author: David Newbern, Justice. Tom Glaze, Justice,

text:
    COMMERCIAL UNION INSURANCE COMPANY v. Ray JOHNSON d/b/a Johnson Transport Service and Shelter Insurance Companies
    87-328
    745 S.W.2d 589
    Supreme Court of Arkansas
    Opinion delivered February 1, 1988

      Hankins, Capps, Hicks & Madden, by: Paul P. Capps, for appellant.

      Odell Pollard, P.A., by: Margaret Bunn, for appellee.
   David Newbern, Justice.

The issue in this case is whether an insurer may be liable pursuant to the omnibus clause in an automobile liability policy for injuries caused by a driver whose use of the insured automobile has exceeded the permission given by the automobile’s owner. While the “scope of permission” issue has been decided in many other courts, and in several different ways, it is a question of first impression for this court. We hold that if permission has been given by the insured owner of the insured vehicle to a driver who then causes injury or property damage during the permissive use, insurance coverage pursuant to an omnibus clause is not affected by the fact that the permissive use may have exceeded or differed from that which was specified or intended by the owner.

Appellee Ray Johnson, d/b/a Johnson Transport Service, obtained a judgment against Marty Self as the result of an automobile accident. Johnson then, along with appellee Shelter Insurance Companies, which claimed a subrogation interest, brought this action against Commercial Union Insurance Company for the damages Johnson had recovered in the earlier action as well as for attorney fees and a 12 % penalty. They alleged that Commercial Union was liable under a policy it had issued to Brett Davis, whose automobile Self was driving when the accident occurred. Their contention was that Brett Davis’s wife, Teresa Davis, had given Self permission to drive Brett Davis’s car, and thus the omnibus clause in the policy issued by Commercial Union to Davis extended coverage to the accident.

In response to a request for admissions, Commercial Union admitted that Brett Davis was its insured, that Teresa Davis was Brett Davis’s wife, and that a person driving Brett Davis’s car with permission of Teresa Davis would be an insured under the policy if operating the vehicle “totally within the scope of consent and permission of Teresa Davis.” The response concluded as follows: “ [Commercial Union] takes the position that Marty Self was outside the scope of any permission given by Teresa Davis.”

Johnson and Shelter moved for summary judgment with affidavits including one from Self who stated that Teresa Davis had asked him to take the car to buy cigarettes for her and that the accident had happened on Highway 79 as he was going to purchase the cigarettes at Clarendon. In its response to the motion for summary judgment, Commercial Union referr ed to its earlier response to requests for admissions, noted above, and attached the affidavit of Teresa Davis in which she denied she had asked Self to use the car to purchase cigarettes for her but stated he had asked to borrow the car and she had allowed him only to drive it on a country road for a short distance. She stated that Self drove the car on the highway in violation of the permission she had given.

In his order granting summary judgment in favor of Johnson and Shelter, the circuit judge found that: “Commercial may not deny coverage due to the fact that Teresa Davis issued limitations on the manner of usage of the insured automobile.” We agree with that statement, and thus we affirm the summary judgment.

The Arkansas Motor Vehicle Safety Responsibility Act, particularly Ark. Code Ann. § 27-19-713(b) (1987) provides: “Owner’s Policy. The owner’s policy of liability insurance shall: . . . (2) Insure the person named therein and any other person, as insured, using any vehicle or vehicles with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the . . . use of the vehicle . . . .” While we do not have in the record before us the policy issued by Commercial Union to Brett Davis, we assume that it was in compliance with the statute. Although the words, “with the express or implied permission,” are not limited in any way, we recognize that the word “permission” might legitimately be defined as including only such usage of a car as was intended by the owner, expressly authorized or limited by the owner, or perhaps agreed to by the owner and the intended user. We can conceive of situations in which the expressed authorization or limitation stated by the giver of permission might lead to various reasonable inferences on the part of the user as to the extent of the permission given. While we have before us a swearing match rather than an issue of meaning or innuendo in determining the extent of permission, by holding that the extent of permission is irrelevant, the trial judge has given us the opportunity to decide, as a policy matter, whether any consideration beyond whether permission was given should matter.

Commercial Union presents two arguments. First, it contends that in order for us to hold Self had permission we must find an agency relationship between Self and Brett or Teresa Davis. A number of “scope of employment” cases are cited and discussed, none of which purports to apply to the situation before us. Commercial Union gives us no explanation why “scope of employment” cases should apply to ascertaining whether “scope of permission” has been exceeded. While we will note later in this opinion that the Arizona Supreme Court has held that the driver of a motor vehicle is rebuttably presumed to be the agent of its owner, that has to do with whether initial permission to use the vehicle has been given rather than whether deviation from the scope of permissive use has occurred. Even the most rigorous of thinkers have sometimes been temporarily led astray by the “scope of employment” argument, see W. Davis, Is George T. Frampton Human?, 1987 U. 111. L. Rev. 9,11, but we decline to explore it in the absence of some authority or convincing argument that the cases on “scope of employment,” as used in the agency context, govern the scope of permissive use of an insured vehicle.

As its second argument, Commercial Union contends that Nebraska has a statute like our § 27-19-713(b) and that the United States Court of Appeals for the Eighth Circuit noted, in Bekaert v. State Farm Mutual Automobile Insurance Co., 230 F.2d 127 (8th Cir. 1956), that Nebraska had not interpreted it so liberally as to say that, as a matter of law, permission to use an insured vehicle extends coverage no matter what use, short of conversion of the vehicle, may be made of it. While that may have been the case in 1956, the Nebraska Supreme Court, in 1969, reviewed its somewhat conflicting cases interpreting omnibus insurance clauses and clearly recognized its commitment to the “initial permission” rule which it described as follows: “if permission to use the automobile was initially given, recovery may be had regardless of the manner in which the automobile was thereafter used.” Arndt v. Davis, 183 Neb. 726, 163 N.W.2d 886 (1969). The court also made it clear that its decisions on this question were not tied to the Nebraska statute to which the court of appeals referred, but depended on the language of the insurance agreement.

While we do not find ourselves with conflicting decisions to reconcile or choose among, as did the Nebraska Supreme Court in 1969, we are faced with the same choice among possible rules of interpretation of omnibus clauses, and we find the Nebraska court’s discussion helpful:

There is a considerable volume of law dealing with the interpretation of omnibus clauses such as the one presented in this case. It appears, generally speaking, that three different rules have been followed. The first is the so-called strict or conversion rule to .the effect that the exact use of the automobile at the time and place of the accident must have been with the express or implied permission of the employer. The second is the moderate or minor deviation rule which permits recovery when the deviation from the permission granted is of a minor nature. The third is the liberal or initial permission rule to the effect that if permission to use the automobile was initially given, recovery may be had regardless of the manner in which the automobile was thereafter used. Proponents of this rule justify it on the ground that it is good public policy to protect persons injured in automobile accidents against uninsured motorists. They further justify the rule on the theory that the purpose of the omnibus clause is to broaden the coverage of the policy to cover all persons operating the insured automobile with the knowledge and consent of the insured owner and insist that once the owner has placed the automobile in the possession of the driver and consented to his operating the automobile, any deviation from the purposes for which the automobile was entrusted to the operator is immaterial. The first two rules mentioned appear to limit the insurer’s liability primarily to the liability of the insured. The third or liberal rule goes beyond this and holds the insurer liable even in cases where the owner is not liable on the theory of respondeat superior, family purpose doctrine, etc. See Annotation, 5 A.L.R.2d 600. [163 N.W.2d at 887-888]

We have found a similar, updated, discussion in 6C J. Appleman, Insurance Law and Practice, §§ 4366-4368 (1977). That treatise, in discussing the “initial permission” rule states in § 4366:

§ 4366. Permission — Deviation from Permission Granted— (a) Hell or High Water Rule
A number of states have apparently felt that even an ordinary automobile liability insurance contract is as much for the benefit of members of the public as for the benefit of the named or additional insured. Therefore, upon an injury occurring they have felt it undesirable to permit litigation as to the use made of the vehicle, the scope of permission, purposes of the bailment, and the like. These states have arbitrarily adopted a doctrine that if the vehicle was originally entrusted by the named insured, or one having proper authority to give permission, to the person operating it at the time of the accident, then despite hell or high water, such operation is considered to be within the scope of the permission granted, regardless of how grossly the terms of the original bailment may have been violated. This rule is also, albeit less colorfully, known as the initial permission rule. It should be noted, however, that a minority of jurisdictions have rejected the rule.
A deviation from the permitted use is absolutely immaterial under this rule. Nor has it been considered conclusive that the time limit of the permission had expired. The only essential thing is that permission be given for use in the first instance. In fact, Illinois has held that the insured owner of a car cannot limit the scope of the permission given, certainly a strange result in view of the fact such owner could sue that bailee for conversion of the automobile in exceeding his permission.
Of course, the rule that initial permission will suffice applies only when that permission was actually granted to the user sought to be brought within the coverage of the policy.
North Carolina has held that by adding to the persons insured under an owner’s liability policy “any other persons in lawful possession” of the insured’s vehicle, the legislature intended a change in the liability insurance coverage previously required by the statute, so that when the lawful possession of a vehicle is shown, further proof is not required to show that the operator had the owner’s permission to drive on the very trip and occasion of the collision. [Footnotes omitted]

The Nevada Supreme Court, in United States Fidelity and Guaranty Co. v. Fisher, 88 Nev. 155, 494 P.2d 549 (1972), adopted the initial permission rule. After considering the various authorities and the three basic constructions of omnibus clauses, as we have done, the court stated:

As Chief Justice Weintraub wrote in his dissent in Baesler v. Globe Indem. Co., 33 N.J. 148, 162 A.2d 854, 859 (1960), which dissent was cited in part, with approval, in the later case of Odolecki v. Hartford Accident & Indem. Co., 55 N.J. 542, 264 A.2d 38 (1970):
“People contract for results, presumably sensible ones. Words are mere vehicles to convey their intention. Perfect expression is rare, particularly in the composition of a general covenant when the draftsman can not foresee all cases which may call it into play.”
Nevada’s “motor vehicle liability policy,” defined in NRS 485.3091, subsection 2(b), of the Safety Responsibility Act, declares in part that every such insurance policy shall “[i]nsure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured.”
We know that contracting parties cannot contemplate every possible situation and spell out in advance their understanding as to each situation that might develop. If we are to interpret the intention of the parties, we must seek the reason for the extended coverage and be guided by that reason.
Zelda [the insured] bought and paid for the protection of others who might drive her car. Conspicuous is the fact that she was vested with plenary authority to determine who should be the beneficiary of the contract. Whether she permitted one or a hundred to drive her car, the premium remained the same. The company was paid for a policy under which Zelda as the named insured could extend the liability coverage to whomever she pleased.
Many reasons have been advanced that favor the adoption of the “initial permission” rule. As the court said in Odolecki v. Hartford Accident & Indem. Co., supra [55 N.J. 542, 264 A.2d 38 (1970)], 264 A.2d at 42:
“. . . [A] s Chief Justice Weintraub pointed out in his dissent in Baesler. ‘A named insured untutored in law and fearful that his consent might lead to his own liability for damages in excess of the policy limits (indeed by statute in some jurisdictions he would be so liable) may well be tempted to invent a claim that he prohibited others to drive or to convert a precatory request into a binding prohibition’ ... We add that the fear of insurance policy cancellations might well have the same effect.”
An even more powerful argument in favor of the “initial permission” rule is the important policy of assuring that all persons wrongfully injured have financially responsible persons to look to for damages. In other words, a liability insurance policy is for the benefit of the public as well as for the benefit of the named insured. Our Legislature has spoken on the issue, as evidenced by NRS 485.3091, subsection 2, of the Safety Responsibility Act, supra. Once an owner voluntarily hands over the keys to his car, the extent of permission he actually grants is irrelevant. Making coverage turn on the scope of permission given in the first instance renders coverage uncertain in many cases. Such practice fosters litigation regarding the existence or extent of any possible deviation, and it obstructs achievement of the policy declared by the Legislature. As the court said in Matits v. Nationwide Mut. Ins. Co., supra, 166 A.2d at 349:
“. . .We think that the ‘initial permission’ rule best effectuates the legislative policy of providing certain and maximum coverage, and is consistent with the language of the standard omnibus clause in automobile liability insurance policies.” [88 Nev. at 158-60, 494 P.2d at 551-553]

In Milbank Mutual Insurance Co. v. U.S. Fidelity and Guaranty Co., 332 N.W.2d 160 (Minn. 1983), the Minnesota Supreme Court noted that it had previously used primarily the “minor deviation” rule in interpreting omnibus clauses with the exception of cases in which a minor had been granted permission to use a vehicle, in which instance the “initial permission” rule was used. The question in the Milbank case was whether to extend the “initial permission” rule to cases in which an adult had given permission to another adult. The court referred to Minn. Stat. Ann. § 170.54 (1986) which provided that a person operating another’s vehicle with the “consent” of the owner is to be deemed the agent of the owner in the operation of the vehicle. While that statute making an owner responsible is different from our statute stating that which a vehicle owner’s insurance policy shall contain, they are ostensibly reflective of the same public policy, that is, the extension of financial responsibility for vehicle accidents to as broad a segment of the populous as can fairly and reasonably be done. In holding that the “initial permission” rule affects that policy and should be applied universally, the court said:

Today, the initial permission rule is said to be supported by the “weight of authority.” Konrad v. Hartford Accident & Indemnity Co., 11 Ill. App. 2d 503, 137 N.E.2d 855 (1956). The rule is apparently followed in the courts of Connecticut, Louisiana, Massachusetts, New Jersey, Tennessee, Wisconsin and Texas. Primary justification for the “initial permission” rule is that it alone guarantees fulfillment of the state’s policy of compensating innocent accident victims from financial disaster. Courts also have recognized that application will discourage collusion between bailor and bailee in order to escape liability; and courts have noted that the “initial permission” rule will greatly reduce a most costly and wasteful type of litigation. See, e.g., Jordan v. Consolidated Mutual Insurance Co., 59 Cal.App.3d 26, 41, 130 Cal. Rptr. 446, 455 (1976) [332 N.W.2d at 166].

The holding of the court was that any violation of the initial permission of the owner of the vehicle by one to whom it had been intrusted, short of theft or conversion, would not relieve the insurer.

In Visintin v. Country Mutual Insurance Company, 78 Ill. App.2d 75, 222 N.E.2d 550 (1966), the reason for the adoption of the “initial permission” rule in Illinois was given as follows: “the rule is based on the theory that the insurance contract is as much for the benefit of the public as for the insured, and that it is undesirable to permit litigation as to the details of the permission and use;. . .” quoting Konrad v. Hartford Accident & Indemnity Co., 11 Ill. App. 2d 503 at 514, 137 N.E.2d 855 at 861 (1956).

We have also examined the cases cited by Appleman, in n. 38.20, § 4366, supra, as having rejected the “initial permission” rule. In Underwriters Insurance Co. v. State Automobile and Casualty Underwriters, 108 Ariz. 113, 493 S.W.2d 495 (1972), the Arizona Supreme Court stated that the “initial permission” rule did not apply, citing cases in which it had held that proof of ownership of an automobile by one other than the driver was “prima facie evidence” that the driver was the agent of the owner. The court then said that if any evidence to the contrary were presented, the presumption vanished. The court did not adopt any particular rule in the case but held that the trial court’s finding that there had been no permission given to a mechanic to road test a car would not be set aside because there was substantial evidence to support it. See also James v. Aetna Life & Casualty, 26 Ariz. App. 137, 546 P.2d 1146 (1976), where it was noted that the supreme court had rejected the “initial permission” rule and thus the court of appeals adopted the “minor deviation” rule, apparently as the next best thing.

Other cases cited by Appleman as having rejected the “initial permission” rule are Gangel v. Benson, 215 Kan. 118, 523 P.2d 330 (1974), and Government Employees Insurance Co. v. Edelman, 524 S.W.2d 546 (Tex. Civ. App. 1975). In both of those cases, the permission of the named insured had been given to a first permittee who had then given permission to a second permittee. The evidence in each case showed that the named insured had specified that permission was not to be given by the first permittee to any other person to drive the insured vehicle. Both cases reject the notion that the initial permission extended to the second permittee. A dissenting opinion in the Gangel case argues persuasively that the decision goes against the basic policy of protecting the public and places the insured in the position of, in effect, conferring coverage or withholding it by stating after an accident has occurred whether or not the driver had his or her permission.

The cases adopting the “initial permission” rule usually provide that it governs “short of theft or conversion,” see Milbank Mutual Insurance Co. v. United States Fidelity and Guaranty Co., supra, 332 N.W.2d at 167, or “short of an unlawful taking,” see Odolecki v. Hartford Accident & Indemnity Co., supra, 264 A.2d at 40. Although the question is not before us now, we agree that an insurer should not be liable to a thief or a person who has no permission to use a vehicle and who converts it to his or her own use. With respect to the situation in which one who has permission of the named insured grants permission to another person to use the named insured’s vehicle, we make no decision. In this case the car belonged to Brett Davis. Teresa Davis, Brett’s wife, had permission to use the car, and she gave permission to Self. However, no issue has been raised as to Self being the second permittee. As we noted at the outset, Commercial Union conceded that if Teresa had given Self permission, Selfs use of the car was covered under the policy. Some of the policy reasons for adopting the “initial permission” rule probably apply in the “second permittee” case to the same extent that they apply no matter how greatly the person having permission of the named insured may deviate from the permitted route or use, but we leave that question open.

Our holding is that the “initial permission” rule applies in Arkansas, and that the trial judge was correct in holding that the extent of route deviation by Self in the driving of the Davis vehicle is thus immaterial.

Affirmed.

Hickman, Hays, and Glaze, JJ., concur.

Tom Glaze, Justice,

concurring. While I agree with the result reached by the majority, I cannot join its efforts to extend the holding further than the facts in this case warrant. The situation here involves an insured who gave permission to a friend to run an errand. Although the insured limited her friend’s use of the vehicle, by saying the vehicle could be driven on a county road, the friend violated those instructions by driving on a state highway upon which he collided with another vehicle. In sum, the friend failed to follow the insured’s instructions and permission, but his deviation from the permitted route was minor.

The majority now adopts a rule which extends insurance coverage to all situations, regardless of how grossly the person using the vehicle violates the original terms of the entrustment or bailment. I have a strong reluctance to adopt such an all-inclusive rule, especially when the facts here do not require it and the parties do not brief or argue the various rules set out in the majority opinion.

Suffice it to say, there are jurisdictions — noted by the majority — that have rejected the “initial permission” or “Hell or High Water” rule the majority adopts today. There are compelling and sound reasons to reject a rule that extends insurance coverage to situations where a person grossly violates the trust of an insured who permits the person to use the insured’s vehicle. Until the proper facts and arguments are before the court on this issue, the court should limit its decision, leaving open the issue of whether Arkansas should adopt such a rule.

Hickman and Hays, JJ., join in this concurrence.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Janice NEWBERRY v. Paul JOHNSON
    87-287
    743 S.W.2d 811
    Supreme Court of Arkansas
    Opinion delivered February 1, 1988

      Janice Newberry, pro se.

      Wright, Lindsey & Jennings, for appellee.
   Tom Glaze, Justice.

This is an appeal from the trial court’s granting of a judgment notwithstanding the verdict and a new trial to the appellee in an attorney malpractice case. Because the case involves a question in the law of torts, the court assumes jurisdiction of the case pursuant to Rule 29(1) (o) of the Arkansas Rules of the Supreme Court. Appellant, who represented herself below and does so again on appeal, urges two points for reversal: (1) The court erred in granting appellee’s motion for judgment notwithstanding the verdict and his alternative request for a new trial and (2) the court erred in failing to instruct the jury on punitive damages. We hold the court erred by entering judgment for appellee after setting aside the jury verdict rendered in appellant’s favor. However, we affirm the court’s alternative decision to grant the appellee a new trial. See ARCP Rule 50(c)(1).

This case evolved from a divorce, which was entered on April 30,1982, between appellant and her husband, James Newberry. Later that same year, the Internal Revenue Service investigated Mr. Newberry’s failure to file returns for the years 1979, 1980 and 1981, and Newberry engaged appellee, an attorney, who represented him regarding his tax problems. In January 1983, appellant met with her husband, the appellee and an IRS agent, Michael Pitts, and during that meeting, she signed a joint income tax return, thereby obligating herself along with Mr. Newberry for the delinquent taxes and penalties due for the foregoing three years.

On January 9, 1986, appellant filed this lawsuit, alleging that the appellee negligently and intentionally misled the appellant by giving her false information upon which she relied when signing the joint return in 1983. Appellant later amended her complaint, adding the following: that the appellee knew or should have known the appellant was relying on the false information appellee provided her, that this information resulted in her becoming liable for taxes due under the return, that appellee engaged in a conflict of interests, and that appellant was entitled to punitive damages in addition to the $350,000 damages alleged in her original complaint. Appellee answered, denying all of appellant’s allegations. At trial, the jury returned a verdict in favor of the appellant in the sum of $30,000, and appellee duly moved for the verdict to be set aside or alternatively for a new trial. The trial court set aside the verdict and dismissed appellant’s complaint with prejudice, stating the appellant offered no competent evidence of fault or breach of duty on appellee’s part. The trial court found that it should have granted appellee’s earlier motions for directed verdict. In accordance with Rule 50(c)(1) of the Arkansas Rules of Civil Procedure, the trial court further ruled that, if the court’s judgment for appellee is reversed, appellee’s motion for new trial is granted because the award of damages was not supported by the proof.

It is settled law that a trial court may set aside a judgment when the court is of the opinion that there is no substantial evidence to support the jury verdict, and one party is entitled to a judgment as a matter of law. Findley v. Time Ins. Co., 269 Ark. 257, 599 S.W.2d 736 (1980). On appeal we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party against whom the judgment n.o.v. is rendered. Substantiality of evidence is a question of law. Id. at 259, 599 S.W.2d at 738. This court has defined substantial evidence as that evidence which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Aluminum Co. of Am. v. McClendon, 259 Ark. 675, 535 S.W.2d 832 (1976).

In reviewing the evidence most favorable to appellant, we recount that pertinent testimony given by appellant and her witnesses. Although conflicting testimony was presented on the issue, appellant testified that when she signed the joint return during her meeting in January 1983 with appellee, her former husband and Pitts, the IRS agent, appellee told her that according to the Newberry’s divorce decree, “You [appellant] would not be responsible [for the taxes], and the only reason you have to sign these papers is because you were married to Jimmy [Newberry] at the time.” She further said that her prior dealings with appellee never indicated she had any reason to believe appellee would involve her if it was not necessary. Appellant related that Mr. Pitts asked her, “Do you know what you’re signing?”, and she responded, “No, I don’t have any idea what I’m signing.” Appellant stated that the only thing she knew is what the appellee had told her.

Pitts’s account as to what occurred at the January 1983 meeting was that he had asked appellant if she knew what she was signing, but that, before appellant could fully respond, appellee interjected something like, “Jimmy [Newberry], based on the divorce decree, is to pay all debts up to a certain date, and that he’s responsible for the tax, and if he pays it, she wouldn’t have to.” Pitts stated that he was satisfied that the income in question for the three-year period was Mr. Newberry’s and that, if Newberry had filed a separate return for that period, his tax liability would have been greater. Pitts concluded that the Internal Revenue Service unsuccessfully tried to collect the delinquent taxes from Newberry but has since sought the taxes and penalties from the appellant.

Appellant’s final witness, Joyce Kinkead, a Little Rock tax attorney, testified that appellant had earned no income in either 1979 or 1981 and was not required to file a federal income tax return. Kinkead testified that the Newberrys’ divorce decree did not alleviate appellant from liability to the Internal Revenue Service and that appellant became liable when she signed the joint return even though she, personally, may have had no reported income.

The record clearly reflects evidence which conflicts with appellant’s, and in doing so, supports the position that appellee only represented that appellant would not be liable so long as Mr. Newberry paid the taxes owed under the joint return. There was also testimony given by Mr. Williams, an Internal Revenue Service investigator and witness called by appellant, who lauded appellee’s fairness as well as his capabilities as an attorney. Nonetheless, when we view the evidence in the light most favorable to the appellant, we are unable to hold the evidence was insubstantial and could not support the jury’s verdict.

Although we reverse the trial court’s setting aside the judgment and dismissing appellant’s complaint, we affirm its granting the appellee’s motion for new trial. When the trial court grants a motion for a new trial, the standard on review is whether there is a manifest abuse of discretion. Carr v. Woods, 294 Ark. 13, 740 S.W.2d 145 (1987). A showing of an abuse of discretion is even more difficult when a new trial is granted because the beneficiary of the verdict which has been set aside has less basis for a claim of prejudice than does one who has unsuccessfully moved for a new trial. Id. Rule 59(a) of the Arkansas Rules of Civil Procedure gives the trial court the power to grant new trials for grounds materially affecting the substantial rights of a party, including error in the assessment of the amount of recovery, whether too large or too small, and where the verdict is clearly contrary to the preponderance of the evidence. Id. at 14, 740 S.W.2d at 145-146.

Here, the jury returned a verdict against the appellee in the sum of $30,000 — a figure which is totally unsupported and far exceeds the evidence presented by the appellant. Appellant owed money to the Internal Revenue Service and, at the same time, was entitled to some small refunds from it. In testifying, she was unable to relate the actual amount she owed. Appellant offered one exhibit reflecting the total amount due the Internal Revenue Service on the joint return was $13,152. She also said she owed her tax attorney $1,486.10. In sum, we can find nothing in the record which even comes close to establishing her damages at the excessive amount the jury awarded her. Accordingly, we hold the trial court did not abuse its discretion in granting appellee a new trial.

Finally, we note appellant’s argument that the trial court erred in refusing to submit a punitive damages instruction to the jury. While we do not require an appellant to abstract all the instructions given by the court as a predicate to objection on appeal to failure by the trial court to give an instruction proffered by the appellant, we do, under Rule 9(d) of the Rules of the Supreme Court, require the appellant to abstract at least the instructions proffered where the basis of appeal is the failure of the trial court to have given them. See Guarantee Trust Life Ins. Co. of Chicago, Illinois v. Koenig, 240 Ark. 650, 401 S.W.2d 216 (1966); Williams v. Fletcher, 267 Ark. 961, 644 S.W.2d 946 (Ark. App. 1980). Here, the appellant altogether failed to abstract the punitive damages instruction in question or any of the proceedings below that dealt with the trial court’s rejection of that instruction. Therefore, we do not consider this point on appeal.

For the reasons given above, we reverse the trial court’s decision which entered judgment dismissing appellant’s cause, but we affirm its decision setting aside the jury verdict and granting the appellee a new trial.


author: Per Curiam.

text:
    Ricky TERRELL v. STATE of Arkansas
    744 S.W.2d 734
    Supreme Court of Arkansas
    Opinion delivered February 1, 1988

      M. Watson Villines II, for appellant.
    No response.
   Per Curiam.

Judgment of conviction in this case was entered on February 20,1987. On February 25,1987, appellant’s counsel, M. Watson Villines II, filed a motion and brief for a new trial. Villines later requested that a hearing be set on the motion. That hearing was ordered and held on May 1,1987. Atthetimeof the hearing, no testimony was taken but the court requested that briefs be filed on the matter. The briefs were taken under advisement until June 5,1987. The court subsequently denied the motion by letter, prompting appellant’s counsel to file notice of appeal on June 9,1987. The actual order denying the motion for a new trial was filed on June 10.

Under Rule 4 of the Rules of Appellate Procedure, it is the duty of the party filing a motion for new trial to present the same to the trial court within thirty days from the date of filing, and if the matter cannot be heard within those thirty days, the moving party shall, within those thirty days, request the court to set a date for hearing on said motion. Unless the motion shall have been presented to the trial court and taken under advisement within the thirty days, or the court shall have set a definite date for hearing, it shall be deemed that the motion has been finally disposed of at the expiration of the thirty days from filing, and the time for filing notice of appeal shall commence to run from the expiration of the thirty days. Rule 4(e) provides that a judgment, decree, or order is entered within the meaning of Rule 4 when it is filed with the clerk of the court in which the matter was tried.

Our clerk will not lodge the record because there is no written indication in the record that within thirty days from the filing of the motion for a new trial, appellant obtained a ruling from the trial court either: (1) that the motion was being taken under advisement; or (2) that the matter was set for hearing on a definite date. Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984). See Act 123 of 1963.

The motion for rule on the clerk notes that on August 27, 1987, the trial court filed an order for an extension of time for the reporter to prepare the transcript on appeal. The order states that appellant’s counsel had in fact within thirty days of the filing of the motion for a new trial requested that the court set the matter for a hearing or state whether the court was taking the matter under advisement. In support of the court’s findings as to a hearing on the motion for new trial, counsel has furnished the affidavit of the case coordinator for the circuit court together with an affidavit of the court reporter, and a photocopy of correspondence with the court reporter concerning the setting of the motion for a new trial for a hearing.

Nonetheless, it is clear that after the motion for new trial, which was filed on February 25,1987, there is nothing on file with the clerk of the court with reference to setting a hearing upon the motion until the court’s order of August 27,1987, was filed of record. Since no findings or orders were filed with the clerk of the court within thirty days after the motion for new trial had been filed, it is deemed that the motion was finally disposed of at the expiration of the thirty days from its filing. Accordingly, the record was tendered late.

In similar circumstances, we have held that we will not permit a record to be filed unless the attorney assumes full responsibility for presenting it late. Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). A statement that it was someone else’s fault or no one’s fault will not suffice. Moore v. State, 268 Ark. 191, 609 S.W.2d 894 (1980).

If the appellant’s attorney files a motion and affidavit in this case accepting full responsibility for not perfecting the appeal, then the motion will be granted. The attorney’s negligence will be duly noted, and a copy of the opinion granting the motion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    David HORN v. STATE of Arkansas
    CR 88-6
    743 S.W.2d 814
    Supreme Court of Arkansas
    Opinion delivered February 8, 1988

      James R. Marschewski, by: R. Paul Hughes III, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant David Horn was found guilty of nonsupport and was sentenced to sixty days in jail and fined $500.00. He argues that the trial court erred in not granting his motions to dismiss based upon denial of the right to a speedy trial and lack of jurisdiction. Because we find that the speedy trial motion should have been granted, we do not address Horn’s other point and reverse and dismiss. Ark. R. Crim. P. 30.1.

Horn was arrested in California on the Arkansas nonsupport charges sometime in late April 198 5 or early May 198 5. On May 24,1985, Horn signed a waiver of extradition. Arkansas authorities were notified of the waiver on May 29, 1985, and were informed that this state could take custody. Horn was brought to Arkansas by prisoner transport service on June 19, 1985. On December 5,1986, over eighteen months from either the date of Horn’s arrest in California or the notice that extradition had been waived, Horn filed his motion to dismiss for lack of a speedy trial pursuant to Rule 28.1(c) of the Arkansas Rules of Criminal Procedure. That motion was denied on the day of Horn’s trial, December 9, 1986.

Subsection (c) of Rule 28.1 provides:
Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, including release from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in rule 28.2, including only such periods of necessary delay as are authorized in Rule 28.3.

In the case before us, the time for trial arguably commenced running from the date of arrest in California as Horn was “continuously held in custody or on bail or lawfully at liberty” as to the underlying charge prior to filing of the original information in July 1985 or filing of the amended information in December 1986. Ark. R. Crim. P. 28.2(a).

However, Horn does not argue that the time ran from the date of arrest; rather, he candidly suggests that the operative date is May 29, 1985, as the State did not receive notice of waiver of extradition until that time. If the time is computed from that date, absent any excludable periods, the eighteen month time limit expired on or about November 29, 1986, and Horn’s motion should have been granted. The State contends that the time did not begin to run until Horn was actually returned to this state on June 19, 1985, thus charging the transport time to Horn. We disagree.

Generally, once it has been shown that trial is to be held after the speedy trial period expired, the state has the burden of showing any delay was legally justified. Harwood v. Lofton, 288 Ark. 173, 702 S.W.2d 805 (1986); Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986); Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982).

In support of the trial court’s ruling that the speedy trial period had not yet expired and that the June 19 date was controlling, the State calls our attention to Ark. R. Crim. P. 28.3(e) and argues that during transport and until June 19, Horn’s presence for trial could not be obtained, and he was therefore “unavailable.” Rule 28.3 sets forth certain periods which are excluded in computing the time for trial. Subsection (e) excludes “the period of delay resulting from the absence or unavailability of the defendant” and further provides:

A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial. [Emphasis ours.]

We find the State’s position untenable and its reliance upon Rule 28.3(e) misplaced. If we were to accept the proposition set forth by the State, which is that the accused should be charged with the time required for transport from state of arrest to the prosecuting state, merely on the premise that the accused is not “available” for trial notwithstanding his waiver of extradition and notice that custody could be transferred immediately, our speedy trial rules would become meaningless.

Our constitution provides that an accused shall enjoy the right to a speedy trial. Ark. Const, art. 2, § 10. In pursuit of that right, we have adopted rules to protect defendants, as well as the public. In so doing, we have provided that defendants shall be brought to trial within a specified time or the charge will be dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1(a). On the other hand, we have placed responsibility on the defendant to be available for trial, excluding such time delays .as result from his resisting appearance for trial. Ark. R. Crim. P. 28.3; Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988).

Horn’s arrest and incarceration in California were based entirely upon the Arkansas charges of nonsupport. Apparently, California was also Horn’s place of residence. As such, neither Horn’s presence in California nor any action undertaken by Horn after his arrest and waiver of extradition can justifiably be considered as delays chargeable to Horn. In effect, what the State proposes would in future cases leave the State free to assert any number of grounds (manpower limitations, distances between states, mode of transport, or transportation breakdowns) relevant to the time prior to arrival of the accused in this jurisdiction by which the State could escape the limitations set forth in our speedy trial rules. In some cases, the accused might remain incarcerated in another jurisdiction for weeks or months awaiting transport.

The time for trial commenced running at least as of May 29, 1985. At the time of Horn’s motion to dismiss on December 5, 1986, the eighteen month time limit had expired, and the burden was then upon the State to show that the delay was legally justified. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987); Harwood, supra. The State did not meet its burden in that regard, and the motion should have been granted.

Reversed and dismissed.


author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    CITY OF FAYETTEVILLE, Arkansas v. James Kenneth ROSE
    87-224
    743 S.W.2d 817
    Supreme Court of Arkansas
    Opinion delivered February 8, 1988

      James N. McCord, for appellant and cross-appellee.

      E. Lamar Pettus, for appellee and cross-appellant.
   Darrell Hickman, Justice.

This is a Freedom of Information Act case. The question is whether the so-called law enforcement provision of the Arkansas Freedom of Information Act makes records of an investigation conducted by the Fire and Police Departments of the City of Fayetteville closed to the public. The trial court held that the records and photographs held by the Fayetteville Police Department were exempt from public disclosure because they were records of an “undisclosed investigation by a law enforcement agency of criminal activity.” It held the fire department records open to the public because the fire department is not a law enforcement agency. The City of Fayetteville challenges the court’s decision regarding the fire department records; the appellee, James Kenneth Rose, who sought the records, challenges the decision regarding the police department. We find all the records are public and available for examination because they were not records of an “undisclosed investigation.”

The facts are not disputed. On September 26, 1985, a flashlight exploded in the electrical shop of James Kenneth Rose in Fayetteville, injuring two people. Both the Fayetteville Fire and Police Departments investigated the matter. One of the injured parties reported seeing other flashlights in the shop similar to the one which exploded.

The federal Bureau of Alcohol, Tobacco and Fire Arms was notified, and it conducted an investigation. This report was turned over to the U.S. Attorney’s Office. A federal grand jury subsequently indicted Rose for manufacturing and possessing unregistered explosive devices. Rose’s attorney requested permission under the Arkansas Freedom of Information Act to inspect and copy any records and photographs contained in the investigative reports made by the Fayetteville Fire and Police Departments. At the request of the U.S. attorney, the City of Fayetteville refused to honor the request of Rose’s attorney on the basis that the records were from an “undisclosed investigation by law enforcement agencies of suspected criminal activity” and therefore exemptfrom disclosure under Ark. Code Ann. § 25-19-105 (b)(6) (1987).

We agree with the trial court’s decision regarding the fire department records but for a different reason. There was no “undisclosed investigation.” Everyone knew about it. The Fire and Police Departments of Fayetteville had finished their investigation. The federal Bureau of Alcohol, Tobacco, and Fire Arms had investigated the matter, turned its report over to the U.S. attorney’s office, and a federal grand jury had returned an indictment. No reading of the Freedom of Information Act consistent with our decisions could support a finding that there was an “undisclosed investigation” involved. Therefore, the records held by the fire and police departments are subject to disclosure under the Freedom of Information Act.

Generally, all public records are available for inspection under the Freedom of Information Act. Exceptions to that rule are spelled out in Ark. Code Ann. §25-19-105. The exception we are dealing with reads that “undisclosed investigations by law enforcement agencies of suspected criminal activity” “shall not be deemed to be made open to the public.” Ark. Code Ann. § 25-19-105(b)(6) (1987). This provision is unique to Arkansas law. Other states have somewhat similar provisions in their Freedom of Information Acts, but none are exactly like ours. For example, the Oregon provision exempts from disclosure “investigatory information compiled for criminal law purposes,” unless the public interest requires disclosure in the particular instance. See Jensen v. Schiffman, 24 Or. App. 11, 544 P.2d 1048 (1976). The Massachusetts provision exempts from disclosure “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 354 N.E.2d 872 (1976). See also State ex rel. Beacon Hornal Publishing v. University of Akron, 64 Ohio St. 2d 392, 415 N.E.2d 310 (1980), for the Ohio provision, and see J. Watkins, Access to Public Records under the Arkansas Freedom of Information Act, 37 Ark. L. Rev. 741 (1983-84).

In making our decision, we have interpreted the Freedom of Information Act as we always have “to promote free access to public records.” Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987).

We need not reach the question of whether the Fayetteville Fire Department is a law enforcement agency because we have decided there was not an “undisclosed investigation” involved.

Affirmed on direct appeal. Reversed on cross-appeal.

Holt, C.J., and Hays, J., dissent.

Steele Hays, Justice,

dissenting. The majority interprets the Freedom of Information Act as holding that when an investigation of criminal activity by a law enforcement agency is disclosed, the records of such investigation are thereby open to public inspection. The provision, Ark. Code Ann. § 25-19-106(b)(6), a part of the original act, reads:

(b) It is the specific intent of this section that the following records shall not be deemed to be made open to the public by the provisions of this chapter:
* * *
(6) Undisclosed investigations by law enforcement agencies of suspected criminal activity[.]

Granted, the wording could be improved on, but to make the interpretation depend on whether the public knows or doesn’t know that an investigation of particular criminal conduct is underway could hardly be what was intended by this language. It is inconceivable that the legislature meant that police records of a highly sensitive criminal investigation, whether ongoing or concluded, become subject to public inspection in their entirety based on whether the investigation itself is disclosed or undisclosed.

Every major crime in this day and age is widely publicized by the media and most are investigated, often with periodic statements by the police relative to the progress of the investigation. If I read the majority opinion correctly, such investigations are now subject to the perusal of anyone who cares to inspect police files, however sensitive.

It is an understatement to suggest that this decision does not bode well the future of effective criminal investigative work by law enforcement agencies. The dangers inherent in the untimely disclosure of criminal investigations were cited by the Massachusetts Supreme Court in Bougas v. Chief of Police of Lexington, 354 N.E.2d 872 (Mass. 1976) in a factually similar setting:

The exemption . . . recognizes that the disclosure of certain investigatory materials could detract from effective law enforcement to such a degree as to operate in derogation, and not in support, of the public interest. Included among the purposes in providing this exemption would be the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypothesis and interim conclusions.

What the provision in our act undoubtedly means is that when an investigation is of a type, or at a point, where nondisclosure is not crucial to the investigation, such records are no longer exempt. While we are bound to construe legislation in a manner consistent with the common and ordinary meaning of the language used, Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986), we are not required to abandon our common sense or to adopt a literal interpretation which leads to an implausible result. Woodcock v. First Commercial Bank, 284 Ark. 490, 683 S.W.2d 605 (1985); Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964).

I do not suggest that such records should be given blanket, automatic exemption from the act. Rather, when the disclosure of information would no longer be inimical to the investigation, or prejudicial to effective law enforcement, the exemption should be lifted. See Watkins, Access to Public Records Under The Arkansas Freedom of Information Act, 37 Ark. L. Rev. 741 (1984). In this particular case the appellee should be able to gain inspection of the records under federal discovery procedures. I respectfully submit the trial court should be affirmed on cross-appeal.

Holt, C.J., joins.

       The Massachusetts exemption (G.L.c. 4 § 7) excludes “(f) investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”


author: Darrell Hickman, Justice.

text:
    Norman TONEY v. STATE of Arkansas
    CR 88-8
    743 S.W.2d 816
    Supreme Court of Arkansas
    Opinion delivered February 8, 1988
    [Rehearing denied March 7, 1988]

      Donald R. Huffman, Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

This criminal case raises the question of whether the trial judge can, after sentencing a defendant and setting conditions of probation, later add to that sentence medical expenses of over $7,000 incurred by the county while the defendant was in jail. The trial judge did that in the case of Norman Toney who appeals. We find that the judge exceeded his authority and the judgment in that regard is reversed.

Norman Toney pled guilty to five counts of second degree forgery and was sentenced on July 28, 1986. He was placed on probation for three years conditioned on his serving 90 days in jail, with credit for 49 days already served, ordered to pay $57.25 court costs, make $500 restitution and pay a $200 “public defender fee.”

In March of 1987, over six months later, a hearing was held to revoke his probation for nonpayment of costs and restitution. While the judge denied the request, he added to Toney’s sentence an order to repay a medical bill incurred by the county while Toney was in jail. The prosecuting attorney had requested that the bill for over $7,000 be added to the costs and restitution previously ordered, making payment of the medical bill another condition of the probation. A timely objection was made to the alteration of the sentence.

The trial court did not have jurisdiction to modify or amend the original sentence. He could have revoked the probation but chose not to do so. We have continually held, once a valid sentence is put into execution, the trial court is without jurisdiction to modify, amend or revise it. Coones v. State, 280 Ark. 321, 657 S.W.2d 533 (1983). However, see Ark. Code Ann. § 16-90-111 (1987), which deals with amending illegal sentences.

No other issues are raised. The order of the trial judge is reversed.


author: Steele Hays, Justice.

text:
    John HICKS v. STATE of Arkansas
    CR 87-165
    744 S.W.2d 383
    Supreme Court of Arkansas
    Opinion delivered February 8, 1988

      Johnny L. Nichols, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

In 1985 the appellant, John Hicks, after being charged as an habitual offender, pleaded guilty to two counts of criminal attempt to commit first degree murder and one count of criminal conspiracy to commit first degree escape and is presently serving his sentences. In 1986 he filed a petition for post-conviction relief claiming that his pleas were not intelligently and voluntarily entered and that he did not receive effective assistance of counsel. He asked for a new trial. The trial court granted a hearing, noted that appellant’s “testimony is anything but credible,” and denied the petition. We affirm.

Appellant first argues that his guilty pleas were not intelligently and voluntarily entered because he was incompetent at the time he pleaded guilty.

The applicable law is settled. The conviction of an accused person while he is legally incompetent violates due process. Pate v. Robinson, 383 U.S. 375 (1966). In order to be competent to stand trial one must have the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense. Drope v. Missouri, 420 U.S. 162 (1975); Speedy v. Wyrick, 702 F.2d 723 (8th Cir. 1983). A trial court should sua sponte order a competency hearing when there is a reasonable doubt about the defendant’s competency to stand trial. Campbell v. Lockhart, 789 F.2d 644 (8th Cir. 1986); Pate, 383 U.S. 375.

As the Eighth Circuit Court of Appeals explained in Speedy, 702 F.2d at 725:

This court has recently stated the test for determining whether a trial court should sua sponte order a competency hearing:
Under the rule of Pate v. Robinson ... a due process evidentiary hearing is constitutionally compelled at any time that there is “substantial evidence” that the defendant may be mentally incompetent to stand trial. “Substantial evidence” is a term of art. “Evidence” encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is “substantial” if it raises a reasonable doubt about the defendant’s competency to stand trial. Once there is such evidence from any source, there is a doubt that cannot be dispelled by resort to conflicting evidence. The function of the trial court in applying Pate’s substantial evidence test is not to determine the ultimate issue: Is the defendant competent to stand trial? Its sole function is to decide whether there is any evidence which, assuming its truth, raises a reasonable doubt about the defendant’s competency. At any time that such evidence appears, the trial court sua sponte must order an evidentiary hearing on the competency issue.
Although the Supreme Court has not prescribed exact standards as to the quantum or nature of the evidence necessary to require a competency hearing, the Court has indicated that consideration of evidence relating to “a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial” is appropriate. Drope....

With respect to habeas corpus proceedings, “a petitioner shoulders the burden of proving that objective facts known to the trial court were sufficient to raise a bona fide doubt as to the defendant’s competency.” Speedy, 702 F.2d at 725. The appellant also has the burden in a post-conviction proceeding.

Appellant contends that his history of irrational behavior indicated he was not competent. His social history was not put in evidence. His criminal history shows a total of nineteen separate offenses, including parole violations, ranging from two convictions for assault with intent to kill, to burglary, to grand larceny, to escape, to felon in possession of a firearm, and to criminal use of a prohibited weapon. We interpret the history as indicating he is a violent person, which is different from being incompetent.

Appellant points out that the court ordered a mental examination, but the examination had not been conducted at the time he pleaded guilty. He assigns this as error. His version of the facts amounts to an oversimplification of the complete story. At the post-conviction hearing, appellant’s attorney testified that he filed a motion for a mental examination solely at appellant’s instruction. The attorney testified that he thought the motion was frivolous and that it was filed as a “cover yourself’ motion. The attorney testified that after appellant realized he would remain in Harrison, and not get to travel to Little Rock for the examination, he lost all interest in the evaluation. The attorney visited appellant the day before he pleaded guilty and went over the entire case with him. At that time appellant recognized that he was going to be convicted and wanted to plea bargain. He was especially concerned with whether the “time would be flattened.” With regard to appellant’s mental condition at the time he pleaded, the attorney testified: “He was alert, he was coherent, he was aware of what was going on around him, and, again, that day his concern was parole eligibility.” The attorney also clearly testified that the only reason that the mental examination was not completed was because appellant wanted to expedite his plea.

Appellant contends that his attorney ignored his “previous psychological treatments.” In fact, the attorney testified that he was unaware of any alleged previous treatments. He testified:

[TJoday is the first time I heard it. I believe in our D.W.I. proceedings in Marion County, he had gone to Mental Health or DWI School. I don’t know if that’s what he’s talking about or not.

The appellant has not shown by substantial evidence that he was incompetent to plead guilty.

Appellant next argues that his guilty plea should be vacated because he was denied effective assistance of counsel. He contends that counsel failed to ensure that he was competent and failed to investigate adequately the defense of insanity.

There is a presumption of effective assistance of counsel. Smith v. State, 291 Ark. 496, 725 S.W.2d 849 (1987). The appellant has a heavy burden of overcoming that presumption. Maddox v. State, 283 Ark. 321, 675 S.W.2d 832 (1984). To prove ineffective assistance of counsel, the appellant must establish that his counsel’s advice was not within the range of competence demanded of attorneys in criminal cases. He must show that counsel’s performance was so deficient that he was not functioning as the “counsel” guaranteed by the Sixth Amendment and that his counsel’s conduct prejudiced him so as to undermine the proper functioning of the adversarial process. Strickland v. Washington, 466 U.S. 668 (1984). See Robbins v. State, 288 Ark. 311, 705 S.W.2d 6 (1986). The Strickland test has been made applicable to challenges to guilty pleas based upon claims of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52 (1985). In Hill, the court stated that the prejudice requirement is satisfied only by showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” See also Proctor v. State, 291 Ark. 459, 725 S.W.2d 827 (1987).

Appellant contends that he has met his burden because of counsel’s failure to investigate fully the issue of competence and the failure to have appellant complete the psychiatric evaluation. The arguments are without merit. As previously set out, the attorney, with good cause, thought the motion for mental examination was frivolous. The attorney had no information that appellant might be incompetent other than appellant’s statement “I was crazy” at the time of the criminal acts. The appellant later indicated that by “crazy” he meant mixed-up due to drinking on the day the crimes were committed. The following colloquy at the time of the pleas is illustrative:

APPELLANT’S ATTORNEY: Yes, sir, your Honor. We would withdraw that request. After we made that request I went back over to the jail and discussed it at some length with the defendant and I would ask him to concur in the statement I am about to make that he does not believe that he was insane at the time the acts were committed and believes he probably did know the difference between right and wrong, however, he now believes that he was mixed up, confused, is basically all it amounts to.
COURT: There had been drinking going on at the time of these acts, is that true?
ATTORNEY: That is true. Is that correct, John?
APPELLANT: Yes, sir.
COURT: You have a recollection of actually stabbing these people, do you not? You have confessed to it to three or four different sources, is that correct?
APPELLANT: Yes, sir.

The appellant also argues that the psychological examination conducted by the Department of Correction is proof that he lacked competency to stand trial. The argument is wholly without merit. The report of the examination reflects that the appellant is immature and slow thinking. It does not recite that he was not competent to stand trial.

Affirmed.


author: David Newbern, Justice.

text:
    Tim RILEY and Gary Garland v. The CITY OF CORNING and Mayor E.W. Cochran
    87-266
    743 S.W.2d 820
    Supreme Court of Arkansas
    Opinion delivered February 8, 1988

      Gary Day Garland, for appellant.

      Winston Bryant and David H. White, for appellee City of Corning.

      Knauts & Cole, by: C. W. Knauts, for appellee-intervenors City of Piggott and City of Rector.
   David Newbern, Justice.

Appellant Tim Riley was convicted upon a plea of nolo contendere in Corning Municipal Court of driving while intoxicated. Thereafter, he and his attorney, appellant Gary Day Garland; sought a declaratory judgment declaring Act 332 of 1969, by which the Corning Municipal Court was created, unconstitutional because it constituted “local legislation” in violation of Ark. Const, art. 14. Garland’s claim to standing as a plaintiff in the action was that he had been refused a position on the ballot in a municipal judgeship election because the county election commission found he did not meet the requirements of Act 332. The municipal courts of Piggott and Rector which were created by the same act intervened on the side of the appellee City of Corning. The circuit court held that neither of the plaintiffs had presented a justiciable controversy suitable for declaratory judgment. We find the result reached was correct, thus the dismissal is affirmed.

1. Riley’s claim

The circuit court’s order stated that Riley had appealed his conviction from municipal court to the circuit court. However, the reason given by the circuit judge for dismissing Riley’s action for declaratory judgment was that the issue was moot because there is no statutory provision for appealing a conviction based upon a nolo contendere plea from municipal to circuit court. We need not delve into the questions of logic presented by the judge’s finding and ruling. Riley has argued that a plea of nolo contendere is like a plea of guilty in many respects, including procedural. Thus, it is contended that a conviction upon such a plea is appealable pursuant to Ark. Code Ann. § 16-96-501 (1987) as would be a conviction following a guilty plea.

We agree with appellant Riley that such a conviction is appealable. We said as much, although by obiter dictum, in Ex Parte Hornsby, 228 Ark. 975, 311 S.W.2d 529 (1958). There an appellant who had pleaded nolo contendere sought habeas corpus. In denying relief, we said the writ was not a substitute for appeal which was the petitioner’s remedy. In the case before us now, the circuit court found that there was an appeal pending in the circuit court from the municipal court conviction. Assuming the appeal has been properly perfected, the question of the constitutionality of Act 332 may be raised in the appeal. A declaratory judgment action will not lie when the issues it seeks to raise are pending in another case. Mid-State Construction Co. v. Means, 245 Ark. 691, 434 S.W.2d 292 (1968); City of Cabot v. Morgan, 228 Ark. 1084, 312 S.W.2d 333 (1958).

In Lawson v. City of Mammoth Spring, 287 Ark. 12, 696 S.W.2d 712 (1985), cited by the appellants, we treated as a declaratory judgment action a complaint seeking a holding that a municipal court had been unconstitutionally created. The action was brought by one who had been convicted by the court in question. However, in that case no appeal from the conviction had been taken to the circuit court. Thus, unlike this case, there was no pending action capable of disposing of the issues sought to be litigated by declaratory judgment.

In his reply brief, Riley states he suggested that the circuit court consolidate his appeal and the declaratory judgment action, and rule on the request for declaratory judgment “prior to reaching the DWI case on its merits, most likely in the form of a Motion to Dismiss based on the constitutional question raised in the Municipal Court.” That constitutional question is the same one raised in the declaratory judgment action. It is thus clear that the appeal was to be based on the same issue raised in the declaratory judgment action and that the declaratory judgment action was thus improper. Although the trial court stated a different reason for his ruling, we affirm if the result is correct. Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987), Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979).

2. Garland’s claim

Appellant Garland challenges Act 332 of 1969 on the basis that he was denied a position on the ballot in an election held to fill the office created by that act. The act requires that laws pertaining to county and state elections apply, and he was thus required to obtain more signatures to become an independent candidate than if he had been a candidate for municipal office as provided in the general election laws for municipal offices. The circuit court’s order states as a finding that the Clay County Election Commission denied appellant Garland a position on the ballot because he had failed to comply with Arkansas law setting the number of signatures necessary to validate a petition to place an independent candidate on the ballot.

The court found that Mr. Garland had other remedies he could have pursued under the Arkansas election laws to challenge the failure to include his name on the ballot, and that he pursued none of them. One such procedure is provided in Ark. Code Ann. §§ 7-5-801 through 7-5-809 (1987). Section 7-5-801 (a) confers the right on any candidate to “contest the certification of nomination . . . made by the appropriate public officials in any election.” Section 7-5-801(d) requires that any such contest be brought within twenty days of the certification complained of. Thus, the question comes down to whether a person who is aggrieved by a statute he considers to be unconstitutional may challenge it by declaratory judgment in lieu of special statutory procedures designed to determine the issue in the election contest which is the context.

Appellant Garland relies on, among other cases, Searcy County v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968). In that case a person who was an independent candidate for sheriff was required to pay a $1500 election filing fee because a statute required that an independent candidate pay a fee equal to the largest charged by a political party for filing for the office in question. Stephenson paid the fee, lost the race, and then brought an action for a refund in the county court. The county court allowed the claim, and that decision was appealed to the circuit court where Stephenson contended the statute was unconstitutional. The circuit court agreed with him. We reversed, bypassing the constitutional question and pointing out that no complaint had been raised until after the election. We noted that Stephenson could have pursued either of two pre-election remedies. He could have sought a writ of mandamus to have his name placed on the ballot, or he could have sought a declaratory judgment, and thus the validity of the law in question could have been determined before he paid the fee.

Appellant Garland could have ascertained the constitutionality of Act 332 in the same way. Instead, as Stephenson, he waited until after the election to pursue his remedy. While seeking a declaratory judgment to declare Act 332 unconstitutional might have been proper before the election, to allow it afterward by one whose interest is that of a spurned candidate would effectively subvert the election contest laws cited above.

Conclusion

Both of these appellants are unable to bring the declaratory judgment action due to their particular statuses: Riley because he is a defendant in a criminal case in which an appeal is pending, where the same issue as in the declaratory judgment action is to be raised, and Garland because the interest he claims to give him standing to seek a declaratory judgment is one he was required to pursue in another manner.

Affirmed.


text:
    Robert Earl HARRIS v. STATE of Arkansas
    CR 87-171
    743 S.W.2d 822
    Supreme Court of Arkansas
    Opinion delivered February 8, 1988

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

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

This is a criminal case in which appellant was convicted of first degree murder, aggravated robbery and theft of property. He was sentenced to life imprisonment for the murder and robbery convictions and ten years for the theft crime. On appeal, appellant argues that the evidence was insufficient to support his convictions, and that the trial court erred in finding he voluntarily and knowingly waived his rights and in admitting his confession into evidence. Appellant’s contentions are wholly without merit, and we affirm.

We first dispose of appellant’s argument that the waiver of rights form he signed failed to meet the requirements under Miranda v. Arizona, 384 U.S. 436 (1966) because it did not reflect that he had the right to an attorney at no cost. See Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987) (wherein this court held invalid a waiver form that failed to convey to the defendant the fact that he could have a lawyer free of charge). Appellant never raised this specific objection at trial, and he cannot change the grounds for an objection on appeal. See Halfacre v. State, 290 Ark. 312, 718 S.W.2d 945 (1986); Vasquez v. State, 287 Ark. 473-A, 702 S.W.2d 411 (1986). We also note that appellant failed to abstract any waiver form for our review, and the appellee, in furnishing its supplemental abstract, abstracted a form that the appellant previously had executed in connection with a breaking and entering charge and not the crimes involved here. In sum, however, we do not address this issue since it is raised for the first time on appeal. See e.g. Puckett v. Puckett, 289 Ark. 67, 709 S.W.2d 82 (1986).

Appellant’s actual argument below was that he did not knowingly and voluntarily sign the waiver form because of his low IQ, and while he knew what a lawyer was, he failed to understand the terms of the waiver or the word “attorney” when he was read his rights. He further contended that his confession was the result of an officer’s threat “to stick appellant with a needle to make him pass out and to fry him until his eyes popped out.” Appellant’s testimony concerning the waiver form and his confession was rebutted by the testimony of law enforcement Officers Beaver and Thomas.

Thomas testified that he arrested appellant, and after taking him to the Little Rock Police Department, he placed him in an interrogation room, where the appellant remained by himself for about three hours. Both Thomas and Beaver then joined the appellant in the interrogation room, where they advised him of his rights, and after the appellant signed the waiver form, the officers said the appellant began making a statement. The officers denied all of appellant’s allegations that he had been threatened or offered promises. They also testified that appellant gave no indication that he failed to understand his Miranda rights.

While the state bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custodial confession, any conflict in the testimony of different witnesses is for the trial court to resolve, Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981), and the finding of the trial court will not be set aside unless it is clearly against the preponderance of the evidence. See Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1980); Walters v. State, 267 Ark. 155, 587 S.W.2d 831 (1979). In our review of the conflicting testimony given in this cause, we are unable to say the trial court’s finding that the appellant understood and voluntarily waived his rights and gave his confession was clearly against the preponderance of the evidence.

We also find no merit to appellant’s argument that the evidence fails to support his convictions. Appellant gave varying accounts of his own contacts with the male victim who had been beaten to death. One version was given by the appellant in his confession wherein he implicated his cousin as an accomplice in their beating and robbing the “old man,” who was drunk at the time. Appellant admitted that he and his cousin were involved in beating and taking the victim’s property, but the victim was alive when they left him. Appellant further admitted he took the victim’s truck and tools and that both he and his cousin discarded the old man’s clothes in some weeds. In testifying at trial, appellant agreed to much of what he previously said in his confession, but he also denied important parts of it. In significant part, he agreed that he saw the victim on the night of his death, but denied he had hit or hurt him; he further repudiated that he had said his cousin was anywhere around that evening. Appellant also admitted stealing a truck that was nearby the old man that night. However, because the man appeared to be a wino, appellant said it never crossed his mind that the truck belonged to the old man.

We have given detailed review to appellant’s accounts of what happened the night of the victim’s death and find his stories replete with inconsistencies. In fact, some of appellant’s statements, themselves, defy one’s belief in his story. But, placing such inconsistencies aside, all of appellant’s accounts reflect he was with the victim on the night of the murder and he admitted having stolen the victim’s truck. In addition, two other witnesses saw the appellant with the victim on the night the victim was killed — though they related the victim was alive and sitting up when they saw him. The appellant also took the police to where he had thrown the victim’s clothes, and he further disclosed that he had repaired and changed the appearance of the victim’s truck after having stolen it.

In Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979), we held that the jury had a right to accept that part of the defendant’s statement and testimony it believed to be true and to reject that part it believed to be false. This court has also held that the trier of fact is not required to believe the testimony of any witness; this is especially true where the testimony of the accused is involved. See Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). In viewing the evidence by these standards and in the light most favorable to the state, we have no reluctance in holding the appellant’s convictions were supported by sufficient evidence.

Because we find none of the appellant’s points deserving of merit, we affirm.


text:
    Bennie J. McCOY v. Honorable Lee A. MUNSON, Chancellor
    87-203
    744 S.W.2d 708
    Supreme Court of Arkansas
    Opinion delivered February 16, 1988

      Wright, Lindsey & Jennings, for appellant.

      David Orsini, for appellee Construction Engineers, Inc.

      Janice W. Vaughn, for intervenor Associated General Contractors.

      James R. Rhodes, for intervenors Michael Sutterfield and Catherine N. Rushing.
   Jack Holt, Jr., Chief Justice.

Bennie McCoy petitions for a writ to prohibit the chancery court from proceeding in a suit filed against him. The basis of the petition is that the court is wholly without jurisdiction to grant the relief sought. We disagree and deny the petition.

The Conway Corporation solicited bids from contractors through the public bidding process for the construction of improvements to the water treatment system of the city of Conway. Construction Engineers, Inc. (“CEI”), among others, submitted a bid. Although CEI was the lowest bidder, the Conway Corporation awarded the contract to M.D. Limbaugh Construction Company (“Limbaugh”). Subsequently, CEI filed suit against the Conway Corporation, its directors, McCoy, and Limbaugh alleging that the Conway Corporation and its directors violated Arkansas law [Ark. Code Ann. §§ 19-11-401 — 19-11-405 (1987)] by refusing to award the contract to CEI, and that they and McCoy conspired to harm CEI by utilizing an intentionally biased survey prepared by McCoy, which was designed to support an award of the contract to Limbaugh. CEI asked the court to enjoin the Conway Corporation and all of the other defendants except McCoy and Limbaugh from awarding a contract to any other contractor and to enjoin Limbaugh from entering into a contract with the Conway Corporation. CEI also prayed for compensatory and punitive damages from McCoy and all of the other defendants except Limbaugh. McCoy later filed a motion in the chancery court to transfer the claim against him to circuit court, which was denied. McCoy then petitioned this court to prevent the chancery court from adjudicating the matter.

A writ of prohibition is only issued where an inferior court is wholly without jurisdiction. Scott v. Kidd, 293 Ark. 451, 738 S.W.2d 421 (1987). If a court merely acts erroneously in ordering or denying a motion to transfer a case to circuit court, the remedy is by appeal after the matter proceeds to a final judgment, not by writ of prohibition. First Arkansas Leasing Corp. v. Munson, 282 Ark. 359, 668 S.W.2d 543 (1984).

Unless the chancery court has no tenable nexus whatever to the claim in question, we will consider the matter of whether the claim should have been heard there to be one of propriety rather than subject matter jurisdiction. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986); see also Horne Bros., Inc. v. Ray Lewis Corp., 292 Ark. 477, 731 S.W.2d 190 (1987). We find that the chancery court has a tenable nexus to the purely legal claim for damages asserted against McCoy since the claim is an integral part of the litigation in which both equitable and legal relief is sought from other defendants. As the matter is one of propriety, not subject matter jurisdiction, we deny the petition for writ of prohibition.

Petition denied.

Glaze, J., not participating.


author: John I. Purtle, Justice.

text:
    ARKANSAS HIGHWAY AND TRANSPORTATION DEPARTMENT, et al. v. HOPE BRICK WORKS, INC.
    87-263
    744 S.W.2d 711
    Supreme Court of Arkansas
    Opinion delivered February 16, 1988

      Thomas B. Keys, Charles Johnson, and Ted Goodloe, for the appellants.

      Zachary D. Wilson, for the appellee.
   John I. Purtle, Justice.

On June 19, 1987, the Pulaski Circuit Court issued an order directing the appellants to reveal certain information to appellees, Hope Brick Works, Inc., under the Freedom of Information Act. The appellants argue seven points for reversal: (1) the appellee’s demand for the Highway Department’s appraisals abuses the intent of the Freedom of Information Act; (2) the Highway Department’s real estate appraisals are protected by rule of the court; (3) the working papers, correspondence, and unpublished memoranda of state attorneys are exempt from disclosure under the Freedom of Information Act; (4) under the attorney-client privilege the Highway Department’s appraisals are exempt from disclosure; (5) Hope Brick Works, Inc., is not a “citizen” within the meaning of the Freedom of Information Act; (6) the release of the Highway Department’s appraisals to Hope Brick Works, Inc., will give a department’s competitor an unfair advantage; and (7) the Arkansas Freedom of Information Act is in violation of the privileges and immunities clause. We find none of the appellants’ arguments to be persuasive and affirm the order of the trial court directing the appellants to make this information available to the appellee.

The facts in this case reveal that the Highway Department was in the process of relocating a highway and needed land owned by the appellee. Prior to the condemnation suit being filed, the appellee requested copies of all opinions of qualified real estate appraisers that formed the basis for the Highway Department’s offer to purchase the appellee’s land. The Highway Department responded by enclosing two sheets from two separate appraisals which disclosed monetary breakdowns for the estimated amounts of compensation they were willing to offer for the appellee’s property. However, the department refused to submit the underlying documents — the comparable sales, interviews with landowners, and appraisers’ notes — contending that these documents were not subject to disclosure under the Freedom of Information Act. The appellee then filed this suit which resulted in the order directing the Highway Department to reveal the information.

The controlling statutes in this case are Ark. Code Ann. §§ 25-19-101 etseq. (1987).The information in this case was sought by the appellees pursuant to § 25-19-105(a) which requires that “all public records shall be open to inspection and copying by any citizen of the state of Arkansas during the regular business hours of the custodian of the records.” Pursuant to Ark. Code Ann. § 25-19-103(1), “all records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.”

Appellants’ first argument for reversal is that the appellee’s demand for the Highway Department’s appraisals is an abuse of the intent of the Freedom of Information Act. Ark. Code Ann. § 25-19-102 (1987) declares the intent of the Act as follows:

It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them, or their representatives to learn and report fully the activities of their public officials.

We spoke to the same issue in Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986), when we stated:

We conclude that the objectives of the FOIA are such that whenever the legislature fails to specify that any records in public domain are to be excluded from inspection, or is less than clear in its intendments, then privacy must yield to openness and secrecy to The public’s right to know the status of its own affairs. We hold, therefore, that the burden of confidentiality rests on the legislation itself, and if the intention is doubtful, openness is the result.

The ten legislative exceptions to the disclosure requirements of the Freedom of Information Act are listed in Ark. Code Ann. § 25-19-105 (1987) as follows:

(1) State income tax returns;
(2) Medical, scholastic, and adoption records;
(3) The site files and records maintained by the Arkansas Historic Preservation Program and the Arkansas Archeological Survey;
(4) Grand jury minutes;
(5) Unpublished drafts of judicial or quasi-judicial opinions and decisions;
(6) Undisclosed investigations by law enforcement agencies of suspected criminal activity;
(7) Unpublished memoranda, working papers, and correspondence of the Governor, legislators, Supreme Court Justices, and the Attorney General;
(8) Documents which are protected from disclosure by order or rule of court;
(9) Files which, if disclosed, would give advantage to competitors or bidders; and
(10) Other similar records which by law are required to be closed to the public.

Reading the intent as stated by the legislature, considering our declarations in Ragland, and noting that the Act’s exceptions do not include the information requested, we are of the opinion that the order directing disclosure was not contrary to the intent of the Act.

The second argument is that the information was protected by rule of the court as set forth by the eighth exception above. The type of protection offered by this exception is represented in the case of Arkansas Newspapers, Inc. v. Patterson, 281 Ark. 213, 662 S.W.2d 826 (1984), where we discussed the trial court ordering a written pretrial motion sealed as well as closing pretrial hearing to the public. There was no similar order or rule of the court existing in this case. Therefore, we do not find the disclosures requested in this case were protected by this exception to the disclosure statute.

The third argument presented by the appellant is that the real estate appraisals amounted to working papers, correspondence, and unpublished memoranda of the Attorney General. This argument is answered by our opinion in Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987). In Scott the trial court’s ruling was that a “letter, a memorandum, and trial notes prepared by the assistant attorney general were exempt from disclosure because they were ‘unpublished memoranda, working papers, and correspondence of the Attorney General.’ ” The trial court further held that state agency records which were in possession of the deputy general counsel of the Human Services Department and the assistant attorney general were subject to public disclosure.

On appeal we specifically rejected the argument for reversal that the court erred in holding that the Freedom of Information Act applied to litigation files maintained by attorneys representing states agencies. Refusing to create an exemption or exception to the Freedom of Information Act based upon the attorney-client relationship, we pointed out that the attorney-client privilege was not one of the Act’s exceptions. This interpretation was first expressed in Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968).

The reasons expressed above denying our holding on the third point applies with equal force to the appellants’ fourth argument for reversal.

The fifth argument reverts somewhat to the first argument in that the Freedom of Information Act does not apply to the appellee because it is not a “citizen.” Sections of the Act refer to “citizens” as being entitled to information of the public officials and employees. But, the Act itself states that “electors” shall be entitled to know what is going on in the government and this Act is adopted to make it possible for them, or their representatives, to learn and report fully the activities of their public officials. Another part of the Act states that “anyone” who requests the information shall be entitled to it.

This issue was discussed in the case of Arkansas Gazette Co. et al. v. Pickens, et al., 258 Ark. 69, 522 S.W.2d 350 (1975). The argument was that the newspaper reporter requesting the information may have been a resident but she was not a citizen. In disposing of the argument this court referred to the Declaratory Judgment Act (Ark. Stat. Ann. § 34-2512 (Repl. 1962)) which provided that the word “person” shall also include a corporation of any character whatsoever. Without delving into the distinction between resident and citizen, this court ended up stating that the Act clearly holds that anyone who requests the information is entitled to it. This court also announced that statutes enacted for public benefit should be interpreted most favorably to the public. Obviously, a representative of the appellee is entitled to receive any information that any other person would be entitled to receive pursuant to the Act. The overall intent of the Act seems clearly to include a corporation doing business in this state as being a party entitled to information pursuant to the Act.

The sixth argument is that such information is protected by the ninth exception which would “give advantage to a competitor.” It is quite clear that the appellee is not a competitor with the appellants in building state highways. This exclusion is clearly intended to prevent competitors from obtaining information about others seeking the same type of work or furnishing material to the state. This exemption has no application to the present factual situation.

The seventh and final argument is that the Freedom of Information Act is unconstitutional. This argument is based upon the allegation that since only citizens of the state are granted a right pursuant to the Act, it would be discriminatory against noncitizens. The appellants do not have standing to contest this issue. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980).

In keeping with our liberal construction of the Freedom of Information Act, we find that the trial court acted properly and the judgment should be affirmed because the documents requested by the appellee do not come within any exceptions.