author: Annabelle Clinton Imber, Justice.

text:
    ST. FRANCIS COUNTY; St. Francis Election Commission by and through Its Members, Elizabeth Smith (Chairperson), Betty Proctor, Kevin Jones, Donnie Mooney, Sandy Meurrier, and All Defendants Sued in Their Individual and Official Capacity v. Robert Lewis JOSHAWAY, Hudie Hardaway, Earnestine Jackson, Belinda G. Joshaway, Henrietta D. Ford-Scofield, Linda Lockhart, Vanessa D. Alexander, Tilda Holmon, Eula M. Simmons, Mose Simmons, Cathy Tucker, Willie Hill, Emma Hardaway, Jessica Hardaway, Jessica Doolittle, Lashawn Lockhart, Dessie Mae Bobo, Koleen C. Reynolds
    01-244
    58 S.W.3d 361
    Supreme Court of Arkansas
    Opinion delivered November 8, 2001

      Fletcher Long, Jr., for appellants.

      Sam Whitfield, Jr., for appellees.
   Annabelle Clinton Imber, Justice.

The appellants, St. Francis County, St. Francis County Election Commission, by and through its members, Elizabeth Smith (chairperson), Betty Proctor, Kevin Jones, Donnie Mooney; and Sandy Meurrier, all having been sued in their individual and official capacity, appeal an award of attorney’s fees entered by the St. Francis County Circuit Court in favor of the appellees, Robert Lewis Joshaway, Hudie Hardaway, Earnestine Jackson, Belinda G. Joshaway, Henrietta D. Ford-Scofield, Linda Lockhart, Vanessa D. Alexander, Tilda Holman, Eula M. Simmons, Mose Simmons, Cathy Tucker, Willie Hill, Emma Hardaway, Jessica Hardaway, Jessica Doolittle, Lashawn Lockhart, Dessie Mae Bobo, and Koleen C. Reynolds. The sole issue on appeal is whether the trial court erred in awarding attorney’s fees to the appellees in an action that was essentially an election contest, and that culminated in a final judgment declaring appellee Hudie Hardaway to be the winner of the Hughes school-board election held on September 15, 1998. We hold that the trial court erred in awarding attorney’s fees, and we reverse the trial court’s ruling and dismiss the appellees’ motion for attorney’s fees.

This case arises out of a dispute over the results of a school-board election held in the Hughes School District on September 15, 1998. Donnie Mooney, one of the appellants in this action, was certified by the St. Francis County Election Commission as the winner of position 7, an at-large position on the Hughes school board. Hudie Hardaway, the other candidate for the at-large position, along with Robert Lewis Joshaway and several other electors are the appellees in this action. Their complaint in this case alleged numerous voting irregularities in the school-board election and specifically challenged the Election Commission’s failure to count 91 ballots. The uncounted ballots were delivered to the election commissioners in a supply box. Elizabeth Smith, Chairperson of the Election Commission, testified at trial that she did not know why the 91 ballots were in the supply box and not in the ballot box. The Office of the Secretary of State advised the Election Commission that the ballots delivered in the supply box were not to be counted because they had not been locked up in the ballot box. According to the Secretary of State, it was the voter’s responsibility to put his or her individual ballot into the ballot box. Ultimately, the Election Commission made no determination as to why the 91 ballots remained outside the ballot box.

Following a bench trial on March 23, 1999, and a hearing on July 30, 1999, the trial court entered its order on September 17, 1999, and held that the ballots set aside by the Election Commission should be counted. In fact, the court counted the ballots, save three that were spoiled, and found that Hudie Hardaway prevailed in the September 15, 1998 school-board election by a vote of 239 to 238. The Election Commission was ordered “to immediately certify the name of Hudie Hardaway as the duly elected City of Hughes School Board member for [position] seven (7) to the Secretary of State.” On November 16, 2000, the trial court awarded attorney’s fees and expenses in the amount of $18,798.63 to the appellees’ attorney Sam Whitfield, and attorney’s fees in the sum of $2,000.00 to attorney Jimmie Wüson.

The long-standing rule in Arkansas is that attorney’s fees cannot be awarded unless specifically provided for by statute or rule. Furman v. Second Injury Fund, 336 Ark. 10, 983 S.W.2d 923 (1999); Arkansas Oklahoma Gas Corp. v. Waelder Oil & Gas, Inc., 332 Ark. 548, 966 S.W.2d 259 (1998); State ex rel. Bryant v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994). Arkansas follows the American Rule that attorney’s fees are not chargeable as costs in litigation unless permitted by statute. Lakeview School District No. 25 of Phillips County v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000); Love v. Smackover School Dist., 329 Ark. 4, 946 S.W.2d 676 (1997).

For their sole point on appeal, the appellants claim that the appellees are not entitled to attorney’s fees because they prevailed only on their arguments regarding violations of the Arkansas Election Code. See Ark. Code Ann. §§ 7-1-101, et seq. (Repl. 2000; Supp. 2001). The statutes governing elections in Arkansas do not provide for the award of attorney’s fees to the prevailing party in an election matter. The appellees, on the other hand, argue that they are entitled to attorney’s fees under the United States and Arkansas Constitutions, the Arkansas Civü Rights Act, Ark. Code Ann. § 16-123-105 (Supp. 2001), and the federal Voting Rights Act, 42 U.S.C. § 1971, et seq. (West 2001).

In reviewing an award of attorney’s fees, we first consider what statutory authority is relied upon by the trial court in its order awarding fees, as well as any statutes cited by the prevailing party in its motion for attorney’s fees. See Ark. R. Civ. P 54(e) (2001). In the instant case, however, the trial court’s order awarding fees does not state a statutory basis for the award. Moreover, the appellees’ motion for attorney’s fees fails to cite any statute or rule expressly providing for an award of attorney’s fees. Thus, in order to determine whether there is a statutory basis for an attorney’s fee award in this case, the nature of the action upon which, the trial court awarded relief must be ascertained by referring to the trial court’s original judgment.

We first note that the judgment is entitled “Final Judgment on Election Contest,” and the trial court declares at the outset that “[tjhis is essentially an election contest filed by [the appellees] on October 5, 1998.” The judgment begins with a factual discussion of some of the problems that occurred on the day of the school-board election. The trial court cites evidence that the polling place in the City of Hughes ran out of ballots on the afternoon of the election, and goes on to say that “[tjhis need for additional ballots is what triggered a large part of this controversy.” Specifically, Elizabeth Smith, Chairperson of the St. Francis County Election Commission, delivered additional ballots to Hughes before the ballots ran out. Later, she received a call that Hughes was out of ballots again, and, at that point, she directed poll workers to make copies of ballots. Approximately 100 copies of ballots were made and handed out, and some voters were told that the copied ballots had to be kept separate from originals. The trial court also cited evidence of complaints regarding people generally milling around the polling places and complaints that people whose names were not on the voter lists were attempting to vote. Furthermore, there was evidence of a dispute regarding electors being required to furnish a physical address before being allowed to vote. Sandy Meurrier, an election worker, testified that “the disorderly conduct was not limited by race. That there were blacks and whites causing problems.”

The final problem that arose during the election involved 91 ballots that were returned to the Election Commission in a supply box. Of the uncounted ballots, the trial court’s order determined that 15 were copies, 73 were originals, and 3 were spoiled. As previously mentioned, the trial court counted the 88 unspoiled ballots, added the respective votes to the vote totals previously certified by the Election Commission, and found that “Hudie Hardaway should be certified as the winner of the zone seven (7), Hughes, Arkansas school board election.”

Following this summary of the evidence, the trial court’s judgment begins a recitation of Arkansas election laws regarding the duties of election officers, policing requirements at election precincts, election-contest procedures, election illegalities and procedures for convening a grand jury investigation, and the number of printed ballots to be provided by election commissioners to each election precinct. See Ark. Code Ann. §§ 7-5-210, -801, -807; 7-7-303; 7-9-102 (Repl. 2000). The trial court also refers to several decisions by this court in election cases. See e.g., Binns v, Heck, 322 Ark. 277, 908 S.W.2d 328 (1995); Ashcraft v. Cox, 310 Ark. 703, 839 S.W.2d 219 (1992); Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982); On v. Carpenter, 222 Ark. 716, 262 S.W.2d 280 (1953); Dotson v. Ritchie, 211 Ark. 789, 202 S.W.2d 603 (1947); Black v. Jones, 208 Ark. 1011, 188 S.W.2d 626 (1945); Condren v. Gibbs, 94 Ark. 478, 127 S.W 731 (1910); Powell v. Holman, 50 Ark. 85, 6 S.W. 505 (1887).

The focus of the trial court’s inquiry in this action is ultimately articulated in the judgment by the following statement: “It is the duty of this Court to determine which candidate received the most legal votes.” In order to make that determination, the trial court points to our decisions in Ashcraft v. Cox, supra, and On v. Carpenter, supra, where we reiterated that election laws are merely directory after an election, and the courts do not favor disenfranchising a voter because of the misconduct of another person. These election-law principles are the basis of the trial court’s decision to tally the uncounted ballots and declare Hudie Hardaway the winner of the election, as reflected in the concluding paragraphs of the judgment:

There is no evidence before the Court that there was fraud involved in the 91 ballots at issue and the evidence shows that these are qualified voters. The Court will not invalidate votes based upon the failure of the election workers to insure that the 88 votes were properly challenged or placed in the ballot boxes and returned to the Courthouse. The Court finds that any errors were not the fault of the voters. The voters were qualified and eligible, they voted and should not be disenfranchised. The Court has personally examined and counted the 88 ballots.....
Therefore, the final election results are as follows:
Denise Mooney 209
+29
238 total
Hudie Hardaway 180
+58
239 total

Though the appellees claim entitlement to attorney’s fees under the Arkansas Civü Rights Act and the federal Voting Rights Act, the trial court in its judgment certifying Mr. Hardaway as the winner of the election makes no finding that either Act was violated. In fact, the judgment makes no mention at all of the Arkansas Civil Rights Act. The judgment does contain quotations from the federal Voting Rights Act, 42 U.S.C. § 1971(a)(1) and (a)(2)(B). However, the court never finds any violations of that Act. Similarly, the court does not find any violations of the United States or Arkansas Constitutions. Because the trial court’s judgment awarded no relief pursuant to the Arkansas Civil Rights Act or the federal Voting Rights Act, the appellees have not prevailed under those Acts and are therefore not entitled to attorney’s fees thereunder.

Viewing the trial court’s judgment as a whole, it is clear that the appellees’ lawsuit was essentially an election contest. The primary purpose of the action, as reflected in the relief awarded by the trial court, was to have Mr. Hardaway declared the winner of the school-board election. The court’s judgment focuses primarily on alleged errors in election procedure that resulted in ballots being kept outside the ballot box without being properly challenged under election law. Because Arkansas’s election laws provide the basis .for the trial court’s judgment in this election contest, we conclude that attorney’s fees are not warranted.

Attorney’s fee order reversed; appellees’ motion for attorney’s fees dismissed.

       There were two other candidates for the zone 3 school board position, and Earnestine Jackson, one of the appellees in this action, was certified by the Election Commission as the winner of the zone 3 position.

       The complaint sought redress for the wrongs alleged therein, “in so much as they are violative of Federal Constitution, Arkansas Constitution, Arkansas statutory provisions, and since all stem from a racial base are violate [sic] of Arkansas Civil Rights Act.”

       The appellants’ notice of appeal from the trial court’s order awarding attorney’s fees was timely filed on November 28, 2000.

       Arkansas has recognized exceptions to this rule, none of which are applicable here.

       According to Ms. Smith, a person needed a physical address to prove he or she was an eligible voter within the correct zone.

       This is also confirmed by the following statement in the appellees’ motion for attorney’s fees: “As grounds for their motion, [the appellees] demonstrate that they are the prevailing parties in the lawsuit, that they have accomplished the principal purposes of the law suit. ...”


source: Caselaw Access Project

author: Ray Thornton, Justice. Tom Glaze, Justice, concurring. Jim Hannah, Justice, dissenting.

license: Public Domain

text:
    Stephen John COLSTON v. STATE of Arkansas
    CR 01-122
    58 S.W.3d 375
    Supreme Court of Arkansas
    Opinion delivered November 8, 2001
    [Petition for rehearing denied December 6, 2001.]

      Montgomery, Adams & Wyatt, PLLC, by: Dale E. Adams, for appellant.

      Mark Pryor, Att’y Gen., by: Brad'Newman, Ass’t Att’y Gen., for appellee.

       Brown and Hannah, JJ., would grant.

   Ray Thornton, Justice.

Appellant, Stephen John Colston, entered a conditional plea of guilty to first-degree battery, in violation of Ark. Code Ann. § 5-13-201 (a) (3) (Repl. 1997), pursuant to Ark. R. Crim. P. 24.3(b) (2000). The battery charge, a class A felony, was enhanced by Ark. Code Ann. § 5-74-108 (Repl. 1997), engaging in violent criminal activity. The trial court accepted appellant’s guilty plea and sentenced appellant to eight years in the Arkansas Department of Correction. Before appellant entered his conditional plea, he filed a motion to suppress. The trial court denied appellant’s motion, but allowed him to appeal the adverse determination of the suppression issue. For his sole allegation of error, appellant argues that the trial court erred in denying his motion to suppress his statement based upon an alleged illegal arrest. We affirm the trial court.

I. Facts

On April 10, 2000, Benton High School principal, John Dedman, reported to the Benton Police Department that a student, K.F., had been stabbed in the abdomen and had been transported to Saline Memorial Hospital for treatment. Witnesses stated that K.F. was getting into a vehicle when a white female asked her if she was “Nap.” When K.F. responded in the affirmative, the female began hitting her. H.F., K.F.’s sister, attempted to intervene, and the woman stabbed K.F. with a knife. The young woman swung the knife at H.F., but did not make contact. The woman then got into a nearby van, driven by a white male, and left the scene.

Witnesses at the scene described the woman as an overweight white female with red hair, and the driver as a white male with blond hair who wore a white baseball cap. They also described the van as gray, bearing an Arkansas license place with the number, 090-BTK. A police check of the license plate showed the vehicle belonging to an individual named Colston who lived at 6 Crest Lane in North Litde Rock. Law enforcement agencies in Pulaski County were notified of this incident. They attempted to locate the vehicle at that address, but were unsuccessful.

Jim Andrews, a lieutenant with the Saline County Sheriffs Department and supervisor of the Criminal Investigation Division, testified that, on the next day, April 11, 2000, he assisted in the investigating the stabbing incident at Benton High School. After speaking with several witnesses and obtaining the license plate number of the van, he and Sergeant Carty and two investigators headed toward the residence.

On their way to the residence, Detective Mike Frost of the Saline County Sheriffs Department radioed that he was going to Cabot on another related case, and Lieutenant Andrews asked Detective Frost if he would go to the residence because he was so close to the location. Detective Frost was given the descriptions of the two individuals involved at the Benton High School stabbing.

Detective Frost testified that when he got the call from his supervisor, Lieutenant Andrews, he went to the address in North Litde Rock under his instructions. He further testified that when he got to North Little Rock, he contacted the Pulaski County Sheriffs Office to determine where the residence was located. When he arrived on the scene, the van was not there, but he saw the name, “Colston,” on a wooden name board on the front porch. Detective Frost then advised Lieutenant Andrews of these facts, and Lieutenant Andrews directed the detective to make contact with anyone inside the house.

Detective Frost further testified that when a female who matched the description answered the door, he placed handcuffs on her, placed her inside his vehicle, and took her into custody. She did not, at any time, contest the validity of her detention, but identified herself as Latrina Garris, and told the detective that appellant, Stephen Colston, was asleep inside the residence. Detective Frost contacted the Pulaski County Sheriffs Office and advised them that he needed a deputy at the location to make contact with the subject in the house. The Pulaski County deputy arrived ten minutes after Detective Frost made the call.

When the two officers approached the residence, appellant was at the door. Detective Frost identified himself and told appellant that he was investigating a stabbing incident. He also told appellant that officers from Benton Police Department were en route. Detective Frost then went out to the police car where Garris was. He mirandized her and asked her about the location of the van. She responded that appellant’s mother had it at work.

At that time, a gray van pulled into the driveway driven by a woman who identified herself as Gail Colston, appellant’s mother. Detective Frost asked her if she had driven the van to work on Monday, April 10, and she stated that her daughter, Elizabeth Colston, had driven her to work at 8:30 a.m. on Monday morning and that her daughter had left the van for appellant to drive that day. Detective Frost then testified that he asked Elizabeth Colston some questions. He stated that she said that appellant had spoken with his cousin, Alex, the previous evening for “a long, long time.” She did not hear the conversation.

Detective Frost testified that, after Gail Colston arrived, Lieutenant Andrews and Detective Mike Montgomery of the Benton Police Department and Detective Marvin Hodges of the Saline County Sheriff Department arrived. After Detective Frost advised them of the situation, Detective Montgomery went to the vehicle to see Garris. Detective Frost told the officer that she had been mirandized. According to Detective Frost’s testimony, Detective Montgomery asked Garris if she had done the stabbing, and she responded, “I did it.” Detective Frost took five photographs of the van and turned the film over to Detective Montgomery.

Detective Frost also testified that Lieutenant Andrews obtained a consent to search from appellant’s mother. Detective Frost found a twenty-dollar bill and four ten-dollar bills lying beside appellant’s bed. He also found several notes written by Garris to appellant. These items were handed over to Lieutenant Andrews. Detective Frost further testified that he and Detective Montgomery transported Garris while Lieutenant Andrews and Detective Hodges transported appellant to the Benton Police Department.

At the Benton Police Department, Garris confessed that she had stabbed K.F., but had not meant to do so. She stated that she only meant to “beat her ass” because she had “narcked” on some people in court several weeks before. Garris stated that she committed the act for Alex Barnard, appellant’s cousin, who paid her $100. Garris said that she had never met K.F. before and knew her only as “Nap.” She stated that she pulled the knife after K.F.’s sister jumped on her. She further stated that, after the incident, she left with appellant. She stated that she was paid $100 on that Monday night.

While at the Benton Police Department, appellant stated that he wanted to make a statement. He said that his cousin, Alex Barnard, called him on Sunday night. Appellant spoke briefly with Barnard and handed the telephone to Garris. Appellant stated that he then fell asleep. He also said that he drove to the school and waited. He saw Garris confront K.F. When he started honking the horn, Garris got in the van, and the two drove back to North Little Rock. Appellant went to work that night, and Garris stayed home.

On cross-examination, Detective Frost admitted that when he was in North Little Rock, he was outside of his jurisdiction. With regard to appellant, Detective Frost stated:

As my report reflects, [as] the Pulaski County deputy arrived, a white male came to the door and I detained him for investigative purposes. He was not free to leave because he fit the general description that he matched. We did not arrest him per se but he was not free to leave the house. I detained him for “investigative purposes” the minute he came to the door. The Pulaski County deputy was with me and we were both walking up on the porch when we saw him. The Pulaski County deputy did not do anything but he was there with me. The van arrived approximately fifteen minutes later. I turned the notes I found over to the Benton Police Department. I was not present when Detective Montgomery advised Mr. Colston of [his] Miranda rights.

Detective Mike Montgomery of the Benton Police Department testified that appellant’s mother called an attorney, and the attorney spoke to appellant. After Detective Montgomery read appellant his Miranda rights, appellant stated that he did not want to make a statement at that point. Detective Montgomery testified that he arrested appellant on the basis that he matched the description of the driver of the vehicle in the Benton High School stabbing.

Detective Montgomery testified that he transported appellant to the Benton Police Department. He stated:

Stephen’s parents wanted to speak with me with Stephen there so the four of us went in an interview room. Stephen’s father wanted to know what Stephen could do to help. Just in general conversation, I said I’m not going to talk to him but his cooperation is something that is always taken into consideration. I never attempted to ask Stephen any questions. This took place a half an hour or less. The conversations with his parents concerned the amount of bond, if he were allowed to make bond, what steps they could take, etc. I never told his parents that if he cooperated he would get some specific consideration. There were no promises or deals or guarantees made. As I escorted Stephen to the holding cell, and his parents were going out into the lobby, Stephen asked me, as I opened the door to his cell, if he could still talk to me. There was no intention on my part of questioning him any more since he had already indicated that he did not want to do that. He told me that he wanted to give me his side of the story so I told him I would listen. We went back to the interview room and I went over another Miranda rights form, the same way I went over the last one, having him initial each right [on the form].

Detective Montgomery then recorded the statement on an audio tape and a video tape. Detective Montgomery admitted that there is no mention of an initial request for counsel in the affidavit.

Detective Greg Little of the Benton Police Department also testified at the suppression hearing. On cross-examination, Detective Little testified that he wrote the affidavit for appellant’s arrest. He stated, “There is nothing in the affidavit that he declined to make a statement by invoking his right to counsel.”

At the suppression hearing, appellant testified on his own behalf. He testified that he remembered being readvised of his Miranda rights at the jail at approximately 5:00 p.m. that evening by Detective Montgomery. Appellant stated, “[Detective Montgomery] told me that it would help me out on my charge if I would make a statement. He did not tell me how it would help out. He said he could not help me if he did not hear my side of the story.” On cross-examination, appellant testified, “I would agree that if the statement I made was suppressed, it would help my case.” Appellant’s mother, Gail Colston, testified on her son’s behalf at the suppression hearing. Her testimony supports that of the appellant.

After hearing arguments from appellant’s counsel and the State, the trial court denied appellant’s motion to suppress from the bench. Appellant and the State agreed, pursuant to Ark. R. Crim. P. 24.3, to a conditional plea of guilty. In its order, the trial court states that appellant “wifi also be allowed to appeal the adverse determination of the suppression issue to the Arkansas Supreme Court and/or Court of Appeals.” On appeal, appellant argues that his statement should have been suppressed as the fruit of the poisonous tree of an illegal arrest by officers outside their jurisdiction.

II. Rule 24.3(b)

This case was certified to us by the court of appeals on the grounds of Ark. R. Crim. P. 24.3(b). Arkansas Rule of Criminal Procedure 24.3(b) provides:

(b) With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

Id. (emphasis added).

As a general rule, one is not allowed to appeal from a conviction resulting from a guilty plea, aside from jurisdictional defects. Ark. R. App. P. — Crim. 1(a). However, “Rule 24.3(b) presents an exception to the rule hut only for the purpose of determining on appeal whether an appellant should be allowed to withdraw her plea if it is concluded that evidence should have been, but was not suppressed.” Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). We have strictly construed the permissible scope of an appeal under Rule 24.3(b). In Wofford, appellant entered a conditional guilty plea under Rule 24.3(b), and we declined to address an upward departure from sentencing guidelines and an alleged violation concerning cameras in the courtroom because there points did not concern the “suppression of evidence.” Id. See also Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990) (declining to reach the merits of a speedy-trial argument when the appellant entered a Rule 24.3(b) conditional plea of nolo contendere on the charge).

In Bisbee v. State, 341 Ark. 508, 17 S.W.3d 477 (2000), appellant was charged with one count of kidnaping, three counts of rape, and one count of residential burglary. Appellant spoke with law enforcement officials about the abduction during the course of the investigation. Appellant filed a motion to suppress his statement, arguing that the police officers promised him a Coke and a cigarette in exchange for his statements. The trial court denied the motion, finding that appellant had voluntarily waived his rights. Pursuant to Ark. R. Crim. P. 24.3(b), the trial court accepted appellant’s conditional guilty plea, which was conditioned upon the State allowing him to appeal the trial court’s adverse ruling on his pretrial motion to suppress. We held that the trial court’s findings were not erroneous. Id.

The facts presented in this appeal are similar to those in Bisbee, supra. In Bisbee, appellant raised the question of voluntariness of his statement on appeal after his conditional plea was entered. In the present case, appellant raises the issues of extraterritorial jurisdiction and probable cause to effectuate his arrest. Nevertheless, appellant’s argument concerns the suppression of evidence as the fruit of an alleged illegal arrest. See Wofford, supra. Under Rule 24.3(b), appellant’s guilty plea was conditioned upon the State allowing him to appeal “any adverse determination of a pretrial motion to suppress.” We interpret the language of this rule to include the validity of an arrest after which a statement was made. For these reasons, we will reach the merits of appellant’s point on appeal.

III. Legality of the arrest

For his sole point on appeal, appellant argues that the trial court erred in denying his motion to suppress his statement because the officers lacked probable cause to make an extraterritorial arrest. Specifically, appellant argues that his statement made after the arrest should have been suppressed under the fruit of the poisonous tree doctrine.

As a general rule, there are four instances where officers may arrest outside their territorial jurisdiction: (1) when the officer is in fresh pursuit, under Ark. Code Ann. § 16-81-301 (1987); (2) when the officer has a warrant for arrest, as provided by Ark. Code Ann. § 16-81-105 (1987); (3) when a local law enforcement agency has a written policy regulating officers acting outside its territorial jurisdiction and when said officer is requested to come into the foreign jurisdiction, as stated in Ark. Code Ann. § 16-81-106(c)(3)-(4) (Supp. 1995); and (4) when a sheriff in a contiguous county requests an officer to come into his county to investigate and make arrests for violations of drug laws, pursuant to Ark. Code Ann. § 5-64-705 (Repl. 1993). Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990). The traditional concept of territorial jurisdiction for peace officers is a sound one since a local community is best served by the requirement that local officers familiar with local neighborhoods make arrests in the community. Perry, supra.

At the outset, we note that the prosecutor below conceded that the Saline County officers arrested appellant outside of their territorial jurisdiction, and that none of the statutory grounds for making an extraterritorial arrest appear to apply to the facts of the present case.

Appellant cites Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997) in support of his argument that appellant’s arrest was illegal. In Henderson, appellant moved to suppress his statement to Pulaski County deputy sheriffs as the fruit of the poisonous tree because his arrest was made by Pulaski County officers while in' Lonoke County, which was outside territorial jurisdiction. The State claimed that, because a federal agent who was deputized across the state participated in the arrest, the arrest was valid. We disagreed, holding that there was no federal offense involved, that the federal agent was not involved in the operation, and that the federal agent was not given explicit permission by his superior to effectuate an arrest. Id.

Henderson, supra, is distinguishable from the present case because no Lonoke County officers were present at the time the Pulaski County officers arrested Henderson. Pulaski County officers, acting in concert with a federal agent, erroneously made the arrest in Lonoke County without the presence of Lonoke County law enforcement because they believed that the presence of the federal agent would legitimize their warrantless arrest. Id. Here, Pulaski County officers were on the scene, aiding Saline County officers in their investigation and participating in appellant’s arrest.

The facts in this case are more similar to the circumstances in Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979), where a Crittenden County deputy sheriff sought to arrest appellant while he was in St. Francis County. The deputy sheriffs from Crittenden County sought assistance from a St. Francis County deputy sheriff. Id. According to Logan, the presence of an officer with full authority to make an arrest legitimizes an arrest. The presence and acquiescence of a duly authorized officer is the key to determining whether an arrest is authorized. Id. Justice George Rose Smith, writing for the court, stated, “We need not discuss these contentions, because it is a fair inference from Davis’s testimony that Sam Hughes, the St. Francis County deputy, participated in the arrest.” Id. The court further stated, “Even though it was Officer Davis [from Crittenden County] who actually told Logan that he was under arrest, we think it clear that Officer Hughes [from St. Francis County] was also present in his capacity as a deputy sheriff and participated in making the arrest.” Id.

Like the circumstances in Logan, supra, Pulaski County officers were present and acted in concert with the Saline County officers. Here, the knowledge of appellant’s commission of a felony had been reported to the Pulaski County Sheriffs Office, and Pulaski County officers were asked to participate in the arrest. This request for assistance and participation was made three times. First, the Saline County officers reported the offense to Pulaski County officers, who then participated in the efforts to apprehend appellant by going to the address on the day the felony was committed. According to Detective Little’s affidavit alleging probable cause, agencies in Pulaski County were notified of the Benton High School incident and attempted to locate the vehicle at that address, but were unsuccessful. Second, Detective Frost called the Pulaski County Sheriffs Office the next day on his way to Cabot for assistance in locating the residence. Third, Detective Frost contacted the Pulaski County Sheriffs Office before the arrest, and advised them that he needed a deputy at the location before making contact with the subject in the house. The Pulaski County deputy arrived ten minutes after Detective Frost made the call, and the Pulaski County deputy was on the scene before appellant was apprehended and arrested. The Pulaski County deputy and Detective Frost went to the door of the house and apprehended appellant, who matched the description of the man who drove the get-away van at Benton High School. For these reasons, we follow Logan, supra, as well-established precedent that an arrest is valid when the arresting officer is accompanied by a duly qualified officer of the jurisdiction where the arrest occurs and who thereby participates in making the arrest.

In our cases involving the legality of arrests, it is well settled that all presumptions are favorable to the trial court’s ruling on the legality of the arrest and the burden of demonstrating error rests on appellant. Efurd v. State, 334 Ark. 596, 976 S.W.2d 941 (1998) (citing Humphrey v. State, 327 Ark. 753, 940 S.W.2d 753 (1997)). See also Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989).

We hold that the trial court properly denied appellant’s motion to suppress the statement. Accordingly, we affirm.

Affirmed.

Glaze, J., concurs.

Brown, Imber, and Hannah, JJ., dissent.

Tom Glaze, Justice, concurring.

I concur with the majority holding that appellant Stephen Colston’s arrest was legal, but I agree because Detective Mike Montgomery, as a private citizen, had authority to arrest Colston under Ark. R. Civ. P. 4.1(b) and Ark. Code Ann. § 16-81-106(d). Section 16-81-106(d) provides that a private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony. Under this statute and described circumstances, an officer acting outside his jurisdiction has the authority to effect an arrest. See Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990) (where this court recognized the statutory principle in § 16-81-106(d), but concluded Perry had been arrested on a misdemeanor, making the arrest invalid). In the instant case, the issue is whether Detective Montgomery, acting as a citizen, had reasonable grounds to believe Colston had committed a felony.

Reasonable or probable cause exists when there is reasonably trustworthy information within a law enforcement officer’s knowledge that would lead a person of reasonable caution to believe that a felony was committed by the person detained. Efurd v. State, 334 Ark. 596, 976 S.W.2d 928 (1998). The degree of proof required to sustain a conviction is not required for probable cause to arrest. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997).

The first detective to arrive at Colston’s house was Mike Frost, who later testified that he located the house where the registered owner of the gray van was said to live. The van was registered to a person named Colston. Arriving at the house, Frost saw the name “Colston” painted on some boards on the front porch, and a light was on inside the house. When Frost knocked on the door, a female matching the description given to the officers answered it; the woman told Detective Frost that her boyfriend was inside the house asleep. The young woman was immediately taken into custody. After about ten minutes had passed and other officers arrived, Colston came to the door. Frost said that Colston matched the description of the driver of the van earlier observed at the scene of the crime. While officers were at the house, Colston’s mother arrived driving a gray van matching the description of, and having the same license number as, the one used in the stabbing. Colston’s mother told officers that Colston had used her van on the day of the stabbing. Detective Montgomery then arrived at the house and spoke to the woman in custody, who told Montgomery that she had done the stabbing and that Colston had driven the van at the time of the crime. Detective Montgomery testified that he arrested Colston on the basis that he matched the description of the driver of the vehicle, and the van matched the description of the automobile involved. Based on the foregoing information, Detective Montgomery had reasonable grounds for believing that Colston had committed a felony. Thus, Colston’s arrest was legal.

Jim Hannah, Justice, dissenting.

This court in Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997) cited Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990), where we stated the blackletter law:

A local peace officer acting without a warrant outside territorial limits of the jurisdiction under which he holds office is without official power to apprehend an offender, unless he is authorized to do so by state statute. (Citing authority.)

This court in Henderson went on to state:

In Perry, this court also listed the four instances where the General Assembly had delegated the authority for law enforcement officers to make an arrest outside of their jurisdictions: (1) “fresh pursuit” cases under Ark. Code Ann. § 16-81-301 (1987); (2) when the police officer has a warrant for arrest, as provided by Ark. Code Ann. § 16-81-105 (1987); (3) when a local law enforcement agency requests an outside officer to come into the local jurisdiction and the outside officer is from an agency that has a written policy regulating its officers when they act outside their jurisdiction, as stated in Ark. Code Ann. § 16 — 81—106(3)—(4) (Supp. 1995); and (4) when a county sheriff requests that a peace officer from a contiguous county come into that sheriff’s county and investigate and make arrests for violations of drug laws pursuant to Ark. Code Ann. § 5-64-705 (Repl. 1993). Perry, supra.

None of these four instances applies to this case. Each instance is based in a statute. The majority creates a new and distinct instance for a warrantless arrest by a law-enforcement officer outside his or her territorial limits, brushing aside the requirement that such arrests may only be made when authorized by statute. The majority then recommends that the General Assembly adopt the newly created instance. The General Assembly has not authorized such an arrest. It should not in any event because such an arrest does not satisfy the requirements of probable cause. By adopting an exception that the mere presence of a local officer makes an otherwise illegal arrest legal, the majority reduces the constitutionally mandated requirement that the arresting officer have knowledge sufficient to support probable cause to a mere formality.

The State admits Detective Frost was utterly devoid of any authority to make the arrest as a police officer. The majority agrees. Yet, as the majority recites, it was Frost who spoke to Colston and took him into custody. The only officer present who had territorial authority to make the arrest was the unnamed and unidentified Pulaski County Sheriffs deputy. Although Frost testified he told the Pulaski County Sheriffs Department of the crime, there is no evidence that this unnamed officer had any knowledge of the crime alleged, let alone knowledge sufficient to constitute probable cause. The deputy never testified. Frost testified the deputy was there for his safety because he had one subject in custody and needed a deputy there to make contact with the other subject still in the house. There is no evidence the unnamed deputy made the arrest. The facts most favorable to the majority are that the deputy arrived, went to the door with Frost, and then stood within the Colston home after Frost detained Colston to insure Colston remained there while Frost went outside to speak with Garris and Colston’s mother. Such facts are woefully inadequate to support even speculation that the Pulaski County Sheriff s deputy had knowledge sufficient to support probable cause. Additionally, there is no evidence he participated in the arrest in any meaningful way. The arrest was admittedly made by a police officer outside his jurisdiction and admittedly in violation of the statutes allowing such an arrest. Thus, the arrest is admitted to be illegal.

The Fourth Amendment to the federal constitution includes the right to be free from arrest without probable cause. Lambert v. City of Dumas, 187 F.3d 931, 935 (8th Cir. 1999). Probable cause exists if the facts and circumstances within the arresting officer’s knowledge were sufficient to warrant a prudent person’s belief that the suspect had committed or was committing an offense. United States v. Magness, 69 F.3d 872, 874 (8th Cir. 1995). In Arkansas, a local police officer acting without a warrant is without official power to apprehend an offender unless he is authorized to do so by State statute. Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000); Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997); Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990); Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979); Jackson v. State, 241 Ark. 850, 410 S.W.2d 766 (1967) (citing, Ker v. California, 374 U.S. 23 (1963)). Thus, Frost was without authority to arrest Colston as a police officer. However, the majority finds that because the unnamed local deputy was present, the arrest was legal, citing Logan v. State, supra. The holding in Logan does not reach so far as the majority asserts. The court in Logan found that the local officer participated in the arrest. As is shown by the testimony cited in that opinion, the local officer was involved in the arrest. He participated and had knowledge of the crime. There was evidence of far more than the mere corporeal presence of a local officer. People v. Wolf, 635 P.2d 213 (Co. 1981) is instructive. In that case, the Colorado Supreme Court noted that their statute was intended to limit peace officers, in exercising their arrest powers and their law enforcement efforts, to the territorial limits of their authority and to require that local peace officers be advised and participate in the extraterritorial law enforcement activities of other peace officers. Under Wolf, the local officer must be advised and must participate. This must be so because there must be an officer present with authority to arrest who possesses the requisite knowledge of the crime or the arrest fails for a lack of probable cause. This is what is lacking in the present case. Frost made it clear he sought the Pulaski County deputy “due to officer safety.” There is no evidence the local officer had any knowledge whatever. Frost then goes on to testify that he arrested and spoke with Colston. There is no evidence the unnamed deputy was advised of anything or participated in the arrest other than being present and providing for the safety of Frost. This opinion is in error and seriously undermines the longstanding and constitutionally mandated requirement of probable cause before a warrantless arrest may be made.

In, Henderson, supra, we held that the statement given after the illegal arrest had to be excluded even though Henderson was given his Miranda rights. The instant case is a Henderson situation. Investigating police officers in the Benton Police Department clearly had probable cause for Colston’s arrest before his statement was given, but, comparable to Henderson, the arresting officer had no authority to make an arrest in a different jurisdiction. Also, as in Henderson, Colston made a statement after his illegal arrest and after he had been given his Miranda rights.

In Henderson, we stated the policy consideration behind our decision was formed in Perry v. State, supra: I also note that the argument might be made that if Frost could not arrest as a peace officer he could as a private citizen. The problem is that his knowledge comes to him by his superior. Frost had no personal knowledge and was not involved in the subject investigation. He was asked to stop at the Colston home by his superior because he happened to be nearby on his way to Cabot. Ark. Code Ann. § 16-81-106(d) provides, “A private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony.” In Partin v. Meyer, 277 Ark. 54, 639 S.W.2d 342 (1982), this court discussed private-citizen arrest for a felony. Under the common law, a private citizen could arrest someone who had committed a felony in his or her presence. Partin, supra. In Partin, this court stated:

The traditional concept of territorial jurisdiction for peace officers is a sound one since a local community is best served by the requirement that local officers familiar with local neighborhoods make arrests in the community. People v. Hamilton, 666 P.2d 152 (Colo. 1983). If such a concept were not followed, a Pocahontas policeman could make an arrest in Paragould, a Texas Ranger could make an arrest in Fordyce, and a K.G.B. agent could make an arrest in Fort Smith. Such a “practice would lead to more violence than it would suppress.” McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79 (1906).
Probable cause means that the arresting person must “reasonably suspect” the other person of having committed a felony. “It is enough that the circumstances which the actor knows or reasonably believes to exist are such as to create a reasonable belief that there is a likelihood that the other has committed the felony. In such cases, the public interest in the punishment of a felon requires the other’s arrest for the purpose of securing his custody pending investigation.” Restatement of the Law, Torts (2d), 119, Comments (1965).

In Partin, at issue was civil liability for false imprisonment where a motel patron was allegedly accused of stealing $600 from a cash drawer in the lobby. The motel owner denied he had accused her. In any event, this court discussed probable cause for an arrest if it had occurred and noted that the defendant was present at the crime scene, that he knew the theft had occurred, that he knew where he kept the cash, and that he knew the plaintiff had passed through the area alone and had had the opportunity to steal the money. The discussion is helpful in this case because it shows that for a warrant-less arrest by a private person there must be some basis in knowledge other than simply being told something occurred; otherwise an arrest might arguably be made based on a story in the news on television. Further, it would also be troubling if a peace officer could assert he was making the arrest as a private person under the facts of this case. It would, in effect, nullify the territorial requirements placed on peace officers by statute and allow arrests anywhere simply by making a claim they were arresting as private citizens rather than as a peace officer.

For the foregoing reasons, I respectfully dissent.

BROWN and Imber, JJ., join in this dissent.


author: Tom Glaze, Justice,

text:
    Edmundo ROGERS v. Andy LEE, Sheriff, Benton County, and Gene Drake, Benton County Jail Supervisor
    01-824
    61 S.W.3d 140
    Supreme Court of Arkansas
    Opinion delivered November 9, 2001
   Tom Glaze, Justice,

dissenting. On July 25, 2001, our court issued its mandate granting expedited consideration for Edmundo Rogers’s motion to stay “conditioned upon continued payment of child support and the $30,000 supersedeas bond remaining in effect.” On July 27, 2001, we then granted Rogers’s habeas corpus petition to release him from the Benton County Jail. Instead of complying with the supreme court’s mandate, the trial court found that, because Rogers was in contempt for failing to pay alimony to his wife, the trial court incarcerated Rogers for contempt for willful nonpayment of alimony, and concluded the supreme court’s earlier mandate regarding child support did not pertain.

Clearly, the record shows Rogers has complied with the supreme court’s mandate concerning the payment of child support. Rogers’s challenge to the alimony award is on appeal and our court should unquestionably stay enforcement of the trial court’s alimony award and finding of contempt. This court’s failure to stay the proceeding below leaves Rogers no remedy to challenge his jail sentence until after he has fully served it. Fundamental due process is wholly ignored by this court’s refusal to grant a stay and, at least, Rogers’s temporary release from jail.

I would grant Rogers’s petition and stay until his case can be heard on the merits.


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

text:
    Terry DOUGLAS, Evelyn Douglas, and Hydco, Inc. v. CITY of CABOT, City of Cabot Planning Commission, and Summit/Sun Terrace Property Owners’ Association
    01-426
    59 S.W.3d 430
    Supreme Court of Arkansas
    Opinion delivered November 15, 2001

      Denise Reid Hoggard, for appellants.

      Clinton D. McGue and Keith G. Rhodes, for appellees.
   w .H. “Dub” ARNOLD, Chief Justice.

Appellants, Terry Douglas, Evelyn Douglas, and Hydco, Inc., bring the instant appeal challenging an order of the Lonoke County Circuit Court denying their petition for a writ of mandamus and granting appellees’, City of Cabot, City of Cabot Planning Commission, and Summit/Sun Terrace Property Owners’ Association, motion for dismissal. Along with the appeal, we consider appellees’ pending motion to dismiss on the grounds that appellants failed to properly perfect the circuit-court appeal in compliance with applicable rules of procedure. We find merit in appellees’ arguments, and we dismiss the appeal with prejudice.

Background

On September 30, 1999, appellant Hydco, Inc., applied for a building permit to construct a detached-garage structure on the Douglases’ property. The parties agree that the permit application was deficient in at least one respect, namely that the required plot plan was not submitted in triplicate. The final plot plan was submitted on October 27, 1999, almost one month following the application. Moreover, Hydco’s permit application described a metal garage structure with 30 feet by 60 feet dimensions.. However, according to witness testimony and architectural drawings, the structure’s actual dimensions were 42 feet by 60 feet. Despite the irregularities, the City issued Hydco a permit on October 6, 1999.

Hydco then began construction on the Douglases’ property, including clearing trees and brush, and hauling in fill dirt. Electricity was also run to the site. Offsite, Hydco constructed and fabricated the metal garage facility. According to the Douglases, they spent over $32,000 toward construction prior to November 2, 1999. Then, in response to neighbors’ complaints, the city building inspector issued a stop-work order prohibiting any further preparatory work on the building site.

Subsequently, the City of Cabot Planning Commission considered the matter at its regularly scheduled November meeting. The Planning Commission determined that the Board of Zoning Adjustment was the appropriate forum to resolve the dispute, and the matter was placed on the Board’s December agenda. Interested parties were granted the opportunity to be heard. Ultimately, the Board upheld the city building inspector’s decision to issue the stop-work order.

Before the administrative process concluded, the Douglases filed a petition for writ of mandamus in the circuit court on November 12, 1999. The City filed an answer and a motion to dismiss on December 2, 1999. Following a January 7, 2000 hearing, the trial court denied the motion to dismiss and ordered the Douglases to join Hydco as a necessary party. Appellants then filed an amended complaint on January 20, 2000, to which the appellees timely responded. Appellee Summit/Sun Terrace Property Owners’ Association also intervened in the action.

On March 15, 2000, appellants filed a second amended complaint. Appellees then filed another motion to dismiss, a motion to strike, and a motion for more definite statement. The trial court held a hearing on May 26, 2000, to consider the pending motions. After reviewing the parties’ pleadings and arguments, witness testimony, and exhibits, the circuit court denied appellants’ petition for a writ of mandamus and granted the motion to dismiss. From that order, comes the instant appeal.

Motion to dismiss appeal

As an initial matter, we consider appellees’ jurisdictional challenge. Specifically, appellees claim that the appeal must be dismissed because it is untimely and fails to comply with the procedural requirements for perfecting an appeal. In response, appellants argue that the motion to dismiss should be denied because it is untimely and was not argued below. Appellants’ posture is meritless. Subject-matter jurisdiction is a defense that cannot be waived by the parties at any time nor can it be conferred by the parties’ consent. See Moore v. Richardson, 332 Ark. 255, 964 S.W.2d 377 (1998).

Flere, appellants should have pursued their remedies before the Board and, falling a satisfactory ruling, appealed that decision to the circuit court. However, the Douglases and Hydco concede that they never filed an appeal from the Board’s decision but elected to file an original mandamus petition in the circuit court. In so doing, they failed to exhaust their administrative remedies, and this court has long held that the failure to exhaust administrative remedies is grounds for dismissal. See City of Dover v. Barton, 337 Ark. 186, 987 S.W.2d 705 (1999).

The applicable rules of procedure prescribed the proper appeal route. For example, Ark. Code Ann. section 14-56-416 (Repl. 1998) permits the Board to hear appeals from the decisions of administrative officers regarding the enforcement or application of zoning ordinances, including denials of building permits. Ark. Code Ann. § 14-56-416(b)(2)(A), (c) (Repl. 1998). The statute also provides that the Board’s decisions shall be subject to appeal only in a court of record having jurisdiction. Ark. Code Ann. § 14-56-416(b) (2) (B) (ii).

Arkansas Code Annotated section 14-56-425 (Repl. 1998) elaborates on the appeal process and explains that an appeal from the Board of Adjustment’s administrative decision may be taken to the circuit court of the appropriate county and tried de novo under the same procedure applicable to civil appeals from inferior-court decisions. See City of Paragouid v. Leath, 266 Ark. 390, 583 S.W.2d 76 (1979) (permitting appeal from board of adjustment’s administrative decision to the circuit court). Significantly, this court has interpreted the requirements of section 14-56-425 to include compliance with Inferior Ct. R. 9. Board of Zoning Adjust, v. Cheek, 328 Ark. 18, 942 S.W.2d 821 (1997); Night Clubs, Inc. v. Forth Smith Plann. Comm’n, 336 Ark. 130, 984 S.W.2d 418 (1999).

Rule 9 specifies that an appeal from an inferior court to the circuit court must be taken by filing (1) a record of the inferior-court proceedings, or (2) an affidavit showing that the appellant requested the record from the inferior-court clerk, but the clerk neglected to prepare and certify the record for appeal. Thus, the absence of either the record or the affidavit is fatal to any subsequent appeal. In other words, the requirements of Rule 9 are mandatory and jurisdictional. Cheek, 328 Ark. at 22, 942 S.W.2d at 823.

In the instant case, appellants acknowledge that they have neither filed the record of the City’s administrative proceedings with the circuit court nor filed the required affidavit, certifying that they have attempted to obtain the record. Rather, they prematurely circumvented the appellate process by filing a writ of mandamus prior to the Board’s reaching a final decision on the matter. In sum, appellants simply failed to perfect their appeal in the time and manner provided by law. Accordingly, the trial court never acquired jurisdiction of the appeal, nor did it acquire jurisdiction by appellants’ filing of a mandamus action. See Cheek, 328 Ark. at 21, 942 S.W.2d at 823. In light of appellants’ failure to exhaust their administrative remedies and to properly perfect an appeal, we grant appellees’ motion and dismiss the appeal.


author: R OBERT L. BROWN, Justice. J IM HANNAH, Justice, concurring.

text:
    STATE of Arkansas OFFICE of CHILD SUPPORT ENFORCEMENT v. Christopher WILLIS
    01-238
    59 S.W.3d 438
    Supreme Court of Arkansas
    Opinion delivered November 15, 2001

      Greg L. Mitchell, for appellant.

      Gilbert Law Firm, by: Melinda R. Gilbert and Robert T James, for appellee.
   R OBERT L. BROWN, Justice.

This appeal involves paternity. .The sole question presented is whether the chancery court erred in dismissing the paternity complaint of the appellant, which is the State of Arkansas Office of Child Support Enforcement (OCSE). We believe that the chancery court did err in dismissing that complaint, and we reverse the dismissal order and remand the case for further proceedings associated with the paternity complaint.

On February 13, 1982, John and Merigayle Triplett married. On November 23, 1988, Merigayle had a daughter, Megan. On February 26, 1992, the Tripletts divorced. In the resulting divorce decree entered by the chancery court (1992 decree), the court approved the parties’ agreement regarding custody of Megan. Specifically, the decree stated:

The parties hereby have one (1) child, Megan Elizabeth Triplett, born November 23, 1988, and the Plaintiff [Merigayle Triplett] shall have sole custody of said child with Defendant [John Triplett] having reasonable and seasonable visitation rights.
The Defendant shall pay child support for the said child of $60.00 per week.
The Defendant shall be responsible for all ordinary doctor, hospital, dental and prescription drug bills for the child.

On February 14, 1993, John and Merigayle married for a second time. At some point during the late summer of 1997, Merigayle told John that he might not be Megan’s father, and Merigayle named appellee Christopher Willis as Megan’s putative father. In September of 1997, John called Willis and confronted him about the 1988 affair. Two days later, Merigayle called Willis and told him that he was Megan’s father.

When Willis first knew of his biological relationship to Megan is a matter of factual dispute in this case. According to Willis’s affidavit, Willis and Merigayle had a romantic relationship which lasted from January of 1988 to March of 1988. Although Willis saw Merigayle at various social engagements and restaurants after March 1988, he asserts that the two did not speak again until September of 1997. Willis claims that it was not until September of 1997 that he first knew of a possible biological link with Megan.

Merigayle disputes this in her affidavit. She avers that she told Willis that she thought the child was his as early as May of 1989, six months after Megan was born. She asserts that at that time, Willis called her to discuss personal matters, and he heard a child crying in the background. He asked about the baby, and Merigayle told him that the timing of her pregnancy indicated that the child was his. According to Merigayle, Willis was shocked to hear this and hurriedly got off the telephone. Merigayle adds that she and Willis again discussed the situation in the winter months of 1992. According to Merigayle, the next time she spoke with Willis concerning his being Megan’s biological father was in September of 1997.

On March 14, 1997, Merigayle filed her complaint for divorce from John. In his answer to Merigayle’s petition for divorce, John asserted that he was not Megan’s biological father, and he requested DNA testing to establish his biological relationship to Megan. Merigayle did not object to this testing. The chancery court granted his request, and the testing excluded John as Megan’s biological father. Following this testing, in a divorce decree entered on January 20, 1998 (1998 decree), the chancery court found that John was not Megan’s biological father. The 1998 decree did not order John to pay child support for Megan. No reference was made in the 1998 decree to the 1992 decree. Merigayle did not appeal the 1998 decree. After the 1998 decree, OCSE paid support to Merigayle.

On June 4, 1998, Merigayle averred in an affidavit to OCSE that Willis was Megan’s biological father. On June 22, 1998, OCSE ordered Willis, Megan, and Merigayle to submit to genetic testing to determine paternity. Willis did not challenge this testing. On July 22, 1998, the test results were returned, which showed that there was a 99.98% probability that Willis was Megan’s biological father.

On August 12, 1998, after learning of the test results, OCSE filed a paternity complaint against Willis pursuant to its statutory authority. See Ark. Code Ann. § 9-10-104(a)(4) (Repl. 1998); Ark. Code Ann. § 9-12-210(d)(2) (Repl. 1998). In Willis’s amended answer to OCSE’s petition, he denied that he was Megan’s father and raised affirmative defenses to the petition, including res judicata and collateral estoppel. Both affirmative defenses were based on the 1992 decree. Willis also named John as a defendant to the paternity complaint and cross-claimed against Merigayle and John for fraud and the tort of outrage. He sought injunctive relief and money damages against Merigayle and John. Willis concluded with multiple prayers for relief, including a prayer that the paternity complaint against him be dismissed.

On April 21, 1999, the chancery court dismissed OCSE’s paternity petition against Willis. OCSE appealed the dismissal, and this court dismissed the appeal pursuant to Ark. R. Civ. P. 54(b), because the chancery court’s order did not dispose of Willis’s tort claims against Merigayle and John. See Office of Child Support Enforcement v. Willis, 341 Ark. 378, 17 S.W.3d 85 (2000).

After dismissal of the first appeal, Willis agreed to voluntarily nonsuit the cross-claims against John and Merigayle pursuant to Ark. R. Civ. P. 41(a). On November 11, 2000, the chancery court entered an order reflecting this nonsuit and found as follows:

That based upon the entry of a 1992 Divorce Decree establishing John Triplett as the legal father of the child, Megan Elizabeth Triplett, born November 23, 1998, [sic] the Court hereby finds that paternity of the child was established in 1992. Thus, the pending action for paternity, is improper.

The chancery court dismissed OCSE’s paternity complaint.

OCSE’s sole point on appeal is that the chancery court erred in dismissing OCSE’s paternity complaint as improper on grounds that paternity had been established under the 1992 decree. Initially, we refer to the precepts that govern our review. We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancery court unless it is clearly erroneous. Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999); Office of Child Support Enforcement v. Eagle, 336 Ark. 51, 983 S.W.2d 429 (1999). A finding of fact by the chancery court 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. Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999); RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). It is this court’s duty to reverse if its own review of the record is in marked disagreement with the chancery court’s findings. Dopp v. Sugarloaf Mining Co., 288 Ark. 18, 702 S.W.2d 393 (1986) (citing Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Walt Bennett Ford v. Pulaski County Special Sch. Dist., 274 Ark. 208, 624 S.W.2d 426 (1981)).

In support of its argument for reversal, OCSE emphasizes that the 1992 decree did not address the issue of paternity. Nor, it contends, was paternity an issue in that divorce. Moreover, OCSE claims that when the parties remarried in 1993, this had the effect of annulling the 1992 decree as it related to Megan. OCSE cites Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783 (1928), in support of this proposition. Furthermore, OCSE maintains, when John requested blood testing in 1997 to determine whether he was Megan’s father, Merigayle did not object to that or raise res judicata as a bar to the testing. It was not until the paternity complaint was filed in 1998 against Willis that he raised the affirmative defenses of res judicata and collateral estoppel. Because of this, OCSE contends that res judicata based on the 1992 decree does not bar the paternity action. The agency further contends that because Merigayle did not raise this affirmative defense as part of the paternity testing of John which led to the 1998 decree, she waived that defense and collateral estoppel as well. This, according to OCSE, resulted in the 1998 decree, which was inconsistent with the 1992 decree on the issues of John’s paternity and his obligation to support Megan. Only the later divorce decree should control, OCSE urges, and only that later decree should be given res judicata effect. OCSE concludes that it is the 1998 decree that left Megan with no legal father and no support, which opened the door to a paternity action.

Willis responds that the chancery court really relied on the principle of collateral estoppel and not res judicata in dismissing OCSE’s paternity complaint and that collateral estoppel applies in this case. Collateral estoppel governs this case, he argues, and supports reliance on the 1992 decree rather than OCSE’s theory of inconsistent decrees. He maintains that Oliphant v. Oliphant, supra, does not control this case, because that case dealt with a change of circumstances caused by a second marriage and the effect on child custody. Finally, he urges that the 1992 decree, as it related to paternity, could not be modified after three years under Ark. Code Ann. § 9-10-115(f) (Repl. 1998).

We agree with Willis that the Oliphant case does not control this paternity issue. In Oliphant, even though two marriages and two divorces were also involved, the issue was whether a redetermination of child custody was necessary. The father urged that a review was unnecessary. This court held, however, that the second marriage constituted a change of circumstances which warranted redetermination of the custody issue. The principle of changed circumstances, however, is not a relevant factor in paternity matters.

It is not clear from the chancery court’s order whether the court relied on the doctrine of res judicata or collateral estoppel in deciding that the 1992 decree rendered the paternity action “improper.” Accordingly, we will discuss both doctrines in our analysis, even though Willis relies on collateral estoppel in his brief on appeal. We turn first to the question of whether res judicata prevents OCSE’s paternity action. Res judicata bars relitigation of a subsequent suit when: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Office of Child Support Enforcement v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999) (citing Miller County v. Opportunities, Inc., 334 Ark. 88, 971 S.W.2d 781 (1998); Hamilton v. Arkansas Pollution Control & Ecology Comm’n, 333 Ark. 370, 969 S.W.2d 653 (1998)). Res judicata bars not only the relitigation of claims that were actually litigated in the first suit but also those that could have been litigated. Williams, supra; Wells v. Arkansas Pub. Serv. Comm’n, 272 Ark. 481, 616 S.W.2d 718 (1981). Where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Williams, supra; Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988). The policy of the doctrine is to prevent parties’ relitigating issues on which they have already been given a fair trial. McCormac v. McCormac, 304 Ark. 89, 799 S.W.2d 806 (1990).

We conclude that the principle of res judicata based on the 1992 decree could not govern the outcome of this case for one simple reason: the 1992 divorce action and the 1998 paternity action do not involve the same parties or their privies. While OCSE, arguably, might be in privity with Merigayle due to support payments, Willis was not in privity with either John or Merigayle. Certainly, the interests of Willis and John were not aligned in the 1992 divorce proceeding. Indeed, John was unaware that he was not the biological father. Nor can Willis successfully claim that his interests and Merigayle’s were the same in the 1992 divorce. Willis was not a party to that litigation and did not participate in any way. Under similar circumstances, our court of appeals has held that there was no substantial identification between the mother and an alleged biological father who did not participate in the divorce litigation. See Scallion v. Whiteaker, 44 Ark. App. 124, 868 S.W.2d 89 (1993).

We are aware, of course, that this court has applied the principle of res judicata for purposes of deciding paternity based on a previous divorce decree in two fairly recent cases. See Office of Child Support Enforcement v. Williams, supra; McCormac v. McCormac, supra. In Williams, we held that a former husband’s agreement to a divorce decree which stated that children were born of the marriage and his signing an agreed order on child support foreclosed a later action to establish that he was not the biological father for purposes of abating child support. In McCormac, we held that the mother of a child was barred from contesting her former husband’s paternity in a subsequent dispute over visitation when the mother had previously agreed in the property settlement agreement that one child had been born of the marriage. Thus, it is clear that res judicata does bar relitigation of the paternity issue between the former husband and wife when the parties have agreed in the divorce action that a child was born of the marriage. We note in this regard that Merigayle did not argue the res judicata effect of the 1992 decree in the 1998 divorce proceedings and, indeed, did not object to John’s request for blood testing to establish Megan’s paternity. Nor did she appeal the 1998 decree. As a result, the 1998 decree leaves Megan without a biological father.

In the instant case, Willis was not a party to the divorce decree and was not in privity with a party to the divorce decree. We hold that the 1992 decree does not bar a subsequent paternity action between OCSE and Willis under the principle of res judicata.

The next question is whether OCSE is collaterally estopped from bringing the paternity complaint against Willis. Willis relies heavily on this doctrine of issue preclusion and vigorously contends that the question of paternity was resolved in the 1992 decree and cannot be raised a second time. OCSE’s retort is that the paternity question was never actually litigated in 1992, and, thus, collateral estoppel does not pertain.

Collateral estoppel, or issue preclusion, requires four elements before a determination is conclusive in a subsequent proceeding: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Palmer v. Arkansas Council on Economic Educ., 344 Ark. 461, 40 S.W.3d 784 (2001); Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993); East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986).

Collateral estoppel may be asserted by a stranger to the first judgment or decree, but the party against whom it is asserted must have been a party to the earlier action and must have had a full and fair opportunity to litigate the issue in that first proceeding. 47 Am. Jur. 2d Judgments §§ 645, 650 (citing Arkansas Dep’t of Human Servs. v. Dearman, 40 Ark. App. 63, 842 S.W.2d 449 (1992)). It is apparent that our court of appeals has adopted this rule, though this Court has not. In Coleman’s Serv. Ctr., Inc. v. FDIC, 55 Ark. App. 275, 935 S.W.2d 289 (1996), the appellate court said:

Collateral estoppel is based upon the policy of limiting litigation to one fair trial on an issue and is applicable only when the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question.

Coleman’s, 55 Ark. App. at 291, 935 S.W.2d at 299 (citing Arkansas Dep’t of Human Servs. v. Dearman, supra). We agree with this statement by our court of appeals, as do a majority of jurisdictions, and hereby adopt this principle of collateral estoppel.

There are two reasons why collateral estoppel does not apply to the case at bar. First, this case does not satisfy the Dearman rule in that John did not have the opportunity to fully and fairly litigate the issue of his paternity in the 1992 divorce proceeding. At that time, by all factual accounts, John had no inkling that Megan was not his child. Merigayle, according to her affidavit, had discussed this with Willis but not with John. Thus, John had no reason to contest the presumption that Megan was his.

Secondly, the fourth element of collateral estoppel, that of “actual litigation,” is not met in this case. Unlike res judicata, which acts to bar issues that merely could have been litigated in the first action, collateral estoppel requires actual litigation in the first instance. Huffman v. Alderson, 335 Ark. 411, 983 S.W.2d 899 (1999); Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993). See also Swadley v. Krugler, 67 Ark. App. 297, 999 S.W.2d 209 (1999). Further, this court cursorily applied this element in Miller County v. Opportunities, Inc., 334 Ark. 88, 971 S.W.2d 781 (1998), and held that no issue was “actually litigated” before the court when on appeal, we could not determine that the lower court’s order was based on any actual proceedings.

To discern what “actually litigated” means, we turn to Black’s Law Dictionary. That dictionary defines “litigation” as “The process of carrying on a lawsuit; a lawsuit itself.” Black’s Law Dictionary 944 (7tb ed. 1999). We emphasize the necessity for trying the issue sought to be estopped by stating that the matter must be actually litigated. In the 1992 divorce proceeding, neither John nor Merigayle put Megan’s paternity in issue; hence no adversary presentations of evidence on this point were made. The chancery court’s finding of paternity in the 1992 decree was not the result of litigation. At that time, only Merigayle had doubts that Megan was John’s child, and she had not imparted those doubts to John.

We hold that the failure of John and Merigayle to actually litigate the issue of his paternity in the 1992 divorce proceedings prevents Willis’s application of collateral estoppel to the later paternity action.

Finally, there is Willis’s argument that OCSE is foreclosed from modifying the determination of paternity in the 1992 decree because the modification did not occur within three years of the decree as required by Ark. Code Ann. § 9-10-115(f) (Repl. 1998). We give this argument little credence because we do not view what occurred in the 1992 divorce as either an adjudication of paternity or voluntary acknowledgment of paternity as required under the Paternity Code. See Ark. Code Ann. §§ 9-10-101 through 202 (Repl. 1998). See also Office of Child Support Enforcement v. Williams, supra (provisions of the Paternity Code do not apply to paternity determinations arising as a matter of presumption under a divorce decree). It stands to reason that without a prior adjudication of paternity or an acknowledgment of the same, there can be no modification of paternity. What occurred in 1998 with the paternity complaint by OCSE, accordingly, was not an action to modify but an original action to establish paternity. See Bean v. Office of Child Support Erforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Because we conclude that no adjudication of who Megan’s biological father is has transpired, we hold that § 9-10-115(f) is inapposite to the instant case. All that has occurred is that John was eliminated as the biological father by the 1998 decree. Megan, as a result, is without a father, and no support is currently being paid. Because we hold that a modification of paternity has not occurred in this matter, we need not address Willlis’s argument that OCSE’s action is time-barred.

Reversed and remanded.

Thornton and Hannah, JJ. concur.

J IM HANNAH, Justice, concurring.

While I am compelled to concur in the result in this case, it must be noted that this case turns on a unique set of facts, and reliance on this opinion should take those facts into account. We have before us a couple who married and divorced twice. In this case, we are also faced with a chancellor in the second divorce of the parties who, despite a prior divorce decree setting out that Megan was born of the marriage, allowed DNA testing to disprove that prior finding and then declared John Triplett was not the father of Megan. There was no appeal from this divorce decree and, therefore, this issue was not brought to this court. Thus, when faced with its statutory obligation of locating the proper party to secure repayment of benefits, the Office of Child Support Enforcement was faced with a court order that declared that the presumed and previously declared father was not the father. Therefore, OCSE found no paternity had been established as to Megan and filed an action under Ark. Code Ann. § 9-10-104(4) (Repl. 1998) to establish paternity after the chancery court bastardized Megan.

It is not my view that this decision opens the door to dispute paternity in the typical divorce decree setting out that children born of the marriage are the children of the husband and wife. See Office of Child Support Enforcement v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999). I am concerned that the analysis of the majority under res judicata and collateral estoppel may create the impression that divorce decrees are not the binding court orders they have been previously found to be.

It is important as well to keep in mind that absent the chancery decree bastardizing Megan, there would have been no need to establish paternity. Paternity had been set out in the 1992 decree. Therefore, in such a case, any action by OCSE would be by way of assignment of rights by Merigayle to OCSE. OCSE would not be allowed to challenge Megan’s paternity because OCSE would stand in Merigayle’s shoes as the contractual assignee of her entitlement to support. Office of Child Sup. Enforcem’t v. Ragland, 330 Ark. 280, 954 S.W.2d 218 (1997). By the 1992 decree of divorce, Merigayle acknowledged Megan was born of the marriage. Further, by an affidavit dated June 17, 1993, Merigayle swore under oath that Megan was born of the marriage. Nothing in the statutes creating the paternity action purports to do away with the presumption of legitimacy of a child born during marriage. Hall v. Freeman, 327 Ark. 148, 936 S.W.2d 761 (1997). Further, nothing has altered the bar to parties to a divorce decree challenging the finding of paternity stated therein. Williams, supra. It should also be noted that there is not only the above noted false affidavit, but yet another affidavit stating the truth. There is an affidavit dated May 15, 1998, wherein Merigayle declares Willis is the father of Megan. Merigayle has lied in an affidavit in 1993. It is difficult to imagine this court would countenance Merigayle going into court after affirming under oath that Megan was the child of John Triplett to assert she was not. This would be so simply on grounds of public policy. The integrity of the court would be impugned thereby. Grable v. Grable, 307 Ark. 410, 821 S.W.2d 21 (1991). Because Merigayle could not do so, OCSE under Merigayle’s assignment of rights could not do so. As this court stated in Guaranty Nat’l Ins. v. Denver Roller, Inc., 313 Ark. 128, 854 S.W.2d 312 (1993), (citing Pacific Nat’l Bank v. Hernreich, 240 Ark. 114, 398 S.W.2d 221 (1966)). “It is well settled that ‘assignees can receive no better right than their assignors had.’ ”

Thus, while I must concur in the outcome on this unique set of facts, I must express my concern that this decision not be read too broadly.

THORNTON, J., joins in this concurrence.

       This court has held that a plaintiff cannot nonsuit certain claims against a defendant in order to circumvent Rule 54(b). See Haile v. Arkansas Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995); Ratzlaff v. Franz Foods, 255 Ark. 373, 500 S.W.2d 379 (1973). The underlying reason is that the principle of res judicata requires all claims against a defendant arising out of common facts to be brought, and nonsuiting certain claims would lead to piecemeal appeals and splitting a cause of action. We have also held that nonsuiting claims against separate defendants to avoid a Rule 54(b) dismissal is permissible, because joining separate defendants is not mandatory under the principle of res judicata. See Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996). Here, Willis’s nonsuited claims are cross-claims, and it is not mandated that they be brought. See Ark. R. Civ. P. 13(f). Accordingly, Rule 54(b) is not circumvented.

       The date of Megan’s birth was misstated in the November 11, 2000 order. Her date of birth was November 23, 1988.

       The modification section of the Paternity Code has been amended three times in the past six years to establish differing time periods in which paternity determinations can be modified. See Act 1091 of 1995 (five years); Act 1296 of 1997 (three years); Act 1736 of2001 (no time limit).