required those who brought a pre-enforcement facial challenge to a fetal disposal law to demonstrate that the “law is impermissibly vague in all of its applications” and that “the statute could never be applied in a valid manner.” The subject matter of the challenged law also determines how stringently the vagueness test will be applied. For instance, if the challenged law infringes upon a fundamental right, such as liberty or free speech, a more stringent vagueness test is applied. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. supra; Thompson v. Arkansas Social Serv., supra; Davis v. Smith, supra. In contrast, if the law merely regulates business activity, a less stringent analysis is applied and more flexibility is allowed. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra; Thompson v. Arkansas Social Serv., supra; Davis v. Smith, supra.

Craft, 335 Ark. at 424. As a “pre-enforcement facial challenge,” for Cambiano to prevail the terms at issue in this case must be “impermissibly vague in all of its applications” and “could never be applied in a valid manner” in order to be deemed void for vagueness. We hold within the context of the Procedures that these terms are not impermissibly vague. The terms “ethically performed” and “direct contact” have solid basis in the Rule 5.3 “Responsibilities Regarding Nonlawyer Assistants” in the Model Rules of Professional Conduct and in applicable case law. A person of ordinary intelligence could find a workable framework for these terms under which his or her conduct could be adapted.

Equal Protection

Finally, Cambiano argues that Section 7J violates his right to equal protection under the Fourteenth Amendment and Article 2, §§ 3 and 18 of the Arkansas Constitution because the rule places prohibitions on suspended lawyers that are not placed on people who have no law license. Fie argues that because the rule impinges on fundamental rights, strict scrutiny instead of the rational basis test must be applied to the analysis of the rule. Finally, Cambiano argues that Section 7J violates his right to equal protection. Flowever, as with his due process liberty and property arguments, he cites no authority supporting his contentions. Therefore, it will not be considered. See Nat’l Bank of Commerce, Farm Bureau, and Dobie, supra.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    BANK of ARKANSAS, N.A. v. FIRST UNION NATIONAL BANK and Mana Corporation
    00-1113
    30 S.W.3d 110
    Supreme Court of Arkansas
    Opinion delivered November 16, 2000

      Everett Law Firm, by: Jason H. Walls, for appellant.

      Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Scott T. Vaughn, for appellee.
   Per Curiam.

On October 18, 2000, appellees, First Union National Bank (“First Union”), filed a motion to dismiss appellant Bank of Arkansas’s appeal. First Union argued that appellant’s appeal should be dismissed because the order appealed from is not a-final and appealable order pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure. Rule 54 states in relevant part:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Id. We have held that merely tracking the language of Rule 54(b) will not suffice; the record must show facts to support the conclusion that there is likelihood of hardship or injustice that would be alleviated by an immediate appeal rather than at the conclusion of the case. Fisher v. Citizens Bank, 307 Ark. 258, 819 S.W.2d 8 (1991). The rule is not intended to create an avenue for two stages of review simply by citing Rule 54(b). The rule is intended to permit review before the entire case is concluded, but only in those exceptional situations where a compelling, discernible hardship will be alleviated by an appeal at an intermediate stage. Id.

The fundamental policy behind Rule 54(b) is to avoid piecemeal appeals. Hodges v. Huckabee, 333 Ark. 247, 968 S.W.2d 619 (1998). An appeal that fails to comply with Rule 54(b) will be dismissed without prejudice, and the parties will be permitted to file at a later date. Stratton v. Arkansas State Hwy. Comm’n., 323 Ark. 740, 917 S.W.2d 538 (1996).

In the present case, appellant appealed from an order that granted summary judgment in favor of First Union and left appellant’s separate claims against Mana Corporation unresolved. Specifically, the trial court’s order, which was filed on June 26, 2000, found:

First Union National Bank’s motion for summary judgment filed against plaintifFBank of Arkansas on May 19, 2000 should be, and hereby is, granted in its entirety; and
It is further ordered, that this order is a final, dispositive judgment as to First Union National Bank, and immediate appeal from this order is permissible under Ark. R. Civ. P. 54(b). The Court finds that there is no reason to delay such an appeal due to the likelihood of hardship or injustice which might result if appeal is not allowed until the disposition of the plaintiff’s claims against the remaining defendant in this case. There is no just reason to delay an appeal of this order because the plaintiff’s claims against the remaining defendant, Mana Corporation, cannot proceed in this court at this time due to the automatic stay afforded Mana Corporation by its Chapter 11 bankruptcy filing on November 10, 1999. Moreover, allowing the plaintiff to take an immediate appeal from this order will avoid unnecessary delay because it will avoid the possibility of repeated litigation concerning the same facts and legal issues and will reduce the burden on the financial resources of the parties and judicial economy of the court. Therefore, the court finds that the plaintiff should be allowed to pursue an immediate appeal of this order.

Although the trial court’s finding that “plaintiff’s claims against the remaining defendant Mana Corporation, cannot proceed in this court at this time due to an automatic stay afforded Mana Corporation by its chapter 11 bankruptcy filing,” was correct on June 26, 2000, First Union contends, and appellant does not contest, that Mana Corporation had requested that the bankruptcy case be dismissed on May 23, 2000, prior to the entry of the trial court’s order in this case. Mana Corporation’s bankruptcy case was dismissed on July 18, 2000, only twenty-two days after entry of the trial court’s June 26, 2000 order. Additionally, Mana Corporation’s second bankruptcy action was dismissed with prejudice on September 15, 2000. Based upon these circumstances, it appears that claims against Mana Corporation are no longer afforded the protection of Chapter U’s automatic stay and that appellant may proceed with its claims against Mana Corporation. Because the trial court should be afforded an opportunity to resolve the remaining issues in this case prior to an appeal, and because we do not find that appellant will suffer a hardship or that injustice will result by requiring the resolution of all claims against all parties before appellant may appeal its case to this court, we conclude that the order appellant seeks to appeal from is not a final appealable order, and we dismiss appellant’s appeal without prejudice. We further note that, if we were to allow this appeal to proceed while appellant’s claims against Mana Corporation remained unresolved, we would be allowing a piecemeal appeal in violation of the principles that Rule 54(b) is intended to protect. Accordingly, we grant First Union’s motion to dismiss appellant’s appeal without prejudice and hold that appellant may refile its appeal at a later date when it is able to provide this court with a final order pursuant to Rule 54(b).

Granted.

       We note that because the factual findings upon which the trial court’s June 26, 2000, order was based had become inaccurate as of September 15, 2000, First Union could have sought relief from the trial court pursuant to Rule 60(a) of the Arkansas Rules of Civil Procedure.


text:
    Clyde JOHNSON v. STATE of Arkansas
    CR 00-815
    30 S.W.3d 715
    Supreme Court of Arkansas
    Opinion delivered November 16, 2000

      Appellant, pro se.
    No response.
   Per Curiam.

On January 31, 1991, judgment was entered in the Circuit Court of Crittenden reflecting that Clyde Johnson had been found guilty by a jury of aggravated robbery and sentenced as a habitual offender to fifty years’ imprisonment. Johnson’s appointed attorney, Davis Loftin, filed a timely notice of appeal from the judgment on February 28, 1991. The appeal was not perfected, and Mr. Johnson now seeks by pro se motion to proceed with a belated appeal of the judgment. As the notice of appeal was timely filed, we treat the motion as a motion for rule on clerk rather than a motion for belated appeal and grant it. See Muhammed v. State, 330 Ark. 759, 957 S.W.2d 692 (1997).

The direct appeal of a judgment of conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to permit an appeal when the defendant’s attorney has failed to follow mandatory appellate rules. Reagan v. State, 316 Ark. 511, 872 S.W.2d 396 (1994), citing Evitts v. Lucey, 469 U.S. 387 (1985). Rule 16 of the Rules of Appellate Procedure- — Criminal provides:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

Once the notice of appeal was filed, Mr. Loftin was obligated to perfect the appeal. If he desired to be relieved of responsibility for the appeal, his course was to lodge at least a partial appeal record here and file a motion to be relieved. In no event may counsel simply abandon an appeal, and Loftin remains responsible for representing the appellant. Loftin is directed to file within thirty days a petition for writ of certiorari to bring up the complete record, or that portion of it, necessary for the appeal. A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Mr. Loftin is directed to appear before this court on Thursday, December 7, 2000, at 9 a.m. and show cause why he should not be held in contempt for his failure to perfect this appeal.

Motion for rule on clerk to proceed with belated appeal granted; show-cause order issued.


text:
    Terrance ROBINSON and Tamagum Antonio Robinson v. STATE of Arkansas
    CR 99-1112
    30 S.W.3d 109
    Supreme Court of Arkansas
    Opinion delivered November 16, 2000

      Lewellen & Associates, by: Roy C. Lewellen, for appellants.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Per Curiam.

Appellants Terrance Robinson and Tamagum Antonio Robinson, by and through their attorney, have filed a motion for belated appeal. This court held that the appeal was untimely due to a premature filing of a posttrial motion in Robinson v. State, 342 Ark. 711, 30 S.W.3d 109 (2000). Their attorney, Roy C. Lewellen, admits by motion and affidavit that the appeal was not timely filed due to a mistake on his part.

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

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


text:
    Oscar STILLEY, Appellant/Intervenor v. George A. MAKRIS, Jr., Petitioner/Appellee; Helen McClinton Bradley, In Her Official Capacity as County Clerk of Jefferson County, Arkansas
    00-1102
    30 S.W.3d 749
    Supreme Court of Arkansas
    Opinion delivered November 16, 2000

      Oscar Stilley, pro se.

      Bridges, Young, Matthews & Drake, PLC, by: Jack A. Nulty; Friday, Eldredge & Clark, by: Joe D. Bell, for petitioner/appellee.
   Per Curiam.

On October 19, 2000, appellant and intervenor Oscar Stilley filed the instant motion asking this court to enter a stay of the Jefferson County Circuit Court’s August 29, 2000 order “by October 12, 2000, or if that is impossible, at the earliest time.” (Emphasis added.) Clearly, it is impossible for us to grant appellant’s request to enter a stay on October 12th, seven days before he actually filed his motion to stay with this court. We deny appellant’s motion because it is untimely and lacks merit.

On August 7, 2000, Mr. Stilley sponsored an initiative petition to provide for the sale of the Jefferson County Regional Medical Center and filed it with the Jefferson County Clerk. Three days later, appellee George A. Maltris, Jr., filed a petition for writ of mandamus to prevent the county clerk from examining and ascertaining the sufficiency of the petition’s signatures. On August 11, 2000, the trial court entered a temporary restraining order prohibiting the clerk from examining the signatures. Following a hearing on August 16, 2000, and after considering the testimony of appellant, appellee Makris, exhibits, and arguments of counsel, the court entered an order on August 29, 2000, permanently enjoining the clerk from further studying the signatures and from certifying their sufficiency to the board of electors. Notably, appellant failed to seek a stay from the trial court’s order at this time but, as mentioned above, waited until October 19 to file a stay request.

Although Mr. Stilley lodged the appellate record with this court on September 25, 2000, and filed an abstract, brief, and motion to expedite on September 29, 2000, he failed to seek a stay on either of these two occasions. In fact, in our October 6, 2000 per curiam opinion, denying appellant’s motion for expedited consideration, we specifically noted that Mr. Stilley “has made no request for a stay.” See Stilley v. Bradley, 342 Ark. 274, 274, 27 S.W.3d 436 (2000). In light of the foregoing, we deny appellant’s October 19, 2000 belated request for a stay of judgment.

Motion denied.

        Reporter’s note: See also Stilley v. Young, No. 00-1119 (November 16, 2000).


text:
    John JOHNSON and Jay Shue v. Randy JOHNSON, Pulaski County Sheriff, and the Honorable Marion Humphrey, Circuit Judge, Pulaski County Circuit Court
    00-1320
    30 S.W.3d 109
    Supreme Court of Arkansas
    Opinion delivered November 16, 2000

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for petitioners.
    No response.
   Per Curiam.

Petitioners John Johnson and Jay Shue are deputy prosecuting attorneys for the Sixth Judicial District. They have filed an emergency petition for a writ of habeas corpus or, alternatively, a writ of certiorari or stay of contempt order. They have further moved this court for expedited consideration of their petition.

The facts are that on November 15, 2000, the companion cases of State v. McBride and State v. Smith, Pulaski County Circuit Court, Division 1, No. CR 2000-2500, were set for trial before a jury. The two defendants were charged with first-degree murder. Petitioners Johnson and Shue repeated their motion for a continuance, which was originally filed on November 9, 2000, based on the fact that they needed the transcript of a bond hearing that occurred on September 15, 2000, to assist in trial preparation. The circuit court denied the motion and, according to petitioners, ordered that the trial proceed or that the petitioners nolle prosequi the charges. The petitioners apparently declined to do either, whereupon the circuit court held them in contempt of court. They were taken into custody by the Pulaski County Sheriff’s Department.

We grant the motion for expedited consideration of this petition and issue a temporary stay, effective November 15, 2000, of the circuit court’s order with an order that the petitioners be released from custody forthwith. See Dean v. Williams, 339 Ark. 263, 5 S.W.3d 37 (1999). We further issue a writ of certiorari directing the court reporter to file the transcript of the proceedings in this matter that led to contempt which occurred on November 15, 2000, and the order of the circuit court finding that petitioners were in contempt of court and ordering that they be taken into custody, by Monday, November 20, 2000, at 5:00 p.m. We further direct counsel or petitioners and respondents to file simultaneous briefs by Monday, November 27, 2000 at 5:00 p.m. on the point of whether a writ of habeas corpus or a writ of certiorari should issue. The temporary stay will remain in effect pending our review of the matter.

It is so ordered.


author: WH. “Dub” Arnold, Chief Justice.

text:
    BOATMEN’S TRUST COMPANY of ARKANSAS n/k/a Bank of America, N.A., as Trustee of the Trust Agreements of N.B. Dalton v. Harris J. BUCHBINDER, Personal Representative of the Estate of Barbara D. Blaisdell; Lyle B. Thompson; and Barbara Laney and David Thompson
    00-290
    32 S.W.3d 466
    Supreme Court of Arkansas
    Opinion delivered November 30, 2000

      Wright, Lindsey & Jennings LLP, by: David M. Powell, Charles L. Schlumberger, Judy Simmons Henry, and Stephen R. Lancaster, for appellant.

      Shults Law Firm, LLP, by: Steve Shults and Reed R. Edwards, for appellee Harris J. Buchbinder, Personal Representative of the Estate of Barbara D. Blaisdell.

      Charles J. Lincoln, P.A., for appellee Lyle B. Thompson.

      Williams & Anderson LLP, by: Peter G. Kumpe and Stephen B. Niswanger, for appellees Barbara Laney and David Thompson.
   WH. “Dub” Arnold, Chief Justice.

As trustee of the estate of N.B. Dalton, also known as Barbara D. Blaisdell, appellant Bank of America, N.A. seeks to reverse the Pulaski County Chancery Court’s order finding that its award of attorney’s fees in the amount of $206,952.05 can only be recovered from appellee Lyle B. Thompson, the estate’s personal representative from 1996 until his removal on August 13, 1998. Lyle Thompson is Blaisdell’s son and a beneficiary of her estate. On appeal, Bank of America argues that it should be permitted to recover fees from the estate pursuant to Ark. Code Ann. sections 28-70-113 and 16-22-308 and under equitable principles. In response, appellees, Harris J. Buchbinder, who succeeded Thompson as the estate’s personal representative, and Barbara Laney and David Thompson, Blaisdell’s grandchildren and beneficiaries of the estate, contend that the trial court properly found that Lyle Thompson should be solely responsible for payment of the fees.

Lyle Thompson advances appellant’s argument and maintains that any attorney’s fee award should be borne by the estate and the beneficiaries who benefitted from any litigation. However, we do not consider the merits of Thompson’s arguments on appeal in light of our decision in Buchbinder v. Bank of America, N.A., 342 Ark. 632, 30 S.W.3d 707 (2000). In Buchbinder, we acknowledged that the Court of Appeals dismissed Thompson’s appeal of the trial court’s order assessing attorney’s fees against him because his notice of appeal was untimely. Id., 342 Ark. at 642, 30 S.W.3d at 713. After considering appellant’s arguments and those of the remaining appellees, we cannot say that the trial court abused its discretion by awarding Bank of America attorney’s fees recoverable only against Lyle Thompson.

I. Standard of review

The decision to award attorney’s fees and the amount of an award are discretionary determinations that will be reversed only if the appellant can demonstrate an abuse of discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 179, 971 S.W.2d 777, 781 (1998) (citing Security Pac. Housing Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); Chrisco v. Sun Indus. Inc., 304 Ark. 227, 800 S.W.2d 717 (1990)). Moreover, it is well settled that under Arkansas law attorney’s fees are awarded only when expressly authorized by a statute or rule. Id. Given the trial court’s intimate acquaintance with the record and the quality of services rendered, we generally defer to the trial court’s superior perspective in awarding fees. Security Pac. Housing, 315 Ark. at 185-86, 866 S.W.2d at 379.

II. Section 28-70-113(c)(2)

Arkansas Code Annotated section 28-70-113 (1987) enumerates the permissible charges that can be made against a trust’s income and principal. In particular, subsection (c)(2) authorizes a charge against trust principal for:

Charges not provided for in subsection (a) [charges against income], including the cost of investing and reinvesting principal, the payments on principal of an indebtedness (including a mortgage amortized by periodic payments of principal), expenses for preparation of property for rental or sale, and, unless the court directs otherwise, expenses incurred in maintaining or defending any action to construe the trust or protect it or the property or assure the title of any trust property[.]

(Emphasis added.) Section 28-70-113(c)(2) clearly empowers the trial court to make an award against principal or, as here, to direct “otherwise” by requiring the expenses to be assessed against the estate’s personal representative, individually.

We have long recognized that in determining reasonable attorney’s fees, the trial court considers the character of the services, the time and trouble involved, the skill and experience required, the professional character, judgment, and responsibility of the attorneys, the results achieved, the attorneys’ estimations of the value of their services, and an estimate of other attorneys familiar with the relevant facts. State Farm Fire & Casualty Co. v. Stockton, 295 Ark. 560, 750 S.W.2d 945 (1988). As a result, we grant considerable weight to the opinion of the chancellor before whom the proceedings have been conducted. Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993).

In the instant case, appellant filed a petition for attorney’s fees and expenses arising from four separate lawsuits and related trust-administration issues. One suit was litigated in a Georgia United States District Court, a second in an Arkansas United States District Court, a third in the Pulaski County Chancery Court, and a fourth in the Garland County Circuit Court. The federal actions and the state circuit-court action all involved Thompson’s attempts to compel Bank of America to compensate the trust for the amount of payments that he and Blaisdell received from the trustee at their own request and later claimed were disbursed in violation of the trust. On appeal in Buchbinder, we held that Thompson’s knowing consent, manifested by his acquiescence and actual demand for payments he later challenged, precluded a subsequent action against the trustee to enforce the trust’s terms. Buchbinder, 342 Ark. at 641, 30 S.W.3d at 712.

Here, the chancellor sat through multiple hearings, a three-day trial, and reviewed numerous billing-statement summaries. Based on the nature of the proceedings, Thompson’s role in the litigation, our decision in Buchbinder, and the authority of Ark. Code Ann. section 28-70-113(c)(2), we cannot say that appellants have demonstrated any abuse of discretion in the trial court’s decision to allocate to Lyle Thompson sole responsibility for payment of the attorney’s fee award.

III. Other issues

The Restatement (Second) of Trusts § 259 (1959) and Ark. Code Ann. section 16-22-308 (Repl. 1999) form the basis of appellant’s remaining arguments challenging responsibility for the award’s payment. First, appellant-cites § 259 of the Restatement to bolster its argument that it was entitled to a fee award payable from the trust. Section 259 permits a trustee to apply to the court for instructions as to the trust’s administration when there is a reasonable doubt as to its duties or powers as trustee. Comment (a) authorizes costs incurred in such an application to be payable out of the trust estate, “unless the application for instructions was plainly unwarranted so that it was improper for the trustee to incur the expense of making the application.” Restatement (Second) of Trusts § 259 cmt. a (1959).

In response, appellees point to theRestatement (Second) of Trusts § 201 cmt. b (1959), which cautions a trustee to protect itself by obtaining instructions from the court if it is in doubt as to the instrument’s interpretation. Absent a request, the trustee is not shielded from liability merely because he “acts in good faith, nor is he protected merely because he relies upon the advice of counsel.” Id. The extent of the trustee’s powers is established by the trust instrument and not by the trustee’s own interpretation or belief as to the applicable rules of law. Id. Here, appellees observe that the trustee failed to seek and obtain any court approval prior to making distributions prohibited by the trust agreement. Consequently, appellees insist that the trial court did not abuse its discretion by refusing to allow the trustee to recover attorney’s fees from the trust.

Second, appellant suggests that Ark. Code Ann. section 16-22-308 allows an award of attorney’s fees to be paid from the trust and appellees Barbara Laney and David Thompson because the trustee was the prevailing party in a case involving alleged breaches of the terms of the trust agreement, a contract. Section 16-22-308 provides for attorney’s fees in certain civil actions, including:

any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract. . . .

(Emphasis added.) In any of the enumerated actions, the court may award a reasonable attorney’s fee to the prevailing party, unless otherwise provided by law or the contract which is the subject matter of the action. Ark. Code Ann. § 16-22-308.

The total fee award of $206,952.05 included fees for actions filed in (1) Georgia federal court, (2) Arkansas circuit court, (3) Arkansas federal court, and (4) Arkansas chancery court. Significantly, the three actions filed prior to the chancery action were dismissed or nonsuited, and there was no prevailing party. As a result, section 16-22-308 does not authorize an assessment against the trust, Barbara Laney, or David Thompson for fees arising from those actions.

However, the trustee claims that it prevailed in the chancery court action, while the trust, Barbara Laney, David Thompson, and Lyle Thompson were all unsuccessful litigants in that proceeding. Specifically, the trustee asserts that the chancery court’s favorable treatment of the other appellees, by failing to assess fees against them, constituted an abuse of discretion. We disagree. Given the chancellor’s intimate acquaintance with the litigation and the considerable weight afforded his opinion on whether to assess fees against a party, we cannot say that he abused his discretion in denying an award pursuant to section 16-22-308 or § 259 of the Restatement. See Security Pac. Housing, 315 Ark. at 185-86, 866 S.W.2d at 379; see also Crockett & Brown, P.A., 312 Ark. at 368, 849 S.W.2d at 941. In conclusion, we find no merit in appellant’s arguments, and we affirm the trial court’s award of attorney’s fees to be payable solely by Lyle B. Thompson.

Affirmed.

Glaze, J., dissents.

       Notably, the Revised Uniform Principal and Income Act, including Ark. Code Ann. sections 28-70-101 to -119 (1987 & Supp. 1999), was repealed effective January 1, 2000. The new act, codified at Ark. Code Ann. sections 28-70-101 to 28-70-605 (Supp. 1999), became effective on January 1, 2000.


author: DONALD L. Corbin, Justice. RAY THORNTON, Justice,

text:
    Ronnie BARKER v. Charles CLARK
    00-424
    33 S.W.3d 476
    Supreme Court of Arkansas
    Opinion delivered November 30, 2000

      Callis L. Childs, for appellant.

      Matthews, Sanders & Sayes, by: Doralee Idleman Chandler and Roy Gene Sanders, for appellee.
   DONALD L. Corbin, Justice.

Appellant Ronnie Barker and Appellee Charles Clark both petition this court for review from a 4-2 decision by the Arkansas Court of Appeals. In Barker v. Clark, 69 Ark. App. 375, 13 S.W.3d 190 (2000), the court of appeals affirmed the decision of the Faulkner County Circuit Court limiting discovery on the issues of Appellee’s driving record and liability insurance, but reversing the trial court’s denial of a jury instruction on the doctrine of res ipsa loquitur and remanding the matter for a new trial. Our jurisdiction of this matter is pursuant to Ark. Sup. Ct. R. 1 — 2(e) (ii). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Matthews v. Jefferson Hosp. Ass’n, 341 Ark. 5, 14 S.W.3d 482 (2000). We affirm the decision of the trial court.

The record reflects that on the evening of July 21, 1996, a two-by-four piece of plexiglass flew off of Appellee’s truck’s camper shell and struck Appellant’s vehicle, breaking the windshield and damaging the body of the vehicle. Both parties pulled to the side of the road, where Appellant told Appellee what had happened. Appellee denied owning any plexiglass, and stated that he did not know how the plexiglass came to rest on top of his truck’s camper shell. Appellee explained that he lived right off the highway, next to a gas station and lumber yard, and that it was possible that the plexiglass had fallen off of a passing truck and had then been tossed on top of his truck. Police responded to the scene of the accident, and Appellee presented Officer Screeton with a Texas driver’s license. No traffic citations were issued. Appellee ultimately left the scene of the accident with the piece of plexiglass.

Appellant successfully pursued a negligence claim against Appellee in municipal court, and was awarded $1,738.82 in damages. Appellee appealed that decision to the circuit court, and a jury trial was held on February 26, 1999. Prior to the trial, Appellant sought discovery of certain information that he believed to be impeachment evidence. This information included Appellee’s addresses for the last fifteen years; the disclosure of any moving violations of Appellee’s for the last fifteen years; and information related to Appellee’s vehicular insurance for the last fifteen years. Appellant argued that all of this information was relevant for his preparation of cross-examination of Appellee. Appellant pointed out that Appellee’s Texas license had been suspended thirteen years ago, after he received four speeding tickets in one year. Appellant contended that the information about any moving violations was relevant because it could prove that Appellee had a motive for lying to police regarding his ownership of the plexiglass. The trial court ordered Appellee to provide Appellant with the information regarding his addresses for the last fifteen years, and also ordered Appellee to disclose information about any moving violations that involved overloading or failure to secure a load. The trial court denied Appellant’s remaining request.

At trial, Appellant attempted to elicit testimony regarding a computer printout that showed that Appellee’s Texas driver’s license number differed from the number included in the police incident report. Appellant argued that Appellee presented Officer Screeton with a fraudulent driver’s license. The trial court sustained Appellee’s hearsay objection to the introduction of the printout. Appellant also sought a jury instruction on the theory of res ipsa loquitur. The trial court denied the proffered instruction, ruling that the case was a simple negligence action. The jury returned a verdict in favor of Appellee. Appellant then appealed the trial court’s order limiting discovery and its order refusing the res ipsa instruction. The court of appeals affirmed on the evidentiary and discovery issues, but reversed and remanded for a new trial on the issue of res ipsa loquitur. We affirm the trial court’s rulings.

I. Evidentiary Issues

For his first point on appeal, Appellant argues that the trial court abused its discretion when it denied his request for discovery of impeachment evidence. Appellant argues that the information sought was relevant and went to Appellee’s state of mind, credibility, bias, motive, and intent for giving a fraudulent driver’s license. Specifically, Appellant alleged that Appellee had a pecuniary interest in avoiding the filing of an insurance claim against him. We decline to address the pecuniary-interest argument because Appellant failed to obtain a ruling on that issue. The record demonstrates that the trial court simply denied Appellant’s discovery request on the ground that the information sought was irrelevant. It is well settled that the failure to obtain a ruling from the trial court is a procedural bar to our consideration of the issue on appeal. See Ross Explorations, Inc. v. Freedom Energy, Inc., 340 Ark. 74, 8 S.W.3d 511 (2000) (citing Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997); Howard v. Northwest Arkansas Surgical Clinic, 324 Ark. 375, 921 S.W.2d 596 (1996)).

Turning now to the issue of relevancy, Ark. R. Evid. 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” This court has held that the trial court’s findings regarding relevancy of evidence are entitled to great weight, and will not be reversed absent an abuse of discretion in this matter. Travelers Ins. Co. v. Smith, 338 Ark. 81, 991 S.W.2d 591 (1999); Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999). Here, the information sought about Appellee’s prior traffic violations or problems with insurance were in no way relevant to the issue of whether Appellee was negligent in this instance. Moreover, the trial court correctly ruled that information related to Appellee’s liability insurance could not be introduced into evidence. See Hively v. Edwards, 278 Ark. 435, 646 S.W.2d 688 (1983) (holding that evidence of liability insurance ordinarily excluded because of its lack of relevance).

Appellant also argues that it was error for the trial court to preclude Officer Screeton from testifying about a computer printout that showed Appellee’s Texas driver’s license number differed from the number included in the police incident report. The trial court ruled that such testimony amounted to inadmissable hearsay evidence. The printout was not offered into evidence, and the officer asked to testify about the printout was not the person who compiled the information. We have held that a trial court is accorded wide discretion in evidentiary rulings, and will not be reversed on such rulings absent a manifest abuse of discretion. See Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000). Accordingly, we cannot say that the trial court abused its discretion.

II. Res Ipsa Loquitur

For his second point on appeal, Appellant contends that the trial court erred in refusing to submit a jury instruction on the theory of res ipsa loquitur. The following instruction was proffered by Appellant:

In addition to the rules of law I have just stated with respect to ordinary care and negligence there are situations in which a jury may, but is not required to, draw an inference of negligence from the manner in which the alleged property damage occurred.
Ronnie Barker asserts that this case involves such a situation, and therefore he has the burden of proving each of the two essential propositions:
First: That the alleged property damage was attributable to the plexiglass coming off of the truck camper shell which was under the exclusive control of Charles Clark.
Second: That in the normal course of events, no property damage would have occurred if Charles Clark had used ordinary care while the plexiglass on the truck camper shell was under his exclusive control.
If you find that each of these two propositions has been proved by Ronnie Barker, then you are permitted, but not required, to infer that Charles Clark was negligent.

A party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support the giving of the instruction. Zearley, 337 Ark. 125, 992 S.W.2d 67; Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666, 945 S.W.2d 355 (1997); Parker v. Holder, 315 Ark. 307, 867 S.W.2d 436 (1993). We will not, however, reverse a trial court’s refusal to give a proffered instruction unless there was an abuse of discretion. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998); Priddy, 328 Ark. 666, 945 S.W.2d 355.

In order for the doctrine of res ipsa loquitur to be applicable, there are four essential elements that must be established: (1) the defendant owes a duty to the plaintiff to use due care; (2) the accident is caused by the thing or instrumentality under the control of the defendant; (3) the accident that caused the injury is one that, in the ordinary course of things, would not occur if those having control and management of the instrumentality used proper care; and (4) there is absence of evidence to the contrary. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996); Schmidt v. Gibbs, 305 Ark. 383, 807 S.W.2d 928 (1991).

In describing the doctrine of res ipsa loquitur, this court has stated:

The doctrine of res ipsa loquitur was developed to assist in the proof of negligence where the cause of an unusual happening connected with some instrumentality in the exclusive possession and control of the defendant could not be readily established by the plaintiff. The theory was that since the instrumentality was in the possession of the defendant, justice required that the defendant be compelled to offer an explanation of the event or be burdened with a presumption of negligence.

Reece v. Webster, 221 Ark. 826, 829, 256 S.W.2d 345, 347 (1953). This presumption is limited to situations where the defendant’s negligence has been substantially proven. See Coca-Cola Bottling Co. v. Hicks, 215 Ark. 803, 223 S.W.2d 762 (1949). In fact, there, this court said: “To make certain that the injury has not been caused by somebody else, through some intervening negligence, it is ordinarily required that the instrumentality causing injury have been in defendant’s exclusive possession and control up to the time of the plaintiff’s injury.” Id. at 807-08, 223 S.W.2d at 765.

The proffered instruction in the instant action argued that the both the truck’s camper shell and the sheet of plexiglass were under Appellee’s exclusive control. There is no doubt that the truck’s camper shell was under the exclusive control of Appellee at the time of the accident. There was no proof, however, that the plexiglass, which was the instrumentality in this case, was under the exclusive control of Appellee. In denying the proposed instruction, the trial court stated that the doctrine was not applicable, as the element of exclusive control was missing here. The trial court explained that there were other reasonable theories that could take the plexiglass out of Appellee’s control.

This court has held that it will not apply the doctrine of res ipsa loquitur when all other responsible causes, such as the conduct of the plaintiff or third persons, are not sufficiently eliminated. Gann v. Parker, 315 Ark. 107, 865 S.W.2d 282 (1993); Hicks, 215 Ark. 803, 223 S.W.2d 762. In other words, this court has consistently held that the element of exclusive control is essential to proving a case under a theory of res ipsa loquitur. See Earnest v. Joe Works Chevrolet, Inc., 295 Ark. 90, 746 S.W.2d 554 (1988) (lack of exclusive control of the instrumentality precluded any application of the doctrine of res ipsa loquitur); Phillips v. Elwood Freemen Co., 294 Ark. 548, 745 S.W.2d 127 (1988) (denial of res ipsa loquitur instruction proper where there was no evidence that an instrumentality under the control of the appellee was the only possible cause of the appellant’s injuries); Transit Homes, Inc. v. Bellamy, 282 Ark. 453, 671 S.W.2d 153 (1984), overruled on other grounds, 314 Ark. 8, 858 S.W.2d 680 (1993) (doctrine of res ipsa loquitur should be applied when the evidence shows that the defendant alone was in control of the object causing the loss); Brantley v. Stewart Bldg. & Hdwr. Supp., 274 Ark. 555, 626 S.W.2d 943 (1982) (res ipsa loquitur doctrine is not applicable where there was no evidence that the instrumentality was under the exclusive control of the appellee).

Finally, we are unpersuaded by Appellant’s contention that the element of exclusive control is not essential to this doctrine. Appellant’s reliance on this court’s decision in Stalter v. Coca-Cola Bottling Co. of Ark., 282 Ark. 443, 669 S.W.2d 460 (1984), to support his contention is misleading. He cites Stalter for the proposition that the control requirement is not always equivalent to exclusive control. At issue in that case, however, was the negligence of multiple defendants. In that opinion, this court noted that when there are multiple defendants, no one defendant will maintain exclusive control, but that fact does not preclude a theory of res ipsa loquitur. Based on a review of this court’s prior treatment of the doctrine of res ipsa loquitur, it appears that the trial court correctly denied Appellant’s proffered instruction.

Because we affirm the rulings of the trial court, it is not necessary for us to address Appellant’s final argument that the trial court erred in refusing to allow Appellant to amend his complaint to add a claim for punitive damages.

Affirmed on direct appeal; court of appeals reversed.

Brown and Thornton, JJ., dissent.

RAY THORNTON, Justice,

dissenting. In my view, the majority opinion is erroneous, and I respectfully dissent from the majority’s view. This case turns on the question of whether the trial court erred in refusing to submit to the jury a requested instruction on the doctrine of res ipsa loquitur allowing the jury to infer neghgence on the part of Charles Clark, the owner and operator of a pickup truck and camper sheh. The accident in question occurred when a sheet of plexiglass, approximately three-feet wide by four-feet long, sailed from the top of Clark’s camper and hit the windshield of appellant Barker’s following vehicle, causing substantial damage. Both vehicles puhed over, and, after a police investigation, Clark put the plexiglass back in his truck and drove away. Accepting Clark’s contention that he did not know that the plexiglass was on top of his camper, a defense that raises a fact question appropriate for consideration by the jury, the trial court ruled that the doctrine of res ipsa loquitur was not applicable and that the instruction allowing the jury to decide whether an inference of negligence might be drawn from the circumstances of the accident was not required.

The court of appeals reversed, finding that the instruction was proper and should have been given. We granted review and the majority reverses that decision. I respectfully dissent on the basis that the requested instruction was a correct statement of the law, and would have allowed the jury to decide whether or not to draw an inference of negligence from the manner in which the property damage occurred.

■ The doctrine of res ipsa loquitur is well established in Arkansas and other jurisdictions. It represents an application of the ordinary rules pertaining to circumstantial evidence in neghgence cases stemming from accidents having particular characteristics. When the doctrine is invoked, an inference of neghgence may be drawn solely from the happening of the accident upon the theory that certain occurrences contain within themselves a sufficient basis for an inference of neghgence. Richardson, Evidence § 93, at 68 (Prince 10th ed). The rule simply recognizes what we know from our everyday experience: that some accidents, by their very nature, would ordinarily not happen without neghgence. Id. Res ipsa loquitur does not create a presumption in favor of the plaintiff, but merely permits the inference of neghgence to be drawn from the circumstances of the occurrence. The rule has the effect of creating a prima facie case of negligence sufficient for submission to the jury, and the jury may —• but is not required to — draw the permissible inference. Id.

Once the plaintiff in the case sub judice established that the defendant owed a duty of care to the plaintiff, that the accident was caused by a thing or instrumentality under the defendant’s control, that the accident was one that, in the ordinary course of things, would not have occurred if the defendant had used proper care, and that there was an absence of evidence to the contrary, a showing of circumstances supporting an inference of negligence existed for submission to the fact finder, which might have accepted or rejected the inference in the factual determination of whether the defendant was negligent. See Stalter v. Coca-Cola Bottling Co. of Ark., 282 Ark. 443, 669 S.W.2d 460 (1984); Harvey v. Metropolitan Util. Dist. of Omaha, 246 Neb. 780, 523 N.W. 2d 372 (1994). The instruction proffered by Barker did not direct the jury to make a finding of negligence based upon the principle of res ipsa loquitur. Rather, the jury would have been asked to determine whether the circumstances of this case would support an inference of negligence. The proffered instruction is as follows:

In addition to the rules of law I have just stated with respect to ordinary care and negligence, there are situations in which a jury may, but is not required to, draw an inference of negligence from the manner in which the alleged property damage occurred.
Ronnie Barker asserts that this case involves such a question, and therefore has the burden of proving each of two essential propositions:
First: That the alleged property damage was attributable to the plexiglass coming off of the truck camper shell, which was under the exclusive control of Charles Clark.
Second: That in the normal course of events, no property damage would have occurred if Charles Clark had used ordinary care while the plexiglass on the truck camper shell was under his exclusive control.
If you find that each of these two propositions has been proved by Ronnie Barker, then you are permitted, but not required, to infer that Charles Clark was negligent.

Upon receiving this instruction, the jury could consider any evidence presented by Clark, such as the assertion that an unknown third party might have placed the plexiglass on top of his truck, and weighed this evidence in determining the question whether Clark’s actions were negligent.

The trial court declined to give the requested instruction because it resolved the question of fact as to how the plexiglass got on top of the camper in favor of Clark’s speculative conjecture that an unknown person might have placed it there. Based upon this self-serving declaration by Clark, the trial court did not pose the question to the jury, ruling that, as a matter of law, the plaintiff had failed to show “exclusive control” of the plexiglass by Clark. In my view the trial court committed reversible error in not presenting the question to the jury.

Exclusive control is a concept with a much broader scope than that urged by appellant or the majority, and does no more than eliminate, within reason, all explanations for the injurious event other than the defendant’s negligence. Qualls v. United States Elevator Corp., 863 P. 2d 457 (Okl. 1993). The Qualls court noted that their flexible interpretation of the exclusive control requirement was consistent with mainstream American jurisprudence. Id. (citing W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 39, at 250-51 (5th ed. 1984)). Courts do not generally apply this requirement as it is literally stated, 4 Fowler V. Harper et al. Torts § 19.7, at 1086, or as a fixed, mechanical, or rigid rule. Keeton, supra. Indeed, the Restatement (Second ) of Torts, § 328D, on res ipsa loquitur, requires only that other reasonably probable causes be sufficiently eliminated by the evidence. Comment (g) to § 328D adds that: “[ejxclusive control is merely one fact which establishes the responsibility of the defendant; and if can be established otherwise, exclusive control is not essential to a res ipsa loquitur case.” Id. We note further that neither the Restatement nor the other authorities or jurisdictions limit the broad treatment of “exclusive control” to those cases involving multiple defendants, as the majority here seeks to do.

Other authorities agree that, when used in the res ipsa loquitur context, the term “control” does not require actual physical dominion over an object. 4 Fowler V. Harper et al., The Law of Torts § 19.7, at 48 (2d. ed. 1986). To establish exclusive control, the plaintiff need not eliminate with certainty all other possible inferences and causes, but must show only that the likelihood of other causes is so reduced “that the greater probability lies at the defendant’s door.” Id. Requiring a plaintiff to foreclose entirely the possibility of all causes attributable to anyone other than the defendant would “emasculate the doctrine.” American Elevator Co. v. Briscoe, 93 Nev. 665, 572 P. 2d 534 (1977).

The general rule that the exclusive control and management of the appliance or thing causing the injury must be shown to have been in the defendant is not applicable in all circumstances and is subject to exceptions where the purpose of the doctrine of res ipsa loquitur would otherwise be defeated. 65A C.J.S. Negligence § 220.15 (1966). It has been held that the matter of control is only one of the numerous factors to be considered in determining whether or not the doctrine is applicable to a particular accident, and that control by the defendant is no longer an absolute requirement, provided that the other factors usually required are present, chiefly absence of knowledge on the part of injured party concerning the cause of the incident and superior ability of the defendant to explain the occurrence. It has also been held that where a defendant does not have exclusive control of an instrumentality which causes injury, but the plaintiff reasonably eliminates other causes than the defendant’s negligence, exclusive control is not necessarily a prerequisite to application of the doctrine. Id. A defendant’s knowledge of the incident’s cause often would exceed, if not indeed supersede, that of the plaintiff. 9 John H. Wigmore, Evidence § 2509 at 382 (3d. ed. 19 )(“[T]he particular force ... of [res ipsa loquitur], regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to [the defendant] but inaccessible to the injured person”). See also Lambert v. Markley, 255 Ark. 851, 503 S.W.2d 162 (1973).

In sum, where the proof is conflicting or subject to different inferences, some of which are in favor of and others against the applicability of res ipsa loquitur, the question must be left to the jury. The trial court’s error came in placing reliance upon the defendant’s proffered alternatives and determining, as a matter of law, that exclusive control did not exist. The nature and degree of control must be such that the reasonable possibilities point to the defendant and support an inference that he was the negligent party. Id. (emphasis added). As the majority notes, this court reviews such decisions de novo, and our review of the facts of the case suggests that the alternative explanations offered by the defendant, that some unknown person came along in the two hours that his truck was unattended outside his home and placed this sheet of plexiglass on the top of his truck, is not sufficiently reasonable to take the evidentiary theory of res ipsa loquitur from the jury’s consideration. Whether a defendant at the critical point in time had “exclusive control” of an instrumentality in the res ipsa loquitur sense often constitutes a mixed question of law and fact, and at the threshold, the issue is one of law for the judge. Qualls, supra. This calls for the trial court to decide whether the evidence may lead reasonable persons to reach different conclusions. But here, where the “proof is not so overwhelmingly one-sided as to make the control element a matter of law, the question must go to the jury.” Id.

First, it is appropriate to address the finding of the trial court, affirmed by the majority, that the instrumentality whose control is at issue was the sheet of plexiglass. In my view, the instrumentality causing the harm was the camper and its cargo, which Clark was obligated under state statute to maintain in a safe condition, so “as not to endanger . . . any other person.” Ark. Code Ann. § 27-32-101 (Supp. 1997), and the cause of the accident was “such that the defendant would be responsible for any negligence connected with it.” 2 Harper and James, Torts § 19.7 at 1086 (quoting Prosser, Res Ipsa Loquitur in California, 37 Cal. L. Rev. 183 (1949)).

Other cases have held similarly, as in Forsch v. Liebhardt, 5 N.J.Super. 75, 68 A. 2d 416 (1949), where, when a cinder block was believed to have fallen from the defendant’s truck and struck plaintiff on the street, the court held that it was a jury question “as to whether it was the defendant’s truck from which the cinder block fell, causing [plaintiff’s] injury, and whether the truck was under the sole management and control of the defendants.” Id. There, as here, it was the vehicle that was the dangerous instrumentality causing the plaintiff’s injury, not simply the falling object, and it was the vehicle which the defendant was charged with the responsibility for controlling and maintaining. Certainly, if the instrumentality causing the damage was the truck and its cargo, Clark had the responsibility to carefully operate his vehicle and its cargo. Even if the plexiglass was the instrumentality, as the majority asserts, the question should have been submitted to the jury. The majority opinion leaves open the question: If Clark was not exercising exclusive control over the instrumentality, who was? Had the question been left for the jury, the fact-finder could then weigh Clark’s contention that some unknown person might have placed it there while his truck was parked for two hours in his front yard. However; the accident did not happen in his front yard. It is undisputed that Clark had exclusive control of his camper and its cargo once he left his front yard, drove to the highway, and merged with the fast-moving traffic. There is no showing that anyone else exercised any control over the movement of the plexiglass; to the contrary, all agree that the camper, and its cargo, were set in motion by Clark’s exercise of exclusive control. Without his exercise of exclusive control, the plexiglass would have been no where near the highway. Under these circumstances, the jury should have been instructed that they had the right to decide whether an inference of negligence might be drawn under the doctrine of res ipsa loquitur.

Other courts, relying on the Restatement, have held that the plaintiff’s evidence of the defendant’s responsibility need not be irrefutable; rather, “the plaintiff need only establish enough evidence that, if credited, presents the defendant’s negligence as the most plausible explanation.” Giles v. City of New Haven, 228 Conn. 441, 636 A.2d 1335 (1993)(emphasis added) (citing Restatement (Second) of Torts, § 328D, comment (e)(“the plaintiff need not . . . conclusively exclude all other possible explanations, and so prove his case beyond a reasonable doubt .... It is enough that the facts proved reasonably permit the conclusion that [the defendant’s] negligence is the more probable explanation”)(emphasis added). See also Wheeler v. Koch Gathering Systems, Inc., 131 F.3d 898 (1997)(exclusive control reasonably excludes the activities of third parties having access to the instrumentality which could alternatively be a probable cause of the plaintiff’s accident)(emphasis added).

[OJnce a plaintiff has presented sufficient evidence to bring himself within the operation of the doctrine, the burden of going forward with evidence to explain the accident is cast upon the defendant .... The burden of proof, however, does not shift, and the plaintiff must prove her case by a preponderance of the evidence. Accordingly, the defendant is free to rebut the inference provided by the doctrine; nevertheless, even though the defendant comes forward with an explanation of the accident, the inference of negligence does not disappear from the case, hut remains and is placed upon the scales to be weighed by the trier of fact with any and all explanations and other evidence.

Giles, supra.

The trial court erred in failing to submit the requested instruction to the jury, and the case should be reversed and remanded for a new trial on this point. I am authorized to state that Justice BROWN joins in this dissent.

Dissent.