author: Tom Glaze, Justice.

text:
    Pamela D. BALL v. ARKANSAS DEPARTMENT of COMMUNITY PUNISHMENT
    99-917
    10 S.W.3d 873
    Supreme Court of Arkansas
    Opinion delivered February 24, 2000

      Law Office of Treeca J. Dyer, P.A., by: Treeca J. Dyer, for appellant.

      Mark Pryor, Att’y Gen., by: Brian G. Brooks, Ass’t Att’y Gen., for appellees.
   Tom Glaze, Justice.

Pamela Ball brings this appeal from the trial court’s dismissal of her complaint against the Arkansas Department of Community Punishment (hereinafter “DCP” or “Department”) and its director, Paula Pumphrey, and employees, Dave Johnson and Donald Webb. The court of appeals certified this case to us, and we accept jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(1) and l-2(b)(4) and (5).

Ball, a parole officer with the DCP, was fired on September 5, 1997. Shortly before her termination, she had initiated a parole revocation hearing against a parolee represented by State Representative Michael Booker. Ball’s attorney and her father were present at the hearing, held at the Area 12 parole office in Little Rock. Field Services Administrator Dave Johnson became concerned about the situation, and attempted to have the meeting closed so that Ball’s attorney and father could not attend; however, he was unsuccessful, and the hearing proceeded. During the hearing, Booker apparently made some hearsay allegations that Ball had made threatening remarks about him. After the hearing was over, some kind of confrontation arose between Booker and Ball’s father. No one present in the hearing room heard what the two men said.

Johnson asked Donald Webb, the Area 12 Parole Supervisor, to have persons present at the hearing turn in written memoranda detailing what happened. Ball and two other DCP employees were asked for memos, but Ball refused. She demanded that Johnson put his request in writing, detailing the reasons he wanted the memo. Johnson refused to comply with this demand and had Webb instruct Ball to turn in the memo by 4:00 that afternoon or face discipline for insubordination.

Rather than turn in a memo as requested, Ball had her attorney draft a letter and fax it to Johnson. The letter stated that Ball had no knowledge of what happened between her father and Booker. In addition, Ball’s attorney stated that she was protesting the “strong-arm tactics” being used against Ball, and advised Johnson to let the matter rest. Finally, the letter instructed Johnson to contact Ball’s attorney if he had any further questions to ask of Ball.

Webb informed Ball that the letter was not sufficient and terminated her for insubordination, basing his decision not only on the fact that Ball had her attorney write the letter, but also that she had demanded Johnson’s request in writing. Ball appealed her dismissal to the DCP’s internal grievance panel, which upheld the firing. Claiming that decision was tainted because one panel member allegedly called her a “troublemaker,” Ball appealed again, this time to the State Employee Grievance Appeal Panel, or SEGAP. SEGAP reversed the lower panel, saying that Ball had not failed to comply with her supervisor’s request, but merely responded in an “unconventional way.” SEGAP decided suspension, rather than termination, was the appropriate discipline.

The DCP appealed SEGAP’s decision to Richard Weiss, Chief Fiscal Officer of the State of Arkansas. In an opinion signed by Tim Leathers, the SEGAP decision was reversed and Ball’s termination reinstated. Leathers noted that “[a] state agency, particularly one connected to law enforcement, cannot be expected to channel its reasonable requests of employees through the employee’s attorney. Public policy dictates that an agency has the authority to establish reasonable rules and orders.”

Following that appeal, Ball filed a complaint against the DCP with the Pulaski County Circuit Court, alleging wrongful termination, based on “an implied contract of employment,” and adding a claim of outrage. The DCP moved to dismiss pursuant to Ark. R. Civ. P. 12(b)(6), arguing that the state was immune from suit under Ark. Const, art. 5, § 20, that Ball was an at-will employee, and that there were insufficient facts to support an outrage claim. Subsequently, Ball filed an amended complaint naming Pumphrey, Johnson, and Webb individually and asserting that, as individuals, they were not immune. In her response to the motion to dismiss, she alleged that Ark. Code Ann. § 19-10-305(a) (Supp. 1999) waived the defendants’ tort immunity because they acted with malice and outside the scope of their employment. She also argued that her equal protection rights were violated because she was terminated in violation of the Department’s written policies. Finally, she contended that there was a factual question with respect to her outrage claim.

On December 1, 1998, the trial court entered an order dismissing the DCP on the grounds of sovereign immunity. Because the Department was immune, the court held it had no jurisdiction to entertain the suit. On May 4, 1999, the judge dismissed Pumphrey, Johnson, and Webb, finding that they were also immune from suit, and consequently his court lacked jurisdiction to hear the matter. In addition, the court noted that even if it could hear the matter, it would grant the motion to dismiss on the merits because Ball was an at-will employee, so her wrongful-discharge and breach-of-contract claims failed as a matter of law. Finally, the court stated that Ball failed to state a cause of action for outrage. From this order, Ball brings her appeal.

As an initial matter, we point out that although the trial court stated that it was granting a motion to dismiss, it appears that matters outside of the pleadings were considered in reaching this conclusion. When matters outside the pleadings are presented and not excluded by the trial court in connection with a 12(b) motion, we treat the motion as one for summary judgment under Rule 56 of the Arkansas Rules of Civil Procedure. See Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999); Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). The issue then becomes whether or not there was any genuine issue of material fact and whether the moving party was entitled to judgment as a matter of law. National Bank of Commerce v. Dow Chem. Co., 338 Ark. 752, 1 S.W.3d 443 (1999).

Ball does not challenge the trial court’s ruling as to the Department and its entitlement to sovereign immunity. Rather, she limits her argument to whether or not the Department’s employees, Pumphrey, Johnson, and Webb, are immune under Ark. Const, art. 5, § 20, and Ark. Code Ann. § 19-10-305(a) (Supp. 1999). We hold that they are.

When a suit is filed against employees of the state, § 19-10-305 provides them with immunity from civil liability for non-malicious acts occurring within the course of their employment. Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986). To determine whether a suit against state employees is in reality a suit against the State, we use the following standard, set out in Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938):

[WJhere a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability, and the state, while not a party to the record, is the real party against which relief is sought so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the state, will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent.

Beaulieu, 288 Ark. at 398 (quoting Page, supra).

Ball’s action sought reinstatement to her position and restoration of her benefits, seniority, annual and sick leave, compensatory time, and longevity bonus pay. It is clear that she sought a judgment that would have operated to control the action of the state, so the trial court was obviously correct to dismiss the complaint against the DCP. The question then becomes one of immunity for Pumphrey, Webb, and Johnson. As employees of the state, they are immune unless they acted either maliciously or outside the scope of their employment.

However, it is actually unnecessary to explore that point, because Ball was an at-will employee. In Arkansas, the general rule is that an employer or an employee may terminate an employment relationship at will. See Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1990); Gladden v. Arkansas Children’s Hospital, 292 Ark. 130, 728 S.W.2d 501 (1987). There are two basic exceptions to the at-will doctrine: (1) where an employee relies upon a personnel manual that contains an express agreement against termination except for cause; and (2) where the employment agreement contains a provision that the employee will not be discharged except for cause, even if the agreement has an unspecified term. Gladden, 292 Ark. at 136.

Neither of these exceptions applies here, because Ball had no employment agreement or contract. She attempts to rely on one section of a DCP Administrative Regulation, entitled “Disciplinary Action,” for her argument that she had an “implied” contract of employment. This section, however, provides only that an attempt should be made to apply formal disciplinary action in a progressive manner, but it further recognizes that certain situations can necessitate a deviation from the progressive discipline policy. Under Arkansas law, this is not enough to create a contract of employment, and to decide that it did “would be contrary to [this court’s] directive in Gladden, that an implied provision against the right to discharge will not be sufficient to invoke the exception.” St. Edward Mercy Med. Ctr. v. Ellison, 58 Ark. App. 100, 108, 946 S.W.2d 726, 729 (1997).

Because Ball was an at-will employee, she could have been fired for any reason, no reason, or even a morally wrong reason. Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991); Ellison, 58 Ark. App. at 105. Thus, the question of malice on the part of her employer is irrelevant.

Ball also attempts to bring herself within one other narrow exception to the employment-at-will doctrine — the public policy exception. This exception was established in Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). In that case, this court held that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state. The public policy of a state is found in its constitution and statutes, Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991), but Ball fails to point us to any statutory or constitutional provisions that would support her argument. Although she attempts to argue in her brief that she was fired as the result of the political influence of Rep. Booker and in retaliation for “blowing the whistle” on DCP’s course of conduct in the way it handles parole hearings, this is the first time she raises these points. This court will not consider an argument for the first time on appeal. Dobie v. Rogers, 339 Ark. 242, 5 S.W.3d 30 (1999).

For the reasons stated above, we hold that there was no genuine issue of material fact presented to the trial court. Ball was an at-will employee, and the Department was free to terminate her employment. Thus, we affirm the trial court’s decision, holding that the appellees are immune from suit, but we modify or clarify the dismissal to be one with prejudice.

       Ball had alleged some kind of prior difficulties with Rep. Booker, and she had requested that her attorney and father be at the hearing to make sure that Booker would not attempt to “harass or intimidate” her.

       Ball abandoned her outrage claim on appeal, so we need not address it.


source: Caselaw Access Project

author: TOM GLAZE, Justice. Ray Thornton, Justice,

license: Public Domain

text:
    Owen D. OATES v. Maria Teresa OATES
    99-108
    10 S.W.3d 861
    Supreme Court of Arkansas
    Opinion delivered February 24, 2000

      H. Oscar Hirby, for appellant.

      Herby Branscum, Jr., for appellee.
   TOM GLAZE, Justice.

This divorce case was filed by appellee Maria Teresa Oates against her husband, appellant Owen D. Oates. Maria alleged general indignities. Owen filed an answer, denying Maria’s allegations and countered, requesting that he be granted a divorce and that the parties’ liabilities and property rights be adjudicated.

At trial, Maria proceeded on her complaint and testified in support of her alleged grounds, stating that Owen no longer loved her and did not want to live with her, that she felt she had been abused mentally and emotionally, that there had been some unfaithfulness in the marriage, and that Owen had a drinking problem. Maria said the stress from all these matters made her ill. Maria further averred that she and Owen had separated on October 28, 1997, and had been apart continuously since then.

Owen’s counsel cross-examined Maria and asked her whether she was aware when they married that Owen’s job would require him to be transferred to other cities. She agreed, but said when they moved to New York, she became unhappy because she was from a small town. Maria also complained that Owen was gone from dark-to-dark. She admitted that Owen had had a drinking problem all of his life, and she had coped with it. Maria stated that she asked Owen if she could return to her home town. Later she left Owen in New York and returned to Texas where she taught and worked on her retirement. Maria would visit Owen in New York when she took her vacation. She conceded she was not interested in filing for divorce even after Owen left her in Perry, Arkansas; she begged him to stay. At this stage of Maria’s cross-examination, her counsel interrupted. The following colloquy occurred:

Mr. Branscum: I thought they had stipulated to the grounds. I don’t know that the relevance of this is — I thought the issue was the property.
Mr. JAMES: There is a question about alimony, or if you are waiving alimony, then we won’t get into that.
MR. BRANSCUM: I’ve asked for an equalization of the retirement that was acquired during the marriage in lieu of alimony.
MR. JAMES: You’re asking for one-half (V2) interest in the pension.
Mr. Branscum: Yeah.
MR. JAMES: Okay. That’s all?
Mr. Branscum: Yeah.
The COURT: Did you say “yes,” Mr. Branscum?
MR. Branscum: That is the prayer. I’ve asked for the equalization in the pension in lieu of alimony. I think that’s the way it’s pled.
The COURT: Did you understand that, Mr. James?
Mr. JAMES: Let me ask some questions.

Owen’s counsel then questioned Maria concerning her and Owen’s pensions and inquired about other property and insurance as well. After testifying, Maria called Tina Sawyer as her corroborating witness, who testified that Maria had been a resident of the state at least 90 days prior to filing this divorce action, and that Sawyer knew Maria and Owen had been separated since October of 1997. Maria then rested her case.

Owen took the stand and testified to the parties’ problems over the years and said that the longest period he and Maria lived together was four years. He stated that Maria appeared a little bit more stable when she was in Texas, but admitted their marriage never worked. Owen said, “I suppose she is aggrieved at me as we cannot have this thing happen without her finding fault. But I have no drinking problem.” The balance of Owen’s testimony bore largely on the parties’ properties and pensions in dispute. Owen’s testimony reflected he never agreed to Maria’s demand that she be awarded one-half of pension, or that the one-half amount be paid in lieu of alimony.

After both parties rested, the trial court entered a final decree, awarding Maria a divorce. The court awarded Maria 27.5% of Owen’s retirement and Owen 27.27% of Maria’s retirement and then ordered various properties it found marital to be divided or sold and the proceeds divided equally. The chancellor also found Maria to be the sole owner of inheritance property located in Texas, and divided other personal property equally. The chancellor also ordered Owen to continue Maria on his health insurance.

Owen appealed from the chancellor’s decree, raising six issues for reversal. The first issue questions whether the chancellor erred in granting Maria a divorce. In this first point, Owen argues Maria failed to corroborate her grounds for divorce. We agree. Thus, we must reverse and dismiss this case without prejudice. In so holding, the remaining issues bearing on the property awards and other matters argued will not be addressed.

The premise of Owen’s argument is that this is a contested divorce, and at no time did Maria provide an expressed waiver of the requirement of corroboration to her alleged grounds as she could have done under Ark. Code Ann. § 9-12-306(b) (Repl. 1998) (in contested suits, corroboration of the injured party’s grounds may be expressly waived in writing by the other spouse). Our courts have held that divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated. Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982); Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981). Here, Maria concedes the record reflects no writing whereby she waived corroboration of grounds. However, she submits that some sort of “understanding” had been presented to the court in a pretrial in-chambers session, but then admits that nothing in the record actually reflects a written waiver or “understanding.”

Maria argues that, while the record reveals no written waiver by Owen, she claims that such a waiver was evident from the exchanges between counsel at trial. Our review reveals that colloquy made nothing clear. Owen’s counsel questioned Maria regarding her ground allegation that she previously mentioned on direct examination, at which point Maria’s counsel interrupted and asserted that he thought they had stipulated to divorce grounds and that only the parties’ property was in issue. Owen’s counsel responded, indicating such was not the case if she was asserting a claim to alimony or to one-half of Owen’s pension. Maria’s counsel made it clear that Maria sought one-half of Owen’s pension in lieu of alimony. In short, a fair reading of Owen’s remarks reflects that he was contesting the divorce, so long as the alimony/pension issues remained unresolved.

Maria cites to Rachel v. Rachel, 294 Ark. 110, 741 S.W.2d 240 (1987), to support her proposition that Owen’s counsel waived corroboration, but the situation in Rachel was vastly different. There, the defendant-husband’s counsel specifically informed the trial court that defendant, Mr. Rachel, had waived plaintiff’s, Mrs. Rachel’s, having to corroborate her grounds. Having been informed of Mr. Rachel’s waiver, the trial court properly entered Mr. Rachel’s waiver on record, so the waiver would be in writing and meet the statutory requirement under § 9-12-306(b). In the instant case, neither Maria’s counsel nor the chancellor showed or clarified whether a waiver or so-called stipulation had been reached.

Finally, Maria’s arguments suggest that Owen had some obligation to object to her having failed to prove corroboration at trial, and that, if he had done so, Maria would have offered additional testimony. Our law is long settled that in a non-jury trial, a party who does not challenge the sufficiency of evidence does not waive the right to do so on appeal. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984); see also Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995); Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982); Ark. R. Civ. P. 50(e). As was the disposition in Harpole, we reverse and dismiss this case without prejudice.

Arnold, C.J., Brown and Thornton, JJ., dissent.

Ray Thornton, Justice,

dissenting. I respectfully dissent from the opinion of the majority, on the grounds that the decision of the trial court in granting appellee a divorce should be affirmed. The fundamental issue to this appeal is appellant’s contention that the grant of the divorce was in error because appellee failed to provide corroboration of her grounds for divorce. Appellee contends that appellant orally agreed to waive corroboration at a pre-trial conference in the judge’s chambers, an exchange which was not made a part of the record but which appellee argues was alluded to by both attorneys during the trial itself. Appellant has responded that Ark. Code Ann. § 9-12-306 (Repl. 1998) requires that in contested suits such as this, corroboration of the injured party’s grounds may be expressly waived only in writing by the other party.

Section 306 provides that: “Corroboration of the injured party’s grounds may be expressly waived in writing by the other spouse.” Id. Corroboration must be testimony of a substantial fact or circumstance which leads an impartial and reasonable mind to believe that material testimony as to a valid fact or circumstance is true; and that it was vital to a complaining spouse’s suit for divorce on this ground to show that a course of conduct pursued by the other spouse was the cause of an intolerable condition of the complaining spouse. Welch v. Welch, 254 Ark. 84, 491 S.W.2d 598 (1973).

We have previously interpreted the requirement of corroboration to include an oral waiver made in open court and recorded by the reporter. Such a waiver is just as valid as though transcribed and executed. Rachel v. Rachel, 294 Ark. 110, 741 S.W.2d 240 (1987). In that case, we relied upon Ark. R. Civ. P. 15(b), which provides that, notwithstanding Rules 10 and 11, which require that pleadings be in writing, when issues are not pleaded in writing, but are tried with the implicit consent of the parties in open court, the written pleadings may be considered to be amended as though the amendment were reduced to writing. Rachel, supra.

Appellee asserts that the oral waiver was made in chambers at a pre-trial conference, but the agreement was not reduced to writing, nor was it transcribed and made a part of the record. Through his new counsel on appeal, appellant argues that he did not give an express written waiver of the requirement of corroboration, but he does not argue on appeal that a verbal waiver was not discussed or even agreed upon. My reading of the record indicates that the two attorneys and the chancellor shared knowledge of an agreement between the parties not to contest corroboration. During cross-examination of appellee, plaintiff below, counsel for appellant began to question her about the separations between the couple and how much time the parties had actually spent living together during their thirty-one years of marriage. In objecting, appellee’s counsel stated: “Now, your Honor, I thought that they had stipulated to the grounds. I don’t know what the relevance of this is, and it — I thought the issue was the property. That was my understanding.”

Appellant’s counsel responded: “Well, it — I mean if there’s a question about alimony, or if they’re — if you all are waiving alimony then — then we won’t get into that” (emphasis supplied). Appellant’s counsel did not continue his previous line of questioning, but moved on to inquire of appellee whether she felt that she had helped appellant acquire financial benefits during the marriage. Appellant did not dispute appellee’s counsel’s statement that grounds had been stipulated. A review of the testimony elicited at trial reveals that the remainder of the questioning, particularly the cross-examination of appellee, concerns primarily the financial issues attendant to the divorce rather than a contest of the underlying grounds for divorce.

In Rachel, supra, the trial judge made a statement for the record that it had been advised that Mr. Rachel was waiving corroboration of the grounds of divorce by Mrs. Rachel, “in accordance with the statute.” The chancellor noted that such waiver should be in writing and directed the attorney charged with preparation of the order to note the waiver; however, this did not take place. Under that set of facts, we held that this recitation for the record, made in open court and recorded by the reporter, was sufficient to satisfy the requirements of the statute. Id.

The grounds presented by appellee in this case included her testimony that appellant had left her “many times” during their thirty-one years of marriage. Appellee told the court that she retired from her job in Texas to follow her husband to Perry County, then saw him “[take] off again for a whole year,” leaving her in his hometown. According to appellee, the last time appellant left her he told her he wouldn’t be back, and he sent her letters telling her he no longer loved her and did not want to live with her, so she should seek a divorce. Appellee alleged drinking problems and infidelity on the part of appellant, and it was revealed that he had kept secret from her a bank account and his purchase of real property. She also described the physical toll the stress of her marriage had placed on her, including bouts with pneumonia and hepatitis that forced her to quit her job in Morrilton. Even appellant claimed that the couple had lived together only ten years during the marriage.

The statements of counsel, and indeed, the conduct of the entire case supports the existence of an agreement by the parties that appellant would not contest the divorce on the issue of corroboration. Without an agreement between the parties that appellant would waive the requirement of corroboration, appellee would no doubt have presented additional evidence from her corroborating witness in support of her grounds for divorce. And, in the absence of such an agreement known to the chancellor, the trial court would not have granted this divorce based solely on the testimony of the two parties. The purpose of requiring corroboration is to prevent parties from obtaining a divorce by collusion. Rachel, supra. As indicated by the appeal of the granting of the divorce here, there is obviously no suggestion of collusion on the part of these parties. There are, however, certainly grounds in support of severing the bonds of matrimony between appellant and appellee.

While cases on appeal from the chancery court are tried de novo, this court does not reverse unless the findings of the trial court are clearly erroneous. We give due deference to the trial judge’s superior position to determine the credibility of the witnesses and the weight to be accorded their testimony in the light of other facts before the judge. Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985). Under the set of facts now before this court, where the statement that the parties had stipulated to grounds was made in open court by appellee’s counsel, and was not corrected by appellant, but, rather, was implicitly agreed to by appellant’s counsel’s actions and statements, I would conclude that this scenario meets the requirements set forth in the Rachel case and would therefore uphold the lower court’s granting of the divorce to appellee. The trial court here had the opportunity to observe the credibility and demeanor of both the witnesses and their counsel. Because the findings of a chancellor are due great deference by this court, and because there is no showing of collusion in the obtaining of this divorce, I respectfully dissent from the majority opinion.

Dissent.

Arnold, C.J., and Brown, J., join in this dissent.

       The chancellor also had each party retain the personal property in their possession.

       Administrative Order Number 4 provides that, unless waived on the record by the parties, it shall be the duty of any circuit, chancery, or probate court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.

       The word “only” does not appear in the statutory language. See Ark. Code Ann. § 9-12-306.


author: Donald L. Corbin, Justice.

text:
    Lela K. PHELPS, Administratrix of the Estate of Lincoln D. Phelps v. U.S. CREDIT LIFE INSURANCE COMPANY
    99-936
    10 S.W.3d 854
    Supreme Court of Arkansas
    Opinion delivered February 24, 2000

      Walters, Hamby & Verkamp, by: Bill Walters, for appellant.

      Horne, Hollingsworth & Parker, by: Allan W. Horne and Mark H. Allison, for appellee.
   Donald L. Corbin, Justice.

The sole issue in this case is whether the Sebastian County Chancery Court abused its discretion in setting the amount of attorney’s fees awarded to Appellant Lela K. Phelps for her claim against Appellee U.S. Life Credit Life Insurance Company. This is the second appeal of this matter. See Phelps v. U.S. Life Credit Life Ins. Co., 336 Ark. 257, 984 S.W.2d 425 (1999) (Phelps I). Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2 (a) (7). We find no error and affirm.

Our decision in Phelps I reflects that Appellee’s agent sold a credit fife insurance policy to Lincoln Phelps, incident to his purchase of a pickup truck on November 4, 1994. Mr. Phelps died on September 13, 1996, while coverage of the policy was in force, from an acute myocardial infarction with a chronic condition of cardiac arrhythmia. Appellant, the widow of Mr. Phelps and the administratrix of his estate, filed a claim against Appellee, seeking payment of death benefits to the creditor-beneficiary, Ford Motor Credit Company. Appellee refused to pay the claim, contending that Mr. Phelps’s application answers misrepresented his true health condition. Appellee asserted that had it known of Mr. Phelps’s heart condition, it would not have issued the policy and was therefore entitled to rescind it. The chancellor granted Appellee’s request for rescission and dismissed Appellant’s complaint. This court reversed the chancellor’s decision in Phelps I. On remand, the chancellor entered judgment in favor of Appellant, awarding her $12,699.98, plus interest of $2,075.42, and a penalty of $1,524.00. Additionally, the chancellor awarded attorney’s fees in the amount of $5,433.13 plus $651.40 for the costs on appeal.

The record on remand reflects that Appellant sought attorney’s fees in the amount of $11,812.50 for approximately 94.5 hours of work at $125.00 per hour. Appellant also sought fees in the amount of $1,250.00 for the costs to prepare and argue the postjudgment motion. The fee request was based on an itemization of tasks performed by Appellant’s attorney, Bill Walters, as well as the affidavits of four local attorneys, which reflected that a reasonable hourly rate in the area was $150.00.

Appellee challenged the accuracy of Mr. Walters’s estimation of time spent working on the case. Appellee also questioned the relevance of Appellant’s affidavits, which were taken from another case and specifically referred to the difficulty of representing policyholders on fire insurance claims where they are suspected of arson. Appellee further urged the chancellor to consider the fact that under Ark. Code Ann. § 23-79-208 (Repl. 1999), the attorney’s fee is not the property of the attorney, but is indemnity to the litigant. Thus, Appellee argued that the fee should be limited to the amount that Appellant was obligated to pay her attorney. Appellee contended that the appropriate amount would be between thirty-three and forty percent of the judgment. In support of this contention, Appellee relied on a letter from Mr. Walters to the chancellor, which reflected in part that the case was taken on a contingency-fee basis. The chancellor agreed with Appellee and awarded a fee in the amount of one-third of the judgment and penalty awarded to Appellant.

This court has interpreted section 23-79-208 as providing that “[i]n the event an insurer wrongfully refuses to pay benefits under an insurance policy, the insured may recover the overdue benefits, twelve percent damages upon the amount of the loss, and reasonable attorneys’ fees.” Northwestern Nat’l Life Ins. Co. v. Heslip, 309 Ark. 319, 326-27, 832 S.W.2d 463, 467 (1992) (quoting State Farm Fire & Cas. Co. v. Stockton, 295 Ark. 560, 565, 750 S.W.2d 945, 948 (1988)). The following factors are relevant in determining reasonable fees: (1) the experience and ability of the attorney; (2) the time and labor required to perform the service properly; (3) the amount in controversy and the result obtained in the case; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged for similar services in the local area; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client in the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney. Parker v. Southern Farm Bureau Cas. Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996); Heslip, 309 Ark. 319, 832 S.W.2d 463. While courts should be guided by the foregoing factors, there is no fixed formula in determining the reasonableness of an award of attorney’s fees. See Shepherd v. State Auto Prop. & Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993); Stockton, 295 Ark. 560, 750 S.W.2d 945. Because of its intimate acquaintance with the record and the quality of the service rendered, we recognize the superior perspective of the trial court in assessing the applicable factors. Id. Thus, we will not set aside an award of attorney’s fees absent an abuse of discretion by the trial court. Id.

Appellant argues that the chancellor abused his discretion in setting the amount of fees in this case. She asserts that the chancellor should have awarded fees in accordance with the total time Mr. Walters spent working on her case. We disagree. There was no evidence of the actual amount of time spent preparing Appellant’s case. Mr. Walters merely submitted a five-page itemization of particular tasks and the dates on which they were performed. There was no indication of the time spent on each of the tasks; rather, there was only an estimation of the total time spent performing all of the tasks. It is not known how Mr. Walters arrived at the figure of 94.5 hours. Moreover, according to his letter to the chancellor, Mr. Walters acknowledged that his office’s records were not completely accurate, stating that “we had not kept this matter entirely timed during the work we were doing on it because of it being a contingency fee case.” Thus, the total time allegedly spent on the case was merely an estimation arrived at after the fact. In any event, the time spent on a case is but one factor to consider, and we do not regard this argument as a persuasive reason to reverse the chancellor’s judgment. See Heslip, 309 Ark. 319, 832 S.W.2d 463.

Furthermore, we reject Appellant’s argument that the chancellor abused his discretion in “arbitrarily” setting a contingency fee in this case without explanation. Mr. Walters admitted in a letter to the chancellor that he had taken the case on a contingency-fee basis. The chancellor thus properly considered that factor in arriving at a reasonable fee. See Parker, 326 Ark. 1073, 935 S.W.2d 556; Heslip, 309 Ark. 319, 832 S.W.2d 463. Additionally, this court has recognized that the fee provided for in section 23-79-208 “is allowed only to reimburse an insurance policyholder or beneficiary for expenses incurred in enforcing the contract and to compensate him in engaging counsel thoroughly competent to protect his interests.” Equitable Life Assur. Society v. Rummell, 257 Ark. 90, 91, 514 S.W.2d 224, 225 (1974). The fee is not the property of the attorney; instead, it is indemnity to the litigant. Id. Thus, the fee awarded should not exceed the amount that the client is responsible for paying, otherwise the statute would be susceptible to abuse. The purpose of the statute is not to provide a windfall to attorneys; rather, it is to permit the insured to obtain competent representation. Id. Accordingly, we cannot say that the chancellor abused his discretion in awarding attorney’s fees in the amount of $5,433.13, plus costs of $651.40, on a total judgment of$16,299.40.

Affirmed.


author:
Robert L. Brown, Justice.
      Tom Glaze, Justice,

text:
    Larry James OSBORN v. STATE of Arkansas
    CR 99-584
    11 S.W.3d 528
    Supreme Court of Arkansas
    Opinion delivered February 24, 2000

      Robert N. Jeffrey, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Larry James Osborn argues as his sole point on appeal that he was denied a speedy trial under Ark. R. Crim. P. 28.1, and, as a result, the charge against him should have been dismissed. We disagree and affirm his conviction for aggravated robbery and his sentence of life imprisonment as a habitual offender.

At approximately 4:50 a.m. on the morning of May 18, 1996, Herschel Wright was loading his pickup truck in the parking lot of the Ramada Inn in Benton. His wife, Diane Wright, was in the motel room, and his grandson, Nathan, who was age seven, was with him. A car pulled into the parking lot, and the passenger, whom Wright later identified as Osborn, asked for directions. Wright got out of his pickup truck and walked over to the passenger side of the car, where Osborn asked specifically for directions to the interstate highway. Osborn then leaned over in his seat and raised up with a pistol pointed at Wright. Osborn demanded Wright’s money, and Wright gave him his wallet. The driver of the car, who was identified later as Cory Jones, said: “Give him all your money or he’ll blow you away.” Wright replied that Osborn had all his money. Th.e car sped away. It was pursued by police officers and crashed in a single-vehicle accident. Osborn was arre'sted that same day and charged with aggravated robbery.

On March 24, 1998, Osborn moved for a dismissal of the charge against him based on a speedy-trial violation. The trial court denied the motion. On April 28, 1998, Osborn petitioned this court for a writ of prohibition, also based on speedy-trial grounds. On May 15, 1998, we denied the petition without prejudice to raise the same issue on appeal.

Osborn was tried by a jury on June 4, 1998, and convicted and sentenced as previously stated. Following entry of the judgment, Osborn moved for a new trial based on the fact that three jurors had been misled by the prosecutor’s closing argument regarding Osborn’s criminal record. The trial court heard testimony on this point. The court set aside the sentence and granted Osborn a new sentencing trial. The State appealed the grant of a new trial, and this court reversed and ordered that the original sentence be reinstated. State v. Osborn, 337 Ark. 172, 988 S.W.2d 485 (1999).

The essence of Osborn’s point on appeal is that he was tried 747 days after his arrest. This exceeded the twelve-month requirement by 382 days. Of those days, he concedes that 218 days were due to his requests for continuances and 64 days were caused by his objection to the trial date set for April 20, 1998. This leaves 100 days over the twelve-month limit. At issue in this appeal are 118 days that accrued between the dates of December 4, 1997, and April 1, 1998. If the full 118 days were properly excluded by the trial court, there was no speedy-trial violation.

After Osborn was granted the continuances, his trial was set for October 17, 1997. He failed to appear for trial'on that date and was later arrested in the state of Colorado and returned to Benton on December 4, 1997. Osborn now contends that his trial should have been set within 18 days after his return from Colorado to comply with speedy-trial requirements. He further contends that if the trial delay was due to congestion of the trial docket, no written order or docket notation was made on December 4, 1997, to show that the congestion was due to exceptional circumstances, as required by Ark. R. Crim. P. 28.3(b). Also, he maintains that the excluded period caused by congestion was required to be set out in a court order or docket entry. See Ark. R. Crim. P. 28.3(i). In support of his argument, Osborn directs our attention to Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991). In Hicks, we held that congestion alone did not constitute exceptional circumstances to justify breaching the speedy-trial rule. See id. at 397, 808 S.W.2d at 351.

We do not consider Hicks v. State, supra, to be precedent for deciding the instant case. Osborn’s trial was set for October 17, 1997, and he failed to appear. The duration of a defendant’s unavailability is clearly an excludable period for speedy-trial purposes. See Ark. R. Crim. P. 28.3(e). Moreover, once he was arrested and returned to Arkansas, he was not entitled to a trial within 18 days, as he now argues. That would have had the effect of disrupting the trial court’s entire docket. What the trial court did, upon Osborn’s arrest and return to this state, was to set the trial down for the next available trial date. Osborn was entitled to nothing more under our rules. We affirm the trial court’s denial of the motion to dismiss.

Osborn also takes issue with the absence of a contemporaneous written order or docket entry at the time the “continuance” was granted on December 4, 1997, after he was returned from Colorado. We do not view the trial court’s resetting of a trial date under these circumstances as a traditional continuance. It is clear from the record that Osborn failed to appear for trial on October 17, 1997. It is further clear from the record that Osborn’s trial was rescheduled for the first available trial date, after his return to Arkansas.

We have held that failure to make a docket entry or written order relating to excludable periods does not warrant an automatic reversal under Rule 28.3(i). See Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993); Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991); McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990); see also Henson v. State, 38 Ark. App. 155, 832 S.W.2d 269 (1992). We have further held that when a case is delayed by the accused and the delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Rule 28.3(i). See Wallace v. State, supra; Hubbard v. State, supra; McConaughy v. State, supra; Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989).

That is exactly what transpired in the case before us. The record shows that Osborn delayed this case by not showing up for trial on October 17, 1997. It further shows that the trial court reset the case for the next available trial date. Under these circumstances, where the record clearly reveals what occurred, strict compliance with Rule 28.3(i) is not required.

The record in this case has been reviewed for other error in compliance with Ark. Sup. Ct. R. 4-3 (h), and no reversible error has been found.

Affirmed.

Glaze, J.,concurs.

Tom Glaze, Justice,

concurring. Appellant, Larry Osborn, should have raised his speedy-trial claim on cross-appeal in State v. Osborn, 337 Ark. 172, 988 S.W.2d 485 (1999) (Osborn I). Prior to trial in Osborn I, appellant filed a petition for writ of prohibition with our court on speedy-trial grounds, but we denied the petition without prejudice to raise the issue on appeal. Osborn’s case then went to trial, and he was convicted of aggravated robbery and given a life sentence. However, upon Osborn’s motion, the trial court awarded him a new sentencing trial, from which the State appealed, as authorized under Ark. R. App. P. — Crim. 3(c). Osborn filed no cross appeal raising his earlier speedy-trial claim. For reasons fully stated in Osborn I, we reversed and remanded this cause and directed the trial judge to reinstate Osborn?s life sentence. That would seem to have been the end of Osborn’s ‘case, but instead he wás permitted after reinstatement of his conviction and sentence to raise once again his speedy trial issue which has led to this second appeal.

Our criminal rules do not specifically address this situation, and while my research fails to reveal a case where a defendant appellee has cross appealed when the State had appealed, there are numerous cases where the State as appellee has filed cross appeals. See e.g. Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997); Moore v. State, 321 Ark. 249, 258-61, 903 S.W.2d 1544, 158-60 (1995); Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). While our Rules of Appellate Procedure — Criminal do not specifically mention cross appeal, as such, our Rules of Appellate Procedure — Civil clearly do (see Ark. R. App. P. — Civ. 3(d)), and these civil appellate rules have commonly been referred to and applied when necessary in criminal appeals.

In sum, our procedural and appellate rules do not specifically provide that a defendant, who is denied a writ of prohibition on speedy-trial must raise the issue on cross appeal. Nonetheless, this court denied Osborn’s petition without prejudice to raise the issue on appeal, and an áppeal procedurally includes a cross appeal. Cf. Flemings v. Little, 324 Ark. 112, 918 S.W.2d 718 (1996). To allow Osborn to bring an appeal after his case was finally concluded in Osborn I merely encourages piecemeal appeals — a practice this court has repeatedly and steadfastly opposed.

       The State does not raise the issue of whether Osborn waived his speedy-trial appeal by not cross-appealing on that point in the State’s appeal. Accordingly, we will not consider the issue.

       Rule 28.3(b) was amended by per curiam order on April 22, 1999, to eliminate the “exceptional circumstances” language. See In Re Ark. R. Crim. P. 28, 337 Ark. 627 (1999).

       The same per curiam order cited in footnote 2 amended Rule 28.3(i) to permit the trial court to enter the court order or make the docket entry after the speedy-trial motion has been filed.


author: Annabelle Clinton Imber, Justice.

text:
    Louis ETOCH and Charles E. Halbert, Jr. v. L.T. SIMES II, Circuit Judge
    99-467
    10 S.W.3d 866
    Supreme Court of Arkansas
    Opinion delivered February 24, 2000
    [Petition for rehearing denied March 30, 2000.]

      Appellants, pro se.

      Mark Pryor, Att’y Gen., by: James E. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

Randy Green was charged on April 25, 1997, with the offenses of capital murder, aggravated robbery, and theft of property. In February 1998, he hired attorneys Louis Etoch and Charles E. Halbert, Jr., to defend him. Two other co-defendants, Damon Evans and Randy Green’s cousin, Jason Green,, were also charged with the same crimes, ,by separate informatipns. All three co-defendants were scheduled to be tried separately. Damon Evans pled guilty to first-degree murder and was sentenced to forty years imprisonment before the other co-defendants were tried.

Raymond Abramson and Chris Morledge represented Jason Green during his trial, which began on September 14, 1998. On September 17, 1998, while still representing Randy Green, Mr. Etoch appeared at Jason Green’s trial in Monroe County Circuit Court. In the trial judge’s chambers, the Prosecuting Attorney, Fletcher Long, Jr., asked that Mr. Etoch be shown as attorney of record for Jason Green. Mr. Etoch responded by stating that he already represented co-defendant Randy Green, but that he had come to assist Mr. Abramson at the Jason Green trial because Mr. Morledge had to leave for a seminar in Seattle, Washington. Mr. Etoch then stated: “I don’t want to be shown as an attorney of record and have to do an appeal. I don’t want to be shown as an attorney of record so that it would conflict Randy Green, but I think the law requires two attorneys in a death penalty case.” Mr. Long continued to insist that if Mr. Etoch was going to argue jury instructions on behalf of Jason Green and assist Mr. Abramson, he should be shown as an attorney of record. The following colloquy between the trial judge and Mr. Etoch then took place:

The COURT: Well, let’s just get this straight. We don’t have to go through all of that. An objection was made. When this trial began Mr. Abramson advised the court that Mr. Morledge was going to help him and assist him with this case as co-counsel and he was expecting Mr. Halbert or Mr. Etoch. He made that statement but the point is that you can’t have your cake and eat it, too. If you want to be on the record representing him you can, vbut we are not going to be in and out. Otherwise, we have got a problem with the order of the proceedings, you know, who goes first and who goes next. Who is objecting and when someone is not. I am not going to do that. If you want to come in you can come in. If you want to be out you are out. Tell me what your preference is now and it is not going to be in the middle, either you are in or you are out.
MR. Etoch: I have agreed to represent Randy Green and the Court knows that and the case has been severed. I do not see a conflict I have talked with Randy about this and Randy does not see a conflict. As long as there is no conflict. I do not want to enter this case as ...
THE COURT: I am not going to make a legal opinion for you as to whether or not there is any conflict. That is a decision for you all. I don’t represent these people. I am the Judge. I have got to look out for this defendant’s rights and the State’s rights. The State has made an objection. I take it as an objection. Either you are in or out. It is your option.
Mr. ETOCH: May I confer with Mr. Abramson outside for a moment?
The Court: Yes
(Whereupon after Mr. Etoch and Mr. Abramson absented themselves, they returned to chambers and the following was had.)
Mr. ETOCH: Your Honor, after conferring with Mr. Abram-son I am prepared to enter my appearance in this case and would like to do so as co-counsel in this trial.

Thus, Mr. Etoch became the attorney for co-defendants Randy Green and Jason Green, who had been charged with the same crimes, albeit by separate informations. Jason Green’s trial ended in a mistrial on September 18, 1998.

Meanwhile, Randy Green’s trial was docketed for the week of October 5, 1998. On September 28, 1998, Randy Green, through his attorney, Mr. Etoch, filed a motion for continuance. In the motion, Mr. Etoch argued that he needed more time to prepare for examination of witnesses. He specifically mentioned his need to effectively cross-examine and impeach witnesses who testified at the Jason Green trial regarding “false statements” that they had made. He further alleged that a copy of the testimony from the Jason Green' trial would not be available by October 5, 1998. Furthermore, Mr. Etoch alleged in the motion that he had several scheduling conflicts for the week of October 5, 1998. Finally, Mr. Etoch argued that Randy Green would be unduly prejudiced if he was tried so close in time to the Jason Green trial, allegedly because “the atmosphere and/or belief in Monroe County is that Randy Green is guilty.” These arguments were controverted by the State, and the trial court ultimately denied Mr. Green’s motion for continuance.

Randy Green’s trial was scheduled to start on October 6, 1998, with the jury being ordered to convene at 1:30 p.m., so as to allow time that morning for the trial court to consider various motions filed by the parties. During this pretrial hearing, Mr. Etoch and Mr. Halbert renewed their motion for continuance on behalf of Mr. Green, and the trial court once again denied the motion. The pretrial proceedings on October 6, 1998, were not concluded until late that evening, whereupon the trial court released the jury with instructions to reconvene on October 7, 1998, at 9:00 a.m.

The next morning, just before Randy Green’s trial was about to begin, Mr. Etoch and Mr. Halbert advised the trial court that they were moving to withdraw as counsel for Mr. Green. According to Mr. Halbert, they were required to withdraw under Rule 1.7 of the Model Rules of Professional Conduct due to a conflict of interest that had arisen since Mr. Etoch entered his appearance in the Jason Green case. The trial court asked Mr. Halbert when the conflict arose, to which he responded:

Your Honor, as I understand, the possibility of the conflict would arise occurred yesterday. I briefed the subject with the Court — you know, we knew it was possible that a conflict may arise but we thought that possibility was minimal when we entered his appearance. Yesterday, I asked for some guidance from the Court and it appears that that conflict has actually reared his head [sic] at this time. And it appears obvious to us late yesterday and through research last night.

The trial court then asked: “[w]hat is the conflict?” Mr. Halbert responded:

Your Honor, because of my client’s right to attorney — to privilege between he and his attorney, I am reluctant to state what actually the conflict is. But, I’m sure the Court can see the potential conflicts with the possibility that Jason Green may be needing to be called as a witness at this time because his former testimony will not be admitted and various other things, Judge.... And of course, Judge, if he was called as a witness, we would be required to impeach him regardless of who called him so that possibility is there... it has not occurred yet but it is reasonably likely to occur at this time where earlier we thought the risk that it would occur is minimal. Now, it appears that the risk is no longer minimal but is very substantial.

The trial court then asked: “[n]ow are you telling me that you now are of the opinion that the former testimony is not admissible?” Mr. Halbert responded:

I believe that was — based on the Court’s ruling yesterday I believe that to be the case. Even if the former testimony is admissible and comes in on its own as an exception to the hearsay rule Jason may now have to be called regardless. But there is no doubt that we believe that it should be admissible in the trial.

After hearing further argument on the issue, the trial court gave Mr. Etoch and Mr. Halbert an opportunity to talk with Randy Green to determine if he was willing to consent to their representation of him, despite their representation of Jason Green. Mr. Halbert spoke with Randy Green and then reported to the court that Mr. Green was not prepared to consent. The trial court granted the motion to withdraw and also granted a continuance. The trial court further stated that “I feel as if the defendant’s attorneys are manipulating the judicial system...,” and ordered Mr. Halbert and Mr. Etoch to reimburse Monroe County $1,770 for compensation paid to jurors who appeared for jury duty on October 6 and 7, 1998. The trial court also imposed a fine of $230.00. Mr. Etoch and Mr. Halbert now appeal the imposition of the fine and the jury costs.

For their first point on appeal, the appellants argue that the trial court erred in imposing sanctions on them when he granted their motion to withdraw as counsel for Randy Green. Where fines are imposed, as here, and the punishment cannot be avoided by an affirmative act, the case is one of criminal contempt. Etoch v. State, 332 Ark. 83, 964 S.W.2d 798 (1998). The standard of review in a case of criminal contempt requires this court to view the record in the light most favorable to the trial judge’s decision and to sustain that decision if it is supported by substantial evidence and reasonable inferences. Id. We have consistently held that an act is contemptuous if it interferes with the order of the court’s business or proceedings, or reflects upon the court’s integrity. Id.; Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995); Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 11 (1993).

The appellants argue that there is no basis for the trial court’s criminal contempt order because they were professionally obligated to make the motion to withdraw under Rule 1.7 of the Model Rules of Professional Conduct. It is clear from the record, however, that the trial court was not offended by the mere fact that the appellants moved to withdraw as counsel for Randy Green. Rather, the trial court indicated that it was vexed by the inexpedient timing of the motion; that is, by the fact that the motion was not made until after the jury had been convened to try the case:

Now, I’m going to require the defendant’s lawyers to take care of the expenses of this trial. We’ve had a jury that’s been here for two days sitting here in preparation for a trial. This could have been avoided if the defendant’s lawyers were not attempting to manipulate the system. It should have been anticipated.... The Court tried to do what was fair and right. And the lawyers persisted that they wanted to — Mr. Etoch should be in that case and the court let him into that case. As a result of that, now we’re here today, the jury has been here two days.

With regard to the timeliness of the appellants’ motion to withdraw, the trial court asked Mr. Halbert when the conflict of interest first arose. He admitted that the appellants knew at the time Mr. Etoch entered his appearance in Jason Green’s case on September 17, 1998, that a conflict of interest might arise due to their representation of both co-defendants. At that time, however, they thought the possibility of a conflict of interest was minimal. Mr. Halbert contended that it was not until October 6, 1998, when the trial court purportedly ruled that Jason Green’s former testimony would not be admissible in Randy Green’s trial, that the possibility of a conflict of interest was “no longer minimal but very substantial.” According to Mr. Halbert, Jason Green might be called as a witness in the Randy Green trial. In that event, there would be a potential conflict of interest because Jason Green would be subject to cross-examination and impeachment by his own attorneys, the appellants.

The simultaneous representation of parties whose interests in litigation may conflict, such as co-defendants, is governed by Rule 1.7(b) of the Model Rules of Professional Conduct:

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

With regard to the representation of multiple defendants in a criminal case, the commentary to Rule 1.7 specifically warns that the potential for a conflict of interest is “so grave that a lawyer should decline to represent more than one co-defendant.” In Chambers v. State, 264 Ark. 279, 579 S.W.2d 79 (1978), we quoted a similar caveat from the ABA Standards Relating to the Defense Function, 3.5(b) (1971):

Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.

As early as February 23, 1998, the appellants contended in a pleading that the custodial statements given by the co-defendants and Lucinda Evans were “inconsistent with each other in material parts” and that the defenses were “likely to become antagonistic.” This contention is in fact supported by the custodial statements given by all three co-defendants and Lucinda Evans. Each co-defendant related a substantially different version, of the events which ultimately culminated in the death of Glen Dover.

During the early morning hours of April 5, 1997, Randy Green, Jason Green, and Damon Evans were drinking beer with the victim, Glen Dover, in a motel room when an argument erupted. According to Randy Green’s custodial statement, he left the motel room with Damon’s sister, Lucinda Evans, to wait inside his truck while Damon and Jason beat the victim and then dragged him outside and put him in the back of his own truck. Randy also stated that Damon left the motel driving the victim’s truck, and Randy, Jason, and Lucinda followed in Randy’s truck. At one point, Damon stopped, and Randy drove past him and stopped. A few minutes later, Damon took the lead again, and Randy followed Damon to Walnut Lake Bridge, where Damon parked the victim’s truck, got into Randy’s truck, and they went back to Brinkley.

In contrast, Jason Green said in his custodial statement that it was Damon and Randy who inflicted the beating at the motel and that Randy helped place the victim in the back of his own truck. Jason also stated that Randy rode in the victim’s truck with Damon, while he and Lucinda followed in Randy’s truck. At some point, they stopped on the side of the road and put the victim, who was “bleeding pretty bad,” in the front of the truck. After they arrived at the Walnut Lake bridge, Randy got in his own truck with Jason and Lucinda, while Damon drove the victim’s truck down a bank and jumped out before it hit some trees. The foursome then returned to Brinkley in Randy’s truck.- According to Jason, Damon gave him $200 of the $800 that was taken from the victim.

Damon’s statement also implicated Randy Green in the beating and the placement of the victim in the back of his own truck. Damon admitted in his statement that he took the victim’s wallet and gave the money to Randy. Damon also stated that Randy helped put the victim in the front of the truck after Damon stopped alongside the road and cut Mr. Dover’s throat with a straight razor. Damon confirmed that he put the victim’s truck in drive and let it roll down a hill, before he got into Randy’s truck with the others and returned to Brinkley.

Finally, Lucinda Evans said in her custodial statement that all three men beat the victim and put him into the back of his truck. She also said that they stopped alongside the road and put the victim into the front of his truck. According to Lucinda, it was Randy and Damon who ran the truck into the water while she and Jason sat in Randy’s truck.

As the appellants concluded at the outset of the case in February, 1998, it was clear from the materially inconsistent statements given by the co-defendants that their defenses were likely to be antagonistic. Likewise, when Mr. Etoch entered his appearance as co-counsel on September 17, 1998, and certainly no later than September 18, 1998, when Jason Green’s trial ended in a mistrial, it was clear that a conflict of interest was likely to develop as a result of the appellants representing both co-defendants. In other words, their representation of Randy Green would be materially limited by their responsibilities to Jason Green. Nevertheless, the appellants did not move to withdraw from Randy Green’s case until October 7, 1998; that is, after the jury had already been convened to try Mr. Green’s case. The trial court found this delay to be a manipulation of the judicial system and an interference with the court’s business and, thus, contemptuous.

The appellants contend that their motion to withdraw was timely because the conflict did not arise until the trial court ruled on October 6, 1998, that Jason Green’s former testimony would not be admissible at Randy Green’s trial. This argument is without merit. It was apparent to the appellants even before Mr. Etoch undertook the representation of Jason Green that the defenses of the co-defendants were likely to be antagonistic. Moreover, as previously stated, the likelihood of a conflict arose at the time Mr. Etoch entered his appearance in Jason Green’s case on September 17, 1998, but certainly no later than September 18, 1998, when Jason Green’s case ended in a mistrial. Furthermore, Mr. Halbert’s argument in support of the motion to withdraw included the following assertion: “Even if the former testimony is admissible and comes in on its own as an exception to the hearsay rule Jason may now have to be called regardless.” Thus, even if Jason Green’s former testimony was admissible, the appellants conceded that either party might still call Jason as a witness at Randy Green’s trial and he would be subject to cross-examination and impeachment by his own attorneys, the appellants. Consequently, the likelihood of a conflict of interest did not arise in this case as a result of an evidentiary ruling by the trial court. Rather, such a likelihood first arose when Mr. Etoch entered his appearance in Jason Green’s case on September 17, 1998.

The trial court further found that the appellants were manipulating the system because their motion to withdraw was made shortly after the trial court denied two separate motions for continuance. Specifically, the trial court stated:

There was a motion for continuance [made on September 28, 1998]. That motion for continuance was denied. That motion was made again yesterday. That motion was again denied. This jury sat here from 1:30 yesterday to late yesterday evening. I released them with instructions to come back and we would start promptly on this case at 9 o’clock today. Everyone was here promptly. Counsel was here — all counsel was here, defendant was here. The jury was here. The Court was here. And then Mr. Halbert comes in chambers and says that he’s got a motion to make. The motion that was with instructions to come back and we would start promptly on this case at 9 o’clock today. Everyone was here prompdy. Counsel was here — all counsel was here, defendant was here. The jury was here. The Court was here. And then Mr. Halbert comes in chambers and says that he’s got a motion to make. The motion that was required, the court granted a continuance in this case. It seems clear to me that’s what the defense attorney wanted. It also appears clear to me that they would do whatever necessary to get it if it means manipulating the rules and manipulating the court or whatever. My problem with it is it appears Mr. Etoch is not going to stop until I make him stop. It’s going to keep going on and on and on when Mr. Etoch wants to disrespect the Court, the whole system, and do what he wants to do it [sic] when he wants to do it and how he wants to do it, regardless of the consequences and the other parties involved.

Indeed, the appellants assert that they should have been allowed to withdraw from the Randy Green case and, if Jason Green were found not guilty and double jeopardy attached, then Jason Green and Randy Green could conceivably consent to their joint, representation, and the appellants would be able to resume their representation of Randy Green. Under this scenario, nothing would have been achieved other than a postponement of Randy Green’s trial so that it would not occur until after Jason Green’s second trial setting. Clearly, the act of using a motion to withdraw for the sole purpose of securing a previously denied continuance would interfere with the order of the court’s business or proceedings. Viewing the record in the light most favorable to the trial judge’s decision, we conclude that there was substantial evidence to support the trial court’s finding of criminal contempt.

For their second point on appeal, the appellants argue that the trial court erred by permanently disqualifying them from representing Randy Green in the capital murder case pending against him in Monroe County. Appellants contend that their disqualification in this case should not be permanent because circumstances might change in the future. We decline to address this argument because it is purely speculative and premature. Watson v. City of Fayetteville, 322 Ark. 324, 909 S.W.2d 637 (1995). See also, Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995).

Affirmed.

       The record does not indicate that Mr. Morledge withdrew from the case.

       The record in this appeal does not include the transcript of the pretrial hearing on October 6, 1998, or the trial court’s ruling on the admissibility of Jason Green’s former testimony.

       A more recent version of the standard is stated in the ABA Standards for Criminal Justice Prosecution Function and Defense Function, Third Edition, 4-3.5(c) (1993):
      (c) Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear either that no conflict is likely to develop at trial, sentencing, or at any other time in the proceeding or that common representation will be advantageous to each of the co-defendants represented and, in either case, that:
      (i) the several defendants give an informed consent to such multiple representation; and
      (ii) the consent of the defendants is made a matter of judicial record. In determining the presence of consent by the defendants, the trial judge should make appropriate inquiries respecting actual or potential conflicts of interest of counsel and whether the defendants folly comprehend the difficulties that defense counsel sometimes encounters in defending multiple clients.


author: RAY THORNTON, Justice.

text:
    Brenda Lee Robinson SMITH v. Dr. Erma S. WASHINGTON
    98-649
    10 S.W.3d 877
    Supreme Court of Arkansas
    Opinion delivered February 24, 2000

      H. Edward Skinner & Associates, P.A., by: H. Edward Skinner, for appellant.

      Humphries & Lewis, by: J. Michael Lewis, for appellee.
   RAY THORNTON, Justice.

Appellant Brenda Lee Robinson Smith brings this appeal of the Jefferson County Circuit Court’s dismissal of her medical malpractice claim against appellee Dr. Erma S. Washington, for alleged medical negligence arising out of surgery performed on appellant while she was an inmate at the Arkansas Department of Correction. Because we have determined that the trial court erred in dismissing appellant’s complaint pursuant to the two-dismissal rule of Ark. R. Civ. P. 41(a), we reverse the grant of appellee’s Motion to Dismiss and return the action to the trial court for further proceedings consistent with this opinion.

Appellant filed a pro se complaint in federal court against appellee and the prison healthcare provider on March 12, 1993, alleging violations of the federal Civil Rights Act, 42 U.S.C. § 1983, arising from the total abdominal hysterectomy that appellee performed on appellant on June 10, 1992. Appellant alleged that her attempts to discuss her concerns with appellee had been fruitless and that she was given the “runaround” by prison officials when she complained about the uneven stitches and loss of feeling in her sagging abdomen following the surgery. Appellant sought damages for her physical and mental injuries as well as reconstructive surgery to be performed by an outside physician.

Counsel was appointed; by the federal district court to represent appellant in this action, but the merits were not reached because appellant and appellee filed a joint stipulation of dismissal of the action on January 3, 1995. The document was executed by both parties pursuant to Fed. R. Civ. P. 41(a)(1) and stipulated to a dismissal without prejudice. The federal court order dismissing appellant’s federal civil rights action was entered the same day.

Prior to the dismissal of her federal civil rights action, appellant had filed suit against appellee in Jefferson County Circuit Court, asserting a cause of action against the doctor for medical malpractice and failure to obtain informed consent to undergo the hysterectomy under state tort law. Specifically, appellant alleged that appellee negligently advised her that her pap smear indicated that she suffered from severe epithelial dysplasia which would develop into cancer unless she submitted to a total abdominal hysterectomy, a recommendation made notwithstanding appellant’s stated desire to have more children. A second allegation charged that appellee negligently performed the hysterectomy, producing unnecessary and unsightly permanent scarring on appellant’s abdomen. This complaint was filed on June 8, 1994. Although the parties conducted some discovery, this action was never set for trial. Instead, appellant filed a motion for voluntary nonsuit and an order of dismissal without prejudice was entered on June 21, 1996, dismissing appellant’s complaint.

Appellant timely filed a second cause of action mirroring the allegations of medical malpractice and failure to obtain informed consent contained in her first state court action. On August 13, 1997, appellee filed a motion to dismiss on the basis of the two-dismissal rule of Rule 41(a)(2) of the Arkansas Rules of Civil Procedure, contending that appellant’s federal civil rights action under § 1983 and her first state court action against appellee for medical negligence were actions based on the same claim for purposes of the two-dismissal rule, and that, as a result, appellee’s voluntary dismissal of her first state court action constituted an adjudication on the merits of her claim against appellee.

The trial court accepted appellee’s contention that appellant’s dismissal by stipulation of her federal court action coupled with her voluntary nonsuit of her first state court complaint triggered the two-dismissal rule, rendering her voluntary dismissal of her first state court action an adjudication on' the merits, and dismissed appellant’s complaint in her second state action with prejudice. Appellant brings this appeal of that decision, raising two points on appeal: that the stipulation of dismissal entered into by both parties in federal court did not constitute a dismissal by the plaintiff for purposes of the two-dismissal rule under Rule 41(a)(2); and, that appellant’s federal action against appellee for violations of her civil rights under § 1983 and her state cause of action for medical negligence were not actions based upon or including the same claim for purposes of the two-dismissal rule.

The first issue presented by this appeal is the question whether a stipulation of dismissal executed by both the plaintiff and the defendant in a federal lawsuit, pursuant to Fed. R. Civ. P. 41(a)(1)(h), should be treated as a dismissal by the plaintiff for purposes of applying the “adjudication on the merits” provision of the two-dismissal rule of Ark. R. Civ. P. 41(a)(2). The two-dismissal rule of Ark. R. Civ. P. 41(a)(2) provides that a voluntary dismissal under Rule 41(a)(1):

operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice.

Id. Here, the first dismissal stems from the parties’ filing of a “stipulation of dismissal signed by all the parties who have appeared in the action,” pursuant to Fed. R. Civ. P. 41(a)(1)(h), and our analysis turns to whether the stipulation of dismissal in federal court is a dismissal by the plaintiff for the purposes of triggering Arkansas’s two-dismissal rule.

We recognize that the basic purpose behind the Rules of Civil Procedure is “to administer justice through fair trials, not through summary dismissals as necessary as they may be on occasion.” Surowitz v. Hilton Hotels Corp., 383 U.S. 363 (1966). The two-dismissal rule is generally considered to be in derogation of a plaintiff’s previously existing right to voluntarily dismiss an action and to initiate a new action based on the same cause of action. Kuhn v. Williamson, 122 F.R.D. 192 (E.D.N.C. 1988). The primary purpose of the two-dismissal rule is to prevent unreasonable use of the plaintiff’s unilateral rights to dismiss an action prior to the filing of the defendant’s responsive pleading, and it is an exception to the general principle that a voluntary dismissal of an action does not bar a new suit based upon the same claim. See e.g. Sutton Place Dev. Co. v. Abacus Mortgage Inv. Co., 826 F.2d 637 (7th Cir. 1987); Poloron Products, Inc. v. Lybrand Ross Bros. & Montgomery, 534 F.2d 1012 (2d. Cir. 1975). The two-dismissal rule was unique at the time it was first adopted, and its intention was to prevent delays and harassment by plaintiffs securing numerous dismissals without prejudice. 9 Wright and Miller, Federal Practice and Procedure Civ. § 2368 (2d. ed. 1995). But where the purpose behind the two-dismissal exception would not appear to be served by its literal application, and where that application’s effect would be to close the courthouse doors to an otherwise proper litigant, a court should be most careful not to construe or apply the exception too broadly. Poloron, supra.

Under the facts of this case, we are presented the question whether dismissal by stipulation is a voluntary or unilateral action by the plaintiff as required by our rule to trigger the two-dismissal rule. We find instructive the interpretations of federal courts regarding dismissals by stipulations in similar cases. Based upon the similarities of our rules with the Federal Rules of Civil Procedure, we consider the interpretation of these rules by federal courts to be of significant precedential value. Bussey v Bank of Malvern, 270 Ark. 37, 603 S.W.2d 426 (Ark.App. 1980).

The stipulation of dismissal filed with the federal court on January 3, 1995, read: “Pursuant to Rule 41(a)(1) of Federal Rules of Civil Procedure, the undersigned, being all parties who have appeared in this action, do hereby stipulate to the dismissal without prejudice of Plaintiff’s action against Defendant Dr. Erma S. Washington.” The filing is signed by the attorney for the plaintiff and counsel for the defendant.

In Poloron, supra, the Second Circuit Court of Appeals noted that, given the purpose of the two-dismissal rule, to prevent an unreasonable use of the plaintiff’s unilateral right to dismiss an action prior to the filing of the defendant’s responsive pleading, “the danger of such abuse diminished, however, where the first dismissal is by stipulation. A dismissal by stipulation is not a unilateral act on the part of the plaintiff but rather is a mutual agreement by all the parties ... The filing of a notice of dismissal preceded by a dismissal by stipulation knowingly consented to by all parties does not., activate the two-dismissal bar against bringing an action based on or including the same claim.” Id.

Similarly, in Kuhn, supra, the district court held that a stipulation of dismissal did not trigger the two-dismissal rule because the defendant could have declined to enter into the stipulation. Where the defendant has consented to the dismissal of the claim without prejudice, “it is inequitable to interpret the two-dismissal rule in a fashion that now bars their refiling.” Id.

Notwithstanding the interpretation given the federal rules by federal courts, appellee urges that Ark. R. Civ. P. 41 does not require the dismissal by the plaintiff to be unilateral. However, we note that our own previous interpretation of Arkansas’s Rule 41(a) is consistent with the federal courts’ rulings. In Carton v. Missouri Pac. R.R., 295 Ark. 126, 747 S.W.2d 93 (1988), we held that, in order for a second dismissal to work as an adjudication on the merits of a plaintiff’s claim, both dismissals must be on the motion of the plaintiff or Rule 41(a) is inapplicable. Notwithstanding appellee’s contention that appellant’s first dismissal need only be “voluntarily” entered into, and that her counsel’s signature on the stipulation of dismissal filed in the federal court action “was a matter of form and served in no way to make the appellant’s dismissal of the federal action anything other than ‘voluntary,’ ” we note that the Fed. R. Civ. P. 41(a)(1)(h) explicitly requires the signature of all parties who have appeared in the action in order to effect a dismissal by stipulation. See also Camacho v. Mancuso, 53 F.3d 48 (4th Cir. 1995) (court declined to accept a written stipulation of dismissal because it was not signed by both parties, because a stipulation is only valid if both parties sign a document or appear before the court to make an oral stipulation official).

In the circumstances before us, we note that appellant could not unilaterally effect a dismissal by stipulation under federal court procedural rules. Because appellee must have agreed to participate in the dismissal in order to achieve it, the dismissal by stipulation was not a dismissal taken only by appellant and thus does not trigger the consequences of the two-dismissal rule. Appellee was not required to enter into the stipulation, and she received a benefit in having the federal action dismissed, relieving her of the necessity of defending the action and eliminating the potential of a finding of liability on her part under Section 1983. Where a defendant has acted in combination with the plaintiff in obtaining a joint dismissal by stipulation of a claim, and received benefit from that action, that defendant cannot assert that the plaintiff should be barred as a result of the stipulated dismissal from filing a later claim.

Therefore, we hold that the dismissal by stipulation entered into by the parties to conclude appellee’s section 1983 action was not a dismissal by the plaintiff under Ark. R. Civ. P. 41(a)(2), and that her second filing of her state law negligence claims, in the Jefferson County Circuit Court is not barred by the two-dismissal rule. Because we have determined that the dismissal by stipulation in federal court was a joint action by both parties, the two-dismissal rule is not triggered by this fact pattern, and the trial court erred in dismissing appellant’s state court action on that ground. Accordingly, we reverse the grant of appellee’s motion to dismiss the case and remand this cause to the trial court for further proceedings consistent with this opinion. This ruling renders unnecessary any further consideration of appellant’s second point on appeal.

Reversed and remanded.


author: Lavenski R. Smith, Justice.

text:
    BOOKS-A-MILLION, INC.; United States Fidelity and Guaranty Company; and Cockerham Construction Company v. ARKANSAS PAINTING and SPECIALTIES COMPANY
    99-1071
    10 S.W.3d 857
    Supreme Court of Arkansas
    Opinion delivered February 24, 2000

      Eichenbaum, Liles & Heister, P.A., by: Peter B. Heister; and Slagle & Gist, by: Richard L. Slagle, for appellants.

      Kemp, Duckett, Spradley, Curry & Arnold, by: James M. Duckett, for appellee.
   Lavenski R. Smith, Justice.

Appellants, Books-A-Million, Inc. (“Books”), United States Fidelity and Guaranty Company (“USF&G”) and Robert P. Cockerham d/b/a Cockerham Construction Company (“Cockerham”), appeal a judgment of the White County Circuit Court awarding damages, prejudgment interest, costs, and attorney’s fees to Arkansas Painting and Specialties Company (“Arkansas Painting”). The judgment followed the court’s finding that Arkansas Painting had created a valid lien against the subject real property in compliance with Ark. Code Ann. §§ 18-44-101 — 18-44-508. The Circuit Court ordered the judgment paid from USF&G’s lien release bond filed with the Clerk of the Court. Appellants contend that the trial court erred in enforcing the lien because the appellee did not comply with the statutory notice requirements under Ark. Code Ann. § 18-44-115 (Supp. 1999). We agree and reverse.

Facts

In 1996, Books renovated its retail store in Searcy. Cockerham, apparendy acting as general contractor, contracted with Arkansas Painting for painting, sheetrock, and wallpapering work. Books leased the premises from Stewart Development Company and S-P Properties, of Huntington Beach, California. On December 4, 1996, Arkansas Painting completed its last day of work on the Books job. Cockerham did not pay for the services and materials. Arkansas Painting sent letters to Books and Cockerham on February 12, 1997, requesting payment and warning that if payment was not received in ten days that lien proceedings would commence. On March 14, 1997, Arkansas Painting sent Lien Notices to the owners and Cockerham, but not to Books. On March 28, 1997, Arkansas Painting filed the lien pursuant to Ark. Code Ann. § 18-44-101 (Supp. 1999), seeking payment of its contract price, fees, and costs. On April 3, 1997, Arkansas Painting sent Notice of Filing of Lien to the owners and to Cockerham, but not to Books. USF&G became involved by providing a bond to obtain release of the lien on behalf of Books, as provided under Ark. Code Ann. § 18-44-118, on June 9, 1997. On August 1, 1997, Arkansas Painting filed the instant action.

Following discovery, Books and USF&G filed a Motion for Summary Judgment on March 5, 1998, asserting one issue — failure to give adequate notice to perfect the lien. At the hearing on the motion, the trial court disposed of the case on agreed facts and determined that adequate notice was given. The court issued Findings of Law and Fact wherein it found the notice adequate and the lien therefore valid.

Standard for Review

The court tried the case below on agreed facts. When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Springdale Winnelson Co. v. Rakes, 337 Ark. 154, 987 S.W.2d 690 (1999); Arkansas Dep’t of Human Servs. v. Spears, 311 Ark. 96, 841 S.W.2d 624 (1992). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Wade v. Arkansas Dep’t Of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). In reviewing the findings of fact by a trial court, we consider the evidence and all reasonable inferences therefrom in a light most favorable to the appellee. Jernigan v. Cash, 298 Ark. 347, 767 S.W.2d 517 (1989); Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000).

Statutes in Derogation of the Common Law

The crucial issue before us is the construction to be given Arkansas lien statutes. In particular, whether the notice provisions of Ark. Code Ann. § 18-44-115 are to be strictly construed, thus requiring strict compliance, or whether they can be satisfied by substantial compliance. We hold that strict compliance is necessary. Any statute in derogation of the common law will be strictly construed. Although the General Assembly has the power to alter the common law, a legislative act will not be construed as overruling a principle of common law unless it is made plain by the act that such a change in the established law is intended. Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999).

It has long been held that mechanic’s liens are in derogation of the common law. The materialmen’s lien and the construction money mortgage lien are in derogation of common law. Both .are creatures of the legislature. The legislature is presumed to know the decisions of the supreme court, and it will not be presumed in construing a statute that the legislature intended to require the court to pass again upon a subject where its intent is not expressed in unmistakable language. Rhodes v. Cannon, 112 Ark. 6, 164 S.W. 752 (1914); Spickes Bros. Paint Cont. v. Worthen Bank & Trust Co., 299 Ark. 79, 771. S.W.2d 258 (1989). In Valley Metal Works, Inc. v. A.O. Smith-Inland, 264 Ark. 341, 572 S.W.2d 138 (1978), we stated, “Our lien statutes are in derogation of the common law and we construe them strictly since they provide an extraordinary remedy that is not available to every merchant or worker.” See also, Christy v. Nabholz Supply Co., 261 Ark. 127, 546 S.W.2d 425 (1977); Dews v. Halliburton Indus., Inc., 288 Ark. 532, 708 S.W.2d 67(1986); National Lumber Co. v. Advance Development Corp., 293 Ark. 1, 732 S.W.2d 840 (1987); Gray v. Nations, 1 Ark. 557 (1839).

The notice requirements are for the benefit and protection of the owner. Bell v. Apache Supply Co., 300 Ark. 494, 780 S.W.2d 529 (1989); Ellis v. Fayettville Lumber & Cement Co., 195 Ark. 385, 112 S.W.2d 613 (1938). Specifically, Ark. Code Ann. § 18-44-114 and § 18-44-115 provide two separate notice provisions. Section 18-44-114 provides:

18-44-114. Notice and service generally.
(a)(1)(A) Every person, except the original contractor, who may wish to avail himself of the benefit of the provisions of this subchapter shall give ten (10) days’ notice before the filing of the lien, as required in § 18-44-117(a), to the owner, owners, or agent, or either of them, that he holds a claim against the building or improvement, setting forth the amount and from whom it is due.

This section requires that notice be given within at least ten days of an intention to file a lien. However, before the lien is actually filed, the next section, Ark. Code Ann. § 18-44-115, requires an additional, more specific notice be sent to the owner of the property prior to filing not more than seventy-five days after the completion of the work. It provides in pertinent part:

18-44-115. Notice to owner by contractor.
(e)(1)(A) The General Assembly hereby finds that owners and developers of commercial real estate are generally knowledgeable and sophisticated in construction law, are aware that unpaid suppliers of labor and material are entitled to assert liens against the real estate if unpaid, and know how to protect themselves against the imposition of mechanics’ and material suppliers’ liens.
(B) ' The General Assembly further finds that consumers who construct or improve residential real estate containing font (4) or fewer units generally do not possess the same level of knowledge and awareness and need to be informed of their rights and responsibilities.
(C) Because supplying the notice specified in subsection (c) of this section imposes a substantial burden on material suppliers, the notice requirement mandated under subsection (b) of this section as a condition precedent to the imposition of a material supplier’s lien shall only apply to construction of or improvement to residential real estate containing four (4) or fewer units.
(2) (A) No material supplier or laborer shall be entitled to a lien unless the material supplier or laborer notifies the owner of the commercial real estate being improved, in writing, that such material supplier or laborer is currently entitled to payment, but has not been paid.
(B) This notice shall be sent to the owner and to the contractor by registered mail, return receipt requested, before seventy-five (75) days have elapsed from the time that the labor was supplied or the material furnished.
(C) Such notice shall contain the following information:
(i) A general description of the labor, service, or material furnished, and the amount due and unpaid;
(ii) The name and address of the person furnishing the labor, service, or materials;
(iii) The name of the person who contracted for purchase of the labor, service, or materials;
(iv) A description of the job site sufficient for identification; and
(v) The following statement set out in boldface type:
“NOTICE TO PROPERTY OWNER
IF BILLS FOR LABOR, SERVICES, OR MATERIALS USED TO CONSTRUCT AN IMPROVEMENT TO REAL ESTATE ARE NOT PAID IN FULL, A CONSTRUCTION LIEN MAY BE PLACED AGAINST THE PROPERTY. THIS COULD RESULT IN THE LOSS, THROUGH FORECLOSURE PROCEEDINGS, OF ALL OR PART OF YOUR REAL ESTATE BEING IMPROVED. THIS MAY OCCUR EVEN THOUGH YOU HAVE PAID YOUR CONTRACTOR IN FULL. YOU MAY WISH TO PROTECT YOURSELF AGAINST THIS CONSEQUENCE BY PAYING THE ABOVE NAMED PROVIDER OF LABOR, SERVICES, OR MATERIALS DIRECTLY, OR MAKING YOUR CHECK PAYABLE TO THE ABOVE NAMED PROVIDER AND CONTRACTOR JOINTLY.”
(3) Any contractor who fails to give the notice required by this subsection shall be guilty of a misdemeanor and shall be punished by a fine not exceeding one thousand dollars ($1,000).

The notice provisions contained in these statutes must be complied with strictly. National Lumber Co., supra. Applying these provisions to the facts of the instant case, we hold that Arkansas Painting did not send the notice required by § 18-44-115 within the time and in the manner specified by the statute. The facts reflect that Arkansas Painting sent letters on February 12, 1997, which, although they referenced the obligation, did not meet the statutory requirements. On March 14, 1997, Arkansas Painting sent notices containing the statutory language but the notice was sent beyond the seventy-fifth day following completion of the work.

Attorneys’ Fees and Costs

Because we hold the hen to not have been validly created, there is no need to address the appellee’s entitlement to fees and costs under Ark. Code Ann.§ 18-44-128.

Reversed and remanded.


author: PER CURIAM.

text:
    Jimmy EASLEY; Vickey Wagner Easley v. STATE of Arkansas
    CR 00-144
    10 S.W.3d 462
    Supreme Court of Arkansas
    Opinion delivered February 24, 2000

      Mathis & Dejanes, by: Winston C. Mathis, for appellants.
    No response.
   PER CURIAM.

Jimmy Easley and Vickey Wagner Easley, by their attorney, have filed a motion for rule on the clerk.

The motion admits that the Easleys’ record for appeal was not timely filed and asserts that this was due to a mistake on the part of the attorney, Winston C. Mathis, and the court reporter in failing to request an extension of time to file the record.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.

If the appellant’s attorney files, within thirty days from the date of this per curiam, a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, the motion for rule on the clerk will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

The present motion for rule on the clerk is denied.