author: David Newbern, John I. Purtle, Justice,

text:
    ARKANSAS HIGHWAY AND TRANSPORTATION DEPARTMENT; and Arkansas State Highway Commission, Bobby Hopper, Raymond Pritchett, Ron Harrod, Rodney Slater, and L.W. “Bill” Clark v. Miles S. ADAMS
    89-118
    775 S.W.2d 904
    Supreme Court of Arkansas
    Opinion delivered September 18, 1989

      Robert L. Wilson, Charles Johnson, and Philip N. Gowen, for appellant.

      Jack East III, for appellee.
   David Newbern,

Justice. This is an illegal exaction suit brought by the appellee, Miles S. Adams, a taxpayer, against the appellants, the Arkansas Highway and Transportation Department and the Arkansas State Highway Commission and its members, individually. The appellants will be referred to collectively as AHTD.

Adams claimed AHTD had arbitrarily and capriciously refused to accept the lowest bid on a highway construction project. AHTD contended its actions were not arbitrary and capricious because the bid in question, which was submitted by The Rust Company, Inc., (Rust) was incomplete and not responsive to the bid request. It had not listed either the unit price or the extended price for some items in the bid specifications. The chancellor enjoined AHTD from awarding the contract to any bidder other than Rust. AHTD argues the chancellor erred in concluding it was arbitrary and capricious for AHTD to reject Rust’s bid and that such a decision violates the separation of powers doctrine. We. agree with AHTD’s contention that its action was not arbitrary and capricious and that, under these circumstances, there was an unwarranted judicial intervention. Therefore, we reverse and dismiss the case on appeal. Adams has cross-appealed from the chancellor’s refusal to order that the contract be awarded to Rust. We affirm on cross-appeal.

Rust submitted a bid of $7,854,992.31 on construction of the Fayetteville-Greenland By-pass to be built in Washington County. The next lowest bid was submitted by The Sherwood Construction Co. in the amount of $7,967,244.56. Page 16 of the form bid document contained specifications for seventeen 16-foot steel or aluminum gates and three 12-foot steel or aluminum gates. The form had blanks for inclusion of the unit price for each gate and “extension” blanks for the two classes of gates. According to testimony, “extension” means the bid for the total number of units to be supplied. Rust’s bid was blank with respect to both unit price and extension on those two subsections.

After the bids had been opened and it was determined that Rust’s bid was the lowest, it was discovered that no bid had been made by Rust on the gates. Mr. Teague of AHTD called Mr. Rust and told him his company’s bid would not be accepted because of the omission. Mr. Rust offered to supply the gates for nothing, as if the bid had been for “0.” The offer was rejected.

Rust is an Illinois corporation. Adams is an Arkansas citizen employed by Rust. At the trial, Mr. Rust freely admitted that the reason the bid items in question in his company’s bid were left blank was inadvertence. It is clear that Rust did not intend to bid “0.” Mr. Teague testified that, while it was important to AHTD to save the taxpayers $112,252.25, he was not sure that was more important than protecting the integrity of AHTD’s bid process.

Arbitrary and capricious

The parties agree that the standard to be applied is whether the action of AHTD was arbitrary and capricious. It is clear that, although Teague testified that to his knowledge no bid containing neither a unit nor extension price had ever been accepted by AHTD, AHTD could do so within its discretion according to AHTD regulations.

Section 102.08 of “Standard Specifications for Highway Construction,” published by AHTD, provides in part:

Irregular Proposals. Proposals will be considered irregular and may be rejected for the following reasons:
(d) If the proposal does not contain a unit price for each pay item listed except in the case of authorized alternate pay items. (Emphasis added.)

AHTD had awarded contracts to other low bidders where there were infractions of the specifications, such as filling out the bid in pencil rather than ink or including an extension price but not a unit price. Teague’s testimony explained that in those cases the bidder’s intention was clear, and the unit and ultimate price could be determined from the bid, whereas in this case it could be determined only by post-bidding negotiations which AHTD had always avoided in order to protect the integrity of the bidding process.

At first blush it would seem clear that rejection of a bid due to violation of a specification with respect to which the bidder was on published notice cannot be considered arbitrary or capricious. Assuming AHTD’s own regulations are rational, the act of following them constitutes a “rational basis” for the decision of AHTD in this case. The “rational basis” test has been the touchstone of our decisions determining whether an administrative agency’s action is arbitrary and capricious. Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980); Woodyard v. Arkansas Diversified Ins. Co., 268 Ark. 94, 594 S.W.2d 13 (1980). Adams argues, however, that when it comes to spending the state’s money, the judiciary must have the final responsibility to determine the issue. While we may agree, that does not change the standard to be applied, i.e., the “arbitrary and capricious” test which Adams agrees is to be applied in this case.

Adams cites cases from other jurisdictions in support of his contention that when the error in a bid is minor the court will require its acceptance. He first cites J.L. Manta, Inc. v. Braun, 393 N.W.2d 490 (Minn. 1986). There the Minnesota Supreme Court felt compelled to approve rejection of a bid which contained an “alteration” of the figure $4,088.00 to $4,082.00. Under the controlling Minnesota statute, the state agency had no discretion but was required to reject a bid containing an alteration. The court, in obiter dictum, stated that if it had been within the agency’s discretion to accept the bid, refusal to do so would have been “arbitrary.” Unlike this case, the intention of the bidder to bid a certain price for the item in question could be determined from the bid submitted, assuming it was the bidder who wrote the “2” over the “8.” It was not a bid with a mistake or an omission.

Also cited is Chris Berg, Inc. v. State, 680 P.2d 93 (Alaska 1984), which involved a lowest bid in which the bidder had written the price of a particular item on the line just below the line on which it should have been written. The nature of the mistake was clear, and the Alaska Supreme Court held that rejection of it by the Alaska Department of Transportation was an abuse of discretion because the price “the bid actually intended” to state was reasonably ascertainable. That is not the case here. According to Mr. Rust’s testimony, the unit and extension prices for the gates were simply left off by mistake. He testified his company had received prices from suppliers of from $2,000 to $5,000 for the gates. Obviously his bid would not have been “0” but would have been something in excess of $2,000, at least. Unlike the bid in the Chris Berg, Inc. case, it was not possible to tell from Rust’s bid what its intention was with respect to the gates.

The third case on which Adams relies is Chick’s Construction Co. v. Wachusett Reg. High School Dist. School Comm., 175 N.E.2d 502 (Mass. 1961). There, the commission awarded the contract to the lowest bidder despite the omission of a unit price for an item. The next lowest bidder asked the court to declare the bid invalid and the acceptance of it improper. The court refused to do so, adopting the reasoning suggested by Adams in this case, that is, that the bid could be ascertained from the total price, and that Rust should be considered to have bid “0” for the contract to supply the gates. The issue in the case was not whether the school district had acted arbitrarily by refusing a bid, but was whether it should have been forced to reject the bid. While the case may suggest there would be a rational basis for accepting such a bid, it presents no authority for the proposition that an agency’s rejection of such a bid necessarily lacks a rational basis.

In view of (1) AHTD’s published specification that it “may” reject a bid which contains no unit price on a specified item, (2) the fact that it was impossible to ascertain the intended price for the gates from the bid submitted, and (3) AHTD’s policy of not accepting any bid from which the unit price for a specified item cannot be ascertained, we must agree there was a rational basis for the rejection of Rust’s bid. While the item in question here may have been minor in comparison with the overall bid price, AHTD’s unwillingness to accept a bid with such an uncertainty and its refusal to consider post-bid negotiations with respect to the bid price in order to protect the integrity of the bidding process are, in our view, not irrational. While the decision may have been a “bad” one from the standpoint of saving the taxpayers money in this particular instance, it may have been a “good” one in that the policy behind it may save the taxpayers manyfold that which has been lost here because the certainty of the bidding process will be protected and litigation and delay thus avoided in the future. The question to be decided here, however, is not whether the decision was “bad” or “good,” but whether it was arbitrary and capricious. We hold it was not.

As our holding that the decision of AHTD was not arbitrary and capricious disposes of the appeal, we need not decide the other issues raised. Our holding on that point also disposes of the cross-appeal.

Reversed and dismissed on appeal; affirmed on cross-appeal.

Hickman and Purtle, JJ., dissent.

John I. Purtle, Justice,

dissenting. There are two things on which I agree with the majority: first, the integrity of the bidding process of the Arkansas Highway and Transportation Department (AHTD) must be upheld; second, the appellee’s bid was the lowest bid opened by the AHTD. It is my opinion that Rust was the lowest responsible bidder and that the Commission should have awarded the bid to it. The technical error, which was to the disadvantage of the bidder, is so small as to fall within the de minimis rule. See Lawrence County v. Townsend, 202 Ark. 887, 154 S.W.2d 4 (1941). Moreover, I believe the action by the Commission was arbitrary under the circumstances of this case.

Clearly, the AHTD would have saved more than $100,000 by accepting the bid of Rust. The error in the bid was the failure to include either a unit or aggregate price for the 20 cattle gates. This error was on page 16 of the bid invitation. On the bottom of that same page the aggregate bid of $7,484,992.31 appeared. Obviously, Rust did not overlook this page, because the total bid was $7,854,992.31. The page listing the gates is an integral part of the invitation and the bid. The bidder did not obtain an advantage over any other bidder nor was the state disadvantaged in any manner by this technical oversight.

The total bid was for all work listed in the bid invitation, including the cattle gates. The bidder was obligated to do the work for the amount he had bid and for which he was bonded. There is no dispute that Rust was the lowest responsible bidder. The failure to include a specific or aggregate bid on the gates did not alter the fact that the Rust Company would still have been the lowest bidder even if the price of the gates had been inserted in an amount equal to the highest bid on that unit. It was not necessary, however, for the AHTD to insert any speculative figure because Rust offered to fulfill his bid without making any charge for the omitted gates.

The integrity of the bidding process had already been upheld when these bids were opened. At that time the bids became public knowledge and could not be changed. There was no need to go outside the bid itself to determine its amount or the items included. Rust was bound to perform the contract for his bid of $7,854,922.31.

In Chick’s Const. Co. v. Wachusett Regional High School District School Committee, 175 N.E.2d 502 (Mass. 1961), the Massachusetts Supreme Court found “inconsequential” any “deviation from bid requirements” resulting from a contract failure to make an entry in the bid form concerning the cost of rock excavation as required by statute. The Chick’s opinion stated:

Granger’s bid was a complete bid for the complete work as specified. It was a bid to do the whole job at a fixed price. Under the terms of the contract awarded pursuant to the bid, Granger became bound to do the complete work as specified, including rock excavation. The bid as submitted is subject to the construction that Granger would do such rock excavation as might be encountered without extra charge therefor. This is the construction which Granger asserts in its brief.

To the same effect, see Chris Berg, Inc. v. State Dept. of Transportation and Public Facilities, 680 P.2d 93 (Alaska 1984), where the Alaska Supreme Court stated that the failure of the low bidder to enter price information for one line item was not a material variance and that “any rejection of Chris Berg’s bid on the basis of the bid error would constitute an abuse of discretion as a matter of law.” The Chris Berg case went on to hold that a variance may be said to be material “if it gives the bidder a substantial advantage over other bidders and thereby restricts or stifles competition. Under this standard, the bid variance in the present case does not compel rejection since Chris Berg did not and could not gain any competitive advantage as a result of it.”

I agree with the majority opinion that this issue must be resolved by determining whether the AHTD had a rational basis for its action. However, I reach a different conclusion. The unsupported recitation of the talismanic phrases “public policy” and “integrity of the bidding process” cannot form the basis for a proper decision in this case. A primary purpose of the bidding process is to obtain the best possible price on behalf of the AHTD and the taxpayer. I realize that $100,000 may not mean much to the AHTD, but when you apply this figure to every major project bid, you reach a substantially higher amount.

I think the Highway Commission was unduly alarmed that its integrity was somehow in question. It cannot fairly be said that the bid could not be understood; after all, it is there in black and white on paper. Since no other bidder could conceivably have been harmed by the silent correction of this minor error, I am persuaded that the Commission acted arbitrarily in rejecting the bid.

In the 1988 edition of Standard Specifications for Highway Construction, the AHTD exhibit 12-14-88, paragraph 104.02 states:

The Commission shall have the right to increase or decrease the extent of the work, to change the location or gradient, or the dimensions of any part of the work, provided that the length of the improvement is not increased or decreased in excess of 25% of the contract length, or that the quantities of work to be done or the materials to be furnished are not increased or decreased in money value in excess of 25 % of the total contract. Such changes shall not be considered as a waiver of any conditions of the contract or invalidate any of the provisions thereof. The Contractor shall perform the work as increased or decreased within the qualifying limits named and no allowance will be made for anticipated profits on increases or decreases so incurred.
Whenever an alteration in character of work involves any substantial change in the nature of the design or in the type of construction which materially increases or decreases the cost of performance of any contract item, the work shall be performed in accordance with the specifications and as directed but consideration may be given to appropriate adjustment in compensation based on documented evidence of changed cost.

The standard specifications book also states at paragraph 104.03 that:

The Contractor, when directed, shall perform unforeseen work for which there is no quantity in price included in the contract, or where increases or decreases in quantities are made in excess of the amounts set out in subsection 104.02, or whenever it is deemed necessary or desirable to further complete the work as contemplated. Such extra work shall be performed in accordance with the specifications and as directed.

The foregoing provisions are made expressly for such purposes as the subject matter of this lawsuit. After admitting previous deviations through the waiving of similar specifications, the AHTD has apparently now decided it has no discretion in the bidding process. It has, however, discretion to reject any and all bids as stated in the bid invitation. Had there been any real uncertainty about the amount of this bid, it would have been proper for the Commission to reject any and all bids.

The provision in the Standard Specifications which should govern the present situation is paragraph 102.08, concerning irregular proposals. This paragraph provides that irregular proposals “may” be rejected “(d) if the proposal does not contain a unit price for each pay item listed except in the case of authorized alternate pay items.” The AHTD and the majority of this court have changed the plain meaning of the word “may” to “shall.”

I fear the result of this case will be more litigation rather than less. Hereafter, if there is the slightest irregularity it will constitute an invitation to file suit and delay the bidding process and the contract work. To eliminate uncertainty, perhaps the department should adopt a policy that any deviation invalidates the bid. However, so long as it retains the discretion to act on bids, it must do so under objective standards which are reasonable and fair.

Perhaps no administrative body in the United States is regarded with greater reverence than the Arkansas State Highway Commission. They need not, therefore, become paranoid about the integrity of the bidding process.

The overreaction of the Commission is understandable, but it is still arbitrary. Apparently the fear underlying the Commission’s decision is that lawsuits will proliferate if discretion is exercised. Nevertheless, by human nature, disputes are ever present, and litigation will continue so long as we have lawyers and judges.

In my opinion, Rust was the lowest responsible bidder and should have been awarded the contract — a decision that would have saved the taxpayers of the state more than $100,000.

Hickman, J., joins dissent.


source: Caselaw Access Project

author: Tom Glaze, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Royse Nathaniel SANDERS, Jr. v. STATE of Arkansas
    CR 89-59
    776 S.W.2d 334
    Supreme Court of Arkansas
    Opinion delivered September 18, 1989

      Daniel D. Becker, Public Defender, for appellant.

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

This is an appeal from the appellant’s conviction of robbery and being a felon in possession of a firearm. He received a sentence of fifty-five years. The sole issue on appeal is whether the trial court erred in denying the appellant’s objection that the jury panel had no black members. We find no error.

The appellant, a black male, was convicted of robbing a white man. At trial, he asserted that the jury panel in Garland County, from which the appellant’s jury was picked, did not contain any black members. Appellant objected to the panel alleging that it would be highly prejudicial to have an all white jury. The trial court denied his challenge to the jury panel and entered an order stating how the jury panel had been selected. According to that order, the jury panel was selected by the use of a computer using random numbers to select names of qualified voters of Garland County. A master list of 2,065 names of qualified voters was prepared by computer. From that list, or the jury wheel, the court drew four hundred names to serve as jurors for the July 1988 term of court. There were four panels with one hundred jurors each. The members of the appellant’s jury were randomly selected from three of the four panels.

The selection of a petit jury from a representative cross section of the community is an essential component of the sixth amendment right to a jury trial. Taylor v. Louisiana, 419 U.S. 521 (1975). But, there is no requirement that the petit jury actually chosen must mirror the community and reflect the various distinctive groups in the population. Id., see also Mitchell v. State, 299 Ark. 566, 776 S.W.2d 332 (1989). A defendant in a criminal case is entitled to require that the state not deliberately or systematically deny to members of his race the right to participate, as jurors, in the administration of justice. See, e.g., Waters v. State, 271 Ark. 33, 607 S.W.2d 336 (1980). It is the state’s purposeful or deliberate denial to blacks, on account of race, of participation in the administration of justice by selection for jury service that violates the equal protection clause. Id.

In order to establish a prima facie violation of the fair-cross-section requirement, the appellant must show that (1) the group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357 (1979). Once the appellant makes a prima facie showing of racial discrimination in the jury selection process, the burden shifts to the state to justify its procedure.

Here, the appellant clearly did not meet his burden of proof. The record is void of any statistical information to show the racial make-up of the community or of the 400 jurors on the four jury panels. See Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986). In addition, the record neither reflects that the appellant ever asserted below that there was a systematic exclusion of blacks from the jury nor indicates he wanted to investigate that such an exclusion occurred. Id.

From our review of the record, there is a lack of proof as to the racial make-up of the community and the jury panels, and in addition, there is simply no showing that the underrepresentation of blacks in the appellant’s jury panel is due to systematic exclusion in the jury selection process. As stated earlier, a computer was used to randomly pick jurors from a current list of registered voters, which did not show the voter’s race. In this regard, Garland County’s jury selection process met the conditions set out in Ark. Code Ann. § 16-32-103 to -105 (1987). As we have previously held, when the jury selection law is followed — and it was here — there is no possibility of intentional exclusion of blacks from jury panels. Thomas, 289 Ark. at 74, 709 S.W.2d at 84.

For the reasons above, we affirm.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur only because I do not have time to research this issue in depth. There is something seriously amiss in the jury selection process when not one black person out of a panel of 300 prospective jurors is chosen. Clearly, a prima facie case of discrimination is established under these circumstances. The state should be charged with proving the validity of the panel. We have been furnished no figures reflecting the number of blacks residing in Garland County, although such figures are available from the Census Bureau and other compilations.

I am aware of the opinion of this court in Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986), and various United States Supreme Court opinions including Duren v. Missouri, 439 U.S. 357 (1979). Blacks are a distinctive group and are not represented at all on this panel of 300 venires. The state should be required to show some reason for the absence of this distinctive group. A list of all licensed drivers in the county might be more representative than the voter registration list. People who pay personal and real property taxes are listed in each county and could be a source from which jurors are selected. Any system obtaining the result in this case certainly needs further examination.


author: Per Curiam.

text:
    Howard CRUTCHER v. STATE of Arkansas
    RC 89-39
    775 S.W.2d 896
    Supreme Court of Arkansas
    Opinion delivered September 18, 1989

      Ronald L. Griggs, for appellant.
    No objection.
   Per Curiam.

Petitioner, Howard Crutcher, by his attorney, Ronald L. Griggs, has filed a motion for rule on the clerk. His attorney takes responsibility for the record being tendered after the ninety-day time limit for filing a record in this court. See Ark. R. App. P. 5(a).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243 (1981); In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    FARMERS & MERCHANTS BANK of Rogers, Arkansas, and Harris-McHaney Real Estate Co. v. Jack DEASON, J.W. Carden & Virginia Ann Kistler
    RC 89-37
    775 S.W.2d 909
    Supreme Court of Arkansas
    Opinion delivered September 18, 1989

      Hardy W. Croxton, Jr., for appellant.

      Jeff Slaton, for appellee.
   Per Curiam.

The Benton County Circuit Court granted a new trial with respect to a judgment for damages in favor of J.W. Carden against Farmers & Merchants Bank of Rogers, Arkansas. On appeal, this court reversed the new trial order because it had earlier been deemed denied pursuant to Ark. R. App. P. 4(c). Farmers & Merchants Bank of Rogers, Arkansas and Harris-McHaney Real Estate Co. v. Deason, 299 Ark. 167, 771 S.W.2d 749 (1989).

Prior to seeking a new trial, the bank had filed a notice of cross-appeal in the trial court. Here it is claimed that the notice of cross-appeal should be revived in view of our reinstatement of the judgment in favor of Carden. The Clerk refused to accept the record because there was no appealable order entered subsequent to our earlier decision.

Even if we were to hold that a notice of cross-appeal could be revived in these circumstances, we would not allow it in this case. The attempted notice of cross-appeal was stated as follows:

Notice is hereby given that Farmers and Merchants Bank of Rogers, Arkansas, Defendant/Cross-Appellant, having been served with Plaintiff/Cross-Appellee Jack Deason’s and Plaintiff/Cross-Appellee Virginia Ann Kistier’s Joint Notice of Appeal on June 14,1988, in favor of Defendant/Cross-Appellant Farmers and Merchants Bank and Against Plaintiffs/Cross Appellees Jack Deason and Virginia Ann Kistler.

To be effective, a notice of appeal or cross-appeal must designate the judgment, decree, order or part thereof appealed from. Ark. R. App. P. 3(3). Even if we could consider the quoted incomplete sentence to constitute a notice, it does not mention any judgment, decree, order or part thereof. While the names of two of the bank’s adversaries are mentioned, there is no mention whatever of J.W. Carden or the judgment he received against the bank. The attempted notice was ineffective.

Motion denied.


text:
    Anthony McCRANEY v. STATE of Arkansas
    RC 89-20
    775 S.W.2d 513
    Supreme Court of Arkansas
    Opinion delivered September 18, 1989

      Robert L. Scull, for movant.
    No response.
   Per Curiam.

We have previously dismissed a petition for rule on the clerk without prejudice. See McCraney v. State, 299 Ark. 410, 772 S.W.2d 597 (1989). Attorney Robert L. Scull, of Darrell F. Brown & Associates, P.A., has filed an affidavit admitting it was his fault that the record was not timely filed. Therefore, the petition for rule on the clerk is granted. A copy of this per curiam will be sent to the Committee on Professional Conduct.


text:
    Lance WINBERRY v. STATE of Arkansas
    RC 89-38
    775 S.W.2d 896
    Supreme Court of Arkansas
    Opinion delivered September 18, 1989

      Ronald L. Griggs, for appellant.
    No objection.
   Per Curiam.

Petitioner, Lance Winberry, by his attorney, Ronald L. Griggs, has filed a motion for rule on the clerk. His attorney takes responsibility for the record being tendered after the ninety-day time limit for filing a record in this court. See Ark. R. App. P. 5(a).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243 (1981); In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


author: Darrell Hickman, Justice.

text:
    James BRANDON v. STATE of Arkansas
    CR 89-130
    776 S.W.2d 345
    Supreme Court of Arkansas
    Opinion delivered September 25, 1989

      Schieffler Law Firm, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Brandon was free on a suspended imposition of a sentence for burglary when he was charged with burglary and theft involving the home and property of Mr. and Mrs. A. B. Heard of West Helena. The state not only filed charges on those offenses, but petitioned the court to revoke the suspended sentence. After a hearing, the judge found Brandon had violated a condition of his suspension and sentenced him to twenty years imprisonment. We affirm.

Five arguments are made for reversal, and all are meritless. First, Brandon asks for reversal because the court failed to conduct a preliminary revocation hearing (a final hearing was held within sixty days after the petition to revoke was filed). Ark. Code Ann. § 5-4-310(a)(l) (1987) provides for a preliminary hearing to determine if there is reasonable cause to believe the defendant has violated a condition of suspension. But a preliminary hearing is not required if the defendant is arrested for committing another criminal offense. Here, Brandon was not arrested for violating a condition of his suspension but for burglarizing the Heards’ home. The federal courts have made this distinction, which we consider a sensible one. See United States v. Saykally, 777 F.2d 1286 (7th Cir. 1985); United States v. Diaz-Burgos, 601 F.2d 983 (9th Cir. 1979); Thomas v. United States, 391 F. Supp. 202 (W.D. Pa. 1975).

Brandon’s second argument is that the trial court failed to furnish a written statement of the evidence relied on and the reasons for the revocation. See Ark. Code Ann. § 5-4-310(b)(5) (1987). He made no objection to the court’s omission which precludes our consideration of the issue. Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981).

Error is also claimed because Mr. Heard remained in the courtroom during his wife’s testimony even though the appellant had requested the witness sequestration rule. See A.R.E. Rule 615. Mr. Heard was a victim of the crime and had the right to be present notwithstanding Rule 615. See Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986); A.R.E. Rule 616.

Just before the hearing, Brandon asked for a chance to take a polygraph exam. The judge was correct in denying the request. The state did not stipulate that the results could be admitted, a prerequisite for using the results as evidence. Hayes v. State, 298 Ark. 356, 767 S.W.2d 525 (1989); see also Jordan v. State, 159 Ga. App. 716, 285 S.E.2d 71 (1981). Finally, the sufficiency of the evidence is questioned. The state must prove by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of suspension. Ark. Code Ann. § 5-4-309(d) (1987). Unless the trial judge’s decision is clearly against the preponderance of the evidence, we will not set it aside. Brewer v. State, 274 Ark. 38, 621 S.W.2d 698 (1981).

The evidence is sufficient to support the revocation. Mrs. Heard called the police at 4:30 a.m. to report an intruder. She heard him but did not see him. An officer saw Brandon walking 100 yards from the Heard house. When approached, Brandon turned away, then took two billfolds from his pocket and threw them to the ground. The billfolds contained over $700, the amount reported missing by Mrs. Heard. She identified the wallets as hers. In addition, officers found a prescription bottle with Mrs. Heard’s name on it in Brandon’s pocket.

Brandon was taken to the police station and questioned. He told officers he “did it”, but they would “have to prove it.” There is no doubt they did prove it.

Affirmed.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Rick LOGAN v. STATE of Arkansas
    CR 87-16
    776 S.W.2d 341
    Supreme Court of Arkansas
    Opinion delivered September 25, 1989

      Gunn & Borgognoni, by: Leslie Borgognoni, for appellant.

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

Rick Logan was sentenced to life imprisonment for the rape of a 17 year old mentally retarded boy. The victim was a student at the Sunshine School in Rogers. Logan was an employee of the school. We affirm the conviction.

Logan has recently appealed convictions on similar charges. In the first case, we reversed a rape conviction because an expert witness was allowed to express his opinion that the victim was telling the truth. Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989) (hereafter Logan I). In the second case, we affirmed six counts of rape and reduced one count to third degree carnal abuse. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989) (Logan II).

In this appeal, Logan raises eight issues. Two are identical to issues raised in Logan II: whether the prosecutor’s office should have been disqualified when it hired two law clerks from the defense firm and whether an information may charge rape by the alternative means of forcible compulsion or upon one who is incapable of consent because he is physically helpless. We find no error on these points and stand on our previous resolution.

We impliedly decided two other issues in this case by our holding in Logan II. Here, as in that case, the appellant moved for a change of venue due to pretrial publicity. The instant case represents the appellant’s second conviction, which occurred on June 11, 1986. The conviction in Logan II was the third, occurring one month later on July 11. Therefore, by the time of the Logan II trial, there had been publicity surrounding not one but two previous convictions. We held the trial judge did not abuse his discretion in denying a change of venue. Reviewing this record, we find nothing to indicate our decision should be different in this case.

The appellant also claims, as he did in Logan II, that the victim was incompetent to testify. The witness here easily met the test of competency. He was mildly retarded but alert and responsive to questioning.

A number of veniremen, who were called for the appellant’s first trial, were also called for this trial. None who sat on this jury actually sat on the previous jury, but some had been voir dired in the previous case. Others had been present in the courtroom during voir dire, though they were not questioned. Before trial, the appellant asked the judge to call additional jurors, for additional peremptory challenges, and to allow individual voir dire of jurors. The requests were denied.

Whether a judge summons additional jurors is a matter of discretion. Ark. Code Ann. § 16-32-108(b) (1987).The judge here did not flatly refuse to call more jurors but said he would wait to see if a jury could be chosen from the current panel. A jury was selected without resorting to an additional call, and the question is whether that jury could give the appellant a fair trial. The appellant has given us no concrete evidence that it couldn’t, and we find no abuse of discretion.

The law allows eight peremptory challenges in a non-capital felony case. Ark. Code Ann. § 16-33-305(b) (1987). The trial judge correctly denied the motion for additional challenges. We have never allowed a judge to modify this amount for any reason, and there is no constitutional right to such challenges. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, 465 U.S. 1051 (1984). See also Ross v. Oklahoma, 487 U.S. 81 (1988).

Decisions concerning individual voir dire examination are left to the discretion of the trial court. Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985). The appellant feared veniremen from the previous trial might answer questions in such a way as to taint the opinions of the “virgin” jurors. Because the record does not indicate that this occurred, the appellant has not shown he was prejudiced by the judge’s ruling. See Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), cert. denied, 466 U.S. 988 (1984); Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983).

Finally, the appellant contends two jurors, Mrs. Den-man and Mrs. Sutterfield, should have been removed for cause. Mrs. Denman did not sit on the jury so the appellant cannot complain of error. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Mrs. Sutterfield was challenged because of her responses during voir dire:

Q. Do you feel that... if you think in the back of your mind that he might be guilty but the State has not proven their case, they haven’t proven it, then how would you vote?
A. They’ll have to prove it to me.
Q. Okay.
A. And you will have to prove.
Q. Okay. What do I need to prove to you?
A. Well, you’ll have to show me that, with the witnesses that you bring, that he’s innocent.
Q. Well, now —
A. I’m not — see, you’re kind of, I think you just kind of are playing me here. I’m not having any problems with his guilt or innocence because I don’t know the man and I, I haven’t read really anything about him. I don’t subscribe to the county papers and I have very little time to watch TV, so I don’t, so don’t confuse me.

The appellant claims Mrs. Sutterfield should have been stricken for cause because she expected the defense to carry the burden of proof. A juror is presumed unbiased and the burden is on the one challenging him to show otherwise. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). The totality of Mrs. Sutterfield’s remarks do not absolutely indicate she expected the appellant to prove his innocence. The jury was instructed on the proper burden of proof and is presumed to have followed the court’s instructions. Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155, cert. denied, 484 U.S. 852 (1987). We cannot say the court abused its discretion in refusing to strike Mrs. Sutterfield from the jury.

Two days before trial, the appellant asked the court for a certificate to compel the attendance of a material, out-of-state witness, or for a continuance. The witness, Nancy Brawner, had been Logan’s supervisor and had testified previously in his behalf. She informed the lawyer three weeks before trial she would not be available. The judge found the request was made too late, and we agree.

There is no absolute right to the benefit of the statutory procedure under Ark. Code Ann. § 16-43-403 (1987), and its use is discretionary with the trial judge. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). The burden is on the movant to show good cause for a continuance, David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988), and lack of diligence in pursuing a witness may be considered by the trial judge in making his decision. Touvel v. State, 299 Ark. 375, 772 S.W.2d 347 (1989); Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980).

During closing arguments, defense counsel objected to the prosecution’s reference to an item not in evidence by slamming her hand on the table. The judge said, “Don’t you do that. I’ll put you in jail. Now what is your objection?” Counsel approached the bench where her objection was sustained. The appellant claims either the jury should have been admonished to disregard the remarks of the prosecutor and the judge or a mistrial should have been granted. Since that relief was not asked for below, we will not address it for the first time on appeal. Vick v. State, 299 Ark. 25, 770 S.W.2d 653 (1989).

The state offered evidence of change in the victim’s behavior as proof he had been sexually abused. To counter that, the appellant offered into evidence certain incidents in the victim’s history to show the victim had experienced behavioral problems for many years, not just recently. Some of the matters came into evidence through the testimony of various witnesses: the victim’s “attack,” not known to be sexual or nonsexual, of a woman in a park; his tendency to cut up items of his mother’s clothing; an incident in which he tied up two other children; and an occasion where he tied himself up.

The state asked that three matters be prohibited from mention under the rape shield law, Ark. Code Ann. § 16-42-101 (1987): reports from neighbors that the victim had been seen masturbating in public; the victim’s parents’ decision to have a vasectomy performed on him due to his sexually aggressive nature; and a 1979 report containing a mention of the victim’s participation in two homosexual incidents which he was “led into” by other children. The court refused to admit this evidence saying it was either not relevant or was more prejudicial than probative. Whether the probative value of evidence is outweighed by the danger of unfair prejudice is a matter addressed to the discretion of the trial judge, and his decision will not be disturbed absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). The appellant conceded the homosexual evidence violated the rape shield law.

Without deciding whether the rape shield statute prohibits mention of this evidence, we uphold the trial court’s decision. The masturbation incidents and the vasectomy have little, if any, relevance to the question of whether the appellant committed rape, but that evidence does have a strong tendency to disparage the victim’s character.

Evidence of the homosexual incidents was later offered by the appellant for impeachment purposes. During the victim’s testimony, he was asked by the prosecutor if the appellant was “the only one that’s ever done those bad things to you.” The victim answered yes. The appellant then wanted to introduce the report of the two homosexual incidents. The trial judge has a great deal of discretion in determining the relevancy of prior sexual conduct. Manees v. State, 274 Ark. 69, 622 S.W.2d 166 (1981). Whether the victim had such experiences or not, they were not the same or similar to forcible rape and abuse by an adult male over a period of more than a year. We find no abuse of discretion in the court’s refusal to admit this evidence.

Ark. Sup. Ct. Rule 11(f) requires us to review all errors prejudicial to the appellant in a life imprisonment case if an objection is made below. Two questions merit discussion. First, the same expert witness, Dr. Lewis, who testified in Logan I, testified in this case. In Logan I we concluded the witness gave his opinion of the truthfulness of the victim. Here, the witness was asked a hypothetical question which was essentially whether the conduct of the victim after the assaults began was consistent with that of a child who has been systematically abused. The objection was that the question bolstered the credibility of the witness and assumed facts not in evidence. The judge permitted the witness to answer, and we find no error.

The second issue concerns the jury panel. The appellant asked that jurors, who had been voir dired in the previous trial, be dismissed for cause. Here, the record indicates the jurors could follow the instructions of the court, set aside any impressions they might have had and give the appellant a fair trial. See Gardner v. State, supra. During voir dire, the jurors responded affirmatively to the following question by the prosecutor:

Do you agree with the idea that even though [the appellant] may have been convicted on another case under another factual situation, even though he’s been charged, even though he’s here going to trial, that you cannot use any of that as evidence of guilt in this case? Can you all agree to do that?

The appellant did not overcome the presumption that the jurors were unbiased, and we cannot say the trial court abused its discretion.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. My disagreement with the majority concerns the selection of the jury. During the selection process the appellant’s attorney asked one juror the question, “What do I need to prove to you?” She answered, “Well, you will have to show me that, with the witnesses that you bring, that he’s innocent.” Neither this court nor any other court should approve the seating of a juror with that kind of attitude. She obviously should have been excused for cause.

Logan was obliged to exercise his last peremptory challenge on another juror who had been on the original panel which had been called to try the appellant for his first offense. This juror was dismissed for cause at the first trial because she felt she could not be fair and impartial. However, a few weeks later, at the present trial, the court declared her to be a proper juror.

It is worth noting that at least seven of the jury panel in the present case had been extensively questioned (and excused) in the previous Logan case. In fact, 15 members of this group had been included on the panel which tried him on an earlier charge. Half of the jurors seated on the panel in the present case had been called for duty in one of the earlier Logan trials.

The appellant is serving several life sentences plus a few hundred years on prior convictions. Nothing would be lost if this court were to correct the procedure by ordering a retrial. Indeed, the bench and bar might greatly benefit from such a decision. While no trial can be perfect, we should strive to see that every trial is as error-free as possible.

It seems to me that the ordinary person can look at the facts in this case and see that the appellant did not have a fair cross-section of unbiased jurors to judge his guilt or innocence. I would, therefore, reverse and remand.


author: John I. Purtle, Justice. Darrell Hickman, Justice, Tom Glaze, Justice,

text:
    Betty BRANDON, on Her Own Behalf, and on Behalf of All Other Shareholders of Brandon Construction Company, Inc. v. BRANDON CONSTRUCTION COMPANY, INC., et al.
    89-82
    776 S.W.2d 349
    Supreme Court of Arkansas
    Opinion delivered September 25, 1989

      Davis, Cox & Wright, by; Kelly Carithers and Wm. Jackson Butt II, for appellant.

      Elrod & Lee, by: John R. Elrod, for appellee Brandon Construction Company, Inc., Gary Brandon, Phil Brandon, and Gaye Brandon Rinnert.

      Pettus Law Firm, by: Lamar Pettus, for appellee Fred Brandon.

      Estes, Estes & Gramling, by: Peter G. Estés, for appellee Maxine Brandon.
   John I. Purtle, Justice.

The appellant is a minority shareholder in a closely held family corporation. She filed suit in her capacity as a minority shareholder and as a representative of other shareholders similarly situated. The trial court granted a summary judgment and held that the appellant did not meet the requirements of fair and adequate representation of a class as required by ARCP Rule 23.1, and, further, that she did not have standing to maintain an individual action. The appellant argues that she fairly and adequately represented the interests of the minority shareholders, and, alternatively, that she should have been allowed to bring the suit as her individual action.

Fred and Maxine Brandon, the parents of the appellant, and their children are the shareholders in the Brandon Construction Company. The parents own 30 shares each and the four children own 10 shares each. The parents commenced a divorce action in 1987. At the same time they also entered into an employment agreement with each other and the corporation providing that both would receive a minimum monthly salary of $12,500.00 each. The appellant and her siblings signed a consent to this contract on March 7, 1988. On May 13, 1988, the appellant notified the corporation that she was revoking her consent. She filed suit in chancery court on October 10, 1988, in both her individual and representative capacities. She sought to halt the payment of the salaries as agreed upon, alleging waste, fraud, and a breach of the fiduciary duties to the shareholders, which resulted in injuries to the corporation. Her allegations are essentially that Fred and Maxine Brandon, officers and employees of the corporation, are dismantling the corporation and distributing its assets to themselves, without regard to the minority shareholders’ rights. (Fred and Maxine Brandon are also owners of a majority of the shares in the corporation.)

The other minority shareholders responded that the appellant did not represent their interests as minority shareholders. They disavowed her action and stated that they were content with the salaries being paid to their parents. The other minority shareholders joined the parents in a motion for summary judgment on the basis that the appellant did not adequately represent their interests, as is necessary to maintain a shareholder’s derivative action. Moreover, they argued that she had no basis for bringing her individual action against the corporation. The court ruled that she did not meet the requirements of Rule 23.1 to “adequately represent the interests of the other shareholders.” No evidence to support such holding was presented. Moreover, the court held that the appellant had no standing to bring an individual action against the corporation..

Did the appellant have standing to bring a class action on behalf of her own interests and those of the other minority shareholders? Arkansas Rules of Civil Procedure, Rule 23.1 states in part:

The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of . the shareholders or members similarly situated in enforcing the right of the corporation or association.

The pertinent part of Rule 23.1 provides that a derivative action may not be maintained unless the plaintiff fairly and adequately represents the interests of other shareholders similarly situated. We dealt with a derivative action by a minority shareholder in the case of Taylor v. Terry, 279 Ark. 97, 649 S.W.2d 392 (1983), where we stated: “Certainly, the president of a corporation owes a duty not to do an unfair or fraudulent act which will result in his private gain at the expense of the corporation.” We went on to point out that a high standard of conduct is required of an officer or director of a corporation because the office is predicated upon his having voluntarily accepted such a position of trust concerning the property of others.

Prior to the adoption of our Rules of Civil Procedure, this court discussed the rights of minority stockholders in the case of Stout v. Oates, 217 Ark. 938, 234 S.W.2d 506 (1950). Like the present case, Stout dealt with a closely held corporation in which the majority of the stock was held by a husband and wife. In upholding the action of a minority stockholder in bringing the action, this court noted that the statute of limitations does not run against preferential treatment or fraud on the part of the officers or majority shareholders until the minority stockholders know, or have an opportunity to know, that the funds have been mismanaged. In Stout, we held that the officers and directors who received illegal benefits became trustees of a constructive trust for the benefit of the stockholders, and the statute did not begin to run until the concealed wrong was discovered or should have been discovered. Obviously, under such circumstances only a minority stockholder could be expected to file an action.

Derivative suits permitted by this rule are to be undertaken on behalf of the corporation. The action may be against third parties or it may be against the officers and directors of the corporation. In Morgan v. Robertson, 271 Ark. 461, 609 S.W.2d 662 (1980), we stated:

It is, in fact, inherent in the nature of the suit itself that it is the corporation whose rights are being redressed rather than those of the individual plaintiff. It follows that the corporation is regarded as the real party in interest.

The fact that the appellant is the only person willing to continue this suit does not automatically disqualify her from individually maintaining a derivative action. The first sentence of Rule 23.1 refers to “a derivative action brought by one or more shareholders [emphasis added] or members to enforce a right of a corporation . . . .” If the rule intended to prevent one person from maintaining such an action, it would have been simple enough to require that an action be brought by “two or more shareholders.” A corporation does business through its officers and agents. However, it is the shareholders who own it. Unless individual shareholders are allowed to act to protect the corporate assets, the officers and agents could deprive the shareholders of this property by fraudulent or other illegal means.

The real distinction between a derivative and an individual action is whether it is the corporation that has been injured by the action complained of or whether it is only the individual shareholder who has suffered harm. The primary purpose of the derivative action is to allow one or more shareholders to bring a suit on behalf of the corporation. If the alleged wrong is one primarily against the corporation, the action should be brought in a derivative capacity, whether by one or more minority shareholders. On the other hand, a shareholder may sue to redress injuries received by him regardless of whether the same wrong may have injured the corporation. See 12B Fletcher, Cyclopedia of Corporations, § 5911 (Perm. Ed. 1984). Apparently the trial court believed the appellant brought this action to recover for injuries allegedly suffered by her individually. We do not so interpret the allegations.

In Thomas v. Dickson, 301 S.E.2d 49 (Ga. 1983), the Supreme Court of Georgia stated the general rule that a shareholder seeking to recover misappropriated corporate funds may only bring a derivative action. However, it noted there were exceptions to the general rule. The Thomas opinion stated the reasons for allowing a derivative action:

(1) it prevents the multiplicity of lawsuits by shareholders;
(2) it protects corporate creditors by putting the proceeds of the recovery back in the corporations; (3) it protects the interests of all shareholders by increasing the value of their shares, instead of allowing recovery by one shareholder to prejudice the rights of others not a party to the suit; and (4) it adequately compensates the injured shareholder by increasing the value of his shares.

Thomas explained that the reason for limiting suits for recovery of misappropriated corporate funds to derivative actions is to protect all interested parties: i.e. creditors, other shareholders, and directors.

The Georgia Court concluded by noting that “Mrs. Dickson was the sole injured shareholder” and that therefore the rationale undergirding the “general rule calling for corporate recovery” did not exist. The court, however, held that Mrs. Dickson was “properly allowed to bring this direct [individual] action.” (Mrs. Dickson’s derivative action was not treated in the opinion.)

The very nature of the right created by this rule is to “enforce a right of a corporation.” In the present case it appears that the appellant brought a suit on behalf of all of the shareholders of the corporation, or at least her allegations were to that effect. The actions alleged, if proven true, would destroy the corporation. On the other hand, she did not allege any particular or separate injury or loss of property to herself. The mere fact that other shareholders were willing to go along with a violation of the rights of the corporation did not foreclose the appellant from maintaining her action. Although she did not allege facts which would support an individual right of action for personal damages, she has alleged facts which would support a derivative action by a shareholder. Her allegations were that the directors and majority shareholders were committing waste, fraud, and breach of their fiduciary duties. These allegations clearly describe the kind of injury a derivative action contemplates. The mere fact that the appellant agreed to the employment contract did not bind her forever to continue to agree. Upon discovery that the agreement in effect would destroy the corporation, she had a right, if not a duty, to take action to protect the rights of the corporation. The majority of a corporation’s shareholders have no right to destroy the property rights of the minority shareholders, even if there is only one in the minority.

A derivative action may not be maintained if it is shown that the plaintiff does not fairly and adequately represent the interests of other shareholders similarly situated. By implication, the plaintiffs attorney must be qualified, experienced, and generally able to conduct the litigation. The appellees have made no allegation concerning the competency of the appellant’s legal representation. From the pleadings and the briefs we do not see any obvious inadequacies.

The burden of showing that the party bringing a derivative action does not fairly and adequately represent the interests of the shareholders is always on the defendant. Smallwood v. Pearl Brewing Company, 489 F.2d 579 (5th Cir. 1974). Although the other minority shareholders have disavowed the action of the appellant and indicated they do not wish to continue the action, she is not prohibited from doing so. As stated in Halstead Video, Inc. v. Guttillo, 115 F.R.D. 177 (N.D. Ill. 1987): “The true measure of representation under Rule 23.1 is not how many shareholders the plaintiff represents but rather how well the representative plaintiff advances the interests of similarly situated shareholders.”

The rule requires the appellant, in enforcing the rights of the corporation, to fairly and adequately represent the interests of the shareholders or members similarly situated. The real test is not the number of shareholders represented in a derivative action, but the alleged injuries and the remedies sought. The allegation in the present case is that the corporation is suffering a diminution of its assets through the overpayment of employees’ salaries. Although this allegation is conclusory, there is no specific evidence that the claim is spurious. If successful, the appellant would, at least theoretically, bring a benefit to the corporation. The fact that the value of her ownership in the corporation will be enhanced if the action is successful will be her compensation for bringing the derivative action. The wrong she asserts is one committed against the corporation, not one by the corporation. Her remedy is on behalf of the corporation, not against it. The very purpose of the rule is to allow minority shareholders to proceed in the interests of the corporation in court. There would otherwise be no need for Rule 23.1.

The trial court granted a summary judgment without considering all the evidence which the appellant wanted to present on the merits of her complaint. The allegations, if proven, are sufficient to support a derivative action by the appellant on behalf of the corporation. However, the chancellor correctly held that the facts alleged would not support an individual action by the appellant. This does not mean, however, that a “class of one” action may not be maintained as a derivative action.

The appellee’s argument that the appellant is es-topped was not presented to the trial court and cannot be considered on appeal. The case is remanded with directions to reinstate the complaint as a derivative action by the appellant on behalf of the corporation.

Affirmed in part, reversed in part and remanded.

Hickman, J., concurs.

Hays and Glaze, JJ., dissent.

Darrell Hickman, Justice,

concurring. I agree with the result reached. If on retrial the proof shows that all the stockholders are estopped from bringing this action, the case should be dismissed.

Tom Glaze, Justice,

dissenting. I dissent because the majority totally ignores the appellee’s contention that the appellant should be estopped from bringing this action. If that issue were addressed, it would be clear that the appellee’s contention has merit and that the trial court should therefore be affirmed.

The general rule is that a minority stockholder cannot have relief in equity on account of the salaries paid to corporate officers, when the salary payments have been ratified by the majority stockholders. Fletcher, Cyclopedia of Private Corporations, § 1110 (1986). See also Cunningham v. Jaffe, 251 F.Supp. 143 (D. S.C. 1966). Fletcher further provides:

A stockholder who, with knowledge of the facts, himself has given his consent to, or acquiesced in, acts of the directors or other corporate officers, or of majority stockholders, cannot ordinarily attack such acts afterwards. And this applies equally well to ultra vires acts.
* * *
But if a contract is illegal and void, as being in violation of an express prohibition, or contrary to public policy, and not merely ultra vires, the fact that a stockholder voted therefor as a director or otherwise consented or participated does not estop him from attacking its validity, although there is authority to the contrary.

Fletcher, Cyclopedia of Private Corporations, § 5862 (1986). In this regard, appellant’s complaint merely alleges waste, fraud and a breach of fiduciary duties by the directors — not that the contract is illegal and void.

The fact remains that the appellant, a minority stockholder by way of gifts from her parents, the majority stockholders, consented to and ratified the employment contract of which she now complains. This contract provided that her parents would each receive a minimum monthly salary of $12,500. All shareholders, including the appellant, consented to this contract, and made the contract a part of their property settlement agreement filed in their divorce action on April 1, 1988. That property settlement agreement read as follows:

It is the intent of the parties hereto to place control of Brandon Construction Company equally in the Husband and Wife to provide them with contracts for the continued equal control and management of the company and to provide equal compensation and provide a means by which Husband and Wife shall share equally any accumulated cash obtained by the corporation on an annual basis; that upon the execution of this agreement, the parties will obtain and cause to be delivered to the corporate secretary, with a copy to each party, an employment and management contract whereby Husband and Wife shall be employed and manage the aforesaid corporation for twenty (20) years, or until the death of either, at equal rates of compensation; it is anticipated based upon the history of the corporation’s cash flow, income, taxes and debt service requirements, that each shall be entitled to draw a gross sum of Twelve Thousand Five Hundred Dollars ($12,500.00) each per month; the dollar income accumulated by the corporation shall be distributed, if feasible, upon review by the parties hereto in an amount to be determined by the parties hereto on an equal basis.

It was some two months after consenting to the parents’ employment contract that the appellant attempted to revoke her consent. In fact, appellant is the only shareholder who is challenging the contract; all other shareholders remain in agreement. It is clear that appellant, by giving her affirmative consent to the contract, has induced her parents to rely to their detriment upon that contract. Appellant’s belated attack on the validity of that contract should therefore be barred by the principle of equitable estoppel. See Howard Bldg. Centre v. Thornton, 282 Ark. 1, 665 S.W.2d 870 (1984). I would affirm the trial court.

Hays, J., joins in this dissent.


author: John I. Purtle, Justice.

text:
    Eugene Leo LILLY v. STATE of Arkansas
    CR 89-54
    776 S.W.2d 347
    Supreme Court of Arkansas
    Opinion delivered September 25, 1989

      William R. Simpson, Jr., Public Defender and Thomas B. Devine III, Deputy Public Defender, by: Llewellyn J. Marczuk, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant, Eugene Leo Lilly, was convicted of burglary, rape, and aggravated robbery. He was sentenced to 40 years for the burglary and two life sentences for the rape and the aggravated robbery. For reversal, he argues the sufficiency of the evidence and lack of probable cause. Both arguments fail, and the judgment of the trial court is affirmed.

Prior to the incident resulting in this case, the local police had received information that the appellant was a convicted sex offender. The managers of the neighboring apartment complexes where the appellant and the victim lived had been notified of his record.

OnMayl7,1988,a person broke into the victim’s apartment and committed the offenses of burglary, rape, and aggravated robbery. The victim told the police that the assailant broke a glass window, entered the apartment, and held a gun on her while he raped her. During the rape, the attacker pressed the gun against the back of the woman’s head and repeatedly clicked the trigger. He also asked for money and, when he left, took the bedclothing with him.

The victim described her assailant as a black male about five feet nine inches tall and of medium build. She stated that he wore a stocking mask and denim jeans. Her description of the attacker corresponded to the general description of the appellant and aroused the suspicions of the investigating officers.

The police interviewed the manager of the victim’s apartment complex and learned that the appellant had visited another tenant there. They discovered that the appellant’s friend’s apartment furnished a view of the victim’s front door. The police then went to the appellant’s friend’s apartment and were informed that the appellant had visited him the night before and that he could be found at a nearby automobile service shop where both men were employed. After the police questioned the friend, he went on to work.

The police later came to the business to question the appellant. As the police approached, they saw the appellant in conversation with his friend. When the appellant noticed the police car, he approached it and asked the officers if they wanted to talk to him. They replied that they would like to discuss a rape, burglary, and robbery.

The appellant was given a Miranda warning at that time. The officers requested that he go to the station with them. He said, “I have got nothing to hide,” and voluntarily accompanied them. At the station, the police obtained the appellant’s permission to search his apartment. While the officers were away searching the apartment, the appellant left the police station. At no time had he been told either that he could or could not leave the premises. No effort was made to prevent his departure.

During their search of the appellant’s apartment, the police found a .45 caliber pistol with six live rounds in the clip; a ski mask; a denim jacket; a pair of jeans (soaking wet on a towel rack in the bath tub); and a towel bearing traces of blood. They also discovered a slip of paper with the number 133 and the license tag number NSL 046 written on it. The victim and her teenage daughter lived in apartment number 133 and drove an automobile displaying the license number NLS 046. The victim’s bedclothing was recovered from a nearby garbage dumpster.

When the appellant returned to his apartment, the officers arrested him and returned with him to the station where his Miranda warning was again given. At that time he gave a statement in which he admitted his guilt. In the statement, he said that he broke into the victim’s apartment “because I thought they [society] still owed me.” He further stated that he “went in for money and didn’t find any” and that “she [the victim] started asking me what I wanted and I said I didn’t want anything but some money and where is the money.”

Arkansas Code Annotated § 5-12-102 (1987) defines robbery in the following terms: “A person commits robbery, if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to employ physical force on another.” Aggravated robbery, under Ark. Code Ann. § 5-12-103(a)(1) (1987), occurs when one “commits robbery as defined in § 5-12-102 and . . . [i]s armed with a deadly weapon or represents by word or conduct that he is so armed . . ..” The appellant’s confession and the other evidence clearly support a finding that the appellant was guilty of aggravated robbery.

We first consider the question of the sufficiency of the evidence. The appellant moved for a directed verdict at the close of the state’s case and again at the close of all the evidence. Thus, the question of the sufficiency of the evidence is properly preserved for appeal. When the sufficiency of the evidence is at issue, the testimony is viewed in the light most favorable to the appellee, and the verdict is affirmed if there is any substantial evidence to support it. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). The facts recited above constitute substantial evidence to support the convictions. The uncontroverted physical evidence reveals that the appellant broke into the victim’s apartment for an unlawful purpose punishable by imprisonment. His own confession is substantiated by both the physical evidence and the victim’s statements. We therefore conclude that the evidence is sufficient to support the verdict.

We next consider whether the trial court erred in refusing to dismiss the charges based upon lack of probable cause to stop, detain, and arrest the appellant. Probable cause was treated by this court in Rose v. State, 294 Ark. 279, 742 S.W.2d 901 (1988), where we noted that:

We have held many times that probable cause to arrest without a warrant exists when the facts and circumstances within the collective knowledge of the officers and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense had been committed by the person arrested. ... A seizure pursuant to an arrest or any other detention that severely intrudes upon a person’s liberty must either be supported by probable cause or by clear and positive testimony that demonstrates consent.

Under the circumstances of this case, we have no difficulty in determining that the appellant voluntarily went with the police to the station the first time. The fact that he went to the station, in itself, is not sufficient to show voluntariness. However, when coupled with the other facts adduced in this case, it is clear that the appellant’s first trip to the police station was voluntary. Moreover, he voluntarily consented to a search of his apartment. The evidence found at the apartment and elsewhere, together with the appellant’s known background as a sex offender, gave the police probable cause to arrest him without a warrant.

The evidence in this case is sufficient to support a conviction on all three charges. The trial court properly refused to dismiss the charges based upon lack of probable cause. The judgment of the trial court is therefore affirmed.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice, Tom Glaze, Justice,

text:
    John ASHER v. STATE of Arkansas
    CR 88-197
    776 S.W.2d 816
    Supreme Court of Arkansas
    Opinion delivered September 25, 1989

      Michael Salamo, for petitioner.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Robert H. Dudley, Justice.

The sole issue in this speedy trial case is whether the old eighteen-month limitation or the new twelve-month limitation applies to this case. We hold that the new twelve-month limitation is applicable, and accordingly, issue a writ of prohibition.

The petitioner was arrested on February 19,1987. Upon the recommendation of a deputy prosecuting attorney, he was immediately released by a citation. See A.R.Cr.P. Rule 5.2. On March 9, 1987, a deputy prosecutor wrote to petitioner stating, “your case has been continued until further notice.” A similar letter was written to petitioner on April 15,1987. In fact, however, no case was pending because the prosecutor had not filed charges.

In a separate matter, on July 13,1987, this court issued a per curiam order which amended A.R.Cr.P. Rule 28.1 (c) to decrease the time limit for speedy trials from eighteen (18) months to twelve (12) months. The amendment provides:

Any defendant charged after October 1, 1987, in circuit court and held to bail, or otherwise lawfully set at liberty, including released from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

(Emphasis added.)

On October 9, 1987, after the amendment had gone into effect, the prosecutor finally charged petitioner with several counts of illegal drug activity. The trial court set the case for trial on October 13, 1988. Petitioner filed a motion in the trial court asking that the cases be dismissed for violation of the speedy trial rule. The motion was denied. Petitioner sought a writ of prohibition in this court. We granted a temporary stay for briefing of the matter, and now issue the Writ of Prohibition.

The State agrees with the petitioner that the time began to run on the date of arrest, February 19, 1987. See A.R.Cr.P. Rule 28.2(a). The parties’ only disagreement concerns which limitation is applicable. The petitioner accurately states that our rule is clear and definite. It provides, “any defendant charged after October 1, 1987,. . . shall be entitled to have the charge dismissed ... if not brought to trial within twelve (12) months. . . .’’The petitioner was charged after October 1,1987. The rule is not ambiguous and does not require interpretation. The twelve-month limitation applies, and the petitioner was not tried within that twelve-month period.

The State argues that such a literal reading of the rule leads to an absurd result. The argument is not convincing. The per curiam was issued on July 13,1987. It clearly provided that the twelve-month limit would apply to any defendant charged after October 1, 1987. Thus, there was a three and one-half month period between the per curiam announcing the amendment and the effective date of the amendment. The State could have charged petitioner at any time during that three and one-half month time and still had the benefit of the eighteen-month limitation. Instead, for some unexplained reason, the State waited until October 9, 1987, to charge the petitioner.

Writ granted.

Hickman, Hays, and Glaze, JJ., dissent.

Darrell Hickman, Justice,

dissenting. Once again we have the problem of interpreting one of our “procedural” rules which is an attempt to codify a principle of constitutional law — the right to a speedy trial. Our rule, A.R.Cr.P. Rule 30.1, and decisions interpreting the rule are a poor attempt to reflect that constitutional right.

The U.S. Constitution’s provision, upon which the rule is based, was adopted because citizens were being held in jail for months or even years without trial. A speedy trial was essential to their exoneration. Nowadays, that right is being perverted. A defendant, who does not want a speedy trial or cannot even demonstrate prejudice, can use this constitutional right to evade justice.

It is an absurdity to dismiss charges after 12 months, regardless of whether the accused can show prejudice or that he desires a speedy trial. Indeed, delay is a common weapon used in the defense of persons charged with crimes. A defendant does not even have to ask for a trial during the 12 month period to obtain relief under Rule 30.1. Duncan v. State, 294 Ark. 105, 740 S.W.2d 923 (1987). That is bad law. We have also held that the illness of a judge does not justify a delay in bringing a defendant to trial, even though the defendant can show no prejudice. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987). That also is bad law.

The U.S. Constitution simply does not require the blind, rigid approach we have taken in Rule 30.1. In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court declared that four factors should be considered in determining whether a defendant has been denied his right to a speedy trial: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. We ignore two of these criteria. Our focus on length of delay without regard to prejudice or the defendant’s assertion of his rights was the minority position at the time we adopted our rule. See ABA Standards Speedy Trial, § 4.1 (Approved Draft, 1968). Federal law is far more sensible. See 18 U.S.C. § 1362 (1982) which provides for mandatory dismissal but gives the judge the power to dismiss without prejudice after considering certain factors, including seriousness of the offense and the effect of dismissal on the administration of justice.

We do not dismiss charges in other situations involving a denial of constitutional rights. See, e.g., Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988) (failure to take detainee before judicial officer); O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984) (illegal arrest); A.R.Cr.P. Rule 16.2 (illegal search and seizure).

The rationale for automatic discharge is that the right to a speedy trial will not be preserved unless a harsh remedy accompanies its violation; faced with dismissal, prosecutors and judges will be prompted to attend to their cases and dockets. (The judge, not the prosecutor, must control the trial calendar. A.R.Cr.P. Rule 27.2.) The responsibility and blame should be placed where it belongs.

Judges and prosecutors should be held responsible for their duties. Freeing criminals to punish judges or prosecutors is foolish. If a speedy trial violation is found, the prosecutor who inexcusably allowed the time to elapse should be reported to the Committee on Professional Conduct, as are other criminal lawyers who fail to carry out their responsibilities. See our Per Curiam opinion dated February 5,1979, In re: Belated Appeals in Criminal Cases. Judges who cause the delay by neglecting their dockets should be reported to the Judicial Discipline and Disability Commission. See Act 637 of 1989, § 6. (Appellate judges are equally responsible to attend to their duties.)

In addition, I believe Rule 30.1 represents another instance in which we have overstepped our constitutional authority and adopted a substantive rather than a procedural rule. See Kiefer v. State, 297 Ark. 464, 762 S.W.2d 800 (1989) (Hickman, J., dissenting). While we have recognized that setting the time for bringing an accused to trial is a procedural matter, Jennings v. State, 276 Ark. 217, 633 S.W.2d 373 (1982), the provision for dismissal is essentially a substantive rule, remedial in nature. See Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976). The fear that Justice Byrd expressed when the Rules of Criminal Procedure were adopted has been realized. In re Rules of Criminal Procedure, 259 Ark. 863, 530 S.W.2d 672 (1975) (Byrd, J., dissenting). We have gone beyond any power granted to us by the legislature to enact procedural rules under Ark. Code Ann. §16-11-301 (a) (1987) and have begun to legislate. See also Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).

In the federal realm, Congress, rather than the judiciary, has promulgated rules involving speedy trials. Shortly after the decision in Barker v. Wingo, supra, the Speedy Trial Act was passed. See 18 U.S.C. §§ 3161 to 3174 (1982). The Federal Rules of Criminal Procedure contain no speedy trial provisions.

The policy decision embodied in Rule 30.1 should be the province of the legislature. If the majority insists on using this rule it should at least parallel the right guaranteed by the U.S. Constitution. We do not invade that province in similar areas of the law such as statutes of limitations in criminal prosecutions, Ark. Code Ann. § 5-1-109 (Supp. 1987), and civil actions, Ark. Code Ann. §§ 16-56-101 to 127 (1987), and we should not invade it now.

In this case no request for a speedy trial was made, and no prejudice was shown. I would order the trial to proceed.

Hays and Glaze, JJ., join.

Tom Glaze, Justice,

dissenting. This case seems simple to me. We did a poor job in amending A.R.Cr.P. Rule 28.1(c). Our purpose was to reduce the period (from eighteen months to twelve months) during which an arrested person must be tried before his or her charges are required to be dismissed. The months are generally counted from the time of the person’s arrest. See A.R.Cr.P. Rule 28.2(a). Such is the case at hand.

Unfortunately, when this court amended its Rule 28.1(c), it failed to consider what effect the change might have on persons already arrested under the old Rule (the eighteen-month limit) but not actually charged when the new Rule (the twelve-month limit) went into effect. We worded our amendment to read, in relevant part, as follows:

Any defendant charged after October 1, 1987, in circuit court . . . shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2 . . . . (Emphasis added.)

In the present case, petitioner was arrested on February 19, 1987, and he and his counsel knew then that the petitioner had eighteen months, or until August 19,1988, to be tried. However, because the petitioner was not actually charged until October 9, 1987 — eight days after our amended Rule 28.1(c) went into effect — petitioner now argues he is entitled to the shorter twelvemonth limit, which would reduce the time within which he was to be tried to February 19,1988. Petitioner supports his argument by pointing to our poorly worded twelve-month amendment which provides it applies to any defendant charged after October 1, 1987.

Of course, in wording our amendment to Rule 28.1(c), we should have said that the new limit would apply to defendants arrested and charged after October 1,1987, especially since the arrest date under the old and new Rule triggers the speedy trial limit. Nevertheless, this court is not required to give Rule 28.1(c), as amended, such a technical and literal interpretation as the petitioner suggests, especially when that construction is contrary to the Rule’s purpose and would lead to absurd results.

As I have already mentioned, petitioner was well aware that he had eighteen months within which to be tried when he was arrested. If the state failed to charge and try him within that period, Rule 28.1(c) would have required the dismissal of any charges resulting from his arrest. Again, the time limit, be it eighteen or twelve months, was intended to run from the arrest date and not from the date when charges are filed.

The majority’s construction actually renders new Rule 28.1(c) impossible to comply with in some situations. For example, if a defendant had been arrested in October 1986, but not charged until October 2,1987, no time would exist in which the state could bring a petitioner to trial. Admittedly, such a situation would be extreme, but the construction we give Rule 28.1(c), as amended, should weather any storm or situation that comes its way. Our new amendment clearly was intended to apply to defendants arrested and charged. That being so, persons arrested and charged under the old Rule would be subject to the eighteen-month limit and those arrested and charged under the Rule’s new version would have twelve-months within which to be tried. Under such a construction and application of Rule 28.1 (c), all situations would be covered and both the state and defendants would have the full benefit and measure of the times provided in the rule.

       When computing the number of days for speedy trial purposes, the Arkansas Rules of Criminal Procedure and case law allow days to be excluded from the eighteen or twelve month speedy trial time period. The state has requested that 165 days be excluded for various reasons. If the eighteen-month time limit under the old rule applies, the number of days to be excluded under the rules would properly extend the time in which the petitioner could be tried well past the trial date of October 13,1988. However, if the twelve-month limit is applied, even if all of.the 165 days requested by the state are excludable, the speedy trial time would have expired long before October 13, 1988. The threshold issue posed, then, involves whether the eighteen or twelve month limit applies and requires, at this point, no discussion of the excludable time aspects of the case.


author: Robert H. Dudley, Justice.

text:
    Stephanie BRADLEY v. Mildred FRENCH
    88-305
    776 S.W.2d 355
    Supreme Court of Arkansas
    Opinion delivered September 25, 1989

      Michael Davis, for appellant.

      Phil Stratton-, Casey Jones, Ltd.-, and Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., for appellee.
   Robert H. Dudley, Justice.

We dismiss this appeal for lack of jurisdiction. Appellant filed suit against the appellee, Mildred French, and her son, Thomas Q. French II. On September 16, 1988, the trial court, by summary judgment, dismissed appellee from the suit. Appellant’s case is still pending against the co-defendant, Thomas Q. French II. Although appellant could have asked for certification under A.R.C.P. Rule 54(b) in order to have a final and appealable order she did not do so. She simply gave notice of appeal on September 20,1988, and then filed her record and brief. On February 13, 1989, we dismissed her appeal because we lacked jurisdiction to hear the intermediate order. Bradley v. French, 297 Ark. 567, 764 S.W.2d 605 (1989).

After remand, the trial court granted a second summary judgment which differed from the first one only in that the trial court found there was no just reason for delay and finally dismissed appellee from the suit. This second summary judgment, entered on February 17, was obviously entered for the purpose of allowing an appeal under the provisions of ARCP Rule 54(b). However, the appellant has failed to give a notice of appeal from this second summary judgment. Without the timely filing of a notice of appeal, this Court is without jurisdiction to hear the appeal. LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980). Accordingly, we dismiss the appeal.

We further point out that the notation on the second judgment which purports to make it nunc pro tunc to the original judgment does not help the appellant. As we explained in Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989):

Courts are permitted to enter orders nunc pro tunc when the record is merely being made to reflect that which occurred but was not recorded due to the misprison of the clerk. A court may not, however, change the record to do that which should have been done but was not.

Here, the first appeal was dismissed because it was an intermediate order and was without a certification under ARCP Rule 54(b). The second judgment was entered for the purpose of having a certification under ARCP Rule 54(b), and not because of a misprison of the clerk in failing to record that determination.

Finally, even if the second order had been validly made nunc pro tunc to the first one, we would still be without jurisdiction because the only notice of appeal was given on September 20,1988, and the record in the instant appeal was not lodged until April 21, 1989. The record on appeal must be filed with the clerk within ninety (90) days from the filing of the first notice of appeal, unless the time is extended by order of the trial court. Here, there was no order of extension.

Appeal dismissed.

Glaze, J. not participating.


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

text:
    William Patrick KEY v. STATE of Arkansas
    CR 88-203
    776 S.W.2d 820
    Supreme Court of Arkansas
    Opinion delivered September 25, 1989

      Meredith Wineland, for petitioner.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Robert H. Dudley, Justice.

The petitioner seeks a Writ of Prohibition for an alleged violation of his speedy trial right. We deny the writ.

Petitioner was arrested on November 23, 1987, and, along with two (2) co-defendants, was later charged with capital felony murder. The twelve-month limitation is applicable. A.R.Cr.P. Rule 28.1(c). Therefore, unless there are excludable periods, it was necessary to bring petitioner to trial on or before November 23, 1988. Five days after that date, on November 28, 1988, petitioner had not been brought to trial and filed a motion to dismiss under A.R.Cr.P. Rule 28.1(c). The trial court denied the motion. Petitioner now seeks a Writ of Prohibition.

On January 27, 1988, the trial court set April 12, 1988, as the date for the trial. However, on March 25, 1988, a co-defendant moved that the trial be continued and that the April 12 trial date be used as a date for additional pre-trial motions. During a motion hearing on March 28,1988, the trial judge asked petitioner’s attorney how she responded to the motion for continuance, and she responded that she had no problems with it. The motion for a continuance was granted, and the trial court announced that the case would be reset for August 1988. The trial court’s published calendar reflects August 8-12 as trial dates for the county where the case is pending. The trial court failed to make a docket entry or enter an order setting out the continuance as an excluded period as required by A.R.Cr.P. Rule 28.3(i).

Petitioner argues that the failure to make a docket notation or enter a timely order is fatal to prosecution of the case at bar. The argument ignores our recent case of Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989), where we held that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of A.R.Cr.P. Rule 28.3(i). Such a holding is based upon the rule that one cannot agree with a ruling by the trial court and then attack that ruling on appeal. See Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982). Accordingly, we hold that the record of the trial judge’s finding that a continuance should be granted, which was agreed to by the petitioner, is sufficient to satisfy the requirements of A.R.Cr.P. Rule 28.3(i). That one excluded period is sufficient to deny the petition.

Writ denied.

Purtle, J., dissents.

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

Darrell Hickman, Justice,

concurring. I concur in the result. See my dissent in Asher v. State, 300 Ark. 57, 776 S.W.2d 816 (1989), handed down today.

Hays and Glaze, JJ., join.

John I. Purtle, Justice,

dissenting. The writ should have been granted. Without a doubt, the speedy trial time had run before the petitioner was brought to trial. I agree with the majority that “unless there are excludable periods,” it is necessary to grant the petition. However, I interpret the facts of this case in a different manner than the majority.

The petitioner was arrested on November 23, 1987, and moved for dismissal on November 28, 1988, for lack of speedy trial. The key issue in this case involves a motion and hearing which was held on March 28, 1988. During the hearing, a co-defendant moved that April 12 be set as a date to conclude the hearing on the motions. That was simply another way of requesting that the motions be disposed of at the commencement of the trial. The court wanted to continue the hearing because neither the state nor the court appeared to be ready for a ruling on the motions.

Petitioner’s counsel was present during the hearings on these motions. She did not request a continuance, but when the court asked her about continuing the motion hearing, she said she had no problem. Nothing in the judge’s question indicated that there was a pending request for a continuance of the trial date. Several entries appear in the record, but one year after the appellant’s arrest the docket failed to show an excluded period of time. Several entries had been made in the docket following the appellant’s motion for dismissal.

I think the majority places too great a burden on the petitioner and his counsel in this case. It can be said with some assurance that neither the appellant nor his attorney ever requested a continuance. Therefore, the burden was upon the state to prove a justifiable period, and the state has failed to carry its burden. The majority opinion places an affirmative duty upon the appellant to bring himself to trial. I would grant the petition for prohibition.