author: T OM Glaze, Justice.

text:
    Christy Evans BANKS v. Jim EVANS
    01-464
    64 S.W.3d 746
    Supreme Court of Arkansas
    Opinion delivered January 17, 2002

      Scott Manatt, for appellant.

      Henry, Halsey & Thyer, PLC, for appellee.
   T OM Glaze, Justice.

This appeal presents us with questions of first impression regarding the interpretation and application of Ark. Code Ann. §§ 9-11-401 to -413, the Arkansas Premarital Agreement Act. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1) and (4).

On March 12 and 13, 1996, appellant Christy Evans Banks and appellee Jim Evans signed a premarital agreement in contemplation of marriage. The couple married on March 16, 1996, but separated in January of 1997. Jim filed for divorce on March 4, 1997. The couple attempted a reconciliation in November of 1997, but the attempt failed and the parties separated for good on April 6, 1998. Jim then filed an amended complaint for divorce, asserting that the property rights to be adjudicated were governed by the premarital agreement. Christy filed a counterclaim for divorce, and she also filed a request for production of documents, including numerous financial records. Jim objected to the request and filed a motion for protective order, asserting that the court should not permit discovery to proceed until the validity of the premarital agreement was determined. At the same time, Jim also filed a petition to determine the enforceability of the agreement. In an order entered December 8, 1998, the chancellor held that the premarital agreement was valid and enforceable; the court also ruled that the agreement was not unconscionable and that Jim and Christy’s reconciliation did not abrogate the contract.

On October 6, 1999, Jim filed a second amended complaint for divorce, this time asserting eighteen months’ separation as grounds. Following a hearing on October 19, 1999, the chancellor entered a divorce decree, specifically reserving the issue of the distribution of property until a later date. On December 28, 2000, after a hearing on the reserved property issues, the chancellor entered a supplemental decree of divorce, ordering that the marital residence be sold and the proceeds distributed after the sale. The court rejected Christy’s claim that she had an interest in certain other property, including a Tahoe vehicle, a pontoon boat, and a country club membership.

From the supplemental decree of divorce, Christy brings the present appeal. She argues that the trial court erred in denying her request for discovery, in finding the premarital agreement to be valid, and in fading to distribute the marital property as set forth in Ark. Code Ann. § 9-12-315.

Chancery cases are tried de novo on appeal, and the appellate court does not reverse the chancellor’s findings unless they are clearly erroneous. See Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000). Further, in reviewing a chancery court’s findings, we give due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Davis v. Child Support Enfcm’t, 341 Ark. 349, 20 S.W.3d 273 (2000).

Although Christy’s initial point on appeal is the chancellor’s ruling regarding discovery, we address the validity of the premarital agreement first. Arkansas law has long recognized the validity of such agreements. See, e.g., Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783 (1928). In Arkansas, a premarital agreement is valid if it was freely entered into, and is free from fraud and not inequitable. Arnold v. Arnold, 261 Ark. 734, 553 S.W.2d 251 (1977); Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984). Parties contemplating marriage may, by agreement, fix the rights of each in the property of the other differently than established by law. Such agreements must be made in contemplation of the marriage lasting until death, rather than in contemplation of divorce. Hughes v. Hughes, 251 Ark. 63, 471 S.W.2d 355 (1971). However, the mere fact that a prenuptial agreement becomes operative upon divorce — so long as that is not its only purpose — does not render it invalid. Dingledine v. Dingledine, 258 Ark. 204, 523 S.W.2d 189 (1975). In determining the fairness or equity of the agreement, the court may consider the parties’ respective stations in life, their experiences, their education, and their knowledge of financial and legal matters. Gooch, supra.

In 1987, the General Assembly passed Act 715, the Arkansas Premarital Agreement Act, codified at Ark. Code Ann. §§ 9-11-401 to -413 (Repl. 1998). Under the Act, a premarital agreement is defined as a written agreement between prospective spouses made in contemplation of marriage. § 9-11-401(1). The agreement becomes effective upon marriage, § 9-11-404, and after marriage, it may be amended or revoked only by a written agreement signed by the parties. § 9-11-405. With regard to the enforceability of such agreements, § 9-11-406 provides, in part, as follows:

(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(1) The party did not execute the agreement voluntarily; or
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) Did not voluntarily and expressly waive after consulting with legal counsel, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

(Emphasis added.)

Christy argues that the agreement was unconscionable and unenforceable for several reasons. First, she argues that the contract was invalid because she did not know Jim’s net worth prior to signing the contract, and that Jim failed to rebut the presumption of “designed concealment,” a presumption which arises when the provisions made for the wife are disproportionate to the means of the husband. See Faver v. Faver, 266 Ark. 262, 583 S.W.2d 44 (1979). In addition, she claims the agreement was abrogated when she and Jim reconciled in 1997. Finally, Christy contends that the agreement was unconstitutional, gender-biased, and discriminatory.

We reject Christy’s assertion that the premarital agreement was invalid because she was unaware of Jim’s financial position. Article I of the agreement recited that “each Party is acquainted with the property of the other due to their friendship over a period of time and each has freely disclosed to the best of their knowledge and ability, to the other the nature, extent, and value of said property[.]” Further, both Christy and Jim expressly waived their rights to a detailed disclosure of the other’s financial obligations. The waiver Christy signed read in part as follows:

I, Christy Miller, a party to the premarital agreement to which this waiver is attached, do hereby acknowledge that I have an adequate knowledge of the property, value of the property, and financial obligations of Jim Evans by virtue of our friendship over a period of time.
I, Christy Miller, do hereby acknowledge that I have the right to have caused to be prepared a general list of the properties and value of such properties or interests owned by Jim Evans and to have said general list of properties prepared by him to be attached to the premarital agreement and made a part thereof.
I, Christy Miller, do hereby waive the requirement that both parties to the agreement provide to the other and be provided by the other a fair and reasonable disclosure of the property, value of the property, and financial obligations of the other party beyond any disclosure already provided.
I, Christy Miller, do hereby agree that this waiver and the similar waiver of Jim Evans shall be attached to the premarital agreement and made a part thereof in lieu of any general list of properties prepared by us.

Furthermore, at the court’s hearing on the validity of the premarital agreement, Jim testified that Christy had worked in sales for his company, NEA Optical, and was generally aware of how well the business was doing, because she sat in on confidential business meetings between Jim and his accountant, Danette Stewart. Additionally, Jim testified that Christy knew the kind of lifestyle he led, having gone on several trips with him and his daughters from a previous marriage. Jim’s accountant, Danette Stewart, also testified that Christy had been present during business meetings, and that Jim never showed any reluctance in discussing financial information in front of Christy. Christy, on the other hand, testified that she did not understand the agreement when she signed it, and that Jim had never furnished her with any kind of financial disclosure prior to her signing the agreement.

This conflicting testimony was for the chancellor to resolve, and we give due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be given their testimony. See, e.g., Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). Clearly, the chancellor did not believe Christy’s testimony that she did not understand the agreement. It is a rule of general application that one is bound to know the content of a document one signs, and if the signer has had the opportunity to read it before she signs it, she cannot escape the obligations imposed by the documents by merely stating that it was signed without reading it. See Carmichael v. Nationwide Life Ins. Co., 305 Ark. 549, 810 S.W.2d 39 (1991). Here, the agreement was accompanied by a notarized statement that Christy stated that she “had read the foregoing instrument and fully understood the same,” as well as a notarized statement by her attorney, H.T. Moore, that he had explained the contract to her and advised her of her legal rights and the legal effect of the agreement and the waiver of right to financial disclosure. In light of the testimony at the hearing, as well as her signature on the document, Christy’s mere protest on appeal that she did not know Jim’s net worth is unavailing.

Similarly unavailing is Christy’s argument that Jim failed to overcome the presumption of designed concealment. This presumption, arising in cases where the wife’s provision is disproportionate to the husband’s means, “throws the burden upon [the party seeking to uphold the agreement] to prove that there was full knowledge on the part of the intended wife of all that materially affected the contract.” Faver v. Faver, 266 Ark. 262, 583 S.W.2d 44 (1979). Christy asserts that because she never received any financial information from Jim, he failed to rebut the presumption. However, this argument ignores the fact that Christy signed an express waiver of her right to receive a financial disclosure from Jim. Having voluntarily agreed to the terms of the waiver, she cannot now be heard to complain about its terms.

Christy raises two other arguments in support of her contention that the premarital agreement was invalid, but we do not need to spend much time discussing them. First, she claims that the reconciliation she and Jim attempted in the fall of 1997 abrogated the agreement; however, Ark. Code Ann. § 9-11-405 provides that a premarital agreement can only be amended or revoked by written agreement signed by both parties. No such written agreement exists here. Second, she contends that the agreement is gender-biased and discriminatory. This argument, however, is wholly without merit, as the terms of the agreement apply equally to both husband and wife. Christy fails to support her claim with any convincing authority, and we therefore do not consider it. See Public Defender Comm. v. Greene County, 343 Ark. 49, 32 S.W.3d 470 (2000).

Christy’s next point on appeal is that the chancellor erred in denying her motion for discovery. She asserts that she was entitled to discovery pursuant to Ark. R. Civ. P. 26, and that discovery was necessary to address the antenuptial agreement, the disparate and unequal positions of the parties, and Jim’s failure to disclose any financial statements, balance sheets, or financial data.

Arkansas Rule of Civil Procedure 26(b)(1) provides that parties may obtain discovery “regarding any matter, not privileged, which is relevant to the issues in the pending actions[.]” However, Rule 26(c) states that, “[u]pon motion by a party or by the person from whom discovery is sought, . . . and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense [.]” A trial court’s decision on discovery issues will not be reversed absent an abuse of discretion. City of Dover v. City of Russellville, 346 Ark. 279, 57 S.W.3d 171 (2001).

In the present case, the decision to postpone discovery until after the court could determine the validity of the prenuptial agreement was clearly intended to save the time and expense of preparing answers to interrogatories and responses to requests for production of documents. If the agreement was found valid, then its terms would control and there would be no need to discover the kind of financial information Christy sought from Jim, because she would not be entitled to any of his assets under the terms of the agreement. Further, the discovery sought was irrelevant to a determination of whether or not the agreement was valid, because Christy signed a waiver of disclosure of financial information, whereby she agreed that she knew the value of his property and that she waived her right to any further disclosure. Therefore, the trial court did not abuse its discretion in declining to permit the discovery Christy requested.

For her final point on appeal, Christy raises several arguments regarding the trial court’s division of the couple’s property. First, she argues that the trial court erred in fading to divide all of the couple’s property when it entered the initial divorce decree in October of 1999; as noted above, the court specifically reserved the issue of property division when it first granted the divorce, and conducted a second hearing on the property questions in December of 2000. At that time, the court entered a supplemental decree under which the couple’s Jonesboro home, which they owned as tenants by the entirety, was to be sold and the proceeds distributed in accordance with the decree. Christy contends that this violated Ark. Code Ann. § 9-12-315, which provides in pertinent part as follows:

(a) At the time a divorce decree is entered:
(1)(A) All marital property shall be distributed one-half (V2) to each party unless the court finds such a division to be inequitable.

(Emphasis added.)

However, this court has held that § 9-12-315 does not apply to property held as tenants by the entirety. Hale v. Hale, 307 Ark. 546, 822 S.W.2d 836 (1992); Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981). Thus, the trial court did not err when it declined to distribute that property at the time the initial decree was entered in October of 1999.

Next, Christy argues that she should have been entitled to rent on the Jonesboro home during the period of time prior to the divorce, when Jim lived in the house but she did not. The chancellor rejected this argument, finding that Christy and Jim owned the property as a tenancy by the entirety and had an equal right of ownership and possession. In Clifton v. Clifton, 34 Ark. App. 280, 810 S.W.2d 51 (1991), the court of appeals cited Cooper v. Cooper, 251 Ark. 1007, 476 S.W.2d 223 (1982), for the proposition that the occupation of one tenant is deemed possession by all cotenants, and thus rejected a similar claim that an ex-spouse who no longer resided in the marital home was entitled to rent during the time he was not living there. The Clifton ruling was a correct one, and it is applicable to the facts here. Thus, we likewise conclude that the chancellor did not err in ruling that Christy was not entitled to rent on the residence.

Christy also argues that she should have been entided to one-half of the couple’s income-tax savings resulting from their joint filing; however, she cites no authority demonstrating that she was entitled to these amounts. Further, she contends that she should have received one-half the value of a Tahoe vehicle, a pontoon boat, a lot at Ridge Point, and a membership in the Ridge Point Country Club. Flowever, the trial court found that the property was owned by a third-party corporation, and as such, was not marital property. This ruling is correct. Jim testified that his company purchased the vehicle, the boat, the lot, and the membership, and Christy conceded that her name was never on the title to any of these items. Therefore, the chancellor’s ruling is not clearly against the preponderance of the evidence.

For the foregoing reasons, we affirm the trial court’s rulings and decision.

IMBER, J., not participating.

       Christy appealed that ruling, but the court of appeals dismissed the appeal for lack of a final order.

       Jim signed an identical waiver, differing only in the names of the parties.

       Christy also briefly asserts that Jim does not come to the court with clean hands, and she alleges that he battered and slandered her. However, while Christy initially raised these tort claims against Jim in her counterclaim for divorce, she voluntarily nonsuited these claims prior to the trial court’s original decree of divorce, and we need not discuss them further.

       Jim had purchased the house in the name of the “James Evans Living Trust” during the time when he and Christy were separated, but when they reconciled, he refinanced the house in order to put both of their names on the title; the deed then reflected that the couple owned the home as a tenancy by the entirety.


source: Caselaw Access Project

author: R OBERT L. BROWN, Justice.

license: Public Domain

text:
    Franklin David CHAMBERS, M.D. v. Harold Patrick STERN, M.D.; George Hamilton, M.D.; and University of Arkansas Board of Trustees
    01-568
    64 S.W.3d 737
    Supreme Court of Arkansas
    Opinion delivered January 17, 2002
    [Petition for rehearing denied February 14, 2002.]

      David M. Hargis and Douglas W. Bonner, Jr., for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard, by: Stuart P. Miller; and Barrett & Deacon, P.A., by: D.P. Marshall Jr. and Leigh M. Chiles, for appellee Harold Patrick Stern, M.D.

      Anderson, Murphy & Hopkins, L.L.P, by: Michael P Vanderford, for appellee George Hamilton, M.D.

      Rhonda M. Thornton, Associate General Counsel, for appellee University of Arkansas.

       IMBER, J., not participating.

   R OBERT L. BROWN, Justice.

The appellant, Franklin David .Chambers, M.D., appeals from an order of dismissal in favor of the appellee University of Arkansas Board of Trustees; an order granting summary judgment in favor of appellee George Hamilton, M.D.; and an order granting summary judgment in favor of appellee Harold Patrick Stern, M.D. We find no error in the circuit judge’s various orders, and we affirm the dismissal and summary judgments.

The underlying facts in this case concern a divorce action between Chambers and his wife, Debra. The couple had five children: Sylvia, Keith, Jenny, Brandi, and Alexee, and custody and visitation issues regarding the children were hotly contested. As part of the divorce action, Dr. Stern had been appointed to assist the chancery court in evaluating custody and visitation matters.

On June 30, 1997, Chambers sued the University of Arkansas Board of Trustees for medical malpractice for employing Stern, who, Chambers contended, misrepresented his credentials and used an experimental patient model in treating the Chambers family. According to Chambers, he was entitled to a direct action lawsuit against the liability carrier for the University Board of Trustees, St. Paul Fire & Marine Insurance Co., pursuant to Ark. Code' Ann. § 23-79-210 (Repl. 1999).

In that same complaint, Chambers also sued Hamilton (1) for engaging in a civil conspiracy with Stern which resulted in Chambers’s estrangement from his children, and (2) for medical malpractice in breaching the applicable standard of care by diagnosing Chambers with a narcissistic personality disorder after one forty-five minute session. The complaint added a cause of action against Stern for (1) defrauding Chambers by misrepresenting his credentials and engaging in an experimental therapeutic model, and (2) medical malpractice by violating the applicable standard of care and turning Chambers’s children against him.

On July 18, 1997, the University Board of Trustees moved to dismiss the complaint against it on grounds that it was an instrumentality of the State and not subject to suit under the doctrine of sovereign immunity. In addition, the Board maintained that it had no liability coverage for the acts alleged in Chambers’s complaint. On December 18, 1997, the trial court dismissed the complaint against the Board with prejudice.

On July 23, 1998, Hamilton moved for summary judgment on the basis that there was no evidence to establish a civil conspiracy between Stern and him and no evidence that he deviated from the applicable standard of care. On January 11, 2000, the trial court agreed with Hamilton and granted his motion.

On May 26, 1998, Stern moved for dismissal of the complaint against him or, in the alternative, summary judgment on grounds that he was immune from suit due to the judicial appointment and because there was no doctor-patient relationship between Chambers and him. On June 4, 1998, the trial court agreed that Stern was immune and granted Stern’s motion to dismiss. Later, on October 8, 1998, the trial court amended its order to a grant of summary judgment and included a Rule 54(b) certification for immediate appeal. It is this order that was first appealed to this court by Chambers. We reversed and remanded the case for the trial court to determine whether Stern was acting within the scope of the chancery court’s order when treating the Chambers family so as to afford him the protection of judicial immunity. See Chambers v. Stern, 338 Ark. 332, 994 S.W.2d 463 (1999) (Stern I).

On remand, the trial court again granted Stern summary judgment on October 23, 2000. The court found that during the first •relevant time period, June 23, 1993 — April 18, 1994, Chambers had failed to assert facts that demonstrated Stern exceeded the scope of the chancery court’s order. The court further found that Chambers could not “overcome Stern’s immunity by asserting that he was not a good therapist, or that he should have been a better therapist.” Finally, the court found that there was no showing that Dr. Stern was not functioning as a therapist within his court-appointed capacity during that time period.

As to the second relevant time period, April 18, 1994 —• the later of the last therapy session by any family member with Dr. Stern or Dr. Stern’s final communication with the chancery court, the court ruled that:

Dr. Stern’s involvement with Sylvia [sic], Alexee and Brandi related to his role as a court-appointed therapist dealing with the post-divorce issues of visitation, including but not limited to the issues of the parents’ subsequent companions and remarriage. Any therapy performed by Dr. Stern appears to be inextricably linked to the chancery court’s mandate. Thus, Dr. Stern’s actions were within the scope of the April 18, 1994, divorce decree and are entitled to judicial immunity.

I. Board of Trustees

Chambers first argues that pursuant to Ark. Code Ann. § 23-79-210 (Kepi. 1999), he should be able to pursue a direct action against any liability insurer of UAMS and its Board of Trustees. He asserts that even though Stem and Hamilton admit that they are personally insured by a specific insurer (St. Paul), the Board has denied that it has any liability coverage covering it for the acts and this is not correct. Chambers further claims in his only citation to authority that pursuant to the doctrine of stare decisis, the trial court’s ruling should be reversed because of this court’s decision in Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996).

The Board responds that it had no liability coverage and that only the University’s faculty, physicians, surgeons, students and the like are insured under the St. Paul policy. The Board points to the affidavit of Lynda Fossing, an account underwriter for St. Paid Medical Services which states that only individuals are included on the lists under the Coverage Summary of the policy, and not UAMS or any organization. The Board further claims that Chambers has not offered any evidence to the contrary.

We first consider our standard of review. The trial court, in granting the Board’s motion to dismiss, noted its reliance on several items, including supporting affidavits and exhibits. Although this court generally reviews a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff, where the court has acknowledged consideration of matters outside the parties’ pleadings, including exhibits, depositions, and affidavits, the court will treat the trial court’s order as one granting summary judgment. See Ark. R. Civ. P. 56(c); Stern I, supra; Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998).

This court uses the following standards for its review of orders of summary judgment:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.
Renfro v. Adkins, 323 Ark. 288, 295, 914 S.W.2d 306, 309-10 (1996) (internal citations omitted); Cash v. Lim, 322 Ark. 359, 360-62, 908 S.W.2d 655, 656-57 (1995); Oglesby v. Baptist Medical Sys., 319 Ark. 280, 284, 891 S.W.2d 48, 50 (1995). Once a moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must demonstrate a genuine issue of material fact by meeting proof with proof. Rerfro v. Adkins, supra.

Crockett v. Essex, 341 Ark. 558, 563, 19 S.W.3d 585, 588-89 (2000) (quoting Milam v. Bank of Cabot, 327 Ark. 256, 261-62, 937 S.W.2d 201, 653, 656 (1997).

Chambers does little more in his argument than cite this court to the Direct Action statute, § 23-79-210, and Rogers v. Tudor Ins. Co., supra. We agree with Chambers that § 23-79-210 provides for direct actions against insurers to the extent of the insurance coverage carried on the organization or its employees. The initial factor, however, is whether there is coverage for the affected organization. Here, the Board maintains that neither it nor the University was covered by the St. Paul policy, and it presented the policy as well as the affidavit of Lynda Fossing, the account underwriter for St. Paul, as proof of its position. Chambers countered with no proof of his own. This failure of proof is fatal to Chambers’s argument. The trial court correctly determined that the Board is protected against being made a party in state court under the doctrine of sovereign immunity. See Ark. Const, art. 5, § 20.

Despite this absence of proof, Chambers claims that the case of Rogers v. Tudor Ins. Co., supra, stands for the proposition that because University physicians are Covered by the St. Paul policy, this means that the University and its Board are also covered. We disagree. In Rogers, contrary to the present case, the board of trustees and the officers of the non-profit corporation were insured, and we held that those circumstances equated to coverage of the non-profit corporation itself. In the case before us, neither the Board nor the University’s officers are covered — only its faculty and employees. These facts are a far cry from what was presented to us under the Rogers facts.

We affirm the trial court’s order under this first point.

II. Dr. Hamilton

For his next point, Chambers urges that the following facts were proved and that they raise material issues that could only be resolved by a jury:

• that Hamilton was aware of Stern’s Therapeutic Model and his uses thereof;
• that Hamilton “acknowledged multiple opportunities to have reviewed the Stern Therapeutic Model in prior years, admitting that ‘Dr. Stern has referred several patients to me over the years [;]’ ”
• that Hamilton admitted to discussing Chambers’s circumstances with Stern prior to his diagnosis of Chambers, as documented by his notes, “Dr. Stern seems to be actfing] entirely [for] the benefit of the children[;]”
• that Stern had prior knowledge that Chambers would see Hamilton on July 21, 1994;
• that Dr. Warren Seiler’s affidavit demonstrates the wrong done by Hamilton and the deviation from the applicable standards of care;
• that Seiler stated in his affidavit that “Dr. Stern secured a misdiagnosis in order to further complete the destruction of David Chambers’ relationships with his childrenf;]”
• that Dr. Chester Jenkins stated in his affidavit that his evaluation of Chambers revealed no evidence of narcissistic personality disorder and that there were no findings of Hamilton which would support such a diagnosis or diagnostic impression;
• that in Dr. Carlene Lyle’s deposition, she stated that Hamilton’s diagnosis of Chambers based upon one interview was “precipitous;”
• that in a subsequent affidavit, Dr. Lyle stated that she knew that Hamilton was familiar with the Stern Therapeutic Model prior to Chambers’s visit with Hamilton;
• that Dr. David Hall stated that “[a] reasonable psychiatrist would anticipate that the use of a diagnosis of narcissistic personality disorder would have a significant impact on the course of ongoing therapy[;]”
• that Stern used Hamilton’s diagnosis to force “no contact” by Chambers with his children;
• that Hamilton worked together with Stern and Chambers’s wife’s attorney to secure an alternate therapist that would not be intimidated by Chambers; and
• that the Stern Therapeutic Model, known by Hamilton to be used, was truly bizarre and proximately caused the injuries claimed.

Chambers further argues that Hamilton’s motion for summary judgment was supported by self-serving affidavits from Hamilton and Stern, both of whom were interested parties, and that summary judgment was inappropriate.

Hamilton’s response is that no evidence of a conspiracy between Stern and him has been presented; nor is there any evidence that he committed any unlawful or deceitful act. Hamilton points to the fact that Chambers has conceded that he had no evidence or factual basis for his allegations of conspiracy. Additionally, Hamilton argues that there is no evidence that he was aware of the therapeutic model and protocol used by Stern in his treatment of the Chambers family, and that even if there were such evidence, this would still fall short of proving a conspiracy between Stern and him to harm Chambers. As to the affidavit of Dr. Seiler, Hamilton emphasizes that Seiler has no personal knowledge of a conspiracy; he had no personal involvement in the underlying divorce or treatment of the family or Chambers; and that all of his conclusions are based on the faulty premise that Hamilton made a final diagnosis of the appellant. Moreover, Hamilton contends that he did not, as a matter of law, cause the injuries alleged by Chambers in that there is no evidence that he deviated from the applicable standard of care or that Chambers’s alleged injuries were caused by any acts or omissions of Hamilton.

Chambers replies that he has documented the conspiracy and concludes that “[t]he evidence is available to show that the unorthodox, and catastrophic, practices followed by . . . Stern were generally known to those practicing in the field of psychiatry in central Arkansas, were known specifically by . . . Hamilton [and that m]uch damage was done, and the evidence of that is also available.”

This court has recently set forth the elements of civil conspiracy:

[I]n order to prove a civil conspiracy, [one] must show a combination of two or more persons to accomplish a purpose that is unlawful or oppressive or to accomplish some purpose, not in itself unlawful, oppressive or immoral, by unlawful, oppressive or immoral means, to the injury of another. Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969). Such a conspiracy is not actionable in and of itself, but recovery may be had for damages caused by acts committed pursuant to the conspiracy. Id. Civil conspiracy is an intentional tort requiring a specific intent to accomplish the contemplated wrong. 16 Am. Jur. 2d Conspiracy § 51 (1998).

Dodson v. Allstate Ins. Co., 345 Ark. 430, 445, 47 S.W.3d 866, 876 (2001). We have further said:

A conspiracy may be shown by direct evidence of an actual agreement or understanding between conspirators, but it may also be shown by circumstantial evidence. Chapline v. State, 77 Ark. 444, 95 S.W 477. It also may be inferred from actions of alleged conspirators, if it be shown that they pursued the same unlawful object, each doing a part, so that their acts, although apparently independent, are in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment. Wilson v. Davis, 138 Ark. 111, 211 S.W. 152; Stewart v. Hedrick, 205 Ark. 1063, 172 S.W.2d 416; Chapline v. State, supra. Any act done or declaration made by one of the conspirators in furtherance, aid or perpetration of the alleged conspiracy may be shown as evidence against his fellow conspirators. Wilson v. Davis, supra; Chapline v. State, supra.

Mason v. Funderburk, 247 Ark. 521, 529, 446 S.W.2d 543, 548 (1969).

Hamilton is correct that Chambers has presented conclusions but has failed to show any direct or indirect evidence of a conspiracy. What did occur, based on the proof, is the following:

• Dr. Stern referred Chambers to Hamilton in July 1994;
• Hamilton met with Chambers on July 21, 1994;
• Hamilton made a progress note in his file which stated that his “diagnostic impression” of Chambers was “narcissistic personality disorder”;
• Hamilton stated that the “diagnostic impression was based not only upon factual information verbally conveyed by Dr. Chambers, but also upon [Hamilton’s] observations as to Dr. Chambers’ demeanor, attitude, and other nonverbal means of communication” [;]
• Hamilton stated that the “diagnostic impression was not intended by [him] as a diagnosis and certainly not as a final or formal diagnosis” [;]
• Hamilton stated that he did not intend the progress note to be used in any legal proceeding;
• Hamilton did not recall any contact with Stern regarding Chambers before, on, or after, July 21, 1994;
• Hamilton had no record of the progress note ever being made available to Stern by him or his office;
• that Richard Byrd, Chambers’s divorce attorney, by means of a medical authorization, obtained the records relating to Chambers from Hamilton and that after receiving it, Chambers disclosed the progress note to the chancery court.

It would be pure conjecture to infer a civil conspiracy based on Sterns’s referral of Chambers to Hamilton. Moreover, there is nothing in the way of proof to support the fact that Hamilton had any contact with Stern regarding his diagnostic impression of Chambers after his one forty-five minute session with the man. In short, there is a failure on Chambers’s part to show any acts committed by Hamilton and Stern, in combination, to accomplish an unlawful, oppressive, or immoral purpose. See Dodson v. Allstate Ins. Co., supra. We affirm the trial court’s summary-judgment order on this point.

We next consider Chambers’s claim that Hamilton was negligent in making the diagnosis of a narcissistic personalty disorder. In Dodson v. Charter Behav. Health Sys., Inc., 335 Ark. 96, 983 S.W.2d 98 (1998), this court set out the requirements for a showing of negligence in the medical context:

To establish a prima facie case of negligence, a plaintiff must show that damages were sustained, that the defendant breached the standard of care, and that the defendant’s actions were the proximate cause of the damages. See Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). Proximate cause is “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Union Pac. R.R. Co. v. Sharp, supra; Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996). Thus, a plaintiff must show causation in fact and legal causation. When there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. See McGraw v. Weeks, 326 Ark. 285, 930 S.W.2d 365 (1996). But proximate causation becomes a question of law if reasonable minds could not differ as to the result. See Union Pac. R.R. Co. v. Sharp, supra; Tyson Poods Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374 (1996).

Dodson, 335 Ark. at 105, 983 S.W.2d at 103.

We conclude, again, that Chambers’s assertions that a material fact question exists concerning negligence and his diagnosis by Hamilton is without merit. All of the affidavits and sworn testimony filed in support of Chambers’s response to the summary-judgment motion presuppose that Hamilton’s diagnosis was a final diagnosis. This was clearly not the case. By its terms as entered in the progress notes, Hamilton formed a diagnostic impression following one forty-five minute session with Chambers. An impression is not a final diagnosis. Furthermore, there is no proof that Hamilton conveyed this diagnostic impression to Stern or to anyone else. We affirm the trial court on this point as well.

III. Dr. Stern

For his third point, Chambers contends that in considering the trial court’s grant of summary judgment in favor of Stern, we should conduct a de novo review. In making this contention, Chambers invites this court to revisit the issue of whether Stern was actually appointed by the chancery court for custody and visitation purposes and that, in any event, Stern practiced fraud on the chancery court and the Chambers family by misrepresenting his credentials and by employing an experimental therapeutic model.

Stern counters this by noting that the mandate in Stern I was for the trial court, on remand, to determine whether Stern’s treatment of the Chambers family exceeded the scope of the chancery court’s orders. Stern adds that Chambers failed to present any evidence that Stern’s therapy exceeded the scope of those orders. We agree with Stern’s assessment.

This court, in Stern I, specifically set forth the determinations it wanted the trial court to make:

Accordingly, on remand, the trial court must determine as a matter of law [FN1] whether Dr. Stem’s actions were within the scope of his court-appointed capacity, and if so, his actions taken pursuant to the appointment are entitled to judicial immunity.
FN1. Whether absolute immunity exists is a question of law for the courts. See generally 46 Am. Jur. 2d § 68 (1994 & Supp. 1999).
However, if the trial court determines that Dr. Stern’s actions were outside the scope of the court’s appointment, it must determine at what point Dr. Stem exceeded the order and, consequently, forfeited his immunity. Specifically, the trial court must review Dr. Stern’s involvement with the Chamberses from June 22, 1993, to April 18, 1994, in light of the chancery court’s June 22, 1993, temporary relief order directing the following:
That while the Court does not find a physical and mental evaluation of the parties or the children appropriate, the Court does find that a qualified therapist or counselor agreed to by the parties should meet with and counsel the parties and the children relative to the divorce proceedings in which they are involved and the visitation and other matters related thereto and to conduct all necessary evaluations on the parties and children in connection therewith; that only one therapist or counselor should be used for all the children and the parties and that therapist or counselor should report directly to the Court his or her findings and observations and the Court will handle the release of such report to the attorneys for the respective parties; that if the parties are unable to agree on the therapist or counselor to be used, the Court will appoint a therapist or counselor after giving each of the parties an opportunity to supply the Court with the names and qualifications of any therapists or counselors suggested by them for use herein; that Defendant shall be responsible for the payment, as and when due, of all charges made by the therapist or counselor; and that both the parties shall cooperate with and be responsive to the requests and directions of the therapist or counselor involved. (Emphasis added.)
Next, the trial court must review Dr. Stern’s interactions with the Chamberses from April 18, 1994, through the later of (1) the last therapy session by any family member with Dr. Stern, or (2) Dr. Stern’s final communication with the chancery court, in light of the chancery court’s April 18, 1994, divorce decree, directing the following:
The parties and the children are directed to cooperate with the Court appointed therapist, H. Patrick Stern, M.D., to resolve visitation problems. Visitation is to be pursuant to Dr. Stern’s direction pending further order of the Court. [FN2] The Defendant is hereby directed to pay all charges associated with the subject therapy related to visitations problems pending further order of the Court. (Emphasis added.)
FN2. We render no opinion regarding (1) the validity of the trial court’s instruction that, “Visitation is to be pursuant to Dr. Stern’s direction pending further order of the Court,” or (2) the effect of the validity of that instruction upon the application of judicial immunity to Dr. Stern. The instruction’s validity was not challenged, and these issues are not before us on appeal.
Only after the trial court resolves the aforementioned legal issues may the jury consider the merits of appellant’s malpractice claim.

Stern I, 338 Ark. at 338-40, 994 S.W.2d at 466-67.

On remand, the trial court made its decision. It determined that Stern’s actions were within the scope of his court-appointed capacity and that he was entitled to judicial immunity. Again, Chambers has offered no proof to the contrary, and we will not consider, under our doctrine of law of the case, issues that could have been raised in the first appeal, such as the validity of the judicial appointment and fraud, but were not. See McDonald’s Corp. v. Hawkins, 319 Ark. 1, 888 S.W.2d 649 (1994); Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989).

Affirmed.

IMBER, J., not participating.

       Two of the Chambers’s five children, Sylvia and Keith, were attending college by tliis time and had attained their majority status. Though it is not entirely clear, the trial court may have meant to name Jenny rather than Sylvia in this portion of its order.


author: R OBER.T L. BROWN, Justice.

text:
    Blake JONES v. STATE of Arkansas
    01-695
    64 S.W.3d 728
    Supreme Court of Arkansas
    Opinion delivered January 17, 2002

      H. Brock Showaiter, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   R OBER.T L. BROWN, Justice.

This is an appeal by appellant Blake Jones from an adjudication of delinquency based on the offense of terroristic threatening in the first degree, a Class D felony. He was sentenced to twenty-four months of supervised probation and seven days to serve in the Juvenile Detention Center. Jones raises two points on appeal: (1) the juvenile judge erred in denying his motion for directed verdict because the State had not proven the requisite mental intent for terroristic threatening; and (2) the rap song involved is protected speech under both the Arkansas and United States Constitutions. We affirm the adjudication and the disposition.

Blake Jones was fifteen at the time of the events giving rise to this appeal. While attending Fayetteville High School, a fellow student named Allison Arnold, who was also fifteen, had befriended him. The two had been friends for about three years. At various times while Jones was away at juvenile detention facilities for various offenses, Arnold wrote letters to him. On occasion, Jones composed rap songs and gave them to Arnold to read. In her trial testimony, Arnold said that he wrote poems and notes and gave them to her, and that “He’d always say he was expressing himself through a poem.” She said some of those rap songs or poems contained violent language, but they were not directed toward any particular person. She described her relationship with Jones as a friendship in which she “just tried to witness to him.” She had taken him to church with her family and had spoken to him about religious matters. Arnold added that she had wanted to help Jones and “give him hope.”

On February 15, 2001, during the second period of the school day, Jones wrote several notes to Arnold in class and gave them to her. She refused to write back and let him know that she was not going to write notes because she wanted to pay attention in class. Her refusal to respond made Jones mad. He testified that upon his recent return to Fayetteville High School from the detention facility, their friendship had cooled, and Arnold had acted “snobby” toward him. After she refused to write back to him, he wrote a rap song and gave it to her:

I hope you remember this day, cuz you’ll forever be the cause of my violence and rage,
You steadily rejected me, now I’m angry and full of fucking misery,
You try to be judgmental telling me to act right. Before you take the speck from my eye, take the fucking board from your eye,
I didn’t do nothing to deserve this, and now I’m stressed, and when I’m stressed, I’m at my best,
I’m a motherfuckin murderer, I slit my mom’s throat and killed my sister. You gonna keep being a bitch, and I’m gonna cliche [click],
My hatred and aggression will go towards you, you better run bitch, cuz I can’t control what I do. I’ll murder you before you can think twice, cut you up and use you for decoration to look nice,
I’ve had it up to here bitch, there’s gonna be a 187 on your whole family trik [trick],
Then you’ll be just like me, with no home, no friends, no money,
You’ll be deprived of life itself, you won’t be able to live with yourself,
Then you’ll be six feet under, beside your sister, father, and mother,
You’ll be in hell, and I’ll be in Jail, but I won’t give a fuck cuz we all know I’ve been there before,
Goodbye forever my good friend. I’ll see you on judgement day when I’m punished for my sin.

Jones did not give Arnold the rap song immediately, but he handed it to her during fifth period. While Arnold read the song, Jones was laughing. He asked Arnold whether she liked the rap lyrics, and she told him that she thought they were “sick and gross.” She further testified that she was frightened and áppalled because: “[H]e knew where I lived, he knew my family, he wrote about my sister[ ] and my dad, that’s written to my family. It was handed to me, and it was given to me. It was written for me.” Jones asked her to give the note with the rap lyrics back to him, and she refused.

There are two matters of factual dispute surrounding this incident. First, although Jones claimed he told her “Don’t take this serious,” Arnold denied that he made the statement. The second factual dispute is whether or not Arnold first asked to see his writing. In Jones’s written statement, he asserted that Arnold asked to see the note. Arnold denied this in her trial testimony.

Instead of handing the note back to Jones, Arnold asked the teacher if she could use the restroom. She testified that this interchange with her teacher occurred within three to five minutes after she read the note. A witness for Jones, Sarah Stone, testified that the time differential was more like fifteen minutes. After getting permission to leave the classroom, she went directly to principal John "Wesson’s office. Once in the principal’s office, she showed him the note. He called the Fayetteville Police Department and then called Jones to the office.

Officer David Williams arrived, and Arnold told him that she felt scared because she thought Jones was capable of carrying out the conduct described in the note. According to Officer Williams’s trial testimony, Arnold was crying and seemed scared of Jones, positioning herself so that the police officer physically separated the two of them. Jones, on the other hand, told the police officer that he did not believe that “this was a big deal, and he didn’t understand why everyone was upset.” He volunteered an apology to Arnold. He also gave a statement admitting that he wrote the note. According to Principal Wesson’s testimony, he told the principal and Officer Williams that he was “modeling his writing after [rap artist] Eminem.” He insisted that he was simply writing “to get his feelings out.” In his written statement he said: “I got mad and wrote a letter to express myself. It was a rap and pretty gruesome.” Principal Wesson testified that Jones seemed to have no understanding that his writing could frighten or harm another person.

On February 16, 2001, the prosecuting attorney filed a Petition for Adjudication of Delinquency against Jones. The petition alleged that Jones had committed an act of terroristic threatening in violation of Ark. Code Ann. § 5-13-301 (Repl. 1997), a Class D felony. On February 27, 2001, the petition was heard in juvenile court. The prosecutor presented the testimony of Arnold, Officer Williams, Principal Wesson, and Allison Arnold’s father, J.R. Arnold. At the conclusion of the State’s case, the defense moved for a directed verdict on the specific ground that the State had failed to prove the requisite intent to terrorize or cause extreme fright. The juvenile judge denied the motion. Defense counsel then presented the testimony of Fayetteville High School student Sarah Stone, who testified about Jones’s history of writing rap songs, and next the testimony of Jones himself. After Jones’s testimony was concluded, the following exchange occurred:

The COURT: Thank you, Mr. Jones. You can return to your seat. Call your next, Ms. Poole.
Defense Counsel: The defense rests, Your Honor.
The COURT: Thank you. Statements, Ms. Robinson?

The defense did not renew its motion for directed verdict. The State then immediately began its closing argument.

After closing arguments, the juvenile judge ruled from the bench. She found that the rap lyrics constituted a threat. She noted that Jones was mad at Arnold when he wrote the rap song and that the lyrics were intended to cause Arnold fear. The judge further observed that Arnold knew of Jones’s criminal history, and that Arnold had been intensely frightened and upset by the episode. She adjudicated Jones delinquent on the charge of terroristic threatening and sentenced him to 24 months of supervised probation, as well as seven days in a juvenile detention facility. She specifically ordered that Jones have no contact with Arnold or her family. Because Jones was already in state custody at the time of the incident and resultant trial, the judge committed Jones to the custody of the Department of Youth Services.

I. Sufficiency of the Evidence

Jones’s first point on appeal is that the trial judge erred in denying his motion for a directed verdict based on the fact that the State failed to prove the required mental state for terroristic threatening. We are precluded from addressing this point because it is not preserved for our review.

Under the Juvenile Code, the Arkansas Rules of Criminal Procedure apply to delinquency proceedings. Ark. Code Ann. § 9-27-325(f) (Supp. 2001); see also L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998); Mason v. State, 323 Ark. 361, 914 S.W.2d 751 (1996). Arkansas Rule of Criminal Procedure 33.1 states in relevant part:

(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all of the evidence.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment.

Ark. R. Crim. P. 33.1 (b)-(c). Thus, if a defendant fails to renew a motion for dismissal at the close of all the evidence, the sufficiency-challenge is deemed waived on appeal. See also Trammell v. State, 70 Ark. App. 210, 16 S.W.3d 564 (2000) (juvenile adjudicated delinquent on terroristic threatening charge waived his sufficiency challenge on appeal when he did not renew his motion for directed verdict after the close of all the evidence).

Here, Jones in no way attempted to renew his motion at the close of all the evidence. After Jones rested his case, the State immediately began closing arguments. Accordingly, Jones waived any sufficiency arguments that he may have presented to the juvenile judge by way of his initial motion to dismiss at the close of the State’s case.

II. Free Speech Argument

We turn next to Jones’s contention that his rap song was protected speech under the Arkansas and U.S. Constitutions. As an initial point, we fail to see where Jones’s counsel raised the Arkansas Constitution as an argument before the juvenile judge. Arguments, even constitutional arguments, are improperly raised for the first time on appeal. B.C. v. State, 344 Ark. 385, 40 S.W.3d 315 (2001) (holding, in juvenile delinquency adjudication, that juvenile’s equal protection argument was not preserved when it was not raised before the trial court); see also Goff v. State, 341 Ark. 567, 19 S.W.3d 579 (2000); McGhee v. State, 330 Ark. 38, 954 S.W Because it is not preserved, we will not address his claim under the Arkansas Constitution.

Whether Jones’s rap song was protected speech under the U.S. Constitution was argued to the juvenile judge by both the prosecutor and defense counsel in closing arguments. The prosecutor contended that the rap song fell within an exception to protected speech because it was a threat. Defense counsel responded that Jones did not lose his First Amendment protection while in school and referred to a Pulaski County School District case where a rap song was found to be protected speech. The prosecutor responded that Jones’s rap song fell within the fighting-words exception to protected speech and that the Pulaski County School District case was distinguishable. The juvenile judge agreed and found that the rap song was not protected speech but fell within the fighting-words exception to First Amendment protection. Because the First Amendment and its exceptions were specifically argued to the juvenile judge, and her findings were based in part on constitutional principles, we deem the argument to be appropriately before us.

Turning to his fiee-speech claim under the U.S. Constitution, Jones urges that neither the “fighting words” nor the “true threat” exception apply to his case and that his rap song was protected speech. We disagree. Prefiminarily, we note that Jones is not mounting a facial challenge to our terroristic threatening statute (Ark. Code Ann. § 5-13-301(a)(l)(A) (Repl. 1997)), as was the case with the statute at issue and the vagueness assertion in Shoemaker v. State, 343 Ark. 727, 38 S.W.3d 350 (2001), which Jones relies on. Rather, Jones contends that the application of the statute to his rap song is unconstitutional under the First Amendment. The First Amendment is made applicable to the states through the Fourteenth Amendment. Lovell v. City of Griffin, 303 U.S. 444 (1938). The United States Supreme Court in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), noted that its jurisprudence, over the years, has recognized several exceptions to blanket protection for expressive speech. R.A.V. 505 U.S. at 382-83 (“From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ”) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)).

Two of those categories of unprotected speech are at issue in this case. The first is the well-established “fighting words” doctrine. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Shoemaker v. State, supra; Johnson v. State, 343 Ark. 343, 37 S.W.3d 191 (2001). The second is the “true threat” exception. See Watts v. United States, 394 U.S. 705 (1969) (“What is a threat must be distinguished from what is constitutionally protected speech.”); Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 371 (9th Cir. 1996) (“In general, threats are not protected by the First Amendment.”).

“Fighting words” have been defined by the United States Supreme Court as “those which by their very utterance inflict, injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, supra. Quoting the New Hampshire Supreme Court, the Chaplinsky Court alternatively described fighting words as those which “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” Id. at 573. This court first recognized the “fighting words” doctrine in 1956 in the case of Youngdahl v. Rainfair, Inc., 226 Ark. 80, 288 S.W.2d 589 (1956) (quoting extensively from Chaplinsky and upholding, over striking workers’ constitutional objection, an injunction against picketing). We have since applied it a number of times in different contexts. See, e.g., Johnson v. State, supra (assessing as-applied challenges to statute); Lucas v. State, 257 Ark. 726, 520 S.W.2d 224 (1975) (giving statute a narrowed reading); Shoemaker v. State, supra (declaring statute unconstitutional). We agree with the State that the fighting-words exception is not applicable to the facts of this case.

The “true threat” doctrine was first announced in the United States Supreme Court case of Watts v. United States, supra. In Watts, the Court held that the defendant could not be prosecuted for a statement made at a political rally which, when taken literally, threatened President Lyndon Johnson’s fife. Instead, the Court directed that “[w]hat is a threat must be distinguished from what is constitutionally protected speech.” Watts, 394 U.S. at 707. However, the Court also held that the statute which makes a knowing threat against the president a crime was constitutional. The Court did not set out a test in Watts for distinguishing between a true threat and hyperbolic political comment.

Since Watts, several federal circuit courts have disagreed on the applicable standards governing the assessment of whether a threat is true and, thus, not protected by the First Amendment. The question has been addressed by the First, Second, Sixth, Eighth, Ninth, and Tenth Circuit Courts of Appeal and by various state supreme courts as well. The Circuit Courts disagree, however, on whether the appropriate focus should be on the declarant of the statement and what he should reasonably have foreseen, or rather on the recipient of the statement and what she reasonably would have believed.

For example, the First Circuit has held that the appropriate standard is “whether [the defendant] should have reasonably foreseen that the statement he uttered would be taken as a threat by those to whom it is made.” U.S. v. Fulmer, 108 F.3d 1496, 1491 (1st Cir. 1997). However, the Second Circuit has announced its test that a true threat exists when the language “on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.” United States v. Francis, 164 F.3d 120, 122-23 (2d Cir. 1999) (citing United States v. Kelner, 534 F.2d 1020 (2d Cir. 1976)). The Second Circuit has further said: “The test is an objective one • — ■ namely, whether ‘an ordinary, reasonable recipient who is familiar with the context of the letter would interpret it as a threat of injury.’ ” United States v. Malik, 16 F.3d 45 (2d Cir. 1994) (internal citation omitted).

The Sixth Circuit, on the other hand, has said: “Although it may offend our sensibilities, a communication objectively indicating a serious expression of an intention to inflict bodily harm cannot constitute a threat unless the communication also is conveyed for the purpose of furthering some goal through the use of intimidation.” United States v. Alkhabaz, 104 F.3d 1492, 1495 (6th Cir. 1997). See also United States v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992) (“[T]he standard ... is an objective standard, i.e., would a reasonable person consider the statement to be a threat.”). The Ninth Circuit has set a slightly different objective test: “[Wjhether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.” Bauer v. Sampson, 261 F.3d 775, 782 (9th Cir. 2001) (quoting Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 371 (9th Cir. 1996)).

The Eighth Circuit has taken a somewhat different approach from those of the other circuits in establishing an objective test. Rather than a brief verbal formulation of a test, the Eighth Circuit has outlined five factors which govern its review of whether a threat is true or hyperbolic. In United States v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996), the Eighth Circuit said:

When determining whether statements have constituted threats of force, we have considered a number of factors: the reaction of the recipient of the threat and of other listeners; whether the threat was conditional; whether the threat was communicated direcdy to its victim; whether the maker of the threat had made similar statements to the victim in the past; and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence. This list is not exhaustive, and the presence or absence of any one of its elements need not be dispositive.

Dinwiddie, 76 E3d at 925.

The five Dinwiddie factors were recendy applied in the Pulaski County Special School District expulsion case, which was argued before the juvenile judge and where a rap song was also at issue. In Doe v. Pulaski County Special Sch. Dist., 263 F.3d 833 (8th Cir. 2001) (panel decision vacated and en banc rehearing granted Nov. 5, 2001), a panel of the Eighth Circuit ruled the defendant school district’s expulsion of a student for writing a threatening rap song to his ex-girlfriend unconstitutional. That panel’s decision was subsequently vacated on November 5, 2001, and rehearing en banc was granted by the Eighth Circuit. At this writing, the rehearing en banc has not taken place.

In Doe, the expelled student wrote his rap song during the summer months when school was not in session. He wrote the four-page song to his ex-girlfriend, K.G., with whom he was extremely angry because she had broken up with him in order to be with another boy. In the song/letter, Doe threatened to rape K.G., sodomize her, and kill her with a knife by hiding under her bed. A friend of Doe’s found the rap lyrics in Doe’s bedroom. Doe eventually told K.G. in a telephone conversation about the general content of the letter. During this conversation, she asked to see the letter, and he refused. Through the same friend who initially found the letter, she was later able to covertly obtain it. K.G. was frightened and worried about the contents of the letter, and one of her friends reported her concerns to school administrators. After this report, the letter came to fight, and Doe was expelled by the school after an administrative process. No criminal charges were brought.

Doe filed suit in federal district court to set aside the expulsion, and the district judge ruled the expulsion a violation of the First Amendment. In an unpublished disposition, the district court held that the letter did not constitute a true threat to K.G. The now-vacated Eighth Circuit panel affirmed that decision. That panel, in applying the Dinwiddie factors, particularly emphasized three factors. First, the panel found it significant that Doe did not show the letter to K.G. Secondly, K.G. had no knowledge of any past violent behavior on Doe’s part. Finally, Doe and K.G. continued to see one another socially at church functions even after K.G. knew about the content of the letter. For these reasons, the panel affirmed the district judge’s decision that the letter did not constitute a true threat to K.G.

Turning to the case at bar, we observe that this court has never addressed the “true threat” doctrine, and, accordingly, has never adopted a test for what constitutes a true threat. In considering the various tests adopted by the circuit courts and various state supreme courts, we conclude that an objective test focusing on how a reasonable person would have taken the statement and using the Dinwiddie factors has the most merit. See also In re Kyle M., 200 Ariz. 447, 27 P.3d 804 (Ct. App. 2001); State v. Perkins, 243 Wis. 2d 141, 626 N.W.2d 762 (2001); In re Steven S., 25 Cal. App. 4th 598, 31 Cal. Rptr. 2d 644 (1994). As reported in Dinwiddie, those factors are not exclusive but provide initial guidance in groping with the question.

Applying the five Dinwiddie factors to this case, we conclude that Jones’s language constituted a true threat to Arnold. First, there was the reaction of Arnold to the threat. Her reaction to Jones’s letter was immediate and unequivocal. Within minutes of receiving it, she asked permission to leave the classroom. She then proceeded to the principal’s office where she reported the incident. She was intensely frightened and upset, by everyone’s account, and she told the attending police officer that she believed Jones was capable of carrying out the threat because he had a criminal record and knew where her family lived.

Secondly, the threat made was not conditional. The lyrics which Jones composed indicated that he was mad at Arnold, and he placed no conditions on his intended conduct. Thirdly, Jones communicated the threat directly to Arnold by handing the note to her. Finally, though Jones had not made similar statements to Arnold in the past, she clearly believed that he had the capacity to carry out his threat. She knew that he had been in and out of juvenile detention facilities for various offenses. And while Jones’s offenses may have been nonviolent — the record on appeal does not reveal his criminal history — Arnold was convinced that his juvenile record indicated a criminal disposition to make good his threat. Viewing these factors together, we conclude that a reasonable person in Arnold’s position would have taken the rap song as a true threat.

Moreover, there are several important factual differences between this case and Doe v. Pulaski County Special Sch. Dist., supra. Our review in the instant case is of a juvenile adjudication and not administrative action, as is the case in Doe. Also, unlike Doe, Jones wrote his rap lyrics and within hours gave the song directly to Arnold. Arnold also knew that Jones had a juvenile record for criminal offenses, and she immediately went to the authorities upon receiving the letter and ceased contact with Jones, unlike the Doe victim who continued to socialize with Doe for some time after learning about his rap song.

We affirm the juvenile judge’s decision. Although the judge based her decision on the “fighting words” doctrine, we can still affirm her decision because she reached the right result, albeit for the wrong reason. See, e.g., Harris v. State, 339 Ark. 35, 2 S.W.3d 768 (1999) (citing Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987); Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981)). We hold that because Jones’s rap lyrics constituted a true threat to Arnold, the rap song is not protected by the First Amendment.

Affirmed.

IMBER, J., not participating.

       Although the content of the tap indicates otherwise, Jones’s mother was not dead. In fact, Jones previously had told Arnold that his mother was killed in a car accident, though this was untrue as well.

       The petition also alleged that Jones had engaged in disorderly conduct in violation of Ark. Code Ann. § 5-71-207 (Repl. 1997), a Class C misdemeanor. Apparently, in the van on the way back to Youth Bridge, the juvenile facility where Jones lived, he exposed himself. This incident is not at issue in this appeal.

       For purposes of a bench trial, Ark. R. Crim. P. 33.1(b) uses the term “motion for dismissal” rather than “motion for directed verdict.”

       The reference was to Doe v. Pulaski County Special Sch. Dist., 263 F.3d 833 (8th Cir. 2001) (rehearing en banc granted and opinion vacated, Nov. 5, 2001).


author: R AY THORNTON, Justice.

text:
    COLUMBIA NATIONAL INSURANCE COMPANY v. Gary FREEMAN and Peggy Freeman
    01-614
    64 S.W.3d 720
    Supreme Court of Arkansas
    Opinion delivered January 17, 2002

      Appeal from Cleburne Circuit Court; John Dan Kemp, Judge;

      Robert J. Donovan, for appellant.

      Belew & Bell, by: John M. Belew; Bell & Associates, BA., by: Harvey L. Bell; and Scott Ellington, for appellees.
   R AY THORNTON, Justice.

On October 27, 1997, a fire caused major damage to Circle F Trading Company, a western wear and general store, owned and operated by appellees, Gary and Peggy Freeman. The Freemans were insured against losses to the building, its contents, continuing business expenses, and other coverage, by appellant, Columbia National Insurance Company. Appellant responded prompdy to the notice of the fire and concluded that the inventory was destroyed.

Before it would pay for appellees’ continuing business expenses, appellant requested that appellees provide it with an itemization of those business expenses. Appellees provided an itemized fist of expenses, but it is disputed whether the actual bills and invoices were submitted to appellant. No payment for business expenses, including the mortgage payment, was ever made by appellant.

Appellant sought to locate a mobile building to serve as a temporary office for Circle F’s continuing operations, but no such building was provided. Because the first inventory of the merchandise was based upon the retail value of the merchandise and amounted to $107,905.13, appellant obtained a second appraisal of the inventory of $71,231.69.

On December 5, 1997, appellant paid appellees $77,892.28 for inventory, supplies, lost income, and damaged feed. No payment was made for continuing business expenses, and no temporary office facility was provided. There was a disagreement between the parties as to whether an agreement was reached in late December of 1997 as to a settlement of $32,725 for the cost of repairing the building. However, in January of 1998, appellant tendered a check in the amount of $ 26,180.02, representing eighty percent of the $32,725. Appellees rejected the check. Circle F Trading Company never reopened.

On May 14, 1998, appellees filed a complaint in the Circuit Court of Cleburne County. The complaint alleged three causes of action: (1) breach of contract; (2) the tort of bad faith; and (3) tortious interference with contract/business expectancy. At trial, the court determined that there was sufficient evidence of bad faith to submit that issue to the jury. The case was submitted to the jury on two interrogatories. The issue before the jury was whether appellant had acted in bad faith in its dealings with appellees. The jury returned a verdict for appellees and awarded $170,000 in compensatory damages and $200,000 in punitive damages.

Appellant brings this appeal, raising seven points for our consideration. We find no error and affirm the trial court on all points.

We first consider whether the trial court erred in denying appellant’s motion for directed verdict on the issue of bad faith. Specifically, appellant argues that there was insufficient evidence to establish that appellant acted in bad faith. When reviewing a denial of a motion for a directed verdict, we determine whether the jury’s verdict is supported by substantial evidence. State Auto Property and Casualty Ins. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999). Substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond mere suspicion or conjecture. Id. In determining whether substantial evidence exists, we have stated that we will rely upon two crucial principles to avoid invading the province of the jury. Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993). First, the court will consider only the evidence favorable to the successful party below, and second, the court will defer to the jury’s resolution of the issue unless we can say that there is no reasonable probability to support the version of the successful party below. Id. Additionally, in reviewing the evidence, the weight and value to be given the testimony of the witnesses is a matter within the exclusive province of the jury. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

Remaining mindful of our standard of review, we must now determine whether there was sufficient evidence to support the jury’s verdict that appellant acted with bad faith in its dealings with appellees. An insurance company commits the tort of bad faith when it affirmatively engages in dishonest, malicious, or oppressive conduct in order to avoid a just obligation to its insured. Swaim, supra. We have defined “bad faith” as dishonest, malicious, or oppressive conduct carried out with a state of mind characterized by hatred, ill will, or a spirit of revenge. Id. Mere negligence or bad judgment is insufficient so long as the insurer is acting in good faith. Id. The tort of bad faith does not arise from a mere denial of a claim; there must be affirmative misconduct. Id.

In State Auto Property and Casualty Ins. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999), we reviewed our prior cases dealing with the issue of bad faith and explained the circumstances under which an insurance company acted in bad faith. In Swaim, we also explained the circumstances under which an insurance companies was not acting in bad faith. Specifically, we explained:

[W]e have held that nightmarish red tape, an abrupt attitude evidenced by an insurance representative about higher premium costs following cancellation of a group policy, and confusion over the referral process did not amount to bad faith. See American Health Care Providers v. O’Brien, supra. Nor did the fact that an insurance company waited three months to investigate a claim. See Reynolds v. Shelter Mut. Ins. Co., 313 Ark. 145, 852 S.W.2d 799 (1993).
Examples of cases where we have found substantial evidence of bad faith include where an insurance agent lied by stating there was no insurance coverage (Southern Farm v. Allen, supra); aggressive, abusive, and coercive conduct by a claims representative, which included conversion of the insured’s wrecked car; (Viking Insurance Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992)); and where a carrier intentionally altered insurance records to avoid a bad risk (Employers Equitable Life Ins. Co. v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1984)).

Swaim, supra.

Turning to the case now on review, we must determine whether there was sufficient evidence to submit to the jury the issue of bad faith. First, appellees argue that appellant acted in bad faith when it failed to pay appellees’ ongoing business expenses. These expenses included utility bills and appellees’ mortgage payment. Bill Green, an insurance adjuster who worked for appellant, was responsible for providing appellees money to cover their ongoing business expenses. He testified that he asked appellees to provide him documentation of the ongoing business expenses before he could pay the expenses. Mr. Freeman and Mrs. Freeman each testified that they had made the requested copies of the bills and mailed the documentation to Mr. Green. Mr. Green testified that the only documentation he received from appellees was a handwritten list of bills, that he determined that this was inadequate documentation, and that he declined to pay appellees’ ongoing business expenses. The issue whether appellant received appropriate documentation is one for the factfinder to resolve based upon the credibility of the witnesses. There was sufficient evidence for the jury, without resorting to suspicion or conjecture, to determine whether adequate documentation had been provided, and to support a finding that failure to cover appellees’ ongoing business expenses, to which they were entitled, was an act of bad faith.

Next, appellees contend that appellant acted in bad faith when it failed to provide appellees with a temporary location for their business. Sufficient evidence was admitted to present to the jury the question of whether appellant’s agent agreed to provide a tráiler for appellees to use, researched the cost of providing such a service, and then failed to go forward with the agreement.

Additionally, appellees argue that appellant was acting in bad faith when it failed to comply with an agreement reached between the parties on the issue of cost for building repairs. Evidence was introduced that appellant’s agent and appellees agreed in late December 1997 upon the sum of $32,725 for the cost of repairing the building but that after entering into this agreement, appellant tendered only eighty percent of the amount agreed upon. There was sufficient evidence of such an agreement to submit to the jury the question of whether an agreement was entered into by the parties and then breached by appellant.

Appellees next argue that the jury had sufficient evidence to support a conclusion that appellant acted in bad faith by altering appeüees’ claim file. Appellees identify two events that indicate that appellant was altering appellees’ file. First, appellees argue that appellant’s employee purposely misplaced documents which detailed disputed events. Appellees argue that these documents were missing because they contained critical information involving the parties attempting to negotiate appellees’ claims. Next, appellees argue that a second file known as a “dummy file” was established on their claim in bad faith. Once again, these assertions reflect a question of credibility that the jury could consider in its evaluation of appellant’s alleged acts of bad faith.

Appellees further argue that appellant falsely accused them of being uncooperative. Appellees claimed that a letter written by one of appellant’s employees addresses this issue. The letter warned appellees that if they failed to fulfill certain obligations in their insurance policy, then any settlement offer from appellant was at risk of being reduced. Appellees also contend that appellant falsely considered appellees to be uncooperative because they hired an attorney. They claim that this position was discussed in correspondence between appellant’s employees. The correspondence discussed that appellees’ claim was very complicated and that it was further “complicated by [appellees] hiring an attorney.” This evidence could be considered by the jury in determining whether appellant’s actions were the result of “ill will.”

Finally, appellees argue that appellant acted with bad faith when it requested that two appraisals be performed on appellees’ inventory and chose to pay appellees based on the lower of the two appraisals.

After reviewing the testimony and the alleged acts of bad faith, we hold that the trial court properly denied appellant’s motion for directed verdict. Specifically, we conclude that there was substantial evidence to support the jury’s verdict that appellant’s actions constituted oppressive conduct carried out with a state of mind characterized by ill will. Accordingly, the trial court’s denial of appellant’s motion for a directed verdict is affirmed.

In appellant’s second point on appeal, it argues that the trial court should have excluded documents written by Joe Hoelzeman, Richard Walls, and Steve Wenger. On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). Nor will we reverse a trial court’s ruling on evidentiary matters absent a showing of prejudice. Id. Appellant argues that these documents should have been excluded because they include evidence of “subsequent remedial measures” which are inadmissible pursuant to Rule 407 of the Rules of Evidence.

Rule 407 provides:

Whenever, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures if offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Id.

An example of improper evidence showing a subsequent remedial measure may be found in Carton v. Missouri Pacific Railroad Company, 315 Ark. 5, 865 S.W.2d 635 (1993). In that case, appellant argued that the trial court should have admitted certain pictures. The pictures showed that after appellant was injured by falling on oil-soaked gravel appellee replaced the gravel with clean gravel. We held that the pictures were evidence that appellee had taken subsequent remedial measures and affirmed the trial court exclusion of the evidence. Id. See also Lawhorn v. Aryes Corporation, 67 Ark. App. 66, 992 S.W.2d 162 (1999).

In the case now on review, appellant sought to exclude three documents. First, a letter written by Joe Hoelzeman on February 17, 1998. The letter states that appellees have hired an attorney and requests that the claim be transferred to a new adjuster. The second document was a report written on March 11, 1998, from Richard Walls to appellant. This document reviews the status of appellees’ claim. The third document appellant sought to exclude was a memo to the file written by Steve Wenger and dated April 8, 1998. This memo once again reviews appellees’ claims and discusses possible problems appellant may encounter in the negotiation process such as taking an across the board depreciation on all property. The final document appellant sought to exclude was Joe Hoelzeman’s response to Steve Wenger’s memo. The response seeks to correct a mistake made in the Steve Wenger’s memo and acknowledges that the across the board depreciation on all items is no longer a company policy. After reviewing the documents that appellant sought to exclude, we conclude that the documents do not contain any evidence of subsequent remedial measures. Specifically, the documents do not describe measures which had appellant taken previously would have made an event less likely to occur. Accordingly, we affirm the trial court.

In appellant’s third point on appeal, it argues that the trial court erred when it allowed appellee Gary Freeman to testify about whether he could afford to rebuild his business. Appellant argues that his testimony should have been excluded because it was not relevant pursuant to Rule 401 of the Rules of Evidence. Rule 401 states that “ ‘relevant evidence’ means evidence having tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” We have held that a trial court’s ruling on relevancy is entided to great weight and will not be reversed absent an abuse of discretion. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999).

The testimony appellant sought to exclude is as follows:

Mr. Belew [appellees’ attorney]: Did you have any money to repair the building?
Mr. Donovan [appellant’s attorney]: Objection, your honor, it’s not relevant under the terms of the policy.
Mr. Belew: Your, honor, it certainly is relevant. He hadn’t been paid for his building. And the question is did he have the economic ability to put his building back without his insurance proceeds. That’s the question.
The COURT: Objection will be overruled.
Mr. Belew: Do you have the money to build your building back?
Gary Freeman [appellee]: No sir.

Appellees’ .contend that this testimony was relevant because it established: (1) that appellees did not have the money to replace their business without receiving their insurance proceeds; and (2) that appellees had not yet received these proceeds. We cannot say that the trial court abused its discretion by admitting this evidence.

In appellant’s fourth point on appeal, it argues that the trial court should have granted its motion for directed verdict on count I of appellees’ complaint. Count I of appellees’ complaint was a claim for breach of contract. Specifically, appellant argues that appellees failed to provide sufficient evidence that appellant breached its contract with appellees.

Appellees respond by arguing that we should not consider this argument on appeal because appellant withdrew its motion for directed verdict on count I and agreed to submit this issue to the jury. See Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989) (holding that a party cannot concede an issue at trial and then raise it on appeal). After reviewing the colloquy between the attorneys and the trial court, we agree with appellees that appellant withdrew its motion for directed verdict on count I of appellees’ complaint and agreed to submit the issue to the jury.

However, we note that the issue was not submitted to the jury. The trial court did not instruct the jury on a breach of contract claim. Moreover, the jury did not consider a breach of contract claim or render a verdict on a breach of contract claim. Specifically, the verdict form submitted to the jury contained two interrogatories both dealing with the issue of bad faith. The first interrogatory provided: “[D]o you find from a preponderance of the evidence that Columbia National Insurance Company is guilty of bad faith?” The second interrogatory provided: “If you have answered interrogatory no. 1 ‘yes’ then you may assess those damages, if any, that you find were proximately caused by the bad faith of Columbia National Insurance Company.” Because appellant agreed to withdraw its motion for directed verdict on count I of appellees’ complaint, and because the jury did not render a verdict based on appellees’ breach of contract claim, we decline to address this issue on appeal.

In appellant’s fifth point on appeal, it argues that the trial court erred in denying its motion for judgment notwithstanding the verdict. Specifically, appellant argues that there was insufficient evidence to support the award of $170,000 in compensatory damages. A motion for judgment notwithstanding the verdict is technically only a renewal of the motion for directed verdict made at the close of the evidence. Wheeler, supra.

After reviewing the evidence, we conclude that there was sufficient evidence to support the jury’s award of $170,000. At trial, appellees offered evidence of underpayment in inventory, costs to repair the building, loss of income, and normal operating expenses. Considering the testimony in the light most favorable to appellees, there was evidence that appellees incurred operating expenses in the amount of approximately $35,000 a year, based on the testimony of Wade Turner, appellees’ certified public accountant. Mr. Turner testified that appellees incurred $2,926 a month in normal operating expenses, and that appellees lost $22,000 a year in net income for four years. The cost to repair the building was $32,725. Deducting the amount paid by or tendered by appellant, there was evidence that the total of appellees’ compensatory damages exceeded $170,000. Because the jury’s award of $170,000 in compensatory damages is supported by the evidence, we conclude that the trial court did not err in denying appellant’s motion for judgment notwithstanding the verdict.

In its sixth point on appeal, appellant argues that the trial court improperly excluded testimony favorable to appellant. Specifically, appellant argues that the trial court improperly determined that certain testimony was hearsay and therefore inadmissable. The evidence appellant sought to have admitted involved statements made by employees at the Secretary of State’s office to James Cunningham, appellant’s employee. At trial, an issue of whether Columbia Insurance Group, Inc., was qualified to do business in Arkansas arose. Appellant wanted to admit the testimony to show that Columbia Insurance Group, Inc., was not registered to do business in Arkansas because someone at the Secretary of State’s Office informed James Cunningham that it was not necessary for the company to register. The trial court did not allow Mr. Cunningham to testify about what he was told by the employee at the Secretary of State’s Office. Appellant’s attorney proffered the content of Mr. Cunningham’s testimony.

Pursuant to Rule 801(c) of the Rules of Evidence, “‘hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Such testimony is inadmissible evidence unless it fits within one of the exceptions outlined in Rule 801. Rule 802 of the Rules of Evidence.

In the case now before us, the testimony appellant sought to have admitted was hearsay testimony which did not fit within any of the articulated exceptions to Rule 801. Specifically, appellant sought to have Mr. Cunningham testify about what he was told by an employee at the Secretary of State’s Office. This testimony was offered to explain why Columbia Insurance Group, Inc. was not authorized to do business in Arkansas. Because the evidence constituted inadmissible hearsay, the trial court did not err by excluding James Cunningham’s proffered testimony.

In appellant’s final point on appeal, it argues that the trial court improperly admitted evidence concerning other claims against appellant. The parties agreed before trial that appellees would not offer evidence regarding other claims in which appellant was involved unless appellant “opened the door.” During Roger Langster’s testimony, appellees’ attorney asked Mr. Langster: (1) if he had ever had a problem with Joe Hoelzeman; (2) if he had ever gone to Joe Hoelzeman’s supervisors to get a claim resolved; and (3) if he had to call “the home office” to get assistance in dealing with matters. Appellant objected to these question arguing that appellees had violated the agreement regarding offering evidence about other claims in which appellant was involved. The trial court overruled appellant’s objection and admitted the testimony. Next, Tommy Smith testified. Appellees’ attorney asked Mr. Smith if Mr. Langster had told him that he had problems with Joe Hoelzeman. Appellant once again objected. The trial court allowed the testimony and issued a limiting instruction to the jury that the evidence could be considered solely for the purpose of determining whether appellant was guilty of bad faith or tortious interference.

On appeal, appellant contends that the cumulative effect of the testimony offered by Mr. Langster and Mr. Smith allowed the jury to infer that appellant was guilty of misconduct in other claims and that this inference prejudiced appellant. We note that appellant has failed to offer any citation to authority to support its position. See City of Van Buren v. Smith, 345 Ark. 313, 46 S.W.3d 527 (2001) (holding that this court does not consider arguments that are unsupported by convincing argument or sufficient citation to legal authority). Additionally, we note that appellant does not explain how it was prejudiced by admission of the testimony. Accordingly, we hold that the trial court did not abuse its discretion when it allowed Mr. Langster and Mr. Smith to testify.

For the reasons we have stated, the trial court is affirmed.

IMBER, J., not participating.

       We note that this letter was written by Joe Hoelzeman. However, the letter had Bill Green’s name signed at the bottom. Mr. Green testified that he did not actually review or sign the letter.

       We note that Columbia Insurance Group, Inc. is not a party to this appeal.


author: P lER CURIAM.

text:
    Joe Edwin CLEM v. STATE of Arkansas
    CR 01-1436
    68 S.W.3d 289
    Supreme Court of Arkansas
    Opinion delivered January 17, 2002

      Jon A. Williams and Val Price, for appellant.
    No response.
   P lER CURIAM.

Appellant Joe Edwin Clem, by and through his attorneys, has filed a motion for rule on clerk. His attorneys, Jon A. Williams and Val Price, state in the motion that the record was tendered late due to a mistake on their part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: P ER CURIAM.

text:
    Lee Charles LEWIS v. STATE of Arkansas
    CR 01-1327
    64 S.W.3d 753
    Supreme Court of Arkansas
    Opinion delivered January 17, 2002

      John F. Gibson, Jr., for appellant.
    No response.
   P ER CURIAM.

Lee Charles Lewis, by his attorney, has filed a motion for rule on the clerk. The motion admits that the record was not timely filed and that it was no fault of the appellant’s counsel but rather was due to unforeseen casualty.

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

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

The present motion for rule on the clerk is denied.