author: DONALD L. Corbin, Justice.

text:
    Jimmy Lynn PYLE and John F. Tunnicliff v. STATE of Arkansas
    CR 99-85
    8 S.W.3d 491
    Supreme Court of Arkansas
    Opinion delivered January 13, 2000

      Louis Etoch, for appellant Jimmy Lynn Pyle.

      Chris Carter, for appellant John F. Tunnicliff.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   DONALD L. Corbin, Justice.

Appellants Jimmy Lynn Pyle and John F. Tunnicliff appeal the judgments of the Baxter County Circuit Court convicting each of them of two counts of possession of methamphetamine and one count of simultaneous possession of drugs and firearms. In addition, Pyle appeals his convictions of one count of possession of marijuana and one count of possession of drug paraphernalia. Tunnicliff appeals his conviction of being a felon in possession of a firearm. Pyle was sentenced to a term of life imprisonment. Tunnicliff was sentenced to a term of fifty years’ imprisonment. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1 —2(a) (2). Each Appellant raises several points for reversal. We find no error and affirm.

Facts

Tunnicliff and Pyle were arrested following a prearranged reverse-buy sting operation in Mountain Home when an undercover police agent sold them methamphetamine. The police had been working with a confidential informant who was an acquaintance of Tunnicliff’s and knew that he wanted to purchase methamphetamine. The informant had agreed to work with law enforcement officials in exchange for the dismissal of charges pending against him, namely driving while intoxicated (DWI) and possession of marijuana.

The informant contacted Tunnicliff and offered to arrange a sale of three ounces of crystal methamphetamine at a price of $1,300 per ounce. Tunnicliff agreed to the purchase, and a meeting was arranged for the following day at a nearby storage facility. Tunnicliff, however, failed to appear at that meeting. The informant again contacted Tunnicliff, who explained that he was unable to find transportation to the meeting. Another meeting was scheduled, and Tunnicliff told the informant he would arrive at the meeting in a white car. The following day, Tunnicliff arrived at the storage facility in a white Lincoln driven by Pyle. An undercover officer was present along with the informant. The officer passed the drugs to Tunnicliff and Pyle. Both men inspected the quality of the drugs by sniffing them; Tunnicliff even went so far as to taste them. Tunnicliff and Pyle purchased all three ounces of the methamphetamine, and subsequently, both men were arrested.

Police conducted an inventory search of the car, which was registered to Pyle. A black bag was found in the front seat of the vehicle. It contained a checkbook belonging to Pyle, a marijuana cigarette, and a semi-automatic handgun. Police also found a small gray case in a pouch behind the driver’s seat that contained drug paraphernalia and marijuana. Additional crystal methamphetamine was also found in the car. Officers testified that at the time of his arrest, Pyle had a white powdery substance on his moustache. A video tape was also introduced at trial that depicted Pyle having problems with his nose while he was being held after his arrest. Furthermore, a search of both suspects revealed that each man was carrying large amounts of cash on his person.

Following his arrest, Tunnicliff completed and signed a sworn affidavit stating the Pyle did not have any knowledge of the pending drug sale. Tunnicliff, who is disabled, stated that he told Pyle he needed a ride to the storage facility to look at some furniture he was thinking of buying. Tunnicliff also claimed that the handgun belonged to the informant and that Tunnicliff had concealed it on his person until the time of the drug transaction. At trial, Tunnicliff, who asserted the affirmative defense of entrapment, testified that the facts contained in his affidavit were true. Pyle, who relied on the defense of lack of evidence, did not testify at trial. Following their convictions, each Appellant filed a motion for a new trial. Both motions were denied, and this appeal followed.

Appellants’ Joint Issues on Appeal

Appellants assert that there are overlapping issues presented in this matter. In his brief, Pyle attempts to incorporate three of Tunnicliff’s points for reversal: (1) the reverse-buy operation amounted to entrapment as a matter of law; (2) it was illegal for law enforcement officers to use real drugs during the sting operation; and (3) the confidential informant should not have been allowed to testify. During the trial of this matter, however, Pyle never attempted to argue any of these points. He never asserted the affirmative defense of entrapment or sought a jury instruction on that defense. Pyle also failed to object to the law enforcement officers’ use of real drugs during the reverse buy. Our law is well settled that we will not consider an argument raised for the first time on appeal. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). A party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Ayers, 334 Ark. 258, 975 S.W.2d 88; Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997). Pyle’s failure to raise the arguments relating to the reverse buy and the use of real drugs in that buy precludes our review of those points as applicable to his appeal.

As to the issue whether the confidential informant should have been allowed to testify, Tunnicliff and Pyle argue that it was illegal for the State to drop the DWI charge pending against the informant in exchange for his cooperation because Arkansas law provides that no such charges shall be reduced. See Ark. Code Ann. § 5-65-107 (Repl. 1977). It is their contention that such action is tantamount to bribery, and thus, the informant should not have been allowed to testify. Their argument fails because neither Tunnicliff nor Pyle ever objected to the informant testifying. In fact, they made no objections to any of the statements he made while on the witness stand. Only Tunnicliff raised the issue at all, but not until the close of the State’s case.

The law is well settled that to preserve an issue for appeal a defendant must object at the first opportunity. Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999); Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996); Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985). In Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998), this court stated that a party who does not object to the introduction of evidence at the first opportunity waives such an argument on appeal. The policy reason behind this rule is that a trial court should be given an opportunity to correct any error early in the trial, perhaps before any prejudice occurs. Id. Thus, their failure to object to the informant’s testimony at the first opportunity bars them from arguing this point on appeal. We turn next to those issues raised solely by Tunnicliff.

Tunnicliff’s Issues on Appeal

Tunnicliff contends that the trial court erred in finding that the use of a reverse buy is permissible under Arkansas law. He argues that nothing in Arkansas law permits law enforcement officials to participate in reverse buys. Tunnicliff argues further that reverse buys violate Ark. Code Ann. § 5-64-401 (a) (Repl. 1997), which prohibits the sale of controlled substances by any persons, and that there is no statutory exception for police officers to sell controlled substances. Tunnicliff urges this court to adopt the holdings of a minority of jurisdictions that have held that reverse buys constitute entrapment as a matter of law.

While this is an issue of first impression in this jurisdiction, the Eighth Circuit Court of Appeals has recently held that participation by government agents or informants in the illegal manufacture or distribution of drugs is a recognized means for the government to obtain convictions in drug-related offenses. United States v. Berg, 178 F.3d 976 (8th Cir. 1999). The Berg decision does discuss the possibility of the government’s conduct being so outrageous as to warrant reversal of a conviction. The facts of this case, however, do not give rise to a finding of outrageous government conduct. Indeed, Tunnicliff presents no convincing argument as to why this court should hold that reverse buys constitute entrapment as a matter of law. This court has consistently refused to consider an argument where it is not apparent without further research that the argument is well taken. See, e.g., McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999); Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997). Accordingly, we will not consider Tunnicliff's argument regarding reverse buys on appeal.

Related to the legality of the use of a reverse buy is the issue whether the police are allowed to use real drugs during a reverse buy. Tunnicliff argues that the Uniform Controlled Substance Act, codified at Ark. Code Ann. §§ 5-64-101 to -608 (Repl. 1997), does not provide an exception for any person to engage in the sale of drugs, including law enforcement officials. This argument ignores, however, section 5-64-506, which specifically exempts state officers from liability under the Act when engaged in the performance of their duties. In adopting this exception, the legislature clearly recognized the possible need of law enforcement officials to utilize real drugs during the course of undercover sting operations. The very facts of this case indicate the necessity of using real drugs in undercover operations. According to the testimony of eyewitnesses, both Tunnicliff and Pyle sampled the substance to be sold before handing over the cash. If a counterfeit substance had been used, law enforcement officials may well have been placed in danger, a danger made even more real by the fact that a firearm was found in Pyle’s car.

Tunnicliff also argues that the only reason real drugs were used was to enhance any penalty received as a result of a conviction. Again, Tunnicliff fails to support this argument with any convincing legal authority. Absent any convincing argument or authority, we will not consider this issue on appeal. McGehee, 338 Ark. 152, 992 S.W.2d 110; Miller, 328 Ark. 121, 942 S.W.2d 825.

Next, Tunnicliff argues that it was error for the trial court to refuse to dismiss the firearm charges against him. At the close of the prosecution’s case, Tunnicliff moved to dismiss the firearm charges on the ground that there was not substantial evidence to link him to the gun. As the State correctly points out, however, Tunnicliff failed to renew this motion at the conclusion of the case. As we stated in King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999), our procedural rules require that a motion for a directed verdict be brought at the conclusion of the prosecution’s evidence and again at the close of the case. See also Ark. R. Crim. P. 33.1. Tunnicliff's failure to renew his motion at the close of his case precludes our review of this point.

Finally, Tunnicliff argues that the trial court erred in running the sentences for the firearm convictions consecutively instead of concurrently. It is well established that the question whether sentences should run consecutively or concurrently lies solely within the province of the trial court. Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996); Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). The appellant assumes a heavy burden of demonstrating that the trial judge failed to give due consideration to the exercise of his discretion in the matter of the consecutive sentences. Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997); Brown, 326 Ark. 56, 931 S.W.2d 80. The only reason Tunnicliff sets forth in support of his contention that the trial court abused its discretion is that the court gave no reason for running the drug sentences concurrently while running the firearm sentences consecutively. The trial court, however, is not required to explain its reason for running sentences consecutively. See Smallwood, 326 Ark. 813, 935 S.W.2d 530. Tunnicliff has thus failed to bear his burden of proof with regard to this point on appeal. We, therefore, cannot say that the trial court abused its discretion in running the sentences consecutively. Having concluded that there is no merit to Tunnicliff’s arguments, we address those points raised solely by Pyle.

Pyle’s Issues on Appeal

Pyle’s first argument is that the trial court erred in refusing to dismiss the charges against him for lack of evidence. The record reflects that Pyle moved for a directed verdict at the close of the State’s case, arguing that there was not substantial evidence to link him to any of the charges. Specifically, defense counsel stated:

Your Honor, I’d move for a directed verdict on all charges on grounds of insufficient evidence. The State has presented numerous theories, none of which are supported by direct evidence linked to my client. I feel that the evidence is insufficient as a matter of law and move for a directed verdict on all charges.

Pyle’s motion was insufficient to preserve this issue for appellate review. Ark. R. Crim. P. 33.1 provides in relevant part:

A motion for a directed verdict based on insufficiency of the evidence must specify the respect in which the evidence is deficient; a motion merely stating that the evidence is insufficient for conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. [Emphasis added.]

This court has stated that a general motion for a directed verdict does not preserve for appeal issues regarding sufficiency of the evidence. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). Accordingly, we will not address Pyle’s argument pertaining to the sufficiency of the evidence.

Pyle’s remaining argument on appeal is that the trial court erred in refusing to grant his motion for a new trial because of ineffective assistance of counsel. Ordinarily, such claims are raised under Ark. R. Crim. P. 37. This court, however, has addressed claims of ineffectiveness on direct appeal when the issues were previously considered by the trial court, as on a motion for a new trial, and the facts surrounding the claim were fully developed. See Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998); Smith v. State, 328 Ark. 249, 943 S.W.2d 234 (1997). To prevail on any claim of ineffective assistance of counsel, a petitioner must show first that counsel’s performance was deficient. Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999); Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). In order to establish such deficient performance, it must be shown that counsel was not functioning as the “ ‘counsel’ guaranteed the petitioner by the Sixth Amendment.” Id. at 447, 954 S.W.2d at 257. Petitioner must also show that the deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. We will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999); State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998).

Pyle’s first allegation involves a purported failure by counsel to enforce a plea bargain. The record reflects that several discussions took place between counsel for Pyle and the deputy prosecuting attorney regarding a possible plea agreement. The deputy prosecuting attorney testified that Pyle never accepted any of the offers he made. Pyle alleges that his attorney communicated to him, on the morning of the trial, a plea bargain of ten years’ imprisonment, which he accepted. Pyle further alleges that the State then conditioned his plea agreement on Tunnicliff also accepting a plea agreement. The deputy prosecuting attorney denied ever placing such a condition on any plea agreement. Tunnicliff’s trial counsel testified that the prosecuting attorney had made such a conditional offer, but that his client refused to plead guilty.

This court has held that until a trial court accepts a plea bargain, it has no binding effect. See Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993); Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988). Nothing in the record indicates that Pyle ever attempted to alert the trial court to the fact that he had accepted a plea. He sat through the entire guilt and sentencing phases without any indication that a plea agreement had been accepted. The trial court found that a formal plea never existed, although there had been communications about a possible plea agreement. Based on the foregoing, we cannot say that the trial court erred in finding that no plea agreement existed. We recognize that the testimony regarding the purported plea agreement was in conflict, but conflicts in testimony are for the trial court to resolve, as it is in a superior position to determine the credibility of witnesses. McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996). We, therefore, cannot say that Pyle’s counsel was ineffective for not enforcing a plea agreement that never existed.

Pyle’s second argument on this point is based on his attorney’s failure to have his trial severed from Tunnicliff’s. Trial counsel testified that he did not seek to sever Pyle’s charges because there was an implied joint-defense agreement with Tunnicliff’s counsel that Tunnicliff would stand by his affidavit and testify accordingly. The trial court pointed out that it seemed advantageous to try these cases together, considering that Pyle was relying on the defense of innocence, while Tunnicliff accepted all the blame. We agree with the trial court’s finding that Appellants’ defenses were never antagonistic and, thus, did not warrant severance. This court has repeatedly held that a lawyer’s choice of trial strategy, even if it proved ineffective, is not a basis for meeting the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998); Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995). The decision whether to seek severance is one of strategy. Coston v. State, 284 Ark. 144, 680 S.W.2d 107 (1984). Accordingly, Pyle’s argument on this point is without merit.

Next, Pyle argues that his attorney was ineffective for failing to seek an entrapment instruction. There is no merit to this point. Our law is well established that, if a defendant denies committing an offense, he cannot assert that he was entrapped into committing the offense. Weaver, 339 Ark. 97, 3 S.W.3d 323; Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996); Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992). In Vickers, 320 Ark. 437, 898 S.W.2d 26, this court held that an attorney cannot be declared ineffective for failing to present a defense theory entirely inconsistent with the defendant’s denial of committing the crime. Pyle’s entire defense centered on the fact that he was innocent, with Tunnicliff accepting all blame. He cannot now claim that his attorney was ineffective for failing to seek an entrapment instruction, which was inconsistent with his defense.

Pyle’s fourth claim is that his counsel was ineffective for failing to object or seek an admonition when Tunnicliff stated that he had testified on Pyle’s behalf at a parole hearing. This argument, however, is not properly preserved for appellate review. Pyle never argued the impropriety of this statement at trial, in his motion for a new trial, or during the posttrial hearing. This court has refused to consider such a claim unless the surrounding facts and circumstances were fully developed either during the trial or during other hearings conducted by the trial court. Walker v. State, 330 Ark. 652, 955 S.W.2d 905 (1997). Because Pyle failed to raise this claim below, we will not consider it.

Finally, Pyle claims his counsel was ineffective for failing to call any witnesses during the sentencing phase. Pyle argues that his counsel should have at least called his wife to testify during the sentencing phase, and that he was prejudiced by the lack of any mitigating evidence presented during the sentencing phase. Again, decisions regarding witness testimony are matters of trial strategy. See Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). As previously pointed out, a lawyer’s choice of trial strategy, even one that proved ineffective, is not a basis for meeting the Strickland test. Slocum, 332 Ark. 207, 964 S.W.2d 388. Additionally, Pyle fails to establish what his wife or any other witness would have testified to, and he fails to show how their testimony would have changed the outcome of his case. When a petitioner fails to show what the omitted testimony was and how it could have changed the outcome, we will not grant postconviction relief for ineffective assistance of counsel. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). For this reason, Pyle’s argument on this point fails.

Rule 4-3 (h) Review

Because Pyle received a life sentence, his record has been reviewed for prejudicial error in compliance with Ark. Sup. Ct. R. 4-3 (h), and no reversible errors were found.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Dick BARCLAY, Director, Arkansas Department of Finance and Administration v. FARM CREDIT SERVICES, et al.

    99-1432
    8 S.W.3d 517
    Supreme Court of Arkansas
    Opinion delivered January 13, 2000

      Beth B. Carson, Chief Counsel, and Martha Hunt, for petitioner.

      Nichols & Campbell, by: Mark W. Nichols, for respondents.

       The certiorari petition filed in this court refers to “Farm Credit Services,” but the mandamus petition in chancery court and the case pending before the United States Supreme Court refer to “Farm Credit Services of Central Arkansas.” We treat them as the same party.

   Robert L. Brown, Justice.

The matter before this court is a petition for writ of certiorari filed by Dick Barclay, Director, Arkansas Department of Finance and Administration (DFA). The respondents are Farm Credit Services of Central Arkansas, PCA; Farm Credit Services of Western Arkansas, PCA; Eastern Arkansas Production Credit Association; and Delta Production Credit Associations (the PCAs). The issue raised involves the propriety of a writ of mandamus issued by the chancery court to restrain counsel for DFA from representing the State of Arkansas before the United States Supreme Court. We dissolve the writ of mandamus due to lack of jurisdiction in the chancery court to issue the same.

On July 1, 1999, this court affirmed the summary judgment entered by the Pulaski County Chancery Court in favor of the PCAs because the PCAs were entitled to immunity from the state sales tax and income tax due to their status as “federal instrumentalities.” See State v. Farm Credit Services of Central Arkansas, 338 Ark. 322, 994 S.W.2d 453 (1999). Throughout that litigation, the State was represented by Martha Hunt, legal counsel for DFA. On July 16, 1999, the State, which continued to be represented by Martha Hunt, moved this court to stay its mandate pending the resolution of its petition for writ of certiorari in the United States Supreme Court. This court stayed its mandate on September 9, 1999, over the objection of the PCAs.

On November 23, 1999, the PCAs filed a petition for writ of mandamus. In that petition, they prayed that the Pulaski County Chancery Court order DFA to refrain from acting in violation of Ark. Code Ann. § 25-16-703(a) (Repl. 1996). Section 25-16-703(a) reads that the Attorney General shall represent the State of Arkansas before the United States Supreme Court. The PCAs prayed that the DFA’s legal counsel be stopped from filing the petition for writ of certiorari in that court or, if it already had been filed, be directed to withdraw it. On November 24, 1999, the chancery court orally granted the PCAs’ petition for mandamus. The matter was then transferred to another division of the chancery court due to the recusal of the first chancellor. A motion for reconsideration was filed by DFA on December 3, 1999. Attached to the motion was correspondence from the Attorney General in which he declined to act as counsel and a letter from Governor Huckabee appointing Martha Hunt as counsel. On December 8, 1999, the new chancellor denied DFA’s motion for reconsideration and issued the writ of mandamus.

Also, on December 8, 1999, DFA filed its petition for certiorari in this court as well as a motion for expedited consideration and an application for temporary relief. In the application for temporary relief, DFA requested that this court stay the mandamus order so that DFA’s legal counsel could proceed with the petition before the United States Supreme Court. The deadline for docketing that petition was December 13, 1999. By per curiam order handed down on December 10, 1999, we temporarily stayed the chancery court’s writ of mandamus in order to permit the certiorari petition to be docketed in the United States Supreme Court, and we ordered the parties to brief (1) the merits of DFA’s petition in this court, and (2) the basis for the chancery court’s jurisdiction to issue a writ of mandamus. On December 13, 1999, DFA’s petition for writ of certiorari was docketed in the United States Supreme Court.

We turn first to the matter of the chancery court’s jurisdiction to issue a writ of mandamus in this case to prevent DFA’s counsel from representing the State. This court is obligated to raise issues of subject-matter jurisdiction on its own, and we do so in this instance. See, e.g., Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998).

When this court asked for briefs on the question of the chancery court’s jurisdiction, the parties briefed the issue of whether the chancery court had in fact issued a writ of mandamus, or whether it, in reality, had issued an injunction to prevent a public official from committing an ultra vires act. See Villines v. Lee, 321 Ark. 405, 902 S.W.2d 233 (1995). We do not address that issue, because we conclude that the chancery court had no jurisdiction to take the action it did pertaining to State v. Farm Credit Services of Central Arkansas, supra, on December 8, 1999.

It is axiomatic that this court takes jurisdiction of a matter once the record on appeal is filed with the Clerk of the Supreme Court. See, e.g., Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998); In re Morgan, 310 Ark. 220, 833 S.W.2d 776 (1992). This court loses jurisdiction to the trial court once the mandate is issued from this court to the trial court. See First Pyramid Life Ins. Co. of Am. v. Stoltz, 312 Ark. 516, 849 S.W.2d 525 (1993); Brimson v. Brimson, 228 Ark. 562, 309 S.W.2d 29 (1958). A mandate is the official notice of the action taken by the appellate court. 5 Am. Jur. 2d, Appellate Review § 777 (1995). The mandate is directed to the trial court, and it instructs that court to recognize, obey, and execute the appellate court’s decision. Id. In the instant case, the mandate had been stayed by this court, which had the effect of preventing reinvestment of jurisdiction in the chancery court. Accordingly, the chancery court had no jurisdiction to act in State v. Farm Credit Services of Central Arkansas, supra.

The remaining question then is whether the PCAs could file a new mandamus action subsequent to the mandate’s stay to prevent counsel from representing the State in its petition for certiorari before the United States Supreme Court in State v. Farm Credit Services of Central Arkansas, supra. Stated differently, was the new mandamus action truly a separate case from the primary litigation, or was it a procedural maneuver to prevent the certiorari petition from being heard by the United States Supreme Court?

We conclude that the mandamus action and resulting writ were so intertwined with the primary litigation as to be part and parcel of it. The stated prayer for relief in the mandamus petition was to prevent DFA’s counsel from representing the State in the case before the United States Supreme Court. Indeed, at the time DFA petitioned this court for a writ of certiorari on December 8, 1999, the Attorney General had already declined the invitation to represent the State and Governor Huckabee had appointed Martha Hunt as counsel to represent the State before the United States Supreme Court, under the authority of Ark. Code Ann. § 25-16-702(c) (Repl. 1996). Thus, the effect of the chancery court’s writ of mandamus was to thwart the State’s certiorari petition from being docketed in the Supreme Court in State v. Farm Credit Services of Central Arkansas, supra.

Moreover, the appropriate avenue for relief to resolve the legal counsel issue would have been a petition filed before this court at the time the mandate was stayed. The PCAs were aware that the mandate was stayed on September 9, 1999, and would continue to be stayed pending resolution of the certiorari petition before the United States Supreme Court. Yet, the PCAs failed to petition this court for relief under § 25-16-703(a), when it was clear that this court retained jurisdiction over the matter and that the chancery court had no authority to act. Instead, the PCAs waited to file the mandamus petition until almost three months after the mandate was stayed. We cannot countenance a mandamus action brought under these circumstances to derail appellate review of a certiorari petition filed in the United States Supreme Court.

We hold that the chancery court lacked subject-matter jurisdiction to issue the writ of mandamus in this matter.

Writ dissolved.


author: Annabelle CLINTON IMBER, Justice.

text:
    Albert BESHEARS v. STATE of Arkansas
    CR 98-97
    8 S.W.3d 32
    Supreme Court of Arkansas
    Opinion delivered January 13, 2000

      Randel Miller, P.A., for appellant.

      Vada Berger, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   Annabelle CLINTON IMBER, Justice.

This is a second appeal from the denial of appellant Albert Beshears’s petition for postconviction relief pursuant to Ark. R. Crim. P. 37. Beshears v. State, 329 Ark. 469, 947 S.W.2d 789 (1997) (Beshears II). Mr. Beshears had entered a conditional plea of guilty to possession of a controlled substance with intent to deliver. Ark. R. Crim. P. 24.3(b). He appealed the denial of his motion to suppress evidence seized from his premises pursuant to a search warrant. We affirmed the trial court’s denial of the motion to suppress. Beshears v. State, 320 Ark. 573, 898 S.W.2d 49 (1995). Mr. Beshears subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.

In the petition, Beshears alleged that his counsel was ineffective because he misled Mr. Beshears about the existence of an offer of a negotiated plea; because he failed to file a motion asking the trial judge to recuse; and because he represented a conflicting interest that adversely affected the defense. Mr. Beshears also alleged that his counsel was ineffective for participating, without his client’s permission, in the division of monies seized by forfeiture. The court held a hearing and denied Mr. Beshears’s request for postconviction relief.

We summarized Mr. Beshears’s contentions in the first appeal:

On appeal, Beshears contends that the Trial Court erred in denying relief on his claim that his counsel was ineffective because he represented a conflicting interest at the same time he represented Beshears. Specifically, he argues that his attorney also represented his brother, Eddie, on an unrelated charge; and that during that representation, Eddie made a statement that exculpated Beshears. Beshears contends that his attorney’s choice not to use this statement on his client’s behalf made his guilty plea involuntary and unintelligent. Beshears also makes a two-part argument concerning the recusal of the trial judge. He contends that the trial judge erred in denying his motion to recuse from the postconviction proceeding; and that it was error to deny relief on his claim that his counsel was ineffective for failing to file a motion to recuse prior to Beshears’s conviction.

Beshears v. State, 329 Ark. at 471, 947 S.W.2d at 790. Although we concluded that the trial court did not abuse its discretion in denying the motion to recuse from the postconviction proceeding, we did not reach the merits of Mr. Beshears’s other arguments concerning postconviction relief because the trial court did not enter any written findings of fact and conclusions of law as required by Ark. R. Crim. P. 37.3(c). Id. We reversed and remanded the case to the trial court for written findings of fact and conclusions of law on Mr. Beshears’s claims for postconviction relief. Id.

On remand, the trial court entered an order that contained written findings of fact and conclusions of law. Mr. Beshears now appeals that order and argues, as he did in Beshears II, that he was denied the effective assistance of counsel because his attorney labored under a conflict of interest, and that the trial court clearly erred in ruling otherwise. In response, the State argues that the conflict-of-interest issue is not preserved for our review because the trial court did not address that particular issue in its order on remand.

It is the appellant’s obligation to obtain a ruling at trial in order to properly preserve an issue for review. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). We stated in Oliver that when the trial court does not specifically rule on an issue when it denies Rule 37 relief, and when we cannot tell from the court’s order whether the issue was considered or decided, the issue is not preserved for appellate review and we will not address the point. Id.; see also Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998).

Mr. Beshears candidly admits in his reply brief that the trial court’s written findings do not specifically include a ruling on the conflict-of-interest issue. Therefore, that issue is not preserved for appellate review. Mr. Beshears, however, contends that the trial court’s failure to address the conflict-of-interest issue on remand is grounds for this court “to grant a new trial or dismiss the original criminal action.” We disagree.

Rule 37.3(c) of the Arkansas Rules of Criminal Procedure provides that, following a hearing on the petitioner’s request for postconviction relief, the trial court “shall determine the issues and make written findings of fact and conclusions of law with respect thereto.” The trial court’s original order denying postconviction relief did not contain written findings of fact or conclusions of law. In that circumstance, we will reverse and remand the case for written findings of fact and conclusions of law on the petitioner’s claim for postconviction relief. Beshears II, supra. In contrast, the trial court’s order on remand did contain written findings of fact and conclusions on several issues raised by Mr. Beshears in his petition for postconviction relief. In the later circumstance, we have held that it is the appellant’s obligation to obtain a ruling on any omitted issues in order to preserve those issues for appeal. Matthews v. State, supra; Oliver v. State, supra.

In Matthews, supra, we specifically held that a request that the trial court modify its order to include an omitted issue is not a request for a rehearing that is prohibited by Rule 37.2(d). Thus, after the trial court entered its order on remand, Mr. Beshears could have asked the trial court to modify its order to include a ruling on the omitted conflict-of-interest issue. We note that he did in fact file a petition for reconsideration. That petition, however, did not request a ruling on the omitted issue, but instead requested that the trial court “reverse itself,” which is prohibited by Rule 37.2(d). Matthews v. State, supra. Mr. Beshears failed to obtain a ruling on the conflict-of-interest issue. Consequently, we are precluded from addressing that issue on appeal.

Affirmed.


author: LAVENSKI R. SMITH, Justice.

text:
    ROSS EXPLORATIONS, INC. v. FREEDOM ENERGY, INC.
    98-1415
    8 S.W.3d 511
    Supreme Court of Arkansas
    Opinion delivered January 13, 2000
    [Petition for rehearing denied February 17, 2000.]

      Pryor, Barry, Smith, Karher & Alford, PLC, by: Gregory G. Smith, for appellant.

      Daily & Woods, P.L.L.C., by: Thomas A. Daily and Leigh M. Chiles, for appellee.
   LAVENSKI R. SMITH, Justice.

Appellant, Ross Explorations, Inc. (“Ross”), seeks reversal of a declaratory judgment obtained by Appellee, Freedom Energy, Inc. (“Freedom”). Following a hearing, the Sebastian County Chancery Court declared that Freedom possessed the lease rights to natural gas produced from the Dill “A” #1 gas well. The trial court found that the Ross leases expired due to the well failing to produce gas in commercial paying quantities. The court further found that later leases which Freedom acquired from the lessors entitled Freedom to the gas subsequently produced after the termination. Ross alleges that the trial court committed three errors. First, Ross contends that the trial court erred in finding that the well’s lifting costs exceeded its revenue. Second, Ross contends that the trial court erred in its choice of the time period for determining if production was adequate. Third, Ross, contends that the trial court erred in failing to make a finding with respect to the “reasonably prudent operator” rule. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (b)(1). We find no reversible error and affirm.

Standard of Review

We review chancery cases de novo on the record, but we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). 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. Saforo & Assocs., Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999);RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). Crawford & Lewis v. Boatman’s Trust Company, 338 Ark. 679, 1 S.W.3d 417 (1999).

Facts

In 1985, TXO Production Company (“TXO”) drilled a gas well in Sebastian County known as the Dill “A” #1 Well. TXO did so pursuant to leases it had acquired from the land owners in previous years. TXO shared lessee rights with Tiros Exploration Company (“Tiros”) and Ross Explorations, Inc. TXO controlled 98.5% of the lessee rights while Tiros and Ross controlled the remaining 1.5% of the rights. The habendum clauses of each of the leases granted lease rights for a fixed term of years as well as for some indefinite additional period if the lessee maintained production. The leases contained a number of specific variations in their habendum clauses. However, the parties tried the case, and the trial court ruled on the apparently stipulated premise that each lease required that the lessee produce gas in “commercial paying quantities” in order to preserve lease rights beyond the term of years stated in the lease. The parties did stipulate that the term of years in all the leases had expired. At some point, Sonat Exploration Company (“Sonat”) became successor to TXO’s lease rights and operated the well until the spring of 1996. In the spring of 1996, according to Sonat internal company memoranda introduced at trial by Freedom, Sonat intended to cease all production from the well and abandon it. Sonat engineer B.M. Hickman recommended the well be plugged and abandoned due to low production and the well being “uneconomic in its current completion.” Sonat records indicate that the well produced at a rate of less than 10 MCF/D at that time. Sonat ceased all production from the well on April 30, 1996, when it “shut-in” the well. Sonat estimated it would cost $12,500 to plug and abandon the well. Also on April 30, Appellant Ross offered to purchase Sonat’s interest in the Dill “A” #1 well for $1,000.00 in lieu of plugging the well. Sonat did agree at some point to sell its interest to Ross; however, Sonat did not assign its rights to Ross until August 16, 1996. Hence, no production occurred at the subject well from April 30, 1996, until September 1996 when Ross reopened the well. In May 1996, Freedom obtained “Options to Purchase Oil and Gas Leases” from the lessors of the Dill “A” #1 Well. These contracts entitled Freedom to purchase lease rights previously held by Sonat should the Sonat leases terminate for any reason.

The central conflict of this case is who controls the lease rights to the Dill “A” #1 well. Freedom alleged and proved to the satisfaction of the trial court that Sonat’s lease interests terminated at some point prior to Sonat’s assignment to Ross. Ross, on the other hand, contends that Sonat’s lease rights remained in full force and effect when it acquired them via the August 16, 1996, assignment. The parties agree that the principal issue that resolves the dispute is whether or not the subject well ever ceased to produce in “commercial paying quantities” before Ross acquired its assignment from Sonat.

In reaching its conclusion that the subject leases had indeed expired, the trial court made forty specific findings of fact. The court relied upon documentary evidence from Sonat’s files, including various company records, internal memoranda, and accounting data. The court also based its findings upon expert testimony offered by the parties, and trial exhibits produced by the parties. In particular, the trial court placed substantial weight upon Sonat engineer B.M. Hickman’s memoranda and also upon the memorandum of Sonat geophysicist Quentin Danser. Danser’s handwritten note indicated his opinion in March 1996 that the leases had probably already lapsed due to low production. The trial court evaluated the extensive accounting testimony put forth principally by Freedom and cross-examined by Ross. The court found Freedom’s evidence based upon Sonat’s records that the well’s production had steadily declined over a course of years to be credible. More specifically, the trial court found that for a period of twenty-four months prior to the April 30, 1996 shut-in that the well operated at a net loss. The parties provided the court with four charts comparing revenue of the well to expenses of operating the well. In its decision, the trial court used Appellant Ross’s chart, which the court deemed most favorable to Ross. During the relevant period, the trial court found that there were eight months of profit totaling $1,283.00, and sixteen months of loss totaling $1,890.00. Combining these two figures left a loss of $607.00 over the twenty-four-month period. The trial court concluded that Sonat’s rights under its lease terminated prior to transfer to Ross and that Freedom’s new leases gave Freedom rights to the gas.

On appeal, Ross asserts that the chancellor erred (1) by finding that costs exceeded revenue, (2) by using a twenty-four-month period, and (3) by failing to make a ruling on the application of the “reasonably prudent operator rule.”

Production in Paying Quantities

At the trial of this matter, Freedom bore the burden of showing that the earlier leases terminated due to lack of production. Perry v. Nicor Exploration, 293 Ark. 417, 738 S.W. 2d 414 (1987). In other words, Freedom had to show the well ceased to produce in commercial paying quantities. Ross asserts Freedom failed to do this because the figures introduced into evidence by Freedom impermissibly included overhead as a cost, and therefore when subtracted from revenues produced by the well failed to show the actual production of the well under the habendum clause. Ross asserts the trial court erred in adding in costs that were not lifting costs, although they might be direct costs of operation.

In Turner v. Reynolds Metal, Co., 290 Ark. 481, 721 S.W.2d 626 (1986), we considered whether a gas lease should be canceled due to “failure to produce in paying quantities.” Turner, supra, at 482. We stated, “A provision in a habendum clause of an oil and gas lease requiring production, as in this lease, means production in paying quantities.” Turner, supra, at 483. In McLeon v. Wells, 207 Ark. 303, 180 S.W.2d 325 (1944), we held the phrase, “and as long thereafter as oil or gas, or either of them, is produced from said lands by lessee,” meant “production in commercial quantities....” McLeon, supra, at 305. Commercial or paying quantities, we have said, is determined by what is profitable to the lessee. Turner, supra, at 483.

Ross, based upon dicta contained in Perry, asserts this court has adopted a “lifting costs” test. The sentence Ross relies on states, “Cross-examination, however, revealed that he did not know if some of the expenses used in his calculations were directly related to lifting.” Perry, supra, at 421. Ross also cites Mason v. Ladd Petroleum Corp., 630 P.2d 1283 (Okla. 1981), as support, wherein the Oklahoma Supreme Court stated, “Only those expenses which are directly related to lifting or producing operations can be offset against production proceeds to determine whether a well is a producer.”

We have not expressly adopted this test nor have we explicitly decided what is meant by costs directly related to lifting. Other jurisdictions have dealt with this question. The Oklahoma Supreme Court in Stewart v. Amerada Hess Corp, 604 P.2d 854 (1979), defined “lifting expenses” as “Expenses necessary to lift the oil from the ground.” The Oklahoma Supreme Court also stated, “The term ‘lifting costs’ relates to a portion of the cost of producing oil and gas exclusive of drilling and equipping costs — the term defies a more precise definition.” Hinniger v. Kaiser, 738 P.2d 137 (1987). The Supreme Court of Kansas seems to be in agreement that costs of drilling and equipping the well are excluded. Texaco, Inc. v. Fox, 228 Kan. 589, 618 P.2d 844 (1980). This is also true in Texas. See Evans v. Gulf Oil Corp., 840 S.W.2d 500 (1992). In Reese Enterprises, Inc. v. Lawson, 220 Kan. 300, 553 P.2d 885 (1976), the Kansas Supreme Court stated, “Expenses which are taken into account in determining ‘paying quantities,’ include current costs of operation in producing and marketing the oil or gas.”

The crucial issue, then, is whether the well, when appropriate expenses are deducted, turns a profit, however small. Costs of drilling and equipping the well are excluded, because they are not costs of operation of the well. In Kansas, marketing is a cost of operation, and apparently is often added in because without it there is no production. Reese Enterprises, Inc., supra. Depreciation has been included as a cost of operation by some courts, but the “better view” is to exclude it as associated with the equipping of the well. Williams & Meyers, Oil and Gas Law § 604.6(b). Overhead is excluded by some courts as a cost. We agree with the view that what ought to be considered are “direct expenses attributable to the operation of the lease.” Reese Enterprises, Inc., supra.

The trial court examined the accounting data put forth by the parties. He then relied upon the chart prepared by Ross using figures from Sonat’s joint-interest billing statements. According to Ross’s president, Tim Smith, the chart employed the cost figures furnished by Sonat less the following items that Ross contended should not be counted as direct operating costs: (1) administrative overhead; (2) “other”; (3) equipment rentals other than compressors; (4) environmental safety; (5) meals; (6) communication; (7) miscellaneous; (8) entertainment; and (9) allocated costs. The remaining costs included in Ross’s chart are: Pumping labor; field labor; auto/truck; road/location; chemical treating; taxes; salt water disposal; product/equipment services; well services; services for leased eqipment; other and indirect services; and materials and supplies. These expenses are in accord with those set out by the Kansas Supreme Court in Reese, supra. Based upon Ross’s figures, the trial court found that for the twenty-four-month period preceding April 30, 1996, the well was operated at a net loss. Consequently, it did not produce in commercial paying quantities and the leases terminated under their own terms.

Appellant has not shown that the trial court considered improper costs in deciding the well’s lack of profitability. Ross asserts the Joint Interest in Billing Statements and the Profit and Loss Statements do not provide information from which one can determine the “lifting” or “direct” costs of production. Ross asserts the categories listed on the statements did not provide information about what exactly was included. Ross also asserts that their Exhibit N-10 was misunderstood by the trial court as representing what Ross believed the lifting/direct costs to be, when it was actually only a statement created with the categories removed that were clearly inapplicable as overhead, but the remaining categories are still unreliable because without actual invoices, it is impossible to determine the accuracy of what was charged to the operation of the well.

The trial court found that “Sonat maintains a computerized accounting system. Each Sonat operated well is assigned a property number. Revenues and expenses are then coded with the property number of well to which they pertain as they are entered into the accounting system’s computer.” The trial court also noted that the accounting information is used to bill non-operating lease holders and to generate the profit and loss statements.

The evidence of costs came in by expert and lay testimony. The judge has broad discretion in admitting expert testimony. Scott v. State, 318 Ark. 747, 888 S.W.2d 628 (1994). And, as to credibility, “We have held many times that this Court will defer to the trial court’s evaluation of the credibility of the witnesses.” Saforo & Assoc. Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999)(quoting Crawford v. Dep’t of Human Services, 330 Ark. 152, 951 S.W.2d 310 (1997). The costs considered appear to be those reasonably associated with producing gas from the well. We hold, therefore, that the chancellor did not clearly err.

Period of Time in Calculation of Operating Costs

Ross asserts that the trial court used too short a period of time for determining profitability. Ross also argues that periods after assignment of the lease to Ross should have been considered. Other courts which have faced this issue clearly disfavor an inflexible period in all cases. Instead, the determinations depend upon the facts of the particular case and the specific reasons production waned or ended. The trial court used Ross’s Exhibit N-10, which covered the twenty-four months prior to Sonat’s shut-in of the well on April 30, 1996. Under the facts of the instant case, we hold that period of time to have been reasonable.

In Fisher v. Grace Petroleum, Inc., 830 P.2d 1380 (Okla. Ct. App. 1992), the Oklahoma Court of Appeals dealt with a habendum clause that provided “as long as gas is or can be produced.” In discussing the proper period for determining profitability, the Court stated, “The appropriate period for determining profitability is a time appropriate under all the facts and circumstances of each case.” The court then cited Kuntz, The Law of Oil and Gas, § 26.7 (1990), which states:

The better rule precludes the use of a rigid fixed term for determination of profitability and uses a reasonable time depending upon the circumstances of each case, taking into consideration sufficient time to reflect the current production status of the lease and thus to provide the information with which a prudent operator would take into account in whether to continue or abandon operation.

The Fisher court found a thirteen-month time period to be adequate.

It also cannot be ignored that Ross’s predecessor in interest voluntarily ceased all production on April 30, 1996, due to the well’s low production and it being “uneconomic.” Voluntary cessation is a factor that some courts consider in determining whether a lease has been terminated. Hunter v. Clarkson, 428 P.2d 210 (Okla. 1967). At the time Ross acquired the rights, if any, that Sonat had, the well was “shut-in” for lack of production. It had a tag on it that indicated temporary abandonment. A handwritten memo dated March 14, 1996, noted “looks like the leases are probably gone anyway, with only 10MCF/D production.” Under the facts presented here, we find no error in the trial court’s use of the twenty-four-month period immediately preceding the well’s shut-in by Sonat. Nor are we persuaded by appellant that the court should have considered production data for the well after Ross resumed production in September 1996. If the leases terminated at any time prior to that time, under their own terms subsequent production would be irrelevant.

Reasonably Prudent Operator Rule

Ross asserts that the trial court erred when it failed to rule on “whether a ‘reasonably prudent operator’ would have continued to operate the well, even assuming a loss in the two years prior to shut-in.” Failure to obtain a ruling from the trial court is a procedural bar to our consideration of the issue. We have held on many occasions that we will not address the merits of an argument where the appellant has failed to obtain a ruling from the trial court. Howard v. Northwest Arkansas Surgical Clinic P.A., 324 Ark. 375, 921 S.W.2d 596, (1996); Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675, 680 (1996); Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). It is well settled that this Court will not address an argument where the abstract does not show that it was made in the trial court, Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998), and ruled upon there. Sanders v. Bradley County Human Servs. Public Facility Bd., 330 Ark. 675, 956 S.W.2d 187 (1997); see also Skokos v. Skokos, 332 Ark. 520, 968 S.W.2d 26 (1998); Myrick v. Myrick, 339 Ark.l, 2 S.W.3d 60 (1999). Viewing the current landscape of oil and gas law, it may well be advisable and appropriate for this court to adopt the prudent-operator rule. However, we will only do so when the matter is properly before us. It is incumbent upon the appealing party to obtain a ruling on an issue in order to preserve it for our review. Fisher v. Valco Farms, 328 Ark. 741, 945 S.W.2d 369 (1997); Farm Bureau P.H. v. Fm. Bureau Mut. Ins. Co., 335 Ark. 285, 984 S.W.2d 6 (1998). Since there was no ruling below, we will not decide the matter here.

Affirmed.

       See also, 3 Williams & Meyers, Oil and Gas Law § 604.6(a) (1986) (stating that “the term ’paying quantities’ has generally been defined as such production as will enable the lessee to realize a profit from the sale of oil, gas or other minerals after the marketing expenses and the current cost of operation are deducted”).

        See also Texaco, Inc. v. Fox, 618 P.2d 844 (Kan. 1980).

       In the Reese case from Kansas, eighteen months was considered an appropriate time period given its facts but the court clearly believed the period could be more or less given other facts.


text:
    Kenneth Joel RUSHING v. STATE of Arkansas
    CR 98-1312
    8 S.W.3d 489
    Supreme Court of Arkansas
    Opinion delivered January 13, 2000

      Jim Pedigo, Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   LAVENSKI R. SMITH, Justice.

We recently affirmed Kenneth Joel Rushing’s conviction and life sentence for the first-degree murder of William Jack Allen. Rushing v. State, 338 Ark. 277, 992 S.W. 2d 789 (1999). Public defender Jim Pedigo of Miller County represented Rushing as trial counsel and subsequently as appellate counsel. Pedigo now motions this court for attorney’s fees under Ark. Sup. Ct. R. 6-6 for his work on Rushing’s criminal appeal. Pedigo contends that he is entitled to attorney’s fees under Ark. Sup. Ct. R. 6-6 (c) despite his employment as a full-time public defender. Pedigo argues that his public-defender salary only compensated him for his trial work, not his appellate work. Fie takes the position that no prohibition exists to prevent his petitioning this court for attorney’s fees for appellate work done for indigent clients during non-office hours. In response, the State argues that Rule 6-6(c) applies only to appointed counsel not otherwise paid, and that Ark. R. App. P. — Crim. 16 requires all counsel to represent defendants through their direct appeal unless relieved. We agree with the State and deny Pedigo’s motion for attorney’s fees.

Facts

Pedigo has been a salaried, full-time public defender since January 1, 1998. Pedigo states in his brief that he prepared Rushing’s appeal in forty-four hours during weekends and evenings. He indicates that he did so because regular office hours were inadequate due to the heavy caseload in the 8th Judicial District public defender’s office. He also asserts the Director of the Public Defenders Commission told him that he was to obtain compensation for appellate work from the appellate court. He provides no evidence of this comment. He does attach to his motion a letter from Didi Sailings, Executive Director of the Public Defender Commission, in which Sailings tells Pedigo that he is responsible for representing his client at all stages of proceedings. Sailings also told Pedigo that it was Commission policy that public defenders not seek compensation from the appellate courts. He asserts that the public-defender statutes provide only for compensation for work done at the trial level. Therefore, he contends he is entitled to payment under Rule 6-6(c) for work on Rushing’s appeal.

Statutory Provisions

The Constitution of the United States and the Arkansas Constitution require appointment of counsel for indigent defendants in criminal cases. Gideon v. Wainwright, 372 U.S. 335 (1963); State v. Post, 311 Ark. 510, 845 S.W.2d 487 (1993). Arkansas has accomplished this by appointment of private counsel compensated with public funds and through full- or part-time public defenders. Mears, County Judge v. Hall, 263 Ark. 827, 569 S.W. 91 (1978). The legislature created the State’s current public-defender system with Act 1193 of 1993. This Act, which is codified in Ark. Code Ann. §§ 16-87-201- — 16-87-216 (Supp. 1999), governs Pedigo’s employment. Public-defender salaries, including Pedigo’s, are set by the Arkansas Public Defender Commission. Ark. Code Ann. § 16-87-107 (Repl. 1987). Public defenders are prohibited from receiving “any funds, services or other thing of monetary value, directly, or indirectly, for the representation of an indigent person pursuant to court appointment, except the compensation provided by law.” Ark. Code Ann. § 16-87-214. The legislature in its enactment of the appropriation of funds for the Public Defender Commission expressly subjected the Commission to the Regular Salary Procedures and Restrictions Act. See Act 1379 of 1999, § 1; Ark. Code Ann. §§ 19-4-1601 — 1615. As applied to a state-salaried public defender, this Act, in essence, prohibits the public defender from receiving compensation from the State in an amount greater than that established by the General Assembly as the maximum annual salary for the employee.

Supreme Court Rules

Ark. Sup. Ct. R. 6-6(c) states in pertinent part: “All motions for attorney’s fees from attorneys appointed to represent indigent appellants in criminal cases shall contain....” Rule 6-6(c), by its terms, applies to attorneys “appointed to represent indigent appellants in criminal cases....” While it might appear that this could include salaried public defenders appointed to represent indigent appellants, we hold it does not. When considered with the relevant public-defender statutes, it is evident that the reference to appointed counsel in Rule 6-6 (c) is to attorneys not otherwise compensated for their representation. In the instant case, the Miller County Circuit Court appointed Pedigo to represent defendant Rushing. At the time of his appointment and at all times since, Pedigo received compensation from the State of Arkansas as a full-time public defender. Once Pedigo undertook representation of Rushing as trial counsel, he was obligated to continue that representation “throughout any appeal to Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw....” Ark. R. App. P. — Crim. 16. In that he remained a salaried, full-time public defender during the appeal, he is not entitled to receive any additional compensation from the State for his services.

Motion denied.

       See Ark. Code. Ann § 16-87-306 listing duties of public defenders. This statute however, does not exempt public defenders from the requirements of Ark. R. App. P. -Crim. 16.


author: PER CURIAM.

text:
    Mishon Laron WRIGHT v. STATE of Arkansas
    CR 99-1457
    8 S.W.3d 32
    Supreme Court of Arkansas
    Opinion delivered January 13, 2000

      Morley Law Firm, by: Stephen E. Morley, for appellant.
    No response.
   PER CURIAM.

Appellant, Mishon Laron Wright, by his attorney, Stephen E. Morley, has filed a motion for a belated appeal. Appellant was convicted on October 8, 1998, on two counts each of aggravated robbery, terroristic act, and theft of property, and judgment was entered on October 27, 1998. However, Wright filed a motion for a new trial on October 22, 1998, prior to the entry of judgment. Although the trial court entered an order denying that motion on December 17, 1998, the order is void in light of the date of judgment.

In any event, the notice of appeal filed on January 15, 1999, made Wright’s appeal untimely. Mr. Morley admits in the instant motion that he faded to timely file the notice of appeal due to a mistake on his part. We find that such an error, admittedly made by the 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). Accordingly, the motion for belated appeal is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Id.


author: ROBERT L. Brown, Justice.

text:
    Karen SHELTON, As Next Friend of Nathan Piccirilli v. William P. FISER, M.D.; Robert L.Watson, As Executor of the Estate of John Roger Clark; Arkansas Sports Medicine & Orthopedic Center, P.A.; Edward R.Weber, M.D.; and Arkansas Specialty Care Centers, P.A.
    99-331
    8 S.W.3d 557
    Supreme Court of Arkansas
    Opinion delivered January 20, 2000

      Jack Pasqual and Patton, Tidwell & Sandefur, LLP, by: Nicholas H. Patton and Christie Gunter Adams, for appellant.

      Laser, Wilson, Bufford & Watts, P.A., by: Ken Cook and Donna L. Gay, for appellee William P. Fiser, M.D.

      Womack, Landis, Phelps, McNeill & McDaniel, by: Paul D. McNeill and Jeffrey L. Singleton, for appellee Robert L. Watson.

      Anderson, Murphy & Hopkins, L.L.P., by: Overton S. Anderson and David A. Littleton, for appellees Edward R. Weber, M.D. and Arkansas Specialty Care Centers, PA.

   ROBERT L. Brown, Justice.

This appeal involves the application of the statute of limitations to a medical malpractice action brought by a parent on behalf of a minor child. Three issues are raised in this appeal by appellant Karen Shelton as the mother of the minor child, Nathan Piccirilli: (1) the general savings statute should apply to toll the two-year statute of limitations for medical malpractice actions; (2) Shelton’s own claims for medical expenses are not barred by the two-year statute of limitations but should exist as long as the minor child’s cause of action does; and (3) a genuine issue of material fact exists concerning fraudulent concealment by the appellees. We find no merit in any of these claims, and we affirm the order of dismissal and the summary judgment.

The facts leading up to the trial court’s two orders are these. On November 5, 1994, Nathan Piccirilli, who was age eleven at the time, fractured his right arm in a go cart accident. He was taken to Saline Memorial Hospital in Benton where he was treated by Dr. Shelby Duncan, an orthopedic specialist. Dr. Duncan recommended that Piccirilli be transferred to Baptist Medical Center in Litde Rock, and he was transferred on November 7, 1994. At Baptist, Piccirilli was accepted as a patient by Dr. William P. Fiser, a vascular surgeon, who is an appellee. Dr. Fiser determined that Piccirilli needed surgery and consulted with Dr. John Roger Clark, an orthopedic surgeon, whose probate estate is also an appellee.

On November 7, 1994, Drs. Fiser and Clark operated on Piccirilli. Dr. Fiser operated on the brachial artery in the arm which had been crushed or contused by a bone fragment, and Dr. Clark performed a fasciotomy on the arm and resplintered it. The following day Dr. Clark performed a skin release of the volar/flexor compartment, and on November 10, 1994, he did a dressing change under general anesthesia and attempted to evaluate the viability of the forearm muscles.

On November 12, 1994, Dr. Edward R. Weber, another appellee, was brought in as a hand specialist, and he performed a debridement of dead muscle tissue in the forearm. Two days later he did a second debridement and concluded that there were not enough viable muscles left for tendon transfers to reconstruct the hand. Drs. Fiser and Weber recommended amputation to Piccirilli’s family but encouraged them to seek a second opinion. The family had Piccirilli transferred to Arkansas Children’s Hospital on November 15, 1994.

On May 23, 1996, Shelton, as next friend of Piccirilli, filed a medical malpractice action against Dr. Duncan, five Jane Does, and St. Paul Fire and Marine Insurance Co., the malpractice carrier for Saline Memorial Hospital. On April 24, 1998, Shelton filed a first amended complaint, adding Drs. Weber, Fiser, and Clark and Arkansas Sports Medicine and Orthopedic Center and Arkansas Specialty Care Centers as parties defendant. The amended complaint asserted claims of medical malpractice, civil conspiracy, and fraudulent concealment against Drs. Fiser and Clark and Arkansas Sports Medicine, and claims of civil conspiracy and fraudulent concealment against Dr. Weber and Arkansas Specialty Care. Following the amended complaint, the added parties defendants, who are the appellees in this appeal, moved to dismiss the complaint based on the two-year statute of limitations for medical malpractice claims.

On May 28, 1998, Shelton added Robert L. Watson, the executor of the Clark Estate, as a party defendant. On September 24, 1998, she added a cause of action against Dr. Fiser for deceit. The appellees then separately moved for summary judgment on the claim of fraudulent concealment.

In its first order, the trial court granted the appellees’ separate motions to dismiss the malpractice causes of action because they were barred by the two-year statute of limitations. In that same order, the trial court found that Shelton had sufficiently pled fraudulent concealment and that this claim would not be dismissed. In a subsequent order, the trial court granted summary judgment in favor of the appellees on the fraudulent concealment claim. Shelton then took a voluntary non-suit against Dr. Duncan and St. Paul, and the trial court entered a final judgment based on its previous orders pursuant to Ark. R. Civ. P. 54(b).

Shelton’s first point on appeal concerns which savings statute should apply to a minor child’s cause of action for medical malpractice. According to Shelton, the general savings statute for minors (Ark. Code Ann. § 16-56-116(a) (1987)), applies. That section read as follows in 1994:

(a) If any person entitled to bring any action under any law of this state is, at the time of the accrual of the cause of action, under twenty-one (21) years of age, or insane, or imprisoned beyond the limits of the state, that person may bring the action within three (3) years next after attaining full age, or within three (3) years next after the disability is removed.

Shelton also cites our decision in Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970), for the proposition that § 16-56-116(a) applies to any action under any law and, thus, tolls the two-year statute of limitations for minor children under our Medical Malpractice Act. Finally, Shelton emphasizes that the General Assembly in 1999 added a repealer clause to § 16-56-116, which stated that all laws and parts of laws in conflict with this act are repealed. 1999 Ark. Acts 18.

We disagree with Shelton’s analysis of the history of the savings statute as it applies to minor children in medical malpractice actions. By Act 709 of 1979, Act 997 of 1991, and Act 735 of 1995, the General Assembly added a savings statute for minors to the Medical Malpractice Act. The savings statute for minors now reads:

(c)(1) If an individual is nine (9) years of age or younger at the time of the act, omission, or failure complained of, the minor or person claiming on behalf of the minor shall have until the later of the minor’s eleventh birthday or two (2) years from the act, omission, or failure in which to commence an action.
(2) However, if no medical injury is known and could not reasonably have been discovered prior to the minor’s eleventh birthday, then the minor or his representative shall have until two (2) years after the medical injury is known or reasonably could have been discovered, or until the minor’s nineteenth birthday, whichever is earlier, in which to commence an action.

Ark. Code Ann. § 16-114-203(c) (Supp. 1999). Otherwise, all causes of action for medical malpractice must be commenced within two years of the medical injury. Ark. Code Ann. § 16 — 114-203(a) (Supp. 1995).

Act 709 of 1979 was enacted seven years after our decision in Graham v. Sisco, supra. Act 997 of 1991 and Act 735 of 1995 were enacted much later. In Graham, we specifically noted that the statute of limitations for medical malpractice did not contain a savings statute for minors. That was rectified by Act 709 and then by Act 997 and Act 735, all of which enacted the controlling statute for minor children who have malpractice actions brought on their behalf. It has long been the law in Arkansas that a general statute must yield when there is a specific statute involving the particular subject matter. See, e.g., Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997); Donoho v Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994); Conway Corp. v Construction Eng’rs, Inc., 300 Ark. 225, 782 S.W.2d 36 (1989). That principle governs this issue, and we hold that § 16-114-203(c) provides the applicable statute of limitations for a minor child’s medical malpractice action. See also Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998) (two-year limitations period in Medical Malpractice Act supersedes limitations period in Product Liability Act). In this regard, we adopt the reasoning of the court of appeals in Smith v. Diversicare Leasing Corp., 65 Ark. App. 138, 985 S.W.2d 749 (1999) (specific savings statute under Medical Malpractice Act for incompetents supersedes the general savings statute).

Furthermore, we do not consider a repealer clause added to the general savings statute to have the effect of repealing the specific savings statute enacted for minor children in the Medical Malpractice Act. To be sure, a general repealer may repeal conflicting laws. See Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980). However, repeals by implication are not favored in interpreting our statutes. See Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998). And, again, repeal does not occur in a situation, such as we have in the instant case, where the specific act establishing a cause of action for medical malpractice contains its own savings statute for minors.

We conclude that Piccirilli does not fall within either of the two exceptions for a minor’s cause of action under § 16-114-203(c). Accordingly, the complaint brought on his behalf is barred by the two-year statute of limitations.

Shelton’s second point is dependant upon our resolution of her first point. She contends that a parent’s cause of action to recover medical expenses incurred on a child’s behalf should be subject to the same limitations period as the child’s cause of action for negligence. As already discussed, her theory is that Piccirilli’s cause of action survived under the general savings statute until age twenty-one. Hence, she reasons that her cause of action should only be restricted by the same limitations period.

Because we have already held that Piccirilli’s complaint had to have been brought within two years of the alleged medical injury, this second issue is effectively resolved. The parent under these facts is subject to the same two-year period for recovery of the medical expenses. See National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). The trial court did not err in this regard.

For her final point, Shelton claims that genuine issues of material fact exist surrounding her fraudulent concealment claim against the appellees, and summary judgment as a result was not appropriate.

This court recently stated its standard of review for orders of summary judgment:

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

Adams v. Arthur, 333 Ark. at 62, 969 S.W.2d at 605.

Fraudulent concealment suspends the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of due diligence. See Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999); First Pyramid. Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992), cert. denied 510 U.S. 908 (1993). This court also noted that “[although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law.” Martin, 339 Ark. at 154, 3 S.W.2d at 687.

This court has recently addressed what constitutes fraudulent concealment:

In order to toll the statute of hmitations, we said that plaintiffs were required to show something more than a continuation of a prior nondisclosure. We said that there must be evidence creating a fact question related to “some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed, or perpetrated in a way that it conceals itself.”

Martin, 339 Ark. at 154, 155, 3 S.W.2d at 687 (quoting Adams v. Arthur, 333 Ark. at 68, 969 S.W.2d at 605 and Norris v. Bakker, 320 Ark. 629, 633, 899 S.W.2d 70, 72 (1995)). Accordingly, it is clear from our caselaw that not only must there be fraud, but the fraud must be furtively planned and secretly executed so as to keep the fraud concealed.

In the instant case, Shelton contends that the factual issue for her allegation of fraudulent concealment is created by the deposition testimony of Dr. Duncan’s expert witness, Dr. Thomas P. Rooney. Piccirilli’s medical records state that Dr. Clark performed a fasciotomy of the volar compartment of Piccirilli’s right forearm on November 7, 1994. Dr. Rooney testified in his deposition that Dr. Clark’s care and treatment fell below the standard of care because Dr. Clark performed only a partial fasciotomy. A second expert for Dr. Duncan, Dr. Reese Louis Crow, confirmed that opinion in his deposition. Dr. Rooney concluded that the incomplete nature of the fasciotomy caused or contributed to the damage to the forearm. Dr. Rooney also stated that he read a letter written by Dr. Fiser to Shelton’s attorney and that some of the statements made by Dr. Fiser in quoting Dr. Weber have turned out not to be factually true. In particular, Dr. Rooney questioned Dr. Fiser’s statement that there were no viable muscles in the flexor compartment. He pointed out that Piccirilli was later found to have some viable muscles. Additionally, Dr. Rooney referred to Dr. Fiser’s statement that the extensor compartment muscles were not viable. Dr. Rooney emphasized, however, that later some of those muscles were used for tendon transfers.

Shelton further alleges that Drs. Fiser, Clark and Weber discussed among themselves the potential causes of Piccirilli’s injuries, and that following these discussions, Dr. Fiser dictated discharge summaries indicating that the cause of the muscle death in the forearm was an unrecognized injury to the brachial artery. Six months later, Dr. Fiser stated in a letter to Piccirilli’s attorney that the care and treatment provided by Drs. Fiser, Clark and Weber were not causes of the muscle death in Piccirilli’s forearm. This inconsistency between the discharge summaries and Dr. Fiser’s subsequent statements establishes fraud, under Shelton’s theory of the case.

We do not agree that Shelton has raised a genuine issue of material fact regarding fraudulent concealment. First, Dr. Rooney’s and Dr. Crow’s conclusions go to the proper standard of care and, therefore, to negligence rather than to fraud. In addition, the asserted inconsistency between the discharge summaries and Dr. Fiser’s later statement to counsel were not proved to have been concealed in any form or fashion. We need not reach the issue of whether the inconsistency amounted to fraud because our law is clear that in order to toll the statute of limitations, the fraud perpetrated must be concealed. Concealed fraud means fraud which is furtively planned and secretly executed. See Martin v. Arthur, supra. Here, the medical records pertaining to Piccirilli’s treatment and care at Baptist were not concealed but turned over to his first medical expert, Dr. Leland Hall, in 1995. And Drs. Weber and Fiser filed affidavits in support of their motions for summary judgment averring that their findings and opinions were not hidden but disclosed. Shelton failed to offer countervailing proof of concealment and, thus, failed to establish an essential element of the tort.

Affirmed.

Glaze, Imber, and Smith, JJ., not participating.

Special Justice David Keith Rutledge and Special Justice James Pender join in this opinion.

       The arm apparently was not amputated, as the first amended complaint states that Piccirilli has regained significant motor function but has little strength in his right hand.

       Dr. Clark apparently worked for Arkansas Sports Medicine and Orthopedic Center and Dr. Weber worked for Arkansas Specialty Care Centers.

       Act 18 of 1999 also deleted the phrase “or imprisoned beyond the limits of the state” in § 16-56-116(a).

       Act 997 of 1991 limited the savings statute for minors to medical injuries occurring from obstetrical care. Act 735 of 1995 expanded the applicability of the savings statute to all medical injuries. The application of Act 735 to a 1994 alleged medical injury was not raised by the parties. The issue raised by Shelton was that a statute dealing with children who are nine or younger cannot govern the cause of action of Piccirilli, who was eleven.