author: ¡ Frank Holt, Justice. Darrell Hickman, Justice,

text:
    Ivan H. SMITH et al v. The CITY OF LITTLE ROCK, Arkansas et al
    82-266
    648 S.W.2d 454
    Supreme Court of Arkansas
    Opinion delivered March 28, 1983

      Appellant, pro se.

      R. Jack Magruder, III, City Atty., for appellee, City of Little Rock.

      Wallace, Hilburn, Clayton, Calhoon ir Forster, Ltd., by: Sam Hilburn, for appellees Jeannie Hoover, Edna Jones and John L. Burnett.
   ¡ Frank Holt, Justice.

The Little Rock City Board of Directors voted unanimously to change the zoning classification of property located at 4908-4932 West Markham, between Monroe and Jackson Streets, from a single family and quiet office classification to “C-3”, a general commercial classification as requested by the property owners. A Wendy’s restaurant is to be constructed on that site if rezoned. The appellants, who are property owners in that vicinity, filed suit in chancery court to have the rezoning set aside. The chancellor held there is a presumption the Board had acted in a reasonable manner and the appellants had failed to meet their burden of proof which requires them to demonstrate the arbitrariness of its action, so he denied the petition. We affirm.

The appellants first contend: (1) The Court erred in not holding that the City of Little Rock was arbitrary and capricious in acting contrary to Arkansas law as stated in City of Little Rock v. Faith Evangelical Lutheran Church, 241 Ark. 187, 406 S.W.2d 875 (1966); (2) The Court erred in not finding the City of Little Rock to be arbitrary and capricious in creating a commercial zone in the middle of a residential block; (3) The Court erred in not finding that the zoning ordinance Number 14 196 was unrelated to the public health, safety, moral and general welfare of the city and that the power of the city board in passing the ordinance was, therefore, arbitrary and capricious; and (4) The Court erred in not finding the City of Little Rock to be arbitrary and capricious in failing to consider the rights of the residents who have relied upon the existing residential zoning. We will discuss these points together since they relate to whether the rezoning by the city was arbitrary and capricious.

The standard of review applicable here is well settled. The decision of the chancellor will be affirmed unless it is clearly erroneous (clearly against the preponderance of the evidence). ARCP, Rule 52 (a); City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981). There we also said there is a presumption that the City Board acted in a fair, just, and reasonable manner when it rezones or refuses to rezone property and the burden is on the persons attacking the rezoning or refusal to show otherwise. The courts do not have the authority to review zoning legislation de novo. City of Conway v. Conway Housing Authority, 266 Ark. 404, 584 S.W.2d 10 (1979). There we said:

[W]hen a municipality, pursuant to authority granted by the General Assembly, takes action in zoning classifications, it is exercising a legislative function and is not subject to review by the courts of its wisdom in so doing.... The judiciary has no right or authority to substitute its judgment for that of the legislative branch of government. In zoning matters the General Assembly has delegated legislative power to the cities in matters relating to zoning property. The role of the courts is, therefore, simply to determine whether or not the action of the municipality is arbitrary. Arbitrary has been defined as ‘arising from unrestrained exercise of will, caprice, or personal preference, based on random or convenient choice, rather than on reason or nature.’ Courts are not super zoning commissions and have no authority to classify property according to zones.

To the same effect are City of Batesville v. Grace, 259 Ark. 493, 534 S.W.2d 224 (1976); and City of Little Rock v. Parker, 241 Ark. 381, 407 S.W.2d 921 (1966).

The appellants argue, inter alia, that the rezoning here is inconsistent with The Heights/Hillcrest Plan, a guide for land use decisions adopted in an ordinance on March 17, 1981. This plan, of course, serves only as an advisory or guide and is not binding. Taylor v. City of LR, 266 Ark. 384, 583 S. W.2d 72 (1979). Here, eight property owners in the area testified that the rezoning to allow a Wendy’s restaurant to be built would have detrimental effects on the largely residential neighborhood; e.g., there would be increased traffic problems and hazards, noise, litter, unpleasant odors, vandalism, lights shining into windows at night, and rodents. One was of the view it would be spot zoning. Most of the witnesses were longtime residents in the area. None of the property owners testified they had relied upon the recent Heights/Hillcrest Plan, but some did testify they had chosen to live in the area because of the type of neighborhood it was.

The property in question is, as indicated, located between Monroe and Jackson Streets on the north side of the Markham Street corridor. On the south side of Markham are located the State Hospital, the University of Arkansas Medical Center, War Memorial Park (directly across from the subject property), the State Health Department, and War Memorial Stadium. Jerry Speece, Zoning Administrator for the City of Little Rock, testified in detail with respect to the character of the area on the north side of Markham Street. To the east on the same block are located a single family home and an establishment which sells and rents scuba diving equipment. On the six blocks east of Monroe are located a savings and loan, a branch bank, Peck’s Drive-In, a liquor store, a drug store, and other businesses. In the three blocks west of the rezoned property are situated a McDonald’s restaurant, an Exxon station, the Black Angus restaurant, a Kentucky Fried Chicken restaurant, Rob’s restaurant, and a motel. Speece also testified that the volume of traffic on Markham is 6,000 to 8,000 vehicles per day below its capacity. He said the Heights/Hillcrest Plan is merely a general guide for city planning and, furthermore, the rezoning in this case is not inconsistent with that plan. He stated the rezoning did not constitute spot zoning, because spot zoning involves zoning one lot in a manner entirely different from the surrounding area, which was not done here. A building permit mandates certain lighting requirements to prevent reflection of lights on adjacent property. The zoning ordinance requires the construction of a four foot opaque fence between commercial and residential property. Access to the rezoned property is limited to Markham Street. In his opinion, as a professional planner, the rezoning from single family and quiet business to commercial use is a reasonable classification.

We cannot say that the decision of the chancellor holding that the rezoning by the City Board of Directors was not arbitrary and capricious is clearly erroneous.

Neither is the decision of the chancellor contrary to our holding in City of Little Rock v. Faith Evangelical Lutheran Church, supra. There we held the refusal of the City of Little Rock to rezone these properties to “F” commercial was not an arbitrary and capricious decision. We did not hold that it would have been arbitrary and capricious for the city to so rezone the property. We did say, as appellants argue, the proper zoning classification for the property would be “E-l” Quiet Business, but that dictum was merely a comment on the evidence presented in that case and not a decision of this court imposing on the City an unalterable zoning classification for this location.

Appellants next contend that the City Board acted arbitrarily and capriciously in limiting residents to ten minutes in which to present their objections. However, the City Planning Commission had held two public hearings at which the residents were allowed to state their objections. These objections were transcribed and furnished to the City Board before the meeting at which the rezoning decision was made. Hence, this case is unlike Wenderoth v. Freeze, Mayor, 248 Ark. 469, 452 S.W.2d 328 (1980), upon which appellants rely, where we held that property owners were arbitrarily denied their right to present their objections to a reclassification to the Planning Commission.

Next appellants assert that the court erred in excluding from the evidence the answers to interrogatories given by the members of the City Board. The appellants sought to introduce the interrogatories and answers during the cross-examination of Speece. Although the interrogatories were placed in the record, they are not abstracted. The answers were neither placed in the record nor abstracted. The burden is upon the appellant to bring up a record sufficient to demonstrate that the trial court committed reversible error. King v. Younts, 278 Ark. 91, 643 S.W.2d 542 (1982); SD Leasing v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). Appellants failed to meet their burden on this issue.

Finally appellants contend that the chancellor abused his discretion in refusing to grant them a continuance in order to subpoena the members of the City Board of Directors, after the chancellor refused to admit the interrogatories into evidence. Eight witnesses had testified at the time the appellants moved for a continuance. It is apparent from the record that they had ample opportunity to subpoena whomever they wished before the hearing. Pursuant to ARCP, Rule 40, the granting or denial of a continuance is a matter within the sound discretion of the court, and such a ruling will not be disturbed unless the trial court abused that discretion by acting arbitrarily and capriciously. Bolden v. Carter, 269 Ark. 391, 602 S.W.2d 640 (1980). Here, the chancellor did not abuse his discretion.

Affirmed.

Hickman, Smith and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The majority has taken a rather passive role in this case and decided to uphold a decision by the Little Rock City Board of Directors which rezones five residential lots to a high commercial use, thereby permitting the construction of a fast-food outlet, Wendy’s, in the middle of a residential area. The only justification for the city’s action can be that the lots are located not far from a commercial area on West Markham Street, which includes a McDonald’s restaurant, an Exxon station and several other similar types of commercial enterprises. In my judgment this case represents a retreat to the city development approach approved in City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1925).

In my opinion the city’s action was arbitrary for two reasons: First, this is clearly a case of spot zoning and therefore arbitrary; second, it is a flagrant breach of faith with the history of the area, the city’s plan, and a decision this court made regarding this very property in 1966. City of Little Rock v. Faith Evangelical Lutheran Church, 241 Ark. 187, 406 S.W.2d 875 (1966). Furthermore, the only justification I can find for permitting the fast-food restaurant to be built is that the landowners want to make money and the enterprise will benefit the city economically by jobs. Neither is a legal justification for rezoning these lots.

Spot zoning has been said to be invalid when it is primarily for the private interest of the owner of the property affected, and not related to the general plan for the community as a whole. 1 E. Yokley, ZONING LAW AND PRACTICE § 8-3 (1965).

See Lindsey v. City of Fayetteville, 256 Ark. 352, 507 S.W.2d 101 (1974); Tate v. City of Malvern, 246 Ark. 316,438 S.W.2d 52 (1969).

There is a serious disagreement about the facts and their relative value in this case. But more important than that, and even this case itself, is the purpose of city planning, and our role, which is to keep the city honest. By and large the city of Little Rock has had good plans for the entire city. When the city has defended those plans against commercial assaults, we have, by and large, upheld them as we should have. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981); Kirk v. City of Little Rock, 275 Ark. 128, 628 S.W.2d 21 (1982). Just recently in two cases concerning the same area of the city as this case, Hillcrest/Pulaski Heights, the city refused to retreat one iota from its plan. The request was to allow a small private school to be located in a residential area. McMinn v. City of Little Rock, 275 Ark. 458, 631 S.W.2d 288 (1982); City of Little Rock v. Infant-Toddler Montessori School, 270 Ark. 697, 606 S.W.2d 743 (1980). We had exactly the same situation in those cases that we have here: Nearby commercial enterprises which had been there for years, but no changes in recent years; and an existing comprehensive plan to protect a quiet residential area. Twice the city refused to rezone property to permit the school, although the evidence showed that it would not be a great disruptive factor to residents who wanted the peace and quiet of such a neighborhood. Now we have the same City Board of Directors deciding to place a fast-food restaurant in the middle of a residential area in violation of its own plan. While there are nearby commercial enterprises, not a single one has been added since our decision in City of Little Rock v. Faith Evangelical Lutheran Church, supra, made in 1966 regarding this very property. The McDonald’s restaurant referred to was built on a lot already zoned for such a use. In Faith Evangelical Lutheran Church, we upheld the city’s decision to protect this part of Markham Street used primarily as a residential area, and we upheld the city’s refusal to allow any more commercial intrusions into this neighborhood. Actually the area allows a use for quiet business purposes but there was no objection voiced by any of the landowners of such a use; it was the prospect of a fast-food restaurant that raised their ire, as it should have. Who would want such a place next to their home? At best, they are intolerable; at worst, they are noisy, unsanitary, unsightly, bright at night, odorous, and attract large amounts of traffic. Such an enterprise is totally incompatible with single family residences. Such places do not close down at 5:00 p.m.; in fact, that is when they begin to reach one of their busiest periods, just when the next-door neighbors will arrive home to their haven from the noise, hustle and bustle of city life.

The majority does not address the question of whether this was spot zoning. It simply says Jerry Speece, Zoning Administrator for the city of Little Rock, testified that in his opinion this was not spot zoning and not an incompatible use. He was wrong in both instances. (He conceded he did not participate in preparing the Hillcrest/Pulaski Heights Plan.) It is undisputed that the five lots are surrounded on three sides by residences. On the other side is Markham Street. It is a busy street, one of the avenues to funnel traffic to and from downtown Little Rock. But that alone cannot be a factor justifying rezoning. See Lindsey v. City of Fayetteville, supra. More importantly, West Markham is the southern boundary of Pulaski Heights/Hillcrest area, a residential area of uncommon beauty and sérenity. There have been no changes in the area since 1966. It is an old residential area, improving in quality, not declining. In the City of Little Rock v. Infant-Toddler Montessori School, supra, we described this area as:

. . . being a strong residential one where values are up instead of down and the property is well maintained. The area was described as one of the prime residential neighborhoods in the city which has been established for some 50 years and successfully sustained.

This part of Markham Street is a boundary that has to remain inviolate if the integrity of the Pulaski Heights/ Hillcrest area is to be maintained. Several residents testified they had improved their residences next to this property, after our decision in 1966, relying on that decision that the area would not go commercial, but would remain primarily residential.

It is incredible that the zoning administrator said this was not spot zoning:

Spot zoning amendments are those which by their terms single out a particular lot or parcel of land, usually small in relative size, and place it in an area, the land use pattern of which is inconsistent with the small lot or parcel so placed, thus projecting an inharmonious land use pattern. 1 E. Yokley, supra, § 8-3
Spot Zoning . . . singles out a small parcel of land for use in a manner inconsistent with the other predominant land uses in the area. R. Wright, Zoning Law in Arkansas: A Comparative Analysis, 3 UALR L.J. 421, 442 (1980).

These are perfect descriptions of what happened in this case. Why do cities spot zone property? “Such amendments are usually triggered by efforts to secure special benefits for particular property owners, without proper regard for the rights of adjacent owners.” 1 E. Yokley, § 8-3. And that is what happened in this case. It is universally agreed that spot zoning is arbitrary. D. Hagman, URBAN PLANNING AND LAND DEVELOPMENT CONTROL LAW, § 93 (1975); 1 N. Williams, AMERICAN LAND PLANNING LAW, §27 (1974); R. Wright, supra, at 442. In Riddell v. City of Brinkley, 272 Ark. 84, 612 S.W.2d 116 (1981), we said:

Spot zoning, by definition, is invalid because it amounts to an arbitrary, capricious and unreasonable treatment of a limited area within a particular district. As such, it departs from the comprehensive treatment or privileges not in harmony with the other use classifications in the area and without any apparent circumstances which call for different treatment. Spot zoning almost invariably involves a single parcel or at least a limited area. R. Wright and S. Webber, Land Use (1978).

I would not hold the city’s action arbitrary simply because the protestants were only allowed ten minutes to speak, but it is certainly an indication that the board had made up its mind. The majority says the board had been furnished with the record of two public hearings before the Planning Commission. I do not know that they had full knowledge of all the facts. All we know is the “minutes” of those hearings were furnished.

The staff of the city Planning Commission opposed this rezoning effort, as they should have, because it was contrary to a plan they had just adopted, the Heights/Hillcrest Plan, adopted in 1981. That plan was adopted by the city just months before the decision was made to rezone this property. In two meetings the Planning Commission could not agree on the rezoning request and it was referred to the board to make the decision. It was approved unanimously after allowing the residents ten minutes to speak.

I do not suggest we substitute our judgment for that of a city in a rezoning matter. In the distant past we have done so with regularity. M. Gitelman, Judicial Review of Zoning in Arkansas, 23 ARK. L. REV. 22 (1969). In the recent past we have, in my judgment, rather consistently applied the principle of appellate review that we should have, and that is only to determine if the decision by the city was arbitrary. McMinn v. City of Little Rock, supra; Riddell v. City of Brinkley, supra; City of Little Rock v. Infant-Toddler Montessori School, supra. We have even abandoned the Pfeifer rule. City of Little Rock v. Breeding, supra; City of Conway v. Conway Housing Authority, 266 Ark. 404, 584 S.W.2d 10 (1979). But that does not mean we should go to the other extreme and meekly accept whatever .the city does as right in zoning cases, because there is always strong pressure on city boards to make exceptions. There is money to be made and such motives have no social conscience. When a city makes an exception it ought to be clearly justified. The most important goal of a city in planning should be the quality of life it affords its residents. Commercial and residential interests can both be served and flourish, but only through good planning and sticking to it. In this case, Wendy’s can be built somewhere else in an authorized commercial zone, and no damage will be done to commercial or residential interests.

I hope the board’s decision in this case is a mere aberration; just as I hope the majority’s decision is not a step backwards toward Pfeifer. But neither hope will change the fact that a breach has been made in the wall that has protected this neighborhood and that breach can only result in the destruction of the use of the adjoining property for single family residences. It will not be fit for such a purpose anymore.

George Rose Smith and Purtle, JJ., join in this dissent.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Michael W. McMILLEN et al v. WINONA NATIONAL & SAVINGS BANK
    82-270
    648 S.W.2d 460
    Supreme Court of Arkansas
    Opinion delivered March 28, 1983

      Hoover, Jacobs ir Storey, by: O. H. Storey, III and Victor A. Fleming, for appellants.

      Wright, Lindsey ir Jennings, for appellee.
   Darrell Hickman, Justice.

This is a conflict of laws case and both parties on appeal agree that the facts more than the law dictate our decision. The circuit court, sitting without a jury, decided that the law of Minnesota applied to a sales contract and its accompanying financial documents, and, therefore, the appellee, Winona National and Savings Bank of Winona, Minnesota, was entitled to judgment against an Arkansas partnership consisting of Michael W. McMillen, John A. Teeter, and David Newbern. The parties agree that if Arkansas law had been applied, the usury provision in the Arkansas Constitution would have voided the partnership’s obligation to Winona. We cannot say the trial court was clearly wrong in its decision and affirm the judgment.

J. C. Brooks, a Little Rock businessman, wanted to open a tire retreading business and contacted Tom Underdahl, who sold such equipment in Minnesota. Underdahl agreed to meet Brooks at the airport in Little Rock when he arrived there on other business. Brooks, his lawyer, Robert McHenry, and perhaps a potential investor, met Underdahl and they discussed generally Brooks’ plans. Afterwards Brooks began to try to find investors through his lawyer, McHenry. In the summer of 1977, Brooks and McHenry went to Minnesota. Upon returning to Arkansas, Brooks continued his search for investors and found Michael McMillen, Dr. David Newbern, and Dr. John Teeter, who decided to invest in the venture. They formed the ATC Partnership for that purpose. The Auto Tread Corporation was formed to operate the business; Brooks was general manager, but not a stockholder. Financing in Arkansas could not be obtained and Brooks notified the general manager of the supplier that financing had to be obtained somewhere besides Arkansas. Brooks told the seller that the seller would have to arrange financing.

In September of 1977, Brooks contacted Underdahl’s company and asked them to send a sales representative to Arkansas, that investors had been found. Underdahl’s sales representative traveled to Little Rock and negotiated some of the terms of financing; retreading equipment was ordered from the representative on that trip. Both the ATC Partnership and Brooks’ lawyer, McHenry, signed the order. In October Brooks and McHenry made another trip to Winona, Minnesota. The seller contacted Winona National and Savings Bank about financing and supplied it with the names of the three partners. The bank approved them.

Brooks testified that McHenry called him to his office and told him he had some financing documents for Brooks to take around and get signed. Brooks got them signed by the three partners and gave them back to McHenry. They were signed by Underdahl when they were returned to Minnesota and Underdahl’s company assigned them to Winona National and Savings Bank. The equipment was shipped to Arkansas and installed by the seller’s men but a fire in December of 1980 destroyed the plant.

This suit resulted from a dispute over the insurance proceeds. The partners sought to prevent Winona from collecting on the notes claiming the notes were usurious.

The trial court held that Minnesota law should apply and we agree. The principal significant contracts were in Minnesota. Standard Leasing Corp. v. Schmidt Aviation, Inc., 264 Ark. 851, 576 S.W.2d 181 (1979). More important, Brooks, the central figure and moving force in this whole transaction, initiated the entire arrangement. He contacted the Minnesota seller, told them financing would have to be arranged through them, and it was entirely at his behest that the matter had any contact at all with Arkansas. This makes the situation different from one where an out-of-state seller initiates contacts in Arkansas. See Tri-State Equipment Co. v. Tedder, 272 Ark. 408, 614 S.W.2d 938 (1981); Standard Leasing Corp. v. Schmidt Aviation, Inc., supra; Lyles v. Union Planters National Bank, 239 Ark. 738, 393 S. W.2d 867 (1965). The documents, reciting that Minnesota law would govern, were mailed to Brooks’ lawyer in Arkansas, signed in Arkansas by the buyers, and then signed in Minnesota by the seller.

What contact did the Winona bank have with Arkansas? None at all. Did a Minnesota company initiate a sale to an Arkansan? No. Did the parties intend for Arkansas law to apply? Certainly there is no evidence of it, except those facts recited and Brooks’ testimony that that was his intent. Brooks, of course, was the key to the matter and he sought to buy equipment financed by an out-of-state bank. The fact the contract was actually signed in Arkansas, and the investors never went to Minnesota cannot overcome the opposite facts: That Winona did not seek out the investors, and neither did it ever come to Arkansas; and that the contract expressly provided Minnesota law would govern. Ark. Stat. Ann. § 85-1-105 (Add. 1961); Snow v. C.I.T. Corp. of the South, Inc., 278 Ark. 554, 647 S.W.2d 465 (1983).

Although the trial court’s finding in such cases is not always critical, it has to be given some weight because a fact question did exist and the trial court found the facts to be in favor of Winona. We will not reverse that finding unless it is clearly contrary to the preponderance of the evidence. TriState Equipment Co. v. Tedder, supra. Here, the trial court correctly considered the factors we have found cotnrolling in determining the validity of multi-state contracts. See Standard Leasing Corp. v. Schmidt Aviation, Inc., supra; Cooper v. Cherokee Village Development Co., 236 Ark. 37, 364 S.W.2d 158 (1963).

Affirmed.

      McHenry, Teeter and McMillen did not testify.


author: John I. Purtle, Justice. Richard B. Adkisson, Chief Justice,

text:
    David Richard POTOCKI and Vicki Karen POTOCKI, Husband and Wife, and Eugene SICKLES and Kay SICKLES v. The CITY OF FORT SMITH, Arkansas, and Joe EDWARDS
    82-245
    648 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered March 28, 1983

      William M. Cromwell, for appellants.

      Daily, West, Core, Coffman ir Canfield, and Douglas Parker, for appellees.
   John I. Purtle, Justice.

The Board of Directors of the City of Fort Smith overruled its planning commission and enacted an ordinance rezoning certain property within the city. Appellants appealed to the Sebastian County Chancery Court which affirmed the action of the Fort Smith Board of Directors. The appellants argue that both the board and chancellor erred in not giving a proper interpretation to a previously adopted zoning ordinance. We agree with appellants and reverse and remand.

Prior to commencement of any activities involved in this proceeding the City of Fort Smith, Arkansas enacted ordinance no. 3421 which prohibited resubmission of zoning petitions within one year following denial. On October 14, 1980, appellee made application to the planning commission to rezone lots 112-116 in the Fairfax subdivision from residential to commercial. The planning commission recommended denial of the petition to rezone and the board of directors followed the recommendation on November 5, 1980. Appellee submitted another petition for rezoning on January 13,1981, which requested that only lots 112 and 113 be rezoned. The planning commission rejected the second application. On February 3, 1981 the board of directors overruled its planning commission and rezoned the two lots. The chancery court sustained the board of directors in an order entered on April 7, 1982.

The question presented on appeal is whether the chancellor erred in failing to rule that ordinance no. 3421 prohibited the board from approving rezoning of these two lots within a year from the time of rejection of the first petition to rezone which included the same two lots. We are of the opinion that ordinance no. 3421 prohibits consideration of the same property for rezoning within a year of prior rejection and find that it was error to not apply the ordinance to the facts in question. Cities possess only the powers granted to them. They have no inherent powers and must act only with powers delegated by the Arkansas Constitution or statutes. City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967). Zoning powers exercised by the city of Fort Smith during the proceedings involved herein are derived from Act 186 of 1957, codified in Ark. Stat. Ann. §§ 19-2825 et seq. (Repl. 1980). Act 186of 1957requires the planning commission to review a petition for rezoning prior to the legislative body of the city considering the matter. Ark. Stat. Ann. § 19-2827 (f) states in part:

After adoption and filing as hereinafter provided, of a plan or plans, no public way, ground, or open space... shall be acquired, constructed, or authorized, unless such a project, proposal or development has been submitted to the planning commission for review, recommendation and approval as to its conformity with the plan or plans .. .

The pertinent part of ordinance no. 3421 states:

(3) (iv) In the event that the appeal to the governing body of the city of the planning commission decision is rejected by the governing body, the proponent of such change or alteration shall not be permitted for a period of one calendar year from the date of action by the governing body of the city to file with the planning commission a petition requesting an identical or substantially identical change or alteration in the zoning of the subject real property or any portion thereof.

It is obvious the second application for rezoning was made within a year from the date the board denied the prior application. Likewise, the description of the property in the second petition reveals that it is a portion of the property described in the first request for rezoning. Therefore, the rezoning was repugnant to the existing zoning ordinance. A failure to substantially comply with the procedural requirements of enabling legislation renders a subsequent ordinance invalid. City of Searcy v. Roberson, 224 Ark. 344, 273 S.W.2d 26 (1954). A city simply cannot pass procedural ordinances they expect to be followed by their residents and then conveniently ignore them themselves. A legislative body must substantially comply with its own procedural policies. Maxwell v. Southside School Dist., 273 Ark. 89, 618 S.W.2d 148 (1981). In the recent case of Taggart Taggart Seed Company, Inc. v. The City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983), we held that a city government is bound by its own prior ordinances in adopting a zoning plan. We reverse and remand the case to the lower court to proceed in a manner which will accord with our opinion.

Adkisson, C.J., dissents.

Richard B. Adkisson, Chief Justice,

dissenting. The majority suggests that the Board of Directors of Fort Smith violated a state statute by allowing appellee Edwards to rezone certain property. This is simply not the case. Instead, the Board merely made an exception to its own rules of procedure.

There is no reason why the Board cannot make such an exception when there is no violation of any person’s constitutional rights and no violation of any state statute.

I would affirm the chancellor.


author: Robert H. Dudley, Justice.

text:
    Bobby Joe DOWNING and Bob J. DOWNING v. Mike DeCLERK d/b/a DeCLERK DIESEL SERVICE
    82-273
    648 S.W.2d 449
    Supreme Court of Arkansas
    Opinion delivered March 28, 1983
    [Rehearing denied May 2, 1983.]

      Lambert ir Brown, for appellants.

      Wilson, Grider ir Castleman, by: Murrey L. Grider, for appellee.
   Robert H. Dudley, Justice.

We affirm the trial court under Rule 9 (e) (2). The pleadings include a complaint, an attachment, an answer, a bond for retention of possession of property after attachment, a complaint to proceed against the bond after judgment, a second answer, a motion for summary judgment by the plaintiff and a motion for summary judgment by the defendant. None are abstracted.

The proceedings include a trial and a later proceeding on the opposing motions for summary judgment. None of the testimony, documentary evidence or stipulations, if any, are abstracted, nor is the manner of proceeding explained.

The complete abstract of record consists of a three sentence abstract of the original judgment along with a five sentence abstract of the subsequent summary judgment on the bond. From these eight sentences it is impossible for us to understand the pleadings, proceedings, evidence and issues which were before the trial court. Thus, we cannot reach the merits of the appeal and we must affirm for noncompliance with Rule 9 (d).

Affirmed.


text:
    Jerry ARMSTRONG and Linda ARMSTRONG, His Wife v. Frankie HARRELL et al, Directors of the Mayflower School District
    82-277
    648 S.W.2d 450
    Supreme Court of Arkansas
    Opinion delivered March 28, 1983

      Guy Jones, Jr., P.A., for appellants.

      Brazil ir Clawson, for appellees.
   Robert H. Dudley, Justice.

Appellants filed a petition in county court alleging that they have no reasonable means of access to their land. They asked that a road be established across appellee’s property pursuant to Ark. Stat. Ann. § 76-110 (Repl. 1981). The statute requires a petitioner to make a deposit sufficient to pay all costs and expenses and the county judge to appoint road viewers to examine the route proposed or any other route they deem proper. If the road viewers determine that a road is necessary, they are then required to lay out the road, make an estimate of the damages to the landowner and make a report of all of the above to the county court. The appellants did not make the deposit and the road viewers were not appointed. Appellee, a school district, filed a general denial in county court and, in addition, pleaded that the proposed taking was improper because appellants had other access to their property and the proposed road across school property would unnecessarily endanger school children. The county court denied the petition and appellants appealed to the circuit court. At the circuit court trial the appellee orally raised the issue of the appellants’ failure to comply with the statute. Appellants objected, claiming surprise and that the issue could not be raised for the first time on appeal. The court allowed the amendment to the pleadings but did not dismiss the appeal and, instead, heard the case on its merits. The trial court then denied any relief to appellants. We affirm. Jurisdiction is vested in this Court pursuant to Rule 29 (1) (c).

Appellants first contend that the trial court erred in allowing appellee to orally amend its pleadings at the commencement of the trial. There is no reversible error for two reasons. First, the circuit court, after a trial in county court, may permit amendments and new issues to be raised, excepting set off and a new cause of action. Crockett Motor Co. v. Thompson, 177 Ark. 495, 6 S.W.2d 834 (1928), citing Texas & St. Louis Ry. v. Hall, 44 Ark. 375 (1884); Ark. Stat. Ann. § 27-2007 (Repl. 1979). Second, even if our law did not permit amendment on appeal to circuit court, there was no prejudice because the circuit court allowed the case to proceed to trial on the merits although the appellants never made a deposit for costs and road viewers were not appointed. Thus, appellants suffered no harm by the ruling.

Appellants’ second point is that the trial court applied a higher standard of proof than is proper. The correct standard was well stated in Pippin v. May, 78 Ark. 18, 21, 93 S.W. 64, 65 (1906):

In determining whether such a road is necessary, the court must, of course, take into consideration, not only the convenience and benefit it will be to the limited number of people it serves, but the injury and inconvenience it will occasion the defendant through whose place it is proposed to extend. After considering all these matters, it is for the court to determine whether the road is, within the meaning of the law, necessary or not.

The trial court considered all of the factors and declined to exercise the right of eminent domain for a public road across appellee’s land. See Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983). Even if the trial judge announced the wrong reason, we will sustain the judgment if it is right, Reeves v. Ark. La. Gas Co., 239 Ark. 646, 391 S.W.2d 13 (1965), and we consider the evidence most favorably to appellee and affirm unless the decision of the trial court is clearly erroneous. ARCP Rule 52; Orsby v. McGee, 271 Ark. 268, 608 S.W.2d 22 (1980). Here, the evidence established that appellants have a means of access across their land but that construction of this alternate route would be expensive. The proposed road, although less costly, would inconvenience the appellee school district because it would intersect a school parking lot and endanger the school children on the property. In addition, although a public road, the proposed road would benefit only appellants. From a review of the record we cannot say that the trial judge was clearly erroneous in determining that the road across appellee’s land was not necessary within the meaning of the statute.

Affirmed.

Hickman, J., concurs. See Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983).


author: Steele Hays, Justice.

text:
    Jerry SIMPSON v. Cyril BAILEY
    82-278
    648 S.W.2d 464
    Supreme Court of Arkansas
    Opinion delivered March 28, 1983

      Pearson, Woodruff & Evans, by: Ronald G. Woodruff, for appellant.

      Jones & Segers, for appellee.
   Steele Hays, Justice.

The trial court dismissed this personal injury suit by summary judgment upon a finding that the cause of action was barred by the three year statute of limitations. On appeal, appellant urges that the statute was tolled by the timely filing of the complaint and by an order extending the time for obtaining service of summons. The argument is not sustained and we affirm the trial court.

Appellant’s injuries were incurred on September 20, 1977 and suit was filed on September 11,1980. Summons was issued and returned “non-est” on September 18 with a notation that the defendant (appellee) had moved to Rt. 5, Box 501, Springdale, Arkansas. After another unsuccessful attempt was made to serve the appellee under the long arm statute, a new summons was issued and served at the Springdale address on July 20, 1981. Also on July 20, appellant filed a motion to extend the time for obtaining service, which the trial court granted upon a finding that a reasonable effort had been made to obtain service of summons, and that good cause existed to extend the time for obtaining service.

The trial court overruled a motion to dismiss the complaint and subsequently the case was transferred to another division, where appellee moved for summary judgment on the grounds the pleadings showed on their face that the cause of action was barred. The motion was granted and we are asked to reverse the trial court.

The only question to be decided is whether appellant’s cause of action “commenced” within three years from the date his injuries were sustained, as required by Ark. Stat. Ann. § 37-206. It is agreed the collision occurred on September 20, 1977, that suit was filed on September 11, 1980, some nine days prior to the running of the statute and that summons was immediately issued. However, Rule 3 of the Arkansas Rules of Civil Procedure (Commencement of Action) provides that an action shall not be deemed to have commenced:

“[A]s to any defendant not served with process . . . within sixty (60) days of the filing of the complaint, unless within that time the person filing the complaint has made an effort... to obtain service by a different method provided for in Rule 4. In no event shall the time for obtaining service be extended beyond ninety (90) days without leave of court and for good cause shown.” (our italics)

Rule 4 provides several alternative methods of service, but appellant availed himself of none of these within the sixty days permitted by Rule 3, nor was any order of extension for good cause made by the trial court within the ninety days permitted by the rule. After the initial summons was returned “non-est” nothing else happened in the case for nearly seven months, when on April 10, 1981, appellant made an attempt to serve the appellee under the long arm statute. This fails to meet the plain wording of Rule 3 and the trial court was correct in finding that suit was not “commenced” within the time provided by Rule 3.

Appellant argues that the trial court has discretion on a showing of good cause to enlarge the period of time provided for in Rule 3, pointing out that the July 20, 1981 order found that a reasonable effort had been made to serve the appellee and that good cause existed to enlarge the time allowed by Rule 3. But the order was not entered until nine months after the statute of limitations had run, and seven months after the period allowed in Rule 3. The trial court found, correctly, that the discretion arising under Rule 3 must be exercised within the time period allowed under the rule.

Appellant also cites ARCP Rule 6 (b) (2) which permits a trial court to enlarge the time within which an act is to be performed even after the time has expired upon a finding that the failure to act was the result of unavoidable casualty or excusable neglect. But we decline to reach that issue, as there is nothing in this record to indicate a factual basis for holding the long delay was attributable to unavoidable casualty or excusable neglect. The.fact is that appellant was served on July 20, 1981, at the same Springdale address as was shown on the copy of the Sheriff’s “non-est” return filed with the Clerk on September 18, 1980.

The judgment is affirmed.


author: Per Curiam.

text:
    FIRST STATE BANK OF SPRINGDALE, Arkansas v. Charles W. SHAVER and Darlena SHAVER, Husband and Wife
    82-303
    648 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered March 28, 1983

      John C. Everett of Everett ir Whitlock, for appellant.
    No response for appellees.
   Per Curiam.

The appellees have moved to dismiss this appeal on the ground that the notice of appeal was not filed within the time allowed by ARCP Rule 4. We decline to dismiss the appeal. Jurisdiction is in this Court pursuant to Rule 29 (1) (c).

The final decree was entered on September 2, 1982. On September 13, 1982, a motion to amend the decree was filed pursuant to ARCP Rules 59 (a) (6) and (8). On October 7, 1982, the trial court denied the motion to amend. Notice of appeal was given on November 4, 1982. Appellees contend that the appeal should be dismissed because the notice of appeal was not given within 30 days of the entry of judgment, ARAP Rule 4 (a), nor was it given within 10 days from the entry of the order denying the motion to amend. ARAP Rule 4 (d). The motion would be well taken if the appellant is attempting to appeal from any holding in the original judgment. However, the notice of appeal provides that the appellant seeks to appeal only from the order denying the motion to amend, which may have decided new questions. Since the motion to dismiss, to which there has been no response, does not make it clear that the notice of appeal was necessarily too late, the motion must be denied.


author: Per Curiam. Darrell Hickman, Justice,

text:
    Elgie SANDERS v. STATE of Arkansas
    CR 81-51
    648 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered March 28, 1983
    Petitioner, pro se.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for respondent.
   Per Curiam.

Petitioner Elgie Sanders was convicted by a jury of aggravated robbery and first degree battery and sentenced to prison terms of 40 years and 20 years consecutively. The terms were ordered served consecutively. We affirmed. Sanders v. State, 274 Ark. 525, 626 S.W.2d 366 (1982). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37.

Three men, Shells, Thompson, and the petitioner Sanders were jointly charged with the aggravated robbery of three undercover police officers, and with first degree battery in the shooting of two of the officers in the course of the robbery. Testimony at trial indicated that the three officers negotiated a marihuana purchase from Shells and Thompson, who left to get the marihuana. When they returned, petitioner was with them. Both he and Shells had guns. Petitioner pointed his weapon at the officers and shots were immediately exchanged, with petitioner and two of the officers being struck.

Petitioner’s sole ground for postconviction relief is that his being sentenced for both aggravated robbery by force and battery is a violation of the constitutional prohibition against double jeopardy and Ark. Stat. Ann. § 41-105 (1) (a) and (2) (a) (Repl. 1977). He contends that Criminal Procedure Rule 37.1 (a) requires this Court to grant relief from the conviction and sentence for first degree battery since it was imposed in violation of the constitution and laws of this State. We agree for two reasons. First, both convictions grew out of a single act; and secondly, under the felony information in this case the proof required to prove one of the offenses necessarily included proof of the other.

In Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983), wherein the appellant was also charged with aggravated robbery and first degree battery, we held that Ark. Stat. Ann. § 41-105 (Repl. 1977) prohibits multiple sentences when the same act results in more than one offense. We also noted that when a criminal offense cannot be committed without the commission of an underlying offense, a conviction cannot be had for both offenses under § 41-105. Akins, supra, citing Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). In Akins, a case similar to petitioner’s in which the victim of an armed robbery attempted to use his own pistol to prevent the robbery and was shot by the robber, we set aside the conviction and sentence for battery. We must afford petitioner the same relief. Count I of the felony information on which he was tried charged that he committed aggravated robbery by force. Count II charged that “in the course of and in furtherance of the felony [i.e. the aggravated robbery by force], he... caused serious physical injury____” As in Akins, the proof required to prove one offense necessarily included proof of the other. Therefore, in accordance with A.R.Cr.P. Rule 37.1 (a) the conviction and sentence for the lesser offense, battery in the first degree, must be set aside since it was imposed in violation of Ark. Stat. Ann. § 41-105 (Repl. 1977). The conviction and sentence for aggravated robbery are not disturbed. See also Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982).

Petition granted.

Hickman, J., concurs.

Adkisson, C.J., not participating.

Darrell Hickman, Justice,

concurring. I agree with the result in this case. We decided in Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981), that under the capital murder statute a person could be charged with the commission of capital murder and the underlying felony but could not be convicted of both. That same principle was applied in the case of Rowe v. State, 275 Ark. 37, 627 S.W.2d 16(1982), when the charge was attempted capital felony murder. Necessarily, that principle has been applied when one is charged with committing a first degree battery under paragraph (d) of Ark. Stat. Ann. § 41-1601 (Repl. 1977), because such a battery is committed in the course of a felony. This does not necessarily preclude a person from being charged and convicted of aggravated robbery and first degree battery; and if indeed there are two separate acts involved, the prosecuting attorney should not charge a defendant with first degree battery in violation of § 41-1601 (d) but with one of the other three possible charges for first degree battery.


author: Richard B. Adkisson, Chief Justice.

text:
    Millard WRIGHT v. Billy Don WRIGHT et ux
    82-274
    648 S.W.2d 473
    Supreme Court of Arkansas
    Opinion delivered April 4, 1983

      Wayland A. Parker, for appellant.

      Gean, Gean ér Gean, by: Lawrence W. Fitting, for appellees.
   Richard B. Adkisson, Chief Justice.

In 1972 appellees, Billy Don and Dorothy Wright, agreed to purchase approximately 173 acres of land in Crawford County from Dr. M. J. Graham for $100,000 with $20,000 down and the remainder to be paid in installments. On August 20, 1975, appellant, Millard Wright (Billy Don’s father), handed over a $10,000 check to appellees. The check was made to the order of Dr. M. J. Graham “For Payment on land.” Billy Don Wright signed his name just below his father’s signature and handed the check over to Dr. Graham.

Apparently, sometime between 1975 and 1979 appellant demanded that appellees repay the $10,000 because on October 4, 1979, appellees wrote appellant a letter:

October 4, 1979
Mr. Millard Wright.
Concerning the 10,000. We can’t get it from Mr. M. J. Graham because he is 6 ft. under the ground.
You have a monthly income if you can’t live on it then we think you should go to a rest home and live. They will take care of you for the income you receive.
/s/ Billy Don Wright
/s/ Dorothy Wright

On April 30, 1981, appellant filed this lawsuit to collect the money. Appellees defended, contending that the money was either a gift or that the cause of action was barred by the three year statute of limitations for oral contracts. At trial, appellant testified that the money was a loan and that his son asked him to loan him the $10,000 because he was “in a tight.” Appellant further testified that the land was to stand good for the $10,000 and that his son was to pay it back whenever he needed money.

The chancellor held that Ark. Stat. Ann. § 37-206 (Repl. 1962) barred the action. This statute provides:

The following actions shall be commenced within three (3) years after the passage of this act, or, when the cause of action shall not have accrued at the taking effect of this act, within three (3) years after the cause of action shall accrue: First, all actions (of debt) founded upon any contract, obligation, or liability, (not under seal [and not in writing]), . . .

Appellant contends that this statute is inapplicable to this case because the debt, although initially barred by the statute of limitations, was revived by the October 4 letter. In McHenry v. Littleton, 237 Ark. 483, 374 S.W.2d 171 (1964) we held that a debt otherwise barred by the statute of limitations could be revived by a letter in which the debtor unequivocally recognizes the indebtedness as a subsisting obligation and makes no statement repelling the presumption that he intends to pay. Here, however, appellees’ October 4 letter does not recognize the indebtedness as a subsisting obligation and, therefore, falls short of providing a revival by acknowledgment as contemplated by McHenry, supra.

Appellant argues that the fraud of appellees tolled the statute of limitations and also alleges that a constructive trust should be imposed upon the land in his favor. However, appellant failed to plead or prove fraud. Nor was there sufficient evidence to satisfy the degree of proof required to establish a constructive trust. The rule is that constructive trusts must be established by clear and convincing evidence — something more than a preponderance. Neill v. Neill, 221 Ark. 893, 257 S.W.2d 26 (1953). We cannot state that the chancellor was clearly erroneous in her findings.

Affirmed.


text:
    James H. SMITH v. FIDELITY & DEPOSIT COMPANY OF MARYLAND
    82-297
    648 S.W.2d 475
    Supreme Court of Arkansas
    Opinion delivered April 4, 1983

      Rieves, Shelton if Mayton, for appellant.

      William Palma Rainey, for appellee.
   Richard B. Adkisson, Chief Justice.

The Crittenden County Chancery Court held that appellant, James Smith, had no interest in property which had been executed upon by appellee, Fidelity & Deposit Company of Maryland. On appeal we affirm.

Fidelity had an unsatisfied judgment against James Browder for $24,303.11. James Browder was the owner of the Jewelry Nook at 500 East Broadway in West Memphis. On September 10, 1981, appellant allegedly bought $5,000 worth of used jewelry from the Jewelry Nook. Appellant obtained a receipt from James Browder which indicated that appellant had paid cash dollars for “79 Rec. dia, wed. & men rings,” and “12 Gold necklaces.” Appellant did not take possession of the merchandise at the time of sale. And, even though he testified that the jewelry was tagged by a Jewelry Nook employee and that a list of the jewelry was made at that time, appellant was unable to produce this list at trial.

Appellant testified that around the first of November he took possession of the jewelry he had bought and began doing business at Browder’s Jewelry Store at 526 East Broadway in West Memphis. Appellant stated that at the time the store opened, his wife wrote out a three page inventory list of the jewelry which was introduced into evidence at trial. Appellant further testified that he sold $2,000 worth of this jewelry, which he replaced with additional jewelry he purchased from James Browder around the latter part of December. No receipt for the additional jewelry was introduced at trial, although appellant testified that he kept track of the jewelry by adding it on to the end of his inventory list.

Appellant allegedly went into business with James Browder’s brother, Larry, but testimony at trial revealed that Larry had a full time job as a bus driver and that James Browder actually ran Browder’s Jewelry store. The building lease was in James Browder’s name, he signed all the checks for the store, and one witness testified that he observed things being moved from the Jewelry Nook to Browder’s Jewelry Store in October. There was also testimony to the effect that James Browder made various business arrangements for the store, including one with Delta Auction to auction off the jewelry when it became obvious that Browder’s Jewelry Store was not profitable. However, before the auction was held, Fidelity executed on its judgment against Browder, directing the sheriff to take possession of the real and personal property located at Browder’s Jewelry Store. On February 9,1982, the sheriff took possession of all the merchandise at that location, including the jewelry which appellant alleges belonged to him, and inventoried it.

The chancellor held that all the merchandise in Browder’s Jewelry Store was subject to execution, finding that it was not possible to identify appellant’s property from the evidence introduced at trial. We cannot say that this finding is clearly erroneous. The list of the jewelry that was allegedly made at the time of purchase was not introduced at trial. The $5,000 receipt which James Browder gave appellant indicates that appellant purchased 12 necklaces, yet no necklaces were listed on appellant’s inventory sheet. Nor is there any way to reconcile appellant’s inventory sheet with the inventory list prepared by the sheriff when he executed on the property. For example, rings marked “here” on appellant’s inventory sheet were apparently not there when the sheriff inventoried the property.

There was sufficient evidence from which the trial judge could have found that the purported sale of jewelry by James Browder to appellant was a subterfuge and an attempt by James Browder to avoid paying his just debts.

Affirmed.


author: George Rose Smith, Justice.

text:
    Barry BRAZIL v. ARKANSAS STATE BOARD OF DENTAL EXAMINERS
    82-302
    648 S.W.2d 476
    Supreme Court of Arkansas
    Opinion delivered April 4, 1983
    [Rehearing denied May 9, 1983.]

      Ronald J. Bruno and Associates, for appellant.

      Howell, Price ir Trice, P.A., by: William E. Trice, III, for appellee.
   George Rose Smith, Justice.

This is an appeal by Barry Brazil from an order finding him to be in contempt of court and fixing the punishment at a $1,000 fine and a three-day jail sentence, the latter being stayed during the appeal.

In 1979 the Board of Dental Examiners brought suit to enjoin Brazil and his wife, who are not licensed dentists, from practicing dentistry. The final decree found that the defendants, doing business as American Denture Center, had (1) made dentures without a work authorization from a licensed dentist, (2) had offered their services to the public through media advertising, and (3) had offered to sell, repair, or alter dentures, all in violation of Ark. Stat. Ann. §§ 72-540 and -545 (Repl. 1979). The decree enjoined the defendants “from selling or delivering or offering to sell or deliver to the general public the construction, repair, reproduction, duplication, alteration, adjustment, cleaning, polishing, refinishing, or in any other manner processing of any artificial or prosthetic tooth or teeth, bridge, crown, denture, restoration, appliance, device, structure, or material or orthodonic appliance or material to be worn or used in the mouth.”

In 1982 the Board filed a motion asking that Barry Brazil be held in contempt for having violated the court’s order by treating Mary Ross on January 16 and 23, 1982. After a hearing the chancellor found that Brazil had violated the order by treating Mary Ross. This appeal from that order was transferred to us by the Court of Appeals.

The facts are not seriously in dispute. After the injunction was issued, the Brazils conducted their business by taking Dr. Burnett, a licensed dentist, with them as they traveled over the state in a mobile dental van. On January 9, 1982, Mary Ross went to the mobile unit in Dardanelle and saw Dr. Burnett, who took the initial impressions of her mouth. She returned a week later and was treated only by Barry Brazil, who took wax “bite rim” impressions of her mouth. She again returned on January 23 and obtained her dentures from Barry Brazil, who delivered her dentures (which did not fit) and gave her some glue to use on the dentures for two weeks. She was not attended by Dr. Burnett on that visit. She went back again on February 6, but the results were unsatisfactory.

Brazil’s own testimony is hard to follow, as he was to some extent evasive, but his attorney abstracts part of it in these words:

On the 23 of January, I saw her and gave her some glue and told her to come back in two weeks for another fitting. I don’t remember from visit to visit if Dr. Burnett treated her directly or not. He treats a lot of patients. I did it for him sometimes. I gave her the dentures by Dr. Burnett’s instructions. On Jánuary 23,1 don’t know if Dr. Burnett or anyone else examined Ms. Ross. I personally handed her the dentures. I don’t remember the visit on February 6. I remember repairing, shortening and modifying her dentures. I painted white impression paste on the inside of the denture. It shows the areas of pressure on the gum. Then I gave the dentures back to her to put in her mouth. I didn’t just modify them without checking that they were placed correctly. I could tell by the bite relationship of the teeth, and I modified the dentures that day. I don’t remember if Dr. Burnett saw her that day.

The appellant’s brief misses the point, for he argues essentially that the original decree required only that he obtain written work orders from a licensed dentist, which he has done. The decree, however, also enjoined Brazil from delivering dentures to the general public and from altering or adjusting them, all of which he has admittedly done. Appellant’s argument is that the statute was changed after 1980 by an amendment of § 72-543 (Supp. 1981), that he was not charged with a violation of the new statute, and that the injunctive order was therefore void and may be collaterally attacked. We are not convinced that the language of the order went beyond the statute, but even if it did the appellant should have sought a modification of the order rather than violating it. As we said in Stewart v. State, 221 Ark. 496, 254 S.W.2d 55 (1953): “That the petitioners thought the order too comprehensive is of course immaterial, since it was their duty to obey even an erroneous decree as long as it continues in force. Carnes v. Butt, Chancellor, 215 Ark. 549, 221 S.W.2d 416 [1949].” We may sum up by saying that apparently Brazil thought he could continue to treat patients himself as long has he had a written work order based upon a licensed dentist’s initial examination of the patient. That view, however, was contrary to the language of the injunctive order and cannot serve as a defense to the citation for contempt of court.

Affirmed.


text:
    Ronald E. STOKES et al v. Charlene STOKES
    82-300
    648 S.W.2d 478
    Supreme Court of Arkansas
    Opinion delivered April 4, 1983
    [Rehearing denied May 2, 1983.]

      Richard L. Peel, for appellants.

      Jonathan P. Shermer, Jr., for appellee.
   Darrell Hickman, Justice.

Carl J. Stokes died testate in 1979. His will, made in 1975, shortly before his marriage to Charlene Stokes, left most of his estate to his adult children by a prior marriage, Ronald E. Stokes and his sister, Nancy Stokes Cornwell, the appellants in this case. The appellee, Charlene Stokes, Carl Stokes’ widow, elected to take against his will but we held in Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1980), that several of our gender-based statutes were unconstitutional and she was denied the election.

This particular litigation between the parties arose as an aftermath to our decision in Stokes v. Stokes, supra. The appellants filed suit against Charlene Stokes in probate court for an accounting of certain rental income she had received during the probation of Carl Stokes’ estate. The probate judge dismissed the case without prejudice and we affirmed. Stokes v. Stokes, 275 Ark. 110, 628 S.W.2d 6 (1982). The case was refiled in chancery court and the trial court essentially held in favor of Charlene Stokes and from that decision the appellants bring this appeal alleging several errors. Actually the question to us is one purely of fact and equity, and we affirm the chancellor.

Carl Stokes had a construction company which he owned with his two children. The company built apartments and the projects were customarily financed by People’s Bank and Trust Company. Carl and Charlene purchased a four-unit apartment house from the company that had been financed by People’s. After the purchase they were notified by People’s that the construction company was heavily in debt and that the company was going to have to provide more money on its various loans. Seven days after the Stokeses purchased the apartment house, they mortgaged it to People’s in exchange for an $80,000 loan. Charlene and Carl both signed the note.

Carl had a “rental account” at People’s where he deposited the rents from his various apartment complexes and the payments on two notes that he held. This was the Stokeses’ primary source of income. At the time Carl mortgaged the four-unit apartment house, he orally directed the bank to automatically take the monthly payments out of the rental account for that mortgage. People’s did so for a year before Carl’s death and for a year afterwards. It is not disputed that “income” from the apartments, which were ultimately determined to be the property of Carl’s estate and not Charlene’s, was deposited into the account.

When Carl died, Charlene owned eighteen apartments in her own right or by right of survivorship. Among these was the four-unit apartment house. A few days after Carl’s death, Ronald Stokes, the executor of the estate, and his attorney went to Charlene and told her to live as she had been and continue to manage Carl’s rental account. Ronald testified that he told her to keep a separate account for the rents from property she owned by herself. She said there was no discussion of separate accounts.

This case arose because the bank continued after Carl’s death to draw the payments for the mortgage of the four-unit complex from Carl’s rental account. Ronald claimed that Charlene should have made payments on the note from income on her own property since Carl and Charlene mortgaged the property in order to pay the purchase price and since the property was now Charlene’s. He also alleged that Charlene was principally liable on the note as a comaker, and not secondarily liable as an accommodation party.

The chancellor found that Charlene was an accommodation party on the mortgage note, and, therefore, Charlene was right in allowing the note to be paid from income that was the property of Carl’s estate. Apparently the chancellor found that the property was mortgaged to meet the debts of Carl Stokes’ company and we cannot say that he was clearly wrong. ARCP, Rule 52. Carl died in January and Ronald did not file this action until ten months later. Ronald consented to Charlene’s continued use of the rental account and he knew, or should have known, that the mortgage was being paid from that account and made no effort to stop it. Neither Charlene nor People’s was directed to stop drawing the payments from the rental account. No doubt the chancellor resolved the dispute between the parties in favor of the appellee, finding the facts and equities of the matter to be in her favor. We can only overrule that judgment if we find it clearly wrong, which we cannot do.

The chancellor did find that the appellee drew $761.00 from the account for insurance on her own property and that sum was ordered returned.

Affirmed.


author: John I. Purtle, Justice.

text:
    AREA AGENCY ON AGING OF WEST CENTRAL ARKANSAS, INC. v. William F. EVERETT, Director of the Department of Labor of the State of Arkansas; and Kenneth L. COON, Administrator of the Employment Security Division of the Department of Labor of the State of Arkansas
    82-265
    648 S.W.2d 467
    Supreme Court of Arkansas
    Opinion delivered April 4, 1983

      Laser, Sharp, Haley, Young & Huckabay, P.A., by: A Ivin Laser, for appellant.

      Bruce H. Bokony, for appellees.
   John I. Purtle, Justice.

The Garland County Chancery Court dismissed appellant’s petition for an injunction to prevent an illegal exaction and to quash a notice of assessment of contribution against appellant by the Employment Security Division of the Arkansas Department of Labor. Appellant argues the court erred in denying jurisdiction and by holding that appellant had been given notice and an opportunity for a hearing. We hold the court did have jurisdiction of the subject matter and that appellant did not have notice and an opportunity for a hearing. The case is reversed and remanded.

On October 2,1981, Kenneth L. Coon, Administrator of the Employment Security Division, Arkansas Department of Labor, certified to William F. “Bill” Everett, Commissioner, Arkansas Department of Labor, a notice of assessment of contributions against the Area Agency on Aging of West Central Arkansas, Inc. The notice and assessment were purportedly given pursuant to Act 162 of 1953, creating a lien upon appellant’s property. Appellant filed a petition to remove the lien as a cloud on the title to its property and to enjoin an illegal exaction. Appellee moved to dismiss the petition because it did not state facts upon which relief could be granted and further contending that chancery had no jurisdiction over the subject matter. The appellee relied upon Ark. Stat. Ann. § 81-1114 (b) (2) (Supp. 1981) as authority to levy the assessment against appellant. The chancellor held that appellant had not been denied notice and an opportunity to be heard under Ark. Stat. Ann. §81-1114(b)(2) and that the court did not have j urisdiction to determine appellant’s status as an employer under Ark. Stat. Ann. §§ 81-1101, et seq. (Repl. 1976). The court further stated appellant’s proper remedy concerning coverage liability was a hearing in accordance with § 81-1114 (b) (2). The court also stated appellant had failed to state facts showing appellees’ actions contravened Art. XVI, Sec. 13 of the Constitution of the State of Arkansas.

Ark. Stat. Ann. § 81-1114 (b) (2) provides in part as follows:

The Director may, upon his own motion, or upon application of an employing unit, and after notice and opportunity for hearing, make findings of fact and on the basis thereof, determinations with respect to whether an employing unit constitutes an employer and whether services performed for, or in connection with the business of an employing unit constitute employment for such employing unit. ... an appeal may be taken from a determination made by the Director to the Board of Review on all matters with respect to coverage determined by the Director within fifteen (15) days after . . . delivery of such notice.

In the present case the director was acting upon his own motion, therefore, appellant had the right to appeal to the board of review within fifteen (15) days from the notice of assessment. Before the fifteen (15) days expired the appellant petitioned the chancery court for other relief. The record disclosed that no notice of the assessment had been given to the appellant and no administrative hearing had been had for the purpose of determining appellant’s objections to the assessment. The provisions of § 81-1114 (b) (2) pertaining to a hearing were ignored and the assessment was made in reliance upon a former ruling of the board of review which had been affirmed, without written opinion, by the Court of Appeals.

Almost the same factual situation was presented in the case of McCain, Commissioner of Labor v. Hammock, Chancellor, 204 Ark. 163, 161 S.W.2d 192 (1942), where we held chancery court had jurisdiction pursuant to Art. XVI, Sec. 13, Constitution of the State of Arkansas. In the case of Thornbrough, Commissioner of Labor v. Barnhart, 232 Ark. 862, 340 S.W.2d 569 (1960) we faced the question of whether the chancery court could quash an assessment by the Commissioner of Labor and held that it could. The chancellor had ordered the assessment expunged from the records because of failure to give notice and an opportunity for a hearing. The commissioner reissued the assessment, after a hearing, and the employer argued the first ruling was res judicata. The board of review held with the employer. We reversed and remanded with instructions to proceed with the case finding that res judicata did not apply. The same statute was involved in Palmer v. Cline, Director, 254 Ark. 393, 494 S.W.2d 112 (1973). Palmer filed a petition in the Chancery Court of Pulaski County seeking review of a commissioners’ assessment against him for taxes under the Employment Security Act. The dispute was primarily whether chancery or circuit court had jurisdiction to hear the matter. We upheld the chancellor’s ruling that chancery did not have jurisdiction to determine an employer-employee relationship pursuant to Ark. Stat. Ann. § 81-1114(b) (2). We agreed that such disputes were properly brought in circuit court. However, in Palmer, the constitutional issue of illegal exaction was not involved as it was in McCain and Thornbrough as well as the case here under consideration.

The chancery court’s jurisdiction on the matter of illegal exaction gives it authority to consider the petition. After obtaining jurisdiction on one subject the court had jurisdiction to consider the entire petition in the absence of a motion to transfer the matter to law court. The facts were fully developed as to matters which the petitioner desired to have adjudicated. It is obvious from the facts that appellant was not afforded the notice and opportunity for hearing as required by Ark. Stat. Ann. § 81-1114 (b) (2). The chancery court having properly obtained jurisdiction under the constitutional claim of illegal exaction and to remove a cloud upon title to real property, the chancellor should have considered the matter of notice and opportunity for a hearing. Therefore, the case is remanded to the Garland County Chancery Court with directions to remand the case to the Commissioner of Labor and E.S.D. with directions to them to give appellant an opportunity to contest the decision that appellant is an employer under the terms of the act. Also, any assessment creating a lien against appellant arising from these same facts should be expunged from the record until appellant has been given notice and an opportunity for a hearing.

Reversed and remanded.


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    Jerry RHODES v. OAKLAWN BANK
    82-275
    648 S.W.2d 470
    Supreme Court of Arkansas
    Opinion delivered April 4, 1983

      Smith, Stroud, McClerkin, Dunn hr Nutter, by: Nelson V. Shaw, for appellant.

      Wheeler, Graham, Gooding hr Morriss, by: Josh R. Morriss, III, for appellee.
   John I. Purtle, Justice.

Appellant executed a promissory note to appellee which was secured by some items of restaurant equipment and a prefabricated aluminum building. The appellant had operated a fast food restaurant from this building and used the equipment in the business. Appellant defaulted in his payment schedule and appellee repossessed the building and equipment. Some months later, appellee sold the collateral. Appellant was never sent written notice of the sale. Appellee brought suit for failure to make payments under the terms of the note. The trial court granted judgment against appellant in the sum of $21,516.32. Appellant argues on appeal that the trial court erred in failing to find: (1) the sale was not commercially reasonable, (2) the appellee unjustifiably impaired the collateral, and, (3) that appellant should be allowed an offset of an amount equal to the proceeds of the sale. We hold that the appellee failed to give notice as required by the Uniform Commercial Code, and do not reach the other arguments presented on appeal. The case is reversed and dismissed.

In 1975, appellant and his brother purchased a portable building and the necessary equipment to operate a fast food establishment. The building and air conditioning unit were purchased for $26,700. The other equipment, almost all stainless steel, increased the total capital investment to $41,864.74. The appellant’s brother died in 1976 and on January 18, 1978, appellant renegotiated a loan with appellee in the sum of $20,592.02. In September, 1978, the appellee called the balance due on the note because appellant defaulted on the monthly note payment.

Appellee repossessed the building and equipment in November, 1978, and tried to sell the property without success. On December 6,1978, the property was listed for sale with a real estate firm. The list price was $10,000 but no buyer was found. A “for sale” sign was placed upon the property, which was only a few hundred feet from appellant’s other business where he worked daily. The equipment was stored on the back of a trailer in an open lot. The equipment was subsequently exposed to the elements and depreciated in value. In July of 1979 appellee sold the collateral for $1,400. Specific notice of the sale, or a date after which the sale would be made, was not given to appellant.

Appellee brought suit for $21,516.32 plus costs, interest and attorney’s fees. Appellant defended on the grounds that the sale was not “commercially reasonable” and that the appellee unjustifiably impaired the collateral. The trial court granted judgment in the amount of $21,516.32 without making specific findings of fact and conclusions of law.

The pertinent part of Ark. Stat. Ann. § 85-9-504 (3) (Supp. 1981) reads:

Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms, but every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. (Emphasis supplied).

In the case of Barker v. Horn, 245 Ark. 315, 432 S.W.2d 21 (1968), we held that the debtor was entitled to notice of the time and place of a public sale or reasonable notice of the time after which a private sale would be made. In Barker, the creditor told the debtor on the day after repossession, that he would sell the car to the highest bidder. He did not, however, mention the time or place of the sale. Evidence was introduced to the effect that notice had been mailed. The debtor denied receipt of the letter. We construed this same statute to require notice and since it was not proven we reversed and dismissed the deficiency judgment obtained by the creditor. In Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W.2d 532 (1974), the creditor repossessed an automobile and sold it at public sale a few weeks later without giving notice to the debtor as to the time of the sale. At trial on the deficiency claim it was argued that notice was given and received by the debtor when he surrendered the keys at the time of repossession and when he promised to pay the deficiency judgment after being notified of such. The trial court directed a judgment in favor of the creditor. We reversed and remanded, holding that there was a valid jury question and that the trial court should not have directed a verdict. As to the law in question, we held that the provisions of Ark. Stat. Ann. § 85-9-504 (Supp. 1973) required more than knowledge of repossession or that the collateral would eventually be sold. We also held that after default and prior to a sale of collateral in its possession, a creditor must give notice to the debtor of the time and place of a public sale or the time after which a private sale would be conducted.

When a creditor repossesses chattels and resells them in a manner not consistent with the code it is his responsibility to prove the sale was commercially reasonable before he is entitled to a deficiency judgment Harper v. Wheatley, 278 Ark. 27, 643 S.W.2d 537 (1982). See also Universal C.I.T. v. Rone, 248 Ark. 665, 453 S.W.2d 37 (1970). We remanded Harper to the trial court for a determination of commercial reasonableness because such proof was disallowed at trial. The matter of lack of notice was not decided in Harper.

When a creditor repossesses chattels and sells them without sending the debtor notice as to the time and date of sale, or as to a date after which the collateral will be sold, he is not entitled to a deficiency j udgment, unless the debtor has specifically waived his rights to such notice. In the case before us no notice was sent as defined by Ark. Stat. Ann. § 85-1-201 (38) (Supp. 1981), and no waiver by the debtor was proven. Under the circumstances the creditor is not entitled to a deficiency judgment. The decision of the trial court is reversed and the case is dismissed.


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    Stanley WELLS v. STATE of Arkansas
    CR 82-156
    648 S.W.2d 466
    Supreme Court of Arkansas
    Opinion delivered April 4, 1983

      Claude S. Hawkins, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant’s motion pursuant to A.R.Cr.P. Rule 37 was denied by the Circuit Court of Howard County without a hearing. On appeal it is contended that the trial court erred in failing to vacate or modify the sentence. We agree with the lower court’s decision.

On September 18, 1981, the appellant entered a plea of guilty to burglary and theft of property and second degree escape. He received a sentence of seven years on burglary and theft of property plus a two year sentence for second degree escape; the sentences to run consecutively. His timely motion pursuant to Rule 37 was denied at the trial level without a hearing.

After commencing his sentence the appellant learned that he was subject to the provisions of Act 93 of 1977, codified in Ark. Stat. Ann. §§ 43-2828 et seq. (Repl. 1977), which required him to serve two-thirds of his ¡sentence because he had had two prior convictions.

Appellant’s Rule 37 petition was a claim of ineffective assistance of counsel due to the fact that he was not informed, prior to his plea, that he would be subject to the provisions of Act 93 in serving his sentence. A careful review of the record indicates that the acceptance of appellant’s guilty plea by the trial court was genuinely fair and complete in all details. There was no showing by the court or anyone else that appellant would be subject to the provisions of Act 93 while serving his sentence in the Arkansas Department of Correction. Judge Castleman thoroughly explained the minimum and maximum sentence, the right to a trial by a jury, and every other matter necessary prior to accepting a guilty plea. We held in Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979), that it was prejudicial error for the trial judge to comment to the jury concerning the power of the governor to pardon. We faced almost exactly this same question in the case of Houff v. State, 268 Ark. 19, 593 S.W.2d 39 (1980). In fact, the trial court in Houff was aware that Act 93 of 1977 had become effective but was not sure how it would affect the time to be served on the sentence. We affirmed the trial court’s denial of Houff’s Rule 37 petition. The problem of how much time an inmate must serve before becoming eligible for parole was considered in the case of Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982). We held that the manner in which a sentence is being executed is not a proper matter to be considered in a petition for postconviction relief and that the department of correction was the proper authority for determining parole eligibility. We have also held that the trial court has no authority to determine the manner in which the board of pardons and paroles exercises its prerogative for parole eligibility. Jones v. State, 270 Ark. 328, 605 S.W.2d 7 (1980). In Stevens v. State, 262 Ark. 216, 555 S.W.2d 229 (1977), we considered a Rule 37 petition for relief when the trial court had denied the petition without a hearing. At the sentencing phase the appellant was told he was sentenced to eleven years and that the court did not know what effect parole policy might have upon the length of time to be served. We affirmed the action by the trial court.

The appellant received the sentence he bargained for. There was no duty upon the court or anyone else to inform the appellant that his sentence might be affected by the provisions of Act 93 of 1977. Any attempt by the court or the defense counsel or the state’s attorney to inform the defendant of his exact parole eligibility date could have resulted in error of a prejudicial nature. Certainly the defense counsel should inform his client about the possibility of parole if he has knowledge of such. However, to require the court or its officers to explain parole eligibility to a defendant would be to encourage the judiciary to encroach upon the executive department of government. Therefore, we find that the court did not err in denying appellant’s motion pursuant to Rule 37 without a hearing.

Affirmed.


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    Francine B. CARTER v. Thomas L. WILSON
    82-286
    648 S.W.2d 472
    Supreme Court of Arkansas
    Opinion delivered April 4, 1983

      Cole & Orintas, for appellant.

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellee.
   Steele Hays, Justice.

Appellant filed this suit in Pulaski County, Arkansas, where she resides, for personal injuries sustained in a motor vehicle collision which occurred in Pickens County, Alabama on September 13, 1980. The defendant (appellee) is a resident of Alabama and was served with summons in Alabama. The complaint asserts that jurisdiction is based on Ark. Stat. Ann. § 27-610.1 (Repl. 1979). The defendant (appellee) moved to dismiss the suit pursuant to ARCP Rule 21 alleging the court had no jurisdiction over the defendant and the subject matter of the law suit. The trial judge granted the motion and appellant has appealed. We affirm.

Appellant cites Ark. Stat. Ann. § 27-2502, which lists a number of activities that will render a person answerable to suit in Arkansas, including a provision that a court of this State may exercise jurisdiction “on any other basis authorized by law.” Appellant points to Ark. Stat. Ann. § 27-610.1 as such “other basis.” It reads:

Actions for damages for personal injury or death by wrongful act, where the accident which caused the injury or death occurred outside this State, shall be brought in the county in this State where the person injured or killed resided at the time of injury or in any county in which the defendant, or one [1] of several defendants, resides or is summoned.

But the argument has a fatal defect — § 27-610.1 is a venue statute and is not to be regarded as an attempt to give Arkansas courts jurisdiction over a non-resident motorist involved in an out-of-state collision. Section 27-610.1 assumes that jurisdiction exists over the defendant, and where that is so, the statute gives the plaintiff a choice of forums. See 15 Ark. L. Rev. 456: “Venue Where Out-of-State Accident Gives Rise to Personal Injury or Wrongful Death Action.”

Here the appellee resides in Alabama, the accident occurred in Alabama and for the purposes of this case, we may assume the appellee has never been in Arkansas. It is thoroughly settled that under the due process clause of the Fourteenth Amendment, where a resident of another state has no contacts with Arkansas, engages in no activities that would establish a “presence” here to render him amenable to suit, he is not subject to the in personam jurisdiction of this State. Pennoyer v. Neff, 95 U.S. 714 (1877). International Shoe Co. v. Washington, 326 U.S. 310 (1945). See Leflar, American Conflicts Law, 3rd Edition, Section 19.

If appellant could achieve her objective here, it would mean that a resident of California could motor to Maine, become involved in a collision, return to California and bring suit, thus forcing upon the Maine resident, not to mention the witnesses, the burden of defending a suit tried at the opposite end of the country.

Those restrictions [the due process clause] are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the several states. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had “minimal contacts” with that State that are a prerequisite to its exercise of power over him. Hanson v. Denckla, 357 U.S. 235 (1958) at 251.

The case was properly dismissed and the judgment is affirmed.


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    Samuel ROBINSON v. STATE of Arkansas
    CR 82-138
    648 S.W.2d 446
    Supreme Court of Arkansas
    Opinion delivered April 4, 1983

      Lessenberry ir Carpenter, by: Thomas M. Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Per Curiam.

Samuel Robinson filed a petition for A.R.Cr.P., Rule 37, relief because he was convicted of aggravated robbery and first degree battery and sentenced in violation of Ark. Stat. Ann. § 41-105 (2) (a) (lesser included offense). We affirmed Robinson’s conviction and his sentence of twenty-five years imprisonment for aggravated robbery and twelve years for first degree battery, finding that the issue argued to us was not properly raised.

Robinson was charged with first degree battery in violation of Ark. Stat. Ann. § 41-1601 (d) in that he committed the battery during the course of a felony, that felony being aggravated robbery. The jury was instructed accordingly, AMCI 1601(A). In accordance with our decisions in Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981), Rowe v. State, 275 Ark. 37,627 S.W.2d 16(1982), and Sanders v. State, 279 Ark. 32, 648 S.W.2d 451 (1983), the conviction and sentence for first degree battery are set aside as being imposed in violation of Ark. Stat. Ann. § 41-105 (Repl. 1977). The conviction and sentence for aggravated robbery are not disturbed. See Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982).


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    Bonnie Sue PIERCE v. Bobby Joe PIERCE et al
    83-24
    648 S.W.2d 487
    Supreme Court of Arkansas
    Opinion delivered April 11, 1983

      Richard W. Byrd, for appellant.

      Phillip H. Shirron, for appellees.
   Richard B. Adkisson, Chief Justice.

The Saline County Probate Court refused to allow appellant, Bonnie Sue Pierce, to revoke her consent to the adoption of her child by appellees, Bobby Joe Pierce and Phyllis Kay Pierce. On appeal we affirm.

The facts are not in dispute. The child was born on September 8, 1978. On May 11, 1981, appellant signed a “consent to adoption and relinquishment of parent and child relationship” and on that same day appellees, who are the brother and sister-in-law of appellant, took custody of the child. On June 19, 1981, the probate court approved appellees’ petition to adopt and entered an interlocutory order to that effect. On September 17,1981, appellant filed a motion to revoke her consent, alleging that the adoption was not final under Ark. Stat. Ann. § 56-213 (Supp. 1981) because the child had not lived in the adoptive home for six months. On January 22, 1982, the probate court denied appellant’s attempted revocation of consent to adoption.

We considered the question of whether a natural mother can withdraw her consent to the adoption of her child after an interlocutory decree had been entered but before a final decree has been entered in the recent case of McCluskey v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 (1983). Under McCluskey, it is settled that consent to adoption can be withdrawn after an interlocutory order only upon a proper showing of fraud, duress, or intimidation. Here the only reason appellant gave in her motion for wanting to revoke her consent was that the adoption was not final. Appellant neither pled nor proffered any evidence of fraud, duress, or intimidation at the hearing. Under these circumstances the probate court did not err in denying appellant’s motion to revoke her consent.

Affirmed.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Donald Lewis CURTIS v. STATE of Arkansas
    CR 82-153
    648 S.W.2d 487
    Supreme Court of Arkansas
    Opinion delivered April 11, 1983

      Thomas G. Montgomery, Crittenden County Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was charged with the aggravated robbery of two jewelry store employees in West Memphis, with the rape of one of the employees by forcibly engaging in deviate sexual activity with her, and with being an habitual criminal. The jury found the appellant guilty of aggravated robbery and imposed a sentence of life imprisonment. The jury also found the appellant not guilty of rape but guilty of the lesser included offense of sexual abuse in the first degree (described as sexual misconduct on the verdict form) and imposed a six-year sentence. For reversal the appellant complains first of the trial judge’s refusal to call the jury back from its deliberations to consider additional evidence and, second, of the error in one of the verdict forms. Our jurisdiction is under Rule 29 (1) (b).

The robbery occurred at about 9:45 a.m. on May 13, 1982. The appellant was arrested eleven days later. He did not testify at the trial, but he called as alibi witnesses his sister, with whom he was living at the time of the robbery, and three other residents of Shearerville, which is a few miles from the scene of the robbery. These witnesses each testified that they saw the appellant for a few minutes in the neighborhood at the time of the robbery. Two other witnesses from Forrest City testified that they saw him there later in the day.

Several of these witnesses had given statements to the police, but none of them had been able to pinpoint May 13 as the day of the robbery. At trial, however, most of them, in saying they had seen the accused on May 13, fixed that date because Jesse Mathis, the boyfriend of another sister of the appellant, had driven his mother to Cleveland, Ohio, on the night of May 13 to attend the funeral of Jesse’s uncle on May 14. They professed to remember that the robbery was on the 13th because the funeral was the next day.

After the jury had retired defense counsel produced a bulletin from the church in Cleveland, announcing that the funeral was to be on May 14. Counsel stated that he had not known about the bulletin until a defense witness handed it to him just before the jury retired. The trial judge denied counsel’s request that the jury be recalled so that the bulletin might be introduced in evidence.

No prejudicial error appears. The appellant concedes that the recalling of the jury for additional evidence is discretionary with the trial judge. Powell v. State, 270 Ark. 236, 605 S.W.2d 2 (1980). Here there was clearly no abuse of discretion. To begin with, the date of the funeral was hardly relevant, because the witnesses, some of whom saw the appellant every day, gave no particular reason for associating their supposed brief encounter with the appellant on May 13 with the funeral the next day. They might equally well have selected some other contemporary occurrence and associated it with the day of the robbery. Second, the date of the funeral had already been fixed by several witnesses and was undisputed; so the bulletin would have been merely cumulative and hence not a basis for reopening the case. Walker v. State, 240 Ark. 441, 399 S.W.2d 672 (1966); and see Smith v. State, 162 Ark. 458, 258 S.W. 349(1942), a case quite similar to this one. Indeed, to have recalled the jury would have over-emphasized the importance of the church bulletin. Third, there is no showing of diligence; for if counsel thought the date of the funeral to be important, conclusive evidence of the date could easily have been obtained before the trial, perhaps by stipulation.

On the second point, the court correctly instructed the jury that the charge of rape included the lesser offense of sexual abuse in the first degree, which was then defined; but the verdict form for the included offense referred to it as sexual misconduct. In returning the verdict of guilty, the foreman signed that form. In the second stage of the bifurcated trial the verdict form correctly referred to the offense as sexual abuse in the first degree, and the foreman signed that form.

We think it beyond question that the jury was not misled. Sexual misconduct is an offense newly created by the Criminal Code and not one familiar to the average juror. Ark. Stat. Ann. § 41-1807 (Repl. 1977). It involves sexual intercourse with a person less than sixteen years old — facts not pertinent to this case in any way. More important, the reference to sexual misconduct was read aloud by the trial judge in submitting the first verdict form, but counsel made no objection. We have stated in two fairly recent cases that an error in the verdict form cannot be raised on appeal if the point was not presented to the trial court. Ply v. State, 270 Ark. 554, 560, 606 S.W.2d 556 (1980); Goodwin v. State, 263 Ark. 856, 861, 568 S. W.2d 3 (1978). Too, we do not reverse for a minor irregularity that could have been easily remedied upon proper objection. Ark. State Highway Commn. v. Newton, 253 Ark. 903, 489 S.W.2d 804 (1973).

We find no error in any of the other objections brought to our attention.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I do not understand by what process or under what authority the majority upgrades the jury verdict from a class B misdemeanor to a class D felony. The jury was provided with three forms for their verdict. The three forms related to aggravated robbery, rape, and sexual misconduct. The jury acquitted appellant on the charge of rape but found him guilty of aggravated robbery and sexual misconduct. It was not the appellant who submitted the wrong form to the jury. The jury had no right to sentence him for a crime for which he was not convicted. The sentence is of no importance in this case because the appellant was sentenced to life on the aggravated robbery conviction. However, the precedent established is of great potential harm. I think we should reduce the second penalty to the one appropriate for the crime for which he was convicted.