author: Tom Glaze, Justice.

text:
    Hally Lewis GIPSON v. Cynthia Kaye GARRISON
    91-293
    824 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered February 17, 1992

      Russell C. Atchley, for appellant.

      J. Scott Davidson and H. David Blair, for appellee.
   Tom Glaze, Justice.

The appellee, Cynthia Garrison, was involved in three automobile accidents within a three year period. The'first occurred in November 1985. It was settled for $750.00. The second accident, which is the subject of this appeal, happened on July 9, 1986. In that accident, the appellee was injured when her automobile was struck from behind by the appellant, Hally Lewis Gipson. The third accident took place in July 1987, when Bruce Clayton ran a red light and struck appellee’s car. Appellee subsequently filed a negligence action against both Clayton and the appellant. Clayton’s case involving the 1987 claim was settled for $15,000.00. Appellee then proceeded to trial against appellant and the jury returned a verdict in her favor in the sum of $68,000.00. The appellant raises four issues on appeal. We find no reversible error and therefore affirm.

Appellant first argues that the trial court erred in refusing to grant a new trial in that the jury verdict was contrary to the evidence. Specifically, appellant claims that his negligence was not the proximate cause of the injuries sustained by the appellee. We disagree.

Ark. R. Civ. P. 59(a) provides that a new trial may be granted when the verdict or decision is clearly contrary to the preponderance of the evidence. And where a motion for a new trial is denied, the test on appeal, viewing the evidence in a light most favorable to the party resisting the motion, is whether there is substantial evidence to support the jury verdict. Weber v. Bailey, 302 Ark. 175, 787 S.W.2d 690 (1990).

In viewing the evidence in appellee’s brief, we easily conclude there is substantial evidence to support the jury verdict. Dr. Thomas Leslie, a family practitioner in Harrison, testified that there was no evidence of any ongoing problems with the appellee’s neck prior to the July 1986 accident. Dr. Stevenson Flanigan, a neurosurgeon who examined the appellee, assigned a five percent permanent partial function impairment to the appellee. Dr. Flanigan further opined the July 1986 accident caused appellee’s persistent symptoms. Dr. Charles Ledbetter, an orthopedic surgeon in Harrison, agreed that the July 1986 wreck was the most likely cause of appellee’s ongoing physical problems.

The appellee’s husband, Sheridan Garrison, testified that his wife had been in pain ever since the July 1986 accident. The appellee testified that, at the time of the third wreck in July 1987, she was still in pain from the July 1986 wreck. She further stated that she experienced sharp, immediate pain in the 1986 wreck and associated no such pain in the 1987 wreck.

The foregoing evidence, we conclude, substantially supports the jury verdict in appellee’s behalf. Accordingly, we affirm the trial court’s decision denying appellant’s motion for a new trial.

For his second point for reversal, appellant claims that the trial court erred in granting appellee’s motion in limine excluding, as evidence, the amounts received by the appellee in settlement of claims arising out of the 1985 and 1987 accidents. Appellant contends that the jury should have been entitled to consider those settlement amounts when determining the total measure of damages suffered by the appellee.

Rule 403 of the Arkansas Rules of Evidence states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge and his decision on such a matter will not be reversed absent a manifest abuse of discretion. McKenzie v. Tom Gibson Ford, Inc., 295 Ark. 326, 749 S.W.2d 653 (1988).

This Court has never addressed the issue of whether the amount received by a plaintiff in a previous settlement is admissible. In Clawson v. Rye, 281 Ark. 8, 661 S.W.2d 354 (1983), we allowed testimony regarding the plaintiffs lawsuit and settlement, reasoning that the jury had to know the plaintiff suffered damages from a prior accident in order to decide the injury and damages in the case before it. However, the Clawson court did not endorse the admissibility of the amount received in a settlement. Here, as in Clawson, the trial judge allowed evidence pertaining to the appellee’s claims and settlements. However, in considering the settlement amounts and their admissibility under Rule 403, the judge chose to exclude them. We are unable to say he abused his discretion in doing so. Thus, we uphold the judge’s ruling granting appellee’s motion in limine.

In his third asserted error, appellant claims that the damages awarded by the jury in the amount of $68,000.00 were excessive. The standard of review is whether the damages are so excessive as to shock the conscience of the court or demonstrate that the jury was motivated by passion or prejudice. West Union v. Vostatek, 302 Ark. 219, 788 S.W.2d 952 (1990); O’Neal Ford, Inc. v. Davie, 299 Ark. 45, 770 S.W.2d 656 (1989). In determining whether the amount was so great as to shock the conscience, we consider such elements as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 784 S.W.2d 755 (1990).

In the present case, the appellee presented evidence that she had incurred medical expenses in the amount of $13,500.00. As mentioned earlier, Dr. Stevenson Flanigan opined that the appellee had sustained a five percent permanent disability as a result of her injuries. Several witnesses testified the appellee’s injuries caused her ongoing mental and physical pain. Appellee also presented evidence that she had been required to curtail her past recreational and work activities, including her business as an interior decorator. In view of this evidence, we believe the award of damages is not so great that it shocks our conscience or demonstrates that the jury was motivated by passion or prejudice.

For his final point of error, appellant argues that the trial court erred in instructing the jury to consider damages for the appellee’s loss of ability to earn in the future. Appellant claims that such an instruction was contrary to the law and evidence presented because there was no evidence that the earning capacity of the appellee would be affected by the injuries she claimed to have sustained.

Damage resulting from loss of earning capacity does not require the same specificity or detail as does proof of loss of future wages. Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983). If the injury is permanent, proof of specific pecuniary loss is not indispensible to recovery for loss of ability to earn in the future. Coleman v. Cathey, 263 Ark. 450, 565 S.W.2d 426 (1978). A serious or permanent injury may sustain the submission of the issue of loss of earning capacity to the jury. Honeycutt v. Walden, 294 Ark. 440, 743 S.W.2d 809 (1988). Recovery in a claim for loss of earning capacity is to be determined by the application of the common knowledge and experience of the jurors to the facts and circumstances of the case. Coleman, 263 Ark. 450, 565 S.W.2d 426.

Although the appellee did not present specific evidence of pecuniary loss due to her inability to earn in the future, we hold there was sufficient evidence to warrant submitting this element of damage to the jury. As discussed previously, the appellee had been assessed a five percent permanent disability rating as a result of her injuries. Also, testimony was presented which showed the appellee was forced to forego her career as an interior decorator and liquidate her business. In addition, the jury had the opportunity to observe the demeanor and appearance of the appellee at trial. In sum, the instruction given in this case was proper under the circumstances.

For the reasons stated above, we affirm.


source: Caselaw Access Project

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

license: Public Domain

text:
    Annie Laurie Thornton EDWARDS, James T. Edwards and Kathy Ann Edwards Fossick v. FARM BUREAU MUTUAL INSURANCE COMPANY
    91-239
    823 S.W.2d 903
    Supreme Court of Arkansas
    Opinion delivered February 17, 1992
    [Rehearing denied March 23, 1992.]

      Roscopf & Higgins, by: Charles B. Roscopf, for appellants.

      L. David Stubbs, for appellee.

      Brown, J., would grant rehearing.

   Tom Glaze, Justice.

This case involves the construction of the will of J. P. Thornton, who died on September 2, 1961. Thornton was survived by his widow, Ava West Thornton (now Collins), a daughter from a prior marriage, Annie Laurie Thornton Edwards, and two grandchildren, James Edwards and Kathy Edwards Fossick. Since Thornton’s death, the relationship between Ava and Thornton’s daughter and grandchildren has been strained.

Thornton’s will devised Ava an undivided one-half interest for her life in his plantation situated in Desha County. In following paragraphs of the will, he devised Ava and Annie each a one-third fee simple absolute interest and James and Kathy together a one-third fee simple absolute interest in the plantation, all such fee simple interests being subject to Ava’s undivided one-half life interest. Thornton’s will language, in making these devises, has become an issue because Ava, who has had exclusive possession of the only dwelling on the plantation, claims all insurance proceeds ($75,000) covering the dwelling after it was destroyed by fire. Ava, undisputably, paid the premiums for this insurance coverage and she was named as the insured. Annie, James and Kathy claim entitlement to two-thirds of the proceeds, stating Ava had a fiduciary relationship with them as co-tenants which required her to protect and secure their common interest.

As a result of this dispute, Farm Bureau Mutual Insurance filed an interpleader action and deposited the insurance proceeds into the court registry. After a bench trial, the trial court held that all proceeds should be paid Ava. Annie, James and Kathy (hereafter appellants) appeal, arguing that the trial court erroneously found they were not co-tenants or tenants in common with Ava and that it incorrectly relied on the case of Jackson v. Jackson, 211 Ark. 547, 201 S.W.2d 218 (1947).

In the Jackson case, the testator devised a life estate in the mansion house to his widow, who by other terms in the will, was free from payment of the taxes and for improvements in maintaining the home place. The widow procured and paid premiums for fire insurance on the house, which was subsequently extensively damaged by fire. The trial court held the insurance proceeds were payable to the trustee named in the testator’s will to be held for the use and benefit of future interest owners of the testator’s estate. This court reversed, quoting 33 Am. Jur. Life Estates, Remainders, Etc. § 332, p. 838, as follows:

It is clearly the general rule that where a legal life tenant insures the property in his own name and for his own benefit and pays the premiums from his own funds, he is, at least in the absence of a fiduciary relationship between him and the remainderman existing apart from the nature and incidents of the tenancy itself, or of an agreement between him and the remainderman as to which of them shall procure and maintain insurance entitled to the proceeds of the insurance upon a loss; and the fact that the insurance was for the whole value of the fee is not generally regarded as affecting the right of the life tenant to the whole amount of the proceeds.

The Jackson court further quoted the following from 31 C.J.S. Estates § 46, p. 58:

It has been stated, as a general rule, that the life tenant is not bound to keep the premises insured for the benefit of the remainderman or reversioner, unless there is an agreement that he shall do so, or a provision to that effect in the instrument creating the estate; but that either may insure for his own benefit, the tenant for life and the remainderman-paying insurance for their respective interests. Ordinarily this is what is done, and it has been held that neither the life tenant nor the remainderman will be benefited by the other’s policy.

The court in Jackson concluded the testator’s widow never agreed to insure the premises for the benefit of the estate or the owners of future interests in the property, but instead procured the insurance in her own name and for her own benefit. Because the widow had no obligation under the will to insure for the benefit of the remainderman, this court held she was entitled to the insurance proceeds.

Appellants argue Jackson is inapplicable because there the will specifically left the widow a life estate in the home place and here Thornton’s will failed to mention the dwelling and instead devised Ava an undivided one-half interest for life in the entire plantation.

Appellants argue the present situation is more like the one in Krickerberg v. Hoff, 201 Ark. 63, 143 S.W.2d 560 (1940). Krickerberg involved a partition suit. A will was not in issue. However, the right to partition depended upon whether the parties in Krickerberg were co-tenants or tenants in common and thereby entitled to such remedy. In Krickerberg, through intestate distribution, the surviving husband, Mr. Krickerberg, received a life estate in one-half of the intestate’s property and the remainder vested in the intestate’s sister, Mrs. Hoff. At trial, Krickerberg and Hoff agreed Krickerberg had a life estate in an undivided one-half interest in the property and Hoff held fee simple title subject to Krickerberg’s interest. From these findings, this court in Krickerberg concluded Hoff possessed an undivided one-half interest along with Krickerberg in the entire property and Hoff held the remainder in fee. Apparently, the court determined that because Krickerberg had only an undivided one-half interest in the entire property, the other undivided one-half interest was in Hoff. Reaching this conclusion, the court held Krickerberg and Hoff were co-tenants or tenants in common and therefore held interests that could be partitioned.

In comparing the facts here with those in Krickerberg, appellants contend the language in Thornton’s will devised a split or one-half life estate in Ava, leaving the remaining one-half life interest to the remaindermen, i.e., Ava and the appellants. That being so, appellants claim a concomitant life interest and right to possession, which satisfies the definition of tenants in common. Appellants asserts that, because they were co-tenants or tenants in common with Ava, Ava had a fiduciary relationship with them and owed them a legal duty to protect and secure their common interest. Coffey v. Coffey, 274 Ark. 335, 625 S.W.2d 444 (1981); Brown v. Brown, 263 Ark. 189, 563 S.W.2d 444 (1978).

In reading the Jackson and Krickerberg cases, we conclude that both are distinguishable from the facts here. Nonetheless, the Krickerberg case does seem to underscore the ambiguous estate of title where only an undivided one-half life interest is devised or otherwise vested in an entire property, and subject to that one-half interest, the remaining fee simple is vested in others (which in the present case includes Ava as well).

The intention of Thornton, the testator, is to be gathered from the four corners of his will, considering the language used and giving meaning to all of its provisions when possible to do so. See In Re Estate of Conover, 304 Ark. 268, 801 S.W.2d 299 (1990). And, oral testimony is admissible only for the purpose of showing the meaning of the words used in the will when they are ambiguous,' and not to show what the testator intended, as distinguished from his expressed words. Id.

In reading Thornton’s will in light of Ava’s and the appellants’ arguments and the foregoing rules of construction in mind, we are left with two salient points, one, Thornton made no mention of the dwelling in his will and instead devised Ava an undivided one-half life interest in the entire plantation, and, two, he omitted any reference in his will to the other one-half life interest in his estate or who received it. However, Ava testified that, since her husband’s death, she had leased the plantation as farm land. In doing so, she kept one-half of the rents received under the leases and paid one-half of them to the appellants, thus indicating both parties have had a cognizable present possessory interest in the property.

We are compelled to conclude that both Ava and appellants have present possessory interest rights in the entire plantation, and that being so, they have, as co-tenants, a fiduciary relationship with one another. Therefore, we reverse and remand this cause with directions that the insurance proceeds be paid to the parties according to their respective interests.

Holt, C.J., and Brown, J., dissent.

Robert L. Brown, Justice,

dissenting. The testator and his wife, Ava Thornton (now Collins), lived in the main house of the 1,050-acre plantation in Desha County from 1930 until his death in 1961. Ava Collins continued to live in the main house until it burned in 1989.

The testator left a will in 1961 devising one-half of the plantation to his wife, Ava, and was silent about the life estate in the other one-half. He devised the remainder interest in the plantation in thirds: one-third to Ava; one-third to his daughter, Annie Thornton Edwards; and one-third to his grandchildren, James Edwards and Kathy Fossick. The testator stated that the remainder interests were subject to the life estate in Ava.

Ava insured the house for $75,000 and its contents for $25,000, and from 1980 forward she paid the insurance premiums on the house. Around 1980, the other possessors of the remainder interests expressly declined to participate in payment of the insurance premiums. When the house burned, Ava claimed all of the insurance proceeds, and the circuit court found in her favor. Under these facts, that decision appears entirely correct.

One basic principle that should guide us in the construction of the testamentary language is the testator’s intent. The testator clearly wanted Ava to remain in the house as she had for thirty years with him. As we said in Hastings v. Jackson, 201 Ark. 1005, 1009, 148 S.W.2d 305, 307 (1941): “We think it certain that the testator’s first and foremost thought was to provide a home for his elderly wife and to provide her with sufficient means to live in comfort and without financial embarrassment the remainder of her life.” That is undoubtedly what the testator wanted in this case — to provide a home for his widow for the balance of her life. No one suggests that the testator intended anything other than this. A more than reasonable conclusion is that the testator’s grant of a life estate in one-half of the plantation to Ava included the house.

In light of this salient point, to hold that when the house burned the widow must share the proceeds with other remainder interests flies in the face of reason. If the intent of the testator was for the widow to have a place to live, the testator clearly would have wished her to insure her interest and then to use the proceeds to rebuild the home in the event of its destruction.

The majority relies on a partition case involving a dispute between the decedent’s widower and her sister where no will was involved and where the property was not a house but two city lots. See Krickerberg v. Hoff, 201 Ark. 63, 143 S.W.2d 560 (1940). The case is readily distinguishable on the facts. In Krickerberg the issue was whether the property was subject to partition — not who was entitled to insurance proceeds following destruction of a house. It is true that we concluded that a tenancy-in-common existed between the widower who was a holder of a life estate in one-half of the property and the sister who held the property in fee simple subject to the life estate. But we also quoted with approbation from “Tenants in Common,” 7 R.C.L. 815: “It follows that to be a tenant in common one must have such a title as will authorize him to take and hold possession, and if he can never be entitled to the possession, or the control of the property, he cannot be a tenant in common.” Krickerberg, 201 Ark. at 67,143 S.W.2d at 562. No one seriously contends that the appellants, during Ava’s life, are entitled to possess the house or control it. Indeed, the circuit court found that she had the exclusive right to occupy the house after her husband died.

The majority states that a tenancy-in-common exists and, therefore, Ava had a fiduciary obligation to insure the home for the benefit of the remainder interests. There is no indication that the testator intended a fiduciary relationship regarding the house during his widow’s lifetime. To infer a tenancy-in-common under Krickerberg and then to make a second inference of fiduciary responsibility for the purpose of divesting the widow of her insurance proceeds is to deny the reality of the situation. A fiduciary obligation should not be imposed on these facts where the result will be that the widow will not have sufficient funds to construct a new home.

The case that should control this matter is Jackson v. Jackson, Trustee, 211 Ark. 547, 201 S.W.2d 218 (1947). The circuit court cited Jackson in its decision and was correct in doing so. In Jackson, the facts are similar in many important respects to those in this case. There, we considered a widow’s full life estate in a house where the testator’s children and one grandchild, held remainder interests. The widow insured the house which was partially destroyed by fire. After the fire, the trustee of the estate on behalf of the children and grandchildren began repairing the house and incurred costs. The issue at trial was whether the trustee could share in the insurance proceeds. The circuit court found that he could, but we reversed stating:

There was no obligation resting upon [the widow], in procuring insurance, to protect the interest of the remaindermen under the terms of the will. On the contrary, any fiduciary duty resting on the parties in this respect was owing from the trustee and remaindermen to the life tenant. . . .
There was no agreement on the part of [the widow] to keep the premises insured for the benefit of the estate or the owners of future interests in the property. [The widow] procured the insurance in her own name and for her own benefit. The premium was paid from her own funds under a personal contract of indemnity with the insurance company. The trustee failed to insure the property and was not a party to the insurance contract. . . .
Since [the widow] insured her own interest in the premises at her own expense and was under no obligation under the will to insure for the benefit of the remainder-men, and having made no agreement to do so, she is entitled to the proceeds of her policy of insurance free from the claims of appellees.

Jackson v. Jackson, Trustee, 211 Ark. at 552-553, 201 S.W.2d at 220-221.

What should decide this case is not only the testator’s obvious intent that the one-half life estate should include the house but also the fact that the appellants voluntarily ceased paying insurance premiums on the house about 1980 and failed to pay maintenance costs. Ava Collins had the exclusive right to occupy the house, and she continued to insure it to protect her interest. Under these facts, she is entitled to the insurance proceeds.

I respectfully dissent.

Holt, C.J., joins.

       We note that the doctrine of merger or its application, if any, was never argued.


author: Donald L. Corbin, Justice.

text:
    John DILLARD v. RESOLUTION TRUST CORPORATION as Receiver for Savers Federal Savings and Loan Association
    91-294
    824 S.W.2d 387
    Supreme Court of Arkansas
    Opinion delivered February 17, 1992

      J. Michael Hankins, for appellant.

      Friday, Eldredge & Clark, by: Harry A. Light, for appellee.
   Donald L. Corbin, Justice.

Appellant, John E. Dillard, appeals an order of the Pulaski County Circuit Court entering summary judgment in favor of appellee, the Resolution Trust Corporation (RTC), as receiver for Savers Federal Savings and Loan. For reversal of the summary judgment, appellant contends the trial court erred in applying the law. We find no error in the trial court’s granting summary judgment and affirm.

Appellant filed suit against Savers Federal Savings and Loan seeking reimbursement of $34,434.05 that he claims was negligently paid to his son from an account which was held in the names of “John E. Dillard or Cecilia Ann Dillard or John Vincent Dillard” (appellant, appellant’s former wife, and appellant’s son) but for which his son had not executed a signature card. After being substituted as the real party in interest, appellee answered the complaint, admitting the absence of the signature card but denying any negligence in honoring the withdrawal request of appellant’s son. Appellee then filed a motion for summary judgment with supporting brief and affidavit. Appellant did not respond to the motion nor file any affidavits of his own, however he was present and represented by counsel at the hearing on the motion. After conducting the hearing, the trial court entered an order stating as follows:

1. The Defendant filed a Motion for Summary Judgment, supporting Brief, and supporting Affidavit by Mr. C. E. Frost.
2. Plaintiff did not file a response to Motion for Summary Judgment, Supporting Brief, nor did Plaintiff file any Affidavit in rebuttal.
3. The facts as undisputed, reflect that account number 920151-8 was opened in the name of Mr. John Vincent Dillard or Mr. John E. Dillard or Mrs. Cecilia Dillard on or about February 10, 1983, and that Defendant’s records do not contain any written designation to the effect that the signature of more than any one person on the account was required to make withdrawal from the account. Further, the facts, as undisputed, reflect that a withdrawal request was executed from John Dilliard on or about July 29,1987, requesting that the sum of $34,434.05 be withdrawn from account number 920151-8, and that said withdrawal request as honored by Defendant and a check issued to John Vincent Dillard or John E. Dillard or Cecilia Dillard in the amount of $34,434.05.
4. From the facts, as undisputed, there does not appear to be any genuine issue of material fact remaining to be decided, and so from these undisputed facts and considering the applicable law the Motion for Summary Judgment should be granted.

Summary judgment is an extreme remedy that is granted only when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ARCP Rule 56(c); Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). Neither party is required to support or oppose the motion by producing supporting documents. However, if the moving party supports its motion by making a prima facie showing of an absence of factual issues and entitlement to judgment as a matter of law, the “adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits, or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” ARCP Rule 56(e). We have interpreted Rule 56(e) many times and have summarized its requirements by stating that once the moving party makes a prima facie showing of entitlement, the opposing party must meet proof with proof by showing a genuine issue as to material fact. Carmichael v. Nationwide Life Ins., 305 Ark. 549, 810 S.W.2d 39 (1991); Anderson v. First Nat’l Bank, 304 Ark. 164, 801 S.W.2d 273 (1990).

We conclude that appellee made a prima facie showing of entitlement to summary judgment and that appellant failed to offer proof of any issues of material fact. The trial court’s order accurately states the facts as alleged in appellee’s motion and affidavit. Appellant did not respond with any evidence that the facts were otherwise. In his complaint, appellant did allege a cause of action for negligently honoring his son’s withdrawal request. However, as Rule 56(e) states, appellant cannot rely on his pleadings to rebut appellee’s prima facie showing of entitlement to summary judgment. Therefore, the trial court was correct in concluding the case was appropriate for summary judgment.

It is true that appellee conceded there was no record of a signature card for appellant’s son. However, even after making this concession, appellee presented an argument that it was entitled to judgment under Ark. Code Ann. § 23-37-502 (1987), which required appellee to honor the son’s withdrawal request because he was one of three parties to the joint account and there was no written designation requiring the signatures of more than one of the three parties on the withdrawal request. Again, appellant dropped the ball and did not respond with any argument why, even with the absence of the signature card, appellee should not have honored his son’s withdrawal request.

Appellant’s appearance at the hearing on the motion is of no consequence since there is no transcript of the hearing included in the record filed on appeal. Given appellant’s failure to respond to appellant’s proof in its affidavit as required by Rule 56(e), appellant cannot so respond now for the first time on appeal. The trial court correctly applied the law as section 23-37-502 provides that appellee deal with only one party to a joint account unless there is a designation in writing that appellee deal with more than one of the parties to the joint account. Accordingly, we conclude the trial court’s granting of summary judgment was proper.

Affirmed.

Brown, J., not participating.


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

text:
    Glenda BROWN, Sam Brown, Tawana Brown Etue, Teresa Brown, and Troy Brown, Surviving Spouse and Next of Kin of Roy DeWayne Brown, Deceased v. ST. PAUL MERCURY INSURANCE COMPANY
    91-270
    823 S.W.2d 908
    Supreme Court of Arkansas
    Opinion delivered February 17, 1992

      John F. Gibson, Jr., for appellants.

      Mitchell, Williams, Selig, Gates and Woodyard, by: T. Scott Clevenger, for appellee.
   Robert L. Brown, Justice.

This is the third time that this case has been before us on appeal. For their third appeal, the appellants, Glenda Brown, Sam Brown, Tawana Brown Etue, Teresa Brown, and Troy Brown, who are the heirs of Roy DeWayne Brown, argue that the circuit court erred in dismissing their action because the doctrine of law of the case applies and resolves the issue. We agree with the appellants and reverse and remand.

On April 11, 1983, Roy DeWayne Brown either fell or jumped from the roof of the White House Alcoholism Treatment Center, where he was a patient, and died of the injuries. The complaint was filed by the appellants on April 10, 1986, which was almost three years to the date after Brown died. The appellee, St. Paul Mercury Insurance Company, moved for summary judgment and alleged that the injury was a medical injury and that the appellants failed to bring the action within the two-year statute of limitations that applies to medical injuries. See Ark. Stat. Ann. § 34-2616 (Supp. 1985), now codified at Ark. Code Ann. § 16-114-203 (Supp. 1991). The circuit court granted summary judgment to St. Paul, and we reversed and remanded the case, holding that although Brown’s death was due to a medical injury, “the complaint was timely filed as an action for wrongful death, which carries a three-year statute of limitations.” Brown v. St. Paul Mercury Insurance Company, 292 Ark. 558, 559, 732 S.W.2d 130, 131 (1987) (Brown I).

On remand, St. Paul moved to dismiss on grounds that the appellants’ complaint failed for noncompliance with the notice requirement under the medical malpractice, statutes. See Ark. Code Ann. § 16-114-204 (1987). The appellants then asked for a voluntary dismissal under Ark. R. Civ. P. 41(a), but the circuit court refused to grant the nonsuit and dismissed the appellants’ complaint for failure to give the statutory notice. We reversed and remanded because the right to take a voluntary nonsuit before final submission is absolute. Brown v. St. Paul Mercury Insurance Company, 300 Ark. 241, 778 S.W.2d 610 (1989) (Brown II).

Following the nonsuit in Brown II, the appellants filed the same complaint on July 23, 1990, and served a statutory notice for medical malpractice with the complaint. St. Paul moved to dismiss predicated on the appellants’ lack of timely notice under the medical malpractice statutes and noncompliance with the statute of limitations. The circuit court granted the motion on the grounds requested and found that the appellants failed to give the statutory notice in timely fashion. The circuit court further ruled that the one-year savings statute, Ark. Code Ann. § 16-56-126 (1987), did not apply because the action was never properly commenced due to failure to give notice, and, therefore, the July 23, 1990, complaint was filed out of time.

The appellants’ primary issue on appeal is whether the circuit court erred in disregarding the doctrine of law of the case. We stated the rule succinctly in 1989: “The general rule is that, where the pleadings and issues are substantially the same, all questions which were actually presented or which could have been presented in the first appeal are barred in the second appeal.” Alexander v. Chapman, 299 Ark. 126, 127, 771 S.W.2d 744, 745 (1989), quoting 5B C.J.S. Appeal & Error § 1825; Am. Jur. 2d Appeal and Error § 752.

In Brown I, the issue raised by the appellants on appeal dealt with whether the appellants’ cause of action was a wrongful death action or medical malpractice. We held that it was a wrongful death action and that the three-year statute of limitations under the wrongful death statute applied. Ark. Stat. Ann. §§ 27-906, 27-907, now codified at Ark. Code Ann. § 16-62-102 (1987). We stated specifically:

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

Brown I, 292 Ark. at 562; 732 S.W.2d at 132.

The issue of whether this is a medical malpractice action to be governed by the notice requirements and the two-year statute of limitations of the medical malpractice statutes or a wrongful death action was decided in Brown I. We held that this is a wrongful death action. Because this is a wrongful death action, compliance with the medical malpractice statutes, including § 16-114-204, is irrelevant. The doctrine of law of the case clearly applies.

The appellants filed their second complaint on July 23,1990, within the grace period permitted by the one-year savings statute. See Ark. Code Ann. § 16-56-126 (1987). We reverse and remand for a trial on the merits.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. Because I have always adhered to the belief that Brown’s death was not a medical injury, I have been of the view that the medical malpractice action statutes are not applicable to this case. For that reason, I join the majority opinion. See Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 563, 732 S.W.2d 130, 133 (1987) (Glaze, J., concurring) (Brown I); see also Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991).

There may be some who read the majority decision to hold the medical malpractice action statutes, particularly the statutory notice provision [Ark. Code Ann. § 16-114-204 (1987)], do not apply in a case where a death results from a medical injury. That issue, however, was not fully developed and argued in this appeal.

This present appeal is the third one in this case, and the result reached here is based largely on the law of the case doctrine. As a caveat to those attorneys who might find themselves, one day, involved in a medical malpractice lawsuit where a death ensued from a medical injury, they would be prudent to assume the medical malpractice action statutes still apply. In particular, I suggest following the directives of the notice provisions in § 16-114-204 (1987 and Supp. 1991), at least, until this court or the General Assembly has made it clear those requirements do not apply.

       In Brown I, the majority court found Brown’s death was a medical injury but applied the three-year wrongful death action statute of limitations rather than the two-year limitations set out in the medical malpractice statute, Ark. Code Ann. § 16-114-203 (1987). In a later decision, this court decided Brown’s injury did not fall within the definition of a medical injury. Bailey, 307 Ark. 14, 19, 817 S.W.2d 412, 414.


author: Robert L. Brown, Justice.

text:
    Ronald CHELETTE v. STATE of Arkansas
    CR 91-82
    824 S.W.2d 383
    Supreme Court of Arkansas
    Opinion delivered February 17, 1992

      Compton, Prewett, Thomas, & Hickey, P.A., by: Floyd M. Thomas, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Ronald Chelette, was convicted of capital murder and sentenced to life without parole. -He argues on appeal that the circuit judge improperly admonished the jury regarding a warrant that he had sworn out against the victim, and further that the circuit judge should have disqualified the prosecuting attorney because he was a witness in this case. We hold that neither point has merit, and we affirm the conviction and sentence.

The appellant and the victim, Walter Pinson, had a history of animosity caused in part by Pinson’s relationship with Carrie Chelette, whom the appellant described as his wife. Threats between the two had been exchanged over a period of time before the slaying. On July 20,1989, the appellant and Carrie Chelette’s older sister, Mary Bass, visited the prosecuting attorney, John Frank Gibson, and then signed an affidavit for a warrant alleging terroristic threatening by Pinson. They informed the authorities that ten days earlier on July 10, 1989, Pinson came to Mary Bass’s house in the early morning, brandished a pistol, and threatened to kill the appellant. Gibson assisted the pair in preparing the affidavit. He then had them appear before Circuit Judge Paul K. Roberts for a probable cause determination. Judge Roberts found that probable cause existed for the warrant, but no warrant was ever issued.

On August 8, 1989, the appellant shot and killed Pinson behind Pinson’s mobile home. According to the testimony of several state witnesses, including Union County Sheriff A. Pieroni, the appellant confessed to the following scenario. Carrie Chelette had a fight with Pinson and called the appellant and asked him to pick her up at Pinson’s mobile home. When he arrived, Carrie carried some of her things out to the car. Pinson then appeared with a gun. The appellant grabbed a .22 rifle that was in the car, chased Pinson, and shot him five times behind the mobile home. The pair first tried to take Pinson to the hospital. Realizing that he was dead, they placed the victim in the trunk of his own car and fled to Mississippi in the appellant’s car. They then returned to Arkansas the next day on August 9,1989, and the appellant called Sheriff A. Pieroni and confessed. The appellant’s position throughout has been the killing was done in self-defense.

On February 6, 1990, the prosecutor charged the appellant and Carrie Chelette with capital murder. On April 13,1990, the appellant moved to disqualify Gibson as prosecutor on grounds that he would be called as a defense witness. The circuit court denied the request, and the trial of the appellant ensued on September 5, 1990. The State waived the death penalty, and the appellant was convicted and sentenced to life without parole.

The appellant first contends that the circuit judge impermissibly commented on the evidence when he admonished the jury concerning the appellant’s affidavit against Pinson for terroristic threatening. The court gave the following cautionary instruction:

Again, I will remind the jury that you are not to consider for the truth of the matters asserted in Defendant’s Two, the affidavit, what is stated therein, if and when you see it, but that it is a complaint that came through, as far as it comes through this witness, it is a complaint that was made.
Now, I am going to leave it at that, as far as the cautionary, because there may be other possible things there. . . .

The appellant’s counsel argued vigorously to the circuit judge that the judge needed to clarify his instruction and advise the jury that the affidavit could be considered as evidence of the fact that the appellant had sought to invoke the legal process in a peaceful manner. The judge refused to comment further on the affidavit.

We hold that the circuit judge was entirely correct in his admonition to the jury and in his refusal to comment further. The judge mentioned as part of his admonition that the affidavit was a complaint against Pinson. There was other testimony of record, including the testimony of Judge Paul K. Roberts, that the appellant had sworn out a warrant (although the warrant was never issued) against Pinson for terroristic threatening. Thus, it was abundantly clear that the appellant had availed himself of the legal process. No additional comment from the circuit judge was required; the affidavit spoke for itself, and the jury was free to give it whatever weight it deemed appropriate. The court was also correct in advising the jury that the affidavit was evidence that the appellant had made a complaint but was not evidence of the truth of what was asserted in the affidavit.

For his second point, the appellant urges that the circuit judge erred in failing to disqualify John Frank Gibson as prosecutor on the basis that he was a defense witness and, thus, he could not be a witness at a trial in which he was also the advocate. Rule 3.7, Model Rules of Professional Conduct. The appellant did call Gibson as a witness, and Gibson testified in pertinent part as follows:

GIBSON: As I recall, I made a phone call or attempted to contact the sheriffs office, because they told me they had already been to the sheriffs office about this. And they were attempting to get a warrant on Walter Pinson for terroristic threatening or whatever I told them it would be under the circumstances that they gave me.
So I made contact with the sheriffs office and arranged fo the sheriffs office — I think it was B.M. Johnson was the one I talked to — to assist them in getting this warrant over here without me having to come over in person and attend to it.
DEFENSE COUNSEL: All right. Did you prepare the probable cause affidavit, or was it prepared —
GIBSON: I did not prepare this one. (Indicating). I prepared — I either prepared another one —... I either prepared another one or told the deputy what to prepare for them, because much to most people’s surprise, the prosecuting attorneys don’t issue warrants. We merely advise people who need a warrant as to how to get it done. Sometimes we will assist them in going before the magistrate, but in this case, we didn’t. I contacted the sheriffs office and asked them to assist them.
DEFENSE COUNSEL: Did you have any — Do you know whether or not a bench warrant was ever issued in this case?
GIBSON: I do not know. If it had been, there should be a file in the circuit clerk’s office indicating that it had a number on it.
DEFENSE COUNSEL: Well, it certainly should have been issued?
GIBSON: That’s what that was prepared for. Now, as to whether or not Mr. Chelette decided to go get it done, I don’t know.
DEFENSE COUNSEL: Well, it was presented to the Circuit Judge, and it was authorized to be issued?
GIBSON: Right. Now, from that point, I don’t know what arrangements were made, because it was the complaining parties, and the sheriffs office, whoever, or whoever assisted them in this, and I had no more to do with it after I, after they left my office.

We have held that when a prosecutor undertakes an active role in the investigation of a crime so that he potentially becomes a material witness either for the State or the defense, he no longer may serve as the advocate for the State. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). In Duncan, the prosecutor testified in support of the interrogation procedures at the suppression hearing on the defendant’s statement. Then, in his closing argument he described the procedures which he observed during Duncan’s confinement and voiced his opinion about the propriety of those procedures. Under the Duncan facts, the prosecutor clearly became a material witness for the state.

Following Duncan, however, we held that disqualification is not required in a case where the prosecutor merely took a statement from a potential witness that implicated the defendant. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). We added in Scherrer that the prosecutor’s actions “were part of a prosecutor’s routine preparation for trial.” 294 Ark. at 233; 742 S.W. 2d at 880. The case before us comes closer to the Scherrer situation. The prosecutor was performing a routine duty when he assisted the appellant and Mary Bass in signing an affidavit against Pinson. His testimony at trial described that ministerial duty — nothing more. His involvement in the case did not reach the level of that in Duncan-, nor did he testify regarding facts favorable to the State arising out of his meeting with the appellant on July 20, 1989.

Rule 3.7 of the Model Rules of Professional Conduct states: “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: 1) the testimony relates to an uncontested issue. . . .” Here, the prosecutor did testify about an uncontested issue — the swearing out of the warrant by the appellant. No one maintains that this did not occur. In fact, Judge Paul K. Roberts, who made a probable cause finding based on the affidavit, testified for the defense on the same point as did Bradley County Sheriff Jack Gambill. In sum, Gibson’s testimony was redundant on an uncontested issue.

The appellant counters that the prosecutor’s arguments at trial also amounted to testimony. The prosecutor, indeed, did argue that the terroristic threatening affidavit was part of a plan or scheme:

Opening Statement
You will hear evidence about a warrant being issued for Walter Pinson at the insistence of Ronald Chelette. You will hear evidence about the warrant being pulled down. And all this will fit together to show that there was actually a scheme going on between Carrie Chelette and Ronald, and they may not have even had a meeting of the minds. ...
Closing Argument
All this stuff about charging Walter with terroristic threatening was part of the plan. Ronald was after Walter, and he was trying to make it look like Walter was after him. And if he could not actually prove it, he was at least trying to get Walter after him.

What the prosecutor was describing in his opening statement and argument to the jury was his theory of the case developed after his meeting with the appellant and Mary Bass on July 20, 1989. This was legitimate argument — not testimony regarding facts he had observed. In Duncan, on the other hand, the prosecutor’s closing argument contained facts he personally could verify which were favorable to the State. He then endorsed those facts by adding that in his opinion the authorities had acted appropriately. That amounted to testimony in his argument and is distinguishable from espousing a theory of the case. We hold that the circuit judge correctly refused to disqualify the prosecutor in this case.

An examination of the record has been made in accordance with Ark. Sup. Ct. R. 11 (f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


author: Per Curiam.

text:
    William F. EKELMAN v. A.L. LOCKHART, Director, Arkansas Department of Correction
    91-343
    823 S.W.2d 910
    Supreme Court of Arkansas
    Opinion delivered February 17, 1992

      Petitioner, pro se.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for respondent.
   Per Curiam.

William F. Ekelman asks permission to file a handwritten brief. We have held that a handwritten brief will be allowed on two conditions — one, that the movant has no access to a typewriter and, two, makes a showing that there is substantial merit to the action. Patterson v. State, 289 Ark. 564, 712 S.W.2d 922 (1986). Since the adoption of that rule some years ago we have had scores of motions for handwritten briefs. Almost without exception they have been denied, not due to handwriting, but because they uniformly fail to make any attempt to show there is substantial merit to their cause. In fact, typically, they fail to even tell us what the case is about or what relief is being sought. This motion by William F. Ekelman is no exception. Motions for handwritten briefs must set forth the nature of the action, errors charged to the trial court, and other information essential to a showing of substantial merit.


text:
    Vaugn YOUNG v. STATE of Arkansas
    CR 91-219
    823 S.W.2d 911
    Supreme Court of Arkansas
    Opinion delivered February 17, 1992

      Henry Boyce, for appellant.

      Winston Bryant, Att’y Gen., by: Didi H. Sailings, for appellee.
   Per Curiam.

The appellant, Vaugn Young, filed his abstract and brief in this case. The State filed the appellee’s brief. Prior to the time his reply brief was due, the appellant’s attorney realized that his abstract was insufficient and filed a motion asking that he be allowed to supplement his abstract and brief. Since the case is not yet ready for submission, we grant the motion and allow the appellant fifteen days within which to file a substituted abstract and brief.

Rule 9(e)(2) of the Rules of the Supreme Court and Court of Appeals provides that, when it does not cause an unreasonable or unjust delay in the deposition of an appeal, an appellant’s attorney may be allowed time to reprint his brief, at his own expense, to conform to Rule 9(d). Granting the motion in this case will not cause an unjust delay since the case is not yet ready for submission and other cases are ready for submission. Upon filing of the substituted abstract and brief, the appellee will be afforded an opportunity to revise or supplement its brief, at the expense of the appellant’s counsel.


author: Jack Holt, Jr., Chief Justice. Donald L. Corbin, Justice,

text:
    ARKANSAS ALCOHOLIC BEVERAGE CONTROL BOARD v. Deborah MUNCRIEF
    91-295
    825 S.W.2d 816
    Supreme Court of Arkansas
    Opinion delivered February 24, 1992

      Donald R. Bennett, for appellant ABC Board.

      Charles A. Yeargan, for appellants Harvey and Shirley Janisse.

      Wood, Smith, Schnipper & Clay, by: Don M. Schnipper, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Arkansas Alcoholic Beverage Control Board (Board), appeals from the Garland County Circuit Court’s decision to overturn the Board’s denial of a retail liquor store transfer requested by appellee, Deborah Muncrief. The application for transfer was initially denied by the Board Director. The case was certified to this court from the Arkansas Court of Appeals as it involves interpretation and construction of an administrative regulation. We reverse and remand the trial court’s decision.

Ms. Muncrief currently owns and operates a retail liquor store located approximately 7.5 miles east of the Garland County line, outside of Pearcy, Arkansas. She seeks to transfer this store to a rural location within one quarter mile east of the county line, which borders a dry county. Ms. Muncrief testified, at the hearing before the Board, that most of her present customers come from the neighboring dry counties, and introduced a petition containing names and addresses of customers in favor of the transfer. Ms. Muncrief testified that she also sells liquor to private clubs located in the western dry counties and that' she wanted to move the store in order to be more convenient for her customers.

Doug Harp, a former Director of the Arkansas State Police who now works as a security consultant, investigated Ms. Muncriefs current location and the proposed transfer site. He noted the current store is located 1.3 miles from Lake Hamilton School, which runs 33 buses and creates the greatest amount of traffic in the immediate area. The proposed location is 2.2 miles outside the Lake Hamilton school district and their buses do not run in that area. Both the present and proposed locations are located near curves; however, in Mr. Harp’s opinion, the new location would provide better visibility for customers coming in and out of the store.

Clay White, Garland Coúnty Sheriff, submitted his approval of the proposed transfer, noting that he had received no complaints regarding the operation of Ms. Muncriefs present store, or any objections to the suggested relocation.

On the other hand, persons opposing the transfer submitted a petition with over 400 signatures, in addition to a number of letters voicing opposition to the new store. Primary concerns were that the store would generate more traffic and that entrance and egress at the proposed site would be hazardous. There was also concern the new location would be too distant from police service calls. One of the opponents, Mary Laribee, is a neighbor to the east of the proposed site, and opined that the store would increase traffic and possibly create problems with drunk drivers. Ms. Laribee conceded, however, that if the majority of Ms. Muncriefs customers lived west of the store the traffic would not affect her residence.

Shirley Janisse, who was allowed to intervene in the action, operates a beer-only package store eight-tenths of a mile to the east of the proposed location. She testified she opposed the transfer as she felt it would put her out of business.

After reciting its findings of fact, the Board concluded that “at the present time, there is no greater public convenience and advantage to be served by moving Ms. Muncriefs store.” The trial court reversed this decision, finding it to be unsupported by substantial evidence, arbitrary, capricious, and characterized by an abuse of discretion. We disagree.

Ark. Code Ann. § 25-15-21.2(h) (1987) provides that the trial court may reverse or modify the Board’s decision if it is not supported by substantial evidence or is arbitrary, capricious, or characterized by abuse of discretion. Our review is similarly limited and, on appeal, we review the entire record in making this determination. See Green v. Carder, 282 Ark. 239, 667 S.W.2d 660 (1984); Edwards v. Arkansas Alcoholic Beverage Control Div., 307 Ark. 245, 819 S.W.2d 217 (1991).

It is true Ms. Muncrief presented the Board with favorable evidence to support her request for a transfer to the proposed location. However, Ark. Code Ann. § 3-4-201 (b) (1987) vests the Board with the power to determine whether “public convenience and advantage will be promoted” by granting the permits. In addition, Section 3-2-206 authorizes the Director of the Board to promulgate regulations to enforce its provisions, and grants the Director broad discretionary power to enforce such provisions.

The Board, in its original brief, relies in part on ABC Regulation section 1.32, covering the powers and duties of its Director and Board, to support its argument that under the facts presented to them, Ms. Muncrief is not entitled, by law or regulation, to a transfer of her license from her present location to other premises in Garland County. Courts take judicial notice of regulations of state agencies that are duly published. Webb v. Bishop, 242 Ark. 320, 413 S.W.2d 862 (1967). Section 1.32 provides:

No permit shall be issued pursuant to an alcoholic beverage control law of the state of Arkansas for the following premises: ... (4) Premise which will not promote public convenience and advantage. Any premise for which the issuance of a permit would not, in the judgment of the Director, promote the public convenience and advantage. In determining whether the issuance of a permit would promote the public convenience and advantage, the Director may consider, in addition to all other relevant factors, the number of permits issued in the general vicinity of the premises for which application has been made.

In its findings of fact, the Board stated it was not its responsibility to accommodate persons living in adjacent dry counties. It is Ms. Muncrief s position that in making this finding, the Board erroneously refused to consider these residents. This issue is not the focus of our decision, however; nor was it, we believe, the focus of the Board’s. Rather, the real issue is whether or not Ms. Muncriefs requested transfer, from her present location to a new location in Garland County, would promote public convenience and advantage for all residents in the area.

The term “public convenience” is not defined in our statutes; however, we noted in Fayetteville School Dist. No. 1 v. Alcoholic Beverage Control Bd., 279 Ark. 89, 91, 648 S.W.2d 796, 797 (1983), that “reference to the public convenience and advantage evidently means that the interest of the general public is to be considered, not merely that of the applicant.” While it may be true that relocating closer to the Garland County line would provide greater convenience for Ms. Muncrief and for the majority of her customers who come from nearby dry areas, those residents in the immediate “wet” community must also be considered. We quote with approval the words of the court of appeals: “We conclude that [public convenience and advantage] should not be restricted to a colloquial sense as synonomous with ‘handy or easy of access’ but construed in that sense which connotes suitable and fitting to supply the public needs to the public advantage.” Carder v. Hemstock, 5 Ark. App. 115, 121 633 S.W.2d 384, 388 (1982).

A substantial number of people residing in the Garland County area indicated their opposition to the transfer through petitions and letters, and although we have said the number of persons who object to, or support, the issuance of retail liquor permits is not significant under the statute, the reasons for the support or opposition may be very significant. Edwards v. Arkansas Alcoholic Beverage Control Div., supra. The expressed concerns of increased traffic and accidents along the rural stretch of highway on which the new store would be located are legitimate ones.

The burden was upon Ms. Muncrief to demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. See Green v. Carder, supra. The record before us does not provide such a demonstration. As previously noted, the Board has much discretionary leeway in determining whether public convenience and advantage will be promoted by issuing permits. See Section 3-2-206(d); ABC Regulation section 1.32, supra; Dalark Package Store v. Arkansas Alcoholic Beverage Control Bd., 6 Ark. App. 366, 642 S.W.2d 335 (1982). Simply put, although Ms. Muncrief presented evidence indicating a transfer of her store would be more advantageous and convenient to that segment of the community living in nearby dry counties, she presented no such evidence with regard to the Garland County area residents as a whole. We cannot say the Board’s finding that “at the present time, there is no greater public convenience and advantage to be served by moving Ms. Muncriefs store,” was arbitrary, capricious, or characterized by abuse of the Board’s discretion.

A second finding by the Board, in which it stated that since opposing area residents did not previously object to Ms. Janisse’s beer permit, the current objections to Ms. Muncriefs store must be “of very more significant nature [sic] due to the type of operation proposed by Ms. Muncrief,” is without basis in the record. The finding implies the store proposed by Ms. Muncrief, or the applicant herself, is unsuitable. On the contrary, Ms. Muncrief testified she had never been in violation of Board regulations and Sheriff White stated he had not received any complaints, over the years, regarding Ms. Muncriefs present operation. However, for the foregoing reasons, we reverse the trial court’s decision and uphold the Board’s denial of Ms. Muncriefs application.

Reversed and remanded with instructions consistent with this opinion.

Corbin, J., dissents.

Donald L. Corbin, Justice,

dissenting. Substantial evidence is more than a mere scintilla and means such evidence as a reasonable mind might accept as adequate to support a conclusion. Fouch v. State, Alcoholic Beverage Control Div., 10 Ark. App. 139, 662 S.W.2d 181 (1983). I dissent because the Board’s decision to deny Muncriefs transfer application lacks supporting evidence. The evidence introduced in opposition to Muncriefs application included the testimony of Shirley Janisse, a competing convenience store operator with a beer permit, who testified that Muncriefs proposed move would put her out of business because Muncriefs proposed location would be closer to the “dry” county line than her convenience store, and the testimony of Mary Laribee, a witness residing directly east of Muncriefs proposed location, who testified that Muncriefs proposed new location would increase traffic congestion. The Board also received a petition with over 400 signatures opposing Muncriefs proposed transfer.

The testimony of Ms. Janisse is legally irrelevant since the Board does not issue or deny permits for the purpose of protecting the interests of presently licensed owners. Fouch, supra. The irrelevance of Janisse’s testimony, combined with, the total discreditation of the testimony regarding potential traffic problems, leaves no evidence to support the Board’s denial of Muncriefs application. The majority correctly notes that the number of persons who object to the issuance of retail liquor permits is of no significance, yet the majority upholds the denial based on the discretionary leeway the Board has in determining whether public convenience and advantage will be promoted by the issuance of a permit. In the “findings of fact” promulgated by the Board in this case, the Board concluded that public convenience and advantage would not be served by Ms. Muncriefs proposed transfer because “public” does not refer to that portion of the public situated in dry counties. This interpretation is contrary to both the plain meaning of “public” and the interpretation this court set out in Fayetteville School Dist. No. 1 v. Alcoholic Beverage Control Bd., 279 Ark. 89, 648 S.W.2d 804 (1983). The reference to the public convenience and advantage means that the interest of the general public is to be considered. As there is most certainly no law against persons in dry counties commuting to buy liquor and beer, no reasonable basis exists for the agency’s bizarre limitation on the word “public.” As I can find no evidence to support the Board’s denial of Muncriefs transfer application, I would affirm the trial court.


author: Jack Holt, Jr., Chief Justice. David Newbern, Justice,

text:
    Dewey MAGAR v. STATE of Arkansas
    CR 91-277
    826 S.W.2d 221
    Supreme Court of Arkansas
    Opinion delivered February 24, 1992

      Art Allen, for appellant.

      Winston Bryant, Att’y Gen., by: Pamela Rumpz, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On October 1, 1990, the appellant, Dewey Magar, was convicted of three counts of sexual abuse in the first degree and sentenced to three years for the first count and five years apiece for the remaining two counts, all sentences to run concurrently.

Magar asserts three points of error on appeal: 1) the trial court erred in denying his motion to suppress religiously privileged testimony under Ark. R. Evid. 505, 2) the trial court erred in denying his motion for a directed verdict in that the State’s evidence was insufficient to sustain his convictions, 3) the trial court erred in denying his motion for a mistrial after a witness for the State referred to prior uncharged conduct relating to him in violation of the trial court’s order to refrain from such prejudicial commentary. None of these arguments has merit, and we affirm the judgment of the trial court.

Magar initially claims that the trial court erred in denying his motion to suppress religiously privileged testimony under Ark. R. Evid. 505. Prior to trial, Magar filed a motion to suppress testimony of Reverend John Rowe on the basis that the testimony was privileged under Rule 505, which provides as follows:

(a) Definitions. As used in this rule:
(1) A “clergyman” is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is “confidential” if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(b) General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.
(c) Who May Claim the Privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.

In reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987).

Magar was charged with sexual abuse in the first degree of three boys who were under the age of fourteen. At the hearing on the motion to suppress, Magar stated that the conversation at issue was made in confidence on the basis that he and Reverend Rowe had had many counseling sessions during the course of their time spent together at church and Reverend Rowe had assured him that their conversations were private. In essence, he acted in reliance on a purported established relationship of confidentiality between himself and Reverend Rowe when he discussed the issues later involved at his trial.

Reverend Rowe testified that he was the pastor at New Life Christian Fellowship, where the victims, their families, and Magar were members. He also related that after the parents of two of the boys told him that their sons had been sexually abused by Magar, he went to the church where Magar was involved in a music ministry practice, interrupted the music practice, and asked Magar to step into his office. He then confronted Magar with the allegations, whereupon Magar admitted that they were true.

Reverend Rowe also testified regarding the doctrines of his church: confession is not a tenet of his church and keeping evidence of a crime confidential is within the discretion of the pastor. His own practice was to keep confidential that information gained in a counseling relationship. Although he had had counseling sessions with Magar on prior occasions, he had not counseled with Magar for several months before the conversation at issue and considered this particular conversation “disciplinary in nature.” Further, Reverend Rowe did not tell Magar that the conversation was confidential, nor did Magar ask that it be kept confidential.

We initially note that Magar’s reliance on State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990), is misplaced in that we stated in that case that when conflicts arise between the rules established by the court and legislation enacted by the General Assembly, the court will defer to the General Assembly only to the extent that the conflicting court rule’s primary purpose and effectiveness are not compromised; otherwise, the court rules remain supreme. There simply is no similar conflict here with regard to Rule 505.

We find it significant, in this case, that Reverend Rowe sought but Magar to confront him with the allegations of sexual abuse conveyed to him by the parents of two of the victims. Although Reverend Rowe had counseled with Magar on previous occasions, the last occasion being several months before the conversation at issue, Reverend Rowe did not consider this to be a counseling session at all, but disciplinary in nature. The attendant circumstances support the trial court’s decision that this was an accusatory situation initiated by Reverend Rowe that did not encompass spiritual counseling, thereby precluding Magar from excluding Reverend Rowe’s testimony at trial.

Other courts have considered the privilege of religious communications and determined the applicability of the privilege on the facts of each case. Illustrative of the rationale denying the privilege are United States v. Gordon, 493 F.Supp. 822 (N.D. New York 1980) (citing Trammel v. United States, 445 U.S. 40 (1980))(it was emphasized that the privilege between priest and penitent is limited to private communications, a privilege recognizing “the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return,” which facts and circumstances were not present where the challenged conversations related to business matters), and Burger v. State, 231 S.E.2d 769 (Ga. 1977)(the ministerial privilege was not applicable to testimony of reverend, as witness for the state in a homicide prosecution, relating to conversational statements made to him by the defendant regarding the defendant’s intent to kill his wife where the record showed that the statements by the defendant to which the witness testified were not made by the defendant in professing religious faith or seeking spiritual comfort or guidance).

In comparison, the privilege was upheld in People v. Reyes, 545 N.Y.S.2d 653 (Supp. 1989), where a conversation between a priest and the defendant was a privileged communication, which the priest could not testify about before a grand jury, where the defendant was seeking some type of spiritual advice from the priest with the reasonable expectation that the conversation would be kept secret when the defendant went to the priest’s church after a shooting.

In contrast to People v. Reyes, supra, Magar’s communication was not made to Reverend Rowe in his professional character as a spiritual adviser and, given the circumstances of this case, we are unable to say that the trial court’s denial of Magar’s motion to suppress was clearly against the preponderance of the evidence.

Next, Magar claims that the trial court erred in denying his motion for a directed verdict in that the State’s evidence was insufficient to sustain his convictions.

In Hodge v. State, 303 Ark. 375, 796 S.W.2d 347 (1990), we noted that in criminal cases on appeal where the appellant challenges the sufficiency of the evidence, we will affirm the trial court’s decision if there is substantial evidence to support the findings. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture.

Arkansas Code Ann. § 5-14-108 (1987) addresses sexual abuse in the first degree and provides in pertinent part that “(a) A person commits sexual abuse in the first degree if: . . . (3) Being eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old.” Sexual contact is defined in Ark. Code Ann. § 5-14-101 (1987) as “. . . any act of sexual gratification involving the touch, directly or through clothing, of the sex organs, or buttocks, or anus of a person . . . .”

In this case, the first victim told the jury that Magar had invited him to his house to look at Boy Scout uniforms. They went into Magar’s bedroom to try on the uniforms, where Magar touched him “on the genitals through his clothing.” The victim further testified as follows:

Q Okay. Good. Tell me about Mr. Magar offering to help you with your Boy Scout uniform.
A ... And we started trying on some of the pants. And when I was trying to fasten my pants he would always try to help me zip them and button them and every time I’d say I didn’t need any help. And then after that he would feel around the crotch area seeing if it was too big. And one time he touched me on the genitals, but each time he’d try to do it real fast. So I wouldn’t suspect anything. After, after I tried on some pants I was sitting in my shirt and underwear and he came over to me and said, “I like your underwear. Where did you get them?” I said, “My mom got them for me.” He said, “I still like them.” And around then I didn’t feel very comfortable at that point. Then we started trying on some of the shirts and each time he tried to help me button them and each time I told him I didn’t need any help.
* * * *
Q Are you telling this jury that Dewey Magar touched you on the penis?
A Yes, ma’am.
Q Do you, do you know how many times he touched you that day?
A No. At the least, two times.
Q How many times did he touch you after you told him that you could try, you could put these pants on by yourself?
A At least two, at least two times.

The second victim testified that he, his brother, and Magar were watching movies in the victim’s family’s den. Magar sat next to the victim and began rubbing the victim’s leg, after which he put his hand on the victim’s penis and began rubbing and playing with it.

The third victim testified that, while he and Magar were in the sound room of their church, Magar began rubbing his leg and stuck his hand inside his pants. The victim related that Magar touched his penis and had said that he could touch Magar’s penis if he wanted to. Magar then told the victim to keep this a secret and not to tell anyone.

In sum, each victim testified that Magar had touched his genitals, either directly or through his clothing. We find this evidence to be substantial in support of Magar’s convictions.

Finally, Magar contends that the trial court erred in denying his motion for a mistrial when a witness for the State referred to prior uncharged conduct relating to him in violation of the trial court’s order to refrain from such prejudicial commentary.

A mistrial is an extreme and drastic remedy that should be resorted to only when there has been an error so prejudicial that justice could not be served by continuing the trial. The granting or denial of a motion for mistrial lies within the sound discretion of the trial judge and the exercise of that discretion should not be disturbed on appeal unless an abuse of discretion is shown. Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991).

Magar refers to the following exchange between the deputy prosecutor and the third victim who testified:

Q Timothy, did you tell anyone?
A No, not ‘till a few weeks later.
Q • What caused you to tell someone a few weeks later?
A Well, my brother, he told me —
Q Who’s your brother?
A Daniel. And he said, “Did Dewey molest some children —“
Q (Interposing) Okay. He told you —
MR. ALLEN: [Defense counsel]: Your Honor —
THE COURT: Counsel approach the bench.

Magar claims that the victim’s comment was highly prejudicial and potentially inflammatory in that it implied that there were prior unadjudicated instances of child molestation; however, during the sidebar discussion among the parties’ counsel and the trial court, defense counsel agreed with the trial court that a ten minute break and an admonishment would suffice to remedy any potential prejudice resulting from the victim’s comment. Consequently, Magar cannot now assert prejudice, see Matthews v. State, 305 Ark. 207, 807 S.W.2d 29 (1991), and the trial court did not abuse its discretion.

Affirmed.

Dudley and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. According to Arkansas Rules of Evidence 505(b), the “religious” privilege clearly belongs to the “person” (Dewey Magar), and not to the clergyman (Reverend Rowe), to whom statements were made in confidence. The majority opinion seems not to question that point but focuses on whether the statement in this case can be said to have been “confidential.” Yet in the process of considering that question the opinion dwells on Rowe’s expectations rather than those of Magar. Therein lies the mistake.

According to Rule 505(a)(2), a statement is confidential “if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” The entire relationship between Reverend Rowe and his Church and Magar came about due to Magar’s felt need for counseling with respect to his sexual inclinations. Reverend Rowe testified he had informed Magar that what Magar said to him in their counseling sessions would not be disclosed, and it is undisputed that Rowe had not informed Magar he felt the counseling sessions had ended. While apparently the counseling sessions had been more frequent when they began, they continued every few months.

The majority opinion concludes that, because Rowe called Magar to his office in a “confrontational” manner, Rowe had stepped out of what Rule 505(b) calls “his professional character as spiritual adviser.” Why? Suppose that when Rowe interrupted choir practice to call Magar to his office Magar had every reason to expect a “confrontation.” Does that mean Magar had reason to expect what he said to his confessor, who had counseled him on the very type of problem about which he then asked, would not honor the relationship and the promise of confidentiality? The majority opinion gives utterly no reason for concluding so. Again, the problem with the majority opinion is that it deals with Rowe’s expectations rather than those of Magar, and it is Magar’s expectations that count under the Rule.

The majority cites cases for a “rationale” for denying the privilege along with a case in which the privilege was upheld. The reader is asked to credit United States v. Gordon, 493 F. Supp. 822 (N.D. New York 1980), and Burger v. State, 231 S.E.2d 769 (Ga. 1977), in support of the “rationale” of the majority opinion. The cases are not even relevant.

United States v. Gordon involved a series of communications between Gordon and Father Meyers, a salaried executive in one of Gordon’s companies. These communications related purely to the business and consisted of messages Gordon asked Meyers to relay to a business acquaintance. Gordon knew Meyers was on leave of absence from the priesthood and specifically intended that the information go from the priest to another person. To say that the “rationale” of the decision that there was no privilege in such a case should influence us here is, to say the least, unfortunately illogical.

Burger v. State involved conversational statements that Burger intended to kill his wife and her lover made to a clergyman characterized by the Court as a “friend and frequent companion.” Not only was there no showing of a counseling or confidential relationship, there was not even an objection to the testimony at Burgers’ trial. The failure to object was obviously for good reason. Such an objection would have been an indication of no knowledge of the law. I find it almost as egregious to cite the case here.

Even if those cases were not so easily distinguished, or if there were the slightest evidence to support the conclusion that Rowe’s “confrontational” manner in some way should have informed Magar that this session was different from the others, there are important considerations with respect to the Arkansas codification of the privilege which require a result contrary to that reached by the majority.

Arkansas Rules of Evidence 505(2) (c) states the privilege may be claimed by the person or communicant, and that a presumption exists that the privilege may be claimed by the clergyman only on behalf of the communicant. Subsection (2)(b) provides that the person or communicant has the privilege to prevent the clergyman from disclosing a confidential communication. This language makes it clear that the privilege is controlled by the communicant alone. This language was not used accidentally and manifests a clear preference on the part of the drafters. Note, Developments In the Law Privileged Communications, 98 Harv. L. Rev. 1450, 1556 (1985), points out that some states grant the priest-penitent privilege to the clergy as well as to the communicant, citing the Alabama and California codifications. Other states provide that neither the priest nor the penitent may waive the privilege, notably, the Indiana, Michigan, Vermont, and Wyoming codifications. Still others provide that the privilege belongs to the clergy and the communicant has no standing to object to the testimony of the clergyman. Nothing in our Rule or the facts of this case supports the Court’s conclusion that intent or actions of the clergyman may dictate that which is or is not a confidential communication. Our codification of the privilege is substantially identical to our physician-psychotherapist privilege which is clearly controlled by the client or the patient alone.

The policy considerations underlying the privilege were clearly enunciated in Trammel v. United States, 445 U.S. 40, 51 (1979), as follows:

The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.

The majority opinion contradicts these considerations, apparently holding there can be no confidence in communications with a clergy person unless he or she decides the matter is one which warrants privacy. This conclusion is intolerable in view of the language of the Rule, the policy underlying it, and the facts of this case.

I respectfully dissent.

Dudley, J., joins in this dissent.


author: David Newbern, Justice.

text:
    David Morris SMITH v. STATE of Arkansas
    CR 91-244
    824 S.W.2d 838
    Supreme Court of Arkansas
    Opinion delivered February 24, 1992

      Gene Worsham, for appellant.

      Winston Bryant, Att’y Gen., by: Didi Sailings, for appellee.
   David Newbern, Justice.

The appellant, David Morris Smith, was convicted of first degree murder, second degree battery, and aggravated assault in connection with the death of Michael McCoy and the assault and battery of Smith’s ex-wife, Patsy Turner. He was sentenced to life imprisonment for the murder, six years imprisonment for the battery, and two years imprisonment for the assault. Smith’s only point of appeal is that the evidence was insufficient for conviction. We find the evidence was sufficient and affirm the conviction.

Patsy Turner was the chief witness against Smith. She testified that on May 31,1990, she and McCoy were parked at the Glenview Recreation Center in North Little Rock when Smith walked up to the car, opened the door, said “um, you’re the M-FI have been looking for” and shot the victim. She then got out of the car, pulled a gun from her purse and exchanged several shots with Smith. At that point her gun jammed, and she began to run. Smith caught and struck her on the head with his pistol.

Another witness for the prosecution, Mark Magness, testified he lived about 150 yards from the Community Center and witnessed two people arguing at a car in the lot, heard a shot, saw one of the people push the other out of the way aiid then heard more gunshots. He saw the man later capture and strike the woman and heard him say “b. . .h, I ought to kill you, too.” Patsy Turner ran to Magness’ house, and Magness called the police.

Smith testified that he was walking past the Community Center when a car door opened and someone shot at him twice. He said the second shot grazed his arm at which point he turned around and returned fire. Patsy Turner then got out of the car and the gunfire continued until she ran out of bullets. He then grabbed her and hit her with the gun on the side of her head.

Ballistics determined that the fatal bullet was fired from a .38 caliber gun and that Patsy Turner’s pistol was a .22 caliber which made it impossible for the fatal bullet to come from her gun.

1. Sufficiency

The general rule with respect to sufficiency of the evidence is that the evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force the mind to go beyond speculation or conjecture and is not satisfied by evidence which gives equal support to inconsistent inferences. This court views the evidence in the light most favorable to the appellee, and we look only to the evidence which supports the verdict. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). We affirm the verdict if it is supported by substantial evidence.

In determining the sufficiency of the evidence, the evidence and all its reasonable inferences are viewed most favorably to the appellee. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983). In reviewing the sufficiency of the evidence we disregard any other trial errors Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). It is for the jury to resolve inconsistencies in the testimony. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988), and we will not disturb their credibility assessment. Ellis v. State, 219 Ark. 430, 652 S.W.2d 35 (1983).

a. Murder

Smith was charged with capital murder in that he “with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person,” Ark. Code Ann. § 5-10-101 (a)(4) (Supp. 1991), and convicted of the lesser included offense of first degree murder in that he “with a purpose of causing the death of another person, he causes the death of another person.” Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1991). On the first degree murder conviction, Smith’s argument is that the evidence contained numerous conflicts which cast doubt on Turner’s version of events. He reasserts his trial defense, that he fired the shots in self-defense, and implies that the inconsistencies make his version of the story the more credible. He argues we must reverse because of this failure in the burden of proof.

This .Court views the evidence in the light most favorable to the appellee, and we look only to the evidence which supports the verdict Bennett v. State, supra. We will not assume Smith’s version of the story is true, and while the version of the story given by Turner does conflict with the testimony of Magness, it is more consistent with the physical evidence taken from the scene than Smith’s testimony. In any event the jury was presented with the conflicts, instructed on self-defense, and informed it was to resolve inconsistencies and determine witness credibility. Lewis v. State, supra.

b. Assault and battery

Smith also argues on the other two convictions that his shooting at Turner and hitting her were all in self-defense. Again, he asks us to view the evidence in the light most favorable to his story, which is not the proper standard; even his version of the events has him chasing down and striking Turner in the head with his gun after she ran out of bullets. The evidence was sufficient to create a credibility question for the jury. The jury alone determines the weight to be given the evidence, and may reject or accept any part of it. Robertson v. State, 304 Ark. 32, 802 S.W.2d 448 (1991).

2. Rule 11 if)

Smith has not complied with the requirement of Rules of the Arkansas Supreme Court and Court of Appeals 11(f) by abstracting all objections decided adversely to him in this life sentence case. Nor has the Attorney General given us any indication of assurance of compliance with the Rule.

Despite these apparent failures to adhere to the Rule, we have chosen not to return the case for rebriefing, which would entail substantial delay. The record has been carefully reviewed here, and no errors prejudicial to Smith have been found.

Affirmed.