author: J IM HANNAH, Justice.

text:
    Kathleen BOURNE, Guardian, and Ralph Howell, A Minor v. BOARD of TRUSTEES of the Little Rock POLICEMAN’S RELIEF PENSION FUND
    01-444
    59 S.W.3d 432
    Supreme Court of Arkansas
    Opinion delivered November 15, 2001

      Robert A. Newcomb, for appellant.

      Edward G. Adcock, for appellee.
   J IM HANNAH, Justice.

This is an appeal from the trial court’s dismissal of a deceased retired police officer’s surviving son’s suit for benefits under his father’s pension where his father had no spouse at the time of his death. The applicable statute at the time of the retired police officer’s death in 1997, Ark. Code Ann. § 24-11-425 (Supp. 1997), provided that a monthly pension would be paid to a qualified survivor “during the surviving spouse’s life.” This language requiring a living spouse as a condition for payment of a survivor’s pension first appeared in the statute in 1987 when the code was reenacted. No act of the Arkansas Legislature made this change. The last act amending section 24-11-425 prior to the 1987 code revision was Act 1027 of 1985. That Act, in referring to the qualified survivor, stated “during his/her life,” rather than “during the surviving spouse’s life,” which inexplicably appears in the 1987 volume. The language “during his/her life” first appeared in Act 582 of 1981 and remained in the statute until the 1987 code revision. In fact “during his/her fife” also appeared in Act 618 of 1987 which amended section 24-11-425 as it appeared in the 1987 supplement rather than the 1987 volume. Yet somehow in the 1987 Supplement we find again “during the surviving spouse’s fife.” Thus, while the statute as it appeared in the 1987 volume required a surviving spouse, no act of the legislature ever amended the section 24-11-425 to use this language. Therefore, there was a modification or change in the statute in revision in a manner not authorized by the laws or constitutions of Arkansas. Ark. Code Ann. § l-2-103(a) (Repl. 1996) provides that in such case the prior language applies. Thus, Ark. Stat. Ann. § 19-1808 (Supp. 1985) applies to this case and provides that where there is a surviving spouse, child, or children under the age of eighteen, then the Board of Trustees shall direct a monthly pension to a surviving spouse for life or to a surviving minor child to age eighteen. The applicable statute does not make payment of a monthly pension to a qualified dependent on the existence of a surviving spouse. On this basis, the trial court entered a dismissal in error, and this case is reversed and remanded.

Facts

Matthew Howell was born in 1983 while his father Ralph Howell was a member of the Little Rock Police Department. Ralph retired in 1989 and began receiving retirement benefits. On his application for benefits, he listed his son Matthew as a qualified survivor in the event of his death. Ralph and Matthew’s mother, Kathleen Bourne, were divorced. Thus, on March 24, 1997, Ralph died without a surviving spouse. After Ralph’s death, Matthew applied for and was denied death benefits under Ark. Code Ann. § 24-11-425 because there was no surviving spouse. In 1999, the statute setting out pension benefits was modified to provide benefits for surviving children in the absence of a surviving spouse. Matthew again applied, and was again denied, this time based upon Ralph’s death being in 1997 and the court finding the 1999 act was not retroactive.

Statutory Interpretation

This case requires interpretation of the Arkansas statutes. In Western Carroll Cty. Amb. Dist. v. Johnson, 345 Ark. 95, 44 S.W.3d 284 (2001), this court stated:

We review issues of statutory construction de novo, as it is for this court to decide what a statute means. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997).
The basic rule of statutory construction is to give effect to the intent of the General Assembly. Ozark Gas Pipeline v. Arkansas Pub. Serv. Comm’n, 342 Ark. 591, 29 S.W.3d 730 (2000). Where the language of the statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id. However, we will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Buford Distributing, Inc. v. Starr, 341 Ark. 914, 20 S.W.3d 363 (2000).

Western Carroll Cty. Amb. Dist., 345 Ark. at 99-100.

In applying these principles to the interpretation of Ark. Code Ann. § 24-11-425, we first note that the phrase in contention provides benefits for children of deceased police officers if there is a surviving spouse, but does not if there is no surviving spouse. It would be surprising if the legislature intended to provide for children of deceased officers who had surviving spouses but did not intend to provide for an officer’s orphaned child. This might be argued to be an absurd consequence contrary to legislative intent. However, we note more significandy that we are unable to find any act of the legislature that amended the subject sentence to include this language making payment of benefits dependent upon the existence of a surviving spouse. It appears this language was added and the statute was changed in error in the reenactment of the code in 1987. On that basis, Ark. Code Ann. § 1-2-103 applies to correct the error. Cox v. City of Caddo Valley, 305 Ark. 155, 806 S.W.2d 6 (1991). We first, however, consider the legislative and statutory history of the Policeman’s Pension and Relief Fund.

The Policeman’s Pension and Relief Fund

We have before us something more than merely a retirement plan for police officers. Act 250 of 1937 established a “policeman’s pension and relief fund.” Section one of Act 250 provides a tax on property to provide a fund for pensioned and superannuated members of the police department as well as for “widows and orphans or dependent mothers of deceased members of the police department. ...” This purpose set out in the original act has been adhered to consistently throughout the years until the erroneous amendment of section 24-11-425 in the 1987 code reenactment. The statute has indeed been amended by the Legislature a number of times, but up until 1987, it always retained the same purpose, to benefit police officers through retirement, disability, and provide pension benefits for spouses and children in the event of death of the police officer. Only by the unintended modification to the statute in the 1987 reenactment was this purpose altered to require a surviving spouse before any monthly pension could be paid to survivors.

Section 8, as originally drafted in 1937, provided that the benefits were to be paid to police officers as well as “to such widow” and “for such child.” Also, section 8 in its last sentence stated, “Provided that any member of the police department retired and pensioned under the provision of the Act shall die while so retired and pensioned, leaving a widow or children or widowed mother surviving, shall be entitled to a pension under this act.” Section 13 of the Act makes provision for a widow or child or widowed mother to make application to the board of trustees. Finally, section 19 requires every member of the department to file the names of beneficiaries. Thus, it is apparent that the pension and relief fund was not intended simply as a retirement fund for police officers. This Act was codified in Pope’s Digest, sections 9863, 9868, and 9874. Act 86 of 1953 modified funding and modified pension amounts. Again, the benefits were to be paid “to such widow” and “for such child.” Section 8 was again modified in 1965 and in 1967; however, the cited language remained the same. In 1981, by Act 582, Section 8 was amended to provide, “[S]hall leave a widow or child or children under the age of eighteen (18) year surviving, the said board of trustees shall direct a monthly pension during his/her life. . . .” This same act added a provision that stated, “In addition to the above monthly pension such Board of Trustees shall order and direct payment of the sum of one hundred twenty five dollars ($125.00) per month to each child under eighteen (18) years of age” under certain conditions there set out. This was a benefit to provide added assistance to children furthering their education.

Our current problem arose during codification and reenactment of the Arkansas laws in 1987. There is a fundamental change in the statute as printed in 1987 that can’t be accounted for in the acts. Act 1027 of 1985 was the last act prior to the 1987 code revision, and is referenced in the notes at the end of the statute in the 1987 volume. This Act made some changes to the statute. However, the relevant language read:

If any active police officer shall die or if any retired member dies from any cause, leaving a surviving spouse or child or children under the age of eighteen (18) years, then the Board of Trustees shall direct a monthly pension during his/her life in an amount. . . . (Emphasis added.)

Thus, as stated, the language “during his/her fife” remained from 1981 until the Code reenactment. Somehow this language was altered in transcription into the 1987 Code to read:

If any active police officer shall die or if any retired member dies from any cause, leaving a surviving spouse or child under the age of eighteen (18) years, then the Board of Trustees shall direct a monthly pension during the surviving spouse’s life in an amount. . . . (Emphasis added.)

The change from “during his/her fife” to “during the surviving spouse’s fife” fundamentally alters who may draw a pension. Under the language printed in the 1987 Code, a child may not be paid a monthly pension unless there is a surviving spouse. Apparently no one caught this error because from 1987 until 1999 the language “during the surviving spouse’s life” remained in the printed code. It should also be noted that Act 618 of 1987, which amended the section and appeared in the 1987 supplement, also provides “during his/her fife.” Inexplicably this language was not used in the 1987 supplement. Again, the language printed in the code is “during the surviving spouse’s life.” It was only in Act 978 of 1999 that the error was apparently caught and corrected.

This type of error was envisioned when the new code was adopted in 1987. Act 267 of 1987 codified at Ark. Code Ann. § 1-2-103(a)(3) provides:

(a) All acts, codes, and statutes, and all parts of them and all amendments to them of a general and permanent nature in effect on December 31, 1987, are repealed unless:
(3) Omitted, changed, or modified by the Arkansas Code Revision Commission, or its predecessors, in a manner not authorized by the laws or the constitutions of Arkansas in effect at the time of the omission, change, or modification.

Here we have a change or modification that was not authorized by the laws in effect at the time of the change or modification. The prior statute, Ark. Stat. Ann. § 19-1808 (Supp. 1985), provided that the Board of Trustees shall direct a monthly pension “during his/ her fife.”

Nothing in Act 1027 of 1985 permitted substituting “during a surviving spouse’s life” for “during his/her life,” which is the proper language of the Act. Somehow a clerical error was made in codification in the new code in 1987. A similar situation was discussed in Cox, supra. There, the Arkansas Code Revision Committee used “or” where the act had stated “and/or.” Therein the court stated:

While it is stated that all acts and statutes in effect on December 31, 1987, were repealed by the codification and reenactment of the Arkansas laws, exceptions are provided, and when applicable, the law as it existed on December 31, 1987, shall continue to be controlling. Ark. Code Ann. 1-2-103 (1987). One such exception occurs if the act or statute is omitted, changed, or modified by the Arkansas Code Revision Commission in a manner not authorized by the laws or the constitutions of Arkansas in effect at the time of the omission, change, or modification. Ark. Code Ann. 1-2-103(a)(3).

Cox, 305 Ark. at 157-158.

Here, there is no act that substituted “during the surviving spouse’s life” for “during his/her life.” The change or modification of section 24-11-425 was done by the Arkansas Code Revision Commission in a manner not authorized by the laws or the Constitution of Arkansas in effect at the time of the omission, change, or modification. Ark. Code Ann. § 1-2-103 (a) (3).

However, it should be noted that Act 1197 of 1993 and Act 1241 of 1997 used the same language as contained in section 24-ll-425(a) except the minimum amount of payment. Act 1197 of 1993 and Act 1241 of 1997 did not amend section 24-ll-425(a) in any way other than to increase the minimum amount of payment. Thus, it appears the legislature looked to the code as printed in drafting the 1993 and 1997 acts and inadvertently picked up the erroneous wording. This problem was addressed in Citizens to Establish a Reform Party v. Priest, 325 Ark. 257, 926 S.W.2d 432 (1996), wherein this court noted a provision was included in a statute by mistake beginning with the 1987 reenactment and in a subsequent act the legislature clearly looked to the erroneous language in the code. The court there stated:

In drafting Acts 946 and 963 of 1995, the legislature obviously looked to the Code provisions. The language used in those Acts does not reflect the original language contained in Act 123 of 1987. It mirrors the modified version of the exception which erroneously appeared in the Arkansas Code. We are reluctant to interpret a statute in a manner contrary to its express language, but we cannot allow a drafting error or codification error to circumvent legislative intent. Rosario v. State, 319 Ark. 764, 894 S.W.2d 888 (1995); Cox v. City of Caddo Valley, 305 Ark. 155, 806 S.W.2d 6 (1991).

Citizens to Establish a Reform Party, 325 Ark. at 264.

Thus, while the legislature used the erroneous language substituted in the 1987 reenactment, it was a codification error which circumvents the legislative intent, and resort to the wording of the statute prior to the error is required. Ark. Code Ann. § 24-11-425 was previously Ark. Stat. Ann. § 19-1808. The last printing of the statute prior to the error was in the 1985 Supplement. It reads as follows:

If any active police officer shall die or if any retired member dies from any cause, leaving a surviving spouse or child or children under the age of eighteen (18) years, then the Board of Trustees shall direct a monthly pension during his/her life in an amount equal to the rank of the deceased police officer. . . .

The term “during his/her life” means that if an active or retired police officer dies with a surviving spouse or a surviving child or children, a monthly pension shall be paid to such spouse for life, if there is one, or to the minor child or children until the age of eighteen. Thus, payment of a pension under the statute is not dependent upon a spouse surviving the death of the active or retired police officer. We also note that paragraph (a) of Ark Code Ann. § 24-11-245 was substantially amended by Act 978 of 1999, now discussing the benefits paid to the surviving spouse in paragraph (a) and discussing benefits paid to children in paragraph (b). Arguably, this corrects the error just discussed because payment of benefits to children is not tied to the existence of a surviving spouse. This change casts light on legislative intent in this case. While the amendment of an act does not control the interpretation, we can look to changes in statutes made by subsequent amendments to determine legislative intent. Pledger v. Mid-State Constr. & Materials, Inc., 325 Ark. 388, 925 S.W.2d 412 (1996). The 1999 Act brought the statute back into conformity with the statute as it existed prior to the 1987 reenactment and tends to show there was an error.

As to cases arising under section 24-11-425 between the 1987 reenactment and the 1999 amendment on the issue of who may be qualified to receive a monthly pension under the statute, Ark. Stat. Ann. § 19-1808 (Supp. 1985) applies.

Reversed and remanded.


source: Caselaw Access Project

author: w .H. “Dub” ARNOLD, Chief Justice.

license: Public Domain

text:
    Gail PARKERSON v. Charles J. LINCOLN, II
    01-478
    61 S.W.3d 146
    Supreme Court of Arkansas
    Opinion delivered November 29, 2001
    [Petition for rehearing denied January 10, 2002.]

      T.B. Patterson, Jr, P.A., for appellant.

      Barber, McCaskill, Jones & Hale, P.A., by: Robert L. Henry, III, and Richard A. Smith, for appellee.
   w .H. “Dub” ARNOLD, Chief Justice.

This is an appeal of a summary judgment granted to appellee in an action for legal malpractice and breach of contract. The following facts are undisputed. Appellant, Gail Parkerson, filed her pro se complaint against American States Insurance Company (“American States”) in Garland County Circuit Court on August 28, 1995. Appellee, Charles Lincoln, II, filed his entry of appearance on October 11, 1995. The losses claimed by appellant against American States occurred on August 27, 1990; she filed her complaint on August 28, 1995 — one day outside of the five-year statute of limitations.

Hearings were held on September 9, 1996, and October 7, 1996, on American States’ motion for summary judgment based on the assertion that the claim was barred by the applicable statute of limitations. On October 7, 1996, Judge Walter Wright granted American States’ motion for summary judgment, finding that the statute of limitations did, indeed, bar the claims.

On October 8, 1996, appellant spoke with appellee via telephone and was informed that the motion for summary judgment was granted. On October 9, 1996, appellant called appellee and suggested that he file a motion for reconsideration based on the fact that the date the statute would have run would have fallen on the weekend, and August 28th was the first day after the weekend that the complaint could have been filed; therefore, the complaint should have been considered timely filed. Appellee told appellant not to bother him again and instructed her to find another attorney. Appellant and appellee agree that this was the last conversation between the two of them.

On October 11, 1996, appellant resumed representing herself pro se and filed a motion for reconsideration, which was granted; Judge Wright set aside his previous ruling granting American States’ motion for summary judgment. On October 17, 1996, appellant wrote a letter to appellee outlining what she believed to be the various mistakes and acts of negligence on his part. All of the acts she alleged to be negligent occurred prior to October 9, 1996. She made specific mention of his alleged negligence and three references to a potential malpractice suit against him. Also on October 17, 1996, appellant filed with the court a notice of change of attorney, notifying the court that appellee was no longer her attorney.

On October 18, 1999, appellant filed in Pulaski County Circuit Court her complaint against appellee for legal malpractice and breach of contract. Appellee moved for summary judgment, contending that the statute of limitations for a breach of contract action had run prior to the date appellant filed her complaint against him. On December 4, 2000, the trial judge heard the appellee’s motion for summary judgment and granted same in an order dated January 4, 2001. It is from this order that appellant brings the instant appeal. For her only point on appeal, appellant asserts that the trial court erred in granting summary judgment to appellee, whether on the basis of the statute of limitations or the lack of proximately caused damages, and in dismissing the legal malpractice action of appellant. We affirm.

I. Standard of Review

We have ceased referring to summary judgment as a “drastic” remedy. We now regard it simply as one of the tools in a trial court’s efficiency arsenal; however, we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999). On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. City of Dover v. A. G. Barton, 342 Ark. 521, 29 S.W.3d 698 (2000).

II. Statute of Limitations

The applicable statute of limitations for actions on contract and legal malpractice is three years, pursuant to Ark. Code Ann. § 16-56-105 (Supp. 1999). We have held that the limitations period in these types of cases begins to run when there is a complete and present cause of action, and, in the absence of concealment of the wrong, when the injury occurs, not when it is discovered. See Chalmers v. Toyota Motor Sales, USA, Inc., 326 Ark. 895, 935 S.W.2d 258 (1996); Chapman v. Alexander, 307 Ark. 87, 817 S.W.2d 425 (1991). Appellant does not plead concealment on any level. Appellant and appellee agree that the last conversation between the two of them occurred on October 9, 1996. Further, although appellee was still appellant’s attorney of record until October 17, 1996, at which time appellant filed notice with the court that appellee was no longer her attorney, all of the allegations of negligence asserted by appellant occurred prior to October 9, 1996. Appellant did not file her complaint against appellee until October 18, 1999. The statute oflimitations ran on October 9, 1999. Therefore, appellant’s claim against appellee was barred, and the trial court was correct in granting summary judgment in appellee’s favor.

Appellant asserts that because appellee had not turned over her file until he made it available to her sometime in November of 1999, then the statute was tolled until she obtained the file. We disagree. Because appellant, in her letter to appellee dated October 17, 1996, outlined to appellee all of the actions that she believed were negligent on his part •— all of which occurred prior to October 9, 1996, and because we have held that the limitations period begins to run when the injury occurs and not when it is discovered, we hold that the statute had run and appellant’s claims against appellee are barred.

Affirmed.


author: T OM GLAZE, Justice. ROBERT L. BROWN, Justice,

text:
    Katherine THOMAS, Individually and As Parent and Next Friend of Tamarius Thomas, A Minor v. Ray STEWART and Charter Enterprises
    01-259
    60 S.W.3d 415
    Supreme Court of Arkansas
    Opinion delivered November 29, 2001

      Gary Eubanks and Associates, by: Russell D. Marlin, for appellant.

      Huckabay, Munson, Rowlett & Tilley, RA., by: Julia L. Busfield and John E. Moore, for appellee.
   T OM GLAZE, Justice.

Katherine Thomas brings this appeal from the trial court’s order granting summary judgment in favor of defendant Ray Stewart. In addition, she asks us to overrule the doctrine of caveat lessee in Arkansas.

Appellant Thomas and her son, Tamarius Thomas, were tenants in an apartment building that was at some point owned by appellee Ray Stewart. Thomas’s sister, Anita Benton, was also a tenant in that same apartment building. In January of 1998, as Tamarius was leaning on a second-floor balcony railing between the apartments of Thomas and Benton, the railing gave way. Tamarius fell to the ground and suffered numerous injuries. Thomas filed suit against Stewart on December 28, 1999, alleging that Stewart or his employees were responsible for the railing that collapsed, that Stewart failed to inspect his premises in such a manner as to keep them in a reasonably safe condition, and that he failed to maintain the premises in such a way as to assure that they were in a reasonably safe condition.

Stewart answered, asserting that he was under no legal obligation to the Thomases for Tamarius’s injuries, sustained in a common area of the apartment complex, absent a statute or an agreement. Shortly thereafter, Stewart moved for summary judgment, asserting that neither Thomas nor Benton had a written lease with him. Further, he argued that under Arkansas law, a landlord is under no legal obligation to a tenant or a tenant’s guest for injuries absent a statute or express agreement. While he conceded that he provided some maintenance to the property, Stewart stated he did not expressly agree to assume the duty to inspect the property, remove hazards, or insure the safety of the tenants or their guests. Further, he averred that he had never made any repairs or alterations to the balcony railing at issue prior to the accident.

Thomas responded to Stewart’s motion for summary judgment by arguing that the balcony railing had a latent defect that made it dangerous. Thomas contended that Arkansas should recognize a rule, as other jurisdictions have, by which a latent defect renders a landowner liable when injuries proximately result from such a defect. Further, Thomas suggested that Arkansas should adopt a rule that once a landlord has assumed a duty by conducting maintenance or by warning that he would continue to do so, he is liable when injuries proximately result from his failure to do so. Thomas attached deposition excerpts in which she had stated that Gordon Reese, the maintenance man for the apartment complex, had come to her apartment to fix things, like the plumbing or the air conditioner. Thomas’s deposition also reflected that Anita Benton, her sister, had told her that the railing was loose and that she (Benton) had informed Reese about that problem before the accident. Both Thomas and her son said that, prior to the accident, they had no idea the railing was loose. Thomas also attached deposition excerpts from Benton; Benton stated that, long before Tamarius’s fall in January of 1998, she had complained to Gordon Reese about the balcony being loose, and that Reese told her that he would check the railing or get someone to check and fix it. This deposition testimony, Thomas asserted, presented a genuine issue of material fact as to the landlord’s knowledge of the problem, thus rendering summary judgment inappropriate.

After a hearing, the trial court entered an order granting Stewart summary judgment. In that order, the court found the following: 1) there was no written lease between Thomas and Stewart or between Benton and Stewart; 2) there was no express agreement between Stewart and Thomas or Benton relating to repairs, inspection, or maintenance of the property; 3) there is no statute in Arkansas imposing a duty on a landlord to inspect or maintain the leased premises in a safe manner; 4) Thomas failed to prove that Stewart assumed the duty to inspect the leased property, remove hazards, or insure the safety of the tenants or their guests; 5) Thomas failed to establish that any defects in the railing were latent defects, or unknown to the tenant; 6) Benton had full knowledge of the alleged defects, and Tamarius was her guest; 7) Arkansas has adopted the doctrine of caveat lessee, and has done so for over 100 years; and 8) Stewart had not negligently performed any repairs. Therefore, the court granted Stewart’s motion for summary judgment.

On appeal, Thomas continues her argument that there are issues of fact that render summary judgment inappropriate. We have, of course, ceased referring to summary judgment as a “drastic” remedy. See Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998) (supp. opinion on denial of reh’g in Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998)). We now regard it simply as one of the tools in a trial court’s efficiency arsenal; however, we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. Id. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001). However, when there is no material dispute as to the facts, the court will determine whether “reasonable minds” could draw “reasonable” inconsistent hypotheses to render summary judgment inappropriate. In other words, when the facts are not at issue but possible inferences therefrom are, the court will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds might differ on those hypotheses. Flentje v. First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).

In support of her argument that summary judgment was inappropriate, Thomas cites Hurst v. Feild, 281 Ark. 106, 661 S.W.2d 393 (1983). In that case, a gas station was leased to Texaco, Inc.; under the terms of the lease to Texaco, the owner agreed to make major repairs over $50.00. Texaco, in turn, subleased the station to Leon Hurst, who was the proprietor of the station during a time when a stone facade was constructed on the building. In November of 1978, Texaco subleased the station to Troy Coleman, who subsequently entered into an oral sublease with Hurst, who remained on as proprietor. The subleases executed by Texaco to Hurst and to Coleman contained an agreement that the lessee would maintain the station in good repair and in a safe condition, but the terms of the oral sublease to Hurst were in question.

In January of 1980, a portion of the stone facade collapsed, injuring Hurst. Hurst, as sublessee, sued for personal injuries against the owners, lessor (Texaco), and sublessor (Coleman). The trial court found that the duty to repair rested on Hurst, and granted summary judgment in favor of the defendants. On appeal, this court reversed as to sublessor Coleman, noting as follows:

At common law the lessor owed no duty of repair of the premises to the lessee. Arkansas law follows this rule. Unless a landlord agrees with his tenant to repair the leased premises, he cannot, in the absence of statute, be held liable for repairs. Terry v. Cities of Helena & W. Helena, 256 Ark. 226, 506 S.W.2d 573 (1974); Collison v. Curtner, 141 Ark. 122, 216 S.W 1059 (1919).
In the instant case, the lease agreements made between the owners and Texaco, Inc. and between Texaco, Inc. and Coleman are not applicable to the lease between Coleman and Hurst because of a lack of privity. Therefore, the only question is whether the terms of the oral sublease from Coleman to Hurst imposed upon Coleman a duty to repair. Appellant Hurst’s affidavit was that Coleman agreed to make repairs and that Coleman told Hurst to call him if any repairs were needed. This is sufficient to raise a question of fact. (Emphasis added.)

Id. at 108; see also Majewski v. Cantrell, 293 Ark. 360, 737 S.W.2d 649 (1987) (court held there was an agreement to repair where lessor admitted having sent a worker out to repair roof on numerous occasions).

Here, Thomas asserts that a similar situation exists. She points to Anita Benton’s deposition testimony, wherein Benton stated she informed Gordon Reese about the balcony railing being loose prior to Tamarius’s fall, and that Reese, as an employee of Stewart, told her he would either fix it or call someone to fix it. Thomas also points to her own deposition testimony where she averred that it was Reese with whom she entered into the oral lease-for the apartment, and that Reese was the one responsible for making repairs to the apartments. Reese admitted that he was responsible for the maintenance of the buildings and their railings. Thomas contends that these statements were sufficient to raise a question of fact about whether or not Reese, as an employee of Stewart, entered into an oral agreement to make repairs to the premises.

We agree that there are questions of fact, if for no other reason than because we believe there is a question as to the role and authority of Gordon Reese. Simply put, there are disputed facts surrounding Reese’s responsibility and authority concerning the apartment building. Stewart’s motion for summary judgment refers to Reese as the “owner of the apartments,” and Reese’s deposition testimony, attached to that motion, reflects that he purchased the apartments in 1996, long before this incident occurred in January of 1998. In that same deposition, Reese also acknowledges that he was responsible for the maintenance of the buildings and the railings outside them. Further, Thomas attached her own deposition testimony to her response to the initial summary judgment motion; after noting that she never had to sign a written lease, she averred that it was Reese who informed her she could have the apartment and that she had always believed Reese to be the owner of the apartments.

Notwithstanding these foregoing statements, however, counsel for Thomas asserted that Reese was only an “agent, servant, or employee” of the named defendant, Ray Stewart. Further, Thomas’s attorney argued that “the defendant, through its agent, servant, or employee Gordon Reese,” assumed the duty of maintaining the buildings. Defense counsel never cleared up the issue of Reese’s capacity or role, and the trial court, in ruling on the motion, also referred to Reese as “the agent.” The court also phrased the issue as being whether there was an assumption of duty, and asked, “where did this person, Reese, get that authority from?”

Thus, it is apparent that there is a great deal of confusion surrounding Reese’s status and his authority in this case. Indeed, at oral arguments before this court, counsel for appellee Stewart acknowledged that she did not focus on Reese’s role because she “[did] not want to say there is a fact issue,” and she conceded that if Reese’s authority mattered, “then we would lose.” Nevertheless, Stewart’s counsel asserted that even if Reese did have authority, the contentions raised by Thomas were not allegations of an agreement by Reese to fix the railing, but were merely allegations that Benton had complained about the railing.

In support of this argument, Stewart argues that the situation is not akin to that presented in Hurst, but instead approximates more closely the facts in Stalter v. Akers, 303 Ark. 603, 798 S.W.2d 428 (1990). There, a third party, Mrs. Akers, was injured on the property of Jason and Laura Howard, who rented their house from Patsi Stalter. As Akers left the Howard’s house, she tripped and broke her leg on a concrete block that had been placed as a temporary substitute for a broken step. Akers knew that the bottom step had been broken, and she testified that she had overheard a conversation in which Stalter, the lessor, had told Laura Howard that she (Stalter) would repair the broken step. Although the jury found in Akers’s favor, this court reversed. Noting that there was evidence that Akers overheard a conversation between Stalter and Howard about fixing the defective step, this court nevertheless held that “a gratuitous promise to repair, unsupported by consideration, is not sufficient to impose upon the landlord a duty to carry out the promise.” Stalter, 303 Ark. at 607.

The Stalter court further noted that, although the Restatement (Second) of Torts § 357 provided that a lessor is subject to liability for physical harm caused to his lessee by a condition of disrepair if the lessor has contracted by a covenant in the lease or otherwise to keep the land in repair, the comment to that section also stated that “th[is] rule has no application where there is no contractual obligation, but merely a gratuitous promise to repair, made after the lessee has entered into possession.” Id. Thus, holding that an injured third party must establish a landlord’s contractual duty to repair a defect in the premises before he may recover for an injury suffered upon leased property over which the landlord has relinquished possession and control to a tenant, this court reversed the jury’s verdict. Id.

Relying on Stalter, the appellee argues that the statement by Reese that he would fix the railing outside Benton’s apartment amounted to nothing more than a gratuitous promise to repair, unsupported by consideration. We disagree. We first point out that the Stalter case, citing the Hurst and Majewski decisions, consistently recognized the rule that where it was shown that a sublessor (or lessor) agreed to make repairs, such was sufficient to raise a question of fact regarding duty. However, the trial court in Stalter was reversed because it gave an inappropriate jury instruction that failed to reflect that a gratuitous promise to repair, without consideration, is not sufficient to impose upon the landlord a duty to carry out the promise. The present case is a summary judgment one, and the issue, among others, to be developed is whether Stewart’s agreement involved a gratuitous promise. Thomas says it did not, arguing that Stewart’s (or Reese’s) agreement to repair involved consideration because the agreement was made during the parties’ month-to-month oral lease. In any event, this issue is yet another issue to be tried, addressed, and decided on remand, in addition to the factual question of Reese’s role and authority to make a promise in the first instance.

Thomas also argues that this court should take this opportunity to reexamine the doctrine of caveat lessee, which has been the rule in this state for over one hundred years. See Haizlip v. Rosenberg, 63 Ark. 430, 30 S.W 60 (1897). While we do not foreclose the possibility of considering this issue in the future, we decline to address the question further here for several reasons. First, we point out that, although Thomas urges the court to overrule a long fine of cases, including Propst v. McNeill, 326 Ark. 623, 932 S.W.2d 766 (1996), her brief fails to provide the court with any authority on the issue of caveat lessee beyond a New Hampshire case, Sargent v. Ross, 308 A.2d 528 (N.H. 1973), which was addressed and rejected in Propst. Further, Thomas has not apprised the court of any developments since this court decided Propst that would cause us to decide the case any differently. In Propst, we noted that the question of landlord liability was more properly a question for the General Assembly, stating that, “because of the policy considerations and possible impact that would ensue in enlarging a landlord’s liability, there is merit in the argument that such matters might be dealt with better in the legislative arena.” Propst, 326 Ark. at 626. Thomas has not provided the court with any indication that the General Assembly has taken any action on this issue, and in the absence of any such research or authority, we are hesitant to address the matter here.

Finally, Thomas also argues that the doctrine of caveat lessee can be analogized to that of caveat emptor, which this court addressed and modified in the context of the sale of new houses in the case of Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970). Thomas contends that because the court swept away an “old world caveat related to real property” in Wawak, we should take the opportunity to do so here with respect to caveat lessee. We decline to adopt this reasoning. Although Thomas asserts that we should simply adopt a more modern rule, as the court did in Wawak, we point out that this court, in that case, had the benefit of amicus curiae briefs from interested organizations; such briefs had been invited after the case was submitted in order to ensure that the court would have before it all possible persuasive arguments before overturning long-standing precedent. Without the benefit of such research and argument in this case, we simply do not believe we are in the best-informed position to make relatively sweeping changes to our common law.

Because the trial court improperly concluded that there were no genuine issues of material fact, we reverse the order granting summary judgment against Thomas and remand the case for further proceedings.

IMBER, J., not participating.

Brown, J., concurs.

ROBERT L. BROWN, Justice,

concurring. Like the majority, I am reluctant to consider such a sweeping change in our common law as completely abandoning the doctrine of caveat lessee for landlords without fully developed facts and briefing accompanied by appropriate amicus curiae briefs. I am also reluctant to consider adopting exceptions to the doctrine such as the retention-of-control and latent defect exceptions without comparable briefing.

Yet, it has been almost thirty years since the Uniform Residential Landlord and Tenant Act was first proposed in 1972. The uniform act provided that states should require residential landlords to comply with applicable building and housing codes which affect health and safety, make repairs and keep the premises in a fit and habitable condition, maintain common areas, and make available basic plumbing, water, sanitation, and utility services. See Case Note. Propst v. McNeill: Arkansas Landlord-Tenant Law, A Time for Change, 51 Ark. L. Rev. 575 (1998). Undoubtedly, this uniform act or some variation of it has been proposed to the General Assembly on several occasions over the past three decades, but no action has been taken by that body. This is so even though this court said in Propst v. McNeill, 326 Ark. 623, 626, 932 S.W.2d 766, 768 (1996), that because of the policy considerations inherent in the issue of landlord liability, “there is merit in the argument that such matters might be dealt with better in the legislative arena.” Three legislative sessions have occurred since the Propst decision, but, again, no action has been taken.

Because the General Assembly has not seen fit to act on this issue, it is appropriate that this court revisit the issue of landlord liability at the next appropriate opportunity. On two occasions in the last decade, justices of this court have shown a willingness to limit the rule of caveat lessee or adopt one of the exceptions to it. See Eoff v. Warden, 330 Ark. 244, 953 S.W.2d 880 (1997) (Newbern and Corbin, JJ., dissenting on basis that retention-of-control exception should be considered); Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994) (Newbern, J., concurring on basis that landlord-tenant relationship is a special relationship giving rise to a duty of care).

In the past when the General Assembly has refused to act, this court has made a significant change in its common law. See, e.g., Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968). In Parish, the issue was tort immunity for political subdivisions. Because the General Assembly had refrained from addressing the issue, though called upon to do so by this court in Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S.W.2d 257 (1957), we abolished tort immunity for political subdivisions in the Parish decision. We acted similarly in Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997) (alcohol vendor’s liability for selling alcohol to minors may he submitted to jury on issue of whether sale was proximate cause of resulting injury); Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999) (alcohol vendors owe duty of care to intoxicated persons, knowing they will drive a motor vehicle). In both cases, we had previously urged the General Assembly to meet the issue of dramshop liability head-on, and no action was taken. It was only after those two decisions were handed down that legislation was enacted. See Act 1596 of 1999, now codified at Ark. Code Ann. § 16-126-101 to 106 (Supp. 2001).

The issue of landlord liability for negligence to guests and tenants deserves attention either by the General Assembly or, failing that, by this court.

       Ray Stewart, d/b/a Charter Enterprises, Inc., was the named defendant in this suit. However, as will be discussed infra, Stewart apparently sold the apartment building to Gordon Reese in 1996. For unknown reasons, Reese is most often referred to as Stewart’s employee and Stewart is referred to as the owner or landlord.

       For similar reasons, and also because Thomas has prevailed in this appeal, we decline Thomas’s invitation to adopt exceptions to the caveat lessee doctrine.


author: D ONALD L. CORBIN, Justice. T OM GLAZE, Justice,

text:
    Kevin Warzell BROWN and Justin Scott Thornhill v. STATE of Arkansas
    CR 00-1227
    60 S.W.3d 422
    Supreme Court of Arkansas
    Opinion delivered November 29, 2001
    [Petition for rehearing denied January 10, 2002.]

      John Joplin, Deputy Public Defender, for appellants.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.

       Glaze and Hannah, JJ., would grant.

   D ONALD L. CORBIN, Justice.

Appellants Kevin Warzell Brown and Justin Scott Thornhill appeal from the judgment of the Sebastian County Circuit Court convicting them of aggravated robbery. The robbery occurred on July 6, 1999, at the Convenience Corner store in Fort Smith. The robber was described as a white male, approximately five feet, five inches to five feet, seven inches tall and 120-150 pounds. He wore a ski mask and carried a gun in one hand and a blue, plastic Wal-Mart shopping bag in the other. The State alleged that Thornhill was the one who actually robbed the store while Brown waited outside in the car. Both men were sentenced as habitual offenders. Brown received fife imprisonment while Thornhill received thirty years’ imprisonment. Appellants raise a total of eight points for reversal. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a) (2). We reverse and remand for a new trial.

For their first point for reversal, Appellants argue that the trial court erred in denying their motion for a directed verdict on the sole charge of aggravated robbery. They assert that there was insufficient evidence showing that they committed the robbery with a deadly weapon. They rely on (1) the victim’s testimony that she thought the gun was fake, and (2) the fact that the only gun recovered from Appellants’ apartment was a BB gun. Appellants argue that, at a minimum, the victim’s testimony provided a rational basis to instruct the jury on the lesser-included offense of robbery. We agree with the latter argument.

No right has been more zealously protected by this court than the right of an accused to have the jury instructed on lesser-included offenses. Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992); Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). It is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence. See Ellis v. State, 345 Ark. 415, 47 S.W.3d 259 (2001); Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001). Thus, we will affirm the trial court’s decision to exclude an instruction on a lesser-included offense only if there is no rational basis for giving the instruction. Id. See also Ark. Code Ann. § 5-l-110(c) (Repl. 1997).

Here, the evidence shows that Dottie Harrison was working at the Convenience Corner on July 6, 1999. Around 1:30 a.m., a man walked into the store wearing a ski mask and carrying a gun in one hand and a blue, plastic Wal-Mart bag in the other. The robber told Harrison to give him the money. He repeated his demand three times. Harrison thought that it was a friend playing a joke on her until the third time that the man demanded the money. According to Harrison, the robber had the gun in his hand the whole time, holding it kind of sideways and pointing it at her. When asked to describe the gun, Harrison stated: “I don’t know a whole lot about guns, but it didn’t look right, and that’s what I told the detectives that night. It was strange.” She testified on cross-examination that the gun looked fake, but she was not sure about it. She admitted telling the police, on the morning of the robbery, that “[t]he gun appeared to be black in color and it looked fake to me.” She also admitted stating that her grandchildren played with toy guns and that the gun used in the robbery “just looked plastic to me.” On redirect, Harrison stated that if she had known that the gun was not real, she would not have given the robber any money.

At the close of all the evidence, Appellants sought instructions on the lesser offenses of robbery and theft by threat. The trial court refused both instructions. We agree with the trial court’s ruling on the offense of theft by threat, as this court has consistently held that theft of property, whether by threat or otherwise, is not a lesser-included offense of aggravated robbery. See Robinson v. State, 303 Ark. 351, 797 S.W.2d 425 (1990); Rolark v. State, 299 Ark. 299, 772 S.W.2d 588 (1989). We disagree, however, with the trial court’s refusal to instruct on robbery.

Robbery is a lesser-included offense of aggravated robbery. See Tarkington v. State, 313 Ark. 399, 855 S.W.2d 306 (1993); Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1988). “A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” Ark. Code Ann. § 5-12-102(a) (Repl. 1997). It becomes aggravated robbery if the person is armed with a deadly weapon or represents, by word or conduct, that he is so armed. See Ark. Code Ann. § 5-12-103(a)(l) (Repl. 1997). “Generally a robbery instruction is required when the charge is aggravated robbery.” Henson, 296 Ark. at 474, 757 S.W.2d at 561. The exception to that general rule is when the evidence is so conclusive as to show that only aggravated robbery could have been committed. Id. Appellants contend that the victim’s testimony that the gun looked falce provided a rational basis for the jury to acquit on the charge of aggravated robbery and convicted on the lesser charge of robbery. We agree.

In Fairchild v. State, 269 Ark. 273, 600 S.W.2d 16 (1980), this court held that the victim’s perception about a weapon was the key in determining whether there was sufficient proof of aggravated robbery. There, the appellant committed a robbery while holding his hand under his shirt in an attempt to convey to the victim that he was armed with a gun. The jury convicted him of aggravated robbery, but this court reduced the conviction to robbery. This court relied on the fact that the victim “did not attach any special significance to this conduct and certainly did not perceive it to be in any way threatening.” Id. at 275, 600 S.W.2d at 17. Accordingly, this court held: “Since the appellant’s subjective intent does not control what is objectively conveyed to another, a hand under a shirt has no meaning in the context of the aggravated robbery statute 'unless the victim at least perceives it to be menacing.” Id. (emphasis added).

In Clemmons v. State, 303 Ark. 354, 796 S.W.2d 583 (1990), this court affirmed the appellant’s aggravated-robbery conviction on the ground that there was no doubt that the appellant had represented, by both words and conduct, that he was armed with a deadly weapon. There, as in Fairchild, the victim did not observe a gun. Rather, she indicated that the robber had what she assumed was his finger inside his pocket. However, unlike Fairchild, Clemmons made a verbal representation that he did have a gun. Specifically, Clemmons told the victim that he had a gun and he would shoot her if she did not give him her purse. This court held that where a defendant verbally represents that he is armed with a deadly weapon, it is sufficient to convict for aggravated robbery, regardless of whether he actually had such a weapon. On the other hand, “[wjhere no verbal representation is made and only conduct is in evidence, the focus is on what the victim perceived concerning a deadly weapon.” Id. at 357, 796 S.W.2d at 585 (emphasis added).

The obvious difference between the facts in this case and those in Fairchild and Clemmons is that the victim here actually saw a weapon in the robber’s hand. We do not believe, however, that this difference renders those holdings inapplicable to the present appeal. The issue is still the same, i.e., whether the victim perceived that the robber possessed a deadly weapon.

Here, unlike the robber in Clemmons, there is no evidence that the robber, Appellant Thornhill, made any verbal representations as to whether the gun was real or fake. Thus, the focus should be on what the victim perceived about the nature of the weapon. The victim testified that she initially thought the robbery was a joke and that the gun looked fake or strange or plastic. Her testimony constitutes at least slight evidence that the jury could have considered in determining whether Appellants were guilty of aggravated robbery or merely robbery. Moreover, the jury could have concluded, based on the fact that only a BB gun was recovered from Appellants’ apartment, that the robbery was not committed by use of a deadly weapon. It is for the jury, not the court, to weigh the evidence and credit that which it believes to be the most cogent. Robinson, 269 Ark. 90, 598 S.W.2d 421. The trial court’s refusal to give the instruction deprived the jury of the opportunity to weigh the evidence. Accordingly, the trial court erred in refusing to give the instruction. We thus reverse and remand for a new trial.

Additionally, in the event the State seeks to present Brown’s confession as evidence in the new trial, we direct the trial court to hold another Denno hearing for the purpose of allowing all material witnesses to testify. The record reflects that Brown’s interview took place at the Washington County Jail and was conducted by Fort Smith Detectives Clay Thomas and Rusty Walker. Although Walker conducted the bulk of the interview, he was not called to testify at the suppression hearing. This was error because it is the State’s burden to present evidence from all material witnesses once the accused asserts that his custodial confession was involuntary.

An accused’s statement made while in custody is presumed involuntary, and the burden is on the State to prove by a preponderance of the evidence that it was given voluntarily and was knowingly and intelligently made. Barcenas v. State, 343 Ark. 181, 33 S.W.3d 136 (2000); Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). “[WJhenever the accused offers testimony that his confession was induced by violence, threats, coercion, or offers of reward then the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence.” Smith v. State, 254 Ark. 538, 542, 494 S.W.2d 489, 491 (1973). See also Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997); Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995); Remeta v. State, 300 Ark. 92, 777 S.W.2d 833 (1989); Williams v. State, 278 Ark. 9, 642 S.W.2d 887 (1982); Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979), cert. denied, 446 U.S. 938 (1980); Gammel v. State, 259 Ark. 96, 531 S.W.2d 474 (1976); Russey v. State, 257 Ark. 570, 519 S.W.2d 751 (1975); Northern v. State, 257 Ark. 549, 518 S.W.2d 482 (1975); Smith v. State, 256 Ark. 67, 505 S.W.2d 504 (1974). The State’s burden to produce all material witnesses exists regardless of whether the defendant specifically raises the issue, in the trial court or on appeal. See Smith, 256 Ark. 67, 505 S.W.2d 504. As this court has explained:

[W]e held in the earlier Smith case that, whenever the accused introduced evidence of coercion, the burden of the state could only be met by calling all material witnesses or giving adequate explanation for the absence of any who did not testify. Nowhere in Smith does it appear that, in making an objection based upon a contention the state has failed to show a statement is involuntary, a defendant must point out, in precise words, that a material witness was not called.

Id. at 70, 505 S.W.2d at 507-08 (emphasis added).

Here, Brown contended that he asked for an attorney during the interview and that his request was not honored. He also contended that the officers threatened him and made false promises of leniency to him. The transcript reflects that when Walker asked Brown to tell him what happened, Brown made the following statement: “I tell you (inaudible) talk to a lawyer (inaudible).” Walker’s response was: “(Inaudible) they going to help (inaudible) what will that help in any way?” After a few more questions were asked, Brown stated: “Wait till I talk to a lawyer man.” Because the State did not present Walker’s testimony at the suppression hearing, Brown’s testimony on this issue stands uncontradicted. Accordingly, should the State desire to use Brown’s confession in the new trial, it must produce Walker at another suppression hearing so that the trial court may consider his testimony to determine whether Brown’s confession was obtained in violation of his right to counsel. Likewise, Walker’s testimony is required on Brown’s claims that the officers made false promises of leniency to him and that they threatened him during the course of the interview while the tape recorder was not running.

Reversed and remanded.

Arnold, C.J., Glaze and Hannah, JJ., concur in part and dissent in part.

T OM GLAZE, Justice,

concurring in part; dissenting in part. I concur in the majority’s decision to reverse for a limited remand for the trial court to conduct another suppression hearing. However, I disagree with the majority’s holding that the trial court erred in refusing to give the lesser-included instruction on robbery. As the majority opinion states, aggravated robbery occurs if the person represents, by word or conduct, that he is armed with a deadly weapon.

Here, appellant Thornhill entered the Fort Smith convenience store demanding that the store clerk give him money. Thornhill wore a ski mask and brandished some type of gun to threaten the clerk into complying with Thornhill’s demand. Obviously, Thorn-hill intended his use of the ski mask and gun to cause the clerk to understand that she should comply or Thornhill would use the weapon. Although she initially thought Thornhill’s weapon looked strange, the victim (clerk) clearly perceived Thornhill’s message that her life was being threatened if she did not hand over money.

In my view of the facts, Thornhill’s conduct and words unequivocally conveyed that he was perpetrating an armed robbery. The majority opinion is wrong to suggest that the jury could reasonably have found no aggravated robbery occurred because the police later found only a BB gun in Thornhill's apartment. Such a suggestion fails to focus on what the victim perceived at the time of the crime. The trial court was clearly correct in concluding from Thornhill’s conduct and words that he was in the store to commit armed or aggravated robbery. Thus, I would affirm the court’s ruling on this point.

Arnold, C.J., and Hannah, J., join this opinion.


author: R AY THORNTON, Justice. TOM GLAZE, Justice, R OBERT L. Brown, Justice.

text:
    Timothy W. KEMP v. STATE of Arkansas
    CR 00-482
    60 S.W.3d 404
    Supreme Court of Arkansas
    Opinion delivered November 29, 2001

      Sam T. Heuer, for appellant.
    Appeal from Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   R AY THORNTON, Justice.

This appeal arises from a trial court’s denial of the Rule 37 petition. Appellant, Timothy Kemp, was arrested and charged with four counts of capital murder. He was convicted and sentenced to death by lethal injection on each count. In Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied 519 U.S. 982 (1996) (“Kemp K), we affirmed the conviction and sentence pertaining to one victim, and affirmed the convictions only as to the remaining three counts. We reversed the death sentences as to the three remaining counts and remanded for resentencing, as there was insufficient evidence to support the trial court’s instruction to the jury with respect to the statutory aggravating circumstance that the murders were committed for the purpose of avoiding arrest, id. Following resentencing, the trial court again imposed the death sentence as to each of the three counts. In Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998), cert. denied 526 U.S. 1073 (1999) (“Kemp IF), we affirmed these convictions. Appellant filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging that his counsel, Jeff Rosenzweig, had provided ineffective assistance of counsel. After a hearing on the matter, the trial court denied appellant’s Rule 37 petition in its entirety.

From that order, appellant brings his appeal and raises four allegations of error. On appeal, appellant asserts that Mr. Rosenzweig was ineffective for four reasons: (1) failing to investigate the ownership of a gun found at the crime scene; (2) failing to correctly cite a statute when proffering an instruction to the trial court; (3) failing to seek a severance of offenses, and (4) various other grounds. We reverse and remand to the trial court for an entry of a written order in compliance with Rule 37.5(i) and our case law.

I. Standard of review

On appeal from a trial court’s ruling on Rule 37 relief, we will not reverse the trial court’s decision granting or denying post-conviction relief unless it is clearly erroneous. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.

The criteria for assessing the effectiveness of counsel were enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), which provides that when a convicted defendant complains of ineffective assistance of counsel he must show that counsel’s representation fell below an objective standard of reasonableness and that but for counsel’s errors the result of the trial would have been different. Id. We have adopted the rationale of Strickland and held that:

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial.

Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). With this standard of review in mind, we review the issues of ineffectiveness raised by appellant.

II. Ineffective-assistance claims

For his first allegation of error, appellant argues that Mr. Rosenzweig was ineffective for failing to investigate the ownership of a weapon found at the crime scene. Specifically, he argues that a further investigation into this matter would have had bearing on his “imperfect self-defense” claim.

This point is not raised in appellant’s Rule 37 petition, but the petition was orally amended at the Rule 37 hearing, where the following colloquy occurred:

Mr. HEUER: I have a motion to add an additional [issue]. After consultation with my client, he wishes for me to pursue an ineffective assistance claim for failure to investigate and pursue leads. I’ve advised the prosecutor of it. I don’t know where it’s going. But I could make the motion at the conclusion and ask that the pleadings conform to the proof or I could orally amend at this point.
The COURT: Are you prepared to argue that today?
Mr. Heuer: Yes.

At the hearing, Mr. Rosenzweig testified that the “imperfect self-defense” was the heart of appellant’s defense in the mitigation phase of the trial. After hearing the testimony and arguments by counsel, the trial court orally ordered:

I do not find that the representation by Mr. Rosenzweig was ineffective. ... I also believe that the failure to investigate as to who specifically owned the weapon, the thirty-two, was not evidence of ineffective assistance of the counsel that would meet the definition of that pursuant to Strickland versus Washington since that issue of that weapon was in fact raised at trial and the jury had the opportunity to consider that as part of a self-defense defense.

However, in the trial court’s written order, under the “Findings of Fact” section, the trial court merely states:

8. (A) That trial counsel for defendant was not ineffective as defined by Strickland v. Washington, 466 U.S. 668 (1984), in any aspect of the trial in this matter, including . . . the investigation of the additional gun found at the crime scene ...[.]

Rule 37.5(i) provides in part that when a hearing is held on the petition, “the circuit court shall, within sixty (60) days of the conclusion of the hearing, make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition.” Id. (emphasis added). This provision was adopted from the “Arkansas Effective Death Penalty Act of 1997.” See Ark. Code Ann. § 16-91-202(h)(1) (Supp. 1999) (requiring that “the judge shall make specific written findings of fact and shall expressly state the judge’s conclusions of law relating to each issue raised in the petition for post-conviction relief’).

In Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001), we rejected the State’s argument, based upon Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000) and Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998) (per curiam), that where the trial court makes specific written findings on some, but not all, of the issues raised in the petition, it is up to the defendant to obtain rulings on any omitted issues. We concluded that those cases were distinguishable because appellants had not been sentenced to death. Id.

In Echols, we remanded the case to the trial court for entry of a written order in compliance with Rule 37.5 (i) and our holding in Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999) (holding that the trial court’s order was insufficient under Rule 37.3(a)). Echols, supra. Rule 37.5 reinforces the responsibility of the trial court to make specific written findings of fact and conclusions of law on each issue raised in the petition. McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001).

Here, we note that the trial court allowed appellant to orally amend his Rule 37 petition to include the issue of the ownership of the gun, and ruled on the issue from the bench. In its written order, the trial court made a general finding of fact, but did not make a “specific finding of fact with respect to [the] factual issuef,]” nor did it make any “specific written conclusion!] of law” with respect to the legal issue. Ark. R. Crim. P. 37.5(i). This deficiency requires that we remand for the trial court to address this point as required by our rule.

For his second allegation of error, appellant argues that Mr. Rosenzweig was ineffective for failing to correctly cite Ark. Code Ann. § 5-2-614 (Repl. 1997), the statute regarding the “imperfect self-defense,” in the proffered jury instruction. SpecificaHy, he argues that omitting the phrase, “is necessary for any of the purposes justifying that the use of force under this subchapter,” from the statute is grounds for an ineffective assistance of counsel claim.

At the conclusion of the guilt phase at trial, Mr. Rosenzweig offered two jury instructions based upon Ark. Code Ann. § 5-2-614, which established appellant’s defense of “imperfect self-defense.” The first instruction, set forth in his Rule 37 petition and now on appeal, reads as follows:

When a person believes that the use of force is necessary in defense of himself but that person is reckless or negligent either in forming that belief or in employing an excessive degree of physical force, the defense of justification —■ use of deadly physical force in self-defense —■ is unavailable as a defense to any offense for which recklessness or negligence suffices to establish culpability.

Source: Ark. Code Ann. § 5-2-614.

While citing the statute in this proffered instruction, Mr. Rosenzweig omitted the aforementioned phrase from the statutory language, and the trial court refused both proffered jury instructions. On direct appeal in Kemp I, supra, we held that the trial court did not err in refusing to allow the proffered jury instructions Id. We noted that neither proffered jury instruction was an AMCI instruction, and because appellant’s proffered instruction did not correctly state the law, the trial court did not err in refusing to give it. Id. (citing Pickett v. State, 321 Ark. 224, 902 S.W.2d 208 (1995)).

In the trial court’s order under review in this proceeding, the trial court states in paragraph 8(b) of the “Findings of Fact” section that “there was not a rational basis for the giving of the two jury instructions as set forth above, which were proffered by trial counsel on behalf of the defendant[.]” However, there are no specific conclusions of law presented on this point, other than paragraph 9, which states, “[t]hat the constitutional rights of the defendant were not violated through the course of the trials of this matter[.]” It appears that this point was addressed in the trial court’s fact section, but the order contains no specific conclusions of law. This deficiency requires that we reverse and remand to the trial court for compliance with Rule 37.5(i).

For his third allegation of error, appellant argues that Mr. Rosenzweig was ineffective for failing to request a severance. Specifically, he argues that a failure in severing the trial prevented the jury from considering each sentence separately to insure that there was no spilling-over from the victim-impact testimony.

Appellant alleges in his Rule 37 petition that “trial counsel was ineffective by fading to request the separate counts of capital murder to be severed.” In its order, the trial court made the following ruling:

8. (A) That trial counsel for the defendant was not ineffective as defined by Strickland v. Washington, 466 U.S. 668 (1984), in any aspect of the trial in this matter . . . for failing to move for a severance of the counts, or any other matters that were raised by the defendant in this petition[.]

Here, the trial court made a general finding of fact with no explanation, but did not include a separate, specific, written conclusion of law on the issue. To address this deficiency, we reverse and remand to the trial court for entry of a written order in compliance with Rule 37.5(i).

For his fourth allegation of error, appellant reargues four points that were raised in Kemp I, supra, and Kemp II, supra. These points include (1) whether the victim-impact statute is constitutional; (2) whether the cumulative effective of victim-impact testimony violated appellant’s due process rights; (3) whether appellant’s due process rights were violated when we affirmed the trial court’s refusal to submit two proffered jury instructions in Kemp I, supra; and (4) whether appellant’s constitutional rights were violated when we affirmed in Kemp I, supra, that venue in Pulaski County Circuit Court was proper.

In its order, the trial court states:

8. (D) That the issues pertaining to the jurisdiction of the court, the victim-impact evidence, and the refusal of this Court to give the instructions requested by defendant have been determined by the Arkansas Supreme Court in their reviews of the convictions in these cases, which have all been affirmed by the Arkansas Supreme Court[.]

However, there are no conclusions of law pertaining to these issues, other than paragraph 9, which states, “[T]he constitutional rights of the defendant were not violated . . . [,]” and paragraph 10, which states, “[T]his Court did not lack jurisdiction, and in fact was a court of proper jurisdiction over the person of the defendant and the subject matter presented[.] ” The trial court did not make a specific written conclusion of law that these issues are not cognizable under Rule 37. We hold that the conclusions of law as written are not specific enough as required by our rule.

We hold that the trial court’s order does not comply with our Rule 37.5(i) because the trial court failed to make specific written findings of fact and conclusions of law. In his order before us, the trial court’s findings of fact are quite general, and the two conclusions of law are not sufficient under our rule. We reverse and remand to the trial court for a written order on all points in compliance with Rule 37.5(i) and our case law, including McGehee, supra, and Echols, supra.

Under the precedent established in Echols, supra, we limit the trial court’s duties on remand to making factual findings and legal conclusions only as to the issues raised by appellant on appeal, as all other claims raised below but not argued are considered abandoned. Id. We should also note that no new issues may be raised by appellant. To avoid lengthy delay, the order is to be completed and the record is to be filed with this court within sixty days of the date that the mandate in this proceeding is issued.

Reversed and remanded.

BROWN and Imber, JJ., concur in part; dissent in part.

TOM GLAZE, Justice,

dissenting. I dissent for the reasons set out in the dissenting opinion in Echols v. State, 344 Ark. 513, 520-523, 42 S.W.3d 467, 471-473 (2001). See also McGehee v. State, 344 Ark. 602, 606, 43 S.W.3d 125, 128 (2001) (Glaze, J., dissenting).

R OBERT L. Brown, Justice.

I concur with the majority opinion in every respect save one. The appellant raised four issues in his Rule 37.5 petition: (1) the victim-impact statute is unconstitutional; (2) the cumulative, effect of the victim-impact statements violated the appellant’s due process rights; (3) the appellant’s due process rights were violated when the trial court refused two proffered instructions; and (4) appellant’s constitutional rights were violated by our affirmance of his death sentence.

All of these issues were resolved by this court in the direct appeal of the appellant’s judgment of conviction. The trial court said as much in its order:

8. (D) That the issues pertaining to the jurisdiction of the court, the victim-impact evidence, and the refusal of this Court to give the instructions requested by defendant have been determined by the Arkansas Supreme Court in their reviews of the convictions in these cases, which have all been affirmed by the Arkansas Supreme Court[.]

I disagree with the majority’s holding that the trial court’s conclusion on this point was not sufficiently specific. The trial court said in effect that these issues are not cognizable in a Rule 37 proceeding because they were decided on direct appeal. Accordingly, I would not remand these issues for additional conclusions.

Imber, J„ joins.

       In its brief, the State argues that appellant’s claims pertaining to the death sentence for one victim, Richard Falls, should be procedurally barred because the Rule 37 petition was untimely. However, the State overlooks our decision of Kemp v. State, 326 Ark. 910, 934 S.W.2d 526 (1996) (per curiam) (“Kemp III’), where we concluded:
      We recall the portion of the mandate affirming the conviction and death sentence and stay it until such time as a final disposition of the remaining counts is complete. As such, any petition under Ark. R. Crim. P 37.2(c) must be filed within sixty days of a mandate following an appeal taken after re-sentencing on the remaining counts. If no appeal is taken after re-sentencing on these counts, the petition must be filed with the appropriate circuit court within ninety days of the entry of judgment.

        Id.

      Here, appellant timely filed his Rule 37 petition. The mandate of our court was returned to the trial court on April 29, 1999, and on May 18, 1999, appellant appeared before the trial court, at which time the trial court appointed Mr. Heuer, counsel for appellant, who met the qualifications set forth in Rule 37.5(b)(2). On August 11, 1999, appellant filed his Rule 37 petition. Therefore, appellant’s Rule 37 petition was not untimely with regard to the Falls’s sentence.