text:
    Glenn LEWIS, et al. v. The CITY OF BRYANT, et al.
    86-211
    726 S.W.2d 672
    Supreme Court of Arkansas
    Opinion delivered March 30, 1987

      Givens & Buzbee, by: J. R. Buzbee, for appellants.

      Richard A. Garrett, for appellees.
   Robert H. Dudley, Justice.

In May 1985, an ordinance proposing to annex 800 acres to the City of Bryant was submitted to the voters in Bryant and in the area proposed to be annexed. The proposed annexation was defeated. Four months later, on September 10, 1985, another ordinance was submitted to the voters, this one increasing the area of the proposed annexation to 914 acres. Prior to this election, the Mayor of Bryant, Dean Boswell, one of the appellees, publicly stated that the residents of the annexed area would have immediate fire and police protection. The ordinance itself provided that police protection, fire protection, and water service would be extended to the area within three (3) years. The ordinance was approved by the voters both in Bryant and in the area proposed for annexation. On October 9,1985, appellants, who are nineteen persons residing in the area proposed for annexation, filed a petition to set aside the election and void the annexation. The trial court denied the petition. We affirm.

The trial court found that the City of Bryant is capable of providing municipal benefits to the area. Appellants contend that this finding of fact is clearly erroneous. They argue that municipal services can neither be provided “immediately,” as promised by the mayor, nor within three (3) years, as set out in the ordinance.

As we have stated on numerous occasions, the rules governing our review of annexation cases are well settled. A high degree of reliance must be placed upon the findings of the trial judge because, by the very nature of this type of litigation, there is wide latitude for divergence of opinion. Thus, our task is not to decide where the preponderance of the evidence lies, but solely and simply to ascertain whether the trial court’s findings of fact are clearly erroneous. Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985).

The Bryant Police Chief, James Hipps, testified that his police force was capable of providing police services to the annexed area and that the area would be regularly patrolled. His testimony was supported by that of Mayor Boswell who stated that the City could provide police protection to the annexed area. Benton Chief of Police Curtis McCormick acknowledged that the ratio of men and equipment to the population in Bryant is about the same as in most other cities and towns in the state, and that under normal circumstances the response time for the police department from downtown Bryant to the annexed area would be adequate. Further, one of appellant’s witnesses, Sheriff James Steed of Saline County, testified that the area to be annexed was his primary responsibility until the annexation was finalized, and then it would become the responsibility of the Bryant police force. He testified that a Bryant policeman might get to the annexed area faster than someone from the Sheriffs office.

The Bryant Fire Chief, Raymond Pittman, testified that the Bryant Fire Department could adequately protect the annexed area. He testified that adding the 914 acres to the city was not going to stretch the fire department any thinner than the other departments in the state. His plan for providing fire protection to the annexed area is to send a pumper and a tanker, and then if back up assistance is needed, call upon the fire departments of Collegeville, Salem, Benton, or Springhill. He estimated that it would take approximately ten minutes to respond to a fire at the farthest point in the annexed area. His testimony was also supported by that of Mayor Boswell.

Under the evidence presented in this case, we simply cannot say that the trial court was clearly erroneous, whether we view his finding to be that the City of Bryant can provide fire and police protection immediately, or within three years. Consequently, we do not address the issue of which of the two promised time periods would control, and we do not address the complex issue of whether a material misrepresentation by a responsible public figure might void an election.

Appellants next contend that the trial court failed to consider evidence concerning the ability of the City of Bryant to provide the scheduled police and fire protection to the annexed area. Appellants’ argument is based upon a statement made by the trial court at the conclusion of the hearing in which he said, from the bench, that evidence regarding the City of Bryant’s ability to provide police and fire protection was “largely irrelevant.” Appellants urge us to reverse and remand this case with instructions to the trial court to consider the evidence. As discussed under the first point of appeal, the trial court made a specific finding of fact that the City of Bryant was capable of providing municipal services to the area. Despite the trial court’s comment that it found the evidence to be “largely irrelevant,” the court clearly considered the evidence concerning Bryant’s ability to provide the scheduled police and fire protection in reaching its finding of fact. We will not reverse and remand this case in order for the trial court to reconsider the evidence.

Finally, appellants contend that the September annexation election followed too closely on the heels of the May election and was thus unreasonable and, therefore, should be voided. They acknowledge that our statutes concerning the annexation of unincorporated lands are silent concerning time limits within which to resubmit an annexation proposal. They argue, however, that the two year time limit contained in Ark. Stat. Ann. § 19-312 (Repl. 1980), which applies to the consolidation of two municipalities, should be read into the statutes governing the annexation of unincorporated lands as a reasonable time period within which to prohibit further attempts at annexation. Appellants cite no authority for so construing the statute, and we decline to do so.

Affirmed.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    ARKHOLA SAND & GRAVEL COMPANY, A Division of APAC-ARKANSAS, Inc. v. Rick HUTCHINSON, Rusty GOODMAN, Martin E. LANCASTER and Sandra LANCASTER
    86-215
    726 S.W.2d 674
    Supreme Court of Arkansas
    Opinion delivered March 30, 1987

      Daily, West, Core, Coffman & Canfield, for appellant.

      Ball, Mourton & Adams, By: Stephen E. Adams, for appellees.
   Steele Hays, Justice.

Arkhola Sand and Gravel Company, appellant, appeals the dismissal of its suit to enforce a material-men’s lien against Martin and Sandra Lancaster, appellees.

The Lancasters, owners of a convenience store, had engaged Rick Hutchinson and Rusty Goodman, defendants below, to build a car wash adjacent to their store. Arkhola sold materials to Hutchinson and Goodman used in the construction of the car wash. When Hutchinson and Goodman failed to pay for the materials Arkhola brought an action against them to collect the amount due and against the Lancasters to impress a material-men’s lien upon their real property pursuant to Ark. Stat. Ann. § 51-601 et seq. Arkhola had followed the procedures outlined in the statutes, including the filing requirements of § 51-613.

The Lancasters moved to dismiss the action on the basis that the lien had never attached. They argued that §51-613 requires a correct description of the property when a materialmen’s lien is filed and Arkhola’s description was insufficient. The lien recorded by Arkhola described the land as follows:

Springdale outlots:
Part of the West Half (W’/i) of the Northeast Quarter (NE'A), Section Twelve (12), Township seventeen (17), Range Thirty (30), containing .79 acres.

There was no specificity as to where within the 20 acre tract the Lancasters’ .79 acre was situated. The trial court held for the Lancasters, found the description insufficient and dismissed the case as to the Lancasters.

On appeal, Arkhola relies primarily on Whitener v. Purifoy, 177 Ark. 39, 5 S.W. 724 (1928). In that case the description merely described two contiguous forty acre tracts. The court found however that the defendant owned both tracts, that there was only one dwelling house on the land and that there could be no uncertainty as to the tract upon which the lien was claimed. The court stated the description need not be in any particular form and that the essential requirement is that the land or building be designated “in such language as will afford information concerning the situation of the property to be charged with the lien.”

Arkhola quotes the above language and insists there is no doubt but that its description gave sufficient notice to any inquiring party of the property to be charged with the lien. Arkhola fails however to show how this is possible based on the limited description it included in its filing. Unlike Whitener, where the entire 80 acres was owned by the defendant and there was only one dwelling on the property, Arkhola’s description is simply a 20 acre tract and there is no way to determine where within that 20 acres the Lancasters’ .79 acre is located or how the particular structure can be identified, or even what kind of a structure it is.

Ark. Stat. Ann. § 51-617 provides for the contents of a complaint when proceeding to foreclose on a materialmen’s lien. It states “. . . The petition, among other things, shall allege the facts necessary for securing a lien under this act[.]” Included in the requirements for filing a lien is a “correct description” of the property to be charged with a lien. (§51-613). See also, Chaffin v. McFaddin, 41 Ark. 42 (1883); Conway Lumber Co. v. Hardin, 119 Ark. 43, 117 S.W. 408 (1915); Big A Warehouse Distr. Inc. v. Rye Auto Supply, Inc., 19 Ark. App. 286, 719 S.W.2d 716 (1986). Arkhola failed in its complaint to show that the description required by § 51 -613 was sufficient and the court was correct in granting the Lancasters’ motion to dismiss the complaint for failure to state facts upon which relief can be granted. ARCP Rule 12(b)(6).

Arkhola further contends that if the description is insufficient, it be allowed to offer extrinsic evidence to show that the description is in fact adequate. Appellant is correct in theory.

While the description was insufficient to state the prerequisites for a cause of action pursuant to § 51-613, that would not necessarily have precluded Arkhola from refiling with a properly stated claim. See Big A Warehouse, supra; Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). Such action would have been possible in this case because as Arkhola submits we have held that extrinsic evidence may be used to show that the description is adequate — that it does in fact “afford information concerning the situation of the property to be charged with the lien.” Whitener, supra. It was on that basis that the court in Whitener found the description sufficient, as it was shown that although the filing description only described two 40 acre tracts, the defendant owned both the tracts in question and there was only one dwelling on the property. Similarly in In Re Taylor Oak Flooring Co., 87 F. Supp. 6, 11 (W.D. Ark. 1949), the court, relying on Arkansas cases, found that while the description was not specific in itself, the defendant owned no other property in the county and upon inquiry one could have been directed to the named company with no difficulty. Among other Arkansas cases, the district court correctly cited Barnett Brothers v. Wright, 116 Ark. 44, 172 S.W. 254 (1914), for the proposition that extrinsic evidence may be used to show the description is adequate. See also 57 C.J.S., Mechanics’ Liens, § 161.

Here, in its answer to the motion to dismiss Arkhola argued that should the court find the description insufficient, it be allowed to offer extrinsic evidence to show the Lancasters owned no other property within the 20 acre tract and the .79 could have been located with certainty and with no possibility that anyone would be misled.

We agree with Arkhola to the extent that it could have pled further to show by extrinsic evidence the description was sufficient. Arkhola’s deficiency was failure to state a claim and the trial court did not look beyond the pleadings to reach its decision. Nor were there any matters outside the pleadings presented to the trial court on this issue. See ARCP Rule 12(b)(8). Accordingly, the trial court correctly granted the motion to dismiss without any mention of prejudice to Arkhola, and Arkhola had an election at that time whether to plead further or appeal. See Ratliff, supra; Big A Warehouse, supra. Arkhola’s actions however, have precluded that possibility.

Arkhola did not plead further but elected instead to appeal to this court, Arkhola Sand and Gravel v. Hutchinson and Lancaster, 289 Ark. 313, 711 S.W.2d 474 (1986). We declined to hear the case as it was not a final order under ARCP Rule 54(b). Arkhola then sought a final order from the trial court pursuant to Rule 54(b) and appealed again, which is the case now before us challenging the finding that the description was insufficient. Arkhola has now waived its opportunity to plead further and when the case was resubmitted to the trial court for a final judgment under 54(b), it was properly dismissed with prejudice.

While the manner of the trial court’s determination under Rule 54(b) had no bearing on our decision, we find it appropriate at this time to address more fully the requirements of that rule. Rule 54(b) provides the means of bringing an appeal of one or fewer than all the claims within a suit, when a final order settling all the claims has not yet been rendered. Under Rule 54(b), the trial court may direct the entry of a final judgment as to one or more but fewer than all the claims or parties, but “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

In January 1986 when Arkhola first appealed from the order of dismissal, it had failed to obtain from the trial court either of the above stated requirements of Rule 54(b). Upon our finding that the dismissal of the Lancasters was not a final order under the rule, Arkhola returned to the trial court and obtained an order which the court thought sufficient to comply with the rule. The order recites the language of 54(b) but contains no facts which support the finding there is no just reason for delay.

As we have held, in order to find there is no just reason for delay, the trial court must find some likelihood of hardship or injustice which would be alleviated by an immediate appeal. Murry v. State Farm Mutual Automobile Insurance Co., decided March 6,1987; Howard v. Wood Manufacturing Co., 291 Ark. 1, 722 S.W.2d 265 (1987). Our role on appeal “is not to reweigh the equities or reassess the facts but to make sure that the conclusions derived from those weighings and assessments are judicially sound and supported by the record.” Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1468, 64 L.Ed.2d 15(1980), (discussing FRCP 54(b) which is identical to our own rule). In order to perform this role we give notice that merely tracking the language of Rule 54(b) will not suffice; the record must show facts to support the conclusion that there is some danger of hardship or injustice which would be alleviated by an immediate appeal.

Affirmed.

       Arkhola amended its complaint to give a description of the exact location of the .79 acre so a decree could be rendered against the property should the court find in its favor. See Whitener v. Purifoy, 177 Ark. 39, 5 S.W. 724 (1928).


author: David Newbern, Justice.

text:
    Anthony Frederick THRASH v. STATE of Arkansas
    CR 86-161
    726 S.W.2d 283
    Supreme Court of Arkansas
    Opinion delivered March 30, 1987

      Don E. Glover, for appellant.

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

The appellant, Anthony Frederick Thrash, was convicted of capital felony murder and sentenced to life imprisonment without parole. Three points for reversal are raised. First, the appellant contends there was no evidence showing he committed the aggravated robbery which was the underlying felony charged with the murder. We find the evidence given by his alleged accomplice, Diedra Gaddy, sufficiently corroborated to support the conviction. Second, the appellant contends evidence of a burglary and aggravated robbery allegedly committed by him subsequent to the alleged murder was improperly admitted in violation of A.R.E. 404(b). We hold the evidence of those crimes was admissible, respectively, to show a plan and a modus operandi. Third, the appellant contends venue was improperly laid in Desha County. We hold the venue was correctly laid because the crime could have been found to have been planned and partially executed in Desha County. In addition to considering these arguments, we have reviewed the record and the objections raised at trial pursuant to our Rule 11 (f), and we find no reversible error.

1. Sufficiency of the evidence

a. Diedra Gaddy’s testimony

Diedra Gaddy testified to the following: She and Thrash began living together on January 15, 1980, at 133 Oak Street in Dumas. She was seventeen. They gambled for a living and grew dissatisfied with their existence in Dumas. Thrash decided they should go to Chicago, where he said he had previously lived, and where he could make money at the horse races. Thrash conceived a plan to take someone’s car, kill the owner, and thus not “leave a witness.” He told Gaddy to obtain wigs from her mother’s house. She obtained the wigs. Thrash obtained a shotgun, and Gaddy watched him saw off the barrel so that the gun was twenty to twenty-four inches long.

On June 6,1980, Thrash dressed as a woman. Gaddy put on clothes different from her usual attire, and she wore extra makeup which she described as “overdone.” They carried purses, and the one carried by Thrash was large. Thrash carried the shotgun in his purse with ammunition they obtained earlier that day in Pine Bluff. They walked from their house to a shopping center where a parking lot carnival was in progress. It was between 9:00 and 10:00 p.m., and they stood for fifteen or twenty minutes near a Piggly Wiggly store and in front of Magic Mart.

Tommy Bruce Gill approached Gaddy and Thrash in a black truck and asked if they needed help. They replied they needed a ride to Pine Bluff and would make it worth his time. Gill invited them into the truck. Gaddy sat in the middie, and Thrash sat by the window on the passenger side of the seat. Gaddy did the talking because they thought Thrash’s voice might have revealed he was a male.

As the three drove toward Pine Bluff, Thrash nudged Gaddy indicating “he had to go to the bathroom.” Gaddy told Gill to pull over, and he did so. Gaddy and Thrash got out of the truck and went around in front of the truck. Thrash squatted down as if to urinate as a woman. That placed him out of the sight of Gill who remained in the truck with the lights off but the motor on. He told Gaddy to stay in front of the truck while he went around to the passenger side window. Thrash pulled the gun from the purse and shot Gill. Gill’s foot “hit the gas.” Thrash ran around to the driver’s side and shot him again. They loaded the body in the bed of the truck, drove back to Hatley Hill lover’s lane, which is apparently near Dumas. Thrash dragged the body up to a dilapidated farm house under which the body was left. They then drove back to “the projects” near their residence, parked the truck on Oak Street, and walked to their house.

Gaddy and Thrash removed the clothing they had worn and burned it in their bathtub. At that point, around 3:00 or 4:00 a.m. the next morning, Thrash said they needed to get more money. (After a conference held in the judge’s chambers, the judge admonished the jury that evidence of other crimes might be taken and that it would not be admitted to prove the character of the accused or that he acted in conformity therewith.) Gaddy and Thrash then went to Blount’s Pool Hall about three or four blocks from their residence. Thrash went in, after climbing to the roof, and came out later with a lot of change. They returned home to pack their belongings.

Gaddy and Thrash then began driving the truck toward Kansas. While buying gas in Little Rock Thrash noticed blood on the truck so they stopped long enough to wash it. Upon arriving in Kansas City, Kansas, they spent a couple of days with a friend and then drove the truck to the home of Gloria Tillman, Thrash’s ex-wife, to visit Thrash’s son. Thereafter they drove the truck to another friend’s home. Later the truck ceased running. A friend drove Thrash and Gaddy to the site of the truck’s demise where Thrash removed the license tag and inspection sticker.

The pair had no money. They were living in the backyard of a friend and on top of a building in a park. Food became scarce. (The court at this point again admonished the jury with respect to proof of other crimes.) They then planned to rob a liquor store using the same wigs they had used as disguises in Dumas. They put on make-up and the wigs, although this time they did not wear dresses, and walked into the liquor store. Gaddy had a hand-gun, and Thrash had the shot gun in a purse. They made the owner of the store lie down, but she had to get up to help Thrash who could not open the cash register. Gaddy and Thrash left the liquor store, removed their disguises, and shortly thereafter were apprehended by Kansas authorities.

b. Corroborating testimony

Diedra Gaddy’s testimony clearly covered facts sufficient to show a murder committed in the course of an aggravated robbery. Her testimony is not enough, however, to sustain the conviction of Thrash because she was an accomplice. To be sufficient to sustain the jury’s verdict, we must find that her testimony was corroborated by other evidence tending to connect Thrash with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1977).

Keith Butcher and Danny Wells testified that they were riding together in a car on an evening around the time their friend Gill disappeared. Their attention was attracted to two unusually-dressed persons. One of them was obviously a male dressed as a female. They were seen in the shopping center parking lot. From photographs shown them by police both Butcher and Wells positively identified Thrash as the person they saw dressed as a female.

Bobbie Sue Robertson remembered seeing two females get into Gill’s truck at the parking lot. One of them appeared to her to be a male because of hair on his legs and a muscular face and hands.

Michael Thrash, the appellant’s brother, testified that he rented the house at 133 South Oak Street after the appellant left, and he found burn marks in the bathtub.

Gloria Tillman testified that the appellant, Thrash, and Diedra Gaddy came to her house in Kansas City, Kansas, in June or July of 1980. When they arrived, she glanced outside and saw a black truck in front of her house.

Marie Huska testified that she operated Huska’s Liquor Store in Kansas City in 1980. On June 19, 1980, two persons came in the store. One was a very young girl who immediately pulled a hand gun and told Huska to hit the floor. The other one tried unsuccessfully to open the cash register. Huska got up to help, and as she did so, she heard the second person’s voice, and realized it was a man dressed as a woman. He was holding a “blue steel rod” down by his side.

Dennis Roberts of the Kansas City Police Department testified he was called to the scene of the Huska Liquor Store robbery. Based on a description of the robbers as two Negro women, he arrested two persons walking quickly on the street. One of them was Thrash.

This evidence corroborates the testimony of Gaddy. It also tends to connect Thrash with the aggravated robbery and murder of Gill. While the evidence, independent of Gaddy’s testimony, would not be sufficient to convict Thrash of capital felony murder, it need not be that strong. Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980). It is sufficient if it, to some degree, connects Thrash with the crime. Price v. State, 267 Ark. 1172, 599 S.W.2d 394 (1980).

Thrash argues that there is no substantial evidence of the robbery. We hold the evidence that Thrash was seen dressed in a female disguise getting into Gill’s truck shortly before Gill was murdered, combined with testimony connecting him thereafter with a similar truck, and combined with evidence of a subsequent robbery committed by him using the same kind of disguise is sufficient. It tends, independently of Gaddy’s testimony, to show Thrash took Gill’s truck, and it clearly corroborates Gaddy’s testimony that he did so. The pool hall burglary was also established by the testimony of its owner. All of these items together tend to demonstrate the plan Thrash developed to go to Chicago after getting transportation, killing any witness, and obtaining money for the trip. We are not required to isolate these incidents if they are part of a plan. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981); Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979). Corroboration of Gaddy’s testimony showing there was a plan, of which Thrash was the instigator, to get a vehicle and leave no witness is enough corroboration of the aggravated robbery.

2. Other offenses

Thrash objected to the testimony concerning the pool hall burglary and the liquor store robbery. Arkansas Rules of Evidence 404(b) provides:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The evidence of the documented pool hall burglary, the state argues, established a “time frame” and helped clear up conflicts in testimony as to dates. It did more than that, however. It was evidence of a link in the plan to get a vehicle and go from Dumas to Chicago. It showed how Thrash and Gaddy obtained the money to begin their travels. It was independently relevant and thus admissible evidence. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980); Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). In addition, the evidence of the pool hall burglary in the form of testimony of the owner, Mr. Blount, was corroborative of Gaddy’s testimony about the manner in which she and Thrash obtained their traveling money.

Likewise, the liquor store robbery evidence showed a modus operandi which corroborated Gaddy’s testimony about the robbery and murder of Gill. While Rule 404(b) does not mention modus operandi as one of the legitimate bases for introducing evidence of other crimes, we note that the rule contemplates that the list of exceptions is not exclusive, for it discusses admission of such evidence for “other purposes, such as” the ones listed. White v. State, 290 Ark. 130, 714 S.W.2d 784 (1986) . See Price v. State, 267 Ark. 1172, 599 S.W.2d 394 (Ark. App. 1980). We have held that evidence of a crime other than the one charged may be admitted to show the appellant committed the crime charged where both involved the same unique method of operation. Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987) .

Even when the evidence of other crimes has independent probative value, as here, the trial judge may exclude it if its potential prejudice exceeds its probative value, A.R.E. 403(a). Here the trial court exercised his discretion to let the evidence in with proper admonitions to the jury. We find no abuse of discretion.

3. Venue

The evidence showed Thrash hatched the plan to rob someone of a vehicle in Desha County. He obtained the implements of disguise there. He sawed off the shotgun there, and began his ride with Gill there. The murder and robbery occurred in Lincoln County, but the body was returned to Desha County. The controlling statute is Ark. Stat. Ann. § 43-1414 (Repl. 1977) which provides:

Two counties, offenses committed in. — Where the offense is committed partly in one [1] county and partly in another, or the acts or effects thereof, requisite to the consummation of the offense, occur in two [2] or more counties, the jurisdiction is in either county.

We have no doubt that acts “requisite to the consummation of the offense” occurred in Desha County, thus venue was properly laid there. See Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972).

Affirmed.


author: Tom Glaze, Justice.

text:
    Roy Edward HAYDEN v. Dianne M. HAYDEN
    86-217
    726 S.W.2d 287
    Supreme Court of Arkansas
    Opinion delivered March 30, 1987

      Howell, Price, Trice, Basham & Hope, by: Dale Price, for appellant.

      Hankins, Capps, Hicks & Madden, for appellee.
   Tom Glaze, Justice.

This appeal ensues from the parties’ divorce action in which appellant was awarded an absolute divorce, child support and custody of the parties’ only child, Katherine. The court’s decree was rendered by a special chancellor and entered March 23,1984, but appellant filed a motion for a new trial on March 30, 1984, primarily seeking relief from certain property and debt issues. On August 16,1984, the court heard appellant’s motion, and on August 27, 1984, the regular-sitting chancellor ordered a new trial. Appellee never appealed that August 27th order. Nearly one year later — on August 16, 1985 — the newly-elected chancellor, on his own motion, set aside the court’s earlier order granting a new trial. In this appeal, appellant, among other things, argues the chancellor had no authority to set aside the court’s new trial order. We agree.

Rule 60(b) of the Arkansas Rules of Civil Procedure provides that a trial court may modify or set aside a decree or order within ninety days after its having been filed with the clerk. However, after that ninety-day period expires, the trial court has the power to modify or vacate such a judgment or order for only those grounds set forth in ARCP Rule 60(c). Here, the court set aside its order granting a new trial nearly a year after it was filed. From our review of the record, we can find no mention of any of the grounds enumerated under Rule 60(c), and apparently none existed to support the court’s action in setting aside its August 27, 1984, order. In fact, the trial judge merely expressed his natural frustration of having to retry what appears to have been an already hard-fought, protracted divorce suit. While we can appreciate the possible difficulties the judge might encounter in trying a case anew, such provide no legal grounds to empower the judge to modify or vacate an order for a new trial after it had been filed more than ninety days.

We find no merit in appellee’s contention that appellant failed to raise the issue concerning the trial court’s power to set aside its August 27th order since the court itself questioned its own authority before deciding to do so. We must also reject appellee’s argument that the trial court erred in granting appellant’s motion for a new trial because the appellant, contrary to Rule 4(c) of the Arkansas Rules of Appellate Procedure, failed to obtain a timely hearing on his motion or to acquire a date for the court to hear it. The trial court’s order granting a new trial was a final one from which the appellee could have appealed, Ark. R. App. P. 2(a)(3), and for whatever reason, she chose not to appeal it. Because appellee took no appeal from the August 27th order, we simply have no jurisdiction to review it now. Thus, that order remains inviolate after our holding here that the trial court had no authority to render or enter its August 8, 1985, order.

In conclusion, we are mindful of the rule that an appeal from any final order also brings up for review any intermediate order involving the merits. Ark. R. App. P. 2(b); see also DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982). That rule does not apply in the situation here because the court had no authority to render the 1985 order, and it was, in effect, a nullity. As a consequence, we are unable to consider the court’s earlier August 27, 1984, order as an intermediate one under Rule 2(b).

Therefore, we reverse and remand this cause with directions to vacate the court’s order of August 8,1985, and to proceed with the hearing of the action in accordance with its order granting a new trial.


author: Per Curiam. John I. Purtle, Justice,

text:
    Dale Thomas “Butch” VOLMER v. Donna VOLMER
    87-80
    726 S.W.2d 666
    Supreme Court of Arkansas
    Opinion delivered March 27, 1987

      Ablondi & Taylor, P.A., by: Tami Harlan, for petitioner.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for Chancellor John Earl.

      W. Bruce Leasure, for respondent Donna Volmer.
   Per Curiam.

OnMarch 17,1987,thetrialcourtheld petitioner in criminal and civil contempt of its prior orders, and petitioner, in his request for a writ of habeas corpus here, alleges that the trial court has unlawfully confined him in the Pulaski County Jail. Petitioner fails to allege any facts or argue any law to support his claim of unlawful incarceration. He does, however, offer to tender certain payments toward the reduction of child support arrearages.

From the meager record before us, it is clear that the petitioner is in substantial arrears in child support and that the trial court did not reduce all of those arrearages to judgment when the court declared petitioner in civil contempt. The court’s criminal contempt finding appears to be based upon petitioner’s failure to appear before the trial court on September 25, 1986, after having been duly served by process. Based upon these actions and findings of the trial court, the trial court appears to have lawfully incarcerated petitioner.

Although petitioner has failed to allege or argue any appropriate grounds upon which this court may grant a writ of habeas corpus, he certainly may present his proposed payment plan to the trial court in an effort to purge himself of that court’s civil contempt order.

Petition denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I believe that habeas corpus is a proper remedy in this case. However, if this Court desires to label this petition a writ of prohibition, certiorari, or something else, I would not object. The remedy that the petitioner is seeking is the same regardless of its name. The petitioner wants out of jail. According to the allegations in his petition, he is entitled to be released.

The pleadings reveal that the parties were divorced in St. Louis, Missouri, in 1973. Shortly thereafter the respondent, who was awarded custody of their children, moved to Little Rock where she took up residence and has continued to live.

On January 24, 1986, the respondent filed an action in the Pulaski County Chancery Court to force the petitioner to pay child support in accordance with the Missouri decree. Why she waited more than 12 years to enforce this provision is not revealed in the partial record presently before this Court.

The respondent does not deny that the petitioner is being held in jail for failure to pay on a judgment rendered for arrearages of support payments.

This Court considered exactly the same situation in Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983). There this Court held:

However, once the chancellor reduced the arrearages for child support to judgment, he lost control and could not use the judgment in anyway to control past or future acts of the appellant, and that is exactly what he did.
The appellant in an amended order was required to pay $ 150 per week to stay out of jail under a threat of some type of continuing contempt. The Court had no authority to use this judgment to encourage this agreement from Nooner.

We have many times held that imprisonment for failure to pay alimony or support payments is not an act for which a person may be jailed unless the defendant has the ability to pay, but wilfully refuses to do so. In Griffith v. Griffith, 225 Ark. 487, 283 S.W.2d 340 (1955), the Court stated:

Imprisonment in such a case is only justified on the ground of wilful disobedience to the orders of the court; and, so soon as it is made to appear that the defendant is unable to comply with the orders of the court, he should be discharged. In Harmon v. Harmon, 152 Ark. 129, 237 S.W. 1096, this Court said:
Imprisonment of a divorced husband for failure to pay alimony is justified only on ground of wilful disobedience to the orders of the court . . . [I]t should not imprison him where he shows that he has not the pecuniary ability to comply with the decree ....

No additional authority need be cited because there can be no doubt that our cases uniformly hold that one cannot be imprisoned for debt for his inability to meet the demands of the courts or his former spouse.

The payments offered to the respondent in this case include $1,700 attorneys fees, a $5,000 down payment, and an assignment from his paycheck in the amount of $751.00 per month. This is certainly much more than the wife will receive if this Court and the trial court keep the petitioner in jail. Also, I question the validity of the judgment because of the possible ineffective service of process in Missouri.


author: Jack Holt, Jr., Chief Justice.

text:
    Kathy DUNKIN v. CITIZENS BANK OF JONESBORO, Administrator of the Estate of Everett Ercell DUNKIN, Deceased
    86-225
    727 S.W.2d 138
    Supreme Court of Arkansas
    Opinion delivered April 6, 1987

      Michael Everett, and Barrett, Wheatley, Smith & Deacon, by: Paul D. McNeill, for appellant.

      Lohnes T. Tiner, and Chet Dunlap, for appellee.
   Jack Holt, Jr., Chief Justice.

At issue in this appeal is the obligation of a defendant in a wrongful death case to respond to interrogatories or to assert properly her objection on the basis that her responses might be self-incriminating. The trial court ordered the defendant, who is the appellant here, to respond, and, when she refused he struck her answer in which she had pled self-defense. This appeal is from the order striking the answer. We affirm.

The appellant, Kathy (Cooper) Dunkin, married Everett Ercell Dunkin on August 23, 1984. Seventeen days later they separated and on September 15,1984, Mr. Dunkin was shot and killed at Mrs. Dunkin’s house in Trumann, Arkansas. The administrator of Mr. Dunkin’s estate, the appellee, brought this action alleging Mrs. Dunkin negligently shot and killed Mr. Dunkin and seeking $320,000 in damages. Mrs. Dunkin in her formal answer denied that she was negligent but admitted that she shot and killed Mr. Dunkin and stated that he was killed “in defense of her own person and that of her brother, Archie Dale Cooper.”

The administrator propounded twenty-one interrogatories to Mrs. Dunkin on October 9, 1985. No action was taken and on January 31, 1986, the administrator filed a motion to compel answers. On March 6, 1986, some 148 days after they were submitted, Mrs. Dunkin answered three of the interrogatories and refused to answer the rest, asserting her fifth amendment constitutional right against self-incrimination. The administrator filed a second motion to compel answers or, in the alternative, to strike Mrs. Dunkin’s answer to the complaint. A hearing was held April 25,1986. Mrs. Dunkin and her attorney did not appear and the court found that she should not be compelled to answer interrogatories four and five, but ordered her to answer the rest within twenty days. When Mrs. Dunkin still did not answer, the administrator filed a motion seeking sanctions. The court granted the motion, striking Mrs. Dunkin’s answer. The court denied a subsequent motion by Mrs. Dunkin to reconsider its previous orders.

On appeal, Mrs. Dunkin maintains the trial court erred in ordering her to answer incriminating interrogatories in violation of her fifth amendment privilege against self-incrimination, and that the order striking her answer was too severe of a sanction.

Authority for the trial court’s action can be found in our rules of civil procedure. Arkansas R. Civ. P. 26(b)(1) provides that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the issues in the pending actions, . . .” Ark. R. Civ. P. 37(d) states that if a party fails to serve answers or objections to interrogatories “the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B) and (C) of subdivision (b)(2) of this rule.” Rule 37(b)(2)(C) then permits the court to enter an order “striking out pleadings or parts thereof.”

A party claiming a privilege to refuse to answer interrogatories may obtain a protective order under Rule 26(c), which would protect the party from discovery or from inquiry into certain matters. Rule 37(d) states that the failure to serve answers or objections to interrogatories “may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided in Rule 26(c).” (emphasis added).

Mrs. Dunkin bases her failure to answer the interrogatories on her assertion of the privilege against self-incrimination. The privilege applies alike to civil and criminal proceedings, whenever the answer might tend to subject the party giving it to criminal responsibility. Campbell v. Gerrans, 592 F.2d 1054 (9th Cir. 1979), quoting McCarthy v. Arndstein, 266 U.S. 34, 40 (1924). While parties may not obtain discovery under Rule 26(b)(1) regarding privileged matters, a privilege is only safeguarded if the proper procedures are followed in a timely fashion.

Other courts, too, have shown concern for the time and manner in which the assertion of the privilege is made during the discovery process. Wolfson, Civil Discovery & the Privilege Against Self-Incrimination, 15 Pac. L.J. 785, 793 (1984). “Assertion of the privilege can preclude an opposing party from obtaining relevant and critical discovery. The courts, therefore, have insisted that the privilege be validly taken, asserted in a timely manner, and limited to information that clearly falls within its ambit.” Id. Failure to object to a discovery request within the time fixed by the applicable discovery rule acts as a waiver of all available objections, even if the objection is that the information sought is privileged. Id. at 795. “The automatic waiver provisions that exist in conjunction with a number of the discovery rules, including interrogatories,. . . make imperative the assertion of the privilege on a timely basis. Silence will cost the litigant all right to assert his privilege against self-incrimination in response to such discovery,” Id.

The trial court applied the plain language of our discovery rule, Rule 37(d), finding that Mrs. Dunkin may not now be excused from answering the interrogatories, with which we agree.

We affirm the court, not only because of the timing of the assertion of the privilege, but because of the manner in which it was raised. As the U.S. District Court in New York has held, claims by a party of the privilege against self-incrimination are not to be accepted at face value. Camelot Group, LTD. v. W.A. Krueger Co., 486 F.Supp. 1221 (S.D.N.Y. 1980). The New York court explained:

Thus, a claimant of the privilege is not immunized from answering a question upon his mere declaration that it would tend to incriminate him — “his say-so does not of itself establish the hazard of incrimination.” The determination whether the privilege is well-founded is to be made by the court based upon all of the circumstances of the case and the judge, in assessing the claim, “must be governed as much by his personal perceptions of the peculiarities of the case as by the facts actually in evidence.” . . . Moreover, the burden of establishing a foundation for the assertion of the privilege lies with the party making it.

Id., at 1224.

To place proper limitations on assertion of the privilege, courts have required the party asserting it “to make a particularized showing of the potentially incriminating nature of each question asked or document sought. . . [and] [bjlanket refusals to answer questions ... in response to a valid discovery request are insufficient to relieve a party of the duty to respond to each question asked. . . .” (emphasis in original) Wolfson, supra.

Here, Mrs. Dunkin answered three interrogatories and then stated: “I refuse to answer any further interrogatories. I do so by exercising my constitutional right to remain silent because the answer may incriminate me.”

She and her attorney failed to attend the hearing on the administrator’s motion to compel answers. Such a “blanket refusal” to answer coupled with a lack of any “particularized showing of the potentially incriminating nature of each question” are not sufficient to meet Mrs. Dunkin’s burden of establishing a foundation for the assertion of the privilege. In her motion to reconsider the court’s previous order, filed June 13, 1986, Mrs. Dunkin stated that she had no notice that there were any allegations that the interrogatories were not incriminating or that the court might even consider the fact that the answers might not be incriminating. Mrs. Dunkin sought permission to belatedly present evidence to the court of the incriminating nature of those statements. Mrs. Dunkin’s motion indicates that she was not aware of the burden of proof on a party claiming a fifth amendment privilege in a discovery procedure. We remind the parties that ignorance of the law has never served as a good reason or an excuse for a failure to present proof to the trial court.

Accordingly, the judgment of the trial court is affirmed.


author: Robert H. Dudley, Justice.

text:
    DISTRICT ATTORNEY, COUNTY OF PLACER, STATE OF CALIFORNIA v. Billy Van WEBB
    86-204
    727 S.W.2d 136
    Supreme Court of Arkansas
    Opinion delivered April 6, 1987

      Richard B. Dahlgren, Child Support Enforcement, for appellant.

      Clark & Adkisson, for appellee.
   Robert H. Dudley, Justice.

Appellee Billy Van Webb and Darlene Webb were divorced in 1971 in their county of domicile, Faulkner County. Darlene was awarded the custody of their four children, and Billy was ordered to pay a total of $60.25 per week as child support. Billy was given a right of reasonable visitation with the children. Soon afterwards, Darlene and the children moved to California. In 1973, Billy filed a petition in the Faulkner County Chancery Court, apparently alleging that Darlene had taken the children outside the jurisdiction, concealed their whereabouts, and totally defeated his right of visitation. On July 24, 1973, Billy, who was then current in his child support payments, appeared in court in person and by his attorney, and Darlene appeared by her attorney. The court suspended all child support payments pending further orders of the court. See Pence v. Pence, 223 Ark. 782, 268 S.W.2d 609 (1954). There was no appeal from the order suspending support payments, and Darlene has not sought to have that order modified. In 1984, Darlene and the State of California began an action for child support under the Revised Uniform Reciprocal Enforcement of Support Acts of California and Arkansas. Cal. Civ. Proc. Code §§ 1650-1699 (Deering 1981 and Supp. 1987); Ark. Stat. Ann. §§ 34-2401 to -2457 (Supp. 1985). In her initiating complaint and testimony to the Superior Court of Placer County, California, Darlene alleged that Billy had a duty of support in the amount of $60.25 per week under the 1971 Faulkner County Decree. She did not disclose the 1973 decree suspending child support payments. Based upon that information, the California court found an arrearage of $24,804.00 and certified the case to the Chancery Court of Faulkner County, the appropriate court in the county where Billy resides, for collection of arrearages and also for an order of ongoing support. The Chancellor ruled that the 1971 order setting child support at $60.25 per week was superseded by the 1973 order suspending the payments and that, under the 1973 order, there was no arrearage. We affirm.

Appellants contend that the trial court’s ruling, based on the doctrine of res judicata, was erroneous. The contention is without merit. The issue is governed by the law of the obligor’s residence during the period for which support is claimed, in this case, Arkansas. The 1973 order suspending support payments recites facts showing jurisdiction over the subject matter and the parties. It was an appealable order, even though it was subject to future modification. Rimmer v. Rimmer, 229 Ark. 1016, 320 S.W.2d 92 (1959). It was entered eleven years before this became a RURESA case. Darlene did not appeal it and Billy was entitled to rely on it. It cannot now be collaterally attacked. As long as the 1973 order remains in effect, a claim for payment of child support is precluded. The Supreme Court of the appellant State has also found the claim preclusion facet of the res judicata doctrine applicable under almost identical facts. Moffat v. Moffat, 21 Cal. 3d 645, 165 Cal. Rptr. 877, 612 P.2d 967 (1980). In another case directly on point, the Court of Appeals of Arizona reached the same result. State ex rel. Arvayo v. Guerrero, 21 Ariz. App. 173, 517 P.2d 526 (1973).

Appellant California asks us to follow a contrary decision on similar facts by a Michigan Court of Appeals. State of Maine, Department of Human Services ex rel. Horton v. Horton, 99 Mich. App. 90, 297 N.W.2d 622 (1980). We reject the invitation to follow the decision for two reasons: (1) the doctrine of res judicata, on which we base our decision, was not raised by the obligor in the Michigan case, and was not at issue in the case, and (2) the court found that the uniform act independently created an obligation of support. Obviously, the case is not authority on the doctrine of res judicata since the issue was not raised, and we reject its rationale that the act creates an independent obligation of support for the reason set out below.

The act creates new remedies for payment of support, but it does not create any new obligations. Section 34-2403 provides: “The remedies herein provided are in addition to and not in substitution for any other remedies." (Emphasis added.) Obviously, before a remedy is applicable, there must be an obligation of support. We agree with the court of New Jersey and Illinois that RURESA “does not independently create the obligation.” Essex County Adjuster ex rel. State of California v. Brooks, 198 N.J. Super. 109, 486 A.2d 875 (N.J. Super. Ct. App. Div. 1984), quoting from People ex rel. Oetjen v. Oetjen, 92 Ill. App. 3d 699, 48 Ill. Dec. 247, 416 N.E.2d 278 (App. Ct. 1980). In this case, the appellant State of California simply became subrogated to the rights of Darlene. Subrogation was the new remedy, but no new obligations were created for Billy.

Appellant contends that the obligor, Billy, is asserting a duty of no support because he has been denied visitation rights with his children, and he may not interpose such a defense since § 34-2423 provides in part: “The . . . enforcement of a duty of support... is unaffected by any interference. . . with rights of . . . visitation granted by a court.” The argument completely misses the point that the issue of past support is precluded by the doctrine of res judicata. In other words, Billy is not contending that he does not owe a duty of support because he was denied visitation rights. If that were his argument the statute would be applicable, and he would lose. He made that argument eleven years before this became a RURESA case. Now, his argument is that he does not owe a duty of support because a court, vested with jurisdiction of the subject matter and of the person, has previously ruled that his duty of support was suspended. State ex rel. Arvayo v. Guerrero, 21 Ariz. App. 173, 175, 517 P.2d 526, 528 (1973).

The foregoing part of this opinion has dealt with child support for past years. The Chancery Court of Faulkner County has continuing jurisdiction to modify its order of suspension of child support payments upon a change in circumstances. The change in circumstances would be allowing the obligor, Billy Webb, to have visitation. Upon a modification of the order, he could be ordered to pay future ongoing child support and that duty could be enforced through RURESA remedies.

Affirmed.


text:
    Glen Arlis McDANIEL v. STATE of Arkansas
    CR 86-155
    726 S.W.2d 679
    Supreme Court of Arkansas
    Opinion delivered April 6, 1987

      Morgan E. Welch, and Kenneth E. Suggs, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant, Glen Arlis McDaniel, was arrested and charged with robberies in Benton and Madison Counties in December of 1979. He retained an attorney, James Dickson, to represent him on all of the charges. Trial was set for April 20,1980, but the appellant skipped out of the state. He was arrested in Kansas in 1982 on a drug charge, on which he was convicted, and then brought back to Arkansas. His Madison County trial was reset for July 13, 1982. On July 7, 1982, he entered a plea of guilty in Madison County Circuit Court to charges of aggravated robbery and failure to appear, both pleas being part of a plea arrangement involving the Madison County charges and the Benton County charges as well. On January 9,1985, McDaniel filed a motion for post-conviction relief pursuant to A.R.Cr.P. Rule 37.1 alleging ineffective assistance of counsel. After a hearing below, the motion was denied. We affirm the ruling of the trial court.

On appeal, the burden is on the appellant to show ineffective assistance of counsel. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984); United States v. Cronic, 466 U.S. 648 (1984). The findings of the trial court will not be reversed unless they are against the preponderance of the evidence. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984). This court has followed the standard for cases challenging a guilty plea on the basis of ineffective assistance of counsel set out by Strickland v. Washington, 466 U.S. 668 (1984) and Hill v. Lockhart, __ U.S __, 106 S.Ct. 366 (1985), that the appellant must establish that his attorney’s counsel was not within the range of competence demanded in criminal cases, and that he was prejudiced in that, as a result of the attorney’s incompetence, the outcome of the proceeding was not reliable. See Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986); Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986); Smith v. State, No. CR 86-172 (March 16, 1987). In the present case, we find that the appellant has failed to carry his burden on the first requirement of the test, and it is therefore unnecessary to consider the requirement of prejudice.

Appellant has alleged that his counsel was ineffective because he failed to investigate sufficiently, did not interview the witnesses adequately, did not attempt to have certain evidence and a confession suppressed, and failed to fight the appellant’s extradition. Appellant contends Dickson made himself unavailable to the appellant and his family until shortly before trial, when he advised the appellant to accept the plea bargain because he had no defense prepared. Dickson testified to the contrary, asserting that he had consulted with the appellant on a number of occasions, and that he had investigated thoroughly. According to Dickson, the search and confession that appellant now claims were unconstitutional were actually voluntary, and could not have been successfully challenged. Dickson said he did not attempt to fight extradition because appellant did not wish to return to Kansas. After weighing what he considered slim chances of success at trial against the possibility of a much longer sentence and the chance that an additional charge might be filed, Dickson testified that, in his professional judgment, it would have been unwise to take the case to trial.

The trial court specifically found that Dickson had given effective assistance and had adequately prepared. In so finding, the court chose to believe Dickson’s testimony over that of the appellant. The appellant now asks that we overturn that decision, relying heavily on the fact that Dickson has been disbarred in an unrelated proceeding. It is squarely within the discretion of the court to resolve conflicts in testimony. Huff v. State, 289 Ark. at 409, 711 S.W.2d at 801. The judge is not required to believe any witness’ testimony. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). We cannot say that the court was clearly in error in choosing to believe Dickson. A disbarment proceeding may be initiated for a great many reasons unrelated to the attorney’s veracity, and, in any event, the trial court’s ability to observe the witnesses must weigh heavily against any attempt to attack credibility after the hearing.

The appellant also argues that a transcript of the Benton County plea hearing was improperly introduced at the hearing. The guilty pleas were entered in Benton County after those in Madison County. Appellant argues that the transcript was irrelevant as it came after the events in question, and that the trial court improperly admitted it under A.R.E. Rule 803 to show state of mind. The statements were clearly relevant for impeachment purposes since they contradicted the appellant’s testimony, and were therefore admissible under A.R.E. Rule 613. While there is no basis for admitting the statements under A.R.E. Rule 803, the evidence would come in substantively under A.R.E. Rule 801(d)(1) as an admission. Lewis v. State, 288 Ark. 595, 709 S.W.2d 56 (1986). The court’s decision should not be overturned if there was a proper basis for admission, even though the wrong reason was given. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). Accordingly, we affirm the trial court’s decision that appellant was not entitled to post-conviction relief.


text:
    CITY OF DAMASCUS, et al. v. Faren BIVENS, d/b/a BIVENS CONSTRUCTION CO.
    86-222
    726 S.W.2d 677
    Supreme Court of Arkansas
    Opinion delivered April 6, 1987

      Phil Stratton and Casey Jones, Ltd., by: Phil Stratton, for appellants.

      Brazil, Clawson & Adlong, by: William Clay Brazil, for appellee.
   David Newbern, Justice.

The issue presented in this appeal is whether a city which obtains physical improvements pursuant to an illegal contract may be held liable for the value of the improvements. We agree with the trial court’s judgment that it may, and thus we affirm.

In his complaint, the appellee, Bivens, alleged that in July, 1985, he entered into a contract with the appellant City of Damascus, and the named mayor and city council members, whereby he would reseal streets in the city for $16,262. He alleged the city had made a $3,000 down payment but had failed to pay further. He sought a judgment for $13,362.

The appellants responded that the contract was void for failure to publish notice to receive bids as required by statute. The appellants counterclaimed for the $3,000 paid to the appellee, claiming it was an illegal exaction.

The appellee responded that the contract was not invalid and that the appellants should be estopped from claiming its invalidity.

A hearing was held in which the parties stipulated that the appellee was approached by the appellants to submit a proposal for street repairs. The appellee’s proposal was accepted by a vote of the city council. A contract was entered, and the city did not advertise for bids or take any other bids.

Only the appellee testified. He said that, at the time he entered the contract, he had no knowledge whether the city was taking bids or asking for proposals other than his. From the following testimony it appears that the court raised the prospect of considering recovery by the appellee on the theory of unjust enrichment or contract implied in law or quantum meruit before the witness testified:

By Mr. Stratton [counsel for the appellants]:
Were you ever notified by the City that they had some questions about the quality of your work?
By Mr. Brazil [counsel for the appellee]:
Your Honor, I’m going to object to getting into that. It is not raised, it is not pled.
The Court: What is the purpose of it, Mr. Stratton?
Mr. Stratton: Well, your Honor, as we discussed in chambers, if the Court finds a certain situation to imply certain rules of law to the fact as he understands them, then it’s a question of damages, whether it’s the contract price or the value received.
The Court: Well, that sounds like quantum meruit.
Mr. Stratton: You’d have to apply that and I think it will take some evidence on that, your Honor.
The Court: I’ll hear it for whatever I might determine its value to be. I will not consider any incompetent evidence. Even though I hear it and it turns out to be it was incompetent, I will not consider it. The difference is we don’t have a jury here and I’m not going to be misled.

No further evidence was taken on the value of the services provided by the appellee.

In a letter opinion, the court found the appellee had no knowledge whether the appellants followed the law with respect to bids on the project. He found the appellee thought he was repairing the streets pursuant to a valid contract, but that the appellants had not met the requirement of Ark. Stat. Ann. § 14-611 (Supp. 1985) that notice of intention to receive bids be published. In the following paragraph of his opinion the judge clearly concluded the city would be unjustly enriched if the appellee were not allowed to recover:

I conclude the plaintiff is entitled to recover even though the contract was not valid at time of execution. The city has gained the benefits of plaintiffs work under a contract plaintiff thought was valid. The benefits cannot be returned. The city would be unjustly enriched if the plaintiff were denied recovery.

The judgment awarded the appellee $13,362.

We find that the unjust enrichment principle is firmly embedded in Arkansas law in the context of work performed pursuant to illegal contracts made by political subdivisions such as cities and counties. We alluded to it as recently as 1980 in a case where we ultimately found a valid contract to exist. McCuistion v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980). We have permitted restitution based on unjust enrichment even when the associated contract was “void.” City of Little Rock v. The White Co., 193 Ark. 837, 103 S.W.2d 58 (1937); International Harvester Company v. Searcy County, 136 Ark. 209, 206 S.W. 312 (1919). Cf. Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (1951).

When the recovery is based on unjust enrichment, as opposed to damages for loss occasioned by breach of contract, the award is measured by the value of the benefit conferred upon the party unjustly enriched. Yaffe Iron & Metal Co. v. Pulaski County, 188 Ark. 808, 67 S.W.2d 1017 (1934).

The appellant argues that by awarding the balance due on the contract the trial court was enforcing the contract rather than awarding the value of the services. That is not necessarily so. We have held that if the party against whom an unjust enrichment award is levied has not shown that the value of the benefit conferred is less than the payment called for in the contract, it is not error to base the unjust enrichment award on the contract price or that which has already been paid pursuant to the contract. Revis v. Harris, supra; Gladson v. Wilson, 196 Ark. 996, 120 S.W.2d 732 (1938). The contract price is some evidence of the value of the benefit conferred. See D. Dobbs, Remedies, pp. 269, 949 (1973).

The appellant cites Republic Power & Service Company v. Gus Blass Co., 165 Ark. 163, 263 S.W. 785 (1924), for the proposition that where a contract is illegal, the claimant may not recover unless he can do so without any aid from the illegal transaction. That is so where the recovery sought must be based upon the contract, but it is not so where the recovery is for unjust enrichment.

Affirmed.

       As noted above, the contract price stated in the complaint was $16,262. The appellee alleged he had been paid $3,000 but was entitled to a judgment for $13,362, or $ 100 more than the difference. Also the parties stipulated the appellee had been paid $491 in addition to the $3,000 alleged. Arguably, the court’s award was $591 over that which the appellee could have recovered under the contract. As the appellants have not argued excessiveness of the award, however, we will not consider any possible error in its calculation.


author: John I. Purtle, Justice.

text:
    Adley BELL, et al. v. Floyd H. FULKERSON, et al.
    86-238
    727 S.W.2d 141
    Supreme Court of Arkansas
    Opinion delivered April 13, 1987

      Dan J. Kroha and Royce L. Lewis, for appellant.

      House, Wallace & Jewell, P.A., by: Daryl G. Raney and Anne Owings Wilson, for appellee.
   John I. Purtle, Justice.

The appellants, who reside in Sewer Improvement District 222 (SID 222), filed suit in chancery court to enjoin the district from issuing bonds without an election. The trial court dismissed the complaint for failure to state a cause of action.

For reversal the appellants argue that the court erred in finding: (1) that SID 222’s commissioners and the district did not constitute the state, a city, county, town or other municipality within the meaning of Ark. Const, of 1874, art. 16, § 1 and 2 that this constitutional provision is inapplicable to SID 222 and the bonds issued by it. Neither point is persuasive and we affirm.

The arguments for reversal are so closely related that they can be condensed into the single argument: that the trial court erred in finding that sewer improvement districts are not bound by the provisions of Ark. Const, of 1874, art. 16, §§ 1 and 2. The appellants candidly admit that all of our prior decisions have held that improvement districts are not municipalities within the meaning of Article 16. Acknowledging that almost 100 years of precedent is contrary to their position, they urge us to give “plain meaning” to the words of Article 16 as we did in City of Hot Springs v. Creviston, 288 Ark. 286, 713 S.W.2d 230 (1986), and require an election prior to the issuance of bonds. Article 16, section 1, in part, states:

Neither the state, nor any city, county, town or other municipality in this state, shall ever lend its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidence of indebtedness, except such bonds as may be authorized by law . . . provided that cities of the first and second class may issue by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election. . . .

The appellants are correct in acknowledging that we have held many times that an improvement district is not a municipality governed by the provisions of Article 16. City of Hot Springs v. Creviston, supra, and Fitzgerald v. Walker, 55 Ark. 148, 17 S.W. 702 (1891). In Eaton v. McCuen, 273 Ark. 154, 617 S.W.2d 341 (1981), we stated: “It is settled law that Article 16 does not apply to assessments for improvement districts.” Without citation of additional precedent, we again hold that an improvement district is not a municipality and is not bound by the restrictions contained in Article 16.

Even if the bonds issued by SID 222 were held to be under the restrictions of Article 16, the bonds would be valid without prior voter approval because they were issued before Creviston was decided. In Creviston this Court specifically held that bonds issued prior to that decision were not affected by it.

Based upon the well-established principle that improvement districts are not bound by the provisions of Article 16, we find that the trial court was correct in dismissing appellant’s complaint for failure to state facts upon which relief could be granted.

Affirmed.

Hays and Glaze, JJ., not participating.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Marilyn HARDY, Thelma HOOD, and Creal HOOD v. Robert Lee BATES
    86-282
    727 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered April 13, 1987

      Young & Finley, for appellants.

      Hankins, Capps, Hicks & Madden, by: Paul D. Capps, for appellee.
   Robert H. Dudley, Justice.

The three appellants filed suit against appellee for damages sustained in an automobile accident. At trial, the appellee did not contest liability and all three appellants obtained judgments against appellee. The appellants, apparently unsatisfied with the amount of their verdicts, seek reversal and remand for a new trial. We affirm.

During presentation of the appellants’ case-in-chief, the attorney for the appellee objected to the admission of the testimony of Ron Baker, a Doctor of Chiropractic, and asked to voir dire the witness. On voir dire the witness gave his educational qualifications and then admitted that he was not on the staff of any hospital, was not licensed by the state to admit patients to hospitals, was not licensed to perform surgery, and was not licensed to prescribe medicines. The appellee then objected to the qualification of Dr. Baker as an expert. The trial court overruled the objection. The trial court ruled correctly. We follow the general rule that a chiropractor is competent to testify in a personal injury action, as an expert medical witness, concerning matters within the scope of the profession and the practice of chiropractic. Stevens v. Smallman, 267 Ark. 786, 590 S.W.2d 674 (Ark. App. 1979); and see Dorr, Gray & Johnston v. Headstream, 173 Ark. 1104, 295 S.W. 16 (1927); see also Annot. Chiropractor’s competency as an expert in personal injury action as to injured person’s condition, medical requirements, nature and extent of injury, and the like, 52 A.L.R.2d 1384 (1957).

Later, during Dr. Baker’s direct testimony, appellants’ attorney was asking questions about appellant Creal Hood’s permanent injuries. The material colloquy was as follows:

Q. Does he have any permanent disability?
A. Yes, sir. We —
BY MR. CAPPS [Appellee’s attorney]: Objection, Your Honor. There’s not a proper foundation laid for his opinion on permanent disability. He’s not qualified to testify or render an opinion regarding permanent disability.
BY THE COURT: I’ll sustain that, Mr. Young [Appellants’ attorney].

Neither the scope of the profession nor the extent of the practice of chiropractic were developed at that point of the trial, and eleven questions later, with none of the questions being on the scope of chiropractic, the following colloquy took place:

Q. Have you found a permanent impairment of his body?
BY MR. CAPPS: Same objection, Your Honor. He’s not qualified.
BY THE COURT: I’ll sustain that.
BY MR. YOUNG:
Q. From a chiropractor’s standpoint.
BY MR. CAPPS: Same objection.
BY THE COURT: I’ll sustain that.

The appellants contend that the rulings prohibiting the witness from testifying about permanent injuries were erroneous. We have said many times that whether a witness may give expert testimony rests largely within the sound discretion of the trial court and that determination will not be reversed unless an abuse of that discretion is found. B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984); Firestone Tire and Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982); Arkansas Land & Cattle Co. v. Anderson-Tully Co., 248 Ark. 495, 452 S.W.2d 632 (1970); Ratton v. Busby, 230 Ark. 667, 326 S.W.2d 889 (1959); Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S.W.2d 684 (1953). We cannot say that the trial judge abused his discretion in this case. The general rule concerning expert medical testimony by chiropractors, stated above, limits the testimony of a chiropractor to matters within the scope of the profession and the practice of chiropractic, hence a chiropractor can testify only about permanent disabilities which are within the scope of his field, the same as any other medical expert. Here, a foundation was not laid to show the scope of the chiropractor’s field and, therefore, we are unable to say from the record before us that the trial judge abused his discretion.

Appellants’ second point of appeal is that they were all three prejudiced by the trial court’s response of “I’ll sustain that,” to the objection by appellee’s attorney “Same objection, Your Honor. He’s not qualified.” Appellants neither cite cases, nor make a convincing argument on the point, and it is not apparent without further research that the argument is well taken. In Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977), we said assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken. Equally as prejudicial to consideration of the point is the fact that the alleged error was not brought to the attention of the trial court. For that additional reason, we will not consider it. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Doctor Baker was qualified by the court as an expert witness in the field of chiropractic. His testimony concerning two of the plaintiffs was not challenged by the appellee. However, as to the third plaintiff, there was an objection. The objection was presented at a point in the testimony when the permanent impairment of the third plaintiff was sought to be established. The following discourse occurred:

COUNSEL FOR APPELLEE: Same objection. Your Honor. He’s not qualified.
THE COURT: I’ll sustain that.
COUNSEL FOR APPELLANT: From a chiropractic standpoint?
APPELLEE’S COUNSEL: Same objection.
THE COURT: I’ll sustain that.

There are two reasons why the court erred in sustaining the objections. First, the witness had earlier been qualified as an expert in his field. Second, the manner in which the objection was offered and sustained tainted the entire testimony of Dr. Baker. Also, the jury was most likely left with the impression that the chiropractor’s testimony relating to the other plaintiffs was not qualified expert testimony.

There is no controlling rule or precedent on point in Arkansas; however, by using common sense one would be forced to conclude that prejudicial error occurred. The jury obviously tried to please the trial judge by bringing in a verdict for less than the out-of-pocket expenses for each of the three plaintiffs.

It is not possible that Dr. Baker somehow became “unqualified” during the progress of the trial. He was asked a question which was clearly within the chiropractic field of expertise. Back injuries are the main area of concentration of the chiropractic profession. Furthermore, the counsel for appellants limited his question to the field of chiropractic. I think the prejudice to all three plaintiffs is obvious, and I would remand the case for a new trial.


author: Steele Hays, Justice. Tom Glaze, Justice,

text:
    The HOME INDEMNITY COMPANY v. The CITY OF MARIANNA, ARKANSAS, et al.
    86-194
    727 S.W.2d 375
    Supreme Court of Arkansas
    Opinion delivered April 13, 1987
    [Rehearing denied May 11, 1987.]

      Lovett Law Firm, by: Mel Sayes, for appellant.

      Daggett, Van Dover, Donovan & Cahoon, by: Robert J. Donovan, for appellee.
   Steele Hays, Justice.

This appeal by The Home Indemnity Company is from a summary judgment granted to the City of Marianna ordering Home to defend the city under a policy of liability insurance issued by Home.

Marianna, its mayor and aldermen, were defendants in a pending federal suit brought by a group of Marianna black voters alleging violations of the Voting Rights Act of 1965 and asking that the Marianna election system be declared unlawful and any further implementation of the city’s redistricting plan of 1982 be enjoined. The suit asked for court costs, necessary expenses of litigation, attorneys fees, and “such other relief as may be just and equitable.”

Marianna called on Home and the Arkansas Municipal League, administrator of the Municipal Legal Defense Program, to defend it in the federal suit. When both Home and the League refused, a declaratory judgment action was filed by Marianna.

The trial court denied the city’s motion for summary judgment against the League, but granted Marianna’s motion for summary judgment against Home. Home and Marianna brought separate appeals. We recently sustained the summary judgment granted to the League, see City of Marianna v. Arkansas Municipal League, Administrator, Municipal Legal Defense Program, 291 Ark. 74, 722 S.W.2d 578 (1987), and by this opinion we aifirm the summary judgment on behalf of Marianna against Home.

Home’s policy — termed a public officials errors and omissions policy — covers causes of action accruing between August 30, 1982 and August 30, 1985. However, prior acts occurring after August 30,1979 are covered by endorsement. The policy obligates Home to pay damages and to defend suits for damages resulting from wrongful acts occurring within the period covered.

Home argues it was error to grant summary judgment because the suit in federal court was not a suit for damages. Home’s policy states it will pay “all sums which the insured shall become legally obligated to pay as damages because of any WRONGFUL ACT which occurs during the policy period and arises out of the discharge of duties by an insured on behalf of a public entity.” The policy also states Home has “the right and duty to defend any suit against the insured seeking damages for claims to which this insurance applies, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient. . . .”

Home relies heavily on the fact that the federal plaintiffs seek no damages, merely injunctive and declaratory relief, along with costs, expenses and attorney’s fees. Home cites a variety of sources in support of the argument that attorney’s fees and court costs are not ordinarily viewed as damages. We readily agree that such expenses are not normally regarded as damages. But we do not agree that issues basic to insurance coverage can properly turn on what “ordinarily” pertains. Certainly the coverage itself was never intended to stand or fall on terms which are subject to differing interpretation. Moreover, we find some elasticity in the word “damages.” In Nat Harrison Associates, Inc. v. Gulf States Utilities Co., 491 F.2d 578 (5th Cir. 1974) it was said, “It has long been the general rule that attorney’s fees may be recovered as an item of damages (emphasis supplied) where specifically authorized by statute or contract. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967).” And see Garratt v. Kendall, 212 Ark. 210, 205 S.W.2d 192 (1947); Stocker Hinge Mfg. Co. v. Darrell Industries, Inc., 99 Ill. App. 3d 340, 425 N.E.2d 550 (1981 ); Flinkote Co. v. Presley of Northern California, 201 Cal. Rept. 262, 154 C.A.3d 458 (1984); Herris v. Krasne, 302 P.2d 289 (Cal. 1956); O’Sullivan v. Dist. Ct. of Fergus County, 256 P.2d 1076 (Mont. 1953); Manko v. City of Buffalo, 187 Misc. 471, 67 N.Y.S. 2d 101 (1946); Swaner v. Union Mortgage Co., 105 P.2d 342, 99 Utah 298 (1940); Cornelison v. U.S. Bldg. & Loan Assn., 292 P.2d 243, 50 Idaho 1; Col. Dev. Co. v. Creer, 80 P.2d 914 (Utah 1938); Employers’ Indemnity Corp. v. Southwest National Bank, 299 S.W. 676 (Tex. 1927). Furthermore, Home could easily have eliminated the uncertainty by defining “damages” in its policy. It chose not to do so and we are unwilling to deny coverage on that equivocal ground.

Turning elsewhere for guidance, we find cases on both sides of the issue. In Aetna Casualty and Surety v. Hanna, 224 F.2d 499 (5th Cir. 1955), the District Court, applying Florida law, held there was no liability by Aetna to its insureds, the Hannas, under a comprehensive personal liability policy requiring Aetna “to pay damages.” The Hannas were sued by adjoining landowners to remove boulders and fill materials and to erect a retaining wall on low-lying property or be subject to an assessment of damages. Aetna refused to defend and after the litigation was concluded with no assessment of damages, the Hannas sued Aetna. The court held there was no coverage under the policy against mandatory injunctive orders and to so construe the unambiguous language of the policy would do violence to its plain provisions.

In Ladd Construction Co. v. Insurance Co. of North America, 73 Ill. App. 3rd 43, 391 N.E.2d 568 (1979), INA provided coverage to Ladd under a multiple liability policy obligating INA to pay “all sums which the insured shall become legally liable to pay as damages” and to defend such claims. Burlington Railroad sued Ladd for a mandatory injunction to remove slag from its right-of-way and “for such other relief as equity and conscience require.” Citing Hanna and rejecting Doyle v. Allstate, infra, the Illinois Court agreed with INA that the policy covered only payments to third persons having a legal claim for damages.

In Desrochers v. New York Casualty Co., 106 A.2d 196 (N.H. 1954), it was held that the cost of complying with a suit for injunctive relief was not to be considered as damages within the meaning of a comprehensive liability policy.

In Doyle v. Allstate Ins. Co., 154 N.Y.S.2d 10 (Ct. of App. of N.Y. 1956) and United States Aviex Co. v. Travelers Ins. Co., 336 N.W.2d 838 (C.A. Mich. 1983), a different result was reached. In the latter case, Aviex was notified by the Michigan Department of Natural Resources that Aviex would be required to investigate the extent of toxic contamination to underground water resulting from a fire at Aviex’s chemical manufacturing facility. Aviex was insured by Travelers under a policy which obligated Travelers to pay on behalf of Aviex all sums which the insured shall become obligated to pay “. . . as damages because of . . . property damage.” Travelers denied coverage as to any contamination of water because no claim for damages had been presented.

Aviex spent approximately $80,000 in testing expenses and in obtaining estimates of the costs of cleanup. In Aviex’s declaratory suit against Travelers the trial court held Travelers was obligated to defend any claim or action and to pay for any damages, including reimbursement of the testing expenses incurred by Aviex. The appeals court affirmed the trial court on Travelers appeal. The opinion carefully examines Hanna, Ladd and Desrochers, supra, and rejects them as interpreting “damages” too narrowly:

If the state were to sue in court to recover in traditional “damages”, including the state’s costs incurred in cleaning up the contamination, for the injury to the groundwater, defendant’s obligation to defend against the lawsuit and to pay damages would be clear. It is merely fortuitous from the standpoint of either plaintiff or defendant that the state has chosen to have plaintiff remedy the contamination problem, rather than choosing to incur the costs of cleanup itself and then suing plaintiff to recover those costs. The damage to the natural resources is simply measured in the cost to restore the water to its original state.

In Doyle v. Allstate, supra, Allstate issued a comprehensive personal liability policy to Doyle by which Allstate undertook to pay all sums Doyle might become legally obligated to pay as damages because of bodily injury, sickness or disease and to defend any suit seeking damages “on account thereof, even if such suit is groundless, false or fraudulent.” While coverage was in effect, suit in equity for an injunction was brought against Doyle by neighboring landowners named Markle, asking that Doyle be permanently restrained from operating a dog kennel on his property and seeking “such other and further relief as to the court may seem just and equitable besides the costs and disbursements of this action.”

Allstate refused to defend and Doyle successfully defended at his own expense and then sued Allstate. Doyle’s motion for summary judgment was denied by the trial court and affirmed on appeal to the Appellate Division of the Supreme Court. Before the Court of Appeals those orders were reversed. The opinion notes that if the Markles had established their right to equitable relief, damages could have been awarded to them which Doyle would have been legally obligated to pay.

The policy does not draw any distinction between damages awarded by a court of law and those awarded by a court of equity. [Doyle] was justified in expecting that if suit was instituted against him wherein he might be legally obligated to pay a sum of money as damages because of his operating a dog kennel, the insurer would defend. It is of no moment that such a judgment was not actually obtained against [Doyle]. [Allstate] was obligated to defend against the possibility thereof “even if such suit is groundless, false or fraudulent.”

It might be possible to agree with the Ladd and Hanna courts if Home’s policy was essentially identical to those. The Hanna court expressly observed that Aetna’s obligation to pay damages was “plain and unambiguous,” whereas, Home’s policy presents contradictions. The language of the insuring clause seems clear enough. As we have noted, it obligates Home to pay “all sums which the insured shall become legally obligated to pay as damages (our emphasis) because of any WRONGFUL ACT which occurs during the policy period and arises out of the discharge of duties by an insured on behalf of a public entity.” But the endorsement pertaining to prior acts makes no mention of damages, it simply extends liability “to include any wrongful act which occurred on or after the retroactive date shown hereon. . . provided the insured had no knowledge prior to the inception date of this policy of the wrongful act to which this endorsement applies.” (Our emphasis.)

It will be seen at once that liability is extended to include any wrongful act without qualification, which leaves at best an ambiguity in the policy. Nor can we sublimate the language of the endorsement in favor of the policy proper, as we are required to gather the intention of the parties from the entire contract and not from detached provisions. Pate v. USF&G, 14 Ark. App. 133, 685 S.W.2d 530 (1985); Shepherd v. Mutual Life Ins. Co. of NY, 63 F.2d 578 (C.A. 5th 1938); Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971). Ambiguous provisions are to be construed most strongly against the insurer, which drafts the policy. Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979); State Farm Mutual Auto Ins. Co. v. Traylor, 263 Ark. 92, 562 S.W.2d 595 (1978).

Whether we view the endorsement and the policy as having equal status, although ambiguous, or view the endorsement as controlling under the general rule that where the two are contradictory the endorsement governs, (see Continental Casualty Co. v. Phoenix Construction Co., 296 P.2d 801, 57 A.L.R.2d 914 [Col. S. Ct. 1956]; 44 Corpus Juris Secundum, Insurance, § 300, p. 1208), the result is the same — the uncertainty must be resolved against the insurer. American Indemnity Company v. Hood, 183 Ark. 266, 35 S.W.2d 353 (1931).

Another distinction between this case and the Hanna and Ladd cases is found in the fact that in those cases the injunctive suits had concluded without an award of damages and, hence, it was an accomplished fact that damages were not sought against the insured. In our case the appellees, as defendants in the federal suit, are still potentially exposed to that possibility until the litigation is concluded. It is settled that damages are recoverable under Section 1983 of the Civil Rights Act (42 U.S.C. 1983) Carley v. Piphus, 435 U.S. 247 (1978), and the Federal Rules of Civil Procedure, Rule 54(c) give the trial court the authority to grant full relief to which the successful party is entitled:

Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. (Emphasis added).

This principle of potential exposure was applied in an analogous situation in Thomas v. Appalachian Ins. Co., 335 F.2d 789 (5th Cir. 1976). There the insured, a police officer, was sued only for punitive damages for “intentionally and maliciously” using excessive force in arresting the plaintiff. The insurer refused to defend because the policy excluded coverage as to punitive damages. While conceding that punitive damages did not come within the coverage of the policy, the court rejected Appalachian’s argument:

We cannot say that plaintiff’s petition unambiguously excludes coverage for damages allegedly caused plaintiff. The petition alleges a claim within the scope of the Civil Rights Act, Title 42 of the United States Code, Section 1983. Although plaintiff prayed for punitive damages only, the federal court is not restricted to such an award. The plaintiff may be granted any relief the court believes he is entitled to, even if he has not demanded such relief in his pleading. Federal Rule of Civil Procedure 54(c); Hawkins v. Frick-Reid Supply Corporation, 154 F.2d 88 (5th Cir. Court of Appeal 1946); Smoot v. State Farm Mutual Automobile Insurance Company, 299 F.2d 525 (5th Cir. Court of Appeal 1962). Plaintiffs petition contains allegations, which if proven, would amply support the federal courts granting of compensatory damages.

Were we to sustain Home’s contention that the policy is designed to cover only the defense of cases in which damages are sought we would be resolving a doubtful meaning in favor of the insurer and at the expense of the insured, against near universal authority to the contrary. St. Paul Fire & Marine Ins. Co. v. Kell, 231 Ark. 193, 328 S.W.2d 510 (1959). Jefferson Insurance Company v. Hirchert, 281 F.2d 396 (8th Cir. 1960).

Finally, Home’s argument that it should not be required to defend because it cannot take whatever corrective measures might be imposed by the federal district court to bring the insured into compliance with the voting rights act is not convincing. Certainly Home will not be expected to revise election procedures or redraw voting precincts, as only the appropriate municipal officials can do those acts. Home’s duty, however, is to defend under its policy weighing the pros and cons of the litigation in consultation with its insured, as it would do in other cases. If the federal plaintiffs prevail and mandatory orders issue, it will be the officials of Marianna who will take the necessary action, not Home.

Home’s secondary argument is that genuine issues of material fact remain. We are not persuaded that that is so. One fact assertedly undecided deals with the issue of whether damages will result in the federal suit. But the duty to defend is broader than the duty to pay damages and as we have seen, it is enough if the possibility of damages exists. If injury or damage within the policy coverage could result, the duty to defend arises. Commercial Union Ins. Co. v. Henshall, 262 Ark. 117, 553 S.W.2d 274 (1977).

Another fact alleged to remain relates to a provision in Home’s policy that it shall be excess insurance over other collectible insurance and that the Municipal Legal Defense Program constitutes other valid insurance. Our decision in Marianna v. Arkansas Municipal League, supra, answers that contention.

Finally, Home urges that the appellees could have had knowledge of the wrongful acts prior to August 30,1982, thereby defeating the requirements of the prior acts endorsement. But as appellees point out, all the acts relevant to the suit in federal court allegedly occurred during the coverage of the policy itself and are not dependent on the endorsement.

The order is affirmed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. Whether The Home Indemnity Co. (Home) is required to defend this Voting Rights Act cause is a close issue, but I agree with the majority that Home is obligated to do so. I reach that conclusion primarily because the appellees, as the majority points out, remain potentially exposed to an award of damages until that voting rights litigation is terminated. See Commercial Union Insurance Company of America v. Henshall, 262 Ark. 117, 553 S.W.2d 274 (1977). In addition, Home’s policy language is subject to some doubt or ambiguity in its interpretation concerning the company’s obligation to defend under the circumstances posed here, and that doubt justifiably should be construed against the company issuing the policy.

Nevertheless, I cannot agree that Home’s policy — under any construction or interpretation — can be read to mean the company agreed to pay any award of attorney’s fees as damages. The plaintiffs, who brought the voting rights suit against appellees, are requesting not only that their voting rights be enforced, but also they request an award of reasonable attorney’s fees. While the majority, by footnote in its opinion, states it is not deciding whether attorney’s fees are damages within the meaning of Home’s policy, it cites a number of cases in its opinion indicating that attorney’s fees may be recovered as an item of damages. Such a proposition runs contrary to established Arkansas law. See Romer v. Leyner, 224 Ark. 884, 277 S.W.2d 66 (1955). In fact, both Arkansas case law and the other legal authority cited by the majority fail to support such a holding. See, e.g., Doyle v. Allstate Ins. Co., 154 N.Y.S.2d 10 (Ct. of App. of N.Y. 1956), cited by the majority, wherein the New York court concluded it was settled law that the legal expenses necessarily incurred by the plaintiff are not recoverable as general or special damages.

Thus, while I agree to affirm the trial court’s decision holding that Home is obligated to defend appellees in the pending federal voting rights case against them, I wish to make my own position clear that I do not believe Home’s policy covers the payment of attorney’s fees as damages. Therefore, I concur.

       It should not be assumed that we are deciding whether attorney’s fees, should they be allowed in the federal case, are damages within the meaning of the policy. That is not before us.