text:
    Eric Reed DOLLAR v. STATE of Arkansas
    CR 85-148
    697 S.W.2d 868
    Supreme Court of Arkansas
    Opinion delivered September 30, 1985

      John A. Crain, for appellant.

      Steve Clark, Att’y Gen., by; Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant, Eric Reed Dollar, was charged with possession of marijuana, a controlled substance, with the intent to manufacture and deliver. He was found guilty and sentenced to a term of twelve years in the Department of Correction. Ark. Stat. Ann. § 82-2617 (a)(l)(iv), (Act 306 and Act 417 of 1983) under which appellant was charged, failed to state the offense was a felony and on that basis appellant claims error in the trial court’s refusal to grant his motion to reduce the charge to a misdemeanor.

Appellant relies on Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972). In Bennett, the appellant was convicted under § 82-2617, as it was originally enacted by Act 590 of 1971, and sentenced to one year imprisonment in the state penitentiary. That penalty provision provided:

(1) Any person who violates this subsection with respect to
(a) a controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of a crime and upon conviction may be imprisoned for not more than fifteen years or fined not more than $25,000.

Felonies and misdemeanors were statutorily defined at the time as:

§ 41-102. Public offenses are felonies and misdemeanors.

§ 41-103. A felony is an offense of which the punishment is death or confinement in the penitentiary.

§ 41-104. All other public offenses are misdemeanors.

In Bennett we held the failure of Act 590 to include the words “imprisoned in the penitentiary,” required reversal. We reasoned that penal provisions are strictly construed and nothing would be taken as intended which is not clearly expressed. All doubts were to be resolved in favor of the defendant.

Appellant argues the principles stated in Bennett apply with equal force to this case and the definitions of felony and misdemeanor that now appear in the 1976 Arkansas Criminal Code require the same result in construing the 1983 statute.

§ 82-2617(a)(l)(iv) (Acts 306, 417, 1983) provided:

Criminal Penalties.
(a) Except as authorized by this Act it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.
(1) Any person who violates this subsection with respect to:
(i) A controlled substance classified in schedule I or II, which is a narcotic drug, is guilty of a class Y felony;
(ii) Any other controlled substance classified in schedule I, II, or III is guilty of a class B felony;
(iii) A substance classified in schedules IV or V is guilty of a class C felony;
(iv) A controlled substance classified in Schedule VI shall be (a) imprisoned for no less than four (4) nor more than ten (10) years and/or fined no more than twenty-five thousand dollars ($25,000) if the quantity of the substance is less than ten (10) pounds, or (b) imprisoned for no less than five (5) years nor more than twenty (20) years and/or fined no less than fifteen thousand dollars ($15,000) nor more than fifty thousand dollars ($50,000) if the quantity of such substance is ten (10) pounds or more but less than one hundred (100) pounds, or (c) imprisoned for no less than six (6) years nor more than thirty (30) years and/or fined no less than fifteen thousand dollars ($15,000) nor more than one hundred thousand dollars ($100,000) if the quantity of the substance is one hundred (100) pounds or more.

The two sections cited by appellant from the criminal code provide:

§ 41-112 Felonies.
(1) An offense is a felony if:
(a) it is so designated by this Code.
(b) it is so designated by a statute not a part of this Code.
(2) Felonies are classified as follows:
(3) Any felony defined by a statute not a part of this Code that neither specifies the class of the felony nor prescribes limitations on a sentence to imprisonment upon conviction thereof is a class D felony. Any felony defined by a statute not a part of this Code that does prescribe limitations on a sentence to imprisonment upon conviction thereof is an unclassified felony.
§ 41-113 Misdemeanors.
(1) An offense is a misdemeanor if:
(a) it is so designated by the Code.
(b) it is so designated by a statute not a part of this Code.
(c) it is not designated a felony and a sentence to imprisonment is authorized upon conviction thereof.

Appellant argues that under §41-112(l)&(2),an offense is only a felony if named a felony by either the criminal code or by other statutes and as the off ense in § 82-2617 (a) (1) (iv) was not so designated that offense is not a felony. We disagree with appellant’s conclusion.

Bennett was correct in its statement of strict construction of penal statutes. However, even strict construction of penal statutes does not override the primary consideration of all statutory construction — the intent of the legislature.

The rule is stated in Sutherland, Statutory Construction:

“The rule that penal or criminal statutes are given a strict construction is not the only factor which influences the interpretations of such laws; instead, the rule is merely one among various aids which may be useful in determining the meaning of penal law. This has been recognized time and again by the decisions, which frequently enunciate the principle that the intent of the legislature or the meaning of the statute must govern and that a strict construction should not be permitted to defeat the policy and purposes of the statute. § 59.06, p. 18.

The Supreme Court expressed a similar view in Bell v. United States, 359 U.S. 80 (1955);

It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense which other enactments, not cast in technical language, are to be read ... It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses. . . .

We have followed the same approach in our cases. In Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980) we said:

“The basic rule of statutory construction, to which all other interpretative guides are really subordinate, is to give effect to the legislative intention. Penal statutes are not to be so strictly construed as to exclude cases which the words, in their common and ordinary acceptation would apply to. And a literal application of a statute which would lead to absurd consequences should be discarded in favor of a more reasonable interpretation.” See also Fairchild v. State, 286 Ark. 194, 690 S.W.2d 355 (1985); St. Louis, I.M. & S. Ry. v. Freeman, 95 Ark. 218, 128 S.W. 1024 (1910).

In the case before us there are no doubts to be resolved in favor of the defendant. A simple examination of the statute before it was amended, Act 557 of 1977, and as amended in Acts 417 and 306, makes the intention and expression of the legislature clear. The amended statute was enacted to upgrade the penalties for offenses which were already felonies, and it is obvious the legislature intended no change in the felony status of these offenses.

Narcotic controlled substances in Schedule I were formerly class A felonies but in the amended statute were upgraded to class Y felonies. Non-narcotic substances in Schedules I, II and III were B felonies and were not changed. Substances in Schedules IV, V and VI were formerly class C felonies. As amended, IV and V substances remained C felonies, but Schedule VI substances which had also been C felonies were significantly upgraded. The new penalties for Schedule VI substances consisted of three ranges of sentences depending on the quantity of the substance possessed — 4-10 years, 5-20 years and 6-30 years. Not only were all three ranges harsher than the previous class C felony (3-10 years) the latter two ranges are classified by the criminal code penalty section as Class B and A felonies, respectively. Certainly within this amended sentencing scheme it would be wholly contrived to argue the legislature intended this offense to be lowered to the status of a misdemeanor while at the same time increasing its punishment to that of the higher range of felonies.

This view of the legislative intent is reinforced by the emergency clause of Acts 417 and 306, which reads:

It is hereby found and determined by the General Assembly that the problem of drug abuse in this State is increasing at an alarming rate and that additional provisions are needed to assist in the enforcement of the provisions of Act 590, as amended . . . furthermore, it is hereby found and determined by the General Assembly that the problem of manufacturing, delivering, or possessing with intent to manufacture or deliver, those controlled substances classified in schedule VI is increasing at an alarming rate, both in terms of occurrence and quantity, and that additional provisions are needed to assist in the enforcement of the provisions of Act 590, as amended, particularly with respect to those substances classified in Schedule VI.

The urgency to assist in the enforcement of the Controlled Substances Act and particularly Schedule VI substances which were singled out, is reflected in the change in the provisions of § 82-2617.

Under the upgrading scheme in the amended statute and the concerns expressed in the emergency clause the legislative expression is manifest. We would abandon common sense if we allowed a purely mechanical omission to dictate a conclusion that is contrary to the stated legislative intent and which defeats the express policy and purpose of the statute.

This case provides a more substantial basis for winnowing legislative intent than Bennett. Here, a comparison of the statute before and after amendment, a clear statement of legislative intent, and the nature of the penalty scheme itself provide a basis from which to draw a firm conclusion. In Bennett we were dealing with only the original enactment. Moreover, given the traditional terms for misdemeanors (see Commentary to Ark. Stat. Ann. § 41-901) the sentencing range from no confinement to fifteen years had some inherent ambiguity. Drawing an inference only on the basis of that penalty provision and the original enactment would have involved an element of speculation.

Appellant’s remaining point — the court should have given an instruction on simple possession because the marijuana could have been for appellant’s “own personal use” — is without merit. For one thing, the requested instruction is not abstracted. See Rule 11(f) Rules of the Supreme Court and Court of Appeals, Moser v. State, 262 Ark. 329, 557 S.W.2d 385 (1977); Chapman v. State, 201 Ark. 91, 143 S.W.2d 575 (1946); Williams v. Fletcher, 267 Ark. 961, 593 S.W.2d 48 (Ark. App. 1979).

For another, we cannot say the proof obligated the trial court to give the instruction. We find no mention in the record that appellant’s participation was limited to acquiring marijuana simply for “personal use.” That expression does not even appear in the record, so far as we can determine.

The state’s proof established that appellant and Joe Cross were arrested at about 9:00 p.m. after running a police roadblock set up for an unrelated crime. While the police pursued them, Joe Cross crawled into the bed of the truck and threw out five large garbage sacks. These were recovered and found to contain over twenty pounds of marijuana. Eventually appellant was stopped and the arrests were made. Joe Cross testified for the state, having already received a ten year sentence for his part. He said the patch was his and that appellant was helping him with it. They had been there two or three times to check on the plants and on the day of their arrests they had worked several hours pruning the plants. They planned to divide the twenty odd pounds of clippings obtained.

The argument is based on an affirmative answer by Cross when asked by defense counsel whether appellant was getting the marijuana for himself. But the previous questions show the witness was simply explaining that appellant was not being paid for his efforts in the venture, rather they were dividing the marijuana equally:

Q. All right, sir, now did you pay him (appellant) any money to help you?
A. No sir, when we picked the buds we split it and halfed
them.
Q. All right, sir. So you weren’t really giving him any money at all.
A. No.
Q. He was getting marijuana for himself, is that it?
A. Yes, sir.

The trial court did not view that testimony as a basis for concluding that the appellant’s only interest in the marijuana was for “personal use” and we cannot say that interpretation was wrong. Appellant did not testify, and offered no proof on the issue now argued.

We note that it was appellant’s truck being used to harvest the crop, that both men had clipping tools, that they planned to equally divide the marijuana, and appellant was driving when the two tried to run the roadblock. That proof being undisputed we do not think a single response from a third party in the context of the questions being asked affords a rational basis for concluding that the appellant only wanted the marijuana for personal use. Utley v. State, 266 Ark. App. 794, 586 S.W.2d 242 (1979); Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977); Frederick v. State, 258 Ark. 553, 528 S.W.2d 362 (1975); Gilchrist v. State, 241 Ark. 561, 409 S.W.2d 329 (1966);

The judgment is affirmed.

Purtle, J., not participating.

       Record, p. 103.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    3-W LUMBER COMPANY v. HOUSING AUTHORITY FOR THE CITY OF BATESVILLE, et al.
    85-89
    696 S.W.2d 725
    Supreme Court of Arkansas
    Opinion delivered September 30, 1985

      Hardin & Grace, for appellant.

      Robert D. Stroud, for appellee.
   Steele Hays, Justice.

3-W Lumber Company, Inc., brought suit against the Housing Authority of the City of Batesville seeking a judgment of $23,047.72 for improvements constructed on property belonging to the Housing Authority. The United States of America, a'cting through the Farmers Home Administration, was made a party defendant because it held a first mortgage on the property. The complaint prayed for judgment, interest, and for a materialmen’s lien upon the property of the Housing Authority.

The Housing Authority filed a counterclaim for $22,032.00 for failure to perform the contract in time and for $15,000 for negligent repair. The United States filed a Motion to Dismiss under ARCP Rule 12(b) (6), urging that the Arkansas mechanics lien statute does not apply to improvements of a public nature.

The Circuit Court entered an order dismissing the complaint against the United States and dismissing that portion of the complaint seeking a lien, leaving the remaining claims intact. 3-W Lumber Company has appealed from the order.

We dismiss the appeal because the order appealed from is not a final order, a jurisdictional requirement which we are obliged to raise even when the parties do not. Arkansas Savings and Loan Association v. Corning Savings and Loan Association, 252 Ark. 264, 478 S.W.2d 431 (1972), McConnell v. Sadle, 248 Ark. 1182, 455 S.W.2d 880 (1970).

ARCP Rule 54(b) provides that when more than one claim is presented, or where multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims and parties only upon an express determination that there is no just reason for delay and upon the express direction for the entry of the judgment.

Here, the order appealed from disposed neither of all the parties, nor all the claims. The claim of 3-W for a judgment and the counterclaim of the Housing Authority were not dismissed and, therefore, Rule 54(b) specifically applies. Inasmuch as the order did not comply with the rule, no final judgment has been entered and no appeal may be taken at this stage of the proceedings. Sherman v. G&H Transportation, Inc., 287 Ark. 25, 695 S.W.2d 832 (1985); Tulio v. Arkansas Blue Cross and Blue Shield, Inc., 283 Ark. 278, 675 S.W.2d 369 (1984). In Tulio, we discussed the reason for Rule 54(b):

■ The Rule, which applies only when there are multiple claims or multiple parties, requires two things: First, the trial court must direct the entry of a final judgment as to one or more but fewer than all of the claims or parties. Whether the judgment is in fact final is apparently to be determined under Ark.R.App. P.2. Second, the trial court must make an express determination that there is no just reason for delay, which has been construed to mean that there must be some danger of hardship or injustice which would be alleviated by an immediate appeal. Campbell v. Westmoreland Farm, 403 F.2d 939 (2nd Cir. 1968). Should there be an uncertainty about the trial court’s intent, clarification may be sought during the 30 days allowed for the notice of appeal. Fundamentally, however, the policy of the rules is still to avoid piecemeal appeals, so that the discretionary power vested in the trial court is to be exercised infrequently, in harsh cases. Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d § 2653. Here the discretionary power was not exercised, for the judgment that we are asked to review does not satisfy either of the two requirements essential to its appealability.

Appeal dismissed.

Purtle, J., not participating.


author: David Newbern, Justice. Steele Hays, Justice,

text:
    Frederick Thomas JONES v. Brenda Faye JONES
    85-90
    696 S.W.2d 727
    Supreme Court of Arkansas
    Opinion delivered September 30, 1985

      Darrell F. Brown & Associates, P.A. by: Reginald A. Rogers, for appellant.

      Dodds, Kidd, Ryan & Moore, by: RichardN. Moore, Jr., for appellee.
   David Newbern, Justice.

This is an appeal of a criminal contempt citation. We reverse the chancellor’s decision because we agree with the appellant’s first point which is that the court erred in finding that the appellant wilfully disobeyed the court’s order. We, therefore, need not address the appellant’s second point which is that the sentence was excessive.

The appellant was first ordered to appear on December 3, 1984, and show cause why he should not be held in contempt for failure to abide by a court order entered in the divorce proceedings between the appellant and the appellee. No order finding the appellant in contempt resulted from that hearing.

The appellee again asked that the appellant be cited, and he was ordered to appear on January 7, 1985. At a hearing conducted on that date, the chancellor found the appellant in contempt for failure to make child support and house payments which had been ordered by the court. The chancellor sentenced the appellant to serve ten successive weekends in jail, the first to begin on January 11, 1985.

That contempt order was not signed, however, because at the conclusion of the hearing the appellant asked for a new trial on the matter and expressed dissatisfaction with his attorney. The chancellor gave the appellant until January 9, 1985, to obtain a new attorney, and a new hearing was set for the morning of January 11, 1985.

On January 10, 1985, the chancellor signed the contempt citation he had proposed on January 7. Added to the order was the chancellor’s statement that the appellant was to have notified the attorney who had represented him of the name of his new attorney and the appellant’s former attorney was to “notify the court.” The order stated further that as the appellant had not obtained other counsel the hearing scheduled for January 11 was cancelled.

The appellant did not go to jail on January 11, and the appellee moved again to have the appellant held in contempt. A hearing was held on January 25, 1985, at which the appellant testified he had, on January 8, 1985, obtained new counsel, and that he had been assured by an employee of his new lawyer that the court had been notified of the change in representation.

At this January 25 hearing an attorney in the new lawyer’s office explained that one of their employees, who has since been admitted to the bar, notified the chancellor’s case coordinator of the change in representation on January 9.

On the few matters made clear in the record before us is that on January 25,1985, the appellant was sentenced to 120 days in jail, and that this sentence was not just for the previously found contumacious conduct. Rather, it was levied because the appellant had not told the chancellor who his new lawyer was and had not gone to jail on January 11 as he had been ordered to do in the order signed on January 10 which cancelled the January 11 hearing.

Nothing in the record disputes the testimony of the appellant and the statement of his counsel that notice “to the court,” or at least to a court employee, was given on January 9, 1985, of the change in counsel and that the appellant’s understanding was that he had complied with the court’s order. Appellant’s new counsel did not obtain an order entering his appearance of record in place of former counsel until February 4, 1985. That should have been done on January 9. If it had been done, the whole problem could have been avoided. However, this lapse on the part of counsel cannot be attributed to the appellant.

To buttress his determination, the chancellor recited the following into the record at the conclusion of the January 25 hearing:

Now, the Court would like to make a statement for the record because I have a specific memory of this problem. It has been here so many times before Mr. Jones’ face is very familiar. He did say at the end of the hearing, after I had found him in contempt, which I still find him in contempt, that he wanted a new lawyer. I gave him forty-eight hours to get a lawyer and we set a specific time on the court docket for a hearing. I asked Mr. Jones if he understood that time. He said yes. I said, you get that lawyer and be here at that stated time. Now, I made that statement for the record.

Surely the court did not expect the appellant to show up with counsel at the January 11 hearing which he cancelled on January 10. The “time” the chancellor referred to must have been the January 9 deadline for getting a new lawyer. Again, there is nothing to contradict the evidence that the appellant thought he was in compliance. The chancellor may have meant that the appellant should have understood the “time” he was to report to the jail. The only evidence before us shows the appellant had gotten a new lawyer, and he thought he had gotten a new trial of his contempt conviction. It was reasonable for him not to report to the jail on January 11. At least we cannot say there is sufficient evidence to show his failure to do so was wilful contempt.

The citation was for criminal contempt. It was meant to punish the appellant for disobedience. When we review such an order we entertain a challenge to the sufficiency of the evidence as we would in other criminal cases. The question raised is whether the evidence, given its full probative force, is sufficient to sustain the conviction. Dennison v. Mobley, 257 Ark. 216, 515 S.W.2d 215 (1974). When we find the evidence is not sufficient, we will not allow the conviction to stand. Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984). See also Whorton v. Gaspard, 240 Ark. 325, 399 S.W.2d 680 (1966), where we found the evidence was insufficient to support a citation for contempt of this court.

We hasten to add that nothing in this opinion is meant to say that the contempt found to have existed on January 7 and earlier was not supported by evidence then before the chancellor. Therefore, we remand the case for the chancellor’s consideration of the disposition of those previous findings.

Reversed and remanded.

Hays, J., dissents.

Purtle, J., not participating.

Steele Hays, Justice,

dissenting.

I interpret the proceedings of January 7 as giving the appellant an opportunity to obtain other counsel for a hearing to be held on January 11. He was ordered to appear on the 11th and to notify the court by the 10th that other counsel had been obtained. He did neither.

While it might be possible, under the circumstances, to excuse him for the failure to communicate to the court by the 10th, the fact that neither he nor his lawyer appeared on the 11th, as ordered, nor indeed until a new contempt citation was issued, provides a convincing measure of the appellant’s disdain for the orders of the Chancellor. I would affirm.


author: David Newbern, Justice.

text:
    Mark WALKER v. STATE of Arkansas
    CR 85-131
    696 S.W.2d 500
    Supreme Court of Arkansas
    Opinion delivered September 30, 1985

      Williams Law Firm, by: Lynn Williams.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The only point raised on appeal of this criminal conviction is insufficiency of the evidence. We hold the evidence was sufficient to support the appellant’s conviction of aggravated robbery, and thus we affirm.

Mary Dodd Jackson and Betty Sizemore testified they were attacked and robbed as they were leaving a Mini Mart Food Shop of which Ms. Jackson was part owner and at which Ms. Sizemore was employed. Shortly after the attack, two men were apprehended by the police. In the car with the men were the two women’s purses and a weapon, referred to both as “nunchaku” and “numb chucks,” consisting of two hard handles connected by a chain. Ms. Sizemore identified the two men at the scene as the men who had attacked her and Ms. Jackson. Ms. Jackson identified the appellant at the trial as the person who had struck her repeatedly with the numb chucks ultimately requiring thirty-four stitches to close wounds to her head. Ms. Sizemore also identified the appellant at the trial as one of the attackers.

The appellant argues the evidence was insufficient because Ms. Sizemore was asked on cross-examination to describe the attacker of Ms. Jackson, and she said he was clean shaven whereas a photograph taken the night of the attack showed the appellant to have had a moustache. He also argues that Ms. Jackson could not describe the appellant’s features when asked to do so at the trial although she positively identified him as her attacker. The credibility of the identification testimony was for the jury to decide. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983); Gray v. State, 252 Ark. 404, 479 S.W.2d 560 (1972).

The only cases cited by the appellant are Warren v. State, 261 Ark. 173, 547 S.W.2d 392 (1977); and Inklebarger v. State, 252 Ark. 953, 481 S.W.2d 750 (1972). In both of those cases we found evidence to support the convictions was sufficient; in neither of them was the evidence of guilt as strong as it is here. The appellant makes other arguments similar to those described above, and we need not detail them here. It is enough to say the evidence of the appellant’s guilt was not only sufficient, it was overwhelming.

Affirmed.

Purtle, J., not participating.


author: Sidney P. Davis, Jr., Special Justice.

text:
    FORD MOTOR CREDIT COMPANY v. Ross H. NESHEIM, et al.
    85-34
    696 S.W.2d 732
    Supreme Court of Arkansas
    Opinion delivered September 30, 1985

      Griffin Smith and W.R. Nixon, Jr., P.A., for appellant.

      Meredith Wineland, and Boswell, Tucker & Smith, by: David E. Smith, for appellees.
   Sidney P. Davis, Jr., Special Justice.

The issue presented by this appeal is whether the appellees can maintain their suit as a class action pursuant to Rule 23 of the Arkansas Rules of Civil Procedure. We find that the Chancellor erred in certifying this case as a class suit and, accordingly, reverse.

Shortly after December 2, 1982, the effective date of Amendment 60 to the Arkansas Constitution, appellant, Ford Motor Credit Company (hereinafter “Ford Credit”), began purchasing from Arkansas Ford dealers installment contracts bearing interest rates up to 17 percent. On December 13, 1982, appellant purchased from Cecil Tate Ford of Malvern a contract executed by appellee, Gerald Harrison, bearing an annual percentage rate of 14.25 percent. On February 22, 1983, appellant purchased from Walt Bennett Ford an installment contract executed by appellees, Stanley and Mary Lou Cullipher, bearing an annual percentage rate of 15.75 percent. On March 4, 1983, appellant purchased from Union Lincoln-Mercury, Inc., a contract executed by appellee, Ross H. Nesheim, bearing an annual percentage rate of 17 percent. In each case, it appears that interest exceeding five percent over the applicable federal reserve discount rate was charged.

On July 11, 1983, this Court handed down its decision in Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983), in which it interpreted Amendment 60 as providing a two-fold limitation on the maximum amount of interest a lender can charge on a consumer loan or credit sale — the lesser of 17 percent or five percent over the Federal Reserve discount rate at the time of the contract. The Bishop decision became final on September 12,1983, when rehearing was denied. Two days later, appellant notified appellees and some 6,000 other Ford Credit customers of this Court’s ruling and of appellant’s intention to correct each contract to insure that no customer would pay interest in excess of five percent above the discount rate on the date the contract was executed. On October 13,1983, appellant sent follow-up letters to appellees and its other Arkansas customers, advising them that the corrections had been made and explaining how the changes lowered the annual percentage rate, balance due and monthly payment amount for each contract.

On October 25,1983, appellee Nesheim filed a class action suit against appellant in the Chancery Court of Pulaski County, alleging usury and seeking to recover the penalties provided for by Amendment 60 on behalf of himself and all other consumer debtors similarly situated. Appellees Harrison and the Culliphers filed a similar class action suit against appellant in Pulaski County Circuit Court on December 27,1983. The Circuit Court action was subsequently transferred to Chancery Court and consolidated with appellee Nesheim’s suit.

On October 26, 1984, the Chancellor entered an order certifying the case as a class action under Rule 23. Appellant filed both a notice of appeal from the certification order and a petition for a writ of prohibition, challenging the constitutionality of Rule 23. The petition for a writ of prohibition was denied on the ground that appellant had no standing to challenge the Rule’s constitutionality. Ford Motor Credit Company v. Rogers, 285 Ark. 64, 685 S.W. 2d 145 (1985). The Chancellor’s order certifying this case as a class action is appealable pursuant to Rule 2(a) (9) of the Rules of Appellate Procedure. See Per Curiam Order of March 18, 1985.

In order to determine whether the Chancellor erred in certifying this case as a class action, it is necessary first to examine the language of Rule 23. Subsection (a) of Rule 23 provides that where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring all before the Court within a reasonable time, one or more may sue or defend for the benefit of all. This Court has little difficulty finding that the prerequisites of subdivision (a) are satisfied here. Certainly, the parties are numerous, making it impracticable to bring all of them before the Court within a reasonable time. It can also be said that a common question exists as to whether Ford Motor Credit Company’s actions in charging interest at a rate in excess of that allowed by law and then attempting to correct its contract to conform with the law gives rise to a cause of action in favor of its Arkansas customers.

However, in order to be maintainable as a class action, the trial court must also find that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Arkansas Rule of Civil Procedure 23(b). It is on these two points that we must say that the Chancellor misdirected her discretion.

In reaching our decision, we are guided by the principle that, while a Chancellor does, indeed, have discretion in determining whether to certify a suit as a class action, that discretion is not unlimited. It is fundamental that the latitude of a Chancellor’s discretion increases proportionately as the situation presents to the trial judge a question that cannot equally well be presented to this Court by the printed record. Where the question on appeal turns heavily on the credibility of witnesses, for example, we defer to the superior position of the Chancellor in that regard. Jackson v. Farm and Commercial Properties, 284 Ark. 130, 680 S.W. 2d 105 (1984). This case is not one in which resolution of the issue depends upon the assessment of critical testimony or in which the Chancellor had some unique advantage not found in the printed record. Consequently, this Court not only may, but must, take a closer look at the Chancellor’s findings.

First, we cannot agree that the common questions predominate over the individual ones. In its answers to the complaints filed by appellees, Ford Credit pled the defenses of mutual mistake, waiver, estoppel and set-off. The defenses raised by Ford Credit may be available against some customers but not against others, depending on the facts underlying each contract. Furthermore, Ford Credit filed a counterclaim against appellee Harrison, alleging that he defaulted on his contract. Counterclaims would likely be asserted against other class members who become delinquent on their contracts. The Chancellor attempted to avoid this problem by limiting the class to those loan debtors who are not delinquent in their principal payments to Ford Credit. However, disputes as to whether customers are delinquent in principal payments will inevitably arise, so that the circumscribed class description would create more problems that it would solve.

In part because this case, if certified as a class action, will surely splinter into many individual suits, the class action would not be superior to individual remedies for the fair and efficient adjudication of the controversy. We reached the same conclusion in Drew v. First Federal Savings and Loan Association of Fort Smith, 271 Ark. 667, 610 S.W. 2d 876 (1981), a case in which mortgagors sought to challenge First Federal’s exaction of a one percent assumption fee by means of a class action. There, we stated:

Undoubtedly, First Federal itself treated the borrowers as a class in exacting a uniform fee for everyone, but its conduct was not fraudulent or criminal. Consequently, we cannot fairly hold that First Federal is somehow unable to present whatever defense or mitigation it may have in individual instances. Thus, the class suit may become not one case but a conglomeration of hundreds of individual cases.

The splintering of this action into a myriad of individual suits would, in turn, create serious problems of manageability. We recognized the importance of such considerations in Ross v. Arkansas Communities, Inc., 258 Ark. 925, 529 S.W.2d 876 (1975), a purported class action, like this one, alleging usury. In Ross, we said:

Moreover, this Court must be realistic in its appraisal of the situation, and we cannot ignore the serious practical problems which would arise if we allowed the case to proceed as a class action. Considerable expense would be involved. How could the limited staff of the Chancery Court take care of the necessary proceedings, answer the inquiries for further information on the 833 transactions and keep the members of the class advised as to the status of the case thereafter? It is apparent a maze of procedural difficulties would be encountered.

The procedural problems would be compounded in this case, involving, as it does, 6,000 separate retail installment contracts.

This Court is also persuaded by the fact that there is no evidence in the record to suggest that there even exists a willing class of litigants. As in Drew, it is questionable whether the claims of appellees are typical of the claims of the would-be class. Appellees Harrison and the Culliphers are making partial payments (principal only). Appellee Nesheim paid off his contract prior to maturity. It is a reasonable assumption that the appellees are atypical members of the purported class. The typical member is, more than likely, the individual who is making timely contract payments each month. Such an individual may have no interest in suing Ford Credit. He may be more interested in maintaining a harmonious business relationship with Ford Credit in the hope of obtaining financing for future Ford purchases. If that is the case, he should not be made an unwilling litigant in an action filed by four individuals who have chosen, under varying circumstances, to test their claims. The language of Amendment 60 itself — “A person who has paid interest in excess of the maximum lawful rate may recover. . . .” (Emphasis supplied) — suggests that this is not a remedy to be forced on an otherwise satisfied customer. Appellees should not be allowed to go into a Court of Equity, which traditionally abhors penalties, to force satisfied borrowers to extract a penalty.

Finally, it is significant that no one will be prejudiced by the denial of class certification. Appellees certainly will not be prejudiced, for they are perfectly free to pursue their individual claims in this action. Other similarly situated persons interested in penalizing Ford Credit are likewise free to file individual actions. There does not appear to be any statute of limitations problem. The United States Supreme Court has held that the filing of a class action tolls the statute of limitations as to all asserted members of the class. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983).

It is apparent from our prior decisions in Ross and Drew that, unlike the federal courts, we do not resolve doubts in favor of class actions. In fact, we construed Rule 23, as well as its predecessor, Ark. Stat. Ann. Section 27-809 (Repl. 1962), rather strictly in both of those cases. Against that history, we find that our carefully circumscribed class action rule was not adopted to authorize the maintenance of a suit such as this as a class action.

Reversed.

Purtle, J. and Newbern, J., not participating.


author: B. J. McCoy, Special Justice.

text:
    STATEWIDE HEALTH COORDINATING COUNCIL and BAPTIST MEDICAL SYSTEM, et al v. CIRCUIT COURT OF PULASKI COUNTY; Hon. Russell ROGERS, Circuit Judge on Assignment GENERAL HOSPITALS OF HUMANA, INC., Intervenor
    85-14
    696 S.W.2d 729
    Supreme Court of Arkansas
    Opinion delivered September 30, 1985
    [Rehearing denied November 4, 1985.]

      Steve Clark, Att’y Gen., by: George A. Harper, Special Asst. Att’y Gen., for petitioner, Statewide Health Coordinating Council.

      Gill, Skokos, Simpson, Buford & Graham, P.A., by: Harold H. Simpson, II, for petitioner, Baptist Medical System.
    No brief filed for respondent.

      Smith, Jernigan & Smith, by: George Jernigan and Robert Smith; and Rose Law Firm, A Professional Association, by: Webster L. Hubbell and Richard T. Donovan, for intervenor.

       Purtle, J., not participating.

   B. J. McCoy, Special Justice.

This is a petition by the Statewide Health Coordinating Council and Baptist Medical System, hereinafter called Petitioners, against Russell Rogers, Circuit Judge, for a writ to prohibit the Judge from proceeding in a cause pending before him in the Pulaski County Circuit Court.

On January 13, 1984, General Hospitals of Humana, Inc. (Humana) filed a request to amend the Arkansas State Health Plan with the Arkansas Health Planning and Development Agency and the Central Arkansas Health Systems Agency to allow for a new Sherwood Service Area and an additional 150 hospital beds for the Central Arkansas Health System Area. The Central Arkansas Health Systems Agency adopted Humana’s Plan Amendment after a Public Hearing on April 19, 1984, and proposed the amendment to the Statewide Health Coordinating Council (SHCC), the agency of State Government charged with, inter alia, formulating and amending the Arkansas State Health Plan. The SHCC declined to approve the Plan Amendment on May 15, 1984 and Humana filed an action in Pulaski County Circuit Court on June 13,1984 for review of the SHCC decision as an administrative adjudication pursuant to the Arkansas Administrative Procedure Act, Ark. Stat. Ann. § 5-713 (Repl. 1976). Baptist Medical System (BMS) and St. Vincent Infirmary, non-profit, health care providers in the Central Arkansas Health Service Area, intervened in the action as interested parties in support of the SHCC decision. The SHCC filed a Motion to Dismiss and BMS filed a Motion for Summary Judgment both contending that the SHCC’s refusal to amend the State Health Plan was administrative “rule making” not “adjudication”, and as a result, judicial review pursuant to Ark. Stat. Ann. § 5-713 was not available to Humana. The requested relief was denied. A Motion to Reconsider the Motion for Summary Judgment was also denied by the Court. Although Petitioners agree that the Circuit Court has subject matter and personal jurisdiction, they contend that this Court should grant a Writ of Prohibition to prevent the Circuit Court from acting in excess of its jurisdiction by proceeding with review of the SHCC decision to deny Humana’s request for an amendment to the State Health Plan as an adjudication.

It is well settled that when a trial court is proceeding in a matter where it is without authority this Court in its exercise of supervisory control has the authority to prevent the unauthorized proceeding by the issuance of a Writ of Prohibition. Tucker Enterprises, Inc. v. Hartje, Judge, 278 Ark. 320, 650 S.W. 2d 559 (1983). The Writ of Prohibition is an extraordinary and discretionary Writ which should not be granted unless the Petitioners are clearly entitled to relief and the Court against which it is sought is wholly without jurisdiction. First Arkansas Leasing Corp. v. Munson, Chancellor, 282 Ark. 359, 668 S.W.2d 543 (1984). A Writ of Prohibition is never issued to prohibit an inferior Court from erroneously exercising its jurisdiction. Springdale School District v. Jameson, Judge, 274 Ark. 78, 621 S.W. 2d 860 (1981). This Court has consistently held that if the existence or non-existence of jurisdiction depends on contested facts which the Circuit Court is competent to inquire into and determine, a Writ of Prohibition will not be granted, though this Court may be of the opinion that the questions of fact have been wrongly determined by the Circuit Court and that their correct determination would have ousted the jurisdiction. Wisconsin Brick & Block Corporation v. Cole, Judge, 274 Ark. 121, 622 S.W.2d 192 (1981), Twin City Lines, Inc. v. Cummings, Judge, 212 Ark. 569, 206 S.W.2d 438 (1947), Merchants & Planters Bank v. Hammock, 178 Ark. 746, 12 S.W.2d 421 (1929).

The Arkansas Administrative Procedure Act confers subject matter jurisdiction on the Pulaski County Circuit Court for judicial review of agency rule making or adjudication. Ark. Stat. Ann. § 5-705 and § 5-713 (Repl. 1976). Whether the SHCC decision was the result of rule making or adjudication, in the case at bar, was a question of fact to be determined by the Circuit Court. In ruling on Petitioner’s Motion to Dismiss and Motion for Summary Judgment, the Circuit Court considered the arguments and briefs of Petitioners, the administrative record which comprised more than 600 pages and held a full hearing on the Motion for Summary Judgment before concluding that the SHCC decision was the result of adjudication rather than rule making. Even if the Circuit Court erred, Petitioners are not clearly entitled to the requested relief because the Court is not clearly without jurisdiction. Mere error, irregularity or mistake in the proceedings of the court having jurisdiction does not justify resort to the extraordinary remedy of prohibition. Arkansas Motor Coaches v. Taylor, Judge, 234 Ark. 833, 354 S.W. 2d 731 (1962). The Writ of Prohibition cannot be used as a substitute for appeal. Farm Bureau Mutual Insurance Company v. Southall, 281 Ark. 141, 661 S.W. 2d 383 (1983), Springdale School District v. Jameson, Judge, supra. The Writ of Prohibition is denied.

Petitioners also contend that if a Writ of Prohibition is inappropriate, a Writ of Certiorari should issue because the Circuit Court’s decision is clearly erroneous on the face of the record and appeal will only lie, after costly, time-consuming litigation. Petitioners are not entitled to relief by Certiorari on the record presented because the Circuit Court was not on the face of the record without jurisdiction to determine whether the SHCC decision was the result of rule making or adjudication and has not acted in excess of its jurisdiction by proceeding with its review of the decision as an adjudication. State Ex Rel Purcell v. Nelson, 246 Ark. 210, 438 S.W. 2d 33 (1969); McKenzie v. Burris, 225 Ark. 330, 500 S.W.2d 357 (1973).

Petitioners’ arguments that the State Health Plan is an administrative rule, and the SHCC’s action was rule making are not addressed since the Circuit Court has jurisdiction to proceed with its review of this matter as an administrative adjudication. The Circuit Court’s decision can be tested on appeal.

Writ denied.

Purtle, J., not participating.

Hays, J., not participating.


author: Per Curiam.

text:
    Wesley Kent NEFF v. STATE of Arkansas
    CR 85-156
    696 S.W.2d 736
    Supreme Court of Arkansas
    Opinion delivered September 30, 1985

      David C. Godfrey and Ralph C. Hamner, Jr., for petitioner.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Wesley Kent Neff was found guilty by a jury of delivery of cocaine, a controlled substance. The trial court sentenced petitioner to a term of six years imprisonment in the Arkansas Department of Correction and a $6,000 fine. The Court of Appeals affirmed. Neff v. State, CACR 85-15 (July 10, 1985). Petitioner now seeks permission to proceed in circuit court for an evidentiary hearing pursuant to A.R.Cr.P. Rule 37 on the ground that his counsel at trial was generally ineffective. He cites nine specific examples of inadequate representation.

Petitioner first alleges that the prosecutor was permitted without objection to ask a series of questions in voir dire of the jury which amounted to a lengthy sermon on the evils of drug use and which created such bias that the petitioner’s entrapment defense was discredited before the trial began.

The jury is presumed unbiased, and the burden is on the petitioner to demonstrate actual bias on the part of the jury. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). Although petitioner contends that the jurors and the prosecutor were effectively wed by the close of voir dire, the record indicates that counsel for the petitioner also questioned the venirepersons so as to impress upon them views contrary to those suggested by the state. It is not unusual or improper for either counsel as a matter of trial tactics to question prospective jurors on their attitudes as well as their understanding of the elements of the crime. The range of permissible inquiry and the diversity of legitimate questions are so great as to make it impossible to lay down rigid rules governing counsel’s examination of jurors; Jones v. State, 283 Ark. 308, 675 S.W.2d 825 (1984), but to raise a successful challenge to counsel’s questioning of the jurors, the petitioner must establish that counsel’s conduct resulted in such prejudice that he was denied a fair trial. See Strickland v. Washington,_U.S_, 104 S. Ct. 2052 (1984). Petitioner has not demonstrated any actual prejudice from any act or omission on counsel’s part.

In his opening statement, the prosecutor referred to the defense of entrapment as an “admission” that the crime had been committed. He later declared again that the offense had been admitted. He also related to the jury the expected content of an undercover officer’s testimony as to what she was told by one of the state’s witnesses. Petitioner argues that counsel should have objected to the reference to entrapment as an admission of guilt and to the “double hearsay” in recounting the officer’s expected testimony.

Counsel objected in the first part of the State’s opening statement to the prosecutor’s arguing the case. Counsel objected a second and a third time and the court also interjected a comment about the prosecutor’s arguing. Experienced advocates might differ about when, or if, objections were called for since, as a matter of trial strategy, further objections from counsel may have succeeded in making the prosecutor’s comments seem more significant to the jury. In any event, the jury was instructed that opening statements and closing arguments are not evidence, and petitioner was not denied effective assistance of counsel as guaranteed by the Sixth Amendment by counsel’s failure to object at the points now suggested by petitioner. Unless petitioner can demonstrate actual prejudice so serious as to deprive him of a fair trial, he has not proven counsel’s performance deficient. Strickland v. Washington, see also Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1982).

Petitioner next cites several points during the undercover officer’s testimony where counsel could have objected on some ground and further faults counsel for agreeing to admit into evidence an evidence submission sheet from the state crime laboratory which he alleges contained hearsay statements regarding his arrest. Petitioner also contends that the laboratory analysis report identifying the drug delivered by him to be cocaine had a clerical error and could have been excluded on timely objection.

The questioning of witnesses and the decision about when to object are ordinarily subjective matters about which there could be endless discussion. For this reason, counsel’s examination of witnesses will not be dissected by this Court. McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984). More importantly, even when a petitioner can state a sound basis for an objection, Rule 37 was not designed for the review of mere error made by either the trial court or counsel. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). The convicted defendant is presumed to have received effective assistance of counsel, Hoover v. State, 270 Ark. 978, 606 S.W.2d 749 (1980), and a petitioner must meet the heavy burden of showing that counsel’s conduct was outside the wide range of reasonably professional assistance and sufficiently deficient to have denied petitioner a fair trial. Strickland v. Washington.

Petitioner next contends that the jury may have been swayed by the presence in the courtroom and at a conference in chambers of an attorney who represented his co-defendant. He alleges that the attorney relayed messages between the co-defendant, who was not present and did not testify, and the prosecutor. Petitioner does not contend that the jury knew whom the attorney represented. There is nothing to indicate that the attorney’s presence created any impression in the minds of the jury which prejudiced the petitioner.

Clint Bell, who had agreed to assist the police in the undercover operation which led to petitioner’s arrest, was called by petitioner’s counsel to testify. Petitioner now argues that Bell’s testimony was so harmful to the defense that counsel must be considered incompetent for calling him.

Counsel attempted to elicit from Bell that he helped entrap the petitioner. Evidence may have been elicited through Bell which proved detrimental to the defense, but it is not ineffective assistance of counsel for an attorney as a matter of trial strategy to call a witness whose testimony is not entirely favorable to the defense. Rule 37 does not provide a forum to debate trial strategy even if it proves improvident. Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984).

Petitioner alleges that counsel refused to request a change of venue. Petitioner does not provide any basis to conclude that the jury was biased. See Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). Moreover, the decision to request a venue change is a matter of trial strategy. Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983).

Petitioner again challenges counsel’s skill as an examiner of witnesses when he contends that counsel’s examination of him was clumsy and revealed a lack of knowledge of the case. As stated earlier, questioning witnesses is a part of trial tactics. It is a professional skill that is not ordinarily grounds for finding that a petitioner was denied a fair trial.

Although petitioner makes the statement that counsel did not know it was permissible to object during cross-examination, the record shows that he did object during cross-examination.

In closing argument, the prosecutor told the jury that if it believed that the undercover officer took a certain action, “I’m in the wrong business.” He later said, “I’m confident” that petitioner knew the officer sounded truthful, and “I think you know the defendant is guilty.” Petitioner contends that the comments constituted an improper expression of personal opinion and counsel erred in not objecting to them. He also objects to counsel’s failure to object to the prosecutor’s commenting on the petitioner’s demeanor on the stand and at the defense table and his stating that it’s the job of the defense to throw up as much smoke as it can.

To warrant postconviction relief on the allegation that counsel rendered incompetent representation by failing to object to the prosecutor’s remarks, the petitioner must show prejudice to the degree that the outcome of the trial was unreliable. Strickland v. Washington. Although it is not good practice for counsel to inject their personal beliefs into the closing arguments, mere expressions of opinion by counsel in closing argument are not reversible error so long as they do not purposely arouse passion and prejudice. Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980). The remarks by the prosecutor are not sufficiently prejudicial to make the judgment of conviction unreliable and open to collateral attack.

Petitioner also asserts that counsel should have objected in the state’s closing argument when the prosecutor asked rhetorically if petitioner’s co-defendant’s defense would also be entrapment. Petitioner argues that the remark amounts to denial of his confrontation right guaranteed by the Sixth Amendment since there was no evidence before the jury about the co-defendant’s defense. It cannot be said that the remark resulted in substantial prejudice to petitioner. While there was no need to bring up the co-defendant’s defense at petitioner’s trial, petitioner has not demonstrated that he was denied a fair trial by counsel’s not objecting to the remark.

After petitioner’s attorney made a plea for leniency at sentencing, the trial court imposed the minimum prison sentence and a fine. The court then advised petitioner of his right to appeal and told petitioner that if he had anything to say, he should say it then. Petitioner replied, “No sir, thank you.” Petitioner alleges that the court’s delay until after judgment was pronounced to afford him an opportunity to speak was a denial of his right of allocution which should have prompted an objection from counsel.

Although the total failure to afford a convicted defendant the right to state any legal reason why judgment should not be pronounced is reversible error when raised on direct appeal after a proper objection in the trial court, Ark. Stat. Ann. § 43-2303 (Repl. 1977); see also Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980), the statute is satisfied if the court affords the defendant his right of allocution at the time judgment is pronounced. As the petitioner was invited to .speak during the sentencing proceeding, he suffered no prejudice.

Furthermore, even if the right of allocution had been completely ignored by the court, the petitioner under Rule 37 must affirmatively prove prejudice and show that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington.

Petition denied.

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Larry LOYD, Deborah LOYD, Jerry TURNER, Agents for Petitioners and CITY OF POTTSVILLE, ARK., W.H. HARRIS, Mayor, J.D. BAKER, Jerry DUVALL, Adolph VODRAZKA, Jr., Samie CHANSLEY, Jr., Gordon GOREE, City Aldermen v. CITY OF RUSSELVILLE
    85-103
    696 S.W.2d 741
    Supreme Court of Arkansas
    Opinion delivered October 7, 1985

      Laws & Swain, by: William S. Swain, for appellant.

      John Bynum, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal concerns a question of priority when two cities attempt to annex the same property within similar time frames. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(g), as this case presents questions about annexation by election.

The named parties in this litigation are representatives of the city of Pottsville, Arkansas, and the city of Russellville, Arkansas, which are in dispute over annexation of lands which are contiguous to both cities.

On a challenge brought by Russellville, the Pope County Circuit Court ruled that Russellville had jurisdictional priority over Pottsville in their annexation proceedings because Russell-ville had taken its “first public procedural step” in the annexation process before Pottsville. Pottsville sought to have the judgment in favor of Russellville set aside, inasmuch as the Russellville annexation was declared invalid in a separate proceeding because of failure to comply with certain statutory requirements. The decision was reaffirmed by the trial court. We disagree and hold that the decision in favor of Russellville should have been set aside because Russellville’s annexation has been decreed invalid, thus leaving Pottsville as the legal annexationist of the disputed area.

Pottsville began plans for annexation in December, 1983 by preparing and circulating a petition. Russellville’s first action toward annexation occurred in January, 1984 when it passed a city ordinance calling for an election to be held March 13,1984 on annexation of lands that overlapped the lands Pottsville planned to annex. Pottsville took what the circuit court described as its “first public procedural step” towards annexation when it filed its petition in the county clerk’s office on February 13, 1984.

Russellville voted for annexation March 13. On March 14, the Pottsville hearing on annexation was held, after which an order was signed annexing the land. Russellville then filed suit challenging the Pottsville annexation and the circuit court ruled that, although it was more logical to annex the lands to Pottsville, Russellville had priority because it had taken the “first public procedural step” in the statutory process for annexation.

On January 22, 1985, however, the Russellville annexation was ruled invalid and Pottsville moved to have the judgment against it set aside. The motion was denied and Pottsville challenges the original judgment and the denial of the motion on appeal.

In deciding disputes between cities attempting to annex the same land at the same time, we have held that “the city which takes the first valid step toward annexation should be favored.” City of Gosnell v. City of Blytheville, 272 Ark. 218, 613 S.W.2d 91(1981). Whether the trial court’s finding, that Russellville had taken the “first public procedural step”, was the equivalent of a “valid step” as described in City of Gosnell, is of no consequence inasmuch as the question is now moot. Because the Russellville annexation has been legally declared invalid, the trial court should have set aside its findings in favor of Russellville and reinstated the Pottsville annexation.

Our rules of civil procedure provide that a decree or order of a circuit, chancery or probate court may be set aside within 90 days of its having been filed with the clerk to correct any error or mistake or to prevent the miscarriage of justice. Ark. R. Civ. P. Rule 60(b). The trial court retains control over its judgments during this time and, when an order is set aside, the parties are put back in the position they were before the judgment was entered. Blissard Management & Realty, Inc. v. Kremer, 284 Ark. 136, 680 S.W.2d 694 (1984), rehearing denied.

Upon proof of the invalidation of Russellville’s annexation, the circuit court should have reinstated the Pottsville annexation since it was challenged only on the basis that the petition for annexation was filed after the Russellville ordinance was passed. As no other challenge was made, it stands now as the only properly performed annexation of the land. Accordingly, we reverse and remand with instructions that the order annexing the land into the City of Pottsville be reinstated.

Reversed and remanded.

Purtle, J., not participating.


author: George Rose Smith, Justice.

text:
    Early JOHNSON v. STATE of Arkansas
    CR 85-95
    696 S.W.2d 742
    Supreme Court of Arkansas
    Opinion delivered October 7, 1985

      Henry & Mooney, by: John R. Henry, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

On an evening in July, 1984, an armed man robbed the clerk at a grocery store in Wynne, taking about $627. The appellant, Early Johnson, was arrested in Parkin nine days later. Johnson was identified as the robber by the clerk, who picked out his picture from a group of pictures, identified him at a line-up, and again identified him at the trial. The robber had not worn a mask. An eleven-year-old girl who had been in the store at the time also identified Johnson. He was convicted of aggravated robbery and sentenced to life imprisonment. Two points for reversal are argued.

First, the witnesses’ identification of the accused was sufficiently reliable to support the verdict. It is argued that the description originally given by the clerk to the police was not the same as the description she gave on cross-examination at the trial. Her first description was : “5'8" black male, slim, white shirt, medium sleeve, dark dress pants, short afro.” At the trial she testified: “He was wearing a white shirt and dark pants, he had short-cut hair, mustache, and big bulgy eyes.” There is no material contradiction between the two versions. Moreover, the proof indicates that the clerk was positive in her identification, as was the child. The time lapse was only about ten days. We perceive no basis for saying that the identifying testimony has been shown to be unreliable.

Second, there were four black jurors who were examined on voir dire. The State successfully challenged two of them for cause and peremptorily challenged the other two. It is now argued that this course of action by the prosecution deprived the accused of a fair trial.

This argument was held to be without merit in Swain v. Alabama, 380 U.S. 202 (1965). There the Supreme Court recognized the nature of peremptory challenges as being essentially a matter of individual judgment and concluded that to test the prosecutor’s challenges on an equal-protection basis “would establish a rule wholly at odds with the peremptory challenge system as we know it.” It was also argued there that the prosecutor’s use of his peremptory challenges to excuse blacks resulted in unconstitutional discrimination in the selection of the jury. The Court held that such a claim could be sustained only by a showing that the practice had been followed in past cases so uniformly as to “give rise to the inference of systematic discrimination by state officials.” Our own cases are to the same effect. Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). In the case at hand no effort was made to show any past history of the exclusion of black jurors by means of peremptory challenges in criminal cases in Cross County. We find no merit in the two points that are argued, nor do we find prejudicial error in any other ruling that has been brought to our attention.

Affirmed.

Purtle, J., not participating.


text:
    METAL PROCESSING, INC. v. PLASTIC & RECONSTRUCTIVE ASSOCIATES, LTD.
    85-107
    697 S.W.2d 87
    Supreme Court of Arkansas
    Opinion delivered October 7, 1985

      Jim Short, for appellant.

      William G. Crowe, for appellee.
   George Rose Smith, Justice.

This appeal is from the trial court’s refusal to set aside a $4,018 default judgment entered against Metal Processing as a result of its failure to answer a writ of garnishment issued upon a judgment in favor of Plastic & Reconstructive Associates. The case comes to us under Rule 29(l)(a). There is no merit to either of the points argued for reversal. '

The default judgment was entered by a special circuit judge in June, 1984. The appellant argues that the judgment is void because the record does not show that the special judge was elected pursuant to Art. 7, Sec. 21, of our 1874 Constitution. The special circuit judge filed his oath of office with the circuit clerk, who certified that it was the “Special Judge Election Form.” The regular circuit judge found that the special judge had been duly elected. Under the law, that election is impervious to attack unless the facts that would defeat the election are recited in the record. Titan Oil & Gas v. Shipley, 257 Ark. 278, 288, 517 S.W.2d 210 (1974). No such facts are shown in the present record. The appellant’s first contention accordingly fails.

Next, it is argued that the judgment should have been set aside under Civil Procedure Rule 55(c) for excusable neglect. The trial judge found, however, that Metal Processing had made no showing of excusable neglect. We must agree.

The writ of garnishment served upon the appellant was in full compliance with the form of summons specified in Civil Procedure Rule 4(b). The writ was issued by the Circuit Court of Pulaski County, Sixth Division, was entitled Writ of Garnishment, and was addressed to Metal Processing, Inc., as Garnishee. Its text began with these paragraphs:

TO THE ABOVE NAMED GARNISHEE:
1. A judgment has been obtained in this Court against the Defendant, Lanny Eppes, for $4018.00, together with interest and other legal costs accrued, and this judgment remains unsatisfied. The Plaintiff alleges that he has reason to believe that you are indebted to the Defendant or have in your possession goods, chattels, moneys, credits, or effects belonging to the Defendant.
2. You are directed to prepare a written answer, under oath, and to file this answer in the Pulaski County Circuit Clerk’s Office within Twenty (20) days from the date on which you are served with this Writ. The written answer should contain a statement of what goods, chattels, moneys, credits, or effects you may have in your possession belonging to the Defendant. Unless you file such written answer within Twenty (20) days, judgment by default may be rendered against you for the amount stated in paragraph one.

In support of the motion to set aside the default judgment the appellant’s president filed an affidavit stating that Lanny Eppes had been employed by Metal Processing for only five weeks, had been paid in full, and was not owed anything by Metal Processing. The affidavit went on to say: “That when I received the papers from the deputy, I was not aware that it was directed to me because I had never heard of Plastic & Reconstructive Associates, Ltd., but I assumed from reading it that it was another suit against Lanny Eppes for his failure to pay bills.” That was the only excuse offered. No testimony was taken.

In view of the writ’s simple and direct message, written in plain language, we find it impossible to say that the garnishee’s failure to understand and comply with it was due to excusable neglect. Neglect, yes; excusable, no. The trial court was right.

Affirmed.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    Delbert W. HARRISON v. STATE of Arkansas
    CR 85-99
    696 S.W.2d 501
    Supreme Court of Arkansas
    Opinion delivered October 7, 1985

      Junius Bracy Cross, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Delbert Harrison was convicted of theft of property and the burglary of a Little Rock service station. He was sentenced to twenty years on each count, to be served consecutively. We find no merit in either point raised on appeal.

The police^responded to a burglary-in-progress call at a Citgo Service Station on Roosevelt Road. On arrival they saw a person inside the station and a car speeding away. The car was found within minutes at Delbert Harrison’s house. Property taken from the station was subsequently found in the car and in the yard. The cár was discovered to belong to Randy Manning, the person seen inside the station. He was arrested at the scene; Delbert Harrison and Robert Strawn were arrested at Harrison’s house. In a statement given that night, Harrison said that he had dropped Strawn and Manning off at the service station. He said he went back later and sat in the car while Strawn put engine heads, oil, and other property in the car. He admitted giving Strawn the keys to the trunk where more property was loaded. He contended in the statement that he never realized what was going on but that he panicked when he saw the police and drove away. The jury chose to disbelieve the appellant’s version of the facts, finding Harrison guilty.

Harrison argues that the trial court erred in refusing to dismiss the information which charged him as a principal rather than as an accessory. That argument was rejected in Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). Harrison contends that the evidence could not place him in any role other than accessory. Harrison was present when property was being removed from the station and put into the car. The jury was properly instructed of the legal distinction between a principal and an accomplice; it was told that the state contended that Harrison did not act alone and that a person is criminally responsible for the conduct of another when he is an accomplice. The jury was further instructed that an accomplice is one who participates in the commission of an offense or who aids, agrees to aid, or attempts to aid in planning or committing the offense. See AMI Criminal, 401. It was a question of fact as to whether Harrison had the intent necessary to support the conviction. Obviously, the jury believed he had the requisite intent.

Harrison also argues that it was error to allow the state to amend the information three days before trial to allege three prior felony convictions. Harrison admits that we have allowed amendments to informations to allege prior convictions even after the trial has begun where there is no prejudice and no surprise. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). Such amendments do not change the nature or degree of the crime charged but simply afford evidence to increase the punishment. Lincoln v. State, 287 Ark. 16, 696 S.W.2d 316 (1985). Harrison made no motion for a continuance, made no specific objection to any of the evidence of the prior convictions, made no motion for a new trial, nor any proffer of what he might have been able to show had the amendment been made earlier. Since he has demonstrated no prejudice, we find none.

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Keith Emory MOSER v. STATE of Arkansas
    CR 85-102
    696 S.W.2d 744
    Supreme Court of Arkansas
    Opinion delivered October 7, 1985

      William R. Simpson, Jr., Public Defender, and Jerry Sailings, Deputy Public Defender, by: Donald K. Campbell, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The sole assignment of error in this case is that the trial court improperly admitted evidence of appellant’s identification before trial. We find no error and affirm the convictions for rape, burglary, and breaking and entering.

Identification proceedings customarily involve two steps. First, the trial judge is required to examine the before-trial identification procedure so that he can rule on whether that procedure was impermissibly suggestive or unreliable in any manner. If the trial judge finds that it was not impermissibly suggestive or unreliable, the second step is taken. In the second step, the jury weighs the evidence under the instructions of the court. Both steps were taken in the case at bar, and the appellant was found guilty. He argues that the trial judge committed error in step one because the identification evidence was (1) impermissibly suggestive and (2) unreliable.

If there are suggestive elements in the before-trial identification procedure that make it all but inevitable that the victim will identify one person as the criminal, the procedure is so undermined that it violates due process. Foster v. California, 394 U.S. 440 (1969); Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). There were no such suggestive elements in this case.

On the morning after the crimes were committed, the police asked the prosecutrix to look through a filebox of facial photographs to see if she could identify her assailant. Appellant’s photograph was not in the group of pictures. The prosecutrix said that her assailant’s photograph was not among those that she had examined. Four days later, according to the police, appellant’s photograph was placed in a group of six photographs for the prosecutrix to examine. The prosecutrix saw the appellant’s picture and told the police, “This is the man.” The six pictures did not suggest the appellant as the criminal. Each picture was of a young Caucasian man with dark skin, dark hair, and dark eyes. Additionally, four of the six, including appellant, had moustaches. None of the testimony suggests that the police tried to influence the prosecutrix’s identification of appellant.

The appellant points out that the police description of the photospread and the prosecutrix’s description are not the same because she thought she looked at twenty or twenty-five photographs on the occasion she identified the appellant’s photograph. This discrepancy in the number of photographs does not indicate that the photospread was impermissibly suggestive. Instead, it goes to the credibility of the witnesses. See Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982).

The appellant next argues that the before-trial identification was unreliable. Among the factors which may be considered in determining whether identification testimony is reliable are: opportunity to observe the person charged with the crime; the lapse of time between the crime and the identification; the occurrence of misidentification; discrepancies between the descriptions given the police and the accused’s actual description; the certainty of the witness in identifying the accused; the facts and circumstances regarding the identification and all matters relating to it. Glover v. State, supra.

The prosecutrix testified that she was awakened around 3:00 a.m. by the squeaking of her bedroom floor. She saw an intruder and started to get up. He hit her in the mouth and said, “You know what I want.” He spent the next 15 to 20 minutes raping her.

The prosecutrix testified that a light with a 100-watt lightbulb was burning in the adjoining room. The wall between the two rooms was a lattice partition with two-inch holes in it. Therefore, the prosecutrix had sufficient time and light to view her assailant; she identified a photograph of him only four days after the crime, and she was certain in the identification. A trial court’s ruling on the admissibility of identification evidence will not be reversed unless it is clearly erroneous. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983). The trial court’s ruling was not clearly erroneous.

Affirmed.

Purtle, J., not participating.


text:
    B. G. CONEY COMPANY v. RADFORD PETROLEUM EQUIPMENT COMPANY, et al
    85-77
    696 S.W.2d 745
    Supreme Court of Arkansas
    Opinion delivered October 7, 1985
    [Rehearing denied November 12, 1985.]

      Wood Law Firm, by: Doug Wood and Steven R. Davis, for appellant.

      Hardin & Grace, by: David A. Grace, for appellees Radford Petroleum Equipment Co., James P. Dollar d/b/a Dollar Sheet Metal, Arkansas Excavating, Inc., and Prospect Steel, Inc.

      Givens & Buzbee, by: J. R, Buzbee, for appellees Robert McNannan and Homer Riddell d/b/a Painting Contractors.

      Everett O. Martindale, for appellee Central Industrial Electric Company, Inc.

      Davidson, Horne, Hollingsworth, Arnold & Grobmyer, by: Robert Fuller and Patrick E. Hollingsworth, for appellee James A. Camp d/b/a C & C Commercial Cleaner.

      Friday, Eldredge & Clark, by: Michael S. Moore, for appellee Ben Hogan Co.

      Walter A. Murray, for appellees.

       Purtle, J., not participating.

   David Newbern, Justice.

This case was certified to us by the Arkansas Court of Appeals pursuant to Arkansas Supreme Court and Court of Appeals Rule 29.1. c. and 29.4. b. While the matter upon which certification was based has become moot by virtue of appropriate concession by the appellant in oral argument, we choose to decide the case rather than transfer it back to the Court of Appeals, as it was properly certified to us.

The questions remaining are (1) whether the chancellor was correct in rendering summary judgment for the appellees despite the appellant’s contention that genuine issues of material fact remained, and (2) whether it was proper for the chancellor to render summary judgment for some of the appellees who had made no summary judgment motion. We hold the chancellor’s decisions were correct on both points, and thus we affirm.

1. Remaining Issues of Fact

The appellees were subcontractors to the appellant B. G. Coney Company (Coney), which had a general contract to build a shopping center. Coney sued the owners of the shopping center for money allegedly due under the general contract. Some subcontractors were joined as parties to the case, and others intervened. The appellees, who were among those subcontractors who became parties, cross-claimed against Coney, asserting they were entitled to be paid by Coney for their work, and asserting liens. Coney contended the appellees were not entitled to be paid until Coney had been paid by the owners. The contract provisions presented to the trial court as controlling are:

ARTICLE V
Progress Payments - Based upon applications for payment submitted by contractor to owner, and payments by owner to contractor, contractor shall make progress payments to subcontractor, on or about the tenth day of each month of ninety percent (90%) of the portion of the contract sum properly allocable to labor, materials and equipment incorporated in the work, less the aggregate of previous payments; and upon substantial completion, a sum sufficient to increase total payments to ninety percent (90%) of contract sum less such retainage as contractor shall\letermine for all incomplete work and unsettled claims.
ARTICLE VI
Final Payment - Final payment, constituting the entire unpaid balance of contract sum, shall be paid by contractor to subcontractor thirty (30) days after all work of subcontractor has been completed and accepted by the contractor and this contract fully performed.

The chancellor ruled that, as there was no dispute over whether the work of the appellees had been completed and accepted and the contract had been fully performed, Article VI was controlling, and the appellees were entitled to summary judgment.

Coney earnestly contends the chancellor should have looked to Article V and VI, as both apply to final payment. One need only read those articles to see that is not so. Coney then contends that, reading these contract articles together, there is a latent ambiguity in the contract, and the chancellor should have considered affidavits from Mr. B. G. Coney and a Mr. Toland which showed the company policy and practice was not to make final payments to subcontractors until Coney had been paid. The chancellor was entirely correct in not allowing these affidavits to dissuade him from entering summary judgments. When there is no ambiguity in the contract, such testimony is irrelevant. It certainly raises no genuine issue of material fact. We can see no ambiguity in this contract, latent or otherwise. Article VI controls final payments. Final payments are the subject of the appellees’ claims. There being no ambiguity, extrinsic evidence as to the terms of the instrument was not admissible. Arkansas Rock and Gravel Co. v. Chris-T-Emulsion, 259 Ark. 807, 536 S.W.2d 724 (1976); C & A Construction v. Benning Construction, 256 Ark. 621, 509 S.W.2d 302 (1974). The mere raising of an unfounded charge of ambiguity in a written contract does not bar summary judgment, as it is for the court to decide whether the contract is ambiguous. Freeman v. Continental Gin Co., 381 F.2d 459 (5th Cir. 1967); U.S. v. Northern Pacific Railway Co., 188 F.2d 277 (8th Cir. 1951).

The appellant adds nothing to its argument by citing Ark. Stat. Ann. § 85-2-208 (Add. 1961). Even if we could construe these subcontracts as ones for the sale of goods, thus making the cited statute applicable, we would find it not controlling. Nor is it applicable by analogy. Section 85-2-208 says express terms of a contract are controlling over course of performance, and course of performance is controlling over course of dealing and usage of trade. Again, the express terms are clear.

2. Non-moving appellees

It was not error for the chancellor to grant summary judgment to all of the appellees even though some of them had not moved for summary judgment. The only substantial danger in granting summary judgment to a party who has not asked for it but whose legal position is the same as one shown to be entitled to summary judgment is that the party against whom it is granted may not have had sufficient notice. C. Wright, A. Miller and M. Kane, Federal Practice and Procedure, Civil 2d, § 2720 (1983). Lack of notice was clearly not a problem here. The appellant argues only that Rule 56 does not provide for granting summary judgment to one who has not moved for it. We would be inclined to discuss this issue more fully if the appellee had objected at the trial on the basis now asserted. Not only did the appellee not raise any such objection, counsel for the appellee stated he had no objection to summary judgment being entered for all subcontractors whose work had been completed. The only objection raised by the appellant in this context at the trial was to the trial court’s entering the judgments without restraining the appellees from enforcing the judgments. We are not required to consider an issue not raised at the trial. Ragge v. Bryan, 249 Ark. 164, 458 S.W.2d 403 (1970); Stuckey v. Douglas, 240 Ark. 637, 401 S.W.2d 218 (1966).

In the brief and on oral argument the appellant argued Article XXI of the contract should have prevented the summary judgments because it provided the subcontractors were not entitled to payment until their liens were released. This argument was also one not raised at the trial, and thus we need not consider it here. Ragge v. Bryan, supra, Stuckey v. Douglas, supra.

Affirmed.

Purtle, J., not participating.


text:
    Thelma BROOKSHIRE, Executrix of the Estate of Jessie W. BROOKSHIRE, and Raymond D. ANDERSON v. Gary D. COFFMAN and Wilma COFFMAN
    85-86
    696 S.W.2d 748
    Supreme Court of Arkansas
    Opinion delivered October 7, 1985

      Laws & Swain, P.A., by: William S. Swain, for appellants.

      Mobley & Smith, by: William F. Smith, for appellees.
   David Newbern, Justice.

This is a mortgage foreclosure case involving the question whether the note secured by the mortgage was usurious under the law preceding Amendment 60 to the Arkansas Constitution. More precisely, the question is whether one who takes an assignment of a note which was not usurious when it was made may recover on that note when the transaction by which he acquired it consisted, in part, of issuing other notes which were usurious. We agree with the chancellor’s decision that when assignment of the note was taken by the appellants’ decedent it became part of the usurious transaction. Thus we agree the foreclosure could not be had because the note was void, and we affirm.

In 1978, the appellees, the Coffmans, executed a note for $45,000 to Peoples Bank and Trust Co. of Russellville, Arkansas, secured by a mortgage of a tract of land. A later note of $ 10,000 to the bank was secured by the same land. Neither note exceeded the 10% limit on the rate of interest provided by our law when the notes were made.

The Coffmans fell behind in their payments to the bank. Mr. Brookshire, the appellants’ decedent, agreed to pay off the Coffmans’ indebtedness to the bank if they would give him two notes in the amounts of $42,000 and $19,000, each at 10% interest. They agreed to do so, thus in 1980 the Coffmans executed the two new notes to Brookshire secured by the same land as had secured the notes to the bank. Brookshire paid the bank the remaining balance of $42,903.76 and was assigned the notes the Coffmans had made in favor of the bank.

Mrs. Coffman testified that Brookshire told her he needed 18 xh% interest and that he would cancel out her indebtedness to the bank on the 10-year notes if she would give him the two 20-year notes, and her monthly payment to him would be about the same as it had been to the bank. She said she was under the impression the obligation to the bank had been taken care of by Brookshire and had been “released.” She also testified without contradiction that she paid substantial closing costs with respect to the new notes and mortgage to Brookshire.

The first complaint alleged default on the $42,000 note to Brookshire and alleged an indebtedness of $52,550.03, principal and interest. The complaint did not mention the contemporaneous $ 19,000 note from the Coffmans to Brookshire. The answer to that complaint incorporated the $19,000 note and alleged the defense of usury.

The complaint was then amended to seek foreclosure based on the $45,000 and $10,000 notes assigned to Brookshire by the bank. The Coffmans answered that the parties to the transaction intended that the notes to the bank would be cancelled.

The complaint was amended ultimately to seek foreclosure of the mortgage securing only the $45,000 note assigned to Brookshire by the bank.

The $45,000 note was not usurious when it was issued and owed to the bank. The appellants make a good argument if the original contract is not usurious, subsequent usurious transactions involving the same debt will not make the original contract void. The cases cited by the appellants are typified by Hughes v. Holden, 229 Ark. 15, 316 S.W.2d 710 (1958), and the following language from the opinion:

We have many times held that the taint of usury in a subsequent usurious contract does not invalidate a prior lawful contract, and the original contract may be enforced if clearly separated from the usury of the subsequent contract. [Citations omitted, emphasis added.]

In Hughes v. Holden, supra, the parties engaged in a non-usurious farm contract. After a novation, in which it was agreed Hughes would go from a cash rent to sharecrop basis, Hughes owed Holden money, and he asked for a statement of his account. When Holden gave Hughes his account statement, he added a usurious finance charge which had not appeared anywhere in the transaction previously. Hughes then sued to recover monies he had already paid to Holden under their original non-usurious contract, claiming the entire farm year transaction was invalid. Sager v. Steinbrenner, 99 Ark. 626, 139 S.W. 634 (1911), and Garvin v. Linton, 62 Ark. 370, 35 S.W.430 (1896), are similar examples of cases where we were able to say a non-usurious transaction was so separable from a usurious one as not to be affected by it.

In the case before us now, the contrary is true. But for the loan from Brookshire to the appellee, Brookshire would not have become the assignee of the note which is the subject of this action. Although the note was not usurious when it was made to the bank, and it clearly could have been enforced by the bank, its assignment to Brookshire was undoubtedly part of a usurious scheme. While the appellee argues we should regard the note as having been cancelled because that was the obvious intent of the parties when the new notes were executed, we need not go that far. In Brookshire’s hands, the note from the appellee to the bank became usurious. Our authority for that statement is found in our cases holding that we will scrutinize an entire transaction and we will not countenance an attempt to evade our pre-Amendment 60 usury law through tricky multiple transactions. See, e.g., Commercial Credit Plan v. Chandler, 218 Ark. 966, 239 S.W.2d 1009 (1951); Hartzo v. Wilson, 205 Ark. 965, 171 S.W.2d 956 (1943). Cf. McDermott v. Strauss, 283 Ark. 444, 678 S.W.2d 334 (1984). While in none of these cases are the facts the same as in the case before us, the principle applies.

The appellants ask that, if we find the transaction to be usurious under the pre-Amendment 60 law, we apply the penalty provided in Amendment 60 rather than declare the transaction void. The penalty is part of the substantive law applicable to the case which is determined at the inception of the transaction. See Fausett and Co. v. G. & P. Real Estate, 269 Ark. 481, 602 S.W.2d 669 (1980); Hayes v. First National Bank of Memphis, Tennessee, 256 Ark. 328, 507 S.W.2d 701 (1974).

Affirmed.

Purtle, J., not participating.