text:
    Lewis Edward DELLINGER, Jr., and Bette Sue Dellinger v. FIRST NATIONAL BANK OF RUSSELLVILLE and Real Estate Central, Incorporated
    97-1185
    970 S.W.2d 223
    Supreme Court of Arkansas
    Opinion delivered June 4, 1998

      E. H. “Buz” Herrod, for appellants.

      Michael T. Sherwood, P.A. and Wright, Lindsey & Jennings LLP, by; David M. Powell, for appellee Real Estate Central, Inc.
   Ray Thornton, Justice.

This case involves the right of redemption following a foreclosure sale. Appellants Lewis Edward Dellinger, Jr., and Bette Sue Dellinger defaulted in payment of debts secured by a residential mortgage. Following the foreclosure sale to appellee Real Estate Central, Inc. (REC), the Dellingers moved to set aside the sale and redeem their property. The Pulaski County Chancery Court denied the Dellingers’ petition and they appeal. The decision of the chancery court is affirmed.

When the Dellingers stopped making payments on their note with First National Bank of Russellville, the Bank filed a foreclosure complaint in chancery court seeking judgment against the Dellingers. The Bank attached a copy of the mortgage contract to its complaint, which provided that the Dellingers waived the statutory right of redemption. Although the Bank served process on each of the Dellingers by personal service, the Dellingers did not appear. The chancery court entered a foreclosure decree and awarded judgment in favor of the Bank. The decree provided that if the Dellingers did not satisfy the judgment within ten days, the property would be sold at public auction.

When the Dellingers did not pay the judgment, the Bank published notice of the proposed sale in The Daily Record, a newspaper of general circulation in Pulaski County. REC bought the residence for $24,000 at the commissioner’s sale. Claiming that they learned about the sale the following day, the Dellingers moved to set aside the sale and to redeem the property. The chancery court ruled that the Dellingers had waived their right to redemption and that it was not going to set aside the foreclosure sale because the Dellingers were charged with notice, sat on their rights, and allowed the foreclosure sale to occur. The chancery court subsequently entered an order confirming the sale. The Dellingers posted a supersedeas bond and remain in possession of the property.

On appeal, the Dellingers contend that the chancellor erred in not permitting them to redeem for two reasons: (1) they did not receive due process notice of the foreclosure sale; (2) they had not waived all rights of redemption.

The Dellingers first argue that Ark. Code Ann. § 18-49-104(c) (Supp. 1997) is unconstitutional because it does not provide for actual notice of the date of the foreclosure sale. Under that section, notice of a judicial sale of property must be published in a newspaper of general circulation. Although the abstract of the record shows that the Dellingers referred to the absence of notice before the chancery court, the abstract does not reflect that the Dellingers argued the constitutionality of the notice provision.

Where the abstract does not reflect that the argument, or any similar argument, was made in the trial court, we will not reach the merits of the argument on appeal. Barber v. Watson, 330 Ark. 250, 255-56, 953 S.W.2d 579, 583 (1997). Even constitutional arguments are waived on appeal if they are not raised at trial. Hodges v. Gray, 321 Ark. 7, 18, 901 S.W.2d 1, 6 (1995). Consequently, we cannot review this argument now.

Under their second point on appeal, the Dellingers contend that the chancellor erroneously determined that they had waived all rights of redemption to their property. The identifiable interests the Dellingers may have had are the statutory and equitable rights of redemption. See, e.g., Bentley v. Parker, 257 Ark. 749, 525 S.W.2d 460 (1975).

While they admit that the mortgage contract contained a waiver of the statutory right of redemption, the Dellingers argue that the statutory waiver cannot inure to the benefit of the buyer, REC, which was not a party to the mortgage. The Dellingers rely on a privity of contract theory.

The statutory right of redemption is contained in Ark. Code Ann. § 18-49-106 (1987). That section grants a mortgagor the right to redeem real property sold under a decree of the chancery court any time within one year from the date of sale by payment of the sale price, interest, and the cost of foreclosure and sale. Id. That section also provides that “[t]he mortgagor may waive the right of redemption in the mortgage or deed of trust so executed and foreclosed.” Id.

The Dellingers’ argument is without merit. We are guided by the rule set out in Wilkinson v. James, 164 Ark. 475, 478, 262 S.W. 319, 321 (1924), where we said the following:

When the mortgage or deed of trust contains the waiver, and the court renders a foreclosure decree, the right of redemption is gone by operation of the statute. In other words, the right of redemption after the sale is determined by the question whether or not there was in fact a waiver of the hen in the mortgage [.]

Id. Moreover, we have noted that a buyer of property at a judicial sale is entitled to the same protections that were held by the mortgagee under the mortgage. See, e.g., Watts v. Blair, 137 Ark. 143, 146, 208 S.W. 434, 434 (1919); see also, Paul Jones, Jr., Arkansas Titles § 655 (1935 & Supp. 1959) (“Purchaser at a mortgage foreclosure sale steps into the shoes of the mortgagee and is entitled to all the rights such mortgagee had under the mortgage.”) (internal citation omitted).

It is clear that this statutory waiver in a mortgage contract operates as an absolute bar to a mortgagor’s right to redeem within one year of sale. Were we to accept the Dellingers’ argument, REC, or any buyer at a judicial sale, would lose the protection of vested rights under the sale, including the right to have the sale confirmed. See generally Allen Hughes, Arkansas Mortgages § 433 (1930) (“The court cannot arbitrarily refuse confirmation and permit redemption by the mortgagor where the law gives no right of redemption or that right has been waived or otherwise cut off”) (internal citation omitted). The chancery court, therefore, did not err when it found that the Dellingers had waived their right to redemption.

Finally, the Dellingers contend that the chancery court abused its discretion in not extending the period of equitable redemption past the sale date on the basis of “gross inadequacy in the sale price.” See Fleming v. Southland Life Ins. Co., 263 Ark. 272, 564 S.W.2d 216 (1978). It is settled law that a judicial sale is not complete until confirmation. Id. at 275, 564 S.W.2d at 218. However, a sale may only be set aside before confirmation for a legitimate reason such as fraud, gross inadequacy in the sale price, irregularity in the circumstances surrounding the sale, impingement of the rights of the parties participating in the sale, or harm that may result on confirmation. See Looper v. Madison Guaranty Savings & Loan Ass’n, 292 Ark. 225, 729 S.W.2d 156 (1987); see also Fleming v. Southland Life Ins. Co., 263 Ark. 273, 564 S.W.2d 216 (1978). Thus, there is no absolute right to redeem at any time prior to confirmation and the decision to permit equitable redemption is vested in the sound discretion of the trial court. Fleming, 263 Ark. at 275, 564 S.W.2d at 218.

There is nothing in the abstract that shows the Dellingers argued the equitable right of redemption to the chancery court. As we said above, we cannot review arguments made for the first time on appeal. See Barber v. Watson, 330 Ark. 250, 255-56, 953 S.W.2d 579, 583 (1997), supra. Because the abstract does not show that this point was argued before the chancery court, we cannot address it here.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Ahmad EID v. STATE of Arkansas
    CR 98-573
    968 S.W.2d 61
    Supreme Court of Arkansas
    Opinion delivered June 4, 1998

      John Wesley Hall, for appellant.
    No response.
   Per Curiam.

Appellant, Ahmad Eid, by his attorney, John Wesley Hall, Jr., has filed a motion for belated appeal. Appellant was tried on February 12, 1998, and convicted of possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, and simultaneous possession of guns and drugs. Significantly, the judgment was not entered until February 20, 1998, but the notice of appeal was filed on February 18, 1998, making the appeal untimely.

Mr. Hall admitted in the motion that he untimely filed the notice of appeal due to a mistake on his part. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Accordingly, the motion for belated appeal is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Id.


text:
    Herman L. MORRIS v. STATE of Arkansas
    CR 96-1190
    970 S.W.2d 210
    Supreme Court of Arkansas
    Opinion delivered June 4, 1998

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., for appellee.
   Per Curiam.

The appellant, Herman Morris, appeals from the Circuit Court’s denial of his petition for a writ of mandamus and declaratory relief. In the petition, Morris argued that the Department of Correction should be ordered to calculate his parole-eligibility date in the same manner as before the issuance of an Attorney General’s Opinion in December of 1993. The Circuit Court, finding that the computation of Morris’s parole-eligibility date after the Attorney General’s opinion was consistent with the law, denied the petition. Morris now appeals that order. We affirm.

Prior to the Attorney General’s opinion, the Department of Correction erroneously computed Morris’s parole eligibility for the consecutive sentences he was serving for a series of convictions. At that time, the Department declared that Morris would be eligible for parole after serving one-third of his total sentence. According to that formula, Morris was already eligible for parole. After the Attorney General’s opinion, however, the Department of Correction recalculated his parole-eligibility date and concluded that Morris would have to serve one-half of his total sentence before becoming eligible for parole. This new calculation extended Morris’s parole-eligibility date until after the year 2000.

In the petition below, Morris contended that the Department of Correction, through the application of the doctrines of waiver, estoppel, and laches, was precluded from recalculating his parole eligibility to his detriment. He repeats only the waiver argument in this appeal. Specifically, Morris asserts that the Director of the Department of Correction is charged with knowledge of the criminal law, and having such knowledge, waived a proper calculation of Morris’s parole eligibility. According to Morris, such a waiver precluded the Director from recalculating the parole-eligibility date after the issuance of the Attorney General’s Opinion.

In response, the State notes that Morris, through a writ of mandamus, is seeking to compel the Department of Correction to compute his eligibility for parole incorrectly. The State argues, among other things, that Morris cannot benefit from the Department’s misinterpretation of the law. We agree.

We have previously held that determining parole eligibility is the prerogative of the Department of Correction. Abdullah v. State, 302 Ark. 506, 790 S.W.2d 440 (1990). Additionally, we have held that when the Department of Correction recomputes an erroneously calculated parole-eligibility date for a defendant serving multiple sentences, there is no Ex Post Facto violation unless the recomputation was pursuant to legislation passed after the defendant’s original sentence. See Gilmer v. Massey, 303 Ark. 634, 799 S.W.2d 526 (1990). The Eighth Circuit has held, moreover, that the doctrine of laches does not apply in a situation where correction officials discover and quickly correct an error in the computation of a defendant’s parole eligibility. See Cox v. Federal Bureau of Prisons, 643 F.2d 534 (8th Cir. 1981).

The question now before us, however, is whether the Department of Correction, whose erroneous interpretation of the law led to a miscalculation of Morris’s parole-eligibility date, can be precluded from correctly calculating his parole through an application of the waiver doctrine. We conclude that it cannot.

The Department of Correction’s recalculation, while to Morris’s detriment, is now consistent with the law. In a similar case, the Superior Court of New Jersey concluded that a parole board’s miscalculation of a prisoner’s parole-eligibility date could be corrected at any time. New Jersey State Parole Board v. Gray, 491 A.2d 742 (N.J. Super. 1985). The New Jersey Court opined:

Because Gray’s sentence was presumptively consecutive under the effective statute, the original parole eligibility date given by the Board was incorrect. Hence, the Board could correct that error at any time, and there was not due process error in so recalculating without prior notice to Gray or affording him a hearing. The miscalculation here did not result in an actual rescission of parole eligibility, but merely in a correction of the date and an adjustment to conform to the true terms of his eligibility. Gray could not have obtained an early release because of the Board’s error.

Similarly, the Colorado Court of Appeals ruled that a prisoner, whose parole-eligibility date was also corrected by a parole board after the Attorney General issued an opinion interpreting the applicable statute, did not have vested right in a favorable but erroneous interpretation of the law. People v. Perez, 895 P.2d 1090 (1994).

Morris has not lost the opportunity to be released on parole. Rather, his parole-eligibility date has been corrected to conform with a proper interpretation of the law. Accordingly, the Circuit Court was correct to conclude that a writ of mandamus and declaratory relief were not warranted.

Affirmed.


text:
    SEECO, INC., Arkansas Western Gas Company, and Southwestern Energy Company v. Allen HALES, Mary Nellie Hales, Robert G. Jeffers, David P. Taylor, and Taylor Family Limited Partnership “A”
    98-670
    969 S.W.2d 192
    Supreme Court of Arkansas
    Opinion delivered June 10, 1998

      Everett & Mars, by: Thomas A. Mars and John C. Everett; and Jeffrey L. Dangeau, for appellants.

      Gable Gotwals Mock Schwabe Kihle Gaberino, by: James M. Sturdivant, M. Benjamin Singletary, Oliver S. Howard, and Timothy A, Carney; Smith, Maurras Cohen & Redd, PLC, by: Don A. Smith and S. Walton Maurras; and Marilyn Eickenhorst, for appellees.
   Per Curiam.

Defendants/appellants Seeco, Inc., Arkansas Western Gas Company, and Southwestern Energy Company (referred to collectively as Seeco) have moved to stay the trial court’s order disqualifying one attorney, Michael Fitzhugh, from further participation in this case. Seeco also has moved for expedited consideration of the stay motion. Plaintiffs/appellees Allen Hales and others (referred to collectively as Hales) in their response agree that the motion to stay should be considered expeditiously. They further move this court to grant expedited consideration of the appeal itself and offer an accelerated briefing schedule.

We grant the motion for expedited consideration of the motion to stay. We temporarily stay the trial court’s order pending resolution of Seeco’s appeal on the disqualification of its counsel. We grant Hales’s motion to expedite this appeal. Any supplement to the partial record on file with this court, including the trial court’s order, shall be filed by Wednesday, June 17, 1998. Simultaneous briefs shall be filed by the parties by Wednesday, June 24, 1998. Responsive briefs shall be filed by Monday, June 29, 1998. There will be no reply briefs.


author: David Newbern, Justice.

text:
    IN the MATTER OF the ADOPTION OF Samantha Tara SAMANT, A Minor, Annette Rose Samant, Appellant
    97-1358
    970 S.W.2d 249
    Supreme Court of Arkansas
    Opinion delivered June 11, 1998

      Kaye H. McLeod, for appellant.
    No response.
   David Newbern, Justice.

Appellant Annette Rose Samant petitioned to adopt Samantha Tara Samant, the biological daughter of Ms. Samant’s husband, Dr. Sushil Raghunata Samant, and a surrogate mother, Rebekkah Ann Nelson. The Chancellor denied the petition because Ms. Samant and Samantha were only temporarily present in Arkansas to effect the adoption with, as the Chancellor put it, “no pretense of residency or domicile.” We reverse and remand because Ark. Code Ann. § 9-9-205 (Repl. 1993), which establishes jurisdiction for adoption, poses no permanent residency or domicile requirement.

Ms. Nelson entered the surrogacy arrangement with the Samants, and Samantha was born in California where Ms. Nelson resides. In a California proceeding, Dr. Samant was declared to be the father of Samantha, and Ms. Nelson and her husband relinquished any parental rights they may have had with respect to Samantha. Ms. Samant and Samantha came to Little Rock where they stayed in a hotel for thirty days prior to the filing of the adoption petition.

At the hearing on the petition, Ms. Samant and her husband made it clear that they were in Arkansas solely for the purpose of the adoption of Samantha because the California law required a six-month presence as a prerequisite to adoption and because New York, their home state, did not permit surrogacy agreements. Dr. Samant and Ms. Nelson filed “Consent to Adoption” forms on the same date as the petition.

Act 658 of 1991, entitled in part, “An Act ... to establish Minimum Contacts With the State for Adoptions in This State; and for Other Purposes,” is codified at Ark. Code Ann. § 9-9-205 (Repl. 1993). Subsection (a) deals with jurisdiction and provides:

Jurisdiction of adoption of minors:
(1) The petitioner or petitioners or legal parent or parents must have been physically present (resided) in the State of Arkansas for at least thirty (30) days immediately preceding the filing of a petition for adoption, relinquishment of parental rights, or execution of consent to termination of parental rights or adoption;
(2) Provided, however, that when the parental rights of the legal parent or parents have been relinquished or terminated more than thirty (30) days prior to the fifing of an adoption petition, or the consent of the legal parent or parents is not required under other laws relating to adoption, physical presence of the petitioner or petitioners or the individual to be adopted shall be sufficient to confer subject matter jurisdiction.

The Chancellor dismissed the adoption petition for lack of jurisdiction of the subject matter. She relied on In the Matter of the Adoption of Pollock, 293 Ark. 195, 736 S.W.2d 6 (1987), in which we were presented with facts similar to those here and held that our courts lacked jurisdiction in such cases because none of the parties “resided” in Arkansas. The operative statute in the Pollock case was Ark. Stat. Ann. § 56-205(a) (Supp. 1985), which provided:

Proceedings for adoption must be brought in the court for the place in which, at the time of fifing or granting the petition, the petitioner or the individual to be adopted resides or is in the military service or in which the agency having the care, custody, or control of the minor is located.

It was argued by the petitioners that the statute was a venue provision and not one controlling the court’s jurisdiction. We disagreed and held that, by requiring that the petitioner or the individual to be adopted reside in this State, the General Assembly intended that adoption jurisdiction be limited to instances in which this State “has a genuine interest or contact with at least one of the parties.” In the Matter of the Adoption of Pollock, 293 Ark. at 199, 736 S.W.2d at 8.

The Chancellor noted Act 658 and the words now permitting jurisdiction when the petitioner has been “physically present (resided)” here for more than thirty days. She concluded, however, that, by placing the word “resided” in parentheses after the words “physically present,” the General Assembly intended to require something more than physical presence as we held in the Pollock case.

We have observed the difference between the concepts of domicile and residence. See, e.g., Davis v. Holt, 304 Ark. 619, 623, 804 S.W.2d 362, 365 (1991); Hogan v. Davis, 243 Ark. 763, 766, 422 S.W.2d 412, 414 (1967); Stephens v. AAA Lumber Co., 238 Ark. 842, 845, 384 S.W.2d 943, 945 (1964) (“This Court has consistently held that the words ‘domicile’ and ‘residence’ are not synonymous.”); Wilhelm v. Taylor, 236 Ark. 85, 87, 364 S.W.2d 674, 675-76 (1963). “‘Residency’ means the place of actual abode, not a home which one expects to occupy at some future time.” Quinney v. Pittman, 320 Ark. 177, 185, 895 S.W.2d 538, 542 (1995). Domicile, however, requires actual residence plus the intent to remain in a particular place. Martin v. Hefley, 259 Ark. 484, 486, 533 S.W.2d 521, 522 (1976).

By requiring more than physical presence in the Pollock decision, we went beyond the traditional definition of “residence,” and, without referring to “domicile,” we seemed to require it as a basis for establishing a “genuine interest” of this State in the welfare of the person to be adopted. Our basis for doing so was our general interpretation of the intent behind the Revised Uniform Adoption Act, now codified, with amendments, at Ark. Code Ann. §§ 9-9-201 through 9-9-224 (Repl. 1993 and Supp. 1997), and our observation of the tendency of states “to seek greater assurance of protection to the child being adopted.” In the Matter of the Adoption of Pollock, supra (citing R. Leflar, American Conflicts Law § 239 (1977)).

In construing a statute, we presume that the General Assembly knew of our decisions made pursuant to the preexisting law on the same subject. McLeod v. Santa Fe Trail Transp. Co., 205 Ark. 225, 168 S.W.2d 413 (1943). The law has obviously been changed. The General Assembly has now effectively overruled our decision in the Pollock case by requiring only “physical presence.” When both subsections (a)(1) and (a)(2) of Act 658 are considered, it becomes clear that the parenthetical inclusion of the word “residence” in subsection (a)(1) adds nothing to the thirty-day physical-presence requirement.

Our rationale in the Pollock case was centered upon our conclusion that the General Assembly intended that Arkansas have more than minimum contact with the parties to the petition so that courts could serve the best interest of the child to be adopted. Even if we could say that the General Assembly meant to continue the law as we declared it in the Pollock case by adding the word “residence” to “physical presence” in subsection (a)(1) of the statute, when we look at the entire section it becomes clear that is not so. By not including the word “residence” in subsection (a)(2) of Act 658, thus permitting adoptions based upon physical presence of the petitioner or the person to be adopted when parental rights have been relinquished or terminated more than thirty days prior to the petition or where the consent of the legal parent is not required, the General Assembly has declared either that we were wrong in our assumption of the General Assembly’s intent or that its intent has changed. The addition of the word “residence” in subsection (a)(1) adds nothing beyond the traditional meaning of that word as described above.

Reversed and remanded.


author: David Newbern, Justice. Robert L. Brown, Justice, Annabelle Clinton Imber, Justice,

text:
    Darryl A. LITTLES v. Gina Felicia FLEMINGS (Foster)
    97-1099
    970 S.W.2d 259
    Supreme Court of Arkansas
    Opinion delivered June 11, 1998

      Perroni & James, by: Samuel A. Perroni and Carla Rogers Nadzam, for appellant.

      Kimberly D. Burnette, for appellee.
   David Newbern, Justice.

We must decide in this case whether one who has been adjudicated to be the father of a child is entitled to relief from future child-support obligations if scientific testing proves that he is not the child’s biological father. We hold that he is. We also hold, however, that in the circumstances presented he is not entitled to relief from his obligation for support already accrued.

Gina Felicia Flemings (now Foster), the appellee, sued Darryl A. Littles, the appellant, alleging that he was the father of her infant daughter. The Chancellor ordered a blood test for which Mr. Littles was to pay. Mr. Littles failed to pay for the test, and it was not conducted at that time. Therefore, the Chancellor entered judgment on February 2, 1982, adjudicating Mr. Littles to be the father of Ms. Foster’s daughter, and ordering him to pay $50 per month in child support. Mr. Littles did not appeal from that judgment.

In August 1994, Mr. Littles moved the Chancellor to order a paternity test and asserted that he had been unable to pay for the test ordered prior to the 1982 judgment. His motion was granted in October 1994, and the test proved that he was not the biological father of the child. Citing the test results, Mr. Littles moved the Chancellor in July 1995 to set aside the February 1982 paternity judgment. The Chancellor granted Mr. Littles’s motion in November 1995. We reversed in Flemings v. Littles, 325 Ark. 367, 926 S.W.2d 445 (1996)(“Flemings 7”).

The law applicable in 1995 when the Chancellor set aside the judgment was Ark. Code Ann. § 9-10-115(c) (Supp. 1995). It provided:

(1) Upon request for modification of a judicial finding of paternity or a support order issued pursuant to § 9-10-120, if the court determines that the original finding of paternity or support order did not include results of scientific paternity testing, consent of the parents, or was not entered upon a party’s failure to comply with scientific paternity testing ordered by the court, the court shall, upon request when paternity is disputed, direct the biological mother, the child, and the adjudicated or presumed father to submit to scientific testing for paternity, which may include deoxyribonucleic acid testing or other tests as provided by § 9-10-108.
(2) In no event shall the adjudication or acknowledgement of paternity be modified later than five (5) years after such adjudication or execution of such acknowledgement.

We held that the Chancellor had no authority under subsection (c)(1) to order the test in view of Mr. Littles’s failure to comply with the original testing order. Perhaps more important, we quoted subsection (c)(2), which precluded any modification of the “adjudication” after the passage of five years.

On September 23, 1996, upon remand, Mr. Littles petitioned to modify the child-support award on the basis of “changed circumstances.” Citing Ark. Code Ann. § 9-10-115 (Supp. 1995), he sought modification of the support award, as opposed to modification of the “adjudication” of paternity. He maintained that the support award should be reduced to zero, or to a nominal amount, because (1) the scientific testing proved he was not the child’s father; (2) he had married, fathered two children, divorced, and was paying $33 per week in court-ordered support of those children; and (3) he lived with his fiancee and was helping to support her five children.

The Pulaski County Child Support Enforcement Unit (“CSEU”), which had intervened in the case as Ms. Foster’s assignee, contested Mr. Littles’s petition. The CSEU also sought an increase in Mr. Littles’s support obligation, citing his increased wages, and an award for child-support arrearage. Mr. Littles claimed that Ms. Foster’s “unclean hands” barred the requested relief.

In an order filed on May 30, 1997, the Chancellor, relying on the fact that Mr. Littles was supporting his own children, refused to increase Mr. Litdes’s support obligation to Ms. Foster’s child. The CSEU does not appeal that decision.

The Chancellor also denied Mr. Littles’s request to reduce the child-support award to zero or a nominal sum on account of the scientific testing that established he was not the child’s biological father. The Chancellor stated that she “recognized the inequity” of requiring Mr. Litdes “to pay child support for a child that is not his.” She held, however, that she was constrained by our opinion in Flemings I to deny his request. In addition, the Chancellor ordered Mr. Littles to pay $4,436.50 in child-support arrearage and held that the “unclean hands doctrine,” advanced by Mr. Littles, did not apply.

On appeal, Mr. Litdes asserts that the Chancellor misinterpreted our decision in Flemings I and erred by refusing to reduce or eliminate his child-support obligation on account of the test results. He further claims that the Chancellor should have applied the

Although we affirm the Chancellor’s decision with respect to the arrearage, we must reverse the denial of the modification petition. Scientific testing proved that Mr. Littles is not the biological father of Ms. Foster’s daughter, and thus he was entitled under Ark. Code Ann. § 9-10-115(d) (Supp. 1995) to relief from any future child-support obligation.

Í. Modification of future child support

A chancery court “always has the right to review and modify child support payments in accordance with changing circumstances and may increase or reduce the payments as warranted in each case.” Thurston v. Pinkstaff, 292 Ark. 385, 390, 730 S.W.2d 239, 241 (1987). By statute, the Chancellor may modify an award ior future support, Ark. Code Ann. §§ 9-10-115(a); 9-12-314(b) (Supp. 1997), but she may not “set aside, alter, or modify any decree, judgment, or order which has accrued unpaid support prior to the filing” of the modification petition. §§ 9-12-314(c); 9-14-234(b).

Flere, the main “changed circumstance” cited by Mr. Littles in support of his modification petition was the discovery, 'through scientific testing, that he is not the biological father of Ms. Foster’s daughter. His argument, both in the Chancery Court and in this Court, is that the test results entitle him to a modification of the decree relieving him from future child-support obligations. As mentioned, Mr. Littles’s petition was filed on September 23, 1996, and the Chancellor’s order denying the petition was filed on May 30, 1997. On those dates, the following statute, which is dispositive of this point, was in effect:

If the court determines, based upon the results of scientific testing, that the adjudicated or presumed father is not the biological father, the court shall, upon the request of an adjudicated or presumed father, set aside a previous finding of paternity and relieve the adjudicated or presumed father of any future obligation of support or any back child support as authorized under § 9-14-234 as of the date of entry of the order of modification.

Ark. Code Ann. § 9-10-115(d) (Supp. 1995) (emphasis added).

Although a chancellor generally has discretion in support-modification cases, § 9-10-115(d) (Supp. 1995) removes such discretion where the change in circumstances is scientific proof that the “adjudicated father” is not the “biological father” of the child in question. In that situation, the statute mandates that an adjudicated father in Mr. Littles’s position receive prospective relief from a child-support judgment. Therefore, considering the plain language of § 9-10-115(d) (Supp. 1995), and the unrefuted scientific proof that Mr. Littles is not the biological father of Ms. Foster’s child, we hold that the Chancellor erred when she declined to terminate Mr. Littles’s obligation for future child-support payments.

The termination of Mr. Littles’s future child-support obligation is not, as the Chancellor seemed to believe, contrary to our decision in Flemings I. In that case, as mentioned, we reversed the Chancellor’s order setting aside the 1982 paternity judgment, holding that she lacked authority to do so under Ark. Code Ann. § 9-10-115(c) (Supp. 1995). As a result of that decision, the paternity judgment remains extant, and Mr. Littles remains the adjudicated father of Ms. Foster’s daughter.

Even an “adjudicated father,” however, is entitled by § 9-10-115(d) (Supp. 1995) to relief from future child-support obligations upon scientific proof that he is not the “biological father.” Mr. Littles’s right to relief under § 9-10-115(d) (Supp. 1995) is unaffected by his status as the “adjudicated father” of Ms. Foster’s child or by our holding in Flemings I precluding Mr. Littles from having the 1982 paternity judgment set aside.

The dissent contends that Mr. Littles has waived the point on which we reverse by not citing subsection (d) of § 9-10-115 in particular. Although we do not reverse a chancellor’s decision on the basis of an argument not raised by the appellant in the trial court and on appeal, Mr. Littles, in his petition for modification, argued that he was entitled to relief from future child-support obligations because scientific testing proved that he was not the child’s biological father. That is the very point that Mr. Littles has made on appeal, and it is the point on which we reverse. Although Mr. Littles failed to pinpoint subsection (d) of the statute, he cited § 9-10-115 (Supp. 1995), and we read all of it.

This is not a “sua sponte reversfal],” as the dissent claims. A court acts sua sponte when it takes action of “its own will or motion; voluntarily; without prompting or suggestion.” Black’s Law Dictionary 1424 (6th ed. 1990). Our reversal of the Chancellor is “prompted” by the argument that Mr. Littles made below and on appeal and that we determined to be meritorious in light of statutory authority.

We must also reject the dissent’s interpretation of § 9-10-115(d) (Supp. 1995) to the effect that the statute does not entitle Mr. Littles to relief from future child-support obligations because he is precluded by our holding in Flemings I from having the judgment of paternity set aside. According to the dissenting opinion, the “plain language” of the statute contains a “requirement” that the paternity judgment must be set aside “before” a father in Mr. Littles’s position may obtain relief from future child-support obligations. As the paternity judgment against Mr. Littles has not been set aside, the dissent argues, he is not entitled to relief from future child-support obligations.

We have quoted § 9-10-115(d) (Supp. 1995) above in its entirety, and nothing in the text of the statute supports the dissent’s proposed interpretation. We observed in Leathers v. Cotton, 332 Ark. 49, 52, 961 S.W.2d 32 (1998), that “[t]he first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language.” “[W]here the intention of the Legislature is clear from the words used, there is no room for construction, and no excuse for adding to or changing the meaning of the language employed.” Vault v. Adkisson, Judge, 254 Ark. 75, 77, 491 S.W.2d 609, 610 (1973)(citing Berry v. Sale, 184 Ark. 655, 43 S.W.2d 225 (1931)).

By its terms, § 9-10-115(d) (Supp. 1995) directs the chancellor, upon scientific proof that the “adjudicated or presumed father” is not the “biological father,” to do the following two things: (1) “set aside a previous finding of paternity,” and (2) “relieve the adjudicated or presumed father of any future obligation of support or any back child support as authorized under § 9-14-234 as of the date of entry of the order of modification.” Thus, an “adjudicated father” who proves that he is not the “biological father” may receive two forms of relief. He is entitled to have the paternity judgment set aside and to be relieved of future child-support obligations. However, nothing in § 9-10-115(d) (Supp. 1995) conditions one’s right to relief from a child-support obligation upon one’s ability to have the paternity judgment set aside.

Notwithstanding § 9-10-115(d) (Supp. 1995), we held in Flemings I that the Chancellor lacked the authority to set aside the paternity judgment because of the requirements found in § 9-10-115(c). The dissent, however, is incorrect as to the consequences that flow from Flemings I. Mr. Littles was precluded from having the paternity judgment set aside, but nothing in § 9-10-115(d) (Supp. 1995) supports the dissent’s position that Mr. Littles is therefore precluded from obtaining relief from any future child-support obligation. Only by “adding to or changing the meaning” of the text of the statute, Vault v. Adkisson, Judge, supra, could we accept the dissent’s position that Mr. Littles’s inability to have the paternity judgment set aside means that he cannot be relieved from his future child-support obligations. Our duty is to interpret § 9 — 10—115(d) (Supp. 1995) “just as it reads,” Leathers v. Cotton, supra, and thus we must reject the interpretation advanced by the dissenting opinion.

Closing on this point, we note that Ark. Code Ann. § 9-10-115 (Supp. 1995) was amended by Act 1296, § 8, of 1997, and that § 9-10-115(d) (Supp. 1995) has been recodified at § 9-10-115(g)(1) (Supp. 1997). One of the changes effected by the 1997 amendments concerns the point at which relief from the child-support obligation becomes effective. Under § 9-10-115(d) (Supp. 1995), the termination of the support obligation is effective only “as of the date of entry of the order of modification.” Under § 9-10-115(g)(1) (Supp. 1997), termination may take effect at an earlier point, i.e., “as of the date of the filing of the motion for modification.”

We are obliged in this case to apply § 9-10-115(d) (Supp. 1995) rather than the current version of the statute. The Act containing the 1997 amendments was approved without an emergency clause by the General Assembly. Therefore, the Act did not become effective until ninety days after the adjournment of the legislative session at which it was enacted. Steele v. Gann, 197 Ark. 480, 123 S.W.2d 520 (1939); Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (1937); Jumper v. McCollum, 179 Ark. 837, 18 S.W.2d 359 (1929). The session in which Act 1296 was approved adjourned on May 2, 1997, and thus the Act took effect on August 2, 1997, well after the filing of Mr. Littles’s petition for modification and the order denying it.

We cannot, at this point, apply Act 1296 retroactively to Mr. Littles’s benefit. Our duty is to construe statutes “as having only a prospective operation unless the purpose and intention of the Legislature to give them a retroactive effect is expressly declared or necessarily implied from the language used.” Arkansas Rural Med. Prac. Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 262-63, 729 S.W.2d 402, 404 (1987) (quoting Chism v. Phillips, 228 Ark. 936, 311 S.W.2d 297 (1958)). We find nothing in the text of Act 1296 to suggest that the General Assembly intended the Act to operate retroactively.

We reverse the Chancellor’s order denying Mr. Littles’s petition to modify the child-support award and direct the Chancellor upon remand to enter an order pursuant to Ark. Code Ann. § 9-10-115(d) (Supp. 1995) relieving Mr. Littles of any future child-support obligation as of the date of the entry of such order.

2. Arrearage

Before discussing Mr. Littles’s argument for relief from back child support, we must mention the language of § 9-10-115(d) (Supp. 1995) that required the setting aside of “any back child support as authorized under § 9-14-234 as of the date of entry of the order of modification.” Mr. Littles is entitled to no relief from back support pursuant to that provision because § 9-14-234 only allows, as an offset against future child support, any back support that accrued “during time periods, other than reasonable visitation, in which the noncustodial parent had physical custody of the child with the knowledge and consent of the custodial parent.” § 9-14-234(c) (Supp. 1995). There is no evidence or contention that Mr. Littles has ever had “physical custody” of the child.

Mr. Littles’s assertion is that the Chancellor erred by awarding $4,436.50 in arrearage to Ms. Foster and the CSEU because of Ms. Foster’s “unclean hands” resulting from her insistence that Mr. Littles is the father of her child despite the scientific evidence. He also cites her failure to have revealed, until she responded to discovery concerning the current petition, that Mr. Littles’s cousin was “possibly” the father of her child.

The “unclean hands” conduct alleged here is not of the sort referred to in Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822 (1991), cited in support of Mr. Littles’s argument on this point. In that case, a former wife frustrated her former husband’s right to visitation pursuant to a divorce decree. Nor is the situation here like the other cases in which we have allowed the equitable defenses of estoppel or unclean hands to have an effect on the payment of child-support arrearage when the noncustodial parent’s rights under the divorce decree have been frustrated. Those cases are listed and summarized in Roark v. Roark, 34 Ark. App. at 255-60, 809 S.W.2d at 825-28 (Rogers, J., dissenting). See also Stewart v. Norment, 328 Ark. 133, 941 S.W.2d 419 (1997), in which we discussed the effect of Ark. Code Ann. § 9-14-234 (Supp. 1997), which makes court-ordered child-support payments final judgments as they become due.

Mr. Littles argues that Ms. Foster “came into court with unclean hands and committed fraud on the court.” Even if Ms. Foster’s testimony was false, it was intrinsic fraud and thus not a ground for reversal. Lee v. Westark Inv. Co., 253 Ark. 267, 485 S.W.2d 712 (1972); Croswell v. Linder, 226 Ark. 853, 294 S.W.2d 493 (1956). See Sumter v. Allton, 278 Ark. 621, 648 S.W.2d 55 (1983).

Affirmed in part; reversed and remanded in part.

Brown, J., concurs.

Glaze and Imber, JJ., dissent.

Robert L. Brown, Justice,

concurring. Both the majority opinion and the dissent make the point that in Flemings v. Littles, 325 Ark. 367, 926 S.W.2d 445 (1996) (Flemings I), the issue of Littles’s paternity was decided against him, and that decision is law of the case. I joined a dissenting opinion in Flemings I because I was convinced that Littles did not have a blood test done in 1982 to establish paternity because he did not have the wherewithal to pay for it. The trial court found this to be the case in Flemings I. See Flemings I, supra (Brown and Roaf, JJ., dissenting). Of course, when DNA testing was eventually done, it proved conclusively that Littles was not the child’s father. I continue to adhere to that dissent and believe that the adjudication of his paternity was wrong. Hence, Littles should have no obligation to pay child support. For that reason alone, I concur with the result reached in the majority opinion.

Annabelle Clinton Imber, Justice,

dissenting. Although I agree with that part of the majority opinion which addresses Mr. Littles’s unclean-hands argument, I must respectfully dissent from that part of the opinion which addresses the modification of future child support. Neither party, either below or on appeal, has ever cited or argued Ark. Code Ann. § 9-10-115(d) (Supp. 1995), upon which the majority relies to reverse the Chancellor’s order denying Mr. Littles’s petition to modify the child-support award. Rather, the majority has sua sponte reversed on a ground not argued by appellant. In Cummings v. Boyles, 242 Ark. 923, 415 S.W.2d 571 (1967) (Supp. op. den. reh’g) (per curiam), this court reiterated that, although chancery cases are tried de novo, we do not reverse an order upon a statutory ground not argued by appellant. See also Country Gentleman, Inc. v. Harkey, 263 Ark. 580, 569 S.W.2d 649 (1978). Mr. Littles failed to cite or argue section 9-10-115(d), and thereby waived that point for reversal. The observation made by this court in Fancher v. Baker, 240 Ark. 288, 399 S.W.2d 280 (1966), is equally applicable to this case: “Not one line of the brief is devoted to that point[.]”

In any event, the majority’s application of section 9-10-115(d) to this case ignores that statute’s requirement that the previous finding of paternity must be set aside before the “adjudicated” father is entitled to relief from future child-support obligations: “the court shall, upon the request of an adjudicated or presumed father, set aside a previous finding of paternity and relieve the adjudicated or presumed father of any future obligation of support . . . .” Ark. Code Ann. § 9-10-115(d) (Supp. 1995) (emphasis added). In fact, the majority properly notes that the parties have not asked this court to reconsider Flemings I, in which we held that the chancellor lacked authority to set aside the 1982 paternity judgment. I agree with the majority that “the paternity judgment remains extant, and Mr. Littles remains the adjudicated father of Ms. Foster’s daughter.” Flemings I is the law of the case and the parties have not asked us to reconsider the Flemings I decision. See Vandiver v. Banks, 331 Ark. 386, 962 S.W.2d 349 (1998) (decision on first appeal is conclusive of every question of law or fact decided on former appeal); Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994) (same).

Pursuant to section 9-10-115(d), the previous finding of paternity must be set aside in order for Mr. Littles to be entitled to relief from future child-support obligations. Mr. Littles’s previous paternity judgment should not be and is not set aside by the majority opinion. Therefore, Mr. Littles is not entitled to relief from future child-support obligations under the plain language of section 9-10-115(d).

Because I would affirm the Chancellor’s order denying Mr. Littles’s petition to modify the child-support award, I must respectfully dissent.

Glaze, J., joins in this dissent.


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

text:
    STATE of Arkansas v. Hezile EARL, Jr.
    CR 97-1310
    970 S.W.2d 789
    Supreme Court of Arkansas
    Opinion delivered June 11, 1998

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellant.

      Mark F. Hampton, for appellee.
   Tom Glaze, Justice.

The State of Arkansas brings this interlocutory appeal of the trial court’s grant of appellee Hezile Earl, Jr.’s motion to suppress evidence seized during the warrant-less search of the cab of his truck after his having been stopped for a routine traffic violation. The State’s arguments for reversal challenge the trial court’s ruling as a matter of law because it failed to find that the warrantless search of Earl’s truck was proper since the search met an exception to the warrant requirement. Because the questions presented by the State necessarily turn on the interpretation and application of our criminal rules, particularly Ark. R. Crim. P. 5.5, we conclude that we have jurisdiction to hear the instant appeal, as our holding in this case will establish important precedent and is necessary for the correct and uniform administration of justice. Ark. R. App. P.—Crim. 3(c); see State v. Gray, 330 Ark. 364, 954 S.W.2d 502 (1997).

The State charged Earl by felony information with possession of a controlled substance with intent to deliver. Earl responded by filing motions to suppress the cocaine seized from the prescription bottle found in the cab of his truck. The trial court heard Earl’s motion on July 21, 1997.

The State’s only witness as to the events which transpired on the morning in question was Officer Ralston of the Des Arc Police Department. He testified to the following. At approximately 3:00 a.m. on August 16, 1996, he observed Earl’s truck run a stop sign. When the truck passed the officer, he recognized Earl as someone he had stopped on two prior occasions. Officer Ralston turned on his headlights and proceeded to stop the truck for the violation. Earl pulled over, immediately exited his vehicle, and walked towards the patrol car. After radioing for backup, Ralston departed his vehicle and met Earl. Ralston said that Earl was “mouthy,” wanted to know why he had been stopped, and took an offensive posture. According to the officer, Earl was also belligerent and acting nervous.

Officer Ralston testified that he asked Earl to provide his license, registration, and proof of insurance, but Earl ignored him. Ralston related that he became concerned for his safety because he was alone. He said he was concerned, too, because Earl had filed a federal lawsuit alleging harassment against the city and the police department. Officer Ralston stated that he instructed Earl to stand at the back of his truck, which after some discussion, Earl did. Although Ralston did not pat down Earl for possible weapons, Ralston proceeded to search for weapons that might be located in the truck. Ralston testified that he spotted a prescription bottle in an open caddy in the cab. He picked up the amber-colored bot-tie, took it outside of the cab, and shined his flashlight into it. Seeing a suspicious substance, Ralston opened the bottle; the substance ultimately was identified as crack cocaine. Ralston testified that he then placed Earl under arrest for possession of a controlled substance, handcuffed him, and afterwards, patted Earl down for weapons. Ralston stated his backup officers arrived after he had handcuffed Earl.

At the conclusion of the above testimony, the trial court ruled that the evidence seized by Officer Ralston should be suppressed. In so deciding, the court stated that, while it acknowledged that Earl was not the easiest person to deal with, because it was a traffic stop, “[T]he officer went beyond his authority once he opened the truck door . . . .” Earl then moved for a dismissal of the charges based on the lack of evidence. The trial court granted Earl’s dismissal motion, and the State appeals the trial court’s rulings.

The State argues first that the evidence found in Earl’s truck was the result of a legal warrantless search under Ark. R. Crim. P. 5.5. Alternatively, the State contends that the search was permissible under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny. Because we find the State’s first argument persuasive, we reverse the trial court’s grant of Earl’s motion to suppress, and we remand for trial.

Arkansas Rule of Criminal Procedure 5.5 (1997) provides:

The issuance of a citation in lieu of arrest or continued custody does not affect the authority of a law enforcement officer to conduct an otherwise lawful search or any other investigative procedure incident to an arrest.

(Emphasis added.) The plain language of Rule 5.5 permits a police officer to conduct a lawful search where the officer could either arrest an individual or detain him for further investigation. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806 (1996) (citing Delaware v. Prouse, 440 U.S. 648, 659 (1979)). Ark. R. Crim. P. 4.1 gives officers the authority to arrest without a warrant. Under Rule 4.1, a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed any violation of law in the officer’s presence. Ark. R. Crim. P. 4.1 (a)(iii) (1997). (Emphasis added.) In essence, Rule 4.1 tracks the holdings of Prouse and Whren, recognizing that officers have probable cause to stop and arrest in such situations. Therefore, construing the authority conveyed in Rule 4.1 in conjunction with the discretionary power to search in Rule 5.5, we hold that where an officer has the probable cause to arrest pursuant to Rule 4.1, he may validly conduct a search incident to arrest of either the person or the area within his immediate control under Rule 5.5. See U.S. v. Robinson, 414 U.S. 218 (1973). The officer’s actions need no other justification. Id.; accord State v. Knowles, 569 N.W.2d 601 (Iowa 1997), cert. granted, 118 S.Ct. 1298 (1998) (interpreting Iowa Code section 805.1(4) as providing authority to search when a traffic violation has occurred that would constitute grounds for an arrest).

Here, Officer Ralston indisputably observed Earl’s truck run a stop sign. Thus, Ralston was authorized to arrest Earl at the moment he stopped Earl’s truck, regardless of the fact that this was only a minor traffic violation. Since Ralston had the power to arrest Earl, pursuant to Rules 4.1 and 5.5, Ralston could lawfully conduct a search incident to an arrest, and he did. Simply because a police officer’s decision is to issue a citation in lieu of a custodial arrest, that does not affect the officer’s right to conduct a search of the same scope as a search incident to arrest, as a citation is equivalent to a custodial arrest for authority to search purposes under Ark. R. Crim. P. 5.5.

The dissent contends that in order for the search of Earl’s truck to be valid, Earl must have been arrested prior to the search. The dissent is mistaken. This court, as well as the Supreme Court, has held that a search is valid as incident to a lawful arrest even if it is conducted before the arrest, provided that the arrest and search are substantially contemporaneous and that there was a probable cause to arrest prior to the search. Rawlings v. Kentucky, 448 U.S. 98, 111 (1980); Brunson v. State, 327 Ark. 576-A, 940 S.W.2d 440 (1997). (Emphasis added.) Officer Ralston clearly had probable cause to place Earl under arrest prior to the search, since Earl committed a traffic violation in the officer’s presence. Furthermore, Earl’s formal arrest quickly followed on the heels of the challenged search of Earl’s automobile. Just like the Supreme Court concluded in Rawlings, we do not believe it particularly important either that the search preceded the arrest rather than vice versa. Rawlings, 448 U.S. at 111.

Further support for our holding is found in Robinson, supra, which is another traffic-offense case. There, the Supreme Court adopted a categorical rule that when a valid custodial arrest occurs, a search incident to arrest is automatically permissible. The fact of the arrest establishes the authority to search. Id. at 235. Similarly, in Gustafson v. Florida, 414 U.S. 260, 266 (1973), the Court held a search incident to arrest may be conducted even when the custodial arrest is for driving without a driver’s license, a minor traffic violation. It is well to note that the Supreme Court in Robinson recognized that there is a distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons under Terry. As the court explained, by quoting language from Terry, “The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, is also justified on other grounds, and can therefore involve a relatively extensive exploration of the person.” Robinson, 414 U.S. at 227 (citation omitted). A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Id. at 227-228. As is clear from the Court’s statements, a more intrusive search is permissible under the search incident to arrest exception as compared to the Terry exception to the warrant requirement.

Though not challenged in this case, it might be said that Officer Ralston’s search was permissible up to the point of opening the closed prescription bottle. However, the Supreme Court decided this issue in New York v. Belton, 453 U.S. 454, 460 (1981), where it held that an officer making a lawful custodial arrest of an occupant of a vehicle may, as a contemporaneous incident of that arrest, search the passenger compartment of the vehicle, including the contents of any containers found within the passenger compartment. The Court reasoned that “if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.” Id.

In conclusion, Officer Ralston, under our rules of criminal procedure 5.5 and 4.1, was legally permitted to arrest Earl for the traffic violation. The ability to issue a citation in lieu of arrest gave Ralston the additional authority to do a full search incident to an arrest. Under New York v. Belton, supra, Ralston had the power to search the contents of the prescription bottle in which he found the cocaine. The trial court improperly concluded that because it was a mere traffic stop, the police officer had no authority to search Earl’s truck, which as we have just explained, was entirely permissible under Rules 4.1 and 5.5. Hence, the trial court erred in granting Earl’s motion to suppress. Having determined the search to be valid, we need not address the State’s alternative argument.

We are aware that the American Bar Association has recommended that Rule 5.5 and similar rules employed in other jurisdictions not be used due to questions pertaining to its constitutional validity. However, Rule 5.5’s constitutionality is not before us. Thus, any comment by this court would be advisory in nature and inappropriate.

Reversed and remanded.

Corbin, J., concurs; Newbern, Brown, and Imber, JJ., dissent.

Robert L. Brown, Justice,

dissenting. We granted this appeal by the State because it raises the issue of whether a police officer may conduct a warrantless search of a vehicle following a traffic violation by the driver. I disagree with the majority that such a search is authorized under these facts because (1) no custodial arrest for a traffic violation occurred prior to the search, and (2) the police officer’s safety was not at issue as evidenced by the fact that the police officer did not pat down Hezile Earl after he got out of his car. I would affirm the trial court’s decision to suppress the evidence.

The facts are that at about 3:00 a.m. on August 16, 1996, Des Arc Police Officer Chris Ralston stopped Hezile Earl, Jr., in his pickup truck for running a stop sign. Officer Ralston knew Earl and had stopped him twice before for traffic violations on different dates but had not searched his truck. He stated Earl was always “belligerent” when he was stopped by police officers and described him as a “racist.” (Officer Ralston is white. Earl is black.)

On August 16, 1996, prior to the stop, Officer Ralston was following Earl’s pickup truck and another vehicle with his lights off and saw him run a stop sign. The police officer stopped Earl’s truck and described what happened next:

When I stopped Mr. Earl, he pretty much immediately got out of his own vehicle, started toward me. I radioed for backup since I work alone. I got out and met Mr. Earl. Mr. Earl was mouthy. He was wanting to know why I stopped him. He was taking an offensive posture. I tried to explain why I stopped him. He was very belligerent. He was acting nervous. I have had two previous traffic stops with Mr. Earl and [I am] very familiar with Mr. Earl, and something was peculiar, he was acting very peculiar.

Officer Ralston then said Earl’s mood changed, and he picked up a soccer ball:

He [Earl] said “look at the soccer ball, it’s for my daughter.” And just his, he was trying to keep me from going to the front. When I would start going toward the cab of his truck, he kept trying to get me to stay away from his cab, which is something I hit on.

Officer Ralston stated that Earl would not “stay put,” and he was asked why he did not handcuff him. His response was:

Because at that time he only had run a stop sign. I normally don’t place them under arrest and put them in cuffs for running a stop sign.

Officer Ralston further admitted that he had not patted Earl down at this point and that this was “a mistake” on his part.

The police officer had Earl stand at the back of the truck, and he went to the cab of the truck, opened the door, reached under the seat in search for weapons, and while doing so saw a prescription bottle in a “cubby space” of the dashboard. He opened the bottle and assessed the contents as either crack cocaine or methamphetamine. According to Officer Ralston, at that time he placed Earl “under arrest” for possession of a controlled substance. He also prepared a traffic citation for running the stop sign, which Earl refused to sign.

The fallacy in the majority opinion is that Officer Ralston did not make an arrest until after he found the prescription bottle. He admits that. The majority, however, erroneously relies on custodial arrest decisions by the United States Supreme Court to bolster its conclusion that a mere traffic citation authorizes the underlying search. See, e.g., New York v. Belton, 453 U.S. 454 (1981); United States v. Robinson, 414 U.S. 218 (1973). These cases do not authorize carte blanche searches absent a custodial arrest. In United States v. Robinson, supra, the Court’s decision regarding searches incident to arrest was premised on the fact that the officer had probable cause to arrest the defendant and had effected a full-custody arrest. The Court held:

A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but it is also a “reasonable” search under that Amendment.

Robinson, 414 U.S. at 235 (emphasis added). There was no custodial arrest for a traffic violation in the instant case. Furthermore, the Court in Robinson expressly decided not to address the issue of whether the same rule applied for “routine” traffic stops where the police officer intended to issue only a traffic citation.

To the same effect is New York v. Belton, 453 U.S. 454 (1981). In Belton, the Court expanded Robinson’s search-incident-to-a-custodial-arrest rule to include the passenger compartment of a vehicle as well as to those containers located within that area. Our court has followed this principle announced in Belton. See Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). But a custodial arrest was still the threshold requirement. Stated simply, the instant case manifestly does not involve a custodial arrest that would support this search.

Whren v. United States, 517 U.S. 806 (1996), is also relied on by the majority but it, too, is inapposite to the instant case. Whren concerned whether a police officer’s stop of a vehicle, where he was able to see two plastic bags of crack cocaine in the passenger’s hands at the time of the stop, was an unreasonable search under the Fourth Amendment. The Court rejected the petitioners’ contention that the police officer’s traffic-violation justification for the stop, which occurred in a “high drug area,” was an unconstitutional pretext when the police officer lacked probable cause to believe they were involved in illegal drug-dealing activity. Rather, the Court held that a temporary detention was reasonable due to the existence of probable cause to believe a traffic violation had occurred. The stop, coupled with the crack cocaine in the passenger’s hands in plain view of the police officer, was sufficient to warrant seizure of the cocaine. Those facts clearly differ from the instant case where the police officer commenced a vehicular search, after the driver was out of the car, and did so based on mere suspicion that Earl was hiding something. In fact, Officer Ralston testified that he was looking for a weapon. The Whren case is simply not controlling.

The majority relies on Ark. R. Crim. P. 5.5 which reads:

The issuance of a citation in lieu of arrest or continued custody does not affect the authority of a law enforcement officer to conduct an otherwise lawful search or any other investigative procedure incident to an arrest.

It further relies on Ark. R. Crim. P. 4.1(a) which reads in part:

(a) A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed
(i) a felony;
(ii) a traffic offense involving:
(A) death or physical injury to a person; or
(B) damage to property; or
(C) driving a vehicle while under the influence of any intoxicating liquor or drug;
(iii) any violation of law in the officer’s presence [.]

Our Rule 5.5 was adopted in 1976 pursuant to an American Bar Association recommendation. See American Bar Association, Standards Relating to Pretrial Release § 1.4 (Approved Draft, 1968). The ABA, however, reversed itself in 1986. After substantially revising the standard from which our Rule 5.5 was derived, the ABA issued this commentary:

The original standard read: “Nothing in these standards should be construed to affect a law enforcement officer’s authority to conduct an otherwise lawful search even though a citation is issued.” This language has been changed because, as originally drafted, the standard could be interpreted as authorizing a search incident to an arrest even though the officer does not place the accused under arrest but instead issues a citation. While the fourth amendment permits searches incident to even those arrests that need not result in a trip to the stationhouse, there must in fact be an arrest in order to justify a search incident to it. Thus, a police officer who decides ab initio to issue a citation cannot justify a search of the accused on the ground that the officer could have arrested the accused but did not.

2 American Bar Association, Standards for Criminal Justice 10.33 (2d ed. Supp. 1986)(citations omitted).

Here Officer Ralston testified that he had not arrested Earl for the traffic violation prior to the search, and after the search, he did not arrest him for the traffic violation. Earl’s arrest was due to possession of a controlled substance. And based on the police officer’s rendition of events, a traffic ticket had not been issued before the search commenced though one was issued apparently after the arrest for drug possession. Rule 5.5 is constitutionally infirm in my judgment in that the Robinson-Belton line of cases required a custodial arrest for a traffic violation prefatory to a search. Clearly, this court has simply failed to repeal a rule that is unconstitutional and, as with statutes, we should not give Rule 5.5 an interpretation so absurd as to provide carte blanche authority for all searches incident to traffic citations even when officer safety is not at issue. See, e.g., Mings v. State, 316 Ark. 650, 873 S.W.2d 559 (1994); Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993). That, however, will be the effect of today’s decision.

With regard to Rule 4.1(a), it is obvious that the rule emphasizes arrests for traffic violations in certain limited circumstances. But it does permit warrantless arrests when a police officer observes “any violation of law in the officer’s presence.” Ark. R. Crim P. 4.1 (a)(iii)- Again, no arrest was made for running the stop sign. It was only after Officer Ralston found the prescription bottle and opened it that an arrest was made, and that arrest was for possession of a controlled substance.

Absent a traffic-related arrest or reasonable cause to believe another crime has been committed, searches must be limited to officer-safety searches under Terry v. Ohio, supra. This is clearly the law in the majority of jurisdictions. See, e.g., United States v. Evans, 994 F.2d 317 (7th Cir. 1993)(upholding the search of a vehicle based on furtive movements as well as the defendant’s decision to park in front of a house known to be involved in drug trafficking), cert. denied, 510 U.S. 927 (1993); United States v. Richards, 967 F.2d 1189 (8th Cir. 1992) (upholding the search of the passenger compartment of a motor home when the defendant, who was a released felon, was nervous and when officers saw .22 caliber rifle cartridges on the floor); People v. Innis, 604 N.E.2d 389, 392 (Ill. App. 4 Dist. 1992) (“[T]here may be justification to search a vehicle stopped for a minor traffic offense, if there is a ‘reasonable and articulable suspicion’ the defendant is armed and dangerous.”), citing Terry v. Ohio, 392 U.S. 1 (1968); Sanders v. State, 576 N.E.2d 1328 (Ind. App. 1 Dist. 1991)(requiring suppression of marijuana discovered in defendant’s automobile when the officers did not reasonably believe that the defendant, who was stopped for making two right turns without using a signal, placed them in danger).

Certainly, the safety of police officers while conducting traffic stops is a paramount consideration that has been recognized by this court. See, e.g., Shaver v. State, 332 Ark. 13, 963 S.W.2d 598 (1998); Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997), reh’g denied, 327 Ark. 576-A, 940 S.W.2d 440 (1997). However, in this case, the search was conducted not for Officer Ralston’s safety, but based solely on Earl’s “suspicious” conduct in distracting Officer Ralston from approaching the front of the truck. In fact, Officer Ralston was not concerned enough for his safety to pat Earl down before focusing his attention on the interior of the truck’s cab compartment. Had Officer Ralston’s safety been at issue, the majority’s decision would be correct. But such is not the case.

Both the Fourth Amendment to the U.S. Constitution and Article 2, § 15 of the Arkansas Constitution contemplate that a judge issue a search warrant for searches except in narrowly drawn instances. See, e.g., Shaver v. State, supra (officer safety); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997)(plain view); Hazelwood v. State, 328 Ark. 602, 945 S.W.2d 365 (1997) (search incident to arrest). Searches by a police officer incident to a citation for a routine traffic violation fall outside of these warrant-exception categories.

I would affirm the order of the trial court, and for that reason I respectfully dissent.

Newbern and Imber, JJ., join.

       The dissent does cite to Brunson v. State, but only for the proposition that the safety of police officers while conducting traffic stops is a paramount consideration that this court has recognized.

       We note that, while the state constitutional issue has not been raised in this case, we are aware that some courts, as a matter of state law, have declined to permit searches in as broad a set of circumstances as Belton would authorize. See State v. Hernandez, 410 So.2d 1381 (La. 1982); Commonwealth v. Toole, 389 Mass. 159, 44 N.E.2d 1264 (1983); State v. Pierce, 136 N.J. 184, 642 A.2d 947 (1994); People v. Blasich, 73 N.Y.2d 673, 543 N.Y.S.2d 40, 546 N.E.2d 40 (1989); State v. Brown, 63 Ohio St.3d 349, 588 N.E.2d 113 (1992); State v. Kirsch, 69 Or. App. 418, 686 P.2d 446 (1984); State v. Ringer, 100 Wash.2d 686, 674 P.2d 1240 (1983); see also Lafave, Search And Seizure, § 7.1(a) (3rd Ed. 1996). Unlike the foregoing jurisdictions, Belton has been consistently followed in our decisions. E.g., Wright v. State, 327 Ark. 558, 940 S.W.2d 432 (1997); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995); State v. Resinger, 297 Ark. 405, 762 S.W.2d 787 (1989); Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).

       I do acknowledge that the Supreme Court of Iowa has upheld a nearly identical statutory provision to our Rule 5.5 against constitutional attack in a 5-4 decision. However, the United States Supreme Court recendy granted a petition for writ of certiorari to the Iowa Supreme Court to review the case. See State v. Knowles, 569 N.W.2d 601 (Iowa 1997), cert. granted, 118 S. Ct. 1298 (1998).


author: Tom Glaze, Justice.

text:
    STATE of Arkansas v. ONE 1993 TOYOTA CAMRY, VIN. No. 4T1SK12EXPU283054
    97-1394
    969 S.W.2d 663
    Supreme Court of Arkansas
    Opinion delivered June 11, 1998

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellant.
    No response.
   Tom Glaze, Justice.

In this appeal, we are called upon to interpret Ark. Code Ann. § 5-64-505 (a)(4)(h) (1997). Section 5-64-505 (a) provides for the forfeiture of vehicles and other conveyances when they are used to transport controlled substances. Subsection (a) (ii) of the statute generally provides what an owner of a vehicle that was used to transport drugs must show to prevent the vehicle’s forfeiture. The trial court denied forfeiture in this case, and the State brings this appeal under Ark. Code Ann. § 16-106-109(a) (1997), which authorizes the State to prosecute appeals as a civil litigant. We have designated in rem forfeiture actions, such as the one now before us, civil proceedings. See Sims v. State, 326 Ark. 296, 930 S.W.2d 381 (1996); see also State v. Gray, 322 Ark. 301, 908 S.W.2d 642 (1995).

This case arose from the State’s controlled purchase of cocaine from an individual named Travis Jones. Jones used a 1993 Toyota Camry vehicle owned by his girlfriend, Latoria Thomas, when he sold the cocaine. After the drug transaction, authorities obtained a search warrant of Jones’s residence. Initially, Jones was not present when the officers began executing the search warrant. During the search, however, Jones drove by in the 1993 Toyota Camry. The officers asked Jones to stop, but he sped off. Jones was later stopped and searched. Officers found six plastic bags of cocaine-based drugs in the car. It was also determined that the car was registered to Latoria Thomas at Jones’s house address.

The State subsequently filed this case, seeking forfeiture of the Toyota Camry under § 5-64-505 (a) (4). Thomas answered, whereby she denied that she gave Jones permission to use her car, or that she had knowledge that the vehicle had ever contained drugs. She additionally denied any knowledge that the vehicle had been used to transport drugs. The trial court held a hearing on the State’s petition at which the State presented the testimony of three officers — one who had worked the earlier drug buy and executed the search warrant, and the two responsible' for stopping Jones and searching the Camry. Thomas testified, asserting her innocent knowledge of Jones’s illegal use of her car. The trial court denied the State’s petition for forfeiture and ordered the State to release the vehicle to Thomas, from which the State filed its notice of appeal. We note that Thomas makes no appearance in this appeal, and files no brief.

The State asserts that, for it to obtain forfeiture of Thomas’s Toyota Camry under § 5-64-505(a)(4), it was required only to show that the Camry had been used to transport drugs. After the State presented this proof, it contends, under § 5-64-505 (a)(4)(h), Thomas, as owner of the car, had to go forward and show (1) that she had no knowledge of the car’s illegal use, and (2) that Jones, who had possession of the car with Thomas’s permission, had no such knowledge as well. The trial court rejected the State’s construction of the statute, stating that such a construction “would make it too easy for property that people have worked for and paid for to be seized and taken from them.” The trial court continued, “Even if there is someone who’s using their vehicle for some illegal purpose, I don’t think the owner can control the use of their property when they’ve allowed someone to use it not knowing what the people are going to do.”

In construing forfeiture provisions, as those set out above, we are to construe them narrowly because they are penal in nature. Beebe v. State, 298 Ark. 119, 765 S.W.2d 943 (1989). However, even penal statutes will not be construed to reach absurd results. Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985). We conclude the statutory forfeiture provisions at issue here clearly set out the burdens of proof that the State initially and an owner in defense must meet. In this respect, the State, under § 5-64-505 (a) (4), was required to show that the Toyota Camry was used to transport illegal drugs for sale purposes. Here, the* State met its burden, offering unrebutted evidence that showed Jones had possessed and sold illegal drugs while using Thomas’s vehicle. After the State met its burden, Thomas, to avoid her vehicle’s forfeiture, was then required under 505(a)(4)(h) to show (1) the forfeitable acts or omissions occurred without her knowledge or consent and (2) such acts or omissions occurred without the knowledge or consent of Jones, who had Thomas’s permitted possession of her car.

In the instant case, Thomas testified that she never gave Jones permission to drive her car, but the trial court apparently disbelieved Thomas’s testimony and expressly found that Jones had her permission. The trial court erred, however, when it ruled that the' forfeiture statute did not compel Thomas to show not only that she lacked knowledge that her car was illegally used to transport drugs, but also

In conclusion, we mention for comparative purposes, the federal government’s forfeiture law, 21 U.S.C. § 881, which is similar, but, at the same time, significandy different from our § 5-64-505. Like Arkansas law, § 881(a)(4) provides that a vehicle used to transport a controlled substance for the purpose of sale is subject to forfeiture, and it is the government’s burden to prove this prohibited use of the vehicle. See One Blue 1977 AMC Jeep CJ-5 v. United States, 783 F.2d 759 (8th Cir. 1986). Once the government shows that such a drug violation occurred through the use of the subject vehicle, the vehicle’s owner must then demonstrate by a preponderance of the evidence that the property is not subject to forfeiture, or that a defense to forfeiture applies. Id. at 761.

Again, like Arkansas’s forfeiture law, § 881(c) provides that the owner claiming the property has the right to the return of it by showing he or she had no knowledge of the vehicle’s illegal use. But, unlike Arkansas’s § 5-64-505 (a)(4)(h), § 881(B) only requires the owner to show that the illegal drug use of the car occurred when the vehicle was in another’s unlawful possession. In other words, the federal law does not require the owner to prove that the person in possession had no knowledge of the vehicle’s illegal use.

While the federal law may seem more sensible and reasonable to apply in these in rem forfeiture situations, it is § 5-64-505 and its elements that are before us, and we must construe it in accordance with its plain language. Thus, we reverse and remand.

       The relevant text of § 5-64-505(a)(4)(ii) reads as follows:
      (a) The following are subject to forfeiture:
      (4) All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in subdivision (a)(1) or (2), but:
      * * *
      (ii) No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without his knowledge or consent and without the knowledge or consent of anyone having possession, care, or control of the conveyance with the owner’s permission;

        * * *

      (Emphasis added.)

       Although Thomas denied she had given Jones permission to drive her car on the day he used it illegally, the trial court apparently did not believe her, because she conceded Jones had previously driven the car, and she admitted that she kept her keys hung on a rack in the kitchen of their house.

       The full text of § 881(a)(4)(B) and (C) provides as follows:
      (a) Subject property
      The following shall be subject to forfeiture to the United States and no property right shall exist in them:
      * * *
      (4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1)(2), or (9), except, that
      * * *
      (B) no conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States, or of any State; and
      (C) no conveyance shall be forfeited under this paragraph to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge, consent, or willful blindness of the owner.


author: Robert L. Brown, Justice.

text:
    Jack BEDFORD and Jack D. Bedford, Inc. v. James FOX and Patricia Fox, Husband and Wife
    97-1425
    970 S.W.2d 251
    Supreme Court of Arkansas
    Opinion delivered June 11, 1998

      Lisle Law Firm, P.C., by: Chris Lisle, for appellants.

      Everett & Mars, by: Thomas A. Mars, for appellees.
   Robert L. Brown, Justice.

This case involves the issues of (1) whether a contract is usurious, and (2) assuming it is, whether the appellees, James Fox and Patricia Fox, are estopped from raising the usury claim. Because we are convinced that the proof clearly supports an estoppel defense, we reverse and remand.

On January 13, 1997, James Fox and Patricia Fox, who are husband and wife, filed an amended complaint for declaratory judgment against appellants Jack Bedford and Jack D. Bedford, Inc. The Foxes alleged that they entered into an agreement with Color Mate Photo, Inc., on March 18, 1992, to purchase the photography business owned by that corporation. Color Mate Photo, Inc., was owned by Jack Bedford. The name of the corporation was subsequently changed to Jack D. Bedford, Inc. According to the Foxes, Bedford knew that the interest rate charged on two installment promissory notes executed on that date exceeded what is permissible under Article 19, § 13 of the Arkansas Constitution, as amended by Constitutional Amendment 60. The Foxes asserted that irrespective of this knowledge, the parties executed the agreement, and the Foxes paid the illegal interest required under the notes. The Foxes asked for a judgment declaring the notes usurious and void as to the unpaid interest plus an award of twice the amount of the interest paid.

At trial, the testimony was in conflict. Bedford testified that in November 1991, he and the Foxes agreed that the photography business would be sold for the sum of $350,000. He testified that his attorney, David Nixon, prepared the March 18, 1992 “Final Agreement for Sale of Business” as well as the two promissory notes dated that same date, one executed in favor of Color Mate Photo, Inc., now Jack D. Bedford, Inc., in the amount of $245,000, and the other in favor of Jack Bedford in the amount of $30,000. The two notes represented part of the purchase price, which Bedford was financing himself. He testified that the sales agreement stated that it was effective as of November 6, 1991. However, he acknowledged that the promissory notes did not refer to any date other than March 18, 1992, which was the date of their execution by the Foxes.

Bedford further explained that prior to March 18, 1992, there had been discussions among the parties about the lawful rate of interest in Arkansas because Bedford recognized that the Federal Reserve Discount Rate had fallen since November 1991. Bedford testified that he approached the Foxes about raising the principal and lowering the interest rate for the loans because he knew that the 10% interest rate was no longer legal. He maintained that the parties continued with the agreement under the belief that the 10% interest rate had been “locked in” under the preliminary November 6, 1991 sales agreement. Bedford concluded that the reference to the date of November 6, 1991, as the effective date in the March 18, 1992 sales agreement controlled for purposes of the appropriate interest rate under the two promissory notes. According to Bedford, he first learned that the Foxes were claiming that the 10% interest rate was illegal in January 1997, when he was served with the complaint which initiated this litigation.

David Nixon, Bedford’s attorney, testified that he was employed by Bedford in February 1992 and that he knew the Foxes and Bedford had reached a preliminary agreement on November 6, 1991. He explained that he knew the Federal Reserve Discount Rate on March 18, 1992, would render the 10% interest rate usurious and for that reason he intended to make November 6, 1991, the effective date of the promissory notes. He admitted, however, that the promissory notes themselves did not refer to the date of November 6, 1991, and that they also failed to incorporate by reference the March 18, 1992 sales agreement.

Nixon emphasized, however, that he drafted the March 18, 1992 sales agreement with three references to the November 6, 1991 preliminary agreement, and that the Foxes’ counsel, James McCord, agreed that November 6, 1991, was the effective date of the agreement. McCord, according to Nixon, never broached to him any misgiving that the 10% interest rate would be illegal if executed in that fashion. Nixon also explained that he believed he was merely memorializing an agreement that had been reached in November 1991.

James Fox testified that he and his wife moved from Iowa to Fayetteville in March 1991. Prior to that date, an Iowa attorney, Mark Beckman, was responsible for drafting the preliminary agreements, but after that, the Foxes employed James McCord. Fox testified that he was informed for the first time at closing on March 18, 1992, that Bedford could not legally charge a 10% interest rate under Arkansas’s usury laws as of that date. He stated that Bedford offered to raise the purchase price to $400,000 as a solution and to lower the interest rate. Fox testified that he rejected the offer. He added that he was first told by a third-party banker that the two promissory notes contained an illegal rate of interest in the Fall of 1992, when he attempted to borrow money from Mcllroy Bank and Trust to purchase equipment. He was later told by the same banker that the interest rate was illegal in 1994 and 1995. He also admitted that James McCord informed him that the interest rate was illegal on March 18, 1992. Despite this knowledge, Fox stated that he continued making monthly payments on the notes until 1997.

Fox further admitted that he calculated as of December 31, 1996, that he owed Bedford $226,841.84 in principal but that he could recover $240,575.36, or twice the amount of the interest that had been paid up to that point, which was $120,286.18. This would have yielded the Foxes a net recovery as of that date in the amount of $13,733.52. A year earlier at the end of 1995, he calculated that they had paid $96,935.98 in interest, which multiplied twice would render a recovery of $193,871.96. At that point, the Foxes still would have owed Bedford and his corporation a net amount of $45,081.63. Therefore, because the Foxes made payments on the notes for an additional year, they went from owing Bedford approximately $45,000 at the end of 1995 to a net recovery of approximately $13,000 at the end of 1996, if they asserted a claim of usury. He also testified that he was not aware that the reference in the March 18, 1992 sales agreement to the effective date of November 6, 1991, had legal significance for purposes of the interest rate.

The trial court entered its order and determined that the interest rate on the two promissory notes was usurious as of March 18, 1992, which was the date the court found to be the date of the contract. The court entered judgment for the Foxes in the amount of $231,009.96 against Jack D. Bedford, Inc., which was twice the amount of interest paid on the $245,000 note, and judgment against Bedford in the amount of $28,286.96, which was twice the amount of interest paid on the $30,000 note. The trial court also determined that the defense of estoppel was not applicable against the Foxes because although all parties knew the 10% interest rate was usurious, the Foxes were not responsible for creating the infirmity. Bedford and Jack D. Bedford, Inc., appeal from the trial court’s order.

We need not address Bedford’s first issue relating to whether the March 18, 1992 sales agreement constituted the contract as opposed to the November 6, 1991 preliminary agreement. Even assuming that the agreement was finally struck on March 18, 1992, and, thus, was usurious, we hold that the Foxes were estopped by their actions to raise a usury defense.

In order to prove estoppel, the party asserting the defense must prove the following elements: (1) the party to be estopped knew the facts; (2) the party to be estopped intended that the conduct be acted on; (3) the party asserting the estoppel was ignorant of the facts; and (4) the party asserting the estoppel relied on the other’s conduct and was injured by that reliance. City of Russellville v. Hodges, 330 Ark. 716, 957 S.W.2d 690 (1997); Arkansas Dep’t of Human Servs. v. Estate of Lewis, 325 Ark. 20, 922 S.W.2d 712 (1996).

Furthermore, we have said that a debtor may be estopped from asserting the defense of usury when the debtor created the infirmity in the contract in order to take advantage of the creditor. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991); Ford Motor Credit Co. v. Hutcherson, 277 Ark. 102, 640 S.W.2d 96 (1982); Blanks v. American Southern Trust Co., 177 Ark. 832, 9 S.W.2d 310 (1928). In Blanks, this court said:

If the transaction was usurious, he [the debtor] should not have countenanced it in order to aid his company in selling a large block of its preferred stock to the bank of which he was a director.

177 Ark. at 839, 9 S.W.2d at 313.

We initially focus on the date of March 18, 1992, and have no doubt that Bedford and the Foxes knew that there was a problem with usury on that date and that efforts were being made to correct the problem. Indeed, James Fox testified to that effect. The trial court did find that both parties knew the March 18, 1992 sales agreement was usurious as of that date, but the critical point to our way of thinking is the fact that the March 18, 1992 sales agreement mentions three times that the agreement was effective as of November 6, 1991:

WHEREAS the parties hereto originally entered into an agreement for purposes hereof on November 6, 1991;
WHEREAS, the parties hereto have executed various and sundry Preliminary Agreement and Modifications thereto since the original agreement was formed on November 6, 1991;
...
IN WITNESS WHEREOF, the parties have executed this agreement the date first above written, effective as of November 6, 1991.

Unquestionably, inclusion of this language was driven by a desire to obviate the usury concerns of the parties.

Both Bedford and David Nixon testified to that effect and, again, James Fox testified that he knew about the usury problem and efforts to correct it. Where the parties differed in their testimony is that Bedford and Nixon were adamant in their belief that both sides understood the problem had been resolved by fixing the effective date as of November 6, 1991, while James Fox hedged on this point.

In applying the law of estoppel to these facts, we believe that all of the elements for establishing estoppel against the Foxes were present. The Foxes knew the March 18, 1992 sales agreement was usurious, as the trial court found. The Foxes intended to purchase Bedford’s photography business by signing the March 18, 1992 sales agreement and the two promissory notes, albeit the interest rates for the notes were usurious as of that date. Bedford clearly believed that by making November 6, 1991, the effective date of the agreement, usury was no longer an issue. According to Bedford’s attorney at the time, David Nixon, both he and the Foxes’ attorney, James McCord, agreed that reference to the effective date of November 6, 1991, cured the problem. And Bedford relied on the Foxes’ willingness to close the sales agreement on March 18, 1992, in a belief that the interest rate was not usurious. Indeed, this belief was confirmed over the next five years, as the Foxes continued to make their installment payments. Added to the mix is a hint of subterfuge in that James Fox apparently thought, as evidenced by his usury calculations, that at any time he could rise up, assert usury, and recoup twice the interest paid. He waited until he could net a profit to do this. James Fox’s own testimony cements our conclusion that estoppel was a proven defense.

The trial court in its ruling from the bench did find that both Bedford and the Foxes knew the March 18, 1992 agreement was usurious. But that finding does not examine the collateral issue of whether Bedford legitimately believed that he had resolved the matter with references to a November 6, 1991 effective date. We hold that the trial court clearly erred in finding that the elements of estoppel were not met by Bedford.

Moreover, we believe the trial court erred in ruling that the person to be estopped “must have created the infirmity.” Our cases do not mandate such a requirement but only say that a debtor may be estopped from asserting usury if that debtor created the infirmity. See McElroy v. Grisham, supra; Ford Motor Credit Co. v. Hutcherson, supra. The seminal case on this point, Blanks v. American Southern Trust Co., supra, merely established that a debtor may be estopped if the debtor “countenances” a transaction known to be usurious. That certainly occurred in the instant case.

We reverse the judgment of the trial court and remand for entry of a judgment consistent with this opinion.

       The parties stipulated that the Federal Reserve Discount Rate fell from 5% on November 6, 1991, to 3.5% as of March 18, 1992.