author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    Tammy MORRISON, Administratrix of the Estate of Sandra Kay Finsel, Deceased v. Charles A. JENNINGS, M.D., and Munir Zufari, M.D.
    96-1453
    943 S.W.2d 559
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997
    [Petition for rehearing denied June 2, 1997.]

      Charles Karr and James R. Filyaw, for appellant.

      Warner, Smith & Harris, PLC, by: Douglas O. Smith, Jr., for appellee Charles A. Jennings, M.D.

      Ledbetter, Hornberger, Cogbill, Arnold & Harrison, by: Charles R. Ledbetter, R. Ray Fulmer II, and J. Michael Cogbill, for appellee Munir Zufari, M.D.

       Glaze and Brown, JJ., would grant.

   Donald L. Corbin, Justice.

Appellant Tammy Morrison, Administratrix of the Estate of Sandra Kay Finsel, appeals the order of the Sebastian County Circuit Court, Greenwood District, granting summary judgment to Appellees Dr. Charles A. Jennings and Dr. Munir Zufari and dismissing with prejudice her wrongful-death action against them. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l), (15), and (17) (as amended by per curiam July 15, 1996). Appellant raises five points for reversal. We find no error and affirm.

Facts and Procedural History

The following facts are provided in Appellant’s initial complaint filed on July 11, 1994. On April 15 and 18, 1992, Appellee Dr. Zufari saw the decedent in his clinic in Mansfield, Arkansas, for pain in her back, pain and discomfort in her chest which radiated to her back, shortness of breath, and numbness in her arms. The decedent was subsequently admitted to the Crawford Memorial Hospital in Van Burén, Arkansas, on April 27, 1992, where she underwent surgery on her gallbladder, a laparoscopic cholecystectomy, performed by Dr. Zufari the following day. On April 29, 1992, the decedent was discharged from the hospital, but, for unknown reasons, Dr. Zufari did not dictate his discharge summary of the patient until August 30, 1992. The decedent was admitted to St. Edward Mercy Medical Center in Fort Smith, Arkansas, by Dr. Zufari on May 2, 1992, and subsequently discharged on May 8, 1992. The decedent was later readmitted to St. Edward Mercy Medical Center on May 12, 1992, where she remained until her death on July 11, 1992.

Appellant alleged in her first complaint that during the decedent’s hospitalization at St. Edward Mercy Medical Center, it was discovered that she had suffered at least two heart attacks prior to and at the time of her gallbladder surgery by Dr. Zufari. Appellant alleged that Dr. Zufari was negligent in his care of the decedent, thus, causing her wrongful death. None of the above-referenced dates contained in Appellant’s complaints were disputed by Dr. Zufari.

An amended complaint was filed on August 26, 1994, naming Appellee Dr. Jennings as a defendant. Specifically, Appellant alleged that the decedent was seen by Dr. Jennings on April 27, 1992, for consultation, and that Dr. Jennings had cleared her for surgery. Appellant alleged that Dr. Jennings was negligent in his care of the decedent. In his answer, Dr. Jennings admitted that he did see the decedent on that date and that he issued a consultation report. None of the relevant dates in the amended complaint were disputed by Dr. Jennings.

On March 7, 1996, Appellees moved separately for summary judgment on the ground that Appellant’s claim was barred by the two-year statute of limitations applicable to medical malpractice actions as provided in Ark. Code Ann. § 16-114-203 (Supp. 1991).

In her response, Appellant argued that summary judgment was not appropriate for several reasons, including the following: (1) The claims of the decedent and Ashley Finsel, the decedent’s minor heir, were preserved by the general savings clause; (2) the Medical Malpractice Act is special legislation in violation of Amendment 14 of the Arkansas Constitution; (3) the statute of limitations for medical malpractice claims as applied in wrongful-death actions denies equal protection of the law in violation of both the Arkansas and United States Constitutions; (4) the statute of limitations did not begin to run against Dr. Zufari until he dictated his discharge summary on August 30, 1992; and (5) this court’s opinion in Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996), should not be followed or should, in the alternative, be overruled.

On March 28, 1996, after both motions for summary judgment, as well as Appellant’s response thereto, had been filed, Appellant filed a second amended complaint, this time alleging that Dr. Zufari had fraudulently concealed his negligence. The Appellant alleged that by not dictating his discharge summary until after the decedent’s death, and by including in that summary a statement referencing Dr. Jennings’s report, which Dr. Zufari allegedly knew to be false, Dr. Zufari had fraudulently concealed his negligence. Appellant alleged that because Dr. Zufari knew that the statement by Dr. Jennings was false, its inclusion in his report constituted fraudulent concealment of his own negligence in the care and treatment of the decedent.

In an order filed August 19, 1996, the trial court granted summary judgment to both Appellees on the bases that there were no genuine issues of material fact left to be resolved and that Appellant’s cause of action was barred by the statute of limitations. The trial court’s order reflected that the cause of action was dismissed with prejudice. This appeal followed.

Standard of Review

Summary judgment is to be rendered only in those instances where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ARCP Rule 56(c); Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Pastchol, 326 Ark. 140, 929 S.W.2d 713. On appeal, we view all proof submitted in a light most favorable to the non-moving party, with any doubts or inferences resolved against the moving party. Id.

Ashley Finsel’s Claim

Appellant contends that her claim was not barred by the statute of limitations because Ashley Finsel’s claim could not be barred until she reached the age of twenty-four years as provided in Ark. Code Ann. § 16-56-116(a) (1987). Ashley, who was eight years old at the time of the decedent’s death, is the decedent’s minor granddaughter of whom the decedent was legal guardian up to the time of her death, when Appellant was appointed as Ashley’s guardian. Appellant does not contend that the suit instituted below was filed by her in her capacity as legal guardian of Ashley. Rather, it is evident from the pleadings that Appellant brought this suit in her capacity as administratrix of the decedent’s estate. Thus, because Ashley is not a party to the suit, we do not reach the merits of this argument. See ARCP Rule 17(b); Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995).

Special Legislation

Appellant argues that the Medical Malpractice Act is special legislation in violation of Amendment 14 to the Arkansas Constitution. Appellant raised this argument below in her response to Appellees’ motions for summary judgment. We do not reach the merits of this claim, as it is evident from the abstract that Appellant did not obtain a ruling from the trial court on this issue. In its order, the trial court merely stated that there was no genuine issue of material fact and that the claim was barred by the statute of limitations. Such a ruling does not sufficiently address Appellant’s constitutional claim. This court has repeatedly stated that the failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes a review of the issue on appeal. See, e.g., Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996); Technical Servs. of Ark., Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995); Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994).

Equal Protection

Appellant argues that our application of the two-year medical malpractice statute of limitations to wrongful-death actions violates notions of due process and equal protection under the federal and state constitutions. Appellant additionally argues that such application also violates the “open court” provision contained in Article 2, Section 13, of the Arkansas Constitution, which provides that all persons are entitled to a certain remedy in the law and ought to be able to obtain justice freely.

Appellant raises her argument concerning this state’s “open court” policy for the first time on appeal and, as such, we do not address it. Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996). We also decline to address the merits of Appellant’s equal protection and due process argument for two reasons. The first reason is that the abstract does not reflect that Appellant ever obtained a ruling on her constitutional argument from the trial court. As previously stated, we do not reach issues not ruled upon below, even constitutional issues.

The second reason we do not address this argument is that Appellant lacks standing to raise this issue because she is not a member of the class of persons she claims will be deprived of due process and equal protection of the law, namely those persons with claims on behalf of persons who died as the result of a medical injury more than two years from the date of the injury. In order for a litigant to have standing to challenge the constitutionality of a law, it must be unconstitutional as applied to him. Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991). The general rule is that one must have suffered injury or belong to a class which is prejudiced in order to have standing to challenge the validity of a law. Id. Constitutional rights are personal rights and may not be raised by a third party, although there is a narrow exception for cases in which the issue would not otherwise be susceptible of judicial review and it appears that the third party is sufficiently interested in the outcome that the interest of the party whose constitutional rights were allegedly deprived would be adequately represented. Id. That exception does not apply here. Appellant thus lacks standing to raise this equal protection argument.

Fraudulent Concealment

Appellant argues that the statute of limitations did not begin to run on her claim against Appellee Dr. Zufari until he had dictated his discharge summary on August 30, 1992, approximately one and one-half months after the decedent’s death. Appellant makes two separate, unrelated arguments in support of this point.

In the first instance, Appellant argues that the statute of limitations should have been tolled until the doctor completed his discharge summary because it would be unfair and inequitable otherwise. Appellant then proceeds to analyze her assertion under the continuous-treatment doctrine. We find no similarity between a doctor’s failure to dictate an immediate written report and a doctor’s continuous treatment of a patient, especially in this case, as the decedent died prior to the time Dr. Zufari completed his report. Appellant’s argument that the decedent was under Dr. Zufari’s continual treatment even after she had died is clearly not well grounded in law and no authority is offered to support this contention. Assignments of error that are unsupported by convincing argument or authority, will not be considered on appeal where it is not apparent without further research that they are well taken. Moorman v. Priest, 310 Ark. 525, 837 S.W.2d 886 (1992).

In the second instance, Appellant contends that Dr. Zufari fraudulently concealed his alleged negligence when he referred to the findings made by Dr. Jennings concerning the decedent’s suitability for surgery. The offending statement in Dr. Zufari’s discharge summary reads:

His impression was cholelithiasis, abnormal EKG without documented evidence of coronary artery disease, and suspect her EKG may well be abnormal variant.

Appellant asserts that this statement concerning Dr. Jennings’s finding of an abnormal EKG without documented evidence of coronary artery disease constituted fraudulent concealment because Dr. Zufari was allegedly aware of such documented evidence from a previous testing of the decedent in July 1990. Appellant does not, however, explain how Dr. Zufari’s reference to what another doctor concluded rises to the level of an attempt by Dr. Zufari to fraudulently conceal his own alleged negligence. Again, as above, we decline to address this argument because Appellant has cited no convincing authority or argument in support of her allegation.

Stare Decisis

Lastly, Appellant argues that we should not apply our holding in Hertlein, 323 Ark. 283, 914 S.W.2d 303, or, in the alternative, that we should overrule that decision completely. Appellant offers several reasons for overruling that decision, none of which are persuasive. Since our decision in Hertlein, this court has had the opportunity to revisit the issue of whether the two-year statute of limitations found in the Medical Malpractice Act applies to claims involving the death of a person as a result of medical injury in Pastchol, 326 Ark. 140, 929 S.W.2d 713.

The facts presented in Pastchol are similar to those presented here. In Pastchol, the appellant argued that the action was one of wrongful death, not medical malpractice, and that, as such, the trial court should have applied the three-year statute of limitations for wrongful-death actions as provided in Ark. Code Ann. § 16-62-102 (1987), instead of the two-year period for medical malpractice actions found in section 16-114-203. The appellant further asserted that the two causes of action were separate and distinct even though the cause of death in that case was alleged to have resulted from a medical injury. This court upheld its previous rulings in Hertlein, 323 Ark. 283, 914 S.W.2d 303, and Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), concluding that because the language of the Medical Malpractice Act provides that the act supersedes any inconsistent provision of law, the two-year statute of limitations provided in the act applies to any claim of medical injury, regardless of whether the injured person ultimately died as a result. In the present case the alleged cause of the decedent’s death is a medical injury; thus, the two-year statute of limitations provided in section 16-114-203 is applicable.

Section 16-114-203 provides in pertinent part:

(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.

Appellant has not pleaded a specific date when the alleged negligent injury occurred with regard to Dr. Zufari. Instead, the complaints allege that, “[d]uring her hospitalization at St. Edward, it was discovered that the Decedent had suffered at least two heart attacks prior to and at the time of her gallbladder surgery by [Dr. Zufari]. ” It thus appears that the alleged negligence of Dr. Zufari occurred prior to the time the decedent was admitted to St. Edward Mercy Medical Center. In any event, according to the complaints filed by Appellant, the latest possible date upon which Dr. Zufari could have committed a negligent act while treating the decedent would have been May 2, 1992, the date on which he admitted the decedent to St. Edward Mercy Medical Center following her gallbladder surgery. None of the abstracted complaints states affirmatively that Dr. Zufari had any further contact with the decedent after that date.

As for the claim against Dr. Jennings, the complaints reflect that the only contact he had with the decedent occurred on April 27, 1992. Thus, that appears to be the only possible date on which Dr. Jennings could have committed a negligent act upon the decedent.

Applying the two-year statute of limitations found in section 16-114-203, Appellant’s claim against both Dr. Zufari and Dr. Jennings is barred because it was not filed until July 11, 1994. For this reason, as well as the reasons stated above, we affirm the trial court’s judgment dismissing Appellant’s cause of action with prejudice as to both Appellees.

Arnold, C.J., Glaze, and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. For the third time in a year, the majority has erred in its application of the two-year statute of limitations to a wrongful-death claim that arose from a medical injury. See Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996); Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996). The catalyst for these errant decisions was the court’s analysis of the law in Hertlein v. St. Paul Fire & Marine Ins. Co. A review of the law to that point reveals the fallacies in the court’s opinion from which I respectfully dissent.

Like this case and Pastchol, the issue presented in Hertlein was whether the two year or three-year statute of limitations applies in a wrongful-death action where the death is allegedly caused by a medical injury. For medical malpractice, “all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.” Ark. Code Ann. § 16-114-203(a) (Supp. 1995). The medical malpractice act “applies to all causes of action for medical injury accruing after April 2, 1979, and, as to such causes of action, shall supersede any inconsistent provision of law.” Ark. Code Ann. § 16-114-202 (1987). Under the wrongful death act, the action must be commenced “within three years after the death of the person alleged to have been wrongfully killed.” Ark. Code Ann. § 16-62-102(c)(1) (Supp. 1995).

In Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968), Mr. Matthews sued under medical malpractice and wrongful-death theories. The malpractice occurred on September 14, 1964, when the laboratory erroneously reported that tissues taken from Mrs. Matthews were not cancerous. The error was discovered on January 29, 1965, and Mrs. Matthews died on November 28, 1965. Mr. Matthews filed suit on June 14, 1967- — nearly three years after the negligent act. This court was forced to determine whether the two-year statute of limitations for medical malpractice or the three-year wrongful-death statute was controlling. Writing for the majority, Justice George Rose Smith offered this analysis:

In our opinion each statute is partly controlling. It is essential to recognize that two separate causes of action are being asserted by the appellant in his capacity as administrator of his deceased wife’s estate. The complaint seeks in part to recover compensation for the physical and mental anguish suffered by Mrs. Matthews before her death. At common law that cause of action would not have survived the death of Mrs. Matthews, but under our survival statute it may be asserted by her personal representative. In that situation the personal representative is asserting the decedent’s cause of action and must therefore bring suit within the period allowed by that statute of limitations which would have governed if the injured person had not died. That being the two-year malpractice act in this case, the administrator’s attempt to assert Mrs. Matthews cause of action for her physical and mental pain and suffering is barred, because the suit was not filed within two years after the wrongful act complained of.

Matthews, 245 Ark. at 249, 432 S.W.2d at 487-88 (citations omitted). We then recognized that the remaining statutory wrongful-death claim, as opposed to the survival claim, was not subject to the medical malpractice two-year limitations period. As a final justification for applying both statutes, we stated that public policy favors applying the longer statute of limitations when the issue is doubtful. Matthews, 245 Ark. at 250, 423 S.W.2d at 488.

The Medical Malpractice Act was enacted in 1979 and superseded any inconsistent provision of law. 1979 Ark. Acts 709, § 9; Ark. Code Ann. § 16-114-202 (1987). However, eight years after the enactment of the current Medical Malpractice Act, this court indicated that Matthews was still viable. In Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987) (Brown I), a patient at an alcoholism treatment center walked through an unlocked door to the roof of a building and jumped or fell to his death. Nearly three years later, the personal representative sued. We struggled with whether Brown’s death was a “medical injury” thereby invoking the two-year medical malpractice statute of limitation. In holding the three-year statute of limitations statute applicable, “we [stood] fast on our ruling in Matthews.” Brown I, 292 Ark. at 561, 732 S.W.2d at 131. We applied Matthews despite the fact that it interpreted former law:

Our wrongful death statute created a new and separate cause of action which could arise if death was caused by any wrongful act and which carries its own statute of limitations as part of that right. For this reason, the medical malpractice statute of Hmitations is irrelevant when a patient dies from his injuries before the two-year period has run.

Brown I, 292 Ark. at 562, 732 S.W.2d at 132. We then reversed the lower court and held that the wrongful-death action was timely filed.

Subsequently, we overruled Brown I in Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991). In Bailey, a nursing home resident left the home unnoticed in his wheelchair and was struck and killed by a pickup truck. Relatives sued, and after the jury returned a verdict for the nursing home, the plaintiffs appealed, challenging the instructions on negligence. In our analysis of the negligence instructions, we looked to the Brown I definition of “medical injury.” We concluded that the facts in Brown I did not fit within the definition of medical injury, and we overruled Brown I to that limited extent. Bailey, 307 Ark. at 19-20, 817 S.W.2d at 415. The effect of this analysis on Brown I was that only the wrongful-death statute of limitations was applicable because the injury was not a “medical injury” and, thus, the injury did not fall within the ambit of the Medical Malpractice Act. The language in Bailey did not speak to the Matthews rationale in Brown I, and as a result, Matthews remained unaffected.

We revisited the Brown saga in Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992) (Brown III). The issue in this third appeal was whether the case should be dismissed due to the untimely filing of the pleadings. We held that Brown I had decided that this was a wrongful-death action and that the three year statute of limitations applied. “Because this is a wrongful death action, compliance with the medical malpractice statutes, including § 16-114-204, is irrelevant. The doctrine of law of the case clearly applies.” Brown III, 308 Ark. at 363, 823 S.W.2d at 909. The case was reversed for a trial on the merits. Again, Brown III makes no mention of Matthews.

At this stage in the case history, Matthews, as explained in Brown I, is still good law. The break in the Matthews position began with a narrow decision in 1993. In Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), the plaintiff filed the complaint after the two-year medical malpractice statute had run but before the three-year wrongful-death statute had run. The complaint alleged that the doctors failed to properly diagnose and treat the deceased, resulting in his death. The doctors moved for a summary judgment on the grounds that the plaintiff had failed to comply with the sixty-day notice of intent to sue. That provision was nullified by our decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), but in Ruffins we applied the notice provision because the law was extant at the time the case was tried. We observed that in light of Weidrick v. Arnold, “this decision has very little significance as a precedent.” Rifffins, 313 Ark. at 177. We implemented the plain language of the medical malpractice act in affirming the trial court’s dismissal of the suit for failure to give the requisite notice. Under the statutes in force at the time the case was tried, there was no doubt that the medical malpractice claim was barred. We then addressed the wrongful-death portion of the claim:

The plaintiff-appellant tacitly asks us to ignore the clear language of the statute by arguing that our cases have recognized that medical malpractice and wrongful death are separate causes of action even though they may arise from the same negligent act and asserts this action is solely for wrongful death. Accordingly, she contends that she did not have to give the “notice of intent to sue” that is required by the Medical Malpractice Act. . . . She bolsters her argument by quoting a sentence of dictum from [ Brown I\ that states the Medical Malpractice Act is irrelevant to wrongful death actions.

Ruffins, 313 Ark. at 177-78, 853 S.W.2d at 879. The Ruffins court distinguished Matthews because:

[T]hat holding does not decide the issue in this case. The issue here, regardless of which statute of limitations controls, is whether the then required notice provision of the Medical Malpractice Act ... is applicable. Since this is undisputedly a suit for “medical injury,” the Medical Malpractice Act applies, and at the time this case arose, it required the sixty-day notice of intent to sue. The wrongful death statute does not require notice. . . . The Medical Malpractice Act was enacted long after the wrongful death statute was enacted, and the Medical Malpractice Act expressly “supersedes any inconsistent provision of law. . . We have no choice on the notice issue as we did when there were two statutes of limitations that were applicable.

Ruffins, 313 Ark. at 178, 853 S.W.2d at 879. The court further distinguished Matthews and Brown I in that after Bailey overruled Brown I, “the question of whether a wrongful death resulting from medical injury was subject to the period of limitations of the Medical Malpractice Act was an open question, and we had made no holdings whatsoever about the notice issue.” Ruffins, 313 Ark. at 179, 853 S.W.2d at 880.

The Ruffins court, thus, admitted that the case was of little precedential value. The court also stated that it dealt with the notice provision of the medical malpractice act as opposed to the statute of limitations. Within this narrow scope, Ruffins dictum was overbroad to the extent it intimates that the wrongful death statutes are inconsistent with the medical malpractice statutes simply because they overlap. As Brown I makes clear, the legislature has provided for two separate causes of action in wrongful-death cases, and Ruffins should be limited to effect that intent. To interpret the statutes differently would be to say that the General Assembly intended to give with the left hand what it takes away with the right.

Yet that is precisely what happened with our decision in Hertlein. Indeed, the majority relied only on Ruffins and the general repealer clause in the medical malpractice act when it held that the medical malpractice statute of limitations was exclusive of all causes of actions stemming from a medical injury because the wrongful-death statute of limitations was “an inconsistent provision of law.” Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. at 286, 914 S.W.2d at 305. The crux of the Hertlein decision rests on its interpretation of the repealer clause. Conspicuously absent from the opinion is a recitation of the applicable rules of statutory interpretation or an overruling of Matthews or Brown I.

When interpreting statutes, the first rule of construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Henson v. Fleet Mortgage Co., 319 Ark. 491, 892 S.W.2d 250 (1995). Yet the basic rule of statutory interpretation to which all other interpretive guides must yield is to give effect to the intent of the legislature. Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996); Henson v. Fleet Mortgage Co., supra. In ascertaining an act’s intent, the appellate court examines the statute historically, as well as the contemporaneous conditions at the time of the enactment, the object to be accomplished, the remedy to be provided, the consequences of interpretation, and matters of common knowledge within the court’s jurisdiction. Rogers v. Tudor Ins. Co., supra; Henson v. Fleet Mortgage Co., supra; City of Little Rock v. AT&T Communications of the S.W., Inc., 318 Ark. 616, 888 S.W.2d 290 (1994).

A statute of a general nature does not repeal a more specific statute unless there is a plain, irreconcilable conflict between the two. Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980); Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979). Thus, the treatment of a general repealer clause does not differ from the rules applicable to a repeal by implication. The fundamental rule of that doctrine is that a repeal by implication is not favored and is never allowed except when there is such an invincible repugnancy between the provisions that both cannot stand. Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994); Uilkie v. State, 309 Ark. 48, 827 S.W.2d 131 (1992). “[A] repeal by implication is accomplished where the Legislature takes up the whole subject anew and covers the entire ground of the subject matter of a former statute and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new.” Uilkie v. State, 309 Ark. at 53, 827 S.W.2d at 134, quoting Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964); see also Bryant v. English, 311 Ark. 187, 843 S.W.2d 308 (1992) (constitutional provision). Hence, the older act will be “repealed” if it is apparent that the latter act was intended to substitute for the prior one. Uilkie v. State, supra.

The error in the Hertlein decision is that it does not recognize that the statutes of limitations for the separate causes of action can be read harmoniously as is demonstrated by this court’s decisions in Matthews v. Travelers Indemnity Ins. Co., supra, and Brown v. St. Paul Mercury Ins. Co. (Brown I), supra. This court’s broad dictum in Riiffins does not diminish this fact. In the absence of the General Assembly’s specific directive to limit a cause of action for wrongful death, this court erred in producing its own limitation without sufficient justification for doing so. Unfortunately, that error has been compounded by the court’s adherence to Hertlein in Pastchol v. St. Paul Fire & Marine Ins. Co., supra, and now this case.

The question then becomes what effect the time-honored doctrine of stare decisis has on the faulty Hertlein decision. I turn to this court’s discussion of stare decisis in 1968:

This policy of adhering to precedent to give predictability to the law, and to avoid unsettling things, is fundamental to the common law. So too is the power to overrule a line of decisions, even those under which property rights were acquired. Carter Oil Co. v. Weil, 209 Ark. 653, 192 S.W.2d 215 (1946). Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. Any rule of law not leading to the right result calls for rethinking and perhaps redoing. Llewellyn, Jurisprudence, 217 (1962). The proper limitations on the doctrine of stare decisis have ever been recognized by this Court. “Precedent, it is said, should not implicitly govern, but discretely guide . . .”, Roane v. Hinton, 6 Ark. 525, 527 (1846).

Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968). This court has said that a revision of erroneous case law is preferred “rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.” Brickhouse v. Hill, 167 Ark. 513, 519, 268 S.W. 865, 867 (1925), quoting Whittington v. Flint, 43 Ark. 504 (1884) (overruling five prior decisions). Later in the Brickhouse opinion, this court commented that it is our duty to correct and not to perpetuate a decision founded in error.

Legislative silence can be a factor in determining the viability of a court’s statutory interpretation, but such reliance is treacherous and should not control the outcome. Despite the 1996 Hertlein opinion, the General Assembly in its 1997 session failed to offer any pronouncement on this issue one way or the other. However, the General Assembly also took no action after Brown I, which reaffirmed the Matthews principles. Considering the Legislature’s inaction both before and after this court’s decisions in Hertlein and Ruffins, the General Assembly’s refusal to speak is entitled to no weight.

Hertlein is not based on sound legal principles, and the decision limits a cause of action resulting in horrendous consequences without properjudicial or legislative justification. It is our duty to correct this situation and not to perpetuate a decision founded in error. Brickhouse v. Hill, supra.

I respectfully dissent.

Arnold, C.J., and Glaze, J., join.


source: Caselaw Access Project

author: Robert L. Brown, Justice. David Newbern, Justice,

license: Public Domain

text:
    Michael A. OLDNER v. The Honorable F.G. VILLINES, III, County Judge of Pulaski County; Arkansas Quorum Court Members, Bart Moreland, Sidney Newcomb, Tom Alexander, John Pagan, Sr., Wilandra Dean, James L. Wise, Robert Keltner, Annette McCaleb, Mary L. Williams, Johnnie Lee Mass, Lawrence Goddard, Dianne Hudson, Harold Fortson, Charles F. Roberson, John Hall; County Treasurer, Pat Tedford; and State of Arkansas
    96-372
    943 S.W.2d 574
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Nichols,, Wolff, Ledbetter & Campbell, by: H. Gregory Campbell and Mark W. Nichols, for appellant.

      Pulaski County Attorney’s Office, by: Nelwyn Davis and Stephen Cobb, for appellees.
   Robert L. Brown, Justice.

This appeal raises the question of whether a one percent sales tax approved by the voters of Pulaski County in 1982 failed to comply with Article 16, § 11, of the Arkansas Constitution and, thus, constituted an illegal exaction. In particular, the plaintiff/appellant in the matter, Michael A. Oldner, complained that the ballot form violated the Arkansas Constitution by not informing the voters of Pulaski County of the “purpose” of the tax. The chancellor dismissed the matter on the basis that Article 16, § 11, does not require the purpose of the tax to be stated in the ballot or county ordinance calling for the election when the sales tax is to be used for general purposes. We affirm the dismissal by the chancellor.

Appellant Oldner is a resident and taxpayer in Pulaski County. On July 7, 1995, Oldner filed an amended complaint against the Pulaski County Judge, the members of the Pulaski County Quorum Court, and the State of Arkansas (the appellees) and asserted that a one percent sales tax levied against the residents of Pulaski County in 1982 constituted an illegal exaction in that the ballot did not state the object of the tax as required by Ark. Const, art. 16, § 11. Furthermore, he asserted that the ballot did not inform voters that cities in Pulaski County would be receiving a per capita share of the tax revenues collected. The ballot form for the 1982 election, as taken from Pulaski County Ordinance No. 81-OR-71, which called the sales tax election, read as follows:

“FOR ADOPTION OF A ONE PERCENT (1%) SALES TAX WITHIN PULASKI COUNTY”
“AGAINST ADOPTION OF A ONE PERCENT (1%) SALES TAX WITHIN PULASKI COUNTY”

The ballot form is precisely the form authorized by Act 991 of 1981, now codified at Ark. Code Ann. §§ 26-74-301 to -314 (1987 and Supp. 1995). Oldner had previously moved for class certification.

The State answered the amended complaint and denied that the ballot did not state the object of the tax or that the sales tax constituted an illegal exaction. The State affirmatively pled failure to set forth facts upon which relief can be granted. The county officials moved to dismiss the amended complaint and Oldner’s motion for class certification. The county officials asserted that the sales tax was a lawful delegation to the counties of the State’s power to tax and, thus, was not a county tax. The county officials further asserted grounds for dismissal based on res judicata, collateral estoppel, laches, and failure to state facts upon which relief can be granted. Oldner countered in his response that the ballot form violated the Arkansas Constitution by not stating the object of the tax and denied that the doctrines of res judicata and collateral estoppel applied. Oldner attached to his brief in support of his response Pulaski County Ordinance No. 81-OR-71 (calling for the sales tax election) and an election ballot from Miller County, which he contended did comply with constitutional mandates. The county officials answered Oldner’s response by stating that the ballot for the sales tax at issue had complied with Act 991 of 1981, which authorized counties to levy a one percent sales tax for general purposes.

Oldner next moved for summary judgment, again for the reason that the ballot failed to set forth the object of the tax and, therefore, was unconstitutional. He attached Pulaski County Ordinance No. 81-OR-71 (calling for the sales tax election), Pulaski County Ordinance No. 82-OR-12 (levying the one percent sales tax following the election), and the Miller County election ballot. He also attached the allocation of the sales tax proceeds to municipalities in Pulaski County.

A hearing was held on the various motions. The county officials urged the chancellor that if the sales tax was to raise revenues for general usage, that purpose did not have to be stated in the ballot. According to county officials, only if the tax was for a specific purpose did that purpose have to be identified under the Arkansas Constitution. Oldner responded that a purpose, whether general or specific, was required to be stated in the ballot. The chancellor granted the motion to dismiss filed by the county officials, which was joined by the State, and her order of dismissal read in pertinent part:

After reviewing the record, considering the briefs of counsel, and hearing oral argument on the pending motion, the Court finds, adjudges, and orders as follows:
1. This case is not barred by res judicata.
2. [Defendants’] consolidated motion to dismiss is granted for failure to state facts upon (sic) relief can be granted.
3. Article 16 § 11 of the Arkansas Constitution does not require the purpose of the sales tax to be stated in the ballot or Ordinance No. 81-OR-71 where the sales tax is to be used for general purposes. Only where the sales tax is to be used for other than general purposes does Article 16 § 11 require the ballot and ordinance to state the purpose or intended use of the tax.
4. Distribution of tax proceeds to political subdivisions other than the levying body need not be stated in the ballot or ordinance No. 81-OR-71 where the sales tax is to be used for the general purposes of that political subdivision.

I. Order of Dismissal

The sole issue on appeal is whether the chancellor erred in dismissing Oldner’s complaint under Ark. R. Civ. P. 12(b)(6). We first must consider whether the chancellor’s order was in fact a 12(b)(6) dismissal or a grant of summary judgment. When considering a Rule 12(b)(6) motion, the trial court must treat the facts as true and view them in the light most favorable to the party who filed the complaint. Little Rock Cleaning Systems, Inc. v. Weiss, 326 Ark. 1007, 935 S.W.2d 268 (1996); Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994); Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993). The trial court must not look beyond the complaint unless the court treats the motion as one for summary judgment. Little Rock Cleaning Systems, Inc. v. Weiss, supra; Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). Moreover, the court must not lend consideration to factual conclusions reached through the arguments of counsel and exhibits. Guthrie v. Tyson Foods, 285 Ark. 95, 685 S.W.2d 164 (1985). Furthermore, the court may not base its decision on allegations contained in briefs and exhibits. Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989).

The chancellor’s final order states that she reviewed the record and considered the briefs and arguments of counsel in reaching her decision. Nevertheless, it is clear that the chancellor conducted the hearing as a Rule 12(b)(6) hearing, referencing more than once that the allegations of fact in the amended complaint were to be taken as true. See Little Rock Cleaning Systems, Inc. v. Weiss, 326 Ark. at 1010-11, 935 S.W.2d at 270; Battle v. Harris, 298 Ark. at 244, 766 S.W.2d at 432. A Rule 12(b)(6) decision is also evident on the face of the order. Furthermore, the chancellor specifically declined to hear a laches argument because she believed the topic more appropriate for a hearing on summary judgment because it was a “factual issue.” We will treat the order as a dismissal under Rule 12(b)(6).

II. Illegal Exaction

On the merits, Oldner’s argument concerning a required statement of an “object” in the ballot for the sales tax is straightforward, and his appeal must necessarily turn on this court’s interpretation of Article 16, § 11, of the Arkansas Constitution. That section reads:

No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.

Ark. Const, art. 16, § 11. Oldner argues that this section must be given its plain and normal meaning and that the trial court inappropriately carved out an unconstitutional exception when the tax is to be used for general purposes.

Oldner is correct in urging that when the language of the constitution is plain and unambiguous, each word must be given its plain, obvious, and common meaning. Brown v. City of Stuttgart, 312 Ark. 97, 847 S.W.2d 710 (1993); Snyder v. Martin, 305 Ark. 128, 806 S.W.2d 358 (1991); Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983). Using this standard, we initially question whether the “law imposing the tax” as required in Article 16, § 11, is the ballot submitted to the voters or the ordinance calling for the election (No. 81-OR-71), as Oldner maintained and as the chancellor apparently accepted. This issue was not addressed by the parties on appeal, but it would seem that the appropriate law imposing the tax is the levying ordinance by Pulaski County — No. 82-OR-12 — and not the ordinance calling the election, which was No. 81-OR-71. See Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996). Ordinance No. 82-OR-12, however, was not the subject of Oldner’s complaint.

We have recognized recently that a local tax is not valid unless it is levied by the proper local authorities. See Price v. Drainage Dist. No. 17, 302 Ark. 64, 787 S.W.2d 660 (1990). In the instant case, the levying ordinance is No. 82-OR-12. The State and county officials suggested in the hearing before the chancellor that the operable law was Act 991 of 1981, which enabled and authorized counties to levy a one percent sales tax with the ballot form used in the instant case. But regardless of whether the law imposing the tax is Ordinance No. 82-OR-12 or Act 991, Oldner failed to sue or obtain a ruling with respect to either. This deficiency alone could well be grounds for dismissal. Be that as it may, we choose to go forward under these unique facts where the constitutionality of the sales tax is challenged and address the issue of whether the ballot violated Article 16, § 11, by failing to identify an object of the tax.

The appellees contend, in support of affirmance, that Article 16, § 11, does not apply to tax levies by municipal corporations. We disagree and take this opportunity to clarify the law on this point. Under Article 2, § 23, of the Arkansas Constitution, the framers of the constitution expressly conceded to the State the right to tax its citizens through the General Assembly. City of Little Rock v. Waters, 303 Ark. 363, 797 S.W.2d 426 (1990). In turn, the General Assembly has within its power the ability to delegate taxing authority to municipal corporations. Ark. Const, art. 2, § 23; City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996); Little Rock v. North Little Rock, 72 Ark. 195, 79 S.W. 785 (1904). When a municipal corporation acts within its delegated taxing authority, its ordinance is the equivalent of an Act of the General Assembly. Lowell v. M & N Mobile Home Park, Inc., supra. Counties have long been recognized as municipal corporations. Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981); Roberts v. Watts, 263 Ark. 822, 568 S.W.2d 1 (1978); City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W.2d 930 (1949); Eagle v. Beard, 33 Ark. 497 (1878).

It is true that in 1931, this court held that Article 16, § 11, had no application to municipal corporations. See Shepherd v. Little Rock, 183 Ark. 244, 35 S.W.2d 361 (1931). In Shepherd, the issue was whether the City of Little Rock could levy a license tax on practicing attorneys and be consistent with the constitution. Although the Shepherd opinion does not mention the specific argument put forth by the attorneys, this court rejected the argument that Ark. Const, art. 16, § 11, decided the issue and did so in summary fashion:

We think this section has no application to municipal ordinances. This section is found in the article of the Constitution on finance and taxation. A number of sections in this article refer specifically to counties and municipalities, and, when the whole article is considered as it must be in order to arrive at a proper interpretation of the section involved, we think it clear that this section does not apply to municipal corporations.

Shepherd v. Little Rock, 183 Ark. at 253-54, 35 S.W.2d at 365.

While the Shepherd case has not been expressly overruled, it has certainly been overruled by implication, as this court has in recent years, on more than one occasion, discussed the applicability of Article 16, § 11, to municipal corporations. See, e.g., Hasha v. City of Fayetteville, 311 Ark. 460, 845 S.W.2d 500 (1993), reh’g denied, 311 Ark. 476-A, 847 S.W.2d 41 (1993); Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1990), reh’g denied, 300 Ark. 512-A, 780 S.W.2d 531 (1990); Ragan v. Venhaus, 289 Ark. 266, 711 S.W.2d 467 (1986); Bell v. Crawford County, 287 Ark. 251, 697 S.W.2d 910 (1985). In Hasha, for example, we held that a one percent sales tax approved by the voters of Fayetteville was an illegal exaction because the purpose of the approved tax was inextricably linked to the issue of school district bonds, and the tax could not be used to finance the bonds. In the Hasha opinion, we specifically referred to Article 16, § 11, as being applicable to the case. Similarly, in Hartwick v. Thorne, supra, we applied the mandates of Article 16, § 11, when funds from a bond issue for a drainage canal approved by the voters of North Little Rock were diverted for curbing and guttering improvements, and we affirmed the chancellor’s finding of an illegal exaction. To the same effect is Bell v. Crawford County, supra. We, therefore, must conclude that the holding in Shepherd v. Little Rock, 183 Ark. 244, 35 S.W.2d 361 (1931), relating to the application of Article 16, § 11, to municipal corporations has been overruled by the subsequent cases referenced above.

We turn then to the issue of whether the sales tax ballot at issue in this case violated Article 16, § 11. We conclude that it did not. Counsel for the county officials and the State urged at oral argument that the words object and purpose used in Article 16, § 11, are not used synonymously. According to counsel the object of the tax is a tax on sales, and the purpose of the tax is to raise money for general purposes. Only the object need be included on the ballot, according to appellees’ counsel. While this argument has some appeal, when we review the definitions in Black’s Law Dictionary, the two terms appear to be synonymous:

OBJECT, n. End aimed at, the thing sought to be accomplished; the aim or purpose, the thing sought to be attained.
PURPOSE. That which one sets before him to accomplish or attain; an end, intention, or aim, object, plan, project. Term is synonymous with ends sought, an object to be attained, an intention, etc.

Black’s Law Dictionary 1072, 1236 (6th ed. 1990) (emphasis added).

We believe, however, that the intent of Article 16, § 11, can be garnered from the express language of the section. We quote it again for ease of reference:

No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.

Ark. Const, art. 16, §11. If we were to stop reading section 11 at the semicolon, we might agree with Oldner’s interpretation. But reading the section in its entirety and using the words object and purpose interchangeably, the express intent of section 11 is for the object to be stated so that the tax revenues cannot be shifted to a use different from that authorized. Indeed, it is the use of the funds for a different purpose that we have held to be an illegal exaction in the past. See, e.g., Hartwick v. Thorne, supra; Bell v. Crawford County, supra. When explaining what constituted the illegal exaction in Hartwick v. Thorne, supra, we said:

The city may have been acting in the utmost good faith — nevertheless, it tried to appropriate monies arising from taxes for purposes other than the objective which caused the citizens to approve the bond issue.

300 Ark. at 509, 780 S.W.2d at 534 (emphasis added).

Thus, it is not the mere absence of an object in the law imposing the tax that constitutes the illegal exaction, and Oldner has cited us to no case where we have so held. When a tax is enacted by the General Assembly or approved by a vote of the people without the statement of a purpose, the resulting revenues may be used for general purposes. We fail to see how the voting public could be misled on this point. It is only when a diversion of tax revenues occurs from a specific purpose that has been authorized to an unauthorized purpose that an illegal exaction occurs. We have no doubt that that is the evil sought to be remedied by Article 16, § 11.

We hold that the failure to state an object for the tax in and of itself does not constitute an illegal exaction under Article 16, §§11 and 13. It is the use of tax revenues for an unauthorized purpose that does. In the instant case, the object of the tax was not stated, which meant the tax funds could be used for general purposes and were not limited to a specific purpose. Because Oldner’s facts do not state a cause of action for illegal exaction under Article 16, §§ 11 and 13, we affirm the dismissal of his complaint by the chancellor.

Affirmed.

Newbern, J., concurs.

David Newbern, Justice,

concurring. The first portion of the majority opinion concludes that Michael A. Oldner, the plaintiff in the Trial Court, did not state facts upon which relief could be granted because he did not attack a “law imposing a tax.” I thoroughly agree with that conclusion. Obviously, the failure to state the object of a tax on a ballot does not violate Ark. Const, art. 16, § 11. The majority opinion should end with that statement. Instead, it unnecessarily goes forward into a tortured interpretation of the Constitution with which I thoroughly disagree.

Article 16, § 11, states:

No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.

The majority opinion allows that the only evil addressed by that section is the one stated in the phrase prohibiting the use of moneys arising from a tax levied for one purpose for another purpose. The ultimate conclusion is that the first phrase of § 11 is meaningless. That conclusion is reached despite the majority’s correct statement, supported by proper citations, that “Oldner is correct in urging that when the language of the constitution is plain and unambiguous, each word must be given its'plain, obvious, and common meaning.” To me, it is apparent that there are two distinct thoughts expressed in § 11. They are even separated by a semicolon and a conjunction. I am unwilling to ignore either of them.

When we go far beyond that which is necessary to decide litigation, even overruling precedent in the process, we encounter the danger of saying way too much and being sorry later. We will regret this decision that effectively nullifies the requirement that the object of a tax be stated in the law imposing it.

       Oldner’s original complaint had alleged an illegal exaction based upon a tax that exceeded the one-half-of-one-percent limit set forth in Ark. Const, art. 16, § 9. Following this court’s decision granting rehearing in the Foster case, Oldner admitted that the decision was dispositive of this claim. See Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809 (1995), supp. op. granting reh’g, 321 Ark. 116-A, 901 S.W.2d 809 (1995).


author: Ray Thornton, Justice.

text:
    Michael Leonard JONES v. STATE of Arkansas
    CR 96-1192
    942 S.W.2d 851
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Charles A. Potter, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant Michael Leonard Jones was charged with capital murder in the robbery and beating death of Willie Allen. Mr. Allen, who was an elderly resident of a nursing home, became disoriented and walked away from the home sometime either in the late evening of May 5, 1995, or during the early morning hours of May 6. Testimony at trial established that appellant approached Mr. Allen as he was walking down the street early in the morning of May 6, knocked him to the ground, took his wallet and the change from his pockets, and continued to beat or kick him. Mr. Allen died as a result of his injuries. Appellant was convicted of capital murder and sentenced to life imprisonment without parole.

There is ample evidence of his guilt, and appellant does not challenge the sufficiency of the evidence to convict him; so we need not set out the facts in further detail. His sole point on appeal is that Ark. Code Ann. § 5-10-101 (Supp. 1995), the capital murder statute is unconstitutional due to the “overlap” in the definitions of the capital felony murder and first-degree felony murder. Ark. Code Ann. § 5-10-102 (Repl. 1993). He argues that the prosecutor could have charged him with either of these two offenses because there are no distinguishing characteristics between them, and further that the overlap violates the right to equal protection by subjecting persons similarly situated to vastly different punishments without any basis for the dissimilar treatment. We have addressed these arguments many times, and appellant gives us no reason to depart from our prior holdings.

First, we note that appellant’s brief misquotes the felony element of the first-degree murder statute, and states that its wording is identical to the felony element of the capital murder statute. This is incorrect. To secure a conviction for capital felony murder, the State must prove that a defendant caused the death of any person under circumstances manifesting extreme indifference to human life, while in the course or furtherance of the commission of certain enumerated felonies. These felonies are rape, kidnapping, vehicular piracy, robbery, burglary, or a felony violation of the Uniform Controlled Substances Act, involving an actual delivery of a controlled substance, or escape in the first degree. Ark. Code Ann. § 5-10-101(a)(l) (Supp. 1995). To secure a conviction for first-degree felony murder, the State must prove that the defendant caused the death of a person under circumstances manifesting extreme indifference to human life, while committing or attempting to commit a felony. Ark. Code Ann. § 5-10-102(a)(l) (Repl. 1993).

In any event, appellant’s argument has no merit. It is impossible to avoid the use of general language in the definition of offenses. As we said in White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989), the prosecutor is often compelled to choose among one or two or more offenses, no matter how precise the language may be. One or the other offense may be established at trial depending on the testimony of witnesses; for example, conflicting testimony of eyewitnesses may, depending on credibility, establish capital murder if the defendant committed robbery, but only first-degree murder if he committed a lesser felony. Id. at 59, 764 S.W.2d at 616; see also Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980). Further, in Cromwell, an opinion by Justice George Rose Smith, we noted:

The actual wording of the statute may have been chosen to lighten the possible punishment that might be imposed for conduct falling within the strict definition of capital murder — a consequence that might be acceptable both to the prosecution and to the defense. If that is not true in a particular case, presumably the defense can ask that the State be required to elect between the two degrees. In any event, we find no constitutional infirmity in the overlapping of the two sections, because there is no impermissible uncertainty in the definition of the offenses.

Id. at 107-08, 598 S.W.2d at 735. We adhere to our prior holdings. In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for rulings decided adversely to appellant, but not argued on appeal, and no reversible errors were found.

Affirmed.


text:
    Steven O’MARA, et al. v. Dan DYKEMA, et al.
    96-1043
    942 S.W.2d 854
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Everett Law Firm, by: David D. Stills and Thomas A. Mars, for appellants.

      Godo, Dossey & Reeves, by: Jerry B. Dossey, for appellees.
   Ray Thornton, Justice.

Appellants Steven and Cynthia O’Mara purchased a home from appellees Dan and Lisa Dykema on December 11, 1992. Appellees had been living in the house, which they built by hiring various materialmen, for approximately two years. They were approached by a realtor who asked them if they would consider an offer from appellants to buy the house. Although the house had not been on the market, they accepted the offer.

Appellants elected to inspect the house themselves prior to purchasing it, rather than hire a professional. The exterior walls of the house are made of a material called “dryvit,” a plastic material similar to stucco. Upon inspection, appellants noticed a hole in an outside wall, which appellees told them was caused by a rock pitched by a lawn tractor. Appellants repaired the hole at their expense.

In 1995, after living in the house approximately three years, appellants became aware that the exterior walls were cracking and crumbling and moisture was entering the house through these cracks. They filed a complaint against appellees, alleging misrepresentation, negligence, strict liability, and breach of warranties. Appellees filed a motion for summary judgment on all four claims, which the trial court granted. Appellants bring this appeal from the order granting summary judgment, and we affirm.

In support of their complaint, appellants alleged that appellee Dan Dykema was a professional real estate contractor and that he built the house; that appellees had encountered problems with the application of the dryvit to the exterior walls, and had allowed the subcontractor to take shortcuts as a temporary solution; and that at the time appellants purchased the house, there was no visible evidence of any defect. Further, they asserted that appellees knew the walls were defective and would eventually crack, bubble, and crumble, and that they failed to disclose this defect to appellants in order to induce them to buy the property.

Appellants claimed that appeEees represented the walls to be in good condition, and that the condition of the waEs was material to their decision to buy the house. They maintained that appeEees impliedly warranted that the house was habitable, had been properly constructed, and was in good condition. Appellants’ complaint also stated that appeEees owed a duty to them to exercise reasonable care in the construction of the home, that they faded to do this, and that this faEure proximately caused them damage.

AppeEees denied that they had made any misrepresentations to appeEants or that they had any knowledge that the dryvit was defective. Pleading affirmatively, appeEees’ answer stated in pertinent part that the statute of limitations had run on the negligence claim, as more than three years had elapsed since the home was constructed. Further, they claimed that appeEants had waived any reliance on warranties in their offer to buy the house.

At the hearing on the motion for summary judgment, the arguments centered around whether appellees could be considered a builder-vendor for purposes of the implied warranty of habitability. Appellees filed a supplemental brief in which they urged the court to find that the fact that they had hired multiple contractors to build a residence according to prepared plans and specifications and for their own occupancy, and that on a previous occasion they had built another house in which they resided for a number of years, did not make them a builder-vendor for the purposes of the implied warranty of habitability.

Standard of review. The standard of review for a grant of summary judgment is familiar. Summary judgment should only be granted when it is clear that there are no disputed issues of material fact. Franklin v. Osca, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992). It is appropriate to sustain a grant of summary judgment if the evidence brought before the trial court by the moving party shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Tullock v. Eck, 311 Ark. 564, 567, 845 S.W.2d 517, 519 (1993); Ark. R. Civ. P. 56(c).

Appellees, as movants for summary judgment, bear the burden of showing that there is no issue of material fact. Gleghorn v. Ford Motor Credit Co., 293 Ark. 289, 737 S.W.2d 451 (1987). All evidence must be viewed in the light most favorable to appellants, as they are the parties resisting the motion; and they are also entitled to have all doubts and inferences resolved in their favor. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). However, they may not rest upon the mere allegation of their pleadings; Ark. R. Civ. P. 56 requires their response, by affidavits or other evidence, to specifically show that there is a genuinely disputed issue of material fact. Guthrie v. Kemp, 303 Ark. 74, 793 S.W.2d 782 (1990). Once a movant makes a prima facie case for summary judgment, the respondent must then meet proof with proof by showing that there remains a genuine issue of material fact. Mt. Olive Water Ass’n v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993).

Even if there are disputed facts, if reasonable minds would not differ as to the conclusion to be reached, then a grant of summary judgment is proper. Chalmers v. Toyota Motor Sales, 326 Ark. 895, 935 S.W.2d 258 (1996). Further, if a respondent to a motion for summary judgment cannot present proof on an essential element of the claim, the movant is entitled to summary judgment as a matter of law. Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988).

We examine each of appellant’s allegations based upon this standard of review and affirm the trial court’s judgment for the reasons set forth below.

Misrepresentation. Appellees were entitled to summary judgment as a matter of law on the claim of misrepresentation because appellants failed to present proof on essential elements of the claim. Id. The elements of a cause of action for misrepresentation are:

(1) a false representation of a material fact;
(2) knowledge or belief on the part of the person making the representation that the representation is false;
(3) an intent to induce the other party to act or refrain from acting in reliance on the misrepresentation;
(4) a justifiable reliance by the other party; and
(5) resulting damages.

Interstate Freeway Serv., Inc. v. Houser, 310 Ark. 302, 306, 835 S.W.2d 872, 873-74 (1992). Appellants failed to produce a genuine issue of material fact that appellees knew the dryvit was defective or that they falsely represented to them that it was not defective. They asserted in affidavits that Lisa Dykema told them she had problems with the dryvit contractor that were never resolved. Mrs. Dykema stated in her affidavit that the dryvit contractor who did the original work on the home did not show up on time and did not finish his work on time. Appellants failed to meet proof with proof because they brought forth no specific facts indicating that appellees experienced problems with the dryvit itself or knew it was defective, much less that they falsely represented these facts. Ark. R. Civ. P. 56; Guthrie v. Kemp, supra. Representations are considered fraudulent when the one making them either knows them to be false or, not knowing, asserts them to be true. Miskimins v. City Nat’l Bank, 248 Ark. 1194, 456 S.W.2d 673 (1970). A grant of summary judgment on a claim of misrepresentation is appropriate when a plaintiff does not produce specific facts that the defendant knew his representations were false. E.g., Rosser v. Columbia Mut. Ins. Co., 55 Ark. App. 77, 928 S.W.2d 813 (1996).

Negligence. Appellants’ complaint alleged that appellees breached a duty of care when they failed to exercise reasonable care in the construction of the home. Their claim is barred by the statute of limitations, as the complaint was filed more than four and one half years after the house was built. It has long been the law in this state that a three-year statute of limitations applies to all tort actions not otherwise limited by law. Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503 (1934); Ark. Code Ann. § § 16-56-104 — 105 (1987 & Supp. 1995). The statute begins to run when the acts occur. Courtney v. First Nat’l Bank, 300 Ark. 498, 780 S.W.2d 536 (1989). However, affirmative actions of concealment of a cause of action will toll the statute of limitations. Wilson v. General Elec. Capital Auto Lease, Inc., 311 Ark. 84, 841 S.W.2d 619 (1992). When there have been affirmative acts of concealment, the statute begins to run again at the time the cause is discovered or should have been discovered by reasonable diligence. Id. We have stated that “no mere ignorance of the plaintiff of his rights nor the mere silence of one who is under an obligation to speak, will prevent the statutory bar.” Id. at 87, 841 S.W.2d at 620-21 (quoting McKneely v. Terry, 61 Ark. 521, 565, 33 S.W. 953, 957 (1896)). There must be some “positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff s cause of action concealed, or perpetrated in a way that conceals itself.” Id. Further, “if the plaintiff, by the exercise of reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it.” Id.

Here, the pertinent inquiry is whether there is any genuine issue of material fact concerning the statute of limitations. Hickson v. Saig, 309 Ark. 231, 828 S.W.2d 840 (1992). Although an allegation of fraudulent concealment typically involves a question of fact not well suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, the trial court may resolve fact issues as a matter of law. Chalmers v. Toyota Motor Sales, supra.

Appellants argue that the statute should be tolled because the defect was latent and the facts stated in their cause of action for misrepresentation are sufficient to prove fraudulent concealment. This argument is without merit.

As we noted in our discussion of the misrepresentation claim, appellants offered the trial court nothing to indicate that appellees experienced problems with the dryvit itself or knew it was defective. They put forth no evidence of any affirmative acts of concealment by appellees of any defective condition. Therefore, we hold that there was no genuine issue of material fact as to fraudulent concealment and find that the trial court properly granted summary judgment on this claim. Id.

Strict liability. Appellants argue that the trial court should have found appellees strictly liable for the defect, because they supervised the budding of the house. To sustain a cause of action for strict products liability, it is necessary to prove that the product, in this case the house, was in a defective condition unreasonably dangerous. Ark. Code Ann. § 16-116-102 (1987); see also Berkeley Pump Co. v. Reed-Joseph Land Co., 219 Ark. 384, 653 S.W.2d 128 (1983) (stating that the fact that product does not meet expectations of user does not meet definition; must be “unreasonably dangerous” as well as defective). Reviewing appellants’ pleadings and affidavits, we do not find any assertion that the degradation of exterior wall surfaces made the house unreasonably dangerous. Because we find that they did not plead or provide proof of this essential element of the claim, we affirm the trial court’s decision.

Implied warranty of habitability. Appellant’s final argument is that the trial court erred in holding that there was no genuine issue of material fact that appellees impliedly warranted that the house was habitable, had been properly constructed, and was in good condition. In Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970), we adopted the view that by operation of law, a builder-vendor gives implied warranties of habitability, sound workmanship, and proper construction. The implied warranty does not rest upon an agreement, but arises by operation of law and is intended to hold the builder-vendor to a standard of fairness. Wingfield p. Page, 278 Ark. 276, 644 S.W.2d 940 (1983). However, implied warranties may be excluded when the circumstances surrounding the transaction are in themselves sufficient to call the buyer’s attention to the fact that no implied warranties are made or that a certain implied warranty is excluded. See Carter v. Quick, 263 Ark. 202, 563 S.W.2d 461 (1978); 77A C.J.S. Sales § 266 (1994).

The language of the Uniform Commercial Code provides appropriate reasoning by analogy. Under the provisions of Ark. Code Ann. § 4-2-316, all implied warranties are excluded by expressions such as “as is,” “with all faults,” or “other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.” Id. § 4-2-316(a). Regarding real estate contracts, we have held that the implied warranty of habitability is waived when the buyer purchases the property “as is.” Bankston v. McKenzie, 287 Ark. 350, 698 S.W.2d 799 (1985).

We think it is clear from the language of the contract of sale, which appellants drafted, that there was no intent on their part to rely upon any implied warranties. Paragraph Fifteen of the contract states:

Buyer’s Disclaimer of Reliance:
Buyer certifies that buyer has personally inspected the property as fully as buyer desires and is not relying and shall not hereafter rely upon any warranties, representations or statements of seller or agent as to age, size, quality, value or condition of improvements or appliances, other than those specified herein, if any, whether or not defects may be reasonably discoverable by buyer.

Paragraph Sixteen, under the heading “INSPECTION AND REPAIRS,” states that appellants agreed to accept the property “as is,” providing only that certain specified electrical, plumbing, heating and air-conditioning appliances and other mechanical devices be in normal working order. The contract acknowledges appellants’ right to have the property inspected by a professional inspector and to provide written notice of any defects. Further, it notes that they agreed to accept any responsibility for repairing any defects in the structure not noted in writing within ten business days following appellees’ acceptance of the offer. Paragraph Twenty states that the agreement contains the entire agreement between the parties, and supersedes all prior or contemporaneous agreements.

Having drafted the document themselves, appellants can make no serious argument that it was not called to their attention that they were not relying upon implied warranties. The offer that they presented stated that they were purchasing the property “as is”; therefore, the trial court was correct in finding that there was no genuine issue of material fact that they had a cause of action for a breach of the implied warranty of habitability. Bankston v. McKenzie, supra.

The decision of the trial court granting summary judgment on all four claims is affirmed.


text:
    Paul B. SONNY v. BALCH MOTOR COMPANY
    96-384
    944 S.W.2d 87
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Wallace, Hamner & Adams, by: James R. Wallace and Dale E. Adams, for appellant.

      Anderson & Kilpatrick, by: Mariam T. Hopkins, for appellee.
   Ray Thornton, Justice.

Balch Motor Company sued Paul B. Sonny for an unpaid bill for repairs to Mr. Sonny’s car. Mr. Sonny counterclaimed for damages from Balch in connection with Balch’s efforts to prosecute him for theft of services. The jury found in favor of Balch for car repairs in the amount of $871.13, and against Mr. Sonny on his counterclaims of malicious prosecution and abuse of process. On appeal to the Arkansas Court of Appeals, Mr. Sonny argued that the trial court erred in allowing the introduction of evidence about a prior incident between the parties, and contended that Balch’s use of peremptory strikes to exclude two black people from the jury was unconstitutional. The Court of Appeals decided that the trial court did not abuse its discretion in allowing the introduction of evidence regarding the earlier incident and affirmed by a tie vote the trial court’s decision that Balch’s use of peremptory strikes did not violate Mr. Sonny’s constitutional rights. Sonny v. Balch Motor Co., 52 Ark. App. 233, 917 S.W.2d 173 (1996).

We granted Mr. Sonny’s petition for review of the decision of the Court of Appeals because of the tie vote on the question of a violation of Mr. Sonny’s constitutional rights. We conduct our review pursuant to Ark. Sup. Ct. R. l-2(f) as though the case had originally been appealed to this court, and we conclude that the trial court’s decision should be affirmed.

Whether Introduction of Evidence of Prior Lawsuit was Error

While Mr. Sonny did not specifically seek a review of the Court of Appeals’ decision relating to the introduction of evidence regarding the earlier lawsuit, we first address that issue because it was included in his original appeal. Mr. Sonny claimed that the evidence of the earlier lawsuit between the parties should have been excluded pursuant to Ark. R. Evid. 403 and 404. We will not reverse a lower court’s determination regarding this evidentiary balancing of probative value against prejudice absent a manifest abuse of discretion. Wallace v. State, 326 Ark. 376, 379, 931 S.W.2d 113, 115 (1996); Jarrett v. State, 310 Ark. 358, 363, 833 S.W.2d 779, 781 (1992). After reviewing the record, we find that none of the evidence relating to the circumstances surrounding the prior lawsuit was used to prove that Mr. Sonny acted in conformity with the earlier incident in the circumstances at issue in this trial. Ark. R. Evid. 404. Rather, the trial court found the evidence to be relevant and admissible due to Mr. Sonny’s counterclaim alleging malicious prosecution.

We hold that the trial court’s decision to admit the evidence of the earlier incident does not reflect a manifest abuse of discretion and affirm on this point.

Whether Balch Unconstitutionally Used its Peremptory

Strikes to Exclude Blacks from the Petit fury

For his second point of appeal, Mr. Sonny claimed that Balch used its peremptory challenges at trial to exclude blacks from the petit jury in violation of the Equal Protection Clause of the Fourteenth Amendment as construed in Batson v. Kentucky, 476 U.S. 79 (1986).

In Batson, the United States Supreme Court held that the Equal Protection Clause of the United States Constitution forbids a prosecutor in a criminal case to use his peremptory strikes to exclude jurors solely on the basis of race. Id. at 84. In Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), the Supreme Court extended its decision in Batson to private litigants who use peremptory challenges to exclude prospective jurors, and described its concern with racial bias in our legal system as follows:

Race discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there. Racial bias mars the integrity of the judicial system, and prevents the idea of democratic government from becoming a reality.

Id. at 628 (citations omitted). This extension of the principle that racial bias has no place in the courtroom is salutary, as any exclusion from jury service on the basis of race violates the equal protection rights of the challenged jurors. Discrimination in jury selection in a civil action on the basis of race harms the person excluded from service no less than exclusion from a criminal jury. Id. at 618.

The goal of fairness in jury trials is also enhanced by the venerable practice of peremptory challenges, which dates back beyond the founding of the Republic to origins in the common law. Holland v. Illinois, 493 U.S. 474, 481 (1990) (citing 4 W. Blackstone, Commentaries 346-48 (1769)); see also Swain v. Alabama, 380 U.S. 202, 215-18 (1965). The historical practice of allowing the litigant to strike jurors for any reason came into being for the purpose of fostering both the perception and the reality of an impartial jury. Lewis v. United States, 146 U.S. 370, 376 (1892); Hayes v. Missouri, 120 U.S. 68, 70-71 (1887). The rationale supporting this practice remains valid except where the constitutional principles articulated by Batson and its progeny are violated. Edmonson v. Leesville Concrete Co., 500 U.S. at 619-22.

Eliminating racial discrimination in the selection of jurors and simultaneously protecting the practice of peremptory challenges addresses itself to the sound discretion of the trial court. The basis for this deference is articulated in Hernandez v. New York, 500 U.S. 352 (1991), where the Court stated:

In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. . . . [T]he state of mind of a juror . . . based on demeanor and credibility lies “peculiarly within a trial judge’s province.”

Id. at 365 (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)). It is essential that trial courts charged with this responsibility be provided with clear statements of applicable principles of law. Recently, the Court has restated the principle that “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett v. Elem, 115 S.Ct 1769, 1771 (1995) (per curiam).

While the Supreme Court decisions from Batson to Purkett have provided an analysis of the constitutional principles to be followed, we have recognized a need for an orderly process for resolving the issues. We pointed out in Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992), that Batson was silent on the specific procedures that the states should use in implementing the Court’s decisions. We stated that “[t]he upshot of this lack of direction has been that the states have been forced to chart their own courses in formulating procedures for the time, place, and manner of the Batson process.” Id. at 449, 825 S.W.2d at 571. We then proceeded in Watson to establish that it is reversible error to force the defense counsel to make his Batson objection in front of the jury, thereby assuring that the entire proceeding be treated with great sensitivity. Id. at 451, 825 S.W.2d at 573.

We adhere to the basic structure prescribed by the Supreme Court, and we have further developed specific procedures for our courts to follow when considering a Batson challenge. The first requirement of a Batson objection is to make a prima facie case of prohibited discrimination in a peremptory challenge. Bradley v. State, 320 Ark. 100, 107, 896 S.W.2d 425, 429 (1995). If no prima facie case is presented, no neutral explanation is required. Tucker v. State, 313 Ark. 624, 629, 855 S.W.2d 948, 950 (1993) (affirming on other grounds the trial court’s finding no Batson violation). When there is no challenge to whether a prima facie case has been made, but a race-neutral explanation is offered, the issue of a prima facie case becomes moot. Cleveland v. State, 326 Ark. 46, 49, 930 S.W.2d 316, 318 (1996) (quoting Prowell v. State, 324 Ark. 335, 345, 921 S.W.2d 585, 591 (1996)). As we further pointed out in Bradley, “[i]f the trial court finds that the defendant has made a prima facie showing, the burden shifts to the State to provide a racially neutral explanation.” Bradley v. State, 320 Ark. at 108, 896 S.W.2d at 429 (citing Batson v. Kentucky, 476 U.S. at 97).

Failure to require an explanation to rebut a prima facie case of discrimination before allowing the exercise of a peremptory challenge is error requiring reversal. Ward v. State, 293 Ark. 88, 93-94, 722 S.W.2d 728, 730-31 (1987). When a racially neutral explanation is offered to rebut the prima facie case, the trial court shall then determine from all relevant circumstances the sufficiency of the explanation. Colbert v. State, 304 Ark. 250, 255, 801 S.W.2d 643, 646 (1990); see also Tucker v. State, 313 Ark. at 629, 855 S.W.2d at 950.

We have affirmed a trial court’s decision that a racially neutral explanation was a sufficient basis for the peremptory strike without further inquiry, stating:

Hence, we cannot say, under these circumstances, that the circuit court’s acceptance of the prosecutor’s justification was clearly contrary to the preponderance of.the evidence. Accordingly, a further inquiry on the matter was not warranted. On this point, we note that the appellant did not specifically ask the court to conduct a further inquiry. Moreover, we are not certain that what transpired in the bench proceeding was not a sensitive inquiry. Both counsel were questioned by the court, statements were made, and the court made its finding.

Hollamon v. State, 312 Ark. 48, 54, 846 S.W.2d 663, 666 (1993) (emphasis added). This is in accord with our holding in Colbert v. State, 304 Ark. at 254-55, 801 S.W.2d at 646, where we stated that when the neutral explanation given by the State is sufficient, no sensitive inquiry is required.

These procedures have been well established in our case law and are consistent with the principles set forth in Batson through Purkett. When the party having the burden of moving forward declines to proceed further, the trial court decides whether a prima facie case has been made. If a prima facie case has been made, the court must require an explanation and then determine, considering the evidence and explanations presented along with its observations of the proceedings and such further inquiry as it deems necessary, whether the neutral explanations given are genuine or pretextual.

We have affirmed the use of peremptory strikes where two potential jurors were seen “mouthing words” to the defendant, Cleveland v. State, 326 Ark. at 50, 930 S.W.2d at 319, and where a venire member was “dozing” during voir dire, Owens v. State, 300 Ark. 73, 79, 777 S.W.2d 205, 208 (1989). Other courts have accepted the reasons given by Balch for the use of its strikes as racially neutral reasons. See United States v. Ross, 872 F.2d 249 (8th Cir. 1989) (accepting age and unemployment status as racially neutral reasons); United States v. Garrison, 849 F.2d 103 (4th Cir. 1988) (accepting age and demeanor during voir dire as racially neutral reasons); People v. Mack, 128 Ill.2d 231, 538 N.E.2d 1107 (1989) (accepting employment background as a racially neutral reason).

We note that the Eighth Circuit Court of Appeals considered an issue similar to the one before us in McKeel v. City of Pine Bluff, 73 F.3d 207 (8th Cir. 1996), where defendants had used two of their peremptory challenges to strike the two black jurors from the venire panel. The explanation offered was that one black juror was struck because she worked with mental-health patients, while the other black juror was struck because “her facial expressions and body language indicated a hostility to defendants.” Id. at 210. The court then pointed out that these explanations were accepted by the district court, and stated:

The record shows that McKeel’s counsel at no time offered or attempted to offer any argument or make any record that the proffered reasons were pretextual. ... In fact, we have previously upheld findings by trial courts that opponents of peremptory strikes who made no objection or record with respect to pretext failed to carry their burden of persuasion to prove purposeful discrimination in the peremptory process.

Id.; see also Williams v. Groose, 77 F.3d 259 (8th Cir. 1996).

Our standard of review affords great deference to the trial court’s exercise of discretion in determining discriminatory intent relating to the use of a peremptory strike, and we only reverse that decision if it is clearly against a preponderance of the evidence. Prowell v. State, 324 Ark. at 344, 921 S.W.2d at 591.

Applying these principles to the particular circumstances of this case, we note that Balch’s use of two of its three peremptory strikes to remove the only two black jurors on the petit jury panel meets the requirements of a prima facie case, and that the trial judge so determined in requiring Balch’s counsel to explain the strikes. At oral arguments, she responded to questions from the court that Balch was seeking a jury panel that was mature and business-oriented, and she had prepared a jury profile in which the one potential juror who was under the age of twenty-one years old would likely be peremptorily challenged as not meeting that profile. The attorneys also had information available from juror questionnaires, which included such information as age and occupation of the prospective jurors, but made no reference to race.

The Batson objection and the explanation offered by Balch for its peremptory challenges at the trial was as follows:

Defense Counsel: Your honor, first of all there were only two blacks in this entire panel to start with out of some thirty people who were called. They were both seated. Now the Plaintiff/Counter Defendant has struck both blacks and I make a Batson challenge.
Plaintiffs Counsel: Your honor, we did not strike the black jurors because they were black, I can’t even remember their names.
Trial Court: You are going to have to say why you struck them because you struck them at all.

Plaintiffs Counsel: The young lady who was sitting on the very front row was a young lady. We struck her because she was young. When we asked her various questions about what she thought, she tended to look down and not be responsive. It was just a feeling. The other gentlemen [sic] was Mr. Stewart. My impression of him was the same as the others we struck. He did not make eye contact with me during the process of voir dire. We were also looking for very conservative jurors. We found that he was a backhoe operator. We thought that with his background he might feel sorry for Mr. Sonny. We wanted to pick people who were in business or business oriented and very conservative.

Defense Counsel: I do not believe the reasons she articulated are sufficient.
Trial Court: I understand what you are saying but I think she has articulated sufficient reasons. Objection overruled.

(Emphasis added.)

Age and occupation are racially neutral criteria, and in the light of the circumstances of the trial, where Balch was seeking mature and business-oriented jurors, the explanation was rationally related to the trial. Also, in considering the explanations based upon juror demeanor, such as unresponsiveness, the trial court was in a good position to determine whether this reason was genuine or pretextual. Hernandez v. New York, 500 U.S. at 365. We note that after the explanations were given, Mr. Sonny did not seek to provide additional evidence, but simply asserted that the explanation was insufficient.

The trial court accepted Batch’s explanation as sufficient and allowed the peremptory challenges. We give great deference to the trial court in making this determination. In light of the facts before us, we conclude that the decision by the trial court was not clearly against a preponderance of the evidence.

Affirmed.

Glaze, J., not participating.

       We find the following reasoning articulated by the Court of Appeals to be very helpful and appropriate: “In the instant case, evidence of the prior lawsuit was not introduced to show that Mr. Sonny had stolen from Balch in the past. Rather, it was introduced to show [Balch’s] state of mind at the time [it] decided to pursue criminal charges against Mr. Sonny, and the trial court gave a limiting instruction to this effect. Moreover, evidence of the prior lawsuit was highly probative as to whether [Balch] acted with malicious intent. [Balch’s representative] testified that he did not attempt to bring charges against Mr. Sonny until he discovered that Balch had an unsatisfied judgment against Mr. Sonny for previous repairs, and this evidence is probative of his motive for bringing the charges.” Sonny v. Balch Motor Co., 52 Ark. App. at 238, 917 S.W.2d at 176.

       In Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996), we outlined the requirements for establishing a prima facie case as follows:
      (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions or statements by a prosecuting attorney during voir dire.

        Id. at 124, 913 S.W.2d at 267.


author: Per Curiam.

text:
    Corey BASS v. STATE of Arkansas
    CR 96-1389
    943 S.W.2d 580
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Herbert T. Wright, Jr., P.A., for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Corey Bass, was convicted of attempted first-degree murder and was sentenced as a habitual offender to fifty years in prison. Pursuant to Anders v. California, 386 U.S. 738 (1967), his counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Bass was notified of his right to file a pro se brief within thirty days. He did not file a brief. The State agrees that there is no merit to Bass’s appeal. We find that Bass’s counsel did not fully brief the rulings that were adverse to his client. Accordingly, we order rebriefing.

Bass’s conviction arose from an incident that occurred on November 13, 1995. Bass and the victim, James Harris, were involved in a confrontation approximately one month earlier that resulted in Mr. Harris receiving several stab wounds. The evidence concerning the circumstances of that confrontation was conflicting. Mr. Harris testified that he was giving Bass, his girlfriend, and his child a ride when Bass suddenly attacked him with a boxcutter. Bass testified that Harris was trying to rob him, and that he stabbed Harris in defense of himself and his family.

On November 13, 1995. Bass found Mr. Harris at the home of one of Bass’s friends. Bass threatened to shoot Mr. Harris, and Mr. Harris, using a bystander as a shield, ran outside. Bass pursued Mr. Harris, and after Mr. Harris released the bystander, Bass opened fire. Mr. Harris was shot nine times in his legs and midsection.

The abstract and brief filed by Bass’s attorney indicates that the Trial Court made five rulings that were adverse to Bass. These rulings included the denial of Bass’s motion in limine to suppress the State’s use of A.R.E. Rule 404(b) evidence; the denial of Bass’s motion for a directed verdict; and the overruling of three objections Bass made to the relevancy of certain testimony. In the argument portion of the brief, Bass’s counsel discusses these adverse rulings in the following manner:

1. Whether the Judge Erred in denying Appellant’s Motion in Limine to Suppress 404(B) evidence.
The evidence used under 404(b) was a prior attack upon the same victim, with a box cutter. The victim required 170 stitches.
2. Whether the evidence was sufficient to sustain the charge of criminal attempt to commit murder in the first degree.
Whether the Judge erred in denying Appellant’s motion for a directed verdict.
3. Whether or not the defendant’s testimony regarding a willingness to accept a certain amount of time was relevant.
Testimony regarding plea negotiations is not relevant nor admissible.
4. Whether or not the question of the Appellant regarding the actual amount of stitches used on the victim was relevant.
This issue was not relevant to this trial.
5. Whether the Appellant’s statement regarding how many times the victim was shot in the legs was relevant.
This issue was not relevant to this trial.

Anders v. California, supra, and Ark. Sup. Ct. Rule 4-3(j) set forth the required contents of a no-merit brief that accompanies an attorney’s request to withdraw. In pertinent part, Rule 4-3 (j) provides:

A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract. The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal.

As can be seen from the reproduction of the argument portion of the no-merit brief, counsel has not adequately explained why each of the adverse rulings is not a meritorious ground for reversal. The most obvious omission is the citation to any authority that would support counsel’s belief that an argument on appeal from each ruling would not have merit. A close examination of the arguments also reveals other, more serious errors.

Regarding the denial of Bass’s motion for a directed verdict, counsel seems to merely restate the point of argument. We are left completely without explanation as to why an argument concerning the sufficiency of the evidence would not be successful on appeal. Furthermore, the last two points, which deal with Bass’s objections to the relevancy of testimony sought by the State when he testified on his own behalf, are also inadequate. It seems that when counsel argues “This issue was not relevant to this trial,” he is merely restating the objection he made during the trial. Again, we are left without the explanation required by Anders v. California, and Rule 4-3(j).

In a case where such a clearly inadequate no-merit brief has been filed, our only option is to direct counsel to rebrief the case according to the standards set forth in Anders v. California and Rule 4-3(j). As we do so, we are reminded of the Supreme Court’s rationale for requiring the filing of a no-merit brief rather than a simple statement that the appeal has no merit:

This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its • own review because of the ready references not only to the record, but also to the legal authorities as furnished by counsel.

Anders, 386 U.S. at 745.

The brief filed in this case, because it lacks citation to authority and a full discussion of each adverse ruling, amounts to nothing more than a statement that the appeal has no merit.

We direct Bass’s attorney to file a new brief on or before May 27, 1997. In doing so, we note that it is possible that the Trial Court made one other adverse ruling during a pretrial discussion concerning Bass’s eleventh-hour attempt to hire private counsel. While the trial judge clearly stated that he would not postpone the trial to allow for a substitution of attorneys, defense counsel’s purpose for broaching the subject with the court is unclear. Stated another way, we cannot discern from the record whether counsel was merely informing the court of events that transpired immediately before trial, or whether he was making a motion on his client’s behalf. Accordingly, we also direct counsel to discuss whether an adverse ruling was made, and if so, why an argument on appeal concerning that ruling would have no merit.

In accordance with Rule 4-3 (j) (2), Bass will have thirty days from May 27, 1997 to raise any additional arguments in a pro se brief.

Rebriefing ordered.