author: W.H.“Dub” Arnold, Chief Justice.

text:
    Richard Keith MAYO v. STATE of Arkansas
    CR 98-1049
    984 S.W.2d 801
    Supreme Court of Arkansas
    Opinion delivered February 4, 1999

      Arkansas Public Defender Commission, by: Teri L. Chambers, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   W.H.“Dub” Arnold, Chief Justice.

On January 27, 1998, a jury convicted the appellant, Richard Keith Mayo, of the capital murder of his wife, Joyce Mayo. He was sentenced to life imprisonment in the Arkansas Department of Correction. Accordingly, our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 1 — 2(a)(2) (1998). The appellant raises two points on appeal. First, Mayo argues that the trial court erred by denying him the right to represent himself at trial. Second, he contends that the trial court erred by failing to submit three non-model instructions to the jury that would permit the jury to consider, even after finding premeditation and deliberation, whether appellant was under the influence of extreme emotional disturbance for which there was reasonable excuse. Finding no merit in appellant’s arguments, we affirm appellant’s conviction and sentence.

The facts underlying this case are undisputed. During a police interview the day after the incident, Mayo confessed most of the details of the crime. According to Mayo, he and his wife had been married for a short time, although they had been together for fifteen years and had two children. They recently relocated from Odessa, Texas, to Mena, Arkansas, in the hope of finding a house and a job. On August 1, 1997, Mayo and his wife arrived at a motel in Mena at about eight o’clock. At some point in the evening, the two began to argue and at approximately 3:00 a.m., Mayo stabbed his wife several times in the head with a double-edged knife. He admitted that he had no excuse for his actions, stated that he believed he deserved the death penalty, but claimed that Joyce had told him that she was going to leave. He told her that if he could not have her that nobody could. Following the incident, Mayo talked with his mother and brother and turned himself into the police.

Several witnesses at trial, including the appellant’s friends and his brother-in-law, testified that Mayo had continuing problems in his marriage and that he was concerned that Joyce was having affairs. Mayo’s suspicions included his former boss in Odessa, whose car Mayo ransacked in search of evidence, Mayo’s own brother, and various other men. According to the witnesses’ testimony, Mayo told them that he believed his wife was also having an affair with his current boss and that he believed that the man had a key to his home and some of Mayo’s clothes in his truck.

None of the witnesses believed that Joyce was having an affair even though Mayo claimed that he had evidence of infidelities. For example, Mayo reported that he found a used condom and a coca-cola bottle filled with semen in his bedroom and another condom hidden in a hole in the wall. He also described an unsuccessful search for his keys and his later discovery of them as evidence that his wife’s lover had the keys and returned them to the house during Mayo’s absence. Mayo also found notes that he •believed were encoded secret messages. Other examples of Mayo’s evidence included his belief that Joyce secretly communicated with other women at Wal-Mart based on the color of lollipop they selected at the check-out line and his belief that the extra four-digit code at the end of his zip code was a sign that his wife had a private mailbox. Joyce’s possession of a picture of Mayo’s brother convinced him that they were having an affair. Witnesses observed that the appellant was sad, depressed, and at times tearful as he related these concerns, but none perceived any indication that Joyce was actually having an affair.

Witnesses also testified about Mayo’s continued frustration with his wife’s poor housekeeping. One witness testified that the pet cat used piles of dirty clothes as its litter box and that visitors had to climb over the piles to get into the house. The dining table was covered with dirty newspapers, clutter, and spilled drinks that had to be pushed away to use the table. Also, one of the children’s rooms and the hallway were soiled with dog excrement. The appellant’s brother-in-law noted that the house was “filthy” and that on one occasion Mayo loaded up and hauled away from the apartment three pickup loads of trash, but the apartment returned to its former condition within one month. Mayo and Joyce were known to argue about the condition of the home but none of the witnesses believed that Mayo ever “fought” with Joyce or hit her as a result of these arguments.

During a visit to his mother’s about a week before Joyce was killed, Mayo asked his mother for a shotgun to go quail hunting. Realizing that it was not quail season and fearing that he would hurt himself, she attempted to prevent Mayo from getting a gun. Joyce was also on the scene and talked him into returning the gun by telling him that he would not go to heaven if he shot himself. Following the scene, Mayo asked his mother and wife for help. His mother spoke with the sheriff about having Mayo committed and gave Joyce some phone numbers. However, no further action was taken and Mayo received no medical attention.

I. Waiver of counsel

Appellant’s first point on appeal assigns as error the trial court’s failure to conduct an inquiry into his waiver of counsel, its denial of his right to represent himself, and its appointment of a public defender. The Sixth Amendment to the United States Constitution, made obligatory upon the states by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel for his defense. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996); Philyaw v. State, 288 Ark. 237, 244, 704 S.W.2d 608 (1986) (citing Gideon v. Wainwright, 372 U.S. 335 (1963); and Slaughter & Scott v. State, 240 Ark. 471, 400 S.W.2d 267 (1966)). Additionally, Article 2, section 10, of the Arkansas Constitution specifically provides that an accused in a criminal prosecution has the right to be heard by himself and his counsel. Philyaw, 288 Ark. at 244 (citing Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975)). Significantly, no sentence involving loss of liberty can be imposed where there has been a denial of counsel. Philyaw, 288 Ark. at 244 (citing White v. State, 277 Ark. 429, 642 S.W.2d 304 (1982)).

However, the constitutional right to counsel is a personal right and may be waived at the pretrial stage or at trial. Philyaw, 288 Ark. at 244 (citing Johnson v. Zerbst, 304 U.S. 458 (1938); and Barnes, 258 Ark. 565). See also Slaughter, 240 Ark. 471; and Childs v. State, 243 Ark. 62, 418 S.W.2d 793 (1967). A defendant in a criminal case may invoke his right to defend himself pro se provided that (1) the request to waive the right to counsel is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. Philyaw, 288 Ark. at 245 (citing Barnes, 258 Ark. 565). Notably, every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Philyaw, 288 Ark. at 244 (citing Franklin & Reid v. State, 251 Ark. 223, 471 S.W.2d 760 (1971)).

On appeal, Mayo alleges that he intended to voluntarily relinquish his right to counsel. At a preliminary arraignment hearing on August 6, 1997, the court asked Mayo whether he had obtained an attorney and also asked several questions to determine whether Mayo was financially able to hire an attorney. As a result of Mayo’s responses, indicating that he did not have the resources to hire an attorney, the trial court appointed Randy Rainwater, a public defender, to assist Mayo. The judge noted that he would permit Rainwater to sit with the appellant for the rest of that hearing but would not formally appoint him pending the trial-court judge’s determination at a later time. Despite this remark, there remained some confusion as to whether Rainwater was to continue as Mayo’s appointed counsel or if he was to assist Mayo solely during the preliminary hearing.

Subsequently, on August 27, 1997, the trial court conducted a hearing to determine if Mayo had retained an attorney’s services or if he desired a court-appointed attorney. The trial court also stayed all proceedings until the Arkansas State Hospital could perform a mental evaluation of Mayo. At that hearing, the following discussion relating to appellant’s representation transpired:

Court: Mr. Mayo, have you employed an attorney to represent you?
Mayo: No, sir, but could I have a request?
Court: Well, keeping in mind that you’ve been advised not to say anything or that anything that you say will be used against you, do you understand that?
Mayo: Yes, sir.
Court: What is your request?
Mayo: That it not be Randy Rainwater to be my lawyer.
Court: Then who do you want me to appoint?
Mayo: I don’t know, anybody but Randy Rainwater. He’s got too big a case load.
Court: Well, we’re going to get some help the first of the year, but right now, I don’t have any help and I don’t have anyone else to appoint. Now, you can hire anyone you want to if you’re able to.
Mayo: I’ll just represent myself. I don’t want a lawyer.
Court: Well, I can’t agree with you on that because the supreme court is going to require me to give you the services of a lawyer and quite frankly, you may need more than one lawyer when you’re charged with a capital offense. So, I’m going to appoint Randy Rainwater, but I’m going to give you some help as time goes on. Now there’s an order for an examination, forensic medical examination. That has to be done, also and when that’s concluded and the report is received back, then I’ll take up your request again at that time and see about getting another attorney. The matter cannot be set for trial until that examination has been completed. Right now, they’re just waiting on them to say that they’ve got bed space for you. But, I’ll get you another lawyer. As long as a capital charge is filed against you, we have a rule where we have to have two lawyers. When you come back [from the Arkansas State Hospital], we’ll discuss this again.

The appellant contends that it was the trial court’s duty to conduct an inquiry into the waiver issue when he remarked that he would represent himself and that its failure to do so denied him his constitutional right to conduct his own defense. The appellant notes that to establish a voluntary and intelligent waiver of that right, the trial court must explain to the accused that he is entitled as a matter of law to an attorney and that it must question the accused to determine if he can afford to hire a lawyer. The judge must also explain the importance of having an attorney’s assistance during trial and the impediments of not having an attorney. See Akins v. State, 330 Ark. 228, 238, 955 S.W.2d 483 (1997).

Mayo asserts that the record demonstrates that he both timely and unequivocally asserted his right to defend himself. He also argues that the record is void of any conduct on his part that would prevent the fair and orderly exposition of the issues. Accordingly, he suggests that the only disputed issue is whether the waiver of counsel was knowing and intelligent. The determination of whether any defendant intelligently waived his right to counsel is dependent upon the particular facts and circumstances of the case. The accused must have full knowledge or adequate warning concerning his rights and a clear intent to relinquish them before a waiver can be found. Philyaw, 288 Ark. at 245 (citing Barnes, 258 Ark. 565).

Here, at a second hearing on September 17, 1997, the court discussed with Mayo his request that Rainwater be released as his attorney and that another attorney be appointed. Mayo agreed to a new appointment, reiterating his position that “It ain’t nothing against Mr. Rainwater. He does have a pretty big case loa(l.” The record indicates that Mayo’s desire not to be represented by Rainwater was due to his belief that Rainwater’s caseload was too heavy and not to any personal or professional disagreement. Although the appellant’s request to represent himself was timely made, it appears to be equivocal, given that he sought to have other counsel appointed and that the only basis for his objection was Rainwater’s caseload.

Moreover, at the time of the second hearing Mayo had not yet been examined by the State Hospital to determine his competency to stand trial. The trial court did not find Mayo competent to stand trial until January 26, 1998, after it received the State Hospital’s report. In Godinez v. Moran, 509 U.S. 389 (1993), the Supreme Court held that a defendant must be competent to waive his right to an attorney. The trial court must find whether the defendant is competent to elect self-representation by determining (1) whether the defendant is competent to stand trial, and (2) whether the waiver of the right to counsel is knowingly and intelligently waived. Id. Given that Mayo’s competency was still an issue at the relevant hearings, the court could not have assessed whether the waiver was knowing and intelligent. In light of the equivocal nature of the waiver, the fact that the trial court could not determine whether the waiver was knowingly and intelligently made, and indulging every reasonable presumption against the waiver of fundamental constitutional rights, we affirm the trial court on this point.

Although the State concedes that a trial court’s failure to conduct an inquiry may be reversible error, it argues that any such error in the instant case is harmless because Mayo subsequently requested appointed counsel and never objected to having counsel represent him at trial. We note that while we affirm the trial court, we disagree with the State’s harmless-error analysis. The Supreme Court has held that the denial of the right of self-representation is not amenable to a harmless-error analysis because when that right is exercised it usually increases the likelihood of a trial outcome unfavorable to the defendant. According to the Supreme Court, the right is either respected or denied but its deprivation cannot be harmless. See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984).

II. Nonmodel jury instructions

Appellant’s second point on appeal challenges the trial court’s refusal to submit three “transitional” jury instructions that are not contained in AMCI 2d. Mayo was charged with capital murder on the theory that he had the “premeditated and deliberate purpose” of causing his wife’s death. Accordingly, the trial court instructed the jury on the capital-murder offense and on the lesser-included offenses of first-degree murder, second-degree murder, and manslaughter.

The State correctly points out that it is not error for a court to refuse to give a nonmodel instruction when a model instruction accurately reflects the law. See Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). A trial court should give the jury a nonmodel instruction only when the model instructions fail to correctly state the law or if there is no model instruction on the subject. Cavin v. State, 313 Ark. 238, 855 S.W.2d 285 (1993). In the instant case, the model instructions matched the statutory language of each offense and properly stated the law. See Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). As a result, the jury was permitted to consider whether the appellant was acting under the influence of extreme emotional disturbance and guilty of a lesser-included offense.

In any event, the appellant has failed to cite any legal authority in support of his position, and this court does not consider arguments without authority or convincing argument where it is not apparent without further research that the argument is well-taken. Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998) (citing Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997)). Accordingly, we affirm the trial court on this point.

III. Rule 4-3(h)

In accordance with Ark. Sup. Ct. R. 4-3(h) (1998), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal, and no reversible errors were found. In light of the foregoing, we affirm the appellant’s judgment of conviction.


source: Caselaw Access Project

author: W.H.“Dub” Arnold, Chief Justice. Robert L.Brown, Justice,

license: Public Domain

text:
    Steve SWANIGAN v. STATE of Arkansas
    CR 98-870
    984 S.W.2d 799
    Supreme Court of Arkansas
    Opinion delivered February 4, 1999

      Wilson & Valley, by: E. Dion Wilson, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Ass’t Att’y Gen., for appellee.
   W.H.“Dub” Arnold, Chief Justice.

Appellant pleaded guilty in 1995 to two counts of delivery of cocaine, and the circuit court suspended imposition of his sentence on one of the counts for five years. In 1997, the court revoked appellant’s suspended imposition of sentence and placed him on probation for five years. The conditions of appellant’s probation required him to refrain from violating any state, federal, or municipal laws. The State subsequently moved to revoke appellant’s probation on the grounds that he was arrested for robbery and assault on October 7, 1997, and that during a search subsequent to that arrest, cocaine was found on his person.

The circuit court conducted a hearing on December 19, 1997, during which three rocks of crack cocaine were admitted into evidence. At the close of the hearing, the court found that there was insufficient evidence that appellant was involved in the robbery. However, the court then found that the information the officers had acted upon was sufficient to establish probable cause to arrest appellant and that both searches of appellant were proper. The court also found that the exclusionary rule does not apply to probation-revocation hearings and ruled that appellant had violated the terms of his probation by possessing cocaine. Consequendy, the court revoked his probation and sentenced him to twenty years in the Arkansas Department of Correction.

On appeal, appellant alleges that the trial court improperly admitted evidence that was the product of an unreasonable search. Appellant asserts two points on appeal: first, appellant claims that the circuit court erred by not applying the exclusionary rule to the revocation proceeding and suppressing the cocaine found during the search of his person because the police did not have probable cause to stop and detain him for the October 7, 1997, robbery; second, appellant acknowledges the general rule that the exclusionary rule does not apply to revocation proceedings, but he argues that the general rule should not apply to his case because the police officers acted in bad faith.

Appellee asserts that appellant did not preserve his arguments for appellate review. Appellee submits that appellant did not move prior to the revocation hearing to suppress the cocaine, nor did he object when Officer Byrd testified that during his search of appellant he found a bag containing three rocks of crack cocaine in appellant’s pocket. Additionally, appellee notes, appellant did not object when the cocaine was admitted into evidence and only objected and raised his exclusionary rule argument when the State had already presented evidence and rested its case. Therefore, appellee argues that this court is precluded from considering his arguments that the cocaine should have been suppressed. We agree.

A party who does not object to the introduction of evidence at the first opportunity waives such an argument on appeal. Marts II v. State, 332 Ark. 628, 968 S.W.2d 41 (1998), citing Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994). The policy reason for this rule is that a trial court should be given an opportunity to correct any error early in the trial, perhaps before any prejudice occurs. Id.

Appellant failed to timely object at the hearing. First, appellant did not move to exclude the evidence prior to trial based on the exclusionary rule. The only pretrial motion appellant appears to have made was based upon probable cause to support the underlying charge for the petition for revocation of appellant’s probation. This motion was argued before the court, but appellant argued neither the reasonableness of the search, nor whether the exclusionary rule should apply to probation-revocation hearings.

Second, he did not object at the hearing when, through the testimony of Officer Byrd, the State offered the cocaine for identification. The only objection appellant made when the State moved for the introduction of the cocaine concerned speculation regarding the chain of custody. Further, appellant even questioned Officer Byrd on cross-examination about finding the cocaine on appellant.

Finally, the State offered the cocaine into evidence through the testimony of Officer Thompson. At that time, the trial judge asked appellant if he had any objections to the cocaine being admitted, and appellant stated that he did not. The cocaine was then received into evidence.

It was not until his motion for directed verdict that appellant even hinted at an exclusionary rule argument, when he argued that the cocaine was the product of an unreasonable search. Finally, during closing arguments, the exclusionary rule argument was addressed; however, the trial court found that the rule did not apply to a probation-revocation hearing. Under these circumstances, appellant clearly failed to timely object to the introduction of the cocaine based on an exclusionary rule argument, thus failing to preserve his argument on appeal.

In sum, the merits of appellant’s appeal need not be addressed because he did not properly preserve his arguments at the trial court level, and the trial court’s ruling will, therefore, be affirmed.

Brown and Imber, JJ., dissent.

Robert L.Brown, Justice,

dissenting. I disagree that Swanigan's Swanigan’s counsel waived his argument that the cocaine should be excluded as the product of an illegal search. I would reach the merits of this case.

The majority states that on appeal Swanigan asserts that the trial court erred in admitting the cocaine into evidence. Not true. What Swanigan argues is that because all of the proof presented by the prosecution showed the arrest was illegal, the cocaine should have been excluded from consideration. Here, it is clear that Swanigan’s counsel did not raise an objection to the admission of the cocaine into evidence because he did not contest the fact that cocaine was found on Swanigan at the Blytheville Police Department. What he did contest was the propriety of arresting Swanigan in the first place and then searching him incident to what he contends was an illegal arrest. Under his theory, it is the illegal arrest that warrants the exclusion of the cocaine.

The majority describes Swanigan’s motion as a motion for directed verdict. The trial court and defense counsel referred to it as a motion to dismiss because the revocation hearing was held before the judge and not a jury. Whatever the case, it was appropriate to make the motion after the prosecution had presented its proof about the arrest because it was necessary for all of the facts concerning the arrest to be presented before the motion was ripe and appropriate. To have made the motion in the middle of the prosecution’s case would have been premature.

Our criminal rules describe when a motion for directed verdict for jury trials should be made. See Ark. R. Crim. P. 33.1. It is at the end of the prosecution’s case and at the close of all of the evidence. Nothing is said about requiring objections to physical evidence as a prerequisite to making the motion. Indeed, I am unaware of any caselaw making that requirement. The majority opinion certainly cites us to none.

This opinion unnecessarily muddies the water and confuses the law concerning motions for directed verdict and motions to dismiss as opposed, to objections to specific physical evidence. I would refrain from finding a waiver in this case and address the merits. For that reason, I dissent.

Imber, J., joins.


author: Donald L. Corbin, Justice.

text:
    STATE of Arkansas ex rel. Winston Bryant, Attorney General v. R&A INVESTMENT CO., Inc., d/b/a Mid South Title Loans; Reican, Inc., d/b/a Mid South Title Loans; and Reid & Reid, Inc., d/b/a Mid South Title Loans
    98-198
    985 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered February 4, 1999

      Winston Bryant, Att’y Gen., by: Teresa Finkelstein, Ass’t Att’y Gen., for appellant.

      Rose Law Firm, P.A., by: Allen W. Bird II and GarlandJ. Garrett, for appellees.
   Donald L. Corbin, Justice.

Appellant State of Arkansas ex sas, ex rel. Attorney General Winston Bryant, appeals the judgment of the Pulaski County Chancery Court, Second Division, granting summary judgment in favor of Appellees R&A Investment Co., Inc., Reican, Inc., and Reid & Reid, Inc., all of which operate under the name of “Mid South Title Loans” (Mid South). This appeal involves issues of first impression and requires our interpretation of the usury provisions contained in Article 19, Section 13, of the Arkansas Constitution, and the Arkansas Deceptive Trade Practices Act (DTPA), as codified at Ark. Code Ann. §§ 4-88-101 to -115 (Repl. 1996 & Supp. 1997); hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(1), (b)(1), and (b)(6). We reverse and remand.

Mid South is in the title-pawn business. Mark Riable is the registered agent for each of the three corporations, which runs newspaper ads targeting high-risk borrowers with “Bad Credit” and “No Credit.” After receiving complaints from Mid South’s borrowers, the State filed suit on April 23, 1997. In its complaint, the State alleged violations of Ark. Const, art. 19, § 13, the DTPA, and public-nuisance law. The State further alleged that Mid South’s contracts require borrowers to surrender their car titles as security for repayment and pay monthly interest, or a “monthly pawn charge.” The monthly interest is typically equal to 25% of the entire loan amount each month that the loan is not paid in full, and which constitutes an “Annual Percentage Rate” of 304.17%. Mid South’s contracts further provide that upon the borrower’s default, it “has the right to take whatever steps may be necessary to take possession thereof’ at the borrower’s risk and expense. Additionally, borrowers must sign a power of attorney, allowing Mid South to sell the vehicle upon repossession. Under the contract, Mid South cannot seek a deficiency judgment after repossession. The complaint alleged that Mid South’s business practices constitute unconscionable, false, or deceptive trade practices under section 4-88-107. The complaint alleged further that Mid South’s contracts constitute consumer loans and credit sales under art. 19, § 13(b).

The trial court initially granted the State’s motion for a preliminary injunction, finding that it had presented a prima facie case that Mid South’s practices were unconscionable. On November 3, 1997, both parties moved for summary judgment. The trial court conducted a hearing, during which borrowers testified about the financial circumstances that had precipitated their transactions with Mid South, as well as their subsequent transactions with Mid South. The trial court denied the State’s motion for summary judgment and granted Mid South’s motion for summary judgment, thereby concluding that the remedies for usury set forth in Ark. Const, art. 19, § 13, are exclusive, personal, and nonassignable. Although the trial court specifically found that “the [DTPA] and the Arkansas Constitution do not necessarily conflict,” it nonetheless concluded “that the Constitution should prevail as the remedy for any alleged victims of [Mid South’s] actions.” Because the trial court also found that the facts alleged in the complaint supported a usury action, it concluded that the Attorney General lacked standing to bring suit under the DTPA.

Summary judgment is appropriate when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998). In making this determination, we view the evidence in the light most favorable to the parties resisting the motion, and resolve all doubts and inferences in their favor. Id. The State argues that the trial court erred in granting summary judgment by (1) concluding that the remedies for usury contained in art. 19, § 13, are exclusive, thereby barring its action under the DTPA to protect consumers from unconscionable trade practices; (2) finding that the Attorney General could not file suit under the DTPA because usury is a personal action; and (3) not concluding that Mid South’s scheme of openly, continuously, and flagrantly flouting Arkansas usury law constitutes a public nuisance subject to abatement. We agree with the State and hold that the Attorney General has standing to enforce the provisions of the DTPA for unconscionable business practices involving usurious contracts. Because we reverse and remand on that basis, it is not necessary to address the State’s public-nuisance argument.

Article 19, Section 13, of the Arkansas Constitution (as modified by Amendment 60) provides in relevant part:

(a) General Loans:
(i) The maximum lawful rate of interest on any contract entered into after the effective date hereof shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract.
(ii) All such contracts having a rate of interest in excess of the maximum lawful rate shall be void as to the unpaid interest. A person who has paid interest in excess of the maximum lawful rate may recover, within the time provided by law, twice the amount of interest paid. It is unlawful for any person to knowingly charge a rate of interest in excess of the maximum lawful rate in effect at the time of the contract, and any person who does so shall be subject to such punishment as may be provided by law.
(b) ... All contracts for consumer loans and credit sales having a greater rate of interest than seventeen percent (17%) per annum shall be void as to principal and interest and the General Assembly shall prohibit the same by law. [Emphasis added.]

The State argues that section 4-88-107(a)(10), which prohibits “[e]ngaging in any other unconscionable, false, or deceptive act or practice in business, commerce or trade,” effectively supplements the constitutional provisions above. In Perryman v. Hackler, 323 Ark. 500, 916 S.W.2d 105 (1996), this court acknowledged that art. 19, § 13, expressly authorizes the General Assembly to enact legislation to punish parties who knowingly violate the usury provisions. Moreover, the plain language of subsection (b) mandates that the General Assembly prohibit usurious contracts. In this respect, we disagree with Mid South’s interpretation that Amendment 60 merely allows the legislature to restate the language found in art. 19, § 13.

Similarly, we refute Mid South’s reliance on Perryman, 323 Ark. 500, 916 S.W.2d 105, for its assertion that the Attorney General lacks standing to enforce the constitution’s usury provisions. Perryman involved a personal usury action, in which the appellants, who had defaulted on a usurious contract for real property that had been assigned to them, sought to recover for themselves the interest that their assignors had paid before assigning the contract, in addition to the interest that the appellant-assignees had paid. This court allowed the appellants to recover only such interest that they personally paid subsequent to the assignment. Here, the State is not bringing a personal claim for usury. Mid South contended in oral arguments before this court that each of the borrowers must bring an individual action for recovery, while admitting that its interest rates, which exceed 300% per annum, are usurious. In essence, Mid South requests that we condone its open, flagrant, and continuous violation of the Arkansas Constitution. This we decline to do.

This court has had limited opportunity to address the DTPA, which was enacted under Act 92 of 1971. We summarize our rules of statutory interpretation:

[T]he basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. . . . [W]hen a statute is clear, it is given its plain meaning, and that we will not search for legislative intent, rather, that intent must be gathered from the plain meaning of the language used. We are also very hesitant to interpret a legislative act in a manner contrary to its express language unless it is clear that a drafting error or omission has circumvented legislative intent. In interpreting a statute and attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that throw hght on the subject. We have recognized that changes made by subsequent amendments may be helpful in determining legislative intent.

State v. McLeod, 318 Ark. 781, 786, 888 S.W.2d 639, 642 (1994) (citations omitted). The preamble to Act 92 reveals that the legislature’s remedial purpose was “to protect the interests of both the consumer public and the legitimate business community [.]” The words “and unconscionable” were added to section 4-88-107(a) and (b) by Act 587 of 1993. Section 4-88-107(b) illustrates that liberal construction of the DTPA is appropriate, as it provides that “[t]he deceptive and unconscionable trade practices listed in this section are in addition to and do not limit the types of unfair trade practices actionable at common law or under other statutes of this state.” We thus refute Mid South’s contention that section 4-88-107(a)(10), which prohibits “any other unconscionable, false, deceptive act or practice” is too vague for enforcement. This catch-all provision was, no doubt, included because the General Assembly could not be expected to envision every conceivable violation under the DTPA.

As this action is based on admittedly usurious contracts, we rely on this state’s established contract law to define “unconscionable.” Although this court has not directly addressed this particular issue, our court of appeals has established a test for determining unconscionability in contract cases. In Arkansas Nat’l Life Ins. Co. v. Durbin, 3 Ark. App. 170, 174-175, 623 S.W.2d 548, 551 (1981), the court of appeals explained:

In assessing whether a particular contract or provision is unconscionable, the courts should review the totality of the circumstances surrounding the negotiation and execution of the contract. Two important considerations are whether there is a gross inequality of bargaining power between the parties to the contract and whether the aggrieved party was made aware of and comprehended the provision in question. Geldermann & Company, Inc. v. Lane Processing, Inc., 527 F. 2d 571 (8th Cir. 1975); see also, Mississippi Home Insurance Company v. Adams, 84 Ark. 431, 106 S.W. 209 (1907).

See also Associated Press v. Southern Arkansas Radio Co., 34 Ark. App. 211, 809 S.W.2d 695 (1991) (holding that under the Uniform Commercial Code, the determination of unconscionability is a mixed question of fact and law).

Here, the trial court specifically concluded that the State had established a prima facie case that Mid South’s business practices were unconscionable. The trial court also concluded that section 4-88-107(a) (10) does not conflict with the usury provisions set forth in art. 19, § 13. Moreover, the purpose of Arkansas’s strong anti-usury policy, as reflected by the prohibition of usury in our constitution, is to protect borrowers from excessive interest rates. Quinn-Moore v. Lambert, 272 Ark. 324, 614 S.W.2d 230 (1981). The General Assembly’s intent to protect consumers by passing the DTPA promotes the purposes of art. 19, § 13, by making its provisions effective for consumers who are not likely to have financial means to obtain legal assistance to bring individual actions, who are unlikely to be aware of their legal rights, and who have no choice but to continue paying illegal rates, while Mid South knowingly violates the law.

We therefore hold that the DTPA is broad enough to encompass Mid South’s scheme, which is contrary to Arkansas’s policy against usury, and is, in fact, designed not merely to evade the law, but to intentionally and deliberately violate our constitutional prohibition against usury. We further hold that the Attorney General has standing to enforce the provisions of the DTPA in this scheme involving such unconscionable practices. Because we hold that Mid South’s continuous and flagrant violations of the constitutional prohibition against usury are unconscionable practices, as envisioned by the General Assembly under the DTPA, we need not address the issue of whether Mid South’s actions should be declared a public nuisance. Accordingly, we reverse and remand for judgment consistent with this opinion.


author: Lavenski R. Smith, Justice.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. ESTATE OF Jeremie FERREL and Chastidy Ferrel
    98-1263
    984 S.W.2d 807
    Supreme Court of Arkansas
    Opinion delivered February 4, 1999

      Richard B. Dahlgren, Sr. Att’y, Office of Chief Counsel, for appellant Arkansas Dep’t of Human Servs.

      McKinnon Law Firm, by: Laura J. McKinnon, for appellee Estate of Donald Ferrel, Deceased.
   Lavenski R. Smith, Justice.

This case involves an issue of first impression: Whether first impression: Whether the Arkansas Department of Human Services is subject to traditional common-law principles of subrogation when it seeks reimbursement for medical benefits under Ark. Code Ann. §§ 20-77-301-313 (Repl. 1991 and Supp. 1997) and 42 U.S.C. § 1396a(a)25. The Arkansas Department of Human Services (“ADHS”) appeals to this court a decision of the Pope County Probate Court holding that it is indeed subject to general equitable principles applied in subrogation cases, in particular, the “made whole” rule. ADHS contends the trial court erred in applying this equitable rule to bar recovery of monies paid by a third party to the Medicaid recipient because of the express statutory lien on such monies.

The facts of this case are not in dispute, and the trial court heard the matter with the parties stipulating to their uncontroverted nature. On September 7, 1992, J.M. Ferrel, a thirteen-year-old boy, was hit by a car while riding his bicycle. The accident caused severe head injuries as well as broken bones, requiring extensive medical treatment. He is now permanently disabled with medical expenses in excess of $167,000.

On August 30, 1994, the probate court of Yell County appointed Jeremie’s father, Donald Ferrel, guardian of his person and estate. Mr. Ferrel, in that capacity, negotiated a settlement with Southern Farm Bureau Casualty Insurance Company. This company provided Okla Hunn, driver of the car that hit Jeremie, liability coverage. The insurance company offered the policy limits of $25,000 to settle the claim. Mr. Ferrel sought and received the court’s permission to setde the claim against the driver for $25,000. At the same time, the court ordered Mr. Ferrel to pay attorney’s fees and costs to the attorney representing the estate in the accident litigation and to put the remaining funds in a bank account in the name of the estate. No disbursement would be permitted absent a court order.

On November 30, 1994, ADHS’s Division of Economic and Medical Services, Third Party Liability Unit filed a claim against the estate of Jeremie M. Ferrel. The ADHS stated that Jeremie’s parent or guardian applied and qualified for medical benefits on his behalf. The ADHS pointed out that incident to Ferrel’s application they contractually agreed to reimburse the Medicaid program should they receive compensation from third parties for medical costs. The ADHS further asserted that Ark. Code Ann. § 20-77-301-313 (Repl. 1991 and Supp. 1997) gave the State a statutory lien on such compensation should it be received.

Apparently, at some point subsequent, the guardian, Donald Ferrel, motioned the Yell County Probate Court for distribution of funds for expenses. The ADHS filed its objection on January 4, 1996. Mr. Ferrel responded that the State’s subrogation interest should be dismissed or, at a minimum, reduced to no more than $2,500 because of remaining medical costs and amounts already expended by the guardian. The matter was transferred to the Probate Court of Pope County after appointment of a new guardian, Josephine Ferrel, due to the unexpected death of the guardian, Donald Ferrel. The court held a hearing on May 22, 1998, in which the parties stipulated to the facts and submitted the matter to the court on their pleadings and briefs.

On June 18, 1998, the court informed the parties by letter that after reviewing the record he believed the case of Franklin v. Healthsource of Arkansas, 328 Ark. 163, 942 S.W.2d 837 (1997), controlled the facts of their case. On July 29, 1998, the court entered its order denying ADHS’s petition asserting a claim against the estate. The court made specific findings that (1) the ward’s medical costs far exceeded the $25,000 received in settlement; (2) the Arkansas Department of Human Services had paid in excess of $32,000 in necessary medical expenses; (3) that future costs will exceed amounts recovered; and (4) that the Franklin case controlled the issues in dispute.

It is from this order that the instant appeal arises. ADHS asserts that its entitlement to recovery of medicaid benefits is not controlled by the common-law equitable principles in Franklin. We agree.

This case addresses an apparent conflict between the statutory provision allowing the Arkansas Department of Human Services to collect funds from recipients obtained in a personal-injury action, and the current rule regarding an insurer’s subrogation rights stated in the most recent applicable precedent. Id.

In Franklin, Curtis Franklin had a health insurance contract with Healthsource of Arkansas, which included a subrogation clause and an assignment-of-benefits clause. Following an automobile accident, Healthsource paid medical expenses Franklin incurred. Franklin sued the other driver and accepted an offer from the driver’s insurance carrier to settle for $25,000. Health-source, in a subsequent action, claimed it was entitled to the entire $25,000 under the subrogation clause in its contract because it had paid medical bills of over $71,000 on Franklin’s behalf. The trial court agreed with Healthsource and distributed the funds to it, less attorney’s fees for Franklin’s attorney. Upon appellate review, this court reversed, holding that “the equitable nature of subrogation requires that no distinction need be made between equitable and conventional rights of subrogation. An insured’s right to subrogation takes precedent over that of an insurer, so the insured must be wholly compensated before an insurer’s right to subrogation arises; therefore, the insurer’s right to subrogation arises only in situations where the recovery by the insured exceeds his or her total amount of damages incurred.” Id. at 169.

The trial court applied this rule to the facts of the instant case and ruled that the ADHS was in the nature of an insurance company seeking subrogation for benefits paid or enforcing an assignment-of-rights clause. In that the “insured,” Jeremie Ferrel, was not “made whole” by the insurance settlement, no subrogation right arose. However, the facts and the law of this case differ substantially from Franklin. ADHS is not a private insurance company. It is a state agency — a state agency statutorily charged with the responsibility to administer the federal Medicaid program. Federal law requires states which choose to participate in the Medicaid program to “take all reasonable measures to ascertain the legal liability of third parties.” 42 U.S.C. § 1396a(a)(25). It also requires the state to seek recovery of reimbursement from the third party to the limit of their liability after Medicaid claims payment. 42 C.F.R.. § 433, 138, 139. A state which fails to enact provisions to attempt to recoup expended funds when a third party is fiable risks losing federal funding for the state-run Medicaid program. The Legislature of the state of Arkansas enacted legislation to carry out the state’s obligation under federal law. This statute has specific provisions addressing the state’s obligation. Ark. Code Ann. § 20-77-301-313 (Repl. 1991 and Supp. 1997).

Subchapter 3, titled “Third-Party Liability,” addresses the means by which ADHS can recover Medicaid expenditures when a third party is at fault in causing injuries to the Medicaid recipient. Under section 301, ADHS reserves the right to recover from the recipient the benefits it provided when a third party is liable. Section 302 allows the recipient’s attorney to be paid reasonable fees and costs before repayment to ADHS when the recipient alone and without ADHS’s help or intervention, recovers from the third party. After the payment of fees, ADHS then is allowed to recover from the recipient the amounts it paid for treatment for the related injuries. Section 305 requires that notice be given to ADHS should the recipient receive an award. If notice is not given, and the recipient, his guardian, or attorney disposes of the settlement proceeds, ADHS may pursue an action against the recipient for reimbursement of the funds expended. Section 307 requires that, as a prerequisite to eligibility, every Medicaid applicant must assign his rights to any settlement, judgment, or award obtained from a third party “to the full extent of any amount which may be paid by Medicaid for the benefit of the applicant.” The application itself is stated to be an assignment by operation of law, and it is considered a statutory lien on any settlement, judgment, or award received by the recipient from a third party. Ark. Code Ann. § 20-77-307(b) and (c).

Arkansas courts have not as yet directly addressed the effect of current subrogation principles on the Medicaid reimbursement statutes. A state case and a federal district court case in Arkansas touch on the issue but do not specifically address or decide it. In In re Morgan, 310 Ark. 220, 833 S.W.2d 776 (1992), a student was injured while playing football at a state college. He was made a ward of the state and appointed a guardian. After the case was settled, ADHS sued Morgan for reimbursement of funds expended for his treatment. The probate court ordered that Morgan reimburse ADHS pursuant to the applicable statutes. On appeal, Morgan argued that, despite the applicable statutes, the probate court had the inherent power to deny reimbursement if it found that it was not in the best interest of the ward. The supreme court affirmed the trial court in that case and held, “Our statutes. . . clearly provide that when a Medicaid recipient receives an award or settlement from a third party which is liable for the injuries covered by the Medicaid payments, the DHS has an absolute right to those proceeds for the amount of the Medicaid payments made.” Id. at 222. This court required Morgan’s estate to reimburse ADHS. While this case seems to answer the question here, the specific issue of subrogation was not raised or addressed.

One Arkansas federal district court has addressed the Medicaid reimbursement statutes in Jones v. Balay, 810 F.Supp. 1031 (W.D. Ark. 1992). Jones, decided in the U.S. District Court for the Western District of Arkansas, concerned payment of attorney’s fees under the Medicaid reimbursement statute when the recipient did not notify ADHS that part of the case had been settled. The case was a malpractice action, and plaintiff recovered substantial damages but disputed ADHS’s entidement thereto if it did not pay-part of the attorney’s fees for the recovery. However, the court examined the statute extensively and held that the legislature stated in clear and unambiguous terms that ADHS could recover amounts it paid in medical expenses, with the attorney’s fees and costs coming from the setdement proceeds and not from ADHS. Id. at 1034, 1037. In that case, the settlement funds substantially exceeded the state’s medical payments, and subrogation itself was not in issue.

Other states have addressed similar situations with state-enacted Medicaid recoupment statutes. While their statutes and cases are not controlling in this jurisdiction, their analysis may prove helpful. In most of these cases, the courts’ final determinations hinged on the exact wording of each state’s statutes differentiating between whether only “subrogation” is provided for or whether a “hen” has been created by statute for the recoupment.

In Kittle v. Icard, 185 W.Va. 126, 405 S.E.2d 456 (1991), the West Virginia Supreme Court of Appeals held that the trial court correctly applied the “made whole” rule (equivalent to Arkansas’ current rule) and denied reimbursement to its Department of Human Services for expended Medicaid funds. In coming to this decision, the court relied on the language of the reimbursement statute which only provided DHS with subrogation rights. The statute, found at W.Va. Code § 9-5-11, does not create a lien to DHS, but instead only provides that the recipient automatically assign his rights when applying for benefits, and that DHS may recoup benefits under subrogation principles. Kittle was later superseded by statute when the West Virginia Legislature changed the meaning of the term “subrogation” in the recoupment statute as it applied to that particular statute. The West Virginia Legislature decided to change the meaning of “subrogation” in this statute as opposed to creating a lien provision, and the effect of the change now allows West Virginia’s DHS to recoup benefits from recipients under this new definition of “subrogation”. The change in the statute essentially exempted DHS from being bound by the general rules of subrogation. See, Grayam v. DHS, 201 W.Va. 444, 498 S.E.2d 12, 21 (1997); Cart v. General Electric Co., 506 S.E.2d 96, 99 (W.Va. 1998).

Several states have allowed recoupment by their Departments when the statute not only provides for assignment of benefits and subrogation, but also creates a lien on the benefits received from the third party. In Indiana Dept. of Public Welfare v. Larson, 486 N.E.2d 546 (Ind. App. 3 Dist. 1985), the Indiana Court of Appeals allowed Indiana’s Department to collect dollar-for-dollar the funds it expended because the recoupment statute created a lien in favor of the Department. In that case, the recipient argued that the court had the equitable power to determine the appropriate reimbursement amounts to the Department. The court determined that this “subrogation” argument was superseded by the enactment of the recoupment statute creating the lien.

United States District Courts in Minnesota and New York have also determined that a Hen created by statute allows recoupment of the entire amount of expended benefits. In Norwest Bank North Dakota v. Doth, 969 F.Supp. 532 (D. Minn. 1997) and Sullivan v. County of Suffolk, 1 F.Supp.2d 186 (E.D. N.Y. 1998), the District Courts respectively addressed Minnesota’s and New York’s recoupment statutes in the context of their effect on supplemental needs trusts. In both cases, the courts determined that the state statutes which created liens on the personal-injury settlements/recoveries allowed those states’ Departments to recover their benefits despite the fact that the funds had been placed in supplemental needs trusts. In coming to this conclusion, the courts reasoned that the funds recipients received were not their “property,” and that the settlement funds from the third party have already been “dedicated” to the Medicaid fund pursuant to the lien and the assignment of benefits. Norwest Bank, 969 F.Supp. at 535; Sullivan, 1 F.Supp.2d at 190. In essence, the courts reasoned that the settlement recovery never truly belonged to the recipient to allow the settlement funds to be exempt in a supplemental needs trust. Although the courts do not specifically address “subrogation” in this context, the same reasoning could be applied to that situation as well.

In Copeland v. Toyota Motor Sales U.S.A., 136 F.3d 1249 (10th Cir. 1998), a case cited by ADHS, the Court of Appeals allowed the Kansas Division of Social and Rehabilitation Services to recoup expended benefits from a recipient even though no statutory lien was created by the Kansas statute. The court considered the express limitations in the statute and determined that these limitations indicated that the legislature meant that only those limitations should apply. The court refused to apply equitable subrogation because it determined that this additional limitation imposed another term which the legislature did not intend. In other words, when the legislature created the laundry fist of limitations, the absence of “subrogation” as a recognized limitation was an indication that the legislature did not intend for it to apply. Id. at 1257.

ADHS argues that the reasoning in Copeland is applicable here because the Arkansas Legislature changed the Medicaid recoupment statute in 1987 to allow for full recovery of expended benefits instead of a one-third recovery in effect prior to 1987. ADHS argues that this statutory change reflects the legislature’s intent to allow full recovery by ADHS without any additional limitations. We agree.

The statute specifically permits ADHS to recover the full amount it paid to the recipient from settlement proceeds. The law actually provides two ways ADHS can recover expended funds. First, it can join in an action against the third party under the Hen provision in the statute. Ark. Code Ann. § 20-77-301 (a). The Hen itself allows ADHS to pursue the third party should it be necessary. ADHS did not take this route in this case, and it is not required to. Second, ADHS can recoup benefits from the recipient on the basis of the statutory language of assignment of benefits. ADHS chose this second means to pursue recoupment of its medical payments. AppeHee did not notify ADHS that a settlement had been reached to allow ADHS the opportunity to assert its rights before the settlement funds were paid. There is no indication in the record that the third-party insurer had notice of a Medicaid Hen, and when the settlement funds were paid, ADHS apparently was not included on the settlement check. While the lien provision would possibly allow ADHS to pursue the third-party insurer [See Daves v. Hartford Accident & Indem. Co., 302 Ark. 242, 788 S.W.2d 733 (1990)], this has not been asserted by either party as a possible remedy.

The statute, in section 305, indicates that ADHS’s ability to pursue the recipient for recoupment is an alternative means of recovery if the recipient fails to notify the third-party insurer of the Medicaid lien. In other words, if the Medicaid recipient fails to notify the third-party insurer of the lien, the statute would not require the insurer to pay double, but instead would require the recipient to pay over funds which actually were meant for ADHS in the first place. Again, however, the record does not indicate whether the third-party insurer was aware of the Medicaid lien. The record does indicate that Ferrel failed to notify ADHS of the setdement.

Given the clear, unambiguous language of the statute, it is apparent that the legislature intended that ADHS’s ability to recoup Medicaid payments from third parties or recipients not be restricted by equitable subrogation principles such as the “made whole” rule stated in Franklin. By creating an automatic legal assignment which expressly becomes a statutory lien, section 307 makes an unequivocal statement that the ADHS’s ability to recover Medicaid payments from insurance settlements, if it so chooses, is superior to that of the recipient even when the setdement does not pay all the recipient’s medical costs. The statute enables the state to seek “the full amount of benefits paid on behalf of the recipient. . . .” Ark. Code Ann. § 20-77-302 and 307. Principles and rules of equity are powerful tools for courts to achieve fair results but even valuable common-law constructs must yield to a legislative policy determination so plainly stated. The legislature could choose to subject ADHS to traditional subrogation principles but we do not believe it has, and accordingly, we reverse and remand.

Reversed and remanded.


author: Per Curiam.

text:
    Ray Albert HUSSEY v. STATE of Arkansas
    CR 99-61
    983 S.W.2d 438
    Supreme Court of Arkansas
    Opinion delivered February 4, 1999

      G.B. “Bing” Colvin III, for appellant.
    No response.
   Per Curiam.

Appellant Ray Albert Hussey has filed a motion for rule on the motion for rule on the clerk. The motion reflects that the notice of appeal was filed October 13, 1998; however, the record was not tendered until January 12, 1999, more than ninety days later. See Ark. R. App. P. — Civ. 5(a). His attorney, G.B. “Bing” Colvin III, admits in the motion that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Davis v. State, 335 Ark. 136, 983 S.W.2d 122 (1998) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). A copy of this per curiam opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

Motion granted.


text:
    STATE of Arkansas, OFFICE of CHILD SUPPORT ENFORCEMENT, Pulaski County v. Joey A. TERRY
    98-1279
    985 S.W.2d 711
    Supreme Court of Arkansas
    Opinion delivered February 11, 1999

      Angela Dodson and Amy L. Ford, for appellant.

      Boyd A. Tackett, Jr., for appellee.
   Donald L. Corbin, Justice.

Appellant State of Arkansas, Office of Child Support Enforcement, Pulaski County (OCSE), appeals the judgment of the Pulaski County Chancery Court granting Appellee Joey A. Terry’s motion to prohibit OCSE from representing the interests of his ex-wife, Lisa Terry Smith, in an attempt to collect past-due child support from him. The chancellor prohibited OCSE’s representation of Lisa on the ground that the agency had previously represented Joey’s interest while he was the custodial parent. On appeal, OCSE argues that the trial court erred in ignoring the plain language of Ark. Code Ann. § 9-14-210(d) and (e) (Repl. 1998), which provides that OCSE represents the State of Arkansas and does not represent the assignor of the support rights. This case was certified to us by the Arkansas Court of Appeals, pursuant to Ark. Sup. Ct. R. l-2(d), because it presents an issue of first impression. We find merit to OCSE’s argument and reverse.

The record reflects the following facts. On February 13, 1991, a consent decree was entered granting Joey a divorce from Lisa and awarding custody of the couple’s two minor children to Joey. Lisa was ordered to pay child support of $100 per month to Joey. Approximately five years later, on March 6, 1996, Joey and Lisa entered into an agreed order, wherein it was determined that they would have joint custody of the children; Lisa was granted physical custody of the children, subject to Joey’s rights of visitation. Joey was ordered to pay child support of $100 per month to Lisa.

On December 2, 1997, Joey petitioned the chancery court for a change of custody, asserting that there had been a material change in circumstances and that it would be in the best interest of the children that he be awarded custody. On March 18, 1998, Joey filed a second amended petition, moving the chancellor to restrain OCSE from representing Lisa on the matter of past-due child support from Joey. Attached to the second amended petition was a copy of the December 26, 1991 contract between Joey and OCSE, wherein Joey assigned his child-support rights to the agency in exchange for its assistance in collecting the support. OCSE responded to Joey’s petition by asserting that, pursuant to section 9-14-210, OCSE represents the State of Arkansas and does not undertake an attorney-client relationship with the custodial parent who has assigned his or her child-support rights to the agency.

A hearing was held on June 3, 1998, during which both Lisa and Joey were represented by private counsel; the attorney for OCSE appeared solely for the reason of enforcing Lisa’s assigned child-support rights. The chancellor granted Joey’s motion, finding that because OCSE “theoretically represented” Joey for purposes of child support while he was the custodial parent, OCSE was now prohibited from representing Lisa in the same cause. The chancellor acknowledged the language of section 9-14-210(d) and (e), but nonetheless found that “the ethical considerations are of paramount concern when opposing parties have used the same agency or attorneys for the same or similar issues in litigation against each other.” OCSE brings this appeal for determination of the issue of whether its attorneys represent, as an individual client, the assignor of child-support rights within the context of a true attorney-client relationship. Resolution of this issue necessarily requires our construction of section 9-14-210.

We adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. If the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995). Section 9-14-210 provides in part:

(d) The State of Arkansas is the real party in interest for purposes of establishing paternity and securing repayment of benefits paid and assigned past due support, future support, and costs in actions brought to establish, modify, or enforce an order of support in any of the following circumstances:
(1) Whenever public assistance under the Transitional Employment Assistance Program, i.e., Temporary Assistance for Needy Families, or § 20-77-109 or § 20-77-307 is provided to a dependent child; or
(2) Whenever a contract and assignment for child support services have been entered into for the establishment or enforcement of a child support obligation for which an automatic assignment under § 9-14-109 is not in effect; or
(3) Whenever duties are imposed on the state pursuant to the Uniform Interstate Family Support Act, § 9-17-101 et seq.
(e) (1) In any action brought to estabhsh paternity, to secure repayment of government benefits paid or assigned child support arrearages, to secure current and future support of children, or to estabhsh, enforce, or modify a child support obligation, the Department of Human Services, the Office of Child Support Enforcement, or both, or their contractors, may employ attorneys.
(2) An attorney so employed shall represent the interests of the Department of Human Services or the Office of Child Support Enforcement and does not represent the assignor of an interest set out in subsection (d) of this section.
(3) Representation by the employed attorney shall not be construed as creating an attorney-client relationship between the attorney and the assignor of an interest set forth in subsection (d) of this section, or with any party or witness to the action, other than the Department of Human Services or the Office of Child Support Enforcement, regardless of the name in which the action is brought. [Emphasis added.]

This court has only had one occasion to review section 9-14-210. In Harnage, 322 Ark. 461, 910 S.W.2d 207, the issue was whether the State was the real party in interest such that it could bring and maintain a paternity action against the alleged father, Harnage. As in the instant case, the child’s mother had entered into a contract and assignment of child-support services with OCSE. Harnage contended that the assignment of support was not enough to render the State the real party in interest, because the child had not received public assistance during her minor years. This court concluded:

The three criteria in [section 9-14 — 210 (d)] are listed in the disjunctive, and the Office is a real party in interest when any one of the three conditions is met. Nowhere in § 9-14-210(d)(2) does it require that public funds be expended on behalf of the child before the Office is deemed a real party in interest under this subdivision.

Id. at 464, 910 S.W.2d at 208 (emphasis added). Thus, for pur- ■ poses of determining the real party in interest in a situation where the custodial parent has assigned his or her child-support rights to OCSE, it is immaterial whether the custodial parent is receiving public assistance on behalf of the child.

In Vanzant v. Purvis, 54 Ark. App. 384, 927 S.W.2d 339 (1996), our court of appeals addressed an issue under section 9-14-210 that is closely related to the one at hand. The issue there was whether the attorney for OCSE represented the appellant-mother for purposes of proving valid service of process under ARCP Rule 5(b). The appellant had assigned her child-support rights to OCSE for enforcement. The appellee-father had attempted service on the appellant through OCSE’s attorney, Mr. Butler. The court of appeals concluded that service on Mr. Buder was insufficient because he did not represent the appellant. The court of appeals reasoned that the scope of Mr. Butler’s representation was defined by section 9-14-210 and concluded that because the appellant had executed a contract with OCSE to assign her child-support rights, Mr. Butler was prohibited from representing the appellant. We concur with the court of appeals’ interpretation of the scope of OCSE’s attorneys’ representation under section 9-14-210. That holding is equally applicable here, despite the fact that the circumstances of this case are somewhat different. To determine the particular issue presented here, we examine cases from other jurisdictions.

In Gibson v. Johnson, 582 P.2d 452 (Or. Ct. App. 1978), the plaintiff, a recipient of Aid to Dependant Children (ADC), brought a class action against the attorney general and two assistant attorneys general assigned to the Support Enforcement Division (SED). The plaintiff contended that the actions taken by the SED attorneys in enforcing the child-support obligation assigned to the state created an attorney-client relationship between the SED attorneys and those persons who were receiving public assistance and had assigned their child-support rights to the state. The law in effect at the time required recipients of ADC to assign to the Department of Human Resources any right to support that they may have. Particularly, Oregon Revised Statutes 23.789(2) provided:

In any case involving a child or custodial parent or other dependent person who is a recipient of public assistance or care, support or services, the Support Enforcement Division of the Department of Justice shall represent such child or children, caretaker parent, other dependent person or the Department of Human Resources for the purpose of seeking modification, or enforcement through contempt proceedings, garnishment, an order for assignment of wages ... of any order or decree entered under ORS chapters] 107, 108, 109, 110, or 419.

Id. at 455-56 (emphasis added). The trial court found that section 23.789(2) created at least a nominal attorney-client relationship. The Oregon Court of Appeals disagreed, concluding that no attorney-client relationship was created under the statute:

The general statutory plan is that the recipient must assign support rights to the state, and the state, with the required cooperation of the recipient-assignor, collects the support from the obligor. The support is collected on behalf of the state as assignee and not on behalf of the recipient. The essence of this statutorily created relationship is that of assignor-assignee. The mere fact that the assignor is required to cooperate with the attorney for the assignee does not establish an attorney-client relationship. The contact between the recipient and the SED attorneys is for the benefit of the state in recouping some of the funds paid out for aid to dependent children. The state may enforce the obligation whether the recipient cooperates or even over the specific objection of the recipient-assignor. If the SED attorneys were representing the recipient in an attorney-client relationship, it would seem the wishes of the recipient would have to be given some status in the decision to proceed.
It is true the ADC recipient can reap the benefits of a support decree, obtained by the SED on behalf of the state, after the ADC benefits are terminated. This is merely an ancillary benefit of the state’s enforcement of the support obligation for its own purposes and does not create an attorney-client relationship.

Id. at 456 (citations omitted) (emphasis added).

In a more recent case, Haney v. State, 850 P.2d 1087 (Okla. 1993), the Supreme Court of Oklahoma took the holding in Gibson one step further. There, the issue was whether an attorney-client relationship is created between a custodial parent who is not receiving Aid to Families with Dependent Children (AFDC) and the district attorney who contracted with the Department of Human Resources to enforce that child-support obligation. Observing that the Oklahoma statutory scheme allows both recipients and non-recipients of AFDC to apply for assistance in collecting and enforcing child-support obligations, the court concluded that there was no attorney-client relationship in such a situation. The court further observed that the state has a pecuniary interest in the enforcement of child-support orders regardless of whether the custodial parent is receiving public assistance. The court held that Title IV, Part D, of the Social Security Act “was not only enacted in order to recoup payments made for AFDC recipients, but also to help families avoid becoming dependent on the State through lack of support from an absent parent.” Id. at 1091 (footnote omitted) (emphasis added). In holding that there was no attorney-client relationship created between the district attorneys and the assignors of child-support rights, the court concluded:

If the intent of the Legislature was to recognize or establish an attorney-client relationship between a district attorney and a custodial parent in a situation under the statutory scheme at issue here, a situation would exist which would foster or raise the potential for serious conflicts of interest within that relationship. For example, a district attorney would be compelled to prosecute his “client” should the individual violate criminal statutes. Fur ther, if custody of the child is transferred to another, the district attorney could he compelled to enforce support payments against his former “client’’, which inherently would pose confidentiality problems. We simply do not believe the Legislature intended such potential results, but instead at all times recognized district attorneys were deemed to represent the interests of the State, rather than the custodial parent.

Id. at 1092 (emphasis added).

In the present case, the chancellor found that despite the plain language of section 9-14-210(d) and (e), OCSE’s participation on behalf of each parent, at separate times, amounted to theoretical representation of two individual clients whose interests were adverse. The chancellor placed considerable emphasis on the fact that neither Lisa nor the children were receiving public assistance, such as AFDC, and that the monies collected by OCSE from Joey would not direcdy benefit the State. Addressing OCSE’s attorney, the chancellor stated:

[YJou’re not collecting State money. At one point you were seeking to help Mr. Terry get money from Mrs. Terry, now you’re trying to help Mrs. Terry get money from Mr. Terry, and that, in my mind, with the traditional view of who’s a client and what your duties are, puts you all in a conflict situation.

We disagree with the chancellor’s conclusion for two reasons. In the first place, monies collected by OCSE on assignment directly benefit the State under the provisions of Title IV-D of the Social Security Act, codified at 42 U.S.C. §§ 651-669b. Specifically, section 656(a), as amended in 1996, provides that “[t]he support rights assigned to the State or secured on behalf of a child receiving foster care maintenance payments shall constitute an obligation owed to such State by the individual responsible for providing such support.” (Emphasis added.) The 1996 amendment struck the words “under section 602(a) (26) of this title” after the words “assigned to the State.” Section 602(a)(26) pertained to an automatic assignment of child-support rights by custodial parents receiving AFDC funds. We find significant the fact that section 656(a) was amended to remove any reference to public assistance, and that it now provides that all assigned support rights are considered obligations owed to the State.

In the second place, the stated purpose of the Title IV-D program is to enforce support obligations owed by noncustodial parents to their children and the former spouse with whom the children are living and to assure that assistance in obtaining support will be available to all children, whether or not they are eligible for assistance under a state AFDC program. 42 U.S.C. § 651. Courts have uniformly held that the services, legal or otherwise, furnished by the states under their approved Title IV-D plans must be the same, regardless of whether the custodial parent is receiving public assistance. See Carter v. Morrow, 562 F. Supp. 311 (W.D. N.C. 1983); Thaysen v. Thaysen, 583 So. 2d 663 (Fla. 1991); South Carolina Dep’t of Social Servs. v. Deglman, 351 S.E.2d 864 (S.C. 1986); State ex rel. Jeske v. Jeske, 424 N.W.2d 196 (Wis. 1988). These decisions are consistent with this court’s holding in Harnage, 322 Ark. 461, 910 S.W.2d 207, that the State is the real party in interest when there has been an assignment of support rights to OCSE, regardless of whether the custodial parent is receiving public assistance on behalf of the child.

The legislative history of Title IV-D further reveals Congress’s purpose for extending child-support enforcement services to those families not receiving public assistance. The United States Senate Committee on Finance recognized “that the problem of nonsupport is broader than the AFDC rolls and that many families might be able to avoid the necessity of applying for welfare in the first place if they had adequate assistance in obtaining the support due from absent parents.” S. Rep. No. 1356, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 8133, 8158. See also Carter, 562 F. Supp. 311. Six years later, discussing the proposed Child Welfare Act of 1980, the Senate Finance Committee concluded:

The committee believes that the requirement that every State have a program of child support collection and paternity establishment services for families that are not receiving welfare is an essential component of the child support program. The purpose of the requirement is to assure that abandoned families with children have access to child support services before they are forced to apply for welfare. It is the opinion of the committee, supported by the statements of many State child support administrators, that access to these services often means the difference between a family’s reliance on welfare support and being supported by a legally responsible parent.

S. Rep. No. 336, 96th Cong., 2d Sess. (1980), reprinted in 1980 U.S.C.C.A.N. 1448, 1526-27 (emphasis added). In Carter, 562 F. Supp. 311, the court explained:

Congress has recognized that the individual and governmental interests in the IV-D program are somewhat different in the case of non-recipients of welfare. However, Congress has taken this difference into account not by allowing the states to provide different services to non-welfare applicants, but by allowing them to charge those persons a reasonable application fee and to collect costs in excess of the fee from the parent who owes the support obligation or, in limited circumstances, from the applicant.

Id. at 315 (citations omitted).

Based upon the foregoing cases and statements of congressional purpose, we conclude that there is no legitimate reason for distinguishing custodial parents receiving public assistance from those who do not. The bottom line is that all custodial parents who assign their rights to child support to the Title IV-D agency must receive the same services, including legal services, whether they are receiving, or are otherwise eligible to receive, public assistance. The collection of child support ultimately benefits the State by providing for the financial needs of its children, without having to resort to public funds to do so. Thus, regardless of the financial status of the custodial parent, once the child support is assigned to the State, it becomes an obligation owed to the State, not the individual parent, by the noncustodial parent. In this respect, the chancellor erred in concluding that because Lisa was not receiving public assistance, OCSE was representing her, not the State. We concur with the reasoning of the Oklahoma Supreme Court in Haney, 850 P.2d 1087, that, once the child-support rights are assigned to the State, the State has a pecuniary interest in enforcing those rights even though the amounts collected on behalf of those assignors who are not receiving public assistance will ultimately pass from the State to the assignors and their children. Like the court in Haney, we conclude that in such situations, the client is the State, not the individual assignor.

Our conclusion finds support in the provisions of this State’s Title IV-D plan, which, for the purposes of this appeal, are codified at Ark. Code Ann. §§ 9-14-201 to -240 (Repl. 1998). Specifically, section 9-14-206 provides that the OCSE is authorized to administer this State’s plan for child-support enforcement under Title IV-D; subsection (c) provides that the OCSE is designated as a law enforcement agency. All support monies collected in such cases of assignment shall be paid through the Arkansas child support clearinghouse, pursuant to Ark. Code Ann. §§ 9-14-801 to -807 (Repl. 1998). See section 9-14-213. Section 9-14-212 provides that the OCSE may charge an application fee of $25 from any person who contracts for Title IV-D services and who is not receiving public assistance. Correspondingly, section 9-14-214 provides that in any action brought on behalf of a person to whom a child-support obligation is owed, OCSE shall be awarded a fee of not less than three percent and not more than six percent of the overdue support. Section 9-14-210, the subject of this appeal, provides for the employment of attorneys by OCSE to assist in collecting and enforcing child-support obligations once an assignment of those rights has been made by the custodial parent to OCSE.

We conclude that the language in section 9-14-210 is an unequivocal declaration by the General Assembly that in cases where child-support rights are assigned by the custodial parent to OCSE, the State is the real party in interest for purposes of enforcement of the support rights, and that OCSE attorneys therefore represent the interests of the State, not the individual assignor of the support rights. Moreover, it is apparent that the General Assembly, by enacting section 9-14-210(e)(3), recognized the potential conflicts of interests that would arise if the OCSE attorneys assumed an attorney-client relationship with the assignor. That subsection specifically provides that representation by the OCSE attorney “shall not be construed as creating an attorney-client relationship between the attorney and the assignor[.]” The language of that section is plain and unambiguous and conveys a clear and definite meaning; hence, there is no reason to resort to the rules of statutory construction in this case. The chancellor’s ruling prohibiting OCSE attorneys to act on behalf of its rights assigned by Lisa to enforce Joey’s court-ordered child-support obligations is thus erroneous.

Moreover, because OCSE attorneys represent the State, there is no conflict of interest when the agency provides child-support services, including legal services, to one parent and then to the other parent in the event of a change of custody. In this respect, we view the role of the OCSE attorney as being closely akin to the prosecuting attorney. The prosecuting attorney is empowered to bring charges and take a judgment against the noncustodial parent for failure to pay child support as ordered. See Ark. Code Ann. § 5-26-401 (Repl. 1997). Clearly, there would be no conflict of interest where the prosecuting attorney sought to bring charges against the mother for nonsupport even though the father had been previously prosecuted by the same prosecuting attorney for the same crime. In such a situation, there is no conflict of interest because the prosecuting attorney does not represent the custodial parent, despite the fact that it is the custodial parent who benefits from such enforcement. The same can be said for OCSE attorneys who represent the assigned child-support rights of both parents, but at separate times. The stark reality is that custody of the children may frequently change from the mother to the father, and vice versa. The chancellor’s ruling here effectively prohibits OCSE from carrying out its duties on behalf of its stated client, the State, in every case wherein custody has changed hands.

In sum, there is no conflict of interest by permitting OCSE to enforce Lisa’s assigned child-support rights against Joey, even though it had previously attempted to enforce Joey’s assigned rights against Lisa. No attorney-client relationship arose out of OCSE’s contact with either Joey or Lisa. Rather, at all times, the OCSE attorneys represented the interest of their statutory client, the State of Arkansas, in an attempt to enforce an obligation owed to the State. Accordingly, because the chancellor’s ruling runs contrary to the clear and definite meaning of the statute, we must conclude that the decision was in error.

Reversed and remanded.