author: ANNABELLE Clinton Imber, Justice.

text:
    Jim R. LINN and Virginia Cheryl Linn v. NATIONSBANK and Tom Nelson
    99-443
    14 S.W.3d 500
    Supreme Court of Arkansas
    Opinion delivered April 13, 2000

      Charles Edward Clawson, Judge;

      Harrill & Sutter, PLLC, by: Raymond Harrill, for appellants.

      Rose Law Firm, P.A., by: Allen W. Bird II, for appellees.
   ANNABELLE Clinton Imber, Justice.

This case arises from ongoing litigation tice. parties in both circuit and chancery court. This appeal is from a summary judgment by the circuit court and presents the question of whether the appellants, Jim R. Linn and Virginia Cheryl Linn, lost their right to refile claims in circuit court when they voluntarily nonsuited similar claims in the previous chancery court proceeding.

The appellees, NationsBank, as successor-in-interest to Boatmen’s National Bank of Conway, and Tom Nelson, a Boatmen’s employee, committed to provide construction financing loans to the Linns in April, 1995, for the purpose of building a bed-and-breakfast facility in Greenbrier, Arkansas. After construction of the facility had been completed, a dispute arose between the parties as to NationsBank’s obligation to provide permanent financing equal to eighty percent (80%) of the value of the bed-and-breakfast as evidenced by an appraisal. As a result of this dispute, the Linns discontinued interest payments on the construction loans, and NationsBank responded by filing a foreclosure action in the Chancery Court of Faulkner County in June 1996. In August 1996, the Linns filed a counterclaim in the chancery court action, alleging breach of contract, fraudulent misrepresentation, and negligence, arising from NationsBank’s refusal to honor an alleged oral agreement to provide permanent financing after construction was completed on the bed-and-breakfast. The Linns also requested that the counterclaim be severed and transferred to circuit court for a jury trial. NationsBank filed a reply to the Linns’s counterclaim, denying any liability for breach of contract, fraudulent misrepresentation, or negligence. NationsBank also requested that the Linns’s request for severance, transfer, and jury trial be denied.

In September 1996, the Linns filed a Chapter 7 bankruptcy proceeding in the United States Bankruptcy Court, Eastern District of Arkansas. On January 23, 1997, NationsBank obtained an order for abandonment and relief from the automatic stay in the bankruptcy proceeding, and on January 24, 1997, an order of discharge was entered by the U.S. Bankruptcy Court releasing the Linns from all dischargeable debts. On February 14, 1997, a decree was entered by the chancery court that granted the foreclosure. Paragraph seven (7) of the decree stated as follows:

That upon motion by the Linns pursuant to Arkansas Rules of Civil Procedure 41(a), the counterclaim filed herein by defendants Linns against plaintiff [NationsBank] should be dismissed without prejudice.

On February 9, 1998, the Linns filed a complaint against NationsBank and Tom Nelson in the Circuit Court of Faulkner County, which stated that it was “founded upon the same action non-suited by the Plaintiffs [the Linns] in Faulkner County Chancery Court on or about 2/13/98 [sic].” The complaint again asserted claims for breach of contract, fraudulent misrepresentation, and neghgence, and asserted new claims for breach of good faith and breach of fiduciary duty. NationsBank and Tom Nelson filed an answer to the Linns’s complaint and a motion for summary judgment, which asserted that the claims by the Linns in the present circuit court action constituted compulsory counterclaims in the previous chancery court action, and were barred by the doctrine of res judicata or collateral estoppel. The trial court granted the motion for summary judgment and dismissed the complaint on the basis that the claims raised by the Linns in the circuit court action were (1) compulsory counterclaims under Ark. R. Civ. P. 13(a) in the previous chancery court action; and (2) were barred by the doctrine of res judicata.

On appeal, the Linns contend that the trial court erred in granting NationsBank’s motion for summary judgment and dismissing their complaint under the doctrine of res judicata. In Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998), we stated the standard of review for a grant of summary judgment:

The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entided to judgment as a matter of law. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189 (1998). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a hght most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

Adams v. Arthur, 333 Ark. at 62, 969 S.W.2d at 602.

The Linns first assert that the trial court erred in granting summary judgment because the traditional elements of res judicata were not satisfied. The concept of res judicata has two facets. In Matter of Estate of Goston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995) (citing John Chesseman Trucking, Inc. v. Pinson, 313 Ark. 632, 855 S.W.2d 941 (1993)). Issue preclusion precludes further litigation in connection with a certain issue, and is limited to those matters previously at issue, which were directly and necessarily adjudicated. Id. The Linns correctly conclude that their claims in the circuit court action would not be barred under the issue preclusion facet of res judicata, as it is undisputed that the issues of liability raised in the counterclaim against NationsBank were never actually litigated in the chancery court action.

The claim preclusion facet of res judicata forecloses relitigation in a subsequent suit when:

(1) the first suit resulted in a final judgment on the merits;
(2) the first suit was based upon proper jurisdiction;
(3) the first suit was fully contested in good faith;
(4) both suits involved the same claim or cause of action; and
(5) both suits involved the same parties or their privies.

Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 269, 697 S.W.2d 916, 917 (1985) (citing Wells v. Ark. Pub. Serv. Comm’n., 272 Ark. 481, 616 S.W.2d 718 (1981)). Claim preclusion bars not only the relitigation of issues which were actually litigated in the first suit, but also those which could have been litigated but were not. Wells v. Ark. Pub. Serv. Comm’n., supra. However, we have held that the doctrine of res judicata does not bar a plaintiff from refiling a claim after he or she has exercised the absolute right to one voluntary dismissal under Ark. R. Civ. P. 41(a). Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991). In so holding, we concluded that the application of the doctrine of res judicata to a plaintiff’s voluntary dismissal under Ark. R. Civ. P. 41(a) would change the absolute right to a qualified right and create “two types of first-time non-suits: Those that could and those that could not be refiled.” Id. at 145, 806 S.W.2d at 2.

While acknowledging that Ark. R. Civ. P. 41 does provide for the voluntary dismissal of claims, the trial court nevertheless concluded that the principles of res judicata were applicable in this case, citing Shrieves v. Yarbrough, 220 Ark. 256, 247 S.W.2d 193 (1952); Golden Host Westchase, Inc. v. First Service Corp., 29 Ark. App. 107, 778 S.W.2d 633 (1989); and McDaniel Bros. Constr. Co. v. Simmons First Bank, 24 Ark. App. 106, 749 S.W.2d 348 (1988). However, those cases do not mention the voluntary dismissal of counterclaims under Rule 41. Thus, with regard to the circumstances in this case, they are inapposite and readily distinguishable. In Golden Host, supra, the counterclaim was dismissed with prejudice in the first action, and the McDaniel case dealt with claims that the plaintiff never pled when it filed the original foreclosure actions. See also, In Matter of Estate of Goston v. Ford Motor Co., supra; Martin v. Citizens Bank of Beebe, 283 Ark. 145, 671 S.W.2d 754 (1984); and McJunkins v. Lemons, 52 Ark. App. 1, 913 S.W.2d 306 (1996), in which the issue of omitted compulsory counterclaims under Ark. R. Civ. P. 13 has been addressed by this court and the court of appeals. Finally, Shrieves v. Yarbrough, supra, predates this court’s adoption of the Rules of Civil Procedure, and, therefore, does not address either compulsory counterclaims under Ark. R. Civ. P. 13 or voluntary nonsuits under Ark. R. Civ. P. 41. This case, however, involves the Linns’s assertion of a counterclaim in the first action and the voluntary dismissal of that counterclaim pursuant to Ark. R. Civ. P. 41(a). Under these circumstances, we agree with NationsBank that the applicability of Ark. R. Civ. P. 13(a) does not depend solely on the general principles of res judicata.

The Linns next assert that the trial court erred in granting judgment because the claims raised in the circuit court action were not compulsory counterclaims in the previous chancery court action. We disagree.

Rule 13(a) of the Arkansas Rules of Civil Procedure provides that:

A pleading shall state as a counterclaim any claim which, at the time of filing the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.

The purpose for this rule is to require parties to present all existing claims simultaneously to the court or be forever barred, thus preventing a multiplicity of suits arising from one set of circumstances. In Matter of Estate of Goston v. Ford Motor Co., supra; Bankston v. McKenzie, 288 Ark. 65, 702 S.W.2d 14 (1986).

There is no question that the claims at issue here arose from the same set of circumstances — financing arrangements for a bed- and-breakfast facility. The Linns alleged, in both the counterclaim filed in the chancery court action and the subsequent complaint filed in circuit court, that Tom Nelson told Ms. Linn on April 18, 1995, that NationsBank had agreed to make a construction loan and a permanent loan. They further alleged that the purported offer to provide permanent financing induced them to enter into the construction loan agreement with NationsBank, instead of obtaining financing with another lending institution. Thus, the facts relating to the claims between the parties originate in a single conversation and culminate when NationsBank commenced the foreclosure on the construction loan. The Linns’s claims arise directly from the financing transactions and a logical relationship exists between the foreclosure, the counterclaim, and the subsequent complaint. Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 625 S.W.2d 397 (1983). See also, Adam v. Jacobs, 950 F.2d 89, 92 (2nd Cir. 1991) (the claims were compulsory counterclaims where “[t]he guarantees and the merger agreement were executed together and, by the plaintiff’s own argument, the parties would not have signed one without the other.”). We therefore hold that the Linns’s claims in the present circuit court action constituted compulsory counterclaims in the earlier chancery court action under Ark. R. Civ. P. 13(a).

The Linns further argue that their claims in the present circuit court action should not be barred even if they were compulsory under Ark. R. Civ. P. 13(a), because they were voluntarily dismissed without prejudice pursuant to Ark. R. Civ. P. 41. In considering this argument, we must examine not only the language of Rule 13, but also the language of Rule 41.

As quoted above, Rule 13(a) requires that any claim existing at the time of filing a responsive pleading must be asserted in that responsive pleading if it arises from the same transaction or occurrence that is the subject matter of the opposing party’s claim. Rule 13 does not, however, state whether a compulsory claim must be litigated in order to prevent a bar. In contrast, the plain language in Rule 41 clearly states that a defendant has the right to proceed on his or her counterclaim although the plaintiff’s action may have been dismissed, and that the provisions of Rule 41 apply to the dismissal of any counterclaim:

(a) Voluntary Dismissal: Effect Thereof
(1) Subject to the provisions of Rule 23(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.
(2) A voluntary dismissal under paragraph (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.
(3) In any case where a set-off or counterclaim has been previously presented, the defendant shall have the right of proceeding on his claim although the plaintiff may have dismissed his action.
* * *
(c) The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim.

Ark. R. Civ. P. 41. (Emphasis added.) As previously stated, we have held that after a counterclaim has been filed, a plaintiff may once voluntarily dismiss his or her complaint without prejudice to refile it within one year. Lemon v. Laws, supra. Similarly, we hold that under Rule 41, a defendant may once voluntarily dismiss his or her compulsory counterclaim without prejudice to refile it within one year.

For these reasons, we conclude (1) that the Linns timely asserted their compulsory counterclaims for breach of contract, fraudulent misrepresentation, and negligence in the chancery court action, and therefore met the requirements of Rule 13 for those claims; and (2) that the provisions of Rule 41 allowed the Linns to voluntarily dismiss those claims without prejudice to refiling them within one year. This conclusion is controlled by the language in Rule 13 and Rule 41 of the Arkansas Rules of Civil Procedure. Furthermore, this conclusion does not deprive Rule 13 of its efficiency, in that omitted compulsory counterclaims will still be barred in subsequent litigation. Thus, we further conclude that the Linns failed to assert their compulsory counterclaims for breach of good faith and breach of fiduciary duty in the chancery action, and therefore did not satisfy the requirements of Rule 13 for those claims. Consequently, we hold that the trial court properly dismissed, by summary judgment, the Linn’s claims for breach of good faith and breach of fiduciary duty. Flowever, with regard to their previously asserted claims for breach of contract, fraudulent misrepresentation, and negligence, we hold that the trial court erred in granting summary judgment and dismissing those claims, which were not barred by the doctrine of res judicata or by the compulsory counterclaim requirements of Ark. R. Civ. P. 13(a).

Affirmed in part, reversed in part, and remanded.


source: Caselaw Access Project

author: RAY THORNTON, Justice.

license: Public Domain

text:
    Julia D. JONES, Joseph H. Klerekoper, and Jean W. Mallett v. Fairfax ABRAHAM, Jr., Henry Abraham, Martha Abraham, Charles Abraham, Sarah D. Karney, Jeanette D. Stucke, Frances G. Elola, John T. Abraham, Julia D. Shepard, Ruth A. Seymour, and William T. Abraham
    99-1217
    15 S.W.3d 310
    Supreme Court of Arkansas
    Opinion delivered April 13, 2000

      Robert McCollum, Chancellor;

      Wright, Chaney, Berry, Daniel, Slaughter & Hughes, P.A., by: Don P. Chaney and Edward M. Slaughter; and Hatfield & Lassiter, by: Richard F. Hatfield, for appellants.

      Todd Turner, Robert Wright, and Ray Baxter, for appellees.
   RAY THORNTON, Justice.

This case is before us on petition stice. Arkansas Court of Appeals, pursuant to Ark. Sup. Ct. R. l-2(e). In Jones v. Abraham, 67 Ark. App. 304, 999 S.W.2d 698 (1999) (hereinafter “Jones IF), the court of appeals affirmed the trial court’s dismissal of appellants’ suit to enforce an oral contract to make a will. Appellants then petitioned this court for review, contending that the chancellor erred in holding appellants to a heightened standard of proof to survive a motion to dismiss and on other grounds. Appellees filed a cross-appeal. We granted appellant’s petition for review, and we affirm on both the appeal and the cross-appeal.

I. Facts

When John Turner Abraham died in 1949, he was survived by five children, each of whom was to receive one-fifth of his substantial estate. His daughter, Frances Abraham, was the personal representative of the estate, but never filed an accounting, while continuing to manage the estate until her death in 1993. In the early 1970s, her three brothers filed claims against her for failure to file any inventory and accountings for the estate.

Frances had a better relationship with her sister, Sarah, and when Sarah became ill with cancer, Frances moved in to help care for her. In 1973, Sarah wrote a note to Frances transferring her one-fifth share in the estate to Frances “to pay on my debt to you.” Sarah died in 1975, survived by her husband and three children. Her children, appellants in this case, contend that, based on their mother’s conveyance of her one-fifth share to Frances, Frances promised to leave all of her estate to them upon Frances’s death.

At the time of Sarah’s death in 1975, each of the three brothers continued to have a one-fifth interest in their father’s estate. In 1979, Frances paid her brother, Henry, $112,500 for his share, then paid her brother, William, $150,000 for his share, and later conveyed property worth $130,000 to her brother, Fairfax, for his share. In 1979, following these acquisitions, Frances executed a will leaving one-half of her estate to the appellants. In 1980, Fairfax died, then William died in 1987, and Henry died in 1989. Their children are appellees and cross-appellants in this case.

In 1987, Frances executed another will, revoking the 1979 will, and devised her entire estate in equal one-fourth shares to be distributed per stirpes to the children of each of her four siblings. Following Frances’ death in 1993, Sarah’s three children contested this division of the estate, contending that it violated the alleged oral agreement requiring Frances to make a will devising all of the estate to them. The trial court granted appellees’ motion for summary judgment, and the court of appeals determined that the trial court erred in granting summary judgment and reversed and remanded. Jones v. Abraham, 58 Ark. App. 17, 946 S.W.2d 711 (1997) (“Jones F).

Following remand, appellants proceeded to trial in the chancery court on their assertion that Frances had violated the terms of an oral contract to make a will. The chancellor granted appellees’ motion for directed verdict after appellants rested their case. Appellees requested judgment for attorneys’ fees and costs, including costs which accrued after the entry of an offer of judgment. The chancellor denied these requests, and both parties appealed.

The court of appeals affirmed the trial court by a three-to-three decision, and we granted petition for review. On de novo review, we have concluded that the trial court reached the correct result in granting the motion to dismiss and that the ruling should be affirmed, notwithstanding the trial court’s mistaken use of the wrong standard of proof for granting a Rule 50 motion to dismiss. The trial court’s decision in the cross-appeal is also affirmed.

II. Contemporaneous-Objection Rule

In Jones II, the court of appeals did not reach the merits of appellants’ first three points on appeal because it sua sponte cited the “contemporaneous-objection rule” as a ground for denying appellate review of the chancery court’s order of dismissal. Id. Of the two cases cited by the appellate court in support of requiring a contemporaneous objection to the judgment or findings in chancery, neither case is apposite. Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996) is a case from circuit court, and Moses v. Dautartas, 53 Ark. App. 242, 922 S.W.2d 345 (1996) does not address the issue.

We further note that the appellate opinion is in conflict with Morrow v. Morrow, 270 Ark. 31, 603 S.W.2d 431 (1980). In Morrow, we interpreted Ark. R. Civ. P. 46, and held that because appeals from chancery are reviewed de novo, there is no requirement of contemporaneous objections to the findings, conclusions, and decree of the court to obtain review on appeal. Id. For those reasons, we have concluded that the requirement for a contemporaneous objection is not applicable to this case, and Jones II is overruled on this point.

III. Standard of Review

When we grant a petition to review a case decided by the court of appeals, we review it as if it were originally filed in this court. Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998); Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997). All of the issues raised in the court below are before the appellate court for decision, and trial de novo on appeal in equity cases involves determination of fact questions as well as legal issues. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). We will uphold the chancellor’s decision unless it is clearly erroneous. Id.

IV Motion for Directed Verdict

The fundamental issue on appeal is whether the chancellor properly granted appellees’ Rule 50 motion to dismiss. It is well established that, in ruling on a motion for directed verdict, the trial court views the evidence most favorably to the non-moving party and gives that evidence its highest probative value, taking into account all reasonable inferences deducible from it. In determining whether to grant or deny a motion to dismiss, the chancellor must determine whether the evidence would be sufficient to present to a jury if the case were a jury trial. Swink v. Giffin, 333 Ark. 400, 970 S.W.2d 207 (1998).

The chancellor failed to use the proper standard in granting the motion to dismiss. Rather than using the “sufficient evidence” test for motions for directed verdict, he relied upon McDonald v. Petty, 254 Ark. 705, 496 S.W.2d 365 (1973). The McDonald case stands for the proposition that a heightened standard of “clear, cogent, satisfactory, and convincing evidence” is required to determine whether an oral contract to make a will is valid. Id. In McDonald, we stated:

We have long recognized that an oral contract to make a will to devise or a deed to convey real estate is valid when the testimony and evidence to establish such a contract is clear, cogent, satisfactory and convincing. Williams v. Robinson, 251 Ark. 1002, 476 S.W.2d 1 (1972).

Id. The evidence “must be so strong as to be substantially beyond reasonable doubt.” Crowell v. Parks, 209 Ark. 803, 193 S.W.2d 483 (1946). Although the standard enunciated in the McDonald case is applicable to the proof required to establish an oral contract at the conclusion of a case, the standard to be applied to determine whether a Rule 50 motion for directed verdict should be granted during the trial is whether there was sufficient evidence to present to a jury in a jury trial. Swink, supra.

Here, the trial court erred in applying the “clear, cogent, satisfactory, and convincing” standard, rather than the “sufficient evidence” standard, to its consideration of appellant’s motion to dismiss. Notwithstanding this mistake, the trial court will be affirmed where it reaches the right result, even though it may have announced the wrong reasons, and the reviewing court is not constrained by the trial court’s rationale but may go to the record for additional reasons to affirm. State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999).

V. Oral contract to make a will

In our de novo review, we must determine whether sufficient evidence had been presented to the chancellor to support the submission to a trier of fact the question of whether there was an oral contract to make a will between Sarah Klerekoper and Frances Abraham. To survive the motion to dismiss, appellants were required to produce sufficient evidence of the essential elements of an oral contract. Crump & Rodgers Co. v. Southern Implement Co., 229 Ark. 285, 316 S.W.2d 121 (1958)(citing Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950)). We have explained “mutual obligations” as follows:

A contract to be enforceable must impose mutual obligations on both of the parties thereto. The contract is based upon the mutual promises made by the parties; and if the promise made by either does not by its terms fix a real liability upon one party, then such promise does not form consideration for the promise of the other party. ‘[MJutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound’ [citation omitted]. A contract, therefore, which leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other.

Townsend v. Standard Indus., Inc., 235 Ark. 951, 363 S.W.2d 535 (1963) (citations omitted). Mutual promises that constitute consideration for each other are the classic method of satisfying the doctrine of mutuality. J.L. McEntire & Sons, Inc. v. Hart Cotton Co., 256 Ark. 937, 511 S.W.2d 179 (1974).

Based upon our de novo standard of review, we hold that there was not sufficient evidence of mutual obligations for an alleged oral contract between Sarah Klerekoper and Frances Abraham to withstand a motion to dismiss. The trial court was not presented with any written evidence that supported the existence of an oral agreement between the two sisters. The complaint alleges that on or about May 1, 1973, Frances Abraham orally agreed to make a will, leaving all of her property to the children of her sister, Sarah Klerekoper, in return for Sarah’s conveying her one-fifth interest in the J.T. Abraham estate to Frances. After Sarah’s conveyance, it appears that at the time of the alleged agreement, Frances held two-fifths of the J.T. Abraham estate. However, in 1979, after acquiring her three brothers’ interests in the estate, Frances executed a will in which she bequeathed one-half of her estate to appellants. This is contrary to the alleged oral agreement. In 1987, Frances executed a second will that divided her estate into equal one-fourth shares to be distributed to the survivors of each of her siblings. This will is also contrary to the alleged oral agreement.

It was undisputed that Sarah Klerekoper executed documents wherein she voluntarily relinquished to Frances her one-fifth interest in the J.T. Abraham Estate. Sarah executed a “Release of all Claims” in 1974. In this document, Sarah warrants that no other inducements or promise had been made to her in order to induce her to execute the document. It is also undisputed that Sarah prepared a handwritten letter to Frances, dated May 5, 1973, that requests that her one-fifth interest be transferred to Frances “to pay on my debt to you.” These exhibits are written evidence that defeat the notion that Sarah’s transfer was consideration for the performance of an alleged oral contract to make a will. A promise to make a will, where no consideration is shown, will not be enforced. Watts v. Mahon, 223 Ark. 136, 264 S.W.2d 623 (1954).

Appellant Jean Klerekoper Mallet alluded to the agreement between her deceased mother and her aunt in her testimony. She testified that “[Frances] said my mother was going to leave her part of the J.T. Abraham estate to Frances and Frances was going to take care of it. Frances then said what was left of the estate when she passed away would go to my brother, my sister, and me.” However, Ms. Mallet further testified that she had personal knowledge of her uncles’ settlements with Frances. She stated, “When her brothers took Frances to court, they got the part of the J.T. Abraham estate they wanted. I believe that was after my mother [Sarah] died. When Frances told me she was going to leave everything to me, I didn’t know what that would have included. I don’t know whether she had possession of her brother’s portion of the J.T. Abraham estate at that time.”

Appellant Joseph Klerekoper testified that he “never heard anything from Frances about an agreement between Frances and Sarah,” but he did hear about the agreement from his deceased mother. Julia Klerekoper Jones testified that Frances told her prior to 1977 that she would leave her estate to Sarah’s children. Ms. Jones also stated that “[t]here is no writing to prove the agreement I say Frances had with my mother.”

Maurice Klerekoper, Sarah’s husband, testified that Sarah gave her one-fifth interest to Frances by way of a quitclaim deed. He said it was his understanding that Frances would give his children a two-fifths portion of the J.T. Abraham estate. He further testified that he never had any discussions with Frances about the agreement that she and his wife allegedly made.

Appellants proffered the testimony of three disinterested witnesses, who testified that Frances told them she intended to leave her estate to the Klerekoper children. Although the chancellor found all of these proposed witnesses to be credible, he found that “none of these witnesses were able to provide testimony about the existence of any contract between Frances and Sarah or knowledge as to the alleged consideration between Frances and Sarah for the contract.”

Additionally, John Reed testified that Frances told him she bought out her brothers’ interest in the J.T. Abraham estate, and that Sarah gave her interest to Frances. Mr. Reed testified that he was present during a meeting in the late 1970’s between Frances, her attorney, and his legal secretary. Mr. Reed testified that Frances said she bought out her brothers’ interests, and that she had her sister’s [Sarah’s] interest. Mr. Reed further testified that Frances said that, at her death, her property would go to Sarah’s children. However, Mr. Reed’s testimony does not show that Frances’s statement of her intent to give property to Sarah’s children was in consideration of Sarah’s gift to her.

On cross-examination, Mr. Reed testified that it was his understanding that Frances Abraham planned to give appellants her two-fifths portion of the J.T. Abraham estate “simply because she wanted to.” While Mr. Reed’s testimony reflected Frances’s acknowledgment of Sarah’s gift to her, and her intent to leave property to Sarah’s children, his testimony does not demonstrate a quid, pro quo, or a mutual obligation, between Frances and Sarah. None of the witnesses provided evidence as to alleged mutual promises between the two sisters. We are left with the written statements that Sarah’s transfer of her one-fifth share was merely a gift to Frances.

The trial court correctly determined that an element of the contract — exactly what property Frances allegedly agreed to convey to the Klerekoper children — was not proven. In our de novo review, we have concluded that there was not sufficient evidence to support the existence of an oral contract to make a will. We further find that the chancellor’s decision to grant appellee’s motion to dismiss was not clearly erroneous.

VI. Hearsay evidence

Appellants contend that the trial court erred in refusing to admit testimony of third parties to establish Sarah’s intent to make an oral contract with her sister. At trial, several witnesses were prepared to testify to Sarah’s intent in transferring her one-fifth interest to Frances. The chancellor ruled that this evidence was inadmissible as hearsay. Appellants appeal his ruling, arguing that the testimony is admissible under the state-of-mind hearsay exception under Ark. R. Evid. 803(3). This hearsay exception provides in pertinent part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3) A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

In most circumstances, Ark. R. Evid. 803(3) allows for the admission of state-of-mind testimony concerning a victim’s intent to do something in the future. Nicholson v. State, 319 Ark. 566, 892 S.W.2d 507 (1995). We have extended the state-of-mind hearsay exception to situations involving a decedent’s intent to dispose of property when the statements occurred near the death of the declarant. See Easterling v. Weedman, 54 Ark. App. 22, 922 S.W.2d 357 (1996).

The testimony at issue constitutes multiple hearsay. Appellants proffered third-party testimony of statements assertedly made by Sarah Klerekoper purportedly to show Sarah’s intent in giving her one-fifth interest to Frances. However, the testimony was also directed toward proving Frances Abraham’s intent to bequeath her property to appellants. This testimony constitutes hearsay under Ark. R. Evid. 801(c), as it was being proffered for the truth of the matter asserted. Hearsay is inadmissible except as provided by law or by the rules of evidence. Ark. R. Evid. 802. Statements by an out-of-court declarant, both of which are repeated in court by a witness, are inadmissible unless each part of the combined out-of-court statements conforms with an exception to the rule excluding testimony in the form of hearsay. Ark. R. Evid. 805. In this case, Ark. R. Evid. 803(3) permits testimony relating to Sarah’s state of mind, but it does not permit testimony about Sarah’s statements for the purpose of establishing what Frances’s state of mind was. Therefore, the chancery court properly excluded this testimony.

VII. Cross-appeal

As their first allegation of error, cross-appellants argue that this appeal should be dismissed because cross-appellees did not timely and properly docket their record. Under Ark. R. App. P.— Civil 5(a), the record must be filed with the clerk of the Arkansas Supreme Court and docketed therein within ninety days from the filing of the first notice of appeal, unless the time is extended by order of the trial court. Cross-appellants present no convincing argument and no case law on the subject. They merely raise the issue with the court. We have said that when a party cites no authority or convincing argument on an issue, and the result is not apparent without further research, the appellate court will not address the issue. See Webber v. Arkansas Dep’t of Human Servs., 334 Ark. 527, 975 S.W.2d 829 (1998); Country Corner Food & Drug, Inc. v. First State Bank, 332 Ark. 645, 966 S.W.2d 894 (1998).

However, the timely filing of a notice of appeal is essential to our jurisdiction. LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980). In this case, it appears that the record was properly filed. The trial court’s order was entered on January 29, 1998. The notice of appeal was timely filed on March 2, 1998. Appellants properly filed a motion for extension of time for filing of record on May 29, 1998. The order granting that extension of time was filed on June 1. A subsequent order, entered on July 21, 1998, granted another extension of time until August 29, 1998, which was on a Saturday. The record then was filed on the following Monday, August 31, 1998. Filing the record on the following Monday is proper under Ark. R. App. P. — Civil 9. Furthermore, the trial court had authority to grant these extensions of time under Ark. R. App. P. — Civil 5(b). For these reasons, we observe that the record was properly filed with this Court.

As their second allegation of error, cross-appellants argued that the chancellor erred in his denial of attorneys’ fees and costs under Ark. Code Ann. § 16-22-308 (Repl. 1999). In his order, the chancellor stated that he denied the attorneys’ fees for the following reasons:

I am going to grant defendants’ motion to dismiss the plaintiffs’ case. I hope the parties and attorneys understand that I am not na've about this matter. Mr. Abraham left an estate in 1949. He left a Will. I personally believe that there have been more deceptions and more broken promises and more breaches of fiduciary duties and trusts than anybody in this room could possibly ever know or that any judge in the State of Arkansas could ever straighten up. I believe plaintiffs were acting in good faith in trying to enforce what they believe were one of those promises. Plaintiffs’ attorneys did an excellent job under the constraints of Arkansas law and the rules of evidence and the fact that they were trying to prove something that occurred years and years ago with deceased witnesses. For that reason, I am not going to award any attorneys’ fees or costs to any party in this action.

The decision of whether to award attorneys’ fees in a contract case is governed by Ark. Code Ann. § 16-22-308 which provides in pertinent part:

In any civil action to recover on ... breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs. [Emphasis added.]

The operative word in this statute is may. The word may is usually employed as implying permissive or discretional, rather than mandatory, action or conduct and is construed in a permissive sense unless necessary to give effect to an intent to which it is used. Chrisco v. Sun Industries Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). A trial court is not required to award attorney’s fees and, because of the trial judge’s intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party’s counsel, we usually recognize the superior perspective of the trial judge in determining whether to award attorney’s fees. Chrisco, supra. The decision to award attorneys’ fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998); Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). A grant of attorney’s fees is an issue within the sound discretion of the chancellor and will not be disturbed on appeal absent an abuse of discretion. Burns, supra. In this case, we conclude that the chancellor did not abuse his discretion in denying attorneys’ fees and costs.

As their third allegation of error, cross-appellants also argue that they should have been awarded attorneys’ fees under Ark. Code Ann. § 16-22-309 (Repl. 1999) and Ark. R. Civ. P. 11. This argument is unfounded. In order to prevail on a claim for attorneys’ fees, the movant must show, in essence, that there was a complete absence of a justiciable issue of law or fact raised by the opposing party. Ark. Code Ann. § 16-22-309 (b). Cross-appellants never specifically requested that the chancery court award them attorney’s fees pursuant to Ark. Code Ann. § 16-22-309. A party will not be heard to complain on appeal that the trial court did not grant him a particular kind of relief if he did not request it. Fine v. City of Van Buren, 237 Ark. 29, 371 S.W.2d 132 (1963).

Ark. R. Civ. P. 11 provides for sanctions; however Rule 11 requires that a motion for sanctions be made separately from other motions or requests. The separate motion must also describe the specific conduct alleged to be violative of Rule 11. Cross-appellants never requested that the chancery court impose Rule 11 sanctions. Therefore, they are procedurally barred from obtaining attorneys’ fees on this theory.

Cross-appellants also argue that the chancery court erred in denying their motion styled, “Offer of Judgment,” which they hied on October 16, 1997. Cross-appellants filed this motion pursuant to Ark. R. Civ. 68. In pertinent part, cross-appellants’ offer of judgment states:

The [cross-appellants] offer to withdraw any claim for judgment for their attorneys’ fees and costs against the [cross-appellees] in exchange for the [cross-appellees’] dismissal of their lawsuit filed herein.
If this offer is accepted, the [cross-appellees] shaE be entitled to receive one-third of one-fourth of the net value of the estate of Frances Abraham to be calculated at the date of final distribution, as set forth in the Last WiE and Testament of Frances Abraham....
If this offer is not accepted by the [cross-appeEees] and [they] do not receive an award at trial of an amount in excess of the sum represented by this offer, then the [cross-appeEees] shaE be hable to the estate for all costs accrued hereafter and the estate shaE seek judgment for the same as provided by [Ark. R. Civ. P.] 68.

Ark. R. Civ. 68 provides in pertinent part:

At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to aEow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued.

The purpose of Rule 68 is to provide a means by which a defendant can compel the plaintiff realistically to reassess his claim and thereby, perhaps, persuade plaintiff to settle. See Darragh Poultry & Livestock Equipment Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804 (1988).

The chancellor denied cross-appellants’ motion for costs based on their October 1997 offer of judgment. Cross-appellants made a settlement offer of “one-third of one-fourth of the net value of the estate of Frances Abraham,” which was no greater than the minimum amount that cross-appeEees were to inherit under Frances Abraham’s last will executed in 1987. The three appellants were to inherit one-fourth of Frances Abraham’s estate under the 1987 will. Rule 68 is not applicable where a defendant makes an offer of settlement that is no greater than the minimum amount that the plaintiff can recover. The trial court was correct in its ruling.

Finally, cross-appellants argue as an additional reason for affirmance the doctrine of accord and satisfaction. We need not consider their argument because, if we affirm a judgment on one ground, we need not consider alternative grounds for affirmance. Barnhart v. City of Fayetteville, 335 Ark. 57, 977 S.W.2d 225 (1998).

On October 25, 1999, appellees filed a separate petition for taxation of costs and attorneys’ fees, which is denied for the reasons stated above.

We affirm on appeal, and on the cross-appeal.

ARNOLD, C.J. and Brown, J., not participating.

       The difficulty of presenting sufficient evidence for an oral contract to make a will has been reflected in the articulation of public policy considerations by the legislature in enacting Ark. Code Ann. § 28-24-101 (1987). While this statute is not relevant to the disposition of this case, we note that following its adoption in 1981, contracts to make a will or devise, if executed after June 17, 1981, can only be established by: “provisions of a will stating material provisions of the contract; or [a]n express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or [a] writing signed by the decedent evidencing die contract.” Id.


author: LAVENSKI R. SMITH, Justice.

text:
    Joseph HASHAGEN v. Tracy Hashagen LORD
    99-974
    14 S.W.3d 498
    Supreme Court of Arkansas
    Opinion delivered April 13, 2000

      Les Ablondi, Special Chancellor;

      King Law Firm, P.A., by: Brendan M. Donahue, for appellant.

      Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Sam Hilburn and Traci Lacerra, for appellee.
   LAVENSKI R. SMITH, Justice.

Appellant Joseph Hashagen (“Joseph”) appeals e. alimony modification order of the Pulaski County Chancery Court. Appellee Tracy Hashagen Lord petitioned to have alimony resumed after appellant obtained a bankruptcy discharge of his allocated portion of marital indebtedness. This resulted in the creditors pursuing Appellee Tracy Hashagen Lord for payment of those discharged debts. The trial court granted the petition, and reinstated alimony, finding that the bankruptcy discharge constituted changed circumstances warranting modification. Appellant contends that the trial court lacked jurisdiction to make the modification because the order was issued more than sixty days after the filing of the decree contrary to Ark. R. Civ. P. 60(b), and because appellee’s entitlement to alimony ended with her remarriage. We affirm the trial court.

Facts

The Hashagens were married on June 16, 1987. In 1988, their son Zachery was born. On March 30, 1998, the Hashagens separated, and on May 1, 1998, Tracy Hashagen filed a complaint for divorce. Joseph Hashagen filed an answer and counterclaim for divorce. Agreement was reached on a number of items, including custody and visitation. On August 7, 1998, a final hearing was held in chancery, wherein Tracy was awarded alimony of $200.00 per month for thirty-six months, terminable upon remarriage. Tracy remarried twenty-two days later on August 29, 1998, terminating her right to alimony under the terms of the decree.

In the same decree, a division of debts was made, whereby Joseph assumed the obligation to repay a specified two-thirds of the debt, and Tracy the remaining debt. However, rather than pay the debts as ordered, Joseph filed Chapter 7 bankruptcy in the summer of 1998. Not surprisingly, after his debts were discharged, the creditors came to Tracy and demanded she pay the debts Joseph had discharged. Tracy was unable to secure any loans to meet the debt, and therefore made arrangements with a credit management company whereby she would pay off the debts over a sixty-three-month period.

On January 27, 1999, Tracy filed a Motion for Modification of Alimony and Child Support, asserting that Joseph had failed to pay his portion of the debts as ordered, and alleging that her struggles to pay Joseph’s debts constituted changed circumstances and resulted in financial problems and difficulty in supporting herself and their son. A number of pleadings followed, .clarifying that Tracy had remarried.

On August 8, 1999, a hearing was held to consider the motion. The court found the bankruptcy discharge constituted a change in circumstances, and considered the debt as then being paid through the credit management company. Tracy was paying $292.00 per month. The court ordered Joseph to pay alimony of $195.00 per month for sixty-three months, the period required to pay off his discharged debts.

Joseph appeals, alleging that the trial court had lost jurisdiction to modify the alimony decree because more than ninety days had passed since the decree was entered, and because the right to alimony terminates upon remarriage under the statutes.

Jurisdiction

We certified this case from the court of appeals based upon Arkansas Supreme Court Rule l-2(b) as a case involving statutory interpretation, an issue of first impression, or matter of public interest and a significant issue needing clarification or development of the law. The issues it presents are indeed issues worthy of this court’s attention. However, we are unable to reach the merits of the case as the appellant’s abstract is wholly inadequate to permit this court’s review. Rule 4-2 (a) (6) of the Arkansas Supreme Court Rules requires that an abstract contain “such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” The appellant’s abstract is comprised of very limited testimony from the hearing on August 7, 1998, and the hearing on August 8, 1999. It reduces a 189-page transcript to just under three pages. Nor does the appellant abstract the original decree. The appellant also failed to abstract the motion for modification of alimony and support which gave rise to the order that is the subject of this appeal.

As we recently stated in Luttrell v. City Of Conway, 339 Ark. 408, 409, 5 S.W.3d 464 (1999):

Our review of a case on appeal is limited to the record as abstracted in the briefs. Morse v. Sentry Life Ins. Co., 332 Ark. 605, 967 S.W.2d 557 (1998). Rule 4-2(a)(6) of the Arkansas Supreme Court Rules requires that an abstract contain “such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” Failure to abstract a critical document precludes us from considering any issues concerning it. Id.; National Enters., Inc. v. Rea, 329 Ark. 332, 947 S.W.2d 378 (1997). Similarly, when those exhibits necessary for a clear understanding of the issues are not included in the abstract, we will summarily affirm the decision of the trial court. Id. This court has stated on occasions too numerous to count that it is impractical to require all seven justices to examine one transcript in order to decide an issue. Id.; Finnegan v. Johnson, 326 Ark. 586, 932 S.W.2d 344 (1996).

Applying Rule 4-2(a)(6) to the instant appeal, we summarily affirm.

Affirmed.


author: PER CURIAM.

text:
    WENCO FRANCHISE MANAGEMENT, INC., d/b/a Wendy’s v. Donna CHAMNESS
    00-325
    13 S.W.3d 903
    Supreme Court of Arkansas
    Opinion delivered April 13, 2000

      Friday, Eldredge & Clark, by: Betty S. Demory, for petitioner.

      Daggett, Van Dover, Donovan, & Perry, PLLC, by: Joe R. Perry, for respondent.
   PER CURIAM.

WENCO Franchise Management, Inc., d/b/ . Wendy’s, seeks a writ of prohibition to the St. Francis County Circuit Court on the ground that the Workers’ Compensation Commission has exclusive jurisdiction of this case. The pleadings reflect that on May 8, 1996, Donna Chamness, an employee of WENCO, injured her back when she slipped and fell at the Forrest City Wendy’s restaurant. Chamness’s injury was accepted as compensable, and she received benefits. When Chamness later sought additional benefits, WENCO responded by arguing that Chamness was not performing employment services at the time of her accident. A hearing was scheduled before the Commission, but was later canceled at Chamness’s request.

Chamness then filed a negligence suit against WENCO in circuit court. WENCO filed a motion for summary judgment, asserting that Chamness’s exclusive remedy for her injury is under the Workers’ Compensation Act. WENCO asserted further that only the Commission has the authority to determine jurisdiction in this matter. The circuit court denied summary judgment, and WENCO petitioned this court for a writ of prohibition.

The case of VanWagoner v. Beverly Enters., 334 Ark. 12, 970 S.W.2d 810 (1998) is controlling. There, the claimant was employed by Beverly when she tripped and fell on a rug at her place of employment. She filed a claim for benefits under the Act. Beverly denied the claim. A hearing was scheduled before the Commission on the issue of compensability. The claimant later canceled the hearing and filed suit against Beverly in circuit court. The circuit court dismissed the suit with prejudice, and the claimant appealed. This court affirmed the circuit court’s ruling on the ground that the Commission has exclusive jurisdiction to determine the applicability of the workers’ compensation laws. This court stated:

We hold that the exclusive remedy of an employee or her representative on account of injury or death arising out of and in the course of her employment is a claim for compensation under § 11-9-105, and that the commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort.

Id. at 16, 970 S.W.2d at 812 (citations omitted) (emphasis added). WENCO relies on this holding in support of its petition.

Prohibition is an extraordinary writ that is appropriate only when the lower court is wholly without jurisdiction. Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). Where it is clear that the lower court is encroaching on the Commission’s jurisdiction, we will grant the writ. Id. In the present case, there is no dispute that Chamness was employed by WENCO at the time of the injury or that the injury occurred on WENCO’s premises. Nor is it disputed that Chamness has already received workers’ compensation benefits for her injury. Furthermore, it is not alleged by Chamness that her injury resulted from an intentional tort by WENCO. Accordingly, the Commission has exclusive authority to determine the facts that establish jurisdiction in this matter. We thus grant the writ of prohibition.


author: W.H.“DUB” ARNOLD, Chief Justice.

text:
    John KAIL v. STATE of Arkansas
    CR 99-667
    14 S.W.3d 878
    Supreme Court of Arkansas
    Opinion delivered April 20, 2000

      L.T. Simes, II, Judge;

      Paul N. Ford, for appellant.

      Mark Pryor, Att’y Gen., by: Mac Golden, Ass’t Att’y Gen., for appellee.
   W.H.“DUB” ARNOLD, Chief Justice.

The appellant, John W.Kail, was charged with capital murder under Ark. Code Ann. § 5-10-101 (Repl. 1997) for knowingly and with premeditated and deliberated purpose causing the death of a Larry Chappell on October 2, 1997. He was accused of purchasing an SKS 7.62 rifle on October 2, 1997, and, with deliberation, purposefully using said rifle to shoot and kill Larry Chappell, who was appellant’s father-in-law. Appellant was convicted by a jury of murder in the first degree and sentenced to life in prison.

Appellant asserts the following four points on appeal;

The trial court erred in granting the State’s request to prohibit evidence presented by appellant regarding circumstances arising to a level of extreme emotional disturbance;
The trial court erred in denying appellant’s request that the court recuse based upon improper ex parte communications with the family of the decedent;
The trial court erred in refusing to inquire as to the nature of the contact between witnesses and jurors prior to the conclusion of the case;
The trial court erred in denying appellant’s motion for a new trial.

We find no error ón the part of the trial court and hereby affirm the conviction and life sentence of appellant.

I. Prohibition of Evidence

The evidence adduced at trial revealed that on October 2, 1997, at approximately ten o’clock in the morning, appellant went to the home of a neighbor, William Ishmael, and asked Mr. Ishmael to drive him to a pawn shop because he wanted to buy an SKS rifle. Mr. Ishmael drove appellant to the pawn shop, where appellant purchased the weapon. The two then proceeded to the local WalMart store and purchased shells. Then, after purchasing some beer, the two drove out to an area where they could fire their guns, according to Mr. Ishmael.

After shooting for a while, appellant asked Mr. Ishmael to drop him off near a small shed off Highway 284. This drop-off point was less than one-half mile from the victim’s residence. Mr. Ishmael testified that appellant told him a friend would be picking him up there to go hunting, although it was not gun season, according to Mr. Ishmael, it was bow season. Mr. Ishmael testified that it was probably around noon when he dropped appellant off near the shed.

Valerie Chappell, wife of the deceased, testified that sometime between eight and nine o’clock, on the evening of October 2, 1997, gunshots began being fired into her residence near the patio. She testified that her daughter, Kim Chappell Kail, ex-wife of the appellant, was staying at her home and had already gone to bed when the shooting commenced. Mrs. Chappell stated that her husband was wounded by one of the shots and that she saw the appellant standing inside the patio doors with the rifle in his hand. Mr. Chappell later died as a result of the gunshot wound.

At trial, appellant attempted to offer evidence regarding alleged marital discord between appellant and the deceased’s daughter, Kim Chappell Kail, in an attempt to prove that appellant was suffering from an “extreme emotional disturbance” for which there is a reasonable excuse, as set forth in Ark. Code Ann. § 5-10-104 (Repl. 1997), in order to justify a lesser included instruction for manslaughter. The trial court precluded appellant from offering said evidence. Further, the court precluded the appellant from offering any evidence from medical experts or psychological experts to establish an extreme emotional disturbance.

The trial court upheld the position taken by the State that pursuant to the cases of Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997) and Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992), a criminal defendant is not entitled to present any evidence whatsoever with respect to a claim of extreme emotional disturbance for which there is a reasonable excuse, in the absence of some physical provocation in close proximity to the homicide. Appellant contends that this ruling is in error when applied to the case at bar and that, as a result, he was denied a fair trial. Appellant contends that the court’s refusal to give the lesser included instruction of manslaughter amounted to error because he contends it is reversible error to refuse to give an instruction on a lesser included offense when the instruction is supported by even the slightest evidence. See Spann, supra.

We have held that a trial court is accorded wide discretion in evidentiary rulings and will not be reversed on such rulings absent a manifest abuse of discretion. See Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). Flere, the trial court found the evidence sought to be admitted by appellant to be remote, due to a lack of provocation; further, the court found the evidence to be prejudicial, confusing, and a waste of time under Ark. R. Evid. 403. The court explicitly stated, when appellant sought to present evidence of his marital strife and divorce from Kim Chappell Kail, the victim’s daughter, that it did not want to have a divorce trial within the context of the appellant’s criminal trial.

Regardless of the trial court’s reasons for determining that appellant’s'proffered evidence should be excluded, appellant has failed to demonstrate what prejudice he suffered by said exclusion by fading to establish how the inclusion of such evidence would have provided a rational basis supporting a manslaughter instruction pursuant to Ark. Code Ann. § 5-10-104(A)(l). Appellant is correct in stating that an instruction on a lesser included offense should be given if it is supported by the slightest evidence. See Spann, supra. However, we have held that we will affirm a trial court’s decision to exclude a lesser included offense instruction if there is no rational basis for giving the instruction. Id. We held in Spann that it is not error to refuse to give an instruction on manslaughter where there is no evidence of extreme emotional disturbance. Id. at 513, 944 S.W.2d at 539. We further held that:

...[P]assion springing from anger, resentment, fear, or terror will not alone reduce a homicide from murder to manslaughter; there must be a provocation inducing the passion such as physical fighting, a threat, or a brandished weapon which makes the passion irresistible.

Spann, 328 Ark. at 514-15, 944 S.W.2d at 540, quoting from Rainey v. State, 310 Ark. at 423, 837 S.W.2d at 455, quoting Wooton v. State, 232 Ark. 300, 337 S.W.2d 651 (1960).

Despite feelings of individuals who are suffering marital discord, the frustration, anger, and resentment that can result fails to constitute, on its own, a rational basis for giving an instruction on voluntary manslaughter. Whether expressed in terms of “heat of passion,” (as it was formerly referred) or scientifically defined as “extreme emotional disturbance,” see Rainey, 310 Ark. at 424, 831 S.W.2d at 456, the instruction requested by the appellant requires a basis in fact indicating that the appellant killed Larry Chappell in the moment following “provocation in the form of physical fighting, a threat, or a brandished weapon,” as we stated in Spann.

Clearly, no evidence of provocation has been demonstrated in this case. Appellant argues that he had witnesses who would have testified that Larry Chappell had threatened to kill him in the past. However, the trial court ruled that this evidence would be hearsay and that it was unlikely such testimony would be otherwise admissible. Therefore, even in the face of the appellant’s proffered hearsay evidence of prior verbal threats allegedly made by Larry Chappell, remote in time from the homicide, no evidence of provocation existed in this case.

The evidence adduced at trial is clear that appellant armed himself, invaded the victim’s home, and shot him dead. It is true that his divorce from Mr. Chappell’s daughter may have aroused unbalancing passion within the appellant, but absent any provocation, no rational basis existed upon which the trial court could instruct the jury on manslaughter due to extreme emotional disturbance.

As such, we hold that the trial court did not abuse its discretion in prohibiting such evidence.

II. Recusal

This court has held that the decision to recuse is within the trial court’s discretion, and that decision will not be reversed absent abuse. See Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999). Abuse must be proven by the party seeking to disqualify by showing bias or prejudice on the part of the trial court, and there exists a presumption of impartiality. Id.

Neither a review of the record in this case nor any demonstration by appellant in his brief reveals prejudice on the part of the trial court against the appellant. The trial court granted the appellant’s pretrial motion to view the crime scene, that being the victim’s home. On the day of trial, appellant filed a motion to recuse with the trial court. Appellant recounted that when he and his counsel viewed the crime scene, difficulties arose with the victim’s wife who stated that she was going to “call the judge” and that she “had talked to him before and he said I can call him back if I need anything else.” Appellant alleged in his motion to recuse and, likewise, argues on appeal that if communication had taken place between the court and the victim’s wife, the court should have disqualified itself from the case.

The trial court denied the motion to recuse. In so doing, the judge stated that during the time of the appellant’s visit to the crime scene, and while he was presiding over another trial in a different city, he received a call from his case coordinator, informing him that there was trouble at the crime scene because of the appellant’s visit. The case coordinator had spoken to the victim’s wife, and the wife had stated that she did not want the appellant in her home. The court noted that it was sensitive to the complaint because of the order allowing the appellant to view the crime scene. The court then stated:

I felt I should try to resolve the matter if at all possible, because one, we knew the trial was coming this day and I didn’t know the extent of it, but it appeared to be an emergency situation. And I had my case coordinator to make certain that Mrs. Kail [he] understood that I ordered the permission to view the scene; did not want to intrude upon her, but I had done so. And, under the circumstances, there was nothing else I could ask her to do but to cooperate. So, I hadn’t heard anything from it until this morning.

The court noted that Canon 3(B)(7) (1999) of the Arkansas Code of Judicial Conduct supported its decision to communicate between the case coordinator and the victim’s wife. The court further declared that the communication in no way gave any party a tactical advantage in the case; that the court was going to give each party a fair trial; and, that the court was not going to make any distinction or take any side in the case.

Based upon the record made by the trial judge regarding the contact between the court and the victim’s wife, we do not believe the trial court abused its discretion in refusing to recuse. As the trial court noted, Arkansas Code of Judicial Conduct Canon 3(B)(7)(a) allows for communication outside of the presence of the parties when the circumstances require such contact “for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits ... provided: (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result ... and (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.”

While it is true that the trial court did not promptly notify the parties of the communication, the court did explain the substance of the communication and allowed the parties to respond when it considered the appellant’s motion. The court was quite explicit that it acknowledged the communication only to facilitate the court’s order allowing the appellant to view the crime scene. As such, the trial court was clearly not biased or prejudiced against the appellant. Indeed, the court was assuring that the appellant received the relief requested pursuant to the granted motion to view the crime scene.

The appellant has failed to objectively demonstrate any point of prejudice on the part of the court which would call for this court to reverse the trial court’s refusal to recuse. See Simmons v. State, 314 Ark. 310, 862 S.W.2d 245 (1993) (citing Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983)). While appellant alleges that prejudice lies in rulings made by the court later in his trial (which he challenges in other points in this appeal), we have clearly held that the mere fact that some rulings are adverse to the appellant is not enough to demonstrate bias. See Gates, 338 Ark. at 545, 2 S.W.3d at 48.

We hold that the trial court did not abuse its discretion in refusing to recuse in the instant case.

III. Improper Contact with Jurors

After the appellant had rested his case at trial, and just before the trial court instructed the jury, the appellant asked the court to inquire of the jury as to whether any of its members had conversed with a witness. Appellant alleged that four jurors had been seen talking to a State’s witness during the preceding break, although the judge had cautioned them at the beginning of the trial not to even “pass the time of day.”

The prosecutor informed the court that the area in which the jurors and witness had been seen was the designated “smoking area” of the building, and that any persons — attorney, witnesses, or jurors — who wanted to smoke had to use that area. Defense counsel asked the judge to inquire as to what conversations, if any, had occurred between the jurors and the witnesses, in order to determine whether a mistrial would be necessary. The court refused to question the jurors or the witness. Appellant claims that he was, thereby, precluded from making any further record regarding the alleged conversations between these individuals.

We have held that the appellant bears the burden of demonstrating that a reasonable possibility of prejudice resulted from the alleged improper contact. See Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995). Here, the appellant has failed to demonstrate what prejudice, if any, he has suffered as a result of the court’s denial of his request to inquire regarding the alleged inappropriate contact between jurors and a witness. Appellant could have, at the least, proffered the testimony of the person who allegedly saw the jurors and witness interacting; he failed to make such a proffer. Further, appellant produced no affidavits, either with his motion for new trial or with this appeal, which would demonstrate possible error.

We have held that reversible error cannot lie upon allegation alone. See Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997) (noting that Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), established the rule that simply because error is committed, it is not presumed prejudicial). Furthermore, a mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial; and, the appellate court will not reverse a trial court’s decision to deny a motion for mistrial except for an abuse of discretion or manifest prejudice to the complaining party. See Griffin v. State, supra. Moreover, the judge is accorded broad discretion in this regard, and while we note that a simple inquiry by the judge of the jurors, or the witness, or both, would have been the preferred method of addressing the situation, we cannot say that the trial judge abused his discretion by refusing to make an inquiry when we have not been presented with any demonstration of prejudice to the appellant as a result of the trial court’s ruling. As such, we hold that the trial court did not abuse its discretion in this regard.

IV Motion for New Trial

The appellant filed a motion for new trial on the grounds that the trial court refused to inquire, or allow his counsel to inquire, as to whether any jurors had improper contact with a witness, and that the court failed to allow him the opportunity to make a record to support his recusal motion. The court never ruled on the appellant’s motion for new trial; thus, it was deemed denied thirty days after it was filed, pursuant to Ark. R. App. P. — Crim. 2(a)(3) (1999).

The appellant’s motion for new trial presented grounds which, in effect, mirror his arguments in points II and III, above; as such, because we have found no error on the part of the trial court with regard to points II and III above, we hold that the appellant’s argument regarding the denial of his motion for new trial is moot, and need not be addressed.

V. Rule 4-3(h) Compliance

In accordance with Ark. Sup. Ct. R. 4-3(h) (1998), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal, and no reversible errors were found. We affirm appellant’s judgment of conviction and sentence imposed.

Affirmed.


author: TOM GLAZE, Justice.

text:
    Tammy CUNNINGHAM v. STATE of Arkansas
    00-202
    14 S.W.3d 869
    Supreme Court of Arkansas
    Opinion delivered April 20, 2000

      Hagier & Horwart, by: J. Eric Hagier, for petitioner.

      Mark Pryor, Att’y Gen., by: Darnisa Evans, Sr. Ass’t Att’y Gen., for respondent.
   TOM GLAZE, Justice.

Petitioner Tammy Cunningham files ipetition ce. us requesting we issue a writ of prohibition to the Benton County Circuit Court, ordering it to dismiss a felony count of manufacturing methamphetamine. We accepted jurisdiction of this matter under Rule l-2(a)(3) and Rule 1-2(b)(1),(2),(3), and (5) (1999). Basically, Cunningham had a felony conviction and charge filed against her and pending in Missouri and Arkansas at the same time. She now claims Arkansas authorities violated the Interstate Agreement on Detainers (IAD), Ark. Code Ann. § 16-95-101, Article 111(a) (1987), by failing to bring her to trial within the statute’s limitation period of 180 days after she notified the Arkansas prosecuting attorney of her place of imprisonment in Missouri and requested a final disposition of the Arkansas felony charge. Cunningham’s contention is without merit; therefore, we deny her petition.

On September 22, 1997, Cunningham was convicted in Missouri of possession of a controlled substance and sentenced to three years; she commenced serving that sentence on November 13, 1998. On December 12, 1997, the Benton County Prosecuting Attorney obtained an arrest warrant against Cunningham for the methamphetamine charges. The Arkansas drug crimes were alleged to have occurred on October 13 and 15 of 1997 — after her Missouri conviction, but before she started serving her term in prison in that state on November 13, 1998. On December 15, 1998, Cunningham, while in a Missouri correctional center, signed an Interstate Detainer Agreement, which was mailed to the Arkansas prosecutor and received by him on December 23. The agreement on detainer notified the prosecutor of Cunningham’s request that a final disposition be made of the Arkansas drug charge pending against her. On February 24, 1999, Cunningham was brought to Arkansas and placed in jail, after which she was formally charged and arraigned in early March 1999. While Cunningham was in Arkansas, Missouri released her on parole on March 26, 1999.

On July 12, 1999, the Benton County Circuit Court appointed counsel for Cunningham, and four different trial settings were scheduled by the court between July 12 and September 27, 1999. All trials were continued, and those continuances were charged against Cunningham. On September 27, Cunningham moved to dismiss the Arkansas drug charge, arguing the State had violated the IAD 180-day limitation period. She claimed the 180-day period commenced when the Benton County Prosecutor received her notice on December 23, 1998, and ended on June 21, 1999. She points out that not only had she not been brought to trial within 180 days from the receipt of her notice in Arkansas, but also over 200 days had expired before she was even appointed defense counsel.

The State rejoined that the IAD-limitation period was inapplicable after Missouri authorities placed Cunningham on parole on March 26, 1999, and that Arkansas’s speedy-trial rule and limitation period of twelve months applied to her felony charge. See Ark. R. Crim. P. 28.1 and 28.2 (1999). The State submits Arkansas’s speedy-trial time commenced when Cunningham was incarcerated on February 24, 1999. Under the State’s view, Cunningham needed to be tried on or before February 24, 2000. Thus, because all continuances of Cunningham’s trial have been attributable to her since July 12, 1999, the State asserts Arkansas’s speedy-trial limitation has not, as yet, expired. We agree.

Article 111(a) of Arkansas’s Interstate Agreement on Detainers, see § 16-95-101, is the provision upon which Cunningham relies, and it reads in relevant part as follows:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

In analyzing the IAD, we first note that it represents a compact among 48 states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States. See Cuyler v. Adams, 449 U.S. 433 (1981). The IAD is a congressionally sanctioned interstate compact within the Compact Clause, U.S. Const, art. I, § 10, cl. 3, and thus is a federal law subject to federal construction. Id. The Supreme Court in Carchman v. Nash, 473 U.S. 716, 719 (1985), stated that the purpose of the IAD is “to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.” It has also been stated that the IAD is “only concerned that a sentenced prisoner who has entered into the life of the institution to which he or she has been committed for a term of imprisonment not have programs of treatment and rehabilitation obstructed by numerous absences in connection with successive proceedings relating to pending charges in another jurisdiction.” United States v. Roberts, 548 F.2d 665, 670-71 (6th Cir.), cert. denied, 431 U.S. 931 (1977).

The issue to be decided is whether Cunningham continued under the term of her imprisonment for IAD purposes after Missouri released her on parole. The courts having construed Article 111(a) have generally stated that once a prisoner is released on parole, he or she is no longer in the class of prisoners covered by the IAD. See United States v. Black, 609 F.2d 1330 (9th Cir. 1979); see also United States v. Saffeels, 982 F.2d 1199 (8th Cir. 1992) (when revocation of prisoner’s parole was pending, even though prisoner was in jail awaiting trial, his status was no different than that of a pretrial detainee, and “by its own terms, Article III [of the IAD] only applies during the period when a prisoner continues to serve a term of imprisonment”); cf. United States v. Reed, 620 F.2d 709 (1980) (neither a pretrial detainee nor a parole violator has a sufficient interest in the rehabilitation programs of his confining institution to justify invocation of the IAD); United States v. Harris, 566 F.2d 610 (8th Cir. 1977) (where court held IAD did not apply to a pretrial detainee who was awaiting trial and not subject to imprisonment term, and stated the IAD appears plainly limited to a prisoner — serving a term of imprisonment).

State cases have held similarly. For example, in State v. Dunlap, 290 S.E.2d 744 (N.C. App. 1982), the court held that, upon the release of a defendant on parole from prison in New York before the expiration of the 180-day period, the IAD no longer governed defendant’s right to a speedy trial. The Dunlap court explained that the defendant’s right to a speedy trial was fully protected under North Carolina’s Speedy Trial Act, and it further reasoned that once the defendant was released on parole, the cloud of the detainer no longer had an adverse effect on the prisoner’s status within the prison. See also Womble v. State, 957 S.W.2d 938 (Tenn. Crim. App. 1997) (protections of the Compact do not extend to a defendant who has been placed on parole in the sending state; the plain language of the Compact indicates that a “term of imprisonment” does not include a term of parole); State v. Foster, 812 P.2d 440 (Or. App. 1991) (when defendant was released on parole, the relevant term of imprisonment ended).

While not cited to us, our research reveals the case of Snyder v. Sumner, 960 F.2d 1448 (9th Cir. 1992), where the court held that the IAD continued to apply to a prisoner when he or she was paroled by the sending state while awaiting trial in the receiving state. The court further concluded that once the defendant had been received by the receiving state, the IAD’s limitation period started to run and could not be turned off by a grant of parole by the sending state. The Snyder court expressed its concern that to hold the IAD inapplicable in these circumstances would undermine the Act’s purposes by giving the receiving state a way to bypass the requirements of the IAD. We simply do not share the Snyder court’s concerns that the IAD’s requirements can or will be so easily manipulated by the states, but more importantly, we believe that the rationale in Snyder ignores the plain language contained in Article 111(a) of the Act, which, by its own terms, provides the IAD only applies during the period when a prisoner continues to serve a term of imprisonment.

In conclusion, we acknowledge Cunningham’s reliance on Loane v. State, 12 Ark. App. 374, 677 S.W.2d 864 (1984). There, the defendant had been serving a sentence in Oklahoma when an information was filed against him in Arkansas and he was brought to this state pursuant to the IAD. While in Arkansas, the defendant was paroled by Oklahoma authorities and released on bond in this state. For that reason, the trial court ruled that Rule 28.1, rather than the IAD, provided the speedy-trial rules to be applied from the time of the defendant’s release on bond. The court of appeals disagreed, holding that the trial court erred when it refused to apply the IAD speedy-trial rules just because the defendant was out on bond. The court of appeals extracted from Blackmon v. Weber, 277 Ark. 393, 642 S.W.2d 294 (1982), the fact that the defendant there had been out on bond, yet this court had “held that the speedy-trial rules of the [IAD] still applied.” Loane, 12 Ark. App. at 376.

In short, while Loane might be read to support Cunningham’s position, that decision made no mention of the Supreme Court’s Cuyler holding, nor was the Loane court given the benefit of the arguments and other legal authorities of which we have been apprised in this appeal. Nonetheless, to the extent our decision conflicts with Loane, that decision is overruled.

For the reasons above, we deny Cunningham’s petition.

       We note that in Snyder the Ninth Circuit Court of Appeals reversed the district court which relied on United States v. Black, 609 F.2d 1330 (9th Cir. 1979), cert. denied, 449 U.S. 847 (1980). The lower court decided the IAD no longer applied when Snyder was paroled. The Snyder court distinguished its earler Black decision by stating that defendant Black lost his IAD right because he was sent to the receiving state to serve a sentence already imposed.