author: David Newbern, Justice. Steele Hays, Justice,

text:
    Kim L. LIVELY v. LIBBEY MEMORIAL PHYSICAL MEDICINE CENTER, INC.
    92-398
    841 S.W.2d 609
    Supreme Court of Arkansas
    Opinion delivered November 9, 1992

      Wright, Chaney, Berry, & Daniel, P.A., by: Benny M. Tucker, for appellant.

      Friday, Eldredge and Clark, by: William M. Griffin, III and Sarah J. Heffley, for appellee.
   David Newbern, Justice.

This is a premises liability case in which the Trial Court granted summary judgment in favor of the premises owner, Libbey Memorial Physical Medicine Center, Inc. (Libbey Memorial). The appellant, Kim Lively, argues the Trial Court erred in determining there were no remaining material issues of fact with respect to whether she was a licensee when she was injured on Libbey Memorial’s property and whether Libbey Memorial breached its duty owed to her. We hold there were remaining material issues of fact, and thus we reverse and remand. Ark. R. Civ. P. 56(c).

Evidence before the Trial Court in the form of discovery documents and affidavits revealed these facts. Libbey Memorial is a business in Hot Springs providing medical and exercise services to the public. Its facilities are open to members and nonmembers for a fee. At the time of the accident Lively was an employee of Libbey Memorial.

Libbey Memorial maintains whirlpool baths powered by jet pumps mounted along the sides of the pool. Intake suction pipes are located below the surface of the water. On a day when she was not working, Lively went to Libbey Memorial to use the whirlpool, and while doing so, her hair was sucked into an intake pipe. Although Lively’s hair was fastened to the top of her head, she believed a few strands got loose and were sucked into the pipe. After hearing Lively cry for help, another patron shut off the whirlpool machines. Some of her hair was cut off because it could not be extricated from the suction pipe. She claimed she almost drowned as a result of the incident.

Lively admitted being aware of a sign in the pool area warning patrons to keep a certain distance away from the whirlpool jets. Although she could not be certain, she believed the sign said to stay ten or fifteen inches away from the jets. She explained, however, that she did not know to keep a distance away from the underwater suction. She stated she was inexperienced in using whirlpools and did not know about the suction pipes located below the surface of the water. There was also evidence of a small sign in the women’s dressing room warning women who had long hair to either put their hair up or wear a bathing cap while using the whirlpool. Lively stated she had not seen that warning.

Lively filed suit against Libbey Memorial claiming she was an invitee on the premises at the time of the accident. She alleged Libbey Memorial’s negligence caused her to suffer serious injuries and requested $250,000 in compensatory damages. With respect to her punitive damages claim, Lively stated Libbey Memorial was on actual notice that two other, similar incidents had occurred prior to her accident and, despite this knowledge, Libbey Memorial took no action to protect Lively or the general public from injury. She contended this conduct showed “an utter indifference to, and a conscious disregard for, the safety of others,” and Lively claimed entitlement to $500,000 in punitive damages.

Libbey Memorial moved for summary judgment on the grounds that Lively was a mere licensee and the complaint did not allege willful or wanton conduct. Libbey Memorial supported its motion with Lively’s deposition statement that she did not believe anyone at Libbey Memorial intentionally injured her.

In response, Lively produced the deposition of the president of Libbey Memorial, Dewey Crow, who said allowing employees to use the whirlpool facilities free of charge was a fringe benefit of employment. Lively argued she was an invitee because Libbey Memorial received an economic benefit from her use of the whirlpool. She contended that by offering employees the use of the facilities free of charge, Libbey Memorial was better able to attract and retain employees and minimize out-of-pocket expenses.

The Trial Court stated there was no evidence that Libbey Memorial derived any economic benefit by allowing employees to use the whirlpool facilities during non-work hours. The use was merely gratuitous. The Trial Court thus held Lively was a licensee and Libbey Memorial owed no duty except to refrain from injuring her through willful or wanton conduct. The Trial Court also recognized that Libbey Memorial owed Lively the duty to warn of hidden dangers if she did not know, or had no reason to know, of the condition or risk involved.

The Trial Court reasoned (1) willful or wanton conduct was not pleaded and there was no evidence of such conduct, (2) there were no hidden dangers of which Libbey Memorial was obligated to warn Lively, (3) she had used the whirlpool on numerous occasions prior to the accident, and (4) she was aware of the sign warning patrons to keep a distance from the whirlpool jets.

1. Lively’s status

Lively first argues there were material questions of fact as to whether she was an invitee and it was reversible error for the Trial Court to determine she was a licensee as a matter of law. The burden of proving that there is no genuine issue of material fact is upon the summary judgment movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubt and all inferences must be resolved against the moving party. Carmichael v. Nationwide Life Ins. Co., 305 Ark. 549, 810 S.W.2d 39 (1991).

We have defined “invitee” as “one induced to come onto property for the business benefit of the possessor.” Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991); Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984). A “licensee” is one who goes upon the premises of another with the consent of the owner for one’s own purposes and not for the mutual benefit of oneself and the owner. Tucker v. Sullivan, 307 Ark. 440, 821 S.W.2d 440 (1991).

In Tucker v. Sullivan, supra, citing Restatement (Second) of Torts § 332 (1965), we recognized an invitee may either be a public invitee or a business visitor. A public invitee is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. A business visitor is invited to enter or remain on land for a purpose directly or indirectly connected with the business dealings of the possessor of the land.

Lively contended that allowing employees to use the facilities free of charge as a fringe benefit better enabled Libbey Memorial to attract prospective employees and retain them. We cannot agree that there were no material questions of fact presented as to whether Libbey Memorial obtained a potential business benefit from Lively’s use of the whirlpool baths.

Libbey Memorial argues St. Louis I.M. & S Co. v. Pyles, 114 Ark. 218, 169 S.W.2d 799 (1914), is directly on point and requires an affirmance of the Trial Court’s decision that Lively was a licensee. Pyles was an employee of the defendant railroad company. His duties included traveling with supply cars and distributing oil. On a Saturday night, Pyles had traveled from El Dorado to Gurdon and was en route to Argenta the next day. Pyles obtained permission from his foreman to leave the cars at Gurdon and travel to Argenta on Saturday night instead of waiting for the cars to be transported on Sunday. The railroad company had furnished Pyles a pass allowing him to ride on all trains.

As Pyles was running down a path located between the main track and a sidetrack in an attempt to board a train bound for Little Rock, he stumbled on a pile of coal and fell under a slowly moving freight train. Pyles sued the railroad company for negligence in allowing the pile of coal to remain on the path. In finding Pyles to be a mere licensee when using the path, we stated,

There is not the slightest evidence to indicate that the pathway was used in a way that an invitation can be implied on the part of the railway company to the public or its employees to use it. The use was, at the most, merely permissive, and those who used it were licensees, who took the privilege with its concomitant peril.

Lively offered to prove her use of the whirlpool facility as a fringe benefit was more than merely permissive. A factual issue thus remained in that respect.

2. Duty owed to licensee

Lively next contends that even assuming the Trial Court correctly found she was a licensee as a matter of law, there were material questions of fact as to whether Libbey Memorial breached the duty owed to her. A landowner owes a licensee the duty to refrain from injuring him or her through willful or wanton conduct. King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990); Baldwin v. Moseley, 295 Ark. 285, 748 S.W.2d 146 (1988). If, however, a landowner discovers a licensee is in peril, he or she has a duty of ordinary care to avoid injury to the licensee. This duty takes the form of warning a licensee of hidden dangers if the licensee does not know or have reason to know of the conditions or risks involved. King v. Jackson, supra.

To support her argument that Libbey Memorial engaged in willful or wanton conduct, Lively produced evidence that the president of Libbey Memorial knew of at least one similar incident which had previously occurred involving a woman named Donna. In deposition testimony, Dewey Crow admitted he knew of an accident involving a woman named Donna which had occurred shortly before Lively’s alleged accident. Donna’s physician called Crow after the accident and told him Libbey Memorial should put up more signs in the pool area to make it more obvious that the whirlpool could be dangerous. Crow failed to take any further precautionary steps to avoid injury.

Despite this evidence, the Trial Court held there was no material issue of fact regarding whether Libbey Memorial acted willfully or wantonly. To constitute willful or wanton conduct, there must be a course of action which shows a deliberate intention to harm or which shows utter indifference to, or conscious disregard of, the safety of others. Daniel Const. Co. v. Holden, 266 Ark. 43, 585 S.W.2d 6 (1979); AMI Civ. 3d 1101 (1989). Our view of it is that Lively’s statement that she did not think anyone at Libbey Memorial intentionally injured her does not settle the issue with respect to that standard of care. A question of fact remained whether Libbey Memorial acted with utter indifference to, or conscious disregard of, the safety of others.

Not only must a landowner refrain from injuring a licensee through willful or wanton conduct, he or she must also warn a licensee of hidden dangers if the licensee does not know or have reason to know of the risk. The Trial Court noted Lively’s awareness of the sign requiring she stay 10 to 15 inches away from the pump.

A jury could have determined that the dangers associated with the underwater suction were hidden or not easily recognized. Summary judgment is inappropriate when there are disputed issues of fact. Although Lively admitted being aware of a sign warning her to stay a certain distance away from the whirlpool jets, there is no evidence that she understood this meant to stay away from the underwater suction. Lively said she did not know there were suction pipes located below the surface of the water. It cannot be stated that as a matter of law Lively was aware of the risk presented. A jury could conclude there was a hidden danger of which Lively was unaware and of which Libbey Memorial was obligated to warn. The adequacy of the warnings in evidence remained at issue. Rowland v. Gastroenterology Assoc., P.A., 280 Ark. 278, 657 S.W.2d 536 (1983).

Libbey Memorial contends Ark. Code Ann. § 18-11-305 (1987) provides immunity to landowners who allow “any person” to use their property for recreational purposes free of charge. The Trial Court did not rule on the applicability of the Statute, thus we will not consider it on appeal. See, e.g., Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991); McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989).

Reversed and remanded.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. This case was submitted to the trial court on motion for summary judgment with extensive supporting and opposing materials. The trial court determined that appellant had used the appellee’s walk-in hot water pool with whirlpool on numerous prior occasions and was warned by a sign in place near the whirlpool intake advising users to stay at least twelve inches from the pumps. In response to appellant’s claim that she was an invitee, the trial court determined that appellant had failed to establish that she had come on the premises for the business benefit of the appellee, citing Coleman v. United Fence Company, 282 Ark. 344, 668 S.W.2d 536 (1984). The trial court noted an absence of any proof that appellant was induced to accept employment because of the whirlpool and that its permissive use was nothing more than a gratuitous act by the appellee. See Garrett v. Arkansas Power & Light Co., 218 Ark. 575, 437 S.W.2d 895 (1951), where we said:

It is sometimes difficult to distinguish between an invitee and a licensee, especially where each is implied, but a rule to do so was quoted with approval in the case of Knight v. Farmers’ & Merchants’ Gin Co., 159 Ark. 423, 252 S.W. 30, as follows: “It is not always clear under a given state of facts as to what inference may be drawn as to a person being a licensee or an invitee but one of the sure tests is whether or not the owner of the premises is interested in the presence of the visitor.”

The trial court also rejected the alternative argument that appellant was a licensee. That contention was not pled but was raised orally and rejected on the ground that no evidence of wanton conduct by the appellee was pled or demonstrated. King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990).

Appellant has not shown the trial court’s rulings to have been erroneous and I believe summary judgment was appropriate.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Tony SMITH v. Jerry THORNBURG
    92-528
    841 S.W.2d 616
    Supreme Court of Arkansas
    Opinion delivered November 10, 1992

      Odom, Elliott & Winburn, by: Bobby Lee Odom and J. Timothy Smith, for appellant.

      Parker, Settle & McCarty, by: Patrick McCarty, for appellee.
   Tom Glaze, Justice.

In this negligence action, Tony Smith, a pawn shop owner, was sued by Jerry Thornburg, who alleged he had left his pickup truck with Smith to secure a loan in the amount of $365.00. Thornburg further asserted that, in obtaining the loan, he parked his vehicle on Smith’s lot, locked his truck’s doors and left his keys and title to the truck with Smith as collateral. Smith gave Thornburg a claim ticket that provided Smith, was not responsible for goods lost in pawn. Two weeks later, Thornburg drove by Smith’s lot and noticed his truck was missing; he stopped and asked Smith where the truck was. Smith, unaware the truck had been removed, advised Thornburg to notify the police that the vehicle had been stolen. The keys and title to Thornburg’s truck were still in Smith’s safe. After notifying the police, Thornburg filed suit against Smith in municipal court which returned a civil judgment in favor of Thornburg for $730.00 plus $65.45 in costs.

Smith appealed to the Sebastian County Circuit Court. After a nonjury trial, the trial judge stated that, when comparing the negligence of the respective parties, he found in Thornburg’s favor, thus, ordering Thornburg’s loan, interest and other related charges cancelled and adjudging Smith to pay Thornburg $150.00 in damages and $63.45 in costs. In this appeal, Smith argues Thornburg failed to show that Smith breached his duty of ordinary care. We agree.

In Howard’s Laundry & Cleaners v. Brown, 266 Ark. 460, 585 S.W.2d 944 (1979), we discussed negligence and its applicability to bailment situations as the one here as follows:

The rule in bailment cases is that the bailee may overcome the inference of negligence arising against it because of delivery in good condition and return in damaged condition by telling all that it knows of the casualty, and that it exercised ordinary care in all that it did with respect to the vessel. This burden, unlike that of persuasion which rested at all times on [the bailor], simply required [the bailee] to go forward with evidence sufficient to show that it had no more knowledge of the cause of the casualty than was available to the [bailor] and that it exercised ordinary care. At this juncture the burden of going forward would shift back to [the bailor] to ultimately persuade the trier of facts of negligence on the part of [bailee] proximately causing the casualty.

In applying the above rule to the facts before us, Thornburg’s only evidence was that he parked his truck on Smith’s lot, locked the truck and took his keys and title into Smith who loaned Thornburg the money. Thornburg had previously pawned a vehicle, and he said that he guessed the same standard of care or practice in pawning vehicles was followed in Arkansas. He figured his truck would stay on Smith’s lot unless Smith got more automobiles and had to move Thornburg’s. Thornburg offered no further evidence.

Smith testified that he had always put pawned cars on his parking lot, and he never told his customers that their vehicles would be taken anywhere else. Smith said that all he can do to protect the cars is to have them locked and placed on his lighted lot. Smith further stated that other pawn brokers in the area do the same thing with their pawned cars. Smith testified that he informs each person that pawns a car that he cannot be responsible for the customer’s vehicle. This information is also printed on the pawn claim ticket. Smith stated that he has owned the pawn shop for twenty years, had pawned probably a hundred vehicles and had never had one stolen. Smith had no employee at his pawn shop at night.

Another pawn shop owner, Thomas Ray Lester, testified that when he makes loans on vehicles, he has the customer park his or her car on his lot, tells the customer to lock and secure the vehicle, and puts the title and keys in his vault. Lester testified that he did not have anyone at his pawn shop at night. Further, he testified without objection that to the best of his knowledge other pawn shops in the area follow this same standard of care.

In sum, Smith presented unrebutted evidence that the procedure he followed in this pawn transaction with Thornburg was the standard or reasonable procedure and ordinary care followed by others in his business. Thornburg actually appeared to agree, and never offered any proof to show his truck was unsafe in the manner or in the lot he left it. Nor did Thornburg attempt to show Smith’s lot was in an unsafe location or, for safety reasons, in need of a fence. See, e.g., Annotation, Pawned or Pledged Property — Theft, 68 ALR 2d 1259, 1261, § 2, § 4(b) (1959).

Because Thornburg failed to show Smith breached his duty of ordinary care, we must reverse.


text:
    Virginia WELCHMAN v. Bobby NORMAN, Sr., and Patsy M. Norman, Kevin Coakley and Mary Lisa Coakley, and Debra Jones
    92-9
    841 S.W.2d 614
    Supreme Court of Arkansas
    Opinion delivered November 10, 1992

      Hobbs, Lewis, Mitchell, Garnett & Naramore, P.A. by: Ronald G. Naramore, for appellant.

      J.E. Sanders, for appellee.
   Tom Glaze, Justice.

This is an appeal from the chancellor’s finding that the appellant’s residence violates a restriction in the appellant’s deed prohibiting mobile homes. Below and here on appeal, appellant does not deny the existence of the restriction but instead contends that her residence is a manufactured home and is not covered by the restriction. Appellant also argues that the restrictive covenant is invalid because a general development plan had not been maintained in the subdivision. We are not persuaded by the appellant’s arguments and therefore affirm.

Neighbors of the appellant, appellees, brought this lawsuit to force the appellant to remove her residence from her property because it violated the land use restriction against mobile homes found in both parties’ deeds. This restriction provided the following: “No house trailer or mobile home shall be parked on any part of said tract nor maintained thereon for residence or other purposes.” The neighbors all testified that they were worried that a mobile home on the appellant’s property would adversely affect their property values.

On appellate review, we try chancery cases de novo and will not reverse the chancellor’s findings unless clearly erroneous. Conway Corporation v. Construction Engineers, Inc., 300 Ark. 225, 782 S.W.2d 36 (1989). In considering the sufficiency of the evidence to support the chancellor’s finding, we view the evidence most favorable to the appellee. Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983).

The chancellor heard the following evidence about the appellant’s residence. Appellant’s residence was transported to her property in two sections. Each section had steel beams attached underneath with wheels attached. Upon arrival at the property site, the wheels, axles and tongue were removed and the two sections were put together. Concrete footings were not poured prior to the placement of the home and tie-downs or anchors were used to stabilize the home. Appellant’s residence rests on concrete piers.

After the placement of the home, appellant spent approximately $5,000 in putting in a septic tank, and building a front porch, a carport and storage room. Appellant also had a rock “foundation” built around the front of her mobile home, but she testified that she did not know if the foundation supported the house absent the concrete piers. Other witnesses stated the rock “foundation” was merely a skirting around the appellant’s residence. While there was evidence presented to the contrary, three witnesses, who were familiar with mobile homes, testified that the appellant’s residence was a mobile home.

Other evidence before the chancellor included a copy of the Department of Finance and Administration Registration listing the appellant’s residence as a mobile home. Appellant’s policy of insurance on her residence also lists the insured structure as a mobile home. In addition, appellant bought her residence from Quality Mobile Homes.

This court has never addressed the difference between a mobile home and manufactured home. But both parties cited the court to cases from other jurisdictions discussing the differences between mobile homes and manufactured homes. The case most similar to the present case is Albert v. Orwige, 731 S.W.2d 63 (Tenn. Ct. App. 1987). There, the Orwiges also argued that their home was a manufactured home, not a mobile home. The residence was transported by truck to the property in two units. The two parts were bolted together and tied down by anchors to concrete footings. The structure was further enclosed by an additional concrete foundation. The Tennessee court held that the Orwiges’ home was a mobile home.

Likewise, we hold here that the chancellor’s finding that the appellant’s residence is a mobile home is not clearly erroneous. Witnesses identified the appellant’s residence as a mobile home, and most telling, the majority of the appellant’s papers concerning her residence labeled it as a mobile home. While we note the appellant’s contention that, in order for the residence to be moved, the rock “foundation” would have to be removed and the wheels reattached, a majority of jurisdictions have held that a mobile home remains a mobile home notwithstanding removal of the wheels and placement on a permanent foundation. R. Anderson, American Law of Zoning, § 14.03, p. 675 (1986).

In the second issue, the appellant argues that the restrictive covenant cannot be upheld because there is no general plan of development. We do not agree. The primary test of the existence of a general plan of development or improvement of a tract of land divided into a number of lots is whether substantially common restrictions apply to all lots of like character or similarly situated. Jones v. Cook, 271 Ark. 870, 611 S.W.2d 506 (1981). Out of the forty-three tracts in the subdivision, only six tracts, one a cemetery, were not subject to the same restrictions. As we stated in Jones, the mere showing of other violations does not always constitute acquiescence or waiver of the restrictions. That is the situation here.

For the reasons stated above, we affirm.

       Appellant testified that when she signed the registration certificate the place for the body style was blank and that someone filled in mobile home after she signed the form.


author: Donald L. Corbin, Justice.

text:
    Richard ATKINSON v. Floyd J. LOFTON, Circuit Judge
    91-191
    842 S.W.2d 425
    Supreme Court of Arkansas
    Opinion delivered November 9, 1992

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Richard Atkinson, appealed his citation and conviction of contempt by Judge Floyd Lofton. We remanded for an evidentiary hearing. The evidentiary hearing was stayed until after the trial of Kenneth Ray Clements, the defendant in the case leading to Mr. Atkinson’s contempt citation and conviction, to avoid any possible prejudice to Mr. Clements. On May 29, 1992, an evidentiary hearing was held before the Honorable Fred D. Davis, III, Circuit-Chancery Judge. The case is now ready for our consideration. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 29(l)(h).

On April 23, 1991, appellant, Richard Atkinson, was appointed by the Honorable Floyd Lofton, Circuit Judge, to assist Kenneth Suggs in the representation of Kenneth Clements in his retrial for capital murder in the shooting death of police officer Ray Noblett. Judge Lofton was assigned to the case following the recusal of the Faulkner County judges. The trial was scheduled for June 24, 1991, only sixty days away. At a pretrial hearing on June 17,1991, Atkinson moved for a continuance of the June 24 trial date. Atkinson cited the voluminous nature of the discovery materials and his inability to sufficiently review this material in order to ready and properly present a defense for Mr. Clements by June 24. Judge Lofton held Mr. Atkinson and Mr. Suggs in contempt, removed them both from the case, and fined them each $1,000.00 holding they were negligent in failing to prepare the case and get ready for trial.

On appeal, appellant cites two points for reversal. They are: (1) the contempt conviction should be reversed because Atkinson never received proper notice, opportunity to defend or fair hearing as required under federal and state due process and fair trial guarantees; and (2) the evidence cannot sustain a finding of contempt of court under any formulation. We find the evidence cannot sustain a finding of contempt of court and reverse on this ground, therefore we need not address appellant’s first argument.

SUFFICIENCY OF THE EVIDENCE

In a review of a case of criminal contempt, we view the record in the light most favorable to the trial judge’s decision and sustain that decision if supported by substantial evidence. McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989); Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989). In a related case, the defendant, Kenneth Ray Clements, appealed the removal of Richard Atkinson as his attorney. Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (1991). In Clements, we found the removal of Mr. Atkinson as Mr. Clements’ attorney improper and said: “we find no support in the record for the trial court’s discharge of Mr. Atkinson.” Id. at 607, 817 S.W.2d at 199. Since we set out the entire record colloquy pertaining to Mr. Atkinson’s motion for continuance in Clements, we do not find it necessary to repeat that information here, although it is necessary for purposes of our decision. As noted in Clements, the court did not actually grant or deny Mr. Atkinson’s motion for continuance, instead, the court asked another attorney, Mr. Hartenstein, whom the court had just assigned to help Mr. Suggs and Mr. Atkinson prepare for trial if he could represent Mr. Clements. After a brief recess for Mr. Hartenstein to consult his calendar, Mr. Hartenstein stated he could accept the appointment, although there was no way he could be ready for trial on June 24 as originally scheduled. Whereupon the court relieved Mr. Atkinson and Mr. Suggs, held them both to be negligent in failing to prepare the case and get ready for trial, held them both in contempt and assessed a fine of a thousand dollars each. The judge also forced Mr. Clements into a catch-22 position where he was compelled to “accept new, unrequested counsel in order to gain a continuance or proceed immediately to trial against the advice of his . . . attorney.” Clements, 306 Ark. at 608, 817 S.W.2d at 200.

There is no doubt the discovery in the Clements case was voluminous and the record reflects that Mr. Atkinson made a good faith effort to digest the material before the June 24 trial date. As Mr. Hartenstein noted during the pre-trial hearing, the transcript from the previous trial alone was sixteen (16) volumes and there were several boxes full of discovery material. At the evidentiary hearing, Mr. Atkinson testified in detail about the extent of the discovery material and the time he spent working on Mr. Clements’ case up to the pre-trial hearing. The discovery material consisted of about twenty (20) volumes of grand jury transcripts, approximately eight (8) hours of audiotape, and over one thousand (1000) pages of other material in addition to the transcript from the previous trial. Discovery material was being given to Mr. Atkinson by the prosecutor’s office in stages as they were able to prepare it. Mr. Atkinson had received the last installment of discovery material only four (4) days prior to the pre-trial hearing. Mr. Atkinson, who is a sole practitioner, had been working on Mr. Clements’ case almost exclusively for over forty (40) hours a week for approximately seven weeks reviewing the material he received through discovery and conducting his own investigation when the pre-trial hearing took place. Mr. Atkinson felt he was not able to spend the time reviewing the material and developing his case that was necessary for his client’s best interest. Therefore, he appropriately asked the trial court for a continuance.

Judge Lofton never asked Mr. Atkinson if he would go to trial on June 24th if his motion for a continuance were overruled, nor did Judge Lofton actually rule on the motion, although Judge Lofton did say at one point during the hearing “ [i] f I have to give you a continuance, I’m going to find you ill prepared and relieve you from the case and you will not try it at all. I’ll get somebody else to do it.” We held Mr. Atkinson’s removal from the case was improper in Clements, 306 Ark. 596, 817 S.W.2d 194. However this is not dispositive of the contempt conviction because as we noted in Clements, “[g]ross incompetence or physical incapacity of counsel, or contumacious conduct that cannot be cured by a citation for contempt may justify the court’s removal of an attorney.” Clements, 306 Ark. at 606-07, 817 S.W.2d at 199 (quoting Harling v. United States, 387 A.2d 1101, 1105 (1978)). Therefore implying problems with counsel that can be cured by a citation for contempt do not justify the court’s removal of an attorney. Thus, our decision in Clements that removal of Mr. Atkinson as counsel was improper is not dispositive of the propriety of the contempt citation and conviction.

During the hearing on the motion for continuance, the following exchange occurred between Mr. Atkinson and Judge Lofton:

MR. ATKINSON: [T]here is no way that defense can be readied and properly presented fairly for this man on the twenty-fourth.
THE COURT: If that is so, Mr. Atkinson, then the Court will have no choice but to find you negligent and in contempt, and so with Mr. Suggs, because you represented to this Court that you could and would get ready. I sent notices out to you. You both concurred in this trial date. And all I hear you saying is that, “We’ve sat on our fanny and not done anything about this and we want a continuance.” But you can’t tell me what it is you want to do. And you have no assurance — I have no assurance that if I give you another thirty days you’ll do any more than you have in the last sixty.

When Mr. Atkinson pursued his motion for continuance, continuing to cite the volume of material and his inability to adequately review it in the provided time, Judge Lofton said “[i]f I have to give you a continuance, I’m going to find you ill prepared and relieve you from the case and you will not try it at all. I’ll get somebody else to do it.” Shortly thereafter, Judge Lofton asked Mr. Hartenstein if he would be able to represent Mr. Clements. Mr. Hartenstein replied there was no way he could represent him by the 24th, Judge Lofton replied he wasn’t asking about the 24th and Mr. Hartenstein replied he would accept appointment if the court wanted to appoint him. After a brief recess for Mr. Hartenstein to consult his calendar, the following occurred:

THE COURT: All right. Mr. Atkinson, the motion before the Court is for a continuance. I’ve asked Mr. Hartenstein if he can accept an appointment.
Mr. Hartenstein, can you?
MR. HARTENSTEIN: Yes, your Honor.
THE COURT: You’re relieved Mr. Atkinson. Do you want to be relieved?
MR. ATKINSON: No, your Honor.
THE COURT: Do you want to be relieved?
MR. SUGGS: Yes, I do.
THE COURT: Ken Suggs and Richard Atkinson relieved, held to be negligent and failing to prepare case and get ready for trial, and held in contempt of Court and assessed a fine of a Thousand Dollars each to be paid within ten days unless a Notice of Intent to Appeal is filed. Ray Hartenstein and Blake Hendrix are appointed.

By implication, it could be said the court granted the continuance because Judge Lofton relieved Mr. Atkinson from the case after having said “[i]f I have to give you a continuance, I’m going to find you ill prepared and relieve you from the case.” However, we found in Clements there was no ruling on the motion and we still find there was no clear ruling on the motion. Since there was no ruling, there was no opportunity for Mr. Atkinson to comply with the court’s ruling before being found in contempt.

We do not find any indication in the record Mr. Atkinson had not been spending enough time working on the case as the trial judge apparently understood him to be saying. Every indication in the transcript of the hearing was that Mr. Atkinson had in fact been working on Mr. Clements’ case and had been very busy doing so. An attorney has a duty to “provide competent representation to [his] client.” Model Rules of Professional Conduct Rule 1.1 (1987). “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Id. In any event, it is improper for a judge to hold an attorney in contempt for simply asking for a continuance as appears to have occurred here. There is no evidence in the record Mr. Atkinson would have disobeyed the court’s order and refused to try the case on the 24th if his continuance had been denied. The court’s action in holding Mr. Atkinson in contempt for asking for a continuance was arbitrary and unacceptable.

We do not find any evidence supporting the judge’s finding of contempt and, therefore, reverse and dismiss the case with prejudice.


text:
    INTEGON INDEMNITY CORPORATION and Amwest Surety Insurance Company v. Tony BULL, Individually, and Tony Bull Chevrolet Buick, Inc.
    91-284
    842 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered November 9, 1992
    [Rehearing denied December 21, 1992.]

      Hardin & Grace, for appellant Integon Indemnity Corporation.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellant Amwest Surety Insurance Company.

      David Hodges, for appellee.
   Donald L. Corbin, Justice.

This is an appeal by two surety companies from a judgment requiring both to make payments under statutory public works performance bonds pursuant to Ark. Code Ann. § 22-9-401 (1987). Appellants assert eight points of error on direct appeal while appellee asserts two points of error on cross-appeal. Our consideration of these alleged errors requires construction of numerous statutes; thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. 29 (1) (c). Because we find no merit to appellants’ argument that appellee should not have been allowed to recover on the bonds as a matter of law, we reverse the judgment.

Vester Cornelious Construction Company contracted with the Arkansas Highway Commission to build several public works construction projects. The relevant public works projects are referred to throughout this opinion as the Wynne job, the Hope job, and the Hick’s Station job. Separate appellant, Integon Indemnity Corporation, issued the statutory performance bonds on both the Wynne and Hick’s Station jobs. Both of Integon’s bonds listed Cornelious as the principal. Separate appellant, Amwest Surety Insurance Company, issued the bond for the Hope job which also listed Cornelious as principal.

As Cornelious was constructing the various public works jobs, the company experienced financial difficulties. Vester Cornelious requested financial assistance from appellees, Tony Bull and Tony Bull Chevrolet Buick Company. Eventually, Cornelious defaulted on the public works contracts and the appellant surety companies were required to arrange for completion of the projects. Bull filed a complaint against both Integon and Amwest claiming he supplied labor and materials for completion of the public works jobs and was therefore entitled to payment under the bonds. Bull also sought a declaration of his prior right to three certificates of deposit owned by Bull and Cornelious jointly and assigned by Cornelious to the sureties as security for the bonds. The case was tried before a jury which rendered separate verdicts for Bull against Integon and Amwest for $75,118.79 and $55,982.13 respectively. The jury also found for the sureties regarding the ownership of the certificates of deposit. Integon and Amwest have appealed from the judgment entering the respective verdicts. Bull has cross-appealed on the issue of the certificates of deposit.

On appeal, the first of Integon’s eight arguments for reversal is that the trial court erred in refusing to hold, as a matter of law, that Bull did not have a claim against the bond because he did not supply labor or materials to the public works jobs. Amwest makes essentially the same argument as its first point of error and then joins in three of Integon’s remaining arguments. As the first arguments are so similar, we consider them both together. Because we reverse and dismiss on that common point, we need not consider any of appellants’ remaining arguments. We must however, address Bull’s two points argued on cross-appeal.

The argument for reversal is that Bull was not entitled to recover under the bonds because he merely advanced funds to Cornelious or directly to Cornelious’ laborers and suppliers rather than actually supplying the labor and materials for the bonded projects as required by section 22-9-401. Integon and Amwest claim that by advancing funds or even paying material-men and laborers directly, as a matter of law, Bull occupied the status of a lender or creditor of Cornelious rather than a supplier or materialman, and therefore could not recover under the statutory bonds. Bull first responds to this claim by asserting that the argument is a challenge to the sufficiency of the evidence and our review is therefore precluded because the abstract does not include the motions for directed verdict. Bull counters the merits of the argument by claiming Bull’s testimony provided substantial evidence to support the jury’s verdict.

As Bull correctly points out, the abstract does not contain the motions for directed verdict. Generally, the failure to comply with Ark. Sup. Ct. R. 9 by not abstracting a motion for directed verdict precludes appellate review of that issue. Cozart v. Lewis, 299 Ark. 500, 774 S.W.2d 127 (1989). However, we have found that affirmance for non-compliance with Rule 9 is not necessarily warranted when the needed information can be gained from some other part of the abstract. Ransopher v. Chapman, 302 Ark. 480, 791 S.W.2d 686 (1990). In this case, the abstract does include both appellants’ motions for judgments notwithstanding the verdicts. Both motions state that the necessary directed verdict motions were made. Thus, consistent with Ransopher, the abstract is not deficient in its failure to contain the motions for directed verdict and we need not affirm for failure to comply with Rule 9.

A trial court may enter judgment notwithstanding the verdict only if there is no substantial evidence to support the jury verdict, and the moving party is entitled to judgment as a matter of law. Dedman v. Porch, 293 Ark. 571, 739 S.W.2d 685 (1987). In reviewing the denial of a motion for directed verdict, we give the proof its strongest probative force viewed in the light most favorable to the party against whom the motion was sought, and affirm the trial court’s denial if there is any substantial evidence to support the verdict. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987).

The evidence, as viewed most favorably to Bull, reveals the following. Bull is in the automobile business and was not involved in the construction business prior to his dealings with Cornelious. Bull loaned money to Cornelious on two occasions in exchange for two promissory notes of $1,500.00 and $5,000.00, the latter of which was not repaid. Here, we add parenthetically that Bull does not seek recovery of the two loans totaling $6,500.00 — he testified that they were indeed loans and therefore he knew he could not recover them under the bonds. Bull executed a written agreement with Cornelious to provide the “financial backing” for existing jobs and future jobs in return for one half of the profits. The agreement also stated that both parties agreed Bull would “handle and disburse all proceeds from each job.” Bull testified that he agreed to continue furnishing the financial backing so he could get his $5,000.00 back.

Bull testified that he was never Cornelious’ partner, rather he was a supplier of labor and materials to Cornelious’ various construction projects. Bull stated that he borrowed close to $200,000.00 from the Bank of Augusta to pay for labor and supplies; his purpose was to see where the money was going, to make sure the supplies were going on the jobs, and not to advance funds to finish the jobs. Numerous exhibits were introduced by all parties showing either the checks or summaries of checks drawn on the Bank of Augusta by Bull and made payable not just to Cornelious but also directly to suppliers of labor and materials on all three public works jobs. Bull testified that he paid the bills associated with the jobs and did not make a loan; that he paid the suppliers, but did not advance funds.

Bull argues that the foregoing evidence is substantial evidence that he was a supplier of labor and materials and therefore held a valid claim against Amwest and Integon under the bonds they issued. We disagree with Bull’s contention that there is substantial evidence to support the jury’s verdict. To the contrary, we agree with Amwest and Integon that they were entitled to judgment as a matter of law.

The bonds at issue in this appeal are performance bonds for public works projects. Recovery under these bonds is controlled by section 22-9-401 (a) which states that:

All surety bonds required by the State of Arkansas ... for the repair, alteration, construction, or improvement of any public works . . . shall be liable on all claims for labor and materials entering into the construction, or necessary or incident to or used in the course of construction, of the public improvements.

The question presented is whether, by writing checks directly to suppliers of material and labor, Bull has a claim for labor and materials that section 22-9-401 requires the sureties to pay.

We have previously decided this precise issue in Ayres & Graves v. Ellis, 185 Ark. 818, 49 S.W.2d 1056 (1932). Although the Ellis decision applied an earlier version of section 22-9-401, both statutes are similar in all relevant respects. In Ellis, W.C. Ellis d/b/a as the W.C. Ellis Lumber Company contracted with A.O. Freeman to furnish Freeman money and material to carry out Freeman’s sub-contract for concrete structural work on a public works project. When Freeman completed the work on his sub-contract, he had a balance due Ellis. Ellis sued to recover the balance under the principal contractor’s bond. The evidence presented in the Ellis case revealed that Ellis undertook to finance Freeman’s contract, to order and deliver all material required, to keep a payroll record, and to render monthly statements of Freeman’s account to which Ellis added a charge of 8%. The statements included, among other items furnished to Freeman, cash advances. Ellis’ right to recover the materials furnished was not questioned; however, his right to recover from the surety the money he paid directly to Freeman’s laborers was questioned. In Ellis, we stated that the case of Norton v. Maryland Casualty Co., 182 Ark. 609, 32 S.W.2d 172 (1930), was controlling. Norton held that one who advances money to a public works contractor is not a sub-contractor but a creditor and therefore does not have a claim against the surety. In Ellis, we stated:

The fact that Ellis personally paid the laborers in the instant case does not alter the legal principles there announced [in Norton]. Such payment was nothing more than an advance to Freeman, and created only the relation of debtor and creditor between Ellis and Freeman, and did not constitute Ellis a subcontractor, as appellee contends, nor did it make him a person holding such a claim as the statute requires the surety to pay.

Ellis, 185 Ark. at 822-23, 49 S.W.2d at 1058. Ultimately, Ellis held that Ellis had a claim against the surety for materials furnished Freeman, but that the only claim Ellis had for the payments he made to Freeman’s laborers was against Freeman himself, not the surety.

The Ellis case controls the present case. The two cases present almost identical facts. We see no distinction in the fact that Ellis involved direct payments only to suppliers of labor, while the present case involves payments to both suppliers of labor and suppliers of materials. The evidence, when viewed most favorably to Bull as is required, can lead reasonable minds to only one conclusion — that, Bull directly paid for labor and materials that were part of a public works project. Consistent with Ellis and Norton, we hold the fact that Bull paid Cornelious’ laborers and suppliers directly, makes Bull Cornelious’ creditor, not a supplier of labor and materials with a claim against the surety. As a matter of law, Amwest and Integon were entitled to judgment and the trial court erred in denying the motions for directed verdicts and judgments notwithstanding the verdicts. The jury verdicts in favor of Bull against Integon and Amwest are reversed and Bull’s claims are dismissed.

The first issue on Bull’s cross-appeal is a challenge to four jury instructions given by the trial court. Bull argues the instructions are a “hodge-podge of incorrect law, inapplicable to the facts in the case and constitute prejudicial error.”

First, Bull challenges Instruction #32, which states as follows:

JURY INSTRUCTION NO. 32
Integon asserts that it is entitled to proceeds of the Bank of Augusta certificate of deposit number 17923 in the amount of $14,257.00 by virtue of having a perfected assignment in such certificate of deposit. To establish that it has a perfect assignment, Integon has the burden of establishing each of the following essential propositions:
1. The certificate of deposit is in the possession of Integon pursuant to agreement.
2. Integon has given value for the assignment.
3. Cornelious had rights in the certificate of deposit assigned to Integon.
Whether Integon has proved each of these elements by a preponderance of the evidence is for you to determine.

Bull claims this instruction was misleading to the jury because it suggested that proving an assignment would entitle Integon to the proceeds of the certificate of deposit. Bull claims this was error because the proper issue before the jury was who was entitled to the proceeds, not whether Integon was entitled to the proceeds by virtue of its assignment. Bull also argues the instruction was “inherently erroneous, redundant and covered by verdict form.” However, Bull does not allege which of the sixteen verdict forms addressed the substance of the challenged instruction.

Integon asserts that Instruction #32 is a correct statement of the law pursuant to Ark. Code Ann. § 4-9-305 (Repl. 1991), and General Electric Co. v. M & C Mfg. Co., 283 Ark. 110, 671 S.W.2d 189 (1984). Those two authorities stand for the proposition that a security interest in a certificate of deposit is perfected by possession. In addition, Integon relies on the Official Commentary to Ark. Code Ann. §4-3-116 (Repl. 1991), which states that an instrument payable to one party “and/or” another party is payable in the alternative to either or to both of the stated parties.

We note that, by way of Instruction #23, the jury was instructed that Bull, Integon and Amwest claim superior rights in the respective certificates of deposit and that entitlement to the proceeds of the respective certificates of deposit was an issue the jury would have to decide. We cannot disagree with the authorities cited by Integon in support of Instruction #32. Bull has cited us to no authority that indicates the instruction was an incorrect statement of applicable law. Instruction #32 was not misleading to the jury in light of the fact that Instruction #23 was given. The trial court did not err in giving Instruction #32.

Second, Bull challenges Instruction #33. He claims Instruction #33 is not based on any statute and is in conflict with Instruction #24. The two instructions state as follows:

JURY INSTRUCTION NO. 24 [Official Commentary to] (ACA § 4-3-116)
You must determine whether or not the certificates of deposits are payable to Cornelious Construction Company and Tony Bull jointly or in the alternative.
If an instrument is found to be payable jointly, all of the payees must participate in any negotiation, discharge or enforcement of the instrument. But if the instrument is found to be payable in the alternative, any one of the payees may negotiate, enforce or discharge the instrument, provided they have possession of the certificate of deposit.
In deciding whether an agreement is payable in the alternative or jointly, you must look to the intent of the parties in drawing the instrument.
You are instructed that if it is not clear that the parties intended to make the instrument payable in the alternative, then you should find it to be payable jointly.
JURY INSTRUCTION NO. 33
A certificate of deposit payable to one party “and/or” another party, is payable in the alternative. An alternative payee in possession can assign or transfer a certificate of deposit by his signature alone.

We disagree with Bull’s contention that Instructions #24 and #33 are in conflict. To the contrary, the two instructions are in harmony. In addition, while the two instructions overlap somewhat, they are both accurate statements of applicable law. General Elec. Co., 283 Ark. 110, 671 S.W.2d 189; section 4-9-305; Official Commentary to section 4-3-116. Moreover, since the jury was instructed that the priority of ownership of the certificates of deposit was an issue for their determination, the trial court did not err in giving Instruction #33.

Third, Bull challenges Instruction #34, which states that:

JURY INSTRUCTION NO. 34
By the terms of its agreement, the assigned funds may be used to indemnify Integon for all losses, costs and expense associated with bonds written on behalf of Cornelious Construction Company. Integon may indemnify itself for the following losses, costs and expenses from the assigned funds:
1. Amounts paid to subcontractors, suppliers and laborers of Cornelious Construction Company which you find were reasonable, proper and made in good faith by Integon under the terms of its bond.
2. Amounts paid by Integon to complete or monitor the completion of the various construction projects in which you find were reasonable, proper and made in good faith under the terms of its bond.
3. Amounts paid by Integon to attorneys in connection with investigating, defending and paying claims against its bonds which you find were reasonable, proper and made in good faith.
Whether any of these types of losses have been proved by the evidence is for you to determine.

Bull claims that the instruction is erroneous because it permits Integon to indemnify itself from the assigned funds for expenses associated with projects not involved in the current litigation. This argument is without merit. First of all, we note that each of the expenses subject to indemnification is limited by a requirement that the jury find the expenses to be “reasonable, proper, and made in good faith.” Thus, it is unlikely that the jury would permit Integon to receive indemnification for expenses that were not even associated with the bonded projects at issue in this case. Any possible bias the jury may have had toward Integon is contradicted by the fact that, of the $22,000.00 certificate of deposit, the jury only awarded Integon the amount it claimed it was entitled to, $14,257.00. In addition, Bull does not allege that Integon made such a request for indemnification of expenses associated with bonded projects unrelated to this case. Thus, any alleged error is hypothetical and not prejudicial to Bull.

Fourth, Bull challenges Instruction #35, which states that:

JURY INSTRUCTION NO. 35
Alternatively, Integon asserts a right to Bank of Augusta certificate of deposit number 17923 by virtue of a Writ of Garnishment which is served on Bank of Augusta in enforcement of a judgment which Integon has against Cornelious Construction Company. This certificate of deposit is garnishable by Integon in proportion to Cornelious Construction Company’s ownership of the funds.
You may consider relevant evidence to determine the respective contributions of Bull and Cornelious Construction Company, as well as any intent of Bull to make a gift to Cornelious Construction Company.
Bull has the burden of proving what portion of the certificate of deposit is actually owned by him.

Bull asserts the instruction is erroneous because there was no evidence of any gift from Bull to Cornelious and because it places the burden of proving Integon’s claim to the certificate on Bull. Bull asserts the proper instruction should state that each party has the burden of proving its own interest in or claim to the certificate.

Bull’s argument with respect to Instruction #35 is wholly without merit. First, while there is testimony abstracted that directly indicates Bull made a gift to Cornelious, there is evidence that Bull included Cornelious as joint owner of the certificate of deposit in question. From this evidence, the jury could infer, among other things, that Bull made a gift to Cornelious. Second, Bull’s assertion that the challenged instruction improperly distributes the burden of proof is entirely without merit. Instruction #23 informed the jury that Bull claimed superior ownership of the certificate of deposit. Thus, Instruction #35 reads exactly as Bull argues it should read, i.e., it places the burden of proving a claim on the party asserting the claim. There was no error in the trial court’s giving Instruction #35.

Bull’s second argument on cross-appeal is that he should have been awarded penalties and attorneys fees pursuant to Ark. Code Ann § 23-79-208 (1987). The trial court denied Bull’s request for penalties and fees because he did not recover the amount sued for as required by section 23-79-208. Bull argued that the pleadings were amended to conform to the proof, therefore he recovered the amount sued for and should be awarded the penalties and fees.

Obviously, our reversal of Bull’s verdicts renders this issue moot. There is no longer any doubt that he did not recover the amount sued for. Therefore, there was no prejudicial error in the denial of penalties and fees.

The judgment is reversed and dismissed on direct appeal and affirmed on cross-appeal.


author: Robert L. Brown, Justice.

text:
    Barbara KELLEY, Records Supervisor, Diagnostic Unit; Charlotte Sumner, Records Coordinator, Arkansas Department of Corrections v. Wardell WASHINGTON
    92-588
    843 S.W.2d 797
    Supreme Court of Arkansas
    Opinion delivered November 9, 1992

      Winston Bryant, Att’y Gen., by: Oían W. Reeves, Senior Asst. Att’y Gen., for appellant.

      Appellee, pro se.
   Robert L. Brown, Justice.

The appellants, who are records personnel with the Arkansas Department of Correction and the Department itself, raise two issues in this appeal: 1) whether the Pulaski County Circuit Court lacked jurisdiction to amend its judgment to run its sentence consecutively to previous sentences; and 2) whether the Jefferson County Circuit Court erred in computing parole eligibility based on time served in a federal institution. We affirm in part and reverse in part and remand.

On July 2, 1975, appellee Warded Washington was convicted in Pulaski County Circuit Court of possession of heroin and intent to deliver heroin. He was sentenced to fifteen years and five years, respectively, to be served concurrently. On that same date, Washington was also convicted in federal court of the offense of delivering heroin, arising out of the same incident, and sentenced to fifteen years. He was subsequently incarcerated in the Federal Correctional Facility in Texarkana, Texas. His state sentences were to run concurrently with his federal sentence so that a day served in the federal institution would also reduce his state sentences by a day.

In 1987, while on parole from the federal institution, Washington forged several checks, which resulted in two state court convictions. On August 22, 1988, he was convicted in Jefferson County Circuit Court of second degree forgery and was sentenced to fifteen years to be served concurrently with the remainder of his 1975 state sentences and consecutively with the remainder of his 1975 federal conviction. His parole was revoked due to this conviction.

On May 9, 1989, Washington was convicted in Pulaski County Circuit Court of second-degree forgery and sentenced to thirty years to be served concurrently with the 1975 state sentences and consecutively with the 1975 federal sentence. At this time, Washington had thirteen months and twenty-three days left to serve on his 1975 state convictions, which meant that the sentences would expire on July 2, 1990. He was still imprisoned in the federal facility.

On June 20, 1990, Washington completed his federal sentence and was taken, for the first time, to the Arkansas Department of Correction. Shortly after arriving at the Department, Washington petitioned the Pulaski County Circuit Court to amend his 1989 sentence to run that sentence consecutively to his 1975 state convictions. On September 10, 1990, the circuit court entered an order amending the original sentence and granting Washington the relief requested.

On February 8,1991, Washington filed a petition for writ of mandamus and declaratory judgment in Jefferson County Circuit Court, requesting that the 1975 sentences, the 1988 sentence in Jefferson County, and the 1989 sentence in Pulaski County be considered as consecutive sentences which would allow cumulative treatment under our decision in Bosnick v. Lockhart, 283 Ark. 206, 672 S.W.2d 52 (1984). He then petitioned for an amended order from the Pulaski County Circuit Court to run the 1989 sentence consecutively to the 1975 state sentences. When Washington did so, however, he failed to tell that court that he had been convicted in Jefferson County for forgery and sentenced to fifteen years in 1988. Because of this, the Pulaski County Circuit Court’s order of September 10,1990, did not run the 1989 sentence consecutively to the Jefferson County sentence. In order to correct the matter further, Washington made an oral motion to the Pulaski County Circuit Court to amend its order to include the fact that its 1989 sentence should also run consecutively to the 1988 Jefferson County sentence. The Pulaski County Circuit Court then issued the requested amended order on February 13, 1992.

After issuing that amended order, the Jefferson County Circuit Court decided the petition in Washington’s favor under Bosnick v. Lockhart and calculated his total sentence as a single commitment for sixty years with one-third to serve for parole eligibility under then-existing law, which was Act 50 of 1968. The Department has now appealed from the circuit court’s order.

The Department first contends that the Pulaski County Circuit Court lacked jurisdiction to amend its 1989 sentence and run it consecutively to the 1975 Arkansas judgments. The circuit court amended its judgment in response to Washington’s motion which was made within 120 days after the conviction was affirmed. The circuit court noted in its order that its first sentence was a legal sentence, imposed in an illegal manner and that it could be corrected if the motion requesting relief was filed within 120 days of affirmance by the appellate court. Here, Washington’s motion to correct the sentence was filed 96 days after affirmance. But a mere filing of the motion does not suffice. The statute clearly reads that the correction of a sentence imposed in an illegal manner must occur within 120 days “after receipt by the court of a mandate issued upon affirmance •. . . .” See Ark. Code Ann. § 16-90-111 (Supp. 1991); see also Fritts v. State, 298 Ark. 533, 768 S.W.2d 541 (1989).

It is clear that a circuit court only retains jurisdiction to correct or modify a sentence for this 120 day period, and that after the sentence is placed into execution, the court loses jurisdiction. See Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). Here, however, the record is silent on when the mandate was received by the court. The record does reflect that the order correcting the sentence was issued on September 10, 1990 — 145 days after the affirmance of the sentence on April 18, 1990. The mandate, though, could not be issued sooner than seventeen days after that affirmance under Supreme Court Rule 22, and since a motion for reconsideration could have delayed the mandate even further, we cannot say with any certainty that the Pulaski County Circuit Court’s first order running the thirty-year sentence consecutively to the 1975 state sentences was outside of the 120 day time limit for jurisdiction. By failing to show when the circuit court received the mandate, the Department simply failed to prove facts sufficient to sustain lack of jurisdiction in that court.

We, further, do not agree with the Department that the applicable statute used by the Pulaski County Circuit Court to assess consecutive punishment was inappropriate. See Ark. Code Ann. § 16-93-607(e)(1) (1987). That statute reads:

When any convicted felon, while on parole, is convicted of another felony, the felon shall be committed to the Department of Correction to serve the remainder of his original sentence, including any portion suspended, with credit for good-time allowances. Upon conviction for the subsequent felony, the court shall require the sentence for the subsequent felony to be served consecutively with the sentence for the previous felony.

It is true that the statute speaks in terms of revoking parole and returning to the Department of Correction. We can discern no material difference, though, between parole from a state sentence and parole from a federal institution where the defendant is serving state time concurrently with the federal sentence. Since this is the case, the Pulaski County Circuit Court’s order providing that its thirty-year sentence should run consecutively to the 1975 state sentences was not in error.

We do not agree, however, that the Pulaski County Circuit Court had jurisdiction to issue its second amended order dated February 13, 1992, running the thirty-year sentence consecutively to the Jefferson County Circuit Court’s sentence of fifteen years for forgery. The circuit court offered the following rationale for retaining jurisdiction:

However, due to the specific finding that there was a fraud perpetrated upon this Court and by the express waiver of any procedural defect announced on the record by this defendant in the aforementioned hearing in Jefferson County and by the express waiver on behalf of the state of Arkansas by and through its Assistant Attorney General Olan Reeves, this Court is of the opinion that it may enter its amended order as set forth herein.

That amended order, however, was clearly outside of the 120 days from the date the circuit court received the mandate, and waiver of the parties cannot confer subject matter jurisdiction. Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987). Nor can Washington’s failure to advise the Pulaski County Circuit Court of his Jefferson County conviction be a basis for retention of jurisdiction. Hence, by the time of its second amended order the circuit court had lost jurisdiction to change its original sentence. Accordingly, to the extent that the Jefferson County Circuit Court’s supplemental order dated March 16, 1992, which calculates parole eligibility, relies on the Pulaski County Circuit Court’s invalid amended order, it is reversed.

The Department next contends that because Washington served time for the 1975 state offenses in a federal institution as opposed to the Department of Correction, he could not receive credit for state parole eligibility purposes while so serving. Again, we disagree. Suffice it to say, Washington was serving his state time for the 1975 convictions concurrently with federal time for the same offense in a federal institution. This is not a situation such as we had in Brown v. Lockhart, 288 Ark. 483, 707 S.W.2d 304 (1986), where an inmate sought to calculate parole eligibility using a prior federal conviction. Because the state and federal sentences were being served simultaneously in the present case, it was appropriate for the Jefferson County Circuit Court to calculate eligibility based on the 1975 convictions irrespective of whether Washington was physically present in the Arkansas Department of Correction.

The Department finally argues that the 1975 state sentences had expired by May 9, 1989, when Washington was sentenced to thirty years by the Pulaski County Circuit Court. But that is incorrect. The 1975 state sentences had not expired on May 9, 1989, as the Pulaski County Circuit Court’s order correctly points out. On that date, Washington had thirteen months and twenty-three days left on the 1975 state sentences, for an expiration date of July 2,1990. The circuit court subsequently corrected its 1989 sentence to run it consecutively to the 1975 state sentences. It did not err in doing so.

In sum, we cannot say, based on the proof before us, that when the Pulaski County Circuit Court first corrected its original thirty-year sentence to run that sentence consecutively to the 1975 state sentences, it acted outside of the 120-day period for extending jurisdiction. That court was, however, without jurisdiction to run that same sentence consecutively to the 1988 Jefferson County Circuit Court sentence of fifteen years because it did so clearly after the 120 days had expired. Otherwise, the Jefferson County Circuit Court was correct in stating the formula for parole eligibility under Bosnick v. Lockhart, supra, and Act 50 of 1968.

Affirmed in part. Reversed in part and remanded for an order consistent with this opinion.


author: Per Curiam.

text:
    Richard G. ECKL v. STATE of Arkansas
    CR 92-1188
    841 S.W.2d 617
    Supreme Court of Arkansas
    Opinion delivered November 9, 1992

      Michael Knollmeyer, for appellant.
    No response.
   Per Curiam.

Appellant, Richard G. Eckl, by his attorney, Michael Knollmeyer has filed a motion for rule on the clerk. His attorney admits that the record was tendered late.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In re: Belated Appeals in Criminal Cases, 265 Ark. 965; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    David A. LUPO, M.D. v. Honorable John LINEBERGER, Chancellor
    92-1168
    841 S.W.2d 158
    Supreme Court of Arkansas
    Opinion delivered November 9, 1992

      Charles L. Schlumberger and Edwin L. Lowther, Jr., for appellant.
    No response.
   Per Curiam.

Dr. David A. Lupo, the petitioner, seeks writs of prohibition and certiorari to prevent his having to give a deposition as an expert witness involuntarily in the case of William Rodgers, Individually and as Administrator of the Estate of Patricia Rodgers v. Dr. Robert Teryl Brooks, Jefferson County Circuit Court No. 91-439-2-3. Counsel for William Rodgers has subpoenaed Dr. Lupo, contending that he will only be asked “factual” questions rather than for expert opinion. Dr. Lupo asserts that the “facts” he expects to be asked are within his knowledge only because of his status as an expert and he should not have to submit involuntarily to the deposition.

All proceedings, including discovery, in Rodgers v. Brooks, are temporarily stayed. Counsel for the petitioner and for the respondent are ordered to brief the issue fully pursuant to Arkansas Supreme Court and Court of Appeals Rule 16 and 7. In addition to the merits of the question presented by the petition, the parties are directed to brief the question of the propriety of a writ of certiorari in the circumstances presented in this case.


author: Jack Holt, Jr., Chief Justice.

text:
    Delma RICHEY v. Jessie Frank LUFFMAN
    92-589
    841 S.W.2d 622
    Supreme Court of Arkansas
    Opinion delivered November 16, 1992

      Murrey L. Grider, for appellant.

      Reid, Burge, Prevallet & Coleman, for appellee.
   Jack Holt, Jr., Chief Justice.

Delma Richey, plaintiff-appellant, sought recovery for damages arising out of an automobile collision that occurred between her and the appellee, Jessie Frank Luffman. The jury verdict favored Mr. Luffman. Mrs. Richey appeals the verdict claiming the trial court erred in refusing her proffered jury instruction based upon Ark. Code Ann. § 27-51-306 (1987), relating to use of an audible signal by an overtaking vehicle. We find the trial court did not err and affirm.

On January 17, 1988, Mrs. Richey was traveling west on a two lane highway, Highway 62, in Randolph County, Arkansas. Mr. Luffman, accompanied by his mother, was traveling behind her. Although the facts are in dispute, the record indicates that Mrs. Richey turned left toward her church parking lot simultaneously to Mr. Luffman passing her on the left. It is disputed whether Ms. Richey signaled to turn. Anyway, as Mr. Luffman passed Mrs. Richey the two vehicles collided. Mr. Luffman’s vehicle, a 1971 Ford truck, was damaged in the right rear end. There was no evidence to indicate that Mr. Luffman honked as he passed Mrs. Richey. Mrs. Richey’s vehicle, an Oldsmobile, sustained a damage to the driver’s side door and front fender.

Ms. Richey sued Mr. Luffman to recover $750.98 in property damages to her car as well as $12,187.92 for her personal injuries. At trial Mr.Luffman and his mother testified that Mrs. Richey pulled to the right hand shoulder of the roadway, and that Mr. Luffman gave a turn signal with his left blinker, pulled in the left lane and was in the left lane, along side of Mrs. Richey when she turned into him as he turned into a driveway trying to avoid the accident.The parties dispute whether she used a turn signal. Although no evidence was presented regarding whether Mr. Luffman honked his horn as he proceeded past Mrs. Richey on the left,there was a stipulation that if Mrs. Richey testified, she would say that she did not hear Mr. Luffman honk his horn prior to the collision. After hearing all of the evidence, the jury reached a verdict in favor of Mr. Luffman.

Mrs. Richey requested that a modified version of AMI 601 be given to the jury. This instruction is based upon Ark. Code Ann. § 27-51-306 (1987). Mrs. Richey wanted the jury instructed as to the following:

PROFFERED INSTRUCTION NO. 1
There were (sic) in force in the state of Arkansas at the time of occurrence a statute which provided:
First: When overtaking and passing a vehicle on the left the driver of an overtaken vehicle shall yield to the right when given an audible signal by the overtaking vehicle.
AMI 601
Ark. Code Ann. § 27-51-306 (1987)

The trial judge refused this instruction stating that it causes prejudice.

The jury instruction at issue, Proffered Instruction Number 1, asserts that once the overtaking vehicle gives an audible signal, the overtaken vehicle must yield the right-of-way, even though he has properly given a turn signal. By implication, it provides that an overtaking driver has a duty to make an audible noise when passing on the left. This is not a correct statement of the law.The relevant statute, Ark. Code Ann. § 27-51-306 (2) (1987), places a duty on the overtaken driver to yield right of way only if the overtaking driver does use an audible signal:

Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall yield to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.

Since there was no evidence presented that Mr. Luffman sounded a signal as he passed Mrs. Richey, the proffered jury instruction is not relevant.

We came to the same conclusion in Smith v. Alexander, 245 Ark. 567, 433 S.W.2d 157 (19868). There, two cars were traveling the same direction behind a third car. Apparently, the two cars decided to pass the lead car at the same time which resulted in a rear end collision. We affirmed the trial court’s refusal of a jury instruction based upon Ark. Code Ann. § 27-51-306 (2) (1987) explaining:

First, there was no evidence of audible signal having been given by either vehicle. Therefore the instruction tendered an issue not in contention. To that extent the instruction was abstract. ... It should also be pointed out that this rule of the road imposes a duty on that driver being overtaken. There the requirement that an overtaking driver always sound his horn was deleted. Consequently, the instruction should not be given unless there is evidence that the driver being overtaken failed to give way to the right on audible signal.

Smith, supra (emphasis added).

Mrs. Richey argues that the recent case of Neal v. J.B. Hunt Transp. Inc., 305 Ark. 97, 805 S.W.2d 643 (1991), expands the Smith, supra, decision. In Neal two reasons were provided for not giving the instruction: where there is “neither evidence of audible signal nor evidence that the overtaken vehicle failed to give way to the right.” Mrs. Richey argues that, by implication, Neal, supra, allows the proffered jury instruction if there is evidence of either an audible signal or that the overtaken vehicle,didn’t yield right of way. We disagree. Neal merely indicates two reasons for not giving the instruction.

We have held that “there is no error by refusing an instruction which may have misled or confused the jury.” Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992). See also Arkota Indus. v. Naekel, 274 Ark. 173, 623 S.W.2d 194 (1981) (“The court properly refused a proffered instruction which contained several provisions of the statute that were not pertinent to the case and might have been confusing to the jury.”)

Suffice it to say, the proffered instruction was not applicable to the facts at hand, and the trial court’s refusal to give it was not error.

Affirmed.


text:
    Robert and Cindy WILSON v. GENERAL ELECTRIC CAPITAL AUTO LEASE, INC., and Jones Toyota Volvo
    92-616
    841 S.W.2d 619
    Supreme Court of Arkansas
    Opinion delivered November 16, 1992
    [Rehearing denied December 21, 1992.]

      Crockett, Brown & Worsham, P.A., by: Richard E. Worsham, for appellant.

      Wright, Lindsey & Jennings, for appellee.

      Brown, J., not participating.

   Jack Holt, Jr., Chief Justice.

The issue in this case is whether the trial court erred in its decision granting summary judgment to General Electric Capital Auto Lease, Inc. (GECAL) and Jones Toyota Volvo (Jones) on a contract to lease. We find no error and affirm.

In February, 1987, Robert and Cindy Wilson signed a contract to lease a 1987 Toyota Camry from Jones for a period of five years. The contract was later assigned to GECAL.

The Wilsons claimed that Jones’ leasing manager, Cliff Wright, made false representations to them that they could return the car to the dealership in three years, two years before the contract ended, and they could walk away not owing anything. They also alleged that Mr. Wright advised them that they would not need to purchase excess mileage coverage over the 75,000 mile limitation contained in the contract since they would be returning the car in three years.

After three years, the car reached the 75,000 mile mark and the Wilsons attempted to return the vehicle. GECAL and Jones would not take it back. The contract contained a clause, “K. Early Termination,” which provided a formula for an early termination charge should the party contracting to lease the car want to terminate the contract before the five year term ended.

Three years and four months after executing the contract, the Wilsons filed a complaint in federal court. This case was dismissed and the Wilsons refiled it in Pulaski County Circuit Court alleging intentional misrepresentation and usury. GECAL and Jones replied, among other defenses, that the statute of limitations had run on their claims.

Both GECAL and Jones filed motions for summary judgment which were granted after a hearing. The trial court ruled that the contract was a lease and not an installment sale contract so no usury was practiced; that the Wilsons’ claims of misrepresentation were barred by the statute of limitations; and that Mr. Wright’s statements were opinion and not fact. Since we agree with the trial court that the Wilsons’ claims were barred by the statute of limitations, we restrict our opinion to this issue.

The standard of review for summary judgment is whether the evidentiary items presented by the appellee in support of the motion left a material question of act unanswered. Barraclough v. Arkansas Power & Light Co., 268 Ark. 1026, 597 S.W.2d 861 (1980). In appeals from the granting of summary judgment, we review facts in a light most favorable to the appellant and resolve any doubt against the moving party. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). Here, the pivotal question is whether there is any genuine issue of material fact concerning the statute of limitations. Hickson v. Saig, 309 Ark. 231, 234, 828 S.W.2d 840, 841 (1992).

The applicable statute of limitations to this appeal is three years. Ark. Code Ann. § 16-56-105 (1987). See Scroggins Farms Corp. v. Howell, 216 Ark. 569, 226 S.W.2d 562 (1950). The Wilsons’ argued that although more than three years had elapsed from the contract date until the filing of the first complaint in federal court, Jones and GECAL perpetuated and concealed the intentional misrepresentation of Mr. Wright and thus tolled the statute of limitations. We conclude otherwise.

We have long held that where affirmative acts of concealment by the person charged with fraud prevent the discovery of that person’s misrepresentations, the statute of limitations will be tolled until the fraud is discovered or should have been discovered with the exercise of reasonable diligence. Walters v. Lewis, 276 Ark., 286, 634 S.W.2d 129 (1982); Williams v. Purdy, 233 Ark. 275, 265 S.W.2d 534 (1954); Meacham v. Mid-South Cotton Growers Assn., 196 Ark. 78, 115 S.W.2d 1078 (1938). See also Williams v. Hartje, 827 F.2d 1203 (8th Cir. 1987). We have said that the “classic language on this point in Arkansas” is:

No mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiffs cause of action concealed, or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence,might have detected the fraud, he is presumed to have had reasonable knowledge of it.

Scroggins Farms Corp. v. Howell, 216 Ark. 569, 572-3, 226 S.W.2d 562, 565 (1950) (quoting McKneely v. Terry, 61 Ark. 527, 545, 33 S.W. 953, 957 (1896)). The same rationale holds true today.

Even assuming that GECAL and Jones actively concealed a fraudulent misrepresentation, and there was no proof of this presented, the statute of limitations was suspended only until the alleged victims of the fraud discovered the fraud or “should have discovered it by the exercise of reasonable diligence.” Talbot v. Jansen, 294 Ark. 537, 744 S.W.2d 723 (1988) (quoting Hughes v. McCann, 13 Ark. App. 28, 678 S.W.2d 784 (1984)). See also Wrinkles v. Brown, 217 Ark. 393, 230 S.W.2d 39 (1950); City Nat’l Bank v. Sternberg, 195 Ark. 503, 114 S.W.2d 39, cert. denied, 305 U.S. 614, reh’g denied, 305 U.S. 671 (1938). The depositions of Robert and Cindy Wilson filed with the court revealed that the Wilsons did discover or should have discovered the alleged fraudulent misrepresentations, and so there was no genuine issue of material fact concerning the running of the statute of limitations. The Wilsons made no effort to read the clause on the back of the contract which would have contradicted the “claims” purportedly made by Mr. Wright. Mr. Wilson testified:

Q. Did you ever read the document after Mr. Wright handed it to you?

A. No, I did not. Well, it was never handed to me. I signed it, but actually carrying it around with me, I did not.

Q. Have you ever read it,to this day?

A. To this day, I have — just recently, I’ve looked over the back of it. When my wife said something about what kind of payoff we had on the thing and after she discovered that there was (sic) some things pertinent to us, I kind of looked over it a little bit, but as far as actually having read every word on the back, I still haven’t.

Q. Now, you’ve heard your wife indicate that at about the 24-month period in the lease, she inquired of GECAL and that was the first time she was aware that there was something on the back of the — or on the reverse side of the document.

A. Right.

Q. Did you become aware at that same time that there was language on the other side of the lease?

A. I was aware to the point that I knew that there was some printing of some kind on the back the day we did the deal. Now, as far as I — I did not know there was anything that I should be aware of or be made aware of on the back of it. You know — I just assumed it was like a lot of other forms that have — for lack of a better word — a bunch of crap on the back — that other documents we’ve signed have been like. But I did know that there was some printing on the back of it.

Mrs. Wilson testified that she had “just stuck [the contract] in her purse and left” the dealership after it was signed, then “stuck it in [her] drawer at home.” Most importantly, Mrs. Wilson testified that two years after the contract was signed, she called GECAL and was advised about the early termination change and then immediately read the termination provision section of the lease. Nevertheless, it was one and a half years after she called GECAL and over three years after the contract was signed before the Wilsons filed any complaint.

In sum, the Wilsons did not fulfill their duty to exercise reasonable diligence in examining the contract they executed to uncover what they alleged was a fraudulent misrepresentation by the leasing manager, so they cannot now complain that the statute of limitations should have been tolled. To the contrary, the evidence shows that they knew or should have know of the contract’s actual provisions, so there was no genuine issue of material fact precluding summary judgment.

Affirmed.

Brown, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Lewis S. LAMB, William D. Lynn, and William H. ROWE v. JFM, INC.
    92-623
    842 S.W.2d 10
    Supreme Court of Arkansas
    Opinion delivered November 16, 1992
    [Rehearing denied December 21, 1992.]

      Evans Benton, P.A., for appellant.

      Arnold, Grobmyer & Haley, by: Robert R. Ross, for appellee.

      Brown, J., not participating.

   Robert H. Dudley, Justice.

This case presents the interesting, but difficult, appellate procedural question of whether an order vacating a judgment is a final order, and, consequently, whether it is an appealable order.

The material facts are as follows. Plaintiffs, Lewis S. Lamb, William D. Lynn, and William H. Rowe, filed suit for specific performance, an injunction, and damages against JFM, Inc. The defendant filed an answer and an amended answer, but inadvertently did not appear on the date set for trial. In their absence, the plaintiffs took a judgment for $53,137.96. The judgment was entered on January 27, 1992. Four days later, on January 31, 1992, the defendant filed a motion to vacate judgment, and, on February 10,1992, the chancellor entered an order vacating the judgment and setting the case for trial. The two most important facts are that the order vacating the judgment was entered within ninety days of the entry of the judgment, and that the case was never fully contested. The plaintiffs seek to appeal the order vacating the judgment rendered in their favor.

We have frequently held that we will not decide the merits of an appeal when the order appealed is not a final order. Schueck Steel, Inc. v. McCarthy Bros. Co., 289 Ark. 436, 711 S.W.2d 820(1986) and supplemental opinion on rehearing 289 Ark. 437, 717 S.W.2d 816 (1986). For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Roberts Enters., Inc. v. Arkansas State Highway Comm’n, 277 Ark. 25, 638 S.W.2d 75 (1982); Ark. R. App. P. 2. Even if neither party raises the issue of the finality of the judgment, the appellate court should raise it on its own. Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988) and supplemental opinion on rehearing 294 Ark. 506-A, 746 S.W.2d 558 (1988). The order vacating the judgment in this case does not dismiss or discharge the parties from the court, nor does it conclude their rights to the subject matter in controversy. Rather, the order vacating the judgment places both of the parties back in the position they were in before the judgment was entered, see Hawkeye Tire & Rubber Co., v. McFarlin, 146 Ark. 491, 225 S.W. 632 (1920), and it is clear that neither party had a right to appeal before the judgment was entered.

The purpose of Rule 2 of the Arkansas Rules of Appellate Procedure is to avoid piecemeal litigation. Should we consider the plaintiffs’ appeal and then affirm the chancellor’s order vacating the judgment, the case would then be tried. The chancellor’s rulings at that trial would be subject to appeal, and the case could be appealed a second time. The result would be two appeals where one will suffice.

However, the foregoing is applicable only when the order vacating the judgment is entered within ninety days of the entry of the original judgment. Rule 60 of the Arkansas Rules of Civil Procedure provides for vacating judgments, and Rule 60(b) provides that a trial court has ninety days to modify or set aside a judgment to “correct any error or mistake or to prevent the miscarriage of justice.” The order vacating the judgment in this case was entered within ninety days. To the contrary, after ninety days, the trial court loses its general power to vacate final judgments to “prevent the miscarriage of justice” and has only the power to vacate final judgments for the reasons set out in Rule 60(c). For example, after ninety days, a court may vacate a judgment for fraud practiced by the party who obtained the judgment. See Diebold v. Myers Gen. Agency, 292 Ark. 456, 731 S.W.2d 183 (1987).

If the final judgment is vacated after ninety days, the order vacating the judgment is an appealable order because it determines the outcome in the equivalent of an independent action to set aside a judgment. In such an independent action the judgment creditor could lose his established creditor’s rights. See Cigna Ins. Co. v. Brisson, 294 Ark. 504, 506-A, 746 S.W.2d 558 (1988) (supplemental opinion granting rehearing); Schueck Steel, Inc. v. McCarthy Bros. Co., 289 Ark. 436, 436-A, 717 S.W.2d 816 (1986) (supplemental opinion granting rehearing); Blum v. Pulaski County, 92 Ark. 101, 122 S.W. 109 (1909); Ayers v. Anderson-Tully Co., 89 Ark. 160, 116 S.W. 199 (1909). In summary, an order vacating a judgment within ninety days is not an appealable order because it is not a final order dismissing the parties from the action, but an order vacating a judgment after ninety days is an appealable order because it is the equivalent of an order in an independent action setting aside the judgment.

We recognize that we did not follow this distinction in Arkansas State Highway Commission v. Johns, 302 Ark. 291, 789 S.W.2d 450 (1990). There, the trial court granted a motion to vacate a judgment within ninety days of entry and, in the same order, granted a new trial. We stated that it was not necessary for us to decide whether the order vacating the judgment was a final and appealable order, since the trial court also granted a new trial, and an order granting a new trial is an appealable order. The deciding, although unmentioned, factor in that case was that there had been a complete trial with both parties present to fully contest both the merits and the damages, and the granting of the new trial was the gist of the ruling. Thus, the rule is that, if after a complete adversarial proceeding, a trial court grants a new trial under Rule 59 of the Arkansas Rules of Civil Procedure, the order granting the new trial is appealable. Ark. R. App. P. 2(a)(3). However, the rules of appellate procedure do not give such a right of appeal when a judgment is obtained after less than a complete adversarial proceeding and is vacated within ninety days under Rule 60 even though, at the least, a partial new trial will be the result.

We have long recognized the distinction between an order granting a new trial and an order vacating a judgment within ninety days of the judgment. The original civil code provided that an appeal could be taken “when the order grants or refuses a new trial,” Ark. Code Ann. § 16-67-303(a)(2) (1987), and that language has been preserved in the Rules of Appellate Procedure, Rule 2(a)(3). In addition, although we have sometimes mistakenly heard such cases, we have never allowed appeals from orders vacating judgments entered within ninety days of the judgment when the case had not been fully contested on both liability and damages, even though the order vacating the judgment would necessarily require a retrial of some part of the issues. Henry v. Powell, 262 Ark. 763, 561 S.W.2d 296 (1978); Dodd v. Bonds, 220 Ark. 951, 251 S.W.2d 587 (1952).

Since the order vacating the judgment in this case was entered within ninety days of the entry of the judgment and since the case has never been fully contested by both parties, it is not a final and appealable order. Accordingly, we dismiss the appeal.

Brown, J., not participating.


text:
    George WILLIAMS, Chairman, Fayetteville Civil Service Commission v. Dennis E. TAYLOR
    92-426
    841 S.W.2d 618
    Supreme Court of Arkansas
    Opinion delivered November 16, 1992

      Jones & Reynolds, by: Terry D. Jones, for appellant.

      Mashburn & Taylor, by: Lindlee Baker Norvell, for appellee.
   Robert H. Dudley, Justice.

The Washington County Circuit Court issued a writ of mandamus ordering the Fayetteville Civil Service Commission to hold a hearing as required by its own rules. The Commission appeals. We affirm the trial court’s issuance of the writ.

Fayetteville police officer Dennis Taylor received a written reprimand from the Chief of Police for violating the city’s policy against smoking while on duty. Taylor gave notice of appeal and requested a hearing by the Civil Service Commission. The Commission refused to hear the matter. Taylor requested a hearing from the City Manager, who is designated as the arbitrator of disputes involving the smoking policy as set out in Fayetteville’s Clean Air/Smoking Policy, GA-2.1 (c). The City Manager agreed to an informal discussion, but noted that the city’s personnel policy provided that civil service procedures superseded the personnel policy. Taylor then filed the petition for a writ of mandamus asking that the Commission be ordered to hear his grievance. The trial court issued the writ'.

The Commission first argues that under our holding in Stafford v. City of Hot Springs, 276 Ark. 466, 637 S.W.2d 553 (1982), the trial court erred in issuing the writ. In that case a firefighter requested that the city civil service commission hear his appeal pursuant to the statute now codified as Ark. Code Ann. § 14-51-308 (Supp. 1991). We held that the statute provided for an appeal in the case of suspension, discharge, reduction in rank, or reduction in compensation, but that it did not provide for an appeal for a grievance such as penalty points imposed upon a firefighter for having an accident while driving a fire truck. However, a statute that was not applicable to the facts in Stafford provides that a city civil service commission may adopt rules and regulations governing its fire and police departments, and such rules “shall have the same force and effect of law.” Ark. Code Ann. § 14-51-301(a)(2) (Supp. 1991). In this case, unlike Stafford, the Fayetteville Civil Service Commission has adopted rules and regulations. Commission Rule 5.07 provides:

Any member of the respective departments or any applicant for appointment who has any grievance relating to the matters covered by these rules may present such grievance in writing to the Commission within fifteen days of the date on which the alleged grounds for the grievance arose and request a hearing thereon. The Commission shall hold a hearing on such grievance as soon as possible. [Emphasis supplied.]

The rule states that the Commission shall hold a hearing for a police officer who has any grievance relating to the matters covered by the rules. Thus, the Commission by its own rules was required to hold a hearing.

The Commission next argues that the trial court’s ruling was in error because its rule requires the Commission to interfere with the day-to-day operations of the police department, and Ark. Code Ann. § 14-51-212 (Supp. 1991) prohibits civil service commissions from interfering with the daily operations of a police or fire department. In a comparable case, we held that the express purpose of the statutes authorizing the establishment of city civil service commissions is to review the employment, discharge, and discipline proceedings of the city fire and police departments, and, therefore, such a review should not be construed as the kind of “interference with the day-to-day management or operation of a fire or police department” that is prohibited by the same statute. Tovey v. City of Jacksonville, 305 Ark. 401, 808 S.W.2d 740 (1991). Likewise, in the case at bar, the Commission’s rule requiring a grievance hearing for violating the city’s policy does not constitute interference in the daily operations of the police department, and the trial court did not err in ordering the Commission to follow its own rule.

Affirmed.