text:
    Helen STEELMAN v. PLANTERS PRODUCTION CREDIT ASSOCIATION
    85-190
    701 S.W.2d 119
    Supreme Court of Arkansas
    Opinion delivered December 23, 1985

      Young & Finley, by: James K. Young, for appellant.

      Penix, Penix, Mixon & Lusby, for appellant.
   Jack Holt, Jr., Chief Justice.

This is the second appeal of this case (see Steelman v. Planters Production Credit Association, 285 Ark. 217, 685 S.W.2d 800 (1985)) and, therefore, our jurisdiction attaches because of Rule 29(1)(j).

These facts were shown by the first appeal: PCA held a note and mortgage from Ronald and Anne Archer secured by a mortgage on lands in Pope and Randolph Counties. PCA foreclosed its mortgage in Randolph County but only as to the Randolph County land, making no attempt to foreclose as to the Pope County land.

Following the foreclosure in Randolph County, PCA filed suit in Pope Chancery Court on the same note and mortgage seeking to foreclose against the land in Pope County. Named as defendants were other lien holders: the First National Bank of Russellville, William and Daisey Briscoe, and Treco, Inc. Helen Steelman intervened in the suit claiming a lien by reason of an assignment from Treco. The Chancellor found that the bank’s lien was first, the Briscoe’s lien was second, PCA’s third and Helen Steelman’s was fourth. Ms. Steelman appealed and we reversed, holding that under the doctrine of merger the note to PCA was extinguished, inasmuch as the note and mortgage merged into the judgment obtained in Randolph County. See Steelman v. Planters Production Credit Association, supra. We also said:

When PCA obtained judgment on its note, it could have asked the Randolph Chancery Court to foreclose on both tracts of land, appointing a commissioner to sell the lands in Pope County. Ark. Stat. Ann. § 30-501 (Repl. 1979). This it did not do. It would be unreasonable and unfair to permit PCA to take this same note, which has been reduced to judgment, and sue again for a separate judgment in another court. “Upon the merger of the cause of action in a judgment the old debt ceases to exist and the next judgment takes its place”. 46 Am.Jur.2d, supra §384, p. 553.
The Randolph Chancery Court having assumed jurisdiction for one purpose, has retained it for all and can grant all of the relief, legal and equitable, to which the parties are entitled. Merchants & Farmers Bank v. Harris, 113 Ark. 100, 167 S.W. 706 (1914). Therefore, the Pope Chancery Court is without jurisdiction in this matter. Wasson Bank Comm’r, supra.

When the mandate was filed the Chancellor noted language in the opinion directing him to dismiss the case for lack of jurisdiction and he did so. Ms. Steelman has appealed again, contending it was error to dismiss as to all parties.

The problem that faced the court below and which we now face on appeal is that we found PCA’s note and mortgage had merged into the judgment, precluding any further action on the note by PCA. However, language in our opinion indicated that Randolph County still had jurisdiction of the case and Pope County was without jurisdiction, implying that the entire case should be resumed in Randolph County. We note at the outset that the holding of our first opinion did not rest on a question of jurisdiction but rather on the rule of merger.

In dealing with this problem we are well aware of the rule that what was decided in a case pending before us on appeal is not open to reconsideration in the same case, on a second appeal on similar facts. But the rule has limits: “The first decision is the law of the case, and must control its disposition, but the rule does not apply to expressions of opinion on matters the disposition of which was not required for the decision.” St. Louis & S.F. Rd. Co. v.Conarty, 124 Ark.454, 184 S.W. 310 (1916) citing Barney et al. v. Winona R.R. Co., 117 U.S. 228 (1886); Clark v. Hershy, 52 Ark. 473, 12 S.W. 1077 (1889) and see Duncan v. Scott, 70 Ark. 607, 70 S.W. 314 (1902).

In Barney v. Winona, supra, the United States Supreme Court was faced with a similar problem. There, the Court on the first appeal made an “inadvertent” and “erroneous” description of a government land grant involved in a property dispute. On remand the court below recognized the error but thought itself bound, by the mistake. On the second appeal of that decision, the Supreme Court confessed its own error and noted that the court below “seems to have been embarrassed by the erroneous description of the character of the grant . . . and to have felt obliged [to use that characterization in arriving at its holding.]” The trial court’s conclusion was found nonetheless, to be in error. The Supreme Court, taking full note of its erroneous declaration, also noted that such a statement was not material to its holding and therefore not ruled by the law of the case. After a clarification of the procedure necessary to settle the dispute, the case was remanded to the court below for further proceedings.

Similarly in this case, although we did not make an erroneous statement of law, the language used indicated that what we were saying should have current application to the case before us, i.e., that Randolph County should take jurisdiction of the case and that Pope County was without jurisdiction. The question of jurisdiction, however, was dictum only, by way of explaining what PCA should have done in the first instance while in Randolph County and what the jurisdictional posture would have been had PCA so acted. Randolph County could not now hear the case that PCA filed in Pope County nor could it have heard it if PCA had filed the suit there after its first judgment, rather than in Pope County. PCA was precluded from any further action on the note by virtue of the merger rule, as explained in our earlier opinion. In that sense, Pope County is also without jurisdiction, but only as to an action by PCA on its note — not because of any retained jurisdiction in Randolph County, but because PCA is precluded from further action on the note. PCA is now limited to an action only on its judgment.

The language employed in our opinion was admittedly confusing and for this we take full responsibility. With our explanation of Randolph County’s hypothetical jurisdiction including the statement that Pope County was without jurisdiction, the Chancellor obviously felt compelled to dismiss the case. “Whatever was before the court and disposed of is considered as finally settled, but the inferior court, upon the case being remanded is justified in considering and deciding any question left open by the mandate and opinion and may consult the opinion to ascertain exactly what was decided and settled.” St. Louis & S.F. Rd. Co., supra. The Chancellor tried to comply but felt bound by some of the language in the opinion to dismiss the entire case. However, as we have said, our holding in the first appeal was limited to a ruling that PCA had no further rights under the note, and the action taken by the court should have been limited to dismissing the cause only as to PCA.

Reversed and remanded.

Purtle, J., not participating.


source: Caselaw Access Project

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

license: Public Domain

text:
    Miguel Angel VASQUEZ v. STATE of Arkansas
    CR 85-107
    701 S.W.2d 357 702 S.W.2d 411

      Supreme Court of Arkansas
    Opinion delivered December 23, 1985
    [Rehearing denied January 27, 1986.]

      Jacoway & Sherman, by: William F. Sherman, for appellant.

      Steve Clark, Att’y Gen., by: Charles R. Lucus, Asst. Att’y Gen., for appellee.

       Purtle, J., not participating.

   Jack Holt, Jr., Chief Justice.

The appellant, Miguel Angel Vasquez, was convicted by a jury of first degree murder and sentenced to 40 years in prison. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(b).

On appeal, the appellant challenges the testimony of two witnesses, the sufficiency of the evidence, and the trial court’s denial of his motion for new trial. We find no merit in any of his arguments and affirm the jury’s verdict.

The appellant was charged with first degree murder for the stabbing death of Wanda Horton, whom he had been dating for about a year. According to the trial testimony, Vasquez and Mrs. Horton had been having difficulties and Vasquez was despondent about the relationship. On July 29, 1984, Vasquez spent the evening with friends and consumed a quantity of alcoholic beverages. He arrived home at 1 a.m. on the morning of July 30, 1984. Appellant apparently then called a taxi and went to the home of the deceased. By his own admission, Vasquez broke into the home. Appellant testified he was carrying a shotgun, ostensibly for protection, and he and Mrs. Horton struggled over the shotgun, at which point he blacked out. Appellant, who was also stabbed, stated that his next conscious moment was when he awakened in the hospital.

Mrs. Horton’s mother, Elsie Hicks, and son, Rocky Hales, lived in the house with her. Mrs. Hicks testified that she saw her daughter and Vasquez struggling and she witnessed the fatal stabbing. Mrs. Hicks said that Hales ran out of the house for help soon after Vasquez arrived. Hales did not testify. The State presented medical testimony that Mrs. Horton sustained two stab wounds and died as a result of a knife wound to the heart. Two knives were found at the scene, but fingerprints were not obtained from either one that matched the appellant or the victim. One of the knives had blood on it of the same blood type as the appellant’s. The State offered testimony by a forensic serologist that, when a knife is used on two people, the blood of the second person usually remains on the knife and can be identified. The appellant alleged intoxication as an affirmative defense.

Appellant first contends that the court erred by failing to instruct the State’s witness, Mrs. Hicks, to answer defense counsel’s questions and failed to instruct the jury to disregard her unresponsive answers.

Mrs. Hicks, who is between 75 and 80, stated at the outset of her testimony that she is hard of hearing. Her testimony is characterized by her difficulty in hearing and, apparently, in understanding questions asked of her by both the prosecutor and the defense attorney. Appellant’s attorney objected twice during the cross-examination of Mrs. Hicks to her unresponsiveness. Both times Mrs. Hicks’ answers were at least partially responsive. We do not reverse a judge’s decision as to the supervision of a trial unless a manifest abuse of discretion is shown. See Roberts & Charles v. State, 254 Ark. 39, 491 S.W.2d 390 (1973). When only a portion of a witness’s answer is objectionable, the trial court is not required to sustain an objection to the whole answer. It is the duty of the objector to separate the admissible part from the inadmissible. 81 Am.Jur.2d Witnesses § 436 p. 445 (1976). The judge, therefore, did not abuse his discretion by overruling appellant’s objections.

As to the court’s failure to instruct the jury to disregard the statements of Mrs. Hicks, defense counsel did not request such an instruction and cannot raise the argument now on appeal.

Appellant also challenges the sufficiency of the evidence. We have held that there must be substantial evidence to support a jury verdict. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

Appellant’s challenge to the sufficiency of the evidence is based on inconsistent statements by Mrs. Hicks and the jury’s interpretation of the evidence. We have long held that the weight of the evidence and the credibility of the witnesses are matters for the jury and not for this court. Jones, supra. “Reconciling conflicts in the testimony and weighing the evidence are within the exclusive province of the jury, and it is the jury’s prerogative to accept such portions of the testimony which it believes to be true and discard that deemed false.” Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983).

We characterized Jones, supra, as “a case of the word of the victim against that of Jones and several alibi witnesses” and upheld the jury for choosing to believe the victim, since the victim’s testimony was substantial evidence. Here, it is a case of the word of the appellant, his expert and character witnesses, against that of the victim’s mother and the State’s investigative evidence. Since the jury chose to believe Mrs. Hicks, we merely determine whether her testimony was substantial evidence. We find that it was, and uphold the jury’s verdict.

The appellant’s final contention based on the trial proceedings, is that it was error for the court to allow the testimony of Debra Corley, a rebuttal witness, since the appellant was not notified of the existence of this witness during the discovery phase of the proceedings.

Arkansas R. Crim. P. 17.1 (a) (i) requires the prosecuting attorney to disclose to defense counsel the names and addresses of persons the prosecutor intends to call as witnesses. We have held that it is not error for the court to permit the State to present witnesses without giving the requested notice, if they were in the nature of rebuttal witnesses. Perkins v. State, 258 Ark. 201, 523 S.W.2d 191 (1975); Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980), rehearing denied.

In Parker we allowed two surprise rebuttal witnesses where the witnesses were testifying as to the defendant’s mental condition. We pointed out that the defense had the burden of proving legal insanity and held, “ [i] f a witness called in rebuttal is a genuine rebuttal witness, offering evidence to rebut that presented by the defense, not pertaining to evidence the State would be obligated to present in its case in chief, then the State is not required to furnish the name of such a witness.”

Here, while cross-examining the appellant, the prosecutor asked whether he had ever threatened the victim before. The appellant replied that he had not. The prosecutor then questioned the appellant about his last telephone conversation with Mrs. Horton while she was at work. The appellant admitted that he talked to her the Friday before her death and stated that, in that conversation, they made plans to see each other. He denied that he threatened her during that phone call.

After the defense had rested, the State called Ms. Corley, a co-worker and friend of the deceased, as a rebuttal witness. Ms. Corley stated that Mrs. Horton received a phone call at work the Friday before her death, after which she appeared to be afraid. Because of her fear, Ms. Corley testified, Mrs. Horton spent the weekend with her.

A close question is presented here as to whether Ms. Corley was a true rebuttal witness, since she never identified who Mrs. Horton talked to Friday that frightened her. If the State’s purpose in calling Ms. Corley was to show premeditation on the part of the appellant, that is evidence the State would be obligated to present in its case in chief, not on rebuttal. The State, however, offered proof of premeditation outside of Ms. Corley’s testimony. The fact that the appellant arrived carrying a shotgun, broke both a screen and side door into the house, struggled with the victim, and stabbed her more than once, see Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978), provided evidence of premeditation.

Under these particular circumstances, the State’s action in calling Ms. Corley as a witness did not prejudice the appellant. We do not grant a reversal for error which is unaccompanied by a showing of prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984).

The appellant’s final basis for appeal is the court’s denial of his motion for a new trial based on a verdict which is against law or evidence and newly discovered evidence. Ark. Stat. Ann. § 43-2203 (5) and (6) (Repl. 1977). By finding the evidence sufficient to support the conviction, we have effectively ruled on the question of whether the verdict is against the law or evidence.

The newly discovered evidence offered by the appellant consists of an affidavit and testimony by a witness who, during the trial, overheard Mrs. Hicks tell Rocky Hales to say he was out of the house when the murder occurred. Appellant argues he was unable to interview Hales prior to the trial and Hales’ statement to the police was inconsistent with statements he made to neighbors the night the murder occurred. Appellant also urges as newly discovered evidence the testimony of the director of the Blood Alcohol Program for the Arkansas Department of Health, as to the appellant’s blood alcohol content on the night in question.

The trial court conducted a hearing on the appellant’s motion at which several witnesses testified and Hales’ testimony was proffered by defense counsel. In denying the motion, the trial court found that the matters raised were resolved by the trial, the issues were fairly presented, and no new evidence has been found. The court further held that none of the issues raised by appellant “would have altered the testimony of the grandmother seeing the defendant with a particular knife and thrusting it into the body of the deceased. The same apparent knife having the blood type of the defendant.” We agree.

The decision whether to grant a new trial is left to the sound discretion of the trial judge and he is not reversed in the absence of an abuse of discretion or manifest prejudice to the complaining party. Harvey v. State, 261 Ark. 47, 545 S. W.2d 913 (1977). Newly discovered evidence is one of the least favored grounds for a new trial. Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979). Critical to the inquiry into newly discovered evidence “are the diligence of the defendant in discovering the testimony and the probable effect of the testimony at the trial.” Newberry v. State, 262 Ark. 334, 557 S.W.2d 864 (1977). Evidence which is merely cumulative or an attack on the credibility of the trial witnesses is not grounds for a new trial. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984), rehearing denied, cert. denied, 105 S. Ct. 162.

Applying these rules to the case at bar, as the trial court noted, testimony about the inconsistencies of Rocky Hales’ story does not change the fact that Mrs. Hicks witnessed the stabbing. The statements instead would go to Mrs. Hicks’ credibility which is not grounds for a new trial. Hales was subpoenaed by the State and was available during the trial, yet the appellant apparently made no effort to question him at that time. Accordingly, we find the appellant was not diligent in discovering the new testimony and has failed to demonstrate that it would have had a significant effect on the testimony at the trial.

February 3, 1986

Similarly, the testimony as to the appellant’s blood alcohol content is also not newly discovered evidence. The hospital report made when appellant was admitted contained information about appellant’s blood alcohol level and was presented to the jury by the defense. Appellant did not exercise due diligence in utilizing this information before the trial. He also has failed to demonstrate prejudice, since several witnesses testified that the appellant had been drinking that night.

Accordingly, the trial court’s ruling on appellant’s motion was correct, and the jury’s verdict is upheld.

Affirmed.

Purtle, J., not participating.

Supplemental Opinion on Denial of Rehearing

Jack Holt, Jr., Chief Justice.

The appellant filed a petition for rehearing contending that the opinion failed to address the question of whether Debra Corley’s testimony that the deceased had received a phone call at work the Friday before her death, after which she appeared to be afraid, was hearsay.

In the opinion, we recounted Ms. Corley’s testimony and stated that the State’s action in calling Ms. Corley as a witness did not prejudice the appellant. We do not reverse for nonprejudicial error.

As to the substance of her testimony, however, Ms. Corley’s statement that the deceased appeared to be afraid falls within an exception to the hearsay rule for then existing mental, emotional, or physical condition. Unif. R. Evid. 803(3). That rules provides that “a statement of the declarant’s then existing state of mind, emotion, [or] sensation, . . . such as mental feeling” is not excluded by the hearsay rule. We have specifically held that “evidence of the state of mind of the victim, prior to a murder, was admissible.” Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983).

Appellant’s argument that the testimony was hearsay is based on a discussion in McCormick on Evidence § 296 p. 853-54 (3d ed. 1984). That section reads as follows:

A recurring problem arises in connection with the admissibility of accusatory statements made before the act by the victims of homicide. If the statement is merely an expression of fear, i.e. “I am afraid of D,” no hearsay problem is involved since the statement falls within the hearsay exception for. statements of mental or emotional condition. This does not, however, resolve the question of admissibility. Since nothing indicates that the victim’s emotional state is in issue in the case, the purpose of the offer of the statement must be to suggest the additional step of inferring some further fact from the existence of the emotional state. The obvious inference from the existence of fear is that some conduct of D, probably mistreatment or threats, occurred to cause the fear. The possibility of overpersuasion, the prejudicial character of the evidence, and the relative weakness and speculative nature of the inference, all argue against admissibility as a matter of relevance. Even if one is willing to allow the evidence of fear standing alone, however, the fact is that such cases seem to occur but rarely. In life, the situation assumes the form either of a statement by the victim that D has threatened him, from which fear may be inferred, or perhaps more likely a statement of fear because D has threatened him. In either event, the cases have generally excluded the evidence. Not only does the evidence possess the weaknesses suggested above for expressions of fear standing alone, but in addition it seems unlikely that juries can resist using the evidence for forbidden purposes in the presence of specific disclosure of misconduct of D. (emphasis added)

The statement made by Ms. Corley to which the appellant objects was not “accusatory”, it was merely an expression that the victim was afraid. McCormick admits that a statement which is merely an expression of fear does not present a hearsay problem since the statement falls within the 803(3) exception. The admissibility question discussed by McCormick revolves around the statement’s relevance. The appellant’s objection to Ms. Corley’s testimony was based On hearsay, not relevance. We have long held that a party cannot change the grounds for an objection on appeal.

The appellant’s other contentions in his petition for rehearing are repetitions of the arguments raised in this appeal and as such are not proper grounds for rehearing. Sup. Ct. R. 20(g).

Rehearing denied.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    Delbert LEWIS v. Onis Edward ROWLAND
    85-170
    701 S.W.2d 122
    Supreme Court of Arkansas
    Opinion delivered December 23, 1985

      The McMath Law Firm, by: Art Anderson, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., for appellee.
   Darrell Hickman, Justice.

Delbert Lewis, 37, is considered a quadriplegic who was paralyzed by polio at age 3. He is a college graduate and has worked full-time for 12 years for the Arkansas Rehabilitative Services. He is economically self-sufficient, accepting no government aid. His mother, Viola Lewis, lives with him and cares for him by tending to his personal needs and performing housekeeping chores. She drives him to and from work in a handicapped equipped van which Delbert Lewis owns.

Lewis’ mother was injured in an automobile accident on July 7, 1983. Lewis was not in the accident. Lewis’ mother filed suit against the other driver, Onis Edward Rowland, for personal injuries; Lewis joined her suit claiming loss of his mother’s services. Lewis asked the trial court to rule that he was as dependent as a child on his mother in many ways and ought to be able to recover for loss of consortium. The trial court dismissed his claim because Arkansas does not recognize such a cause of action; we agree and decline to join those states which do.

The parties concede there is no case directly on point. However, bearing on this case is the body of law covering the rights of spouses or children to monetary damages for the loss of consortium. Consortium is a word derived from Latin meaning fellowship, society, and cooperation; in law it is the right to each other’s company, affection and aid of the other in a conjugal relation. It is widely recognized that husbands and wives have a right to damages for loss of consortium. Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S.W. 885 (1915); Missouri Pacific Transportation Co. v. Miller, 227 Ark. 351, 299 S.W.2d 41 (1957).

We are in accord with a majority of states in not recognizing that a minor child has a claim for loss of consortium when a parent is injured. At least sixteen jurisdictions so hold: Arizona, California, District of Columbia, Florida, Hawaii, Kansas, Louisiana, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, and South Carolina. A growing minority of states do however allow such a claim, including Iowa, Massachusetts, Michigan, Vermont, Washington, and Wisconsin.

Several reasons are given for denying the claim to a minor child. One reason is that it is a question of public policy that ought to be decided by the legislature, not the courts. Koskela v. Martin, 91 Ill. App. 3d 568, 414 N.E.2d 1148 (1980); Borer v. American Airlines, Inc., 19 Cal. 3d 441, 138 Cal. Rptr. 302, 563 P.2d 858 (1977). In Borer, the claim for loss of consortium was made by the nine children of Patricia Borer. The court said:

Judicial recognition of a cause of action for loss of consortium, we believe, must be narrowly circumscribed. Loss of consortium is an intangible injury for which money damages do not afford an accurate measure or suitable recompense; recognition of a right to recover for such losses in the present context, moreover, may substantially increase the number of claims asserted in ordinary accident cases, the expense of settling or resolving such claims, and the ultimate liability of the defendants.

The court further stated:

. . . [S] ocial policy must at some point intervene to delimit liability. Patricia Borer, . . . foreseeably has not only a husband . . . and the children who sue here, but also parents whose right of action depends upon our decision in the companion case of Baxter v. Superior Court; foreseeably, likewise, she has brothers, sisters, cousins, inlaws, friends, colleagues, and other acquaintances who will be deprived of her companionship. No one suggests that all such persons possess a right of action for loss of Patricia’s consortium; all agree that somewhere a line must be drawn. As stated by Judge Breitel in Tobin v. Grossman, (1969) 24 N.Y.2d 609, 619, 301 N.Y.W.2d 554, 561, 249 N.E.2d 419, 424: ‘Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.’
The decision whether to limit liability for loss of consortium by denying a cause of action in the parent-child context, or to permit that action but deny any claim based upon more remote relationships, is thus a question of policy.

The court concluded:

. . . [T]aking into account all considerations which bear on this question, including the inadequacy of monetary compensation to alleviate that tragedy, the difficulty of measuring damages, and the danger of imposing extended and disproportionate liability, we should not recognize a nonstatutory cause of action for the loss of parental consortium.

Sometimes the courts will recognize a new cause of action or expand one and sometimes it is best to let the legislative body do so. We have done both. In one recent instance we declined to recognize a cause of action for wrongful birth. Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982). Until the legislature recognized strict liability, we did not. Cockman v. Welder’s Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979); Ford Motor Co. v. Reid, 250 Ark. 176, 465 S.W.2d 80 (1971). We did recognize the new tort of outrage but have attempted to limit the new tort to truly outrageous cases. M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). We have recognized that while Arkansas’ wrongful death statute does not expressly allow recovery for a child’s loss of consortium, it is a compensable claim. St. L. I.M. & S. Ry. v. Prince, 101 Ark. 315, 142 S.W. 499 (1911). Also in Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982), we recognized that children could sue parents for willful torts. Our decision in this case is based mainly on the policy consideration that if such a cause of action is to exist, it is for the legislature to create rather than the courts.

The other reasons usually given for denying a claim such as the appellant’s deserve discussion. One reason often given is that a child is not legally entitled to a parent’s love, guidance and companionship. See Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981). Parents have a legal duty to support their minor children but not the legal duty to love them.

Opening the floodgates to litigation is often cited as a reason for not recognizing a new cause of action. Koskela v. Martin, supra; Borer v. American Airlines, Inc., supra. It is not a reason to reject summarily. Theama v. City of Kenosha, 117 Wis. 2d 508, 344 N.W.2d 513 (1981). However, in this case the two claims are joined in one suit, a requirement some courts have made to overcome this objection. Weitl v. Moes, supra; Hay v. Medical Center Hospital of Vermont, 496 A.2d 939 (Vt. 1985); Ueland v. Reynolds Metal Co., 103 Wash. 2d 131, 691 P.2d 190 (1984).

Multiple claims and multiple parties are sometimes cited as reasons for not recognizing this claim because each child of the injured parent would have the right to bring suit. Koskela v. Martin, supra; Russell v. Salem Transportation Co., 61 N.J. 502, 295 A.2d 862 (1972). The courts also fear that suits would be filed for loss of services of other relatives. Borer v. American Airlines, Inc., supra. Would such a claim be just as valid for an injured aunt, uncle, or friend, especially if they are guardians or stand in loco parents. The possibilities are endless.

As a result of the increased litigation, the courts are seriously concerned with the increased cost of insurance. Society would bear the burden of the damages awarded in these actions by paying higher insurance premiums. Koskela v. Martin, supra; Borer v. American Airlines, Inc., supra.

The fact that the damages would be speculative should not be a bar, but that is a reason often used to deny such a claim. See Borer v. American Airlines, Inc., supra. Pain and suffering and loss of spousal consortium are speculative and we allow them. Hamby v. Haskins, 275 Ark. 385, 630 S.W.2d 37 (1982); Little Rock Gas & Fuel Co. v. Coppedge, supra; Missouri Pacific Transportation Co. v. Miller, supra.

Finally, there is the question of the burden placed on the tortfeasor who, through a mere negligent or unintentional act, must bear the burden of damages not only to the persons injured but also to other persons unknown and not physically injured. That would be a marked departure from existing law, which the public has come to understand and rely upon.

If we find for Delbert Lewis, we have to create a new cause of action. In order to effect the change we would first have to recognize that a child has a legal claim against its mother for love, guidance and companionship before we could recognize the same claim against a third party. This we decline to do.

Furthermore, Lewis is not a child but an adult and Lewis’ claim is not for consortium as we recognize it. Lewis has itemized his damages as follows: past and future medical expenses for stomach disorder and hypertension; past and future pain, suffering and mental anguish; loss of earnings; loss of earning capacity; past and future caretaking expenses; damage to his motor vehicle; loss of the use of his motor vehicle. The total damages claimed are $500,000. In essence, Lewis has claimed replacement costs for his mother’s services, not strictly loss of consortium.

We agree with the California Court’s reasoning in Borer, and believe this is a matter for the legislature. Because so many factors concerning public policy are involved, we decline to create a new cause of action. To recognize Lewis’ claim we would have to alter the existing legal relationship between parent and child.. We see no compelling reason to do so, and in this case we find the trial court did not err in dismissing Lewis’ complaint.

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Gennive Clara FARRIS v. Everal FARRIS
    85-121
    700 S.W.2d 371
    Supreme Court of Arkansas
    Opinion delivered December 23, 1985

      Herby Branscum, Jr., for appellant.

      Highsmith, Gregg, Hart, Farris & Rutledge, by: Josephine L. Hart, for appellee.
   Robert H. Dudley, Justice.

The two points of appeal in this case involve the division of property in a divorce.

The first point involves the division of 101.75 acres of land. The chancellor awarded an undivided quarter interest to the wife, appellant, and an undivided three quarters to the husband, appellee. We affirm the decision.

The husband’s mother and father originally owned the acreage. The father died in 1974 and the mother died in 1979. Neither estate was probated.

At the time of the mother’s death, the husband and his sister each became the owner of a one-half undivided interest as a tenant in common because, when the owner of real estate dies intestate, the title to that real estate vests immediately in the heirs, subject to the appropriate provisions for administration. Farmers Coop. Ass’n, Inc. v. Webb, 249 Ark. 277, 459 S.W.2d 815 (1970); Ark. Stat. Ann. § 61-131 (Supp. 1985). This half interest, acquired by descent, was not subject to division in the divorce action. Ark. Stat. Ann. § 34-1214(B) (Supp. 1985).

Later, in 1980, the husband and his sister entered into a family settlement agreement by which all of the parents’ property was divided, including the 101.75 acres. In the division, the sister conveyed her half of the land to the husband and his wife. The deed to that half, in the pertinent part, provides:

... do hereby grant, bargain sell and convey unto the said Everal Farris and Gennive Farris, husband and wife, and unto their heirs and assigns forever, the following lands lying in the County of Stone and State of Arkansas, to-wit: All of my right, title and interest as an heir at law of the estate of my father, Vernon I. Farris, deceased, who died on or about July, 1974, and of the estate of my mother, Ida M. Farris, deceased, who died on or about July, 1979. The only other surviving heir at law of my deceased parents is my brother, Everal Farris, the Grantee herein.

By this deed the husband and wife took the other one-half interest in the real estate as tenants by the entirety.

In summation, the husband first acquired by descent a one-half interest in the 101.75 acres. That half interest was not subject to division in the divorce action. Later, the husband and wife acquired the other half by deed as tenants by the entirety. There was no allegation of fraud or mistake in the preparation of the deed. The trial court, pursuant to Ark. Stat. Ann. § 34-1215 (Supp. 1985), properly converted this one-half interest held as tenants by the entirety to two quarter interests held as tenants in common. As a result, the husband, appellee, owned an undivided three-quarters of the 101.75 acres, and the wife, appellant, owned one-quarter.

The appellant’s second point of appeal is that the trial court erred in dividing the parties’ money. We find no merit in the argument.

The appellant questions various findings of fact by the trial judge concerning the amount of property that appellee had both at and before the date of separation. We need not discuss most of those findings in detail because, after reviewing them, we cannot say that they are clearly erroneous. We do not set aside findings of fact by a chancellor unless they are clearly erroneous. ARCP Rule 52; Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). However we are unable to determine whether one finding is erroneous.

The chancellor found that appellant had retained $4,074.00 between the date of separation and the date of divorce, and awarded one-half of that amount to appellee as marital property. The appellant does not take issue with the date, or amount, of earnings, but argues that there was “no proof whatsoever in the record that appellant had retained $4,074.00 of her earnings since the separation.” The appellant is correct in his argument. The transcript of testimony on the issue is as follows:

EXAMINATION BY THE COURT
Q How much do you get paid from NADC?
A I get paid twice a month.
Q How much do you get every two weeks?
A Could I get my check stub? I’ll have to show you.
Q Alright.
A It’s 291 every two weeks. (Witness hands check stub to Court.)
Q You get $291.10 every two weeks?
A Yes, twice a month on the 15th and the 1st.
EXAMINATION BY THE APPELLANT’S COUNSEL
Q How much money did you have in your own account when you separated?
A Probably $400.00, between four and five hundred dollars.
Q Did Mr. Farris ever use that account?
A No, he didn’t.
Q For depositing or withdrawing money?
A In my personal account?
Q Yes.
A No.
Q What money did you put in that account?
A It was my check that went into it, my check from where I worked.

The earnings from the date of separation to the date of divorce amounted to $4,074.00,. but we are unable to determine whether any of those earnings were retained. Therefore, we remand for a determination of whether the earnings were retained, and for a ruling in accordance with that finding.

Affirmed in part and remanded in part.

Purtle, J., not participating.


text:
    John Edward ZONES v. STATE of Arkansas
    CR 85-138
    702 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered December 23, 1985

      William R. Simpson, Jr., Public Defender; Howard W. Koopman, Deputy Public Defender; Thomas J. O’Hern, Deputy Public Defender; by: Deborah R. Sailings, Deputy Public Defender, for appellant.

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

At trial, the charges of capital murder, aggravated robbery, and kidnapping were submitted to the jury, and the jury found that the appellant had committed all three crimes. The trial court entered judgment of conviction only for capital murder. See Ark. Stat. Ann. § 41-105 (Repl. 1977). The appellant contends the evidence is insufficient to support the conviction for capital murder. We affirm the conviction.

On July 7,1984, at about 10:00 p.m., appellant and Herman Holland, a co-defendant, were seen together in the Palladium, a bar in Little Rock which was frequented by homosexuals. A bartender testified that appellant and Holland had drinks with the victim, James Mitchell, until about 1:00 a.m. Appellant and Mitchell were then seen with the victim in the victim’s Cadillac automobile. Appellant Holland, and the victim were next seen at another bar, Discovery, which also was frequented by homosexuals. Witnesses saw them drink there until 4:00 a.m., and the three of them were later seen on the parking lot outside the bar. The victim was never seen alive again.

Nadine Zapata testified that the next morning appellant and Holland drove up to her house in the victim’s car, and Holland told her that they had been out all night with a fellow and had stolen his car. He offered her $ 100.00 to follow them so they could dump the car. She refused. She testified that the appellant then asked Holland to ask her if she would do it for $500.00 worth of tools. Again, she refused. The victim’s burned out automobile was later found on Arch Street Pike by the railroad tracks, a short distance from appellant’s hobo home.

On either July 9 or July 10, the police picked up appellant on a different matter, but he had bandages on his head, hand, and arm at the time. He offered no explanation for his injuries.

On August 3, a Little Rock police officer attempted to arrest appellant for driving while intoxicated. Appellant jumped out of his car and ran, but was apprehended. While enroute to jail, appellant asked the officer, “What are you arresting me for? For killing that guy?”

Later, after being arrested for this murder, appellant was able to show the police not only the precise location of the victim’s body submerged in a swamp some 150 steps from a road, but the location of a tire tool submerged nearby as well. The back of the victim’s head had been smashed in.

The evidence, taken together, was sufficient to sustain the conviction for capital murder.

The appellant gave a statement to the police, and testified in court, that Holland wanted to hustle homosexuals, and that he, appellant, was an unwilling bystander to the crimes which were committed by Holland. The jury was not required to accept appellant’s testimony as uncontradicted. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). This is especially true where the testimony of the accused, probably the person most interested in the outcome of the trial, is involved. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979).

The appellant next argues that the overlap between the capital murder statutes and the first degree murder statutes violated the Due Process and Equal Protection Clauses of the Constitution of the United States. This argument has been made and rejected on numerous occasions. Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983); and Cannon v. State, 286 Ark. 242, 690 S.W.2d 725 (1985). Again, we reject the argument.

Under A.R.Cr.P. Rule 36.24 and our Rule 11(f), we have reviewed the other rulings adverse to appellant and find no erroneous prejudicial ruling.

Affirmed.

Purtle, J., not participating.


author: David Newbern, Justice.

text:
    Melinda Denise BIGELOW v. UNION COUNTY and UNION MEDICAL CENTER
    85-194
    701 S.W.2d 125
    Supreme Court of Arkansas
    Opinion delivered December 23, 1985

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

      William A. McLean, for appellee.
   David Newbern, Justice.

The issue presented here is whether a tort claim against Union County and the Union County Medical Center which is owned and run by the county was erroneously dismissed upon appeal from the county judge to the circuit court. We hold the circuit court properly dismissed the claim, and thus the decision is affirmed.

Ark. Stat. Ann. § 12-2901 (Repl. 1979) makes the county immune from tort liability for the acts of its agents and employees. Realizing she could not sue the county initially in the circuit court, the appellant presented her claim to the county judge pursuant to Ark. Stat. Ann. § 17-702 (Repl. 1980). The county had not provided a means for settling tort claims against it as is authorized, but not required, by Ark. Stat. Ann. § 12-2902 (Repl. 1979).

Upon denial of her claim by the county judge, the appellant sought a de novo review in the circuit court in accordance with Ark. Stat. Ann. § 27-2006 (Repl. 1979) which provides that the circuit court “. . . shall proceed to try all such appeals de novo as other cases at law. . . .” In his appellant review, the circuit judge held the provisions of § 12-2901 immunized the county from the appellant’s tort claim. The circuit court thus did, in the de novo review, exactly as it would have had to do if the case had been brought “as other cases at law.” We find no error.

Affirmed.

Purtle, J., not participating.


author: James M. McHaney, Sr., Special Justice.

text:
    TRANSIT HOMES, INC. and Elgin W. JONES v. John H. BELLAMY, Jr. and Grace BELLAMY
    85-93
    701 S.W.2d 126
    Supreme Court of Arkansas
    Opinion delivered December 23, 1985

      Rieves & Mayton, by: Elton A. Rieves, IV, for appellant.

      Daggett, Van Dover, Donovan & Cahoon, by: Jesse B. Daggett, for appellee.
   James M. McHaney, Sr., Special Justice.

Appellant Erwin Jones (Jones) was a codefendant with Transit Homes, Inc. (Transit) in a personal injury suit brought by plaintiff-appellees in Lee County. After a verdict for appellees was reversed and remanded by this Court and appellants were awarded court costs of $7,935 for appellants’ brief, record and filing fee, the appellants obtained a change of venue to St. Francis County. Defendant Transit then filed bankruptcy in South Carolina, and appellees were stayed from proceeding against Transit.

On September 18, 1984, appellees filed a second action against Jones in the United States District Court for the Eastern District of Arkansas, adding as a defendant the manufacturer of the mobile home by which appellee John Bellamy was allegedly injured. The stay relating to Transit was lifted by the bankruptcy court, effective October 5,1984. On that day appellees nonsuited against both defendants in the state court case and added Transit as a defendant in the federal court case.

Appellants then filed a motion in the nonsuited state court case, seeking recovery of attorneys fees and expenses incurred between June 6, 1984, and October 5, 1984, on the theory that those expenses were for work which would be useless in the federal court case, were incurred without notice to the defendants of the filing of the federal case, and were therefore recoverable under ARCP Rule 41(d). The aggregate amount claimed was $26,992.50 for attorneys’ fees and $7,681.40 for travel expenses, telephone calls, and other miscellaneous costs. The trial court held that it was not the proper forum to decide the issue since Rule 41(d) contemplates consideration of that issue by the court in which the second case was filed, here the federal court. We affirm.

The lower court’s decision in refusing to assess the claimed expenses after appellees’ nonsuit of the state court action and the filing of the complaint in federal court was correct. The state court simply no longer had jurisdiction. ARCP Rule 41(a) provides that plaintiff may nonsuit at any time before submission of the case to the jury or court. ARCP Rule 41(d) (Costs of Previously Dismissed Action) provides as follows:

“If a plaintiff who has once dismissed an action . . . commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.”

This language makes clear that “the court” is that court in which the second action has been filed and it is that court which “may make such order for the payment of costs of the action previously dismissed . . . and . . . may stay the proceedings”.

The court in the first action has no authority under Rule 41(d), once the second action is filed, to do anything in respect to ordering the payment of costs or to stay proceedings in the second action. It no longer has jurisdiction. Only the court in which the second action is pending, here the federal court, has jurisdiction to make such orders. See Gregory v. Dimoch, 286 F.(2d) 717 (C.A.2, 1961); Activox, Inc. v. Envirotech Corp., 532 F. Supp. 248 (S.D.N.Y., 1981).

The trial court went on to hold that the attorneys’ fees claimed by appellants are not allowable under Arkansas law except as specifically authorized by statute and denied any award to appellants. Brady v. Alken, 273 Ark. 147, 617 S.W.2d 358 (1981). We need not reach this issue, since the federal court has jurisdiction.

Affirmed.

Special Justice Kathryn Graves joins in the opinion.

Hickman, Purtle, and Newbern, JJ., not participating.


author: Per Curiam.

text:
    Peggy WILLETT v. STATE of Arkansas
    700 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered December 23, 1985

      Pruitt & Hodnett, by: Jerry D. Pruitt, for appellant.
    No response.
   Per Curiam.

Appellant, Peggy Willett, by her attorney, has filed for a rule on the clerk.

Her attorney, Jerry D. Pruitt, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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

Purtle, J., not participating.


text:
    HERITAGE INSURANCE COMPANY OF AMERICA v. CITY OF AUSTIN
    85-214
    695 S.W.2d 840
    Supreme Court of Arkansas
    Opinion delivered September 30, 1985

      Gill, Skokos, Simpson, Buford & Graham, P.A., by: John P. Gill; and Wood Law Firm, by: G. Keith Griffith, for appellant.
    No response by appellee.
   Per Curiam.

Appellant has petitioned for an extension of time to complete the record and for a writ of certiorari to Ms. Kim Moore, Court Reporter for the Lonoke Circuit Court, to complete the transcript of trial proceedings. Those petitions, being timely filed, are granted.

Because the petition contains allegations which raise questions as to the diligence of Ms. Moore in the performance of her duties as court reporter, the matter is referred to the Board of Certified Court Reporter Examiners for such action as the Board may deem appropriate.

IT IS SO ORDERED.

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Pat V. LIVINGSTON, M.D. v. ARKANSAS STATE MEDICAL BOARD
    85-201
    701 S.W.2d 361
    Supreme Court of Arkansas
    Opinion delivered January 13, 1986

      Huckabay, Munson, Rowlett & Tilley, P.A., for appellant.

      Cearley, Mitchell & Roachell, for appellee.
   Jack Holt, Jr., Chief Justice.

The Arkansas State Medical Board found that appellant, Dr. Pat Livingston, committed “grossly negligent or ignorant malpractice” and ordered her license suspended for 30 days. The doctor appealed to Pulaski Circuit Court where the board’s decision was upheld. It is from that holding that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(c) as this case was certified to us by the Court of Appeals to interpret Ark. Stat. Ann. § 72-613 (Repl. 1979 and Supp. 1985).

The basis of the board’s action was that Dr. Livingston had “negligently and repeatedly diagnosed and confirmed the diagnosis of pregnancy of a female patient over a period of four (4) months,” when the patient was not, in fact, pregnant. Testimony at the hearing before the board revealed that Mrs. Kathy Hooper, 23, visited Dr. Livingston seven times between September 9,1983 and January 7,1984. Mrs. Hooper testified that those visits were for obstetric purposes, since Dr. Livingston told her she was pregnant at the first visit on September 9; treated her as such during subsequent visits; and did not tell her she was not pregnant until January 7. Dr. Livingston denied having ever told Mrs. Hooper she was definitely pregnant and relies on the fact that her medical records do not reveal that specific statement was ever made. During the course of the seven visits, a pregnancy test was performed on Mrs. Hooper with positive results, she was checked for uterine enlargement, placed on vitamins, given a due date of May 6, 1984, and had three ultrasounds. The ultrasounds were performed by Lucy McDaniel, an employee of Dr. Livingston’s, who told Mrs. Hooper that the baby was so small she could not get a good picture of it and that the baby might be “hiding.” At Mrs. Hooper’s final visit, Dr. Livingston told Mrs. Hooper that she was sorry about the amount of time that had gone by, but that she thought Mrs. Hooper understood that she was probably not pregnant.

Dr. Livingston offered the testimony of Dr. Orman Simmons, an obstetrician/gynecologist practicing in Little Rock. Dr. Simmons testified that Dr. Livingston’s records were adequate and reflected an appropriate standard of care. He also testified, however, that he would have taken steps before January 7 to determine conclusively whether Mrs. Hooper was pregnant, and that it would not be up to the standard of care in the community to wait four months to tell the patient she was not pregnant, and to not seek a second opinion. Dr. Livingston admitted during her testimony, “I feel that we did let the girl go too long”, and that she should have sent her to another doctor who would have told her definitely whether she was pregnant.

The appellant argues on appeal that the trial court erred in failing to find that the decision of the appellee, the Arkansas State Medical Board, was arbitrary, capricious and characterized by an abuse of discretion.

When reviewing administrative action to determine if it is arbitrary or capricious, we determine whether the action lacks a rational basis or hinges on a finding of fact based on an erroneous view of the law. Woodyard, Comm’r v. Ark. Diversified Ins., 268 Ark. 94, 594 S.W.2d 13 (1980), rehearing denied.

The testimony at the hearing provided a rational basis for the board’s action. The appellant contends, however, that the decision hinged “on a finding of fact based on an erroneous view of the law.” In support of this contention, appellant maintains that the board held Dr. Livingston, a general practitioner, to the same standard of care as that exercised by Dr. Simmons, a specialist. Appellant claims the board thereby violated Ark. Stat. Ann. § 34-2614 (Supp. 1985) which provides that the plaintiff in an action for medical injury has the burden of proving the skill ordinarily possessed by members of the profession engaged in the same type of practice. Arkansas Stat. Ann. § 34-2613 (Supp. 1985), however, defines “action for medical injury” as “any action against a medical care provider ... to recover damages on account of medical injury.” This was an action by an administrative board reviewing the conduct of a professional, and ultimately punishing that professional. It was not an action to recover damages. The statute is therefore inapplicable.

The authorizing statute for the board’s action is Ark. Stat. Ann. § 72-613 (Repl. 1979 and Supp. 1985) which provides that the board may revoke or suspend a license if the holder has committed any acts or offenses defined to be unprofessional conduct. Included in the list of definitions is “(g) grossly negligent or ignorant malpractice.” The board’s action was not the result of an erroneous application of the law.

The other “erroneous view of the law” argued by appellant is the board’s interpretation of “grossly negligent or ignorant malpractice.” The appellant maintains there was not substantial evidence to support the board’s finding.

We affirm an agency’s decision if there is substantial evidence to support it. Partlow v. Ark. State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980); Ark. Stat. Ann. § 5-713(h)(5) (Supp. 1985). To determine whether a decision is supported by substantial evidence, we review the whole record to ascertain if it is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion, Id.

“Malpractice” is defined by Regulation 2 of the Arkansas State Medical Board to include “any professional misconduct, unreasonable lack of skill or fidelity in professional duties, evil practice, or illegal or immoral conduct in the practice of medicine and surgery.”

The appellant argues that her conduct does not fall within the category defined in the regulation. She states that even if her conduct could be considered “an unreasonable lack of skill” that this definition is only for “malpractice” and not for “grossly negligent” or “ignorant malpractice.”

Although we have not previously defined “ignorant malpractice” this court has considered the question of “gross negligence” in other contexts. We have stated our commitment “to the majority rule that willful and wanton misconduct is, as a matter of law, higher in degree than gross negligence”, St. Louis S.W. Ry. Co. v. Clemons, etc., 242 Ark. 707, 415 S.W.2d 332 (1967). The U.S. District Court, Western District, Fort Smith Division, has stated that “[g]ross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result,” Robinson Ins. & Real Estate Inc. v. Southwestern Bell Tel. Co., 366 F. Supp. 307 (1973). The district court further explained that the element of willfulness is absent in gross negligence. Id.

California has a similar medical licensing statute which includes “gross negligence” as a form of unprofessional conduct. Cal. Bus. & Prof. Code § 2234(b) (Deering 1985). Interpreting this statute, (formerly § 2361) the California Court of Appeal in Gore v. Board of Medical Quality Assur., 110 Cal. App. 3d 184, 167 Cal. Rptr. 881 (1980), also defined gross negligence as “a want of even slight care, but not necessarily involving wanton or willful misconduct; in other words, an extreme departure from the ordinary standard of care.” In finding the doctor in that case committed gross negligence, the court held:

Substantial evidence shows that he failed to exercise the standard of care in diagnosis, monitoring and treatment that is basically and routinely taught to students in medical school. Thus, management of his patient was an extreme departure from the standard of medical care, which we hold to be the equivalent of “want of even scant care” under the circumstances of this case.

Although the board did not differentiate in its finding between “ignorant malpractice” or “gross negligence” there was substantial evidence of an extreme departure from the ordinary standard of care, which constitutes gross negligence. The board had the benefit of expert testimony in reaching their decision, see Hake v. Ark. State Medical Bd., 237 Ark. 506, 374 S.W.2d 173 (1964), and we traditionally accord a great deal of deference to the findings of administrative agencies in light of their “specialization, insight through experience and more flexible procedures,” Arkansas ABC Bd. v. King, 275 Ark. 308, 629 S.W.2d 288 (1982).

Accordingly, the judgment of the trial court is affirmed.

Turtle, J., not participating.


author: George Rose Smith, Justice.

text:
    COOPER COMMUNITIES, INC. v. Jerry SARVER, Individually and as Representative of a Class
    85-203
    701 S.W.2d 364
    Supreme Court of Arkansas
    Opinion delivered January 13, 1986

      Richard H. Smith, and Friday, Eldredge & Clark, by: Michael G. Thompson, for appellant.

      Tapp Law Offices, by: J. Sky Tapp, for appellee.
   George Rose Smith, Justice.

This case has not yet been tried. The chancellor, after a hearing, granted the plaintiffs motion to allow the case to proceed as a class action under ARCP Rule 23, with Jerry Sarver representing the class. This appeal by Cooper Communities from that interlocutory order comes to us under Rule 29(l)(c) and (k). We affirm.

The appellant Communities, a corporation, was the developer of Hot Springs Village, which has grown to be a substantial community on Highway 7. The principal entrance to the Village originally consisted of a gatehouse at the highway. Before 1982, Communities built a shopping center near the gatehouse. The corporation also built a second gatehouse about 100 yards farther away from the highway than the first one. The original gatehouse had been owned by the Hot Springs Village Property Owners Association. In exchange for the corporation’s construction of the new gatehouse the Association leased the old gatehouse to the corporation for 99 years.

Communities began using the old gatehouse as an office for its real estate salesmen. A number of realtors who owned lots in the Village complained to the Arkansas Real Estate Commission that Communities was in fact maintaining a branch real estate office at the gatehouse without proper identification. The Commission sustained the complaint and required the company to comply with the governing regulations.

In January, 1985, the present suit against Communities and the Association was filed by “A Class of Owners of Real Property in Hot Springs Village.” The suit is actually being financed by several realtors who own lots in the Village, but the complaint does not identify any particular plaintiff.

The complaint alleges that the 99-year lease of the old gatehouse is invalid, because it was not authorized by 51% of the members of the Association. It is also alleged that Communities is using the gatehouse to steer visitors to properties that Communities has for sale. That course of action is asserted to be an unfair trade practice. There is also an allegation that the branch office has resulted in undue traffic congestion at the entrance to the Village. The prayer is that the lease be declared void and that Communities be enjoined from using the gatehouse as a sales facility.

The only issue before us is whether the suit should be maintained as a class action. At the hearing the plaintiffs presented three witnesses. All three were realtors having lots for sale in the Village. Two of them also have homes there. Their testimony tended to support the allegations of the complaint, that the operation of the gatehouse by Communities unfairly competes with other realtors. One witness testified that Communities’ method of operation also hurts a number of non-realtors in the Village who have their homes “for sale by owner.”

The plaintiffs also introduced about 120 identical short affidavits signed by a total, including spouses, of 184 owners of real property in the Village. Each affiant identifies his property, states that he is a member of the class of plaintiffs, requests the relief prayed, and states that his name may be used as a party plaintiff. At the hearing Communities presented two other property owners as witnesses, who played down the traffic congestion and said they did not want to be represented by the plaintiffs.

The chancellor, in ruling that the case may proceed as a class action, stressed the importance of the validity of the lease, an issue that concerns all the property owners. The plaintiffs were required to name an individual to represent the class. They selected Sarver, a real estate broker who had testified. The court ruled that the persons who had signed the affidavits would constitute the class.

In a case of this kind the trial judge has broad discretion in determining whether a class action is proper. Drew v. First Fed. S. & L. Assn. of Ft. Smith, 271 Ark. 667, 610 S.W.2d 876 (1981). Here we find no abuse of that discretion.

Civil Procedure Rule 23, governing class actions, requires that the question be of interest to many persons and that it be impractical to bring them all before the court within a reasonable time. A group comprising 184 individuals satisfies this part of the Rule. We do not agree with counsel’s argument that the mere signing of the affidavit made each affiant a party to the case. No doubt if each of them were required to join as a named plaintiff, many would prefer to be represented by their own attorney, unnecessarily complicating the handling of the case.

The Rule also requires that the questions of law or fact common to the members of the class predominate over questions affecting only individual members. Certainly that is true here, for the chancellor observed that the validity of the 99-year lease is the main issue.

Finally, the Rule requires that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. The appellant argues that there is no substantial reason why the case cannot proceed in the name of a single complaining property owner or in the names of the realtors who are the primary movers in the case. The validity of the lease of Association property is a paramount issue in the case. A properly conducted class action will bind all the owners, which would not be true if the plaintiffs were limited to one person or a few persons. The chancellor also considered the argument that the realtors are the moving force in the case, but he concluded that regardless of motives the determinative questions are the validity of the lease and the matter of traffic congestion. Both those questions go to the merits of the case rather than to the propriety of the class action.

It is also argued that Sarver, a broker, is not truly representative of the entire class. The trial judge expressed some concern about that point, because Sarver testified that if Communities offered to settle the case by closing its branch office, he as an individual would be in favor of accepting the offer and dismissing the case. The chancellor, however, observed that the court would be supervising the litigation and would have to approve any settlement that might be made. That, again, is an advantage inherent in a class action that would not be applicable to a suit by individuals.

It is our opinion that the trial court was right in deciding that the case is a proper one to be carried forward as a class action. It certainly cannot be said that the chancellor abused his broad discretion in reaching that conclusion.

Affirmed.

Purtle, J., not participating.


text:
    Darrell H. POPE v. PENNZOIL PRODUCING CO.
    85-152
    701 S.W.2d 366
    Supreme Court of Arkansas
    Opinion delivered January 13, 1986

      Bill F. Jennings, for appellant.

      John W. Unger, Jr., for appellee.
   Robert H. Dudley, Justice.

Appellant, Darrell H. Pope, contends that his one-fourth mineral interests are not leased and seeks an accounting from appellee, the owner of the working interest in a producing oil well, for all oil and gas sold. The Chancellor dismissed the petition for an accounting. We affirm.

The mineral interests at issue are under 70 acres of land in Columbia County which were owned by appellant’s father, A.G. Pope, who died intestate on July 11, 1965. Surviving A.G. Pope were his widow, Jupe O. Pope, and their four children; appellant, Jerry Bertie Duke, Gertrude Rolaine, and Garland Pope.

In 1956, nine years before his death, A.G. Pope and his wife, Jupe O. Pope, conveyed 30 of the 70 acres to one of their daughters, Gertrude Rolaine, and they then conveyed the other 40 acres to their other daughter, Bertie Duke. Both deeds contained out of the ordinary clauses which provided the conveyances were to be effective at the death of the grantors and that the grantors reserved the right to sell minerals under the land, to receive bonus money, to receive delay rentals, and to have control of the land for their natural lives.

Bertie Duke did not file her deed for record until July 14, 1965, three days after A.G. Pope’s death. Gertrude Rolaine did not file her deed for record until November 8,1965. On June 20, 1968, two and one-half years after recording the deed, Jupe Pope and Bertie Duke executed an oil and gas lease of the 40 acre tract to the appellee oil company for a term of two years. On July 2, two weeks later, Jupe Pope and Gertrude Rolaine executed an identical oil and gas lease to appellee on the 30 acre tract. Just before these initial leases expired, in mid-summer 1970, the same lessors executed renewal leases on the two tracts. The renewal leases were for a primary term of three years.

On October 17, 1971, appellee commenced drilling and on December 5,1971, completed a producing oil well. In June 1973, Jupe O. Pope and all of the heirs, including appellant, signed a division order which authorized the payment of all royalty to Jupe O. Pope for her lifetime and, in addition, provided:

THIRD: We, the undersigned, do hereby agree that all of Pennzoil Producing Company’s leasehold covering the above described tracts are in full force and effect and we do hereby adopt, ratify and confirm each of Pennzoil Producing Company’s leases covering these tracts and provided Pennzoil pays royalties in the proportions set out, same will be maintained in full force and effect.

Jupe O. Pope died on July 31,1979. Appellee Pennzoil then filed a bill of interpleader in order to determine to whom the royalty should be paid. Appellant filed a counter claim asserting that the 1956 deeds from A.G. Pope and wife to Bertie Duke and Gertrude Rolaine were ineffective to pass title. The Chancellor held that there was no delivery of the deeds and, in addition, they were intended as a will, but did not meet the statutory requirements of a will. The trial court did not decide the validity of the leases to appellee at that time, but decreed that the parties could maintain a separate action concerning the validity of the leases. In 1981, appellant filed the petition in the suit now before us, contending that his one-fourth interest in the 70 acres, which he obtained as a result of the failure of the deeds, is unleased and prayed for “an accounting of all oil and gas sold since date of first production and that all of said monies derived therefrom after pro rata cost of production be paid over to him. . . .” The appellee responded that it was a bona fide purchaser, that appellant was estopped by the ratification of the leases contained in the division order, and that appellant was barred by the combined doctrine of laches and stale demand. The trial court found each of appellee’s defenses was well taken.

The appellant contends that the trial court erred in applying the doctrine of laches to estop him from claiming his one-quarter interest back to the date of first production. The Chancellor was correct.

We have consistently held that oil and gas properties are unusual and require diligence on the part of parties claiming a property interest. Walker-Lucas-Hudson Oil Co. v. Hudson, 168 Ark. 1098, 272 S.W. 836 (1925). In Sanders v. Flenniken, 180 Ark. 303, 21 S.W.2d 430 (1929), this court cited with approval the following language from Patterson v. Hewitt, 195 U.S. 309 (1904):

There is no class of property more subject to sudden and violent fluctuations of value than mining lands. A location which today may have no salable value may in a month become worth millions. Years may be spent in working such property, apparently to no purpose, when suddenly a mass of rich ore may be discovered from which an unusual fortune is realized. Under such circumstances, persons having claims to such property are bound to the utmost diligence in enforcing them, and there is no class of cases in which the doctrine of laches has been more relentlessly enforced.

In Sanders we continued discussion of the concept as follows:

From these citations it will be seen that this court, as well as the Supreme Court of the United States, has uniformly recognized that, on account of the fluctuating and uncertain values of oil and gas lands, parties asserting title thereto must act more promptly than in ordinary cases in which the values remain practically the same.
Of course, it is equally well-settled that, when the question of laches is an issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known to him were such as to put the duty of inquiry upon a man of ordinary intelligence.

Here, the deeds which purported to convey the mineral interests under the 70 acres were recorded in 1965. At that time no oil had been discovered in the drilling unit. The initial oil and gas leases were executed in 1968 and renewed in 1970. Appellant had actual and constructive notice of these leases. Appellee, the owner of the working interest, spent large sums of money drilling from October to December 1971. Production commenced in December 1971. Appellant personally observed the drilling, the erection of the tanks, batteries, pumping units, and the laying of the pipelines. Still, he silently stood by and made no claim until December 1981, thirteen years after the initial leases had been executed, ten years after production had begun, and ten years after the value of the leases had dramatically increased. The Chancellor sagaciously noted:

Due to the risks involved in the exploration for and production of oil and gas, I find that the Plaintiff [appellant] should be barred by the doctrine of laches as to any claim at this time to his allegedly unleased mineral interest. No doubt had production ceased before the well paid out the Plaintiff certainly would make no claim to a working interest and share in the cost of drilling, but would only seek payment for his Vs royalty.

The Chancellor was correct. The appellant is barred by the doctrine of laches.

The Chancellor additionally applied the doctrine of estoppel because appellant had expressly ratified the leases. Appellant also argues that the Chancellor erred in applying estoppel for this reason.

The division order, approved by appellant’s attorney and executed by appellant in 1973, provides that appellant does “adopt, ratify, and confirm each of Pennzoil Producing Company’s leases. . . .” Normally, a division order will not constitute a conveyance of an interest in the land, minerals, or other interests. However, under some circumstances one who signs a division order may be estopped to deny that the stipulation of interests in the order is correct. 4 Williams & Meyers, Oil & Gas Law § 707 (1985). Here, appellant, the non-leasing concurrent owner, expressly ratified the leases to appellee. Absent fraud or misrepresentation such express ratification is effective to bind appellant. See, e.g. American Refining Co. v. Tidal Western Oil Corp., 264 S.W. 335 (Tex. Civ. App. 1924); 4 Williams & Meyers, Oil & Gas Law § 708 (1985). Under these conditions, detrimental reliance is not essential. Texas & Pacific Coal & Oil Co. v. Kirtley, 288 S.W. 619 (Tex. Civ. App. 1926).

Appellant tacitly acknowledges that he acquiesed in the leases but argues that they only affect his one-fourth of the one-eighth royalty interest before his mother’s death. From that basis, he argues that he did not ratify the working interest and therefore, he is entitled to an accounting of the seven-eighths working interest for his one-quarter interest in the land. The argument is without merit. When one executes or ratifies an oil and gas lease to another person in exchange for a one-eighth royalty interest, or some part thereof, he agrees to the seven-eighths interest being held by someone else. Therefore, the appellant is estopped to deny that the stipulation of interests in the division order is correct.

The Chancellor held that, in addition, the appellee had good title as a bona fide purchaser of the leasehold interests without notice. The appellant contends the ruling was in error. Since we have already upheld the ruling on the basis of the two forms of estoppel we need not discuss this assignment of error.

Appellant additionally argues that appellee will be unjustly enriched if we uphold the Chancellor. Again, the argument is without merit. Appellee spent all of the money and took all of the risk to drill and complete the well. Appellant assumed none of that risk and did not offer to pay his pro rata share of drilling until 10 years after the well was completed. There is no unjust enrichment to appellee.

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice. George Rose Smith, Justice,

text:
    STATE of Arkansas, DEPARTMENT OF FINANCE AND ADMINISTRATION, Revenue Division, and Charles D. RAGLAND, Arkansas Commissioner of Revenues v. DUNHALL PHARMACEUTICALS, INC.
    85-183
    702 S.W.2d 402
    Supreme Court of Arkansas
    Opinion delivered January 13, 1986

      Timothy J. Leathers, Joseph V. Svoboda, Wayne Zakrzw-ski, Kelly S. Jennings, John H. Theis, Ann Kell, and Joe Morphew, by: Michael D. Munns, for appellant.

      Bassett Law Firm, by: Wm. Robert Still, Jr., for appellee.
   Robert H. Dudley, Justice.

The sole issue on appeal is whether the free distribution of samples of prescription products by the appellee, Dunhall Pharmaceuticals, Inc., is subject to a sales tax. The trial court held the distribution was not taxable. We affirm.

The Arkansas Gross Receipts Tax is applicable when there is a transfer of either title or possession for a valuable consideration. Ark. Stat. Ann. § 84-1902 (Repl. 1980). Obviously, when the samples were distributed there was a transfer of title and possession. The issue is whether the distribution was for a valuable consideration. The scant determinative facts before us are contained in the following stipulation:

Between November 1, 1979 and October 31, 1982, Appellee gave samples of prescription flouride products and gels without charge to a number of Arkansas dentists.

The State argues that there was a valuable consideration in the form of advertising. That argument asks us to reverse the trial court upon sheer speculation, and not upon the stipulated facts.

The stipulation does not show the method of distribution; it does not show whether the sample contained any printing, printed materials, or whether any representations were made about them. Thus, if the samples were mailed to the dentists, no advertising was shown. If they were delivered by representatives, no representative advertising was shown. The stipulation offers no clue about the reason for the distribution. It does not reveal how particular dentists were selected as distributees or how many of them received an unknown quantity of samples. The stipulation does not tell us whether the dentists even know the name of the manufacturer or distributor of the samples. A valuable consideration in the form of advertising is simply not shown by the fact stipulation.

The stipulation contains no evidence of consideration.

Affirmed.

Purtle, J., not participating.

George Rose Smith, J., concurs.

George Rose Smith, Justice,

concurring. The court’s opinion encourages the Commissioner of Revenues to think that the giving away of free samples by the appellee would be a taxable transaction if the Commissioner had bothered to show that it has some advertising value. The tax, however, is a percentage of the “gross proceeds or gross receipts” derived from the transfer of title or possession for a valuable consideration. Ark. Stat. Ann. §§ 84-1902(c) and -1903 (Repl. 1980). What is the advertising value derived from giving away the samples in question? Surely that value is too nebulous to be measured in dollars and cents when a dentist is free to discard the sample if he prefers another brand.

The legislature knows how to tax a transaction of this kind. The sales tax expressly applies to free or complimentary tickets or passes to places of amusement and the like. The statute then declares that such tickets or passes have a value equal to the sale price of similar tickets or passes. § 84-1903 (e). The legislature, however, has not seen fit to tax the giving away of pharmaceutical samples. I do not think the courts should levy that tax.