author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Freida Ann PHILLIPS v. STATE of Arkansas
    CR 87-69
    739 S.W.2d 688
    Supreme Court of Arkansas
    Opinion delivered November 23, 1987

      Mathis & Mathis, by: Travis Mathis, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Freida Ann Phillips has appealed from her conviction of the first degree murder of her son, David. The disputed issues were the element of premeditation and whether Mrs. Phillips was capable of distinguishing between lawful and unlawful conduct and conforming her behavior to the requirements of the law.

The state proved that David Phillips, a two year old male, died by drowning. Mrs. Phillips reported to the police that she had put her son down for his nap and later in the afternoon she discovered that he was missing. After some hours spent investigating the possible whereabouts of the child, Mrs. Phillips led police to the Davidson Campground where David’s body was found in one of the cabins. Mrs. Phillips explained that she had left David briefly in the bathtub and when she returned he was under water. Unable to revive him, she took his body to the campground where it was later found.

Mrs. Georgia Pipkin testified that she had known Freida Phillips for about fifteen years. She was Mrs. Phillips’s close friend and confidant. Mrs. Phillips told Mrs. Pipkin she was unhappy and depressed when she learned that she was pregnant, that she hated the child and her life since his arrival, that she prayed that David would die. The witness testified to chronic neglect of David and to a number of attempts by Mrs. Phillips to choke him, suffocate him or force objects down his throat. Mrs. Phillips told Mrs. Pipkin that she would kill David but for fear of getting caught. Mrs. Pipkin’s repeated efforts to get Mrs. Phillips to discuss these feelings with her husband and her psychiatrist, Dr. Stuart Harris, went largely unheeded. Mrs. Pipkin testified that Mrs. Phillips was devoted to her older two children, but after David’s arrival was depressed and irrational. She said she had reported the situation to the SCAN office.

Mrs. Phillips testified in her own behalf. She described periods of acute depression, requiring hospitalization. She maintained that she had exaggerated her mistreatment of David in her talks with Mrs. Pipkin, that she did not actually do all she said she had done in connection with David, in her depressed state she only wanted Mrs. Pipkin to feel as bad as she did. She told of putting David in the bathtub and contemplating the unfinished housework. She said the next thing she remembered was David under the water. The gist of her testimony was that she may have put David in the tub, “I don’t know if I held him under. I just don’t know. I had my hands on him and he was struggling and I pulled him out after he was dead.”

Dr. Stuart Harris and Dr. Douglas Stevens testified on behalf of Mrs. Phillips that they diagnosed her condition as severe depression with psychosis, rendering her incapable of distinguishing between right and wrong or conforming her behavior to the requirements of the law.

In addition to the expert witnesses, the defense called Mrs. Beverly Bridges, a friend of Freida Phillips for some eight years. She said Mrs. Phillips had been active and involved in their church, serving for several years as vice president and then as president of the Young. Methodist Women. Mrs. Bridges described the depression which accompanied Mrs. Phillips’s pregnancy, how Mrs. Phillips made no preparations for the arrival of the baby and of her indifference to her son after his birth. Mrs. Bridges was asked if, having observed Freida Phillips over this entire period of time, she had formed an opinion as to whether she was mentally competent. At this point the state objected and the trial judge stated that he would sustain the objections “based on your questions up to this point.” Counsel for the defendant asked that his exceptions be noted and passed the witness for cross-examination.

We are asked to reverse on the single issue that it was error to refuse to allow a lay witness, Mrs. Bridges, to give her opinion as to Mrs. Phillips’s mental condition. We have held in an unbroken line of cases extending back for decades that a lay witness can testify to an opinion as to the competency of another if he or she has had an adequate basis for forming an opinion. Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986). A.R.E. Rule 701. The rule was summarized in Avery v. State, 271 Ark. 584, 609 S.W.2d 52 (1980):

It is well established that a nonexpert witness may testify as to the sanity of a defendant if a proper foundation is laid; however, the trial court should exclude the opinion testimony of a nonexpert witness whose association with the accused and opportunities for observation for a sufficient length of time are not adequately shown. Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977); Raprich v. State, 192 Ark. 1130, 97 S.W.2d 429 (1936); and Davis v. State, 182 Ark. 123, 30 S.W.2d 830 (1930). The trial judge will be reversed only if he has abused his discretion in passing upon the preliminary question of competency. Raprich v. State, supra. See also Rule 701, supra.

Whether the objection was sustained because the trial court felt a sufficient foundation had not been laid is not disclosed by the record, although it would seem that Mrs. Bridges’s close association with Mrs. Phillips and her family over eight years both before and after the birth of David, provided ample foundation for an opinion. The state points out that there was no proffer of Mrs. Bridges’s opinion as to the competency of Mrs. Phillips, although arguably the answer was apparent from the context within which questions were asked. A.R.E. Rule 103(a)(2). Assuming Mrs. Bridges would have testified that in her opinion Mrs. Phillips was not mentally competent, we are satisfied no substantial prejudice resulted. A.R.E. Rule 103(a).

As we have noted, two experts testified on behalf of the defense — Dr. Stuart Harris and Dr. Douglas Stevens. Both individuals, one a psychiatrist, the other a psychologist, have had extensive training and practice in their respective fields. Both were examined exhaustively on direct and cross-examination and each gave unequivocal affirmance to the defense’s position that Mrs. Phillips was incapable of appreciating the criminality of her conduct or of conforming her actions to the requirements of the law. Dr. Harris, it might be noted, had been a treating physician of Mrs. Phillips for two years prior to the death of David Phillips, and was thoroughly familiar with her psychiatric history. We conclude that the single answer by a lay witness, under the circumstances of this case, concerning the mental competency of the defendant, was cumulative of other, more material testimony on the same issue and the exclusion was, therefore, harmless. Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986); Hall v. State, 286 Ark. 52, 689 S.W.2d 594 (1985).

We have examined all other objections made during the trial pursuant to Rule 11(f), Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

Affirmed.

Purtle, J., and Newbern, J., dissent.

John I. Purtle, Justice,

dissenting. The appellant was charged with first degree murder. In presenting her defense, she called two expert witnesses, Dr. Stuart Harris and Dr. Douglas Stevens, who testified that she was incapable of distinguishing between right and wrong or conforming her behavior to the requirements of the law. The defense attorney then called a lay witness, a close friend, to give an opinion about appellant’s mental condition. Her attorney asked the witness if she had formed an opinion about whether the appellant was mentally competent. After the trial court sustained the state’s objection, the appellant’s attorney failed to make a proffer of proof.

Our common law clearly establishes the rule that a lay witness may testify about the mental competency of an accused if a proper foundation is laid. Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986); Avery v. State, 271 Ark. 584, 609 S.W.2d 52 (1980); Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977). In addition, we have said that lay testimony about mental competency is admissible in light of A.R.E. 701 because “a witness may give a non-expert opinion on matters rationally based upon his perception if it is helpful to a clear understanding . . . of a fact issue.” Graham v. State, supra. Arkansas Statute Annotated § 41-602 (Repl. 1977) provides: “Evidence that the defendant suffered from a mental disease or defect is admissible to prove whether he had the culpable mental state required for commission of the offense charged.” Because of this statute, we have said “even if the mental disease or defect did not constitute a defense, evidence of it was relevant on the question of his culpable mental state . . .” Campbell v. State, 265 Ark. 77, 567 S.W.2d 938 (1979).

A.R.E. Rule 103(a) and 103(a)(2) provide:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(Emphasis added.)

The above quoted rule means that there is no need for a proffer where the substance of the proffer would be apparent from the context in which the question was asked. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). The reason that a proffer is not required under such circumstances is that the law does not require a vain and useless act. United States v. Alverez, 584 F.2d 694 (5th Cir. 1978).

It is apparent from the context in which the question was asked that the witness would have testified that her friend was not mentally competent. Appellant’s trial lawyer was entitled to rely on our rule of evidence and not make a formal proffer.

The majority opinion acknowledges that the trial court’s ruling was probably in error, but holds that it was not prejudicial because an expert witness testified to the same effect. I cannot come close to agreeing. In Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981), four doctors gave their expert opinion that Curry was not mentally competent to understand the criminality of murdering five persons. There was lay testimony that she was mentally competent. In upholding the jury verdict finding her guilty of capital murder, we held that the jury was not bound by the unanimous opinion of the four medical experts. Likewise, I cannot say with any degree of certainty that the jury in the present case might not have believed the lay witness even though two experts had also expressed the same opinion. Mrs. Bridge’s testimony may have been the basis of a jury verdict finding the appellant to have been mentally incompetent.

The ruling was prejudicial and I would reverse and remand for a fair trial.

Newbern, J., joins in this dissent.


source: Caselaw Access Project

author:
David Newbern, Justice.
      John I. Purtle, Justice,

license: Public Domain

text:
    HALLMARK CARDS, INC. v. Edward H. PEEVY
    87-248
    739 S.W.2d 691
    Supreme Court of Arkansas
    Opinion delivered November 23, 1987

      Norman Wilkinson, for appellant.

      Martin, Vater, Karr & Hutchinson, by: W. Asa Hutchinson, for appellee.
   David Newbern, Justice.

The appellant, Hallmark Cards, Inc., sued the appellee, Edward H. Peevy, who had guaranteed an obligation owed to Hallmark by Garry Peevy. Both parties moved for summary judgment. Hallmark contended it was entitled to summary judgment on the basis of the verified account statement attached to its motion. Edward H. Peevy contended that the amount due was disputed and, because Hallmark had sold the property pledged by Garry Peevy as security for the obligation without notifying Edward H. Peevy, Hallmark was not entitled to a deficiency judgment. Hallmark contended that Edward H. Peevy was not entitled to notice of the sale of the collateral. The central issue thus became whether notice of the sale of collateral to a guarantor was a necessary prerequisite to seeking a deficiency judgment against the guarantor. The summary judgment motion of Edward H. Peevy was granted. As we agree that the notice was necessary, the judgment is affirmed to the extent the obligation to Hallmark was clearly covered by the security agreement pursuant to which the collateral was pledged. We must reverse and remand, however, as to that portion of the obligation which was not clearly covered by the security agreement.

Hallmark’s complaint alleged that Garry Peevy owed it $38,899.81, plus $812.61 he had agreed to pay to Heartline, Inc., a subsidiary of Hallmark, and that Edward H. Peevy was liable for the debt because of a guaranty agreement he had executed. Exhibits filed with the complaint showed that the larger of the two amounts was comprised of overdue balances on two separate accounts Garry Peevy had with Hallmark. One of these two accounts was labeled “Open Fixture Balance,” and the other was labeled “Open Account Balance.” Edward H. Peevy’s answer was a general denial.

In response to requests for admission, Edward H. Peevy admitted the “genuineness” of the guaranty agreement and of his signature upon it. An interrogatory posed by Edward H. Peevy asked Hallmark if it had “any collateral pledged on the fixture account?” The answer was that Peevy Enterprises, Garry Peevy’s company, had “granted Hallmark a security interest in trade fixtures, card racks, related equipment and proceeds therefrom pursuant to a Security Agreement dated September 3,1981.” In response to further interrogatories, Hallmark stated it had sold those items at a private sale, for $18,200 which it had credited to Garry Peevy’s account and that, although Garry Peevy had been notified of the sale by telephone, no written notice had been given to either Garry Peevy or Edward H. Peevy.

Responding to Edward H. Peevy’s motion for summary judgment, Hallmark contended that only the “fixture account,” in the amount of $21,991.25, was secured by the collateral, and that the “open account” balance of $17,721.16 was not affected by any decision whether notice of the sale was given or required. The trial court denied Hallmark’s motion for summary judgment, and granted Edward H. Peevy’s motion for summary judgment “on the entire amount sued for.”

1. Notice required

The notice requirement with which we are concerned here is stated in the relevant part of Ark. Stat. Ann. § 85-9-504(3) as follows: “. . . reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor. . . .” Hallmark argues Edward H. Peevy was not a “debtor” and thus was not entitled to notice. “Debtor” is defined by Ark. Stat. Ann. § 85-9-105(l)(d) as:

. . . the person who owes payment or other performance of the obligation secured, whether or not he owns or has rights in the collateral, and includes the seller of accounts or chattel paper. Where the debtor and the owner of the collateral are not the same person, the term “debtor” means the owner of the collateral in any provision of the Article [chapter] dealing with the collateral, the obligor in any provision dealing with the obligation, and may include both where the context so requires.

In Norton v. National Bank of Commerce of Pine Bluff, 240 Ark. 143, 398 S.W.2d 538 (1966), we were confronted with similar facts. A car dealer took a note and conditional sales contract from a buyer and assigned it to the bank, promising that in the event of default the dealer would repurchase the note and contract for the amount due. Upon default by the buyer, the bank sold the car without notice to the dealer. We held that the dealer was a “debtor” entitled to notice pursuant to the statute and as a matter of simple fairness. In discussing the statute, we noted that the dealer was one who, in the terminology of § 85-9-105(1 )(d), owed “other performance” of the obligation. Although the dealer was not a party to an agreement specifically called a “guaranty agreement” in the Norton case, his obligation pursuant to the assignment agreement with the bank was like that of a guarantor, and we see little distinction between that situation and the one before us now.

Other jurisdictions have held, virtually unanimously, that a guarantor is a debtor for purposes of the notice requirement. The cases are collected in Annot., 5 A.L.R. 4th 1291 (1981). We hold here, as we did in the Norton case, that simple fairness requires that the term “debtor” to whom notice is required include one who is responsible for payment upon default of the principal obligor.

2. Effect of lack of notice

In the Norton case, after reaching the conclusion that the dealer was a debtor and entitled to notice of the sale of the collateral, we considered the effect of the failure to provide notice. We held that the obligation of the dealer was not necessarily extinguished, but that the secured party who had wrongfully sold the collateral without giving notice to the dealer would have the burden of proving the extent to which the sale of the collateral should be regarded as having extinguished the obligation. In other words, we said the presumption would be that the collateral was worth the same as the obligation, and the bank would have the burden of showing any difference.

In First State Bank of Morrilton v. Hallett, 291 Ark. 37, 722 S.W.2d 555 (1986), after thoroughly considering the matter, we overruled that portion of the Norton decision which would have permitted the secured party to recover a deficiency upon overcoming the presumption that the collateral was worth at least as much as the amount of the obligation. We held clearly that the right to any deficiency judgment was dependent upon the secured party having complied with the notice requirement. Hallmark asks that we overrule our decision and return to the position we took in the Norton case. No argument is made here that was not considered in reaching our decision in the Hallett case, and we decline to overrule it. Our holding here is that a secured party who has failed to comply with the requirement that a debtor be notified of the sale of collateral may not recover the deficiency established between the sale price and the obligation owed to the creditor by the debtor.

3. Separate accounts

In considering a motion for summary judgment, a judge may consider pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, to determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to summary judgment. Ark. R. Civ. P. 56(c). The only basis for Edward H. Peevy’s motion for summary judgment was his contention that the indebtedness to Hallmark he had guaranteed was secured by collateral which had been sold without notice to him, thus barring Hallmark from obtaining a deficiency judgment. There is no doubt he had guaranteed the entire indebtedness of Garry Peevy to Hallmark; however, there is doubt as to the extent to which that indebtedness was secured by the collateral which was sold without notice to him. While the complaint filed by Hallmark stated only that Edward H. Peevy was liable under the guaranty agreement for $38,899.81 and $812.61, without dividing the larger figure into “fixture” and “open account” portions, the documents attached to the complaint and referred to in it clearly showed the two balances comprising the larger figure and referred to them as separate accounts.

The factual underpinning for Edward H. Peevy’s motion was Hallmark’s response to this question: “Did the Plaintiff [Hallmark] have any collateral pledged on the fixture accountV' (Emphasis supplied.) The response was: “Peevy Enterprises granted Hallmark a security interest in trade fixtures, card racks, related equipment and proceeds therefrom pursuant to a Security Agreement dated September 3, 1981.” Hallmark thus has not admitted that there was collateral pledged with respect to anything other than the “fixture account.” The security agreement to which Hallmark’s answer to the interrogatory referred is not in the record before us. We have no idea whether the collateral was pledged only on the “Open Fixture Balance” portion of the indebtedness or secured all indebtedness of Garry Peevy to Hallmark.

At least a partial summary judgment was appropriate in this case. See Ark. R. Civ. P. 56(d). However, the answer to the interrogatory on which Edward H. Peevy based his motion for summary judgment was a sufficient basis only with respect to establishing that Hallmark was not entitled to judgment with respect to the so-called “fixture account.” It remains to be seen upon remand whether the security agreement extended beyond that account by pledging the collateral for all indebtedness of Garry Peevy to Hallmark.

4. Hallmark’s motion

Hallmark contends that its motion for summary judgment should have been granted. In response to Hallmark’s motion, Edward H. Peevy contended that the account balances stated in the complaint were incorrect. Attached to his response to Hallmark’s summary judgment motion were two letters from an attorney representing Garry Peevy stating that Garry Peevy questioned the amount stated as the “fixture” account balance.

The decision that Edward H. Peevy was entitled to summary judgment with respect to the entire amount owed by Garry Peevy to Hallmark made it unnecessary to decide Hallmark’s motion, although the trial court did so and denied it. If it is determined upon remand that Edward H. Peevy had guaranteed payment of an obligation of Garry Peevy which was not secured by the collateral sold without notice to Edward H. Peevy, the question may again arise whether Hallmark is entitled to summary judgment on an obligation not included in the security agreement. The trial court can then decide whether there is any remaining issue of fact in that respect.

We affirm the judgment to the extent of holding that Hallmark is not entitled to a deficiency judgment with respect to the difference between the $18,200 it received upon sale of the fixtures and the balance of the fixture account, $21,991.25, which Hallmark stated was secured by the security agreement. We reverse the judgment to the extent it precluded Hallmark from proving its entitlement to recover on any account or amount not clearly covered by the security agreement and thus not clearly extinguished by the sale of the collateral without notice.

Affirmed in part, reversed in part, and remanded.

Hays and Glaze, JJ., dissent.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. In order to prevent a misapprehension that we have not properly researched the subject, I point out that the Court is aware of Rhodes v. Oaklawn Bank, 279 Ark. 51, 648 S.W.2d 470 (1983), in which we effectively overruled Norton v. National Bank of Commerce of Pine Bluff, 240 Ark. 143, 398 S.W.2d 538 (1966), and was the basis for the decision in First State Bank of Morrilton v. Hallett, 291 Ark. 37, 722 S.W.2d 555 (1987).

Tom Glaze, Justice, dissenting. I dissent for the same reasons I did in First State Bank v. Hallett, 291 Ark. 37, 722 S.W.2d 555 (1987). Here, appellant asks this court to overrule our recent holding in Hallett and to return to Arkansas’s long established Norton rule, which I view as one that was fair both to the debtor and secured creditor. The Hallett decision is a punitive one directed towards secured creditors. In my view, Hallett is a clear mistake by this court, and should be given a short life.

Hays, J., joins in this dissent.


author: Tom Glaze, Justice.

text:
    Charles D. RAGLAND, Commissioner of Revenues v. ALLEN TRANSFORMER COMPANY
    87-175
    740 S.W.2d 133
    Supreme Court of Arkansas
    Opinion delivered November 23, 1987
    [Rehearing denied December 21, 1987.]

      Timothy J. Leathers, Wayne Zakrzewski, Kelly S. Jennings, Ann Kell, Joe Morphew, Philip Raia, and Robert Jones, by: John H. Theis, for appellant.

      Pryor, Barry, Smith & Karber, by: John D. Alford, for appellee.
   Tom Glaze, Justice.

This appeal involves the appellant’s assessment of a sales tax on repair services performed on electrical transformers by the appellee at its business location in Fort Smith, Arkansas. After exhausting its administrative remedies, appellee filed suit in chancery court, alleging the appellant’s assessment was an illegal exaction. The chancellor upheld the appellant’s sales tax assessment on the repairs performed for Arkansas customers, but disallowed as an illegal exaction the assessment on repair services performed within the state on transformers owned by out-of-state customers. The chancellor also awarded appellee attorney’s fees. Both parties appeal from the chancellor’s decree.

The facts are undisputed. Appellee is in the business of repairing, rewinding and remanufacturing electrical transformers, and while all its repair services are performed in Arkansas, appellee’s customers are both within and outside the state. In either case, appellee sends its own truck to pick up the customer’s burned out transformer, takes the unit to appellee’s business location in Fort Smith for the required repairs and, again by truck, returns the transformer to the customer. As a result of appellant’s sales tax audit of appellee’s records during the period of April 1977 through March 1983, appellee was assessed an additional tax, interest and penalty of $39,361.18.

Appellant first argues the chancellor erred in determining that no taxable sale occurred on services appellee rendered in the state for its out-of-state customers. In reaching his decision, the chancellor reasoned that before a taxable service can exist, Ark. Stat. Ann. § 84-1902(c) (Repl. 1980) requires that the transfer of title or possession of the customer’s transformer must occur within Arkansas. Based upon this same reasoning, the chancellor upheld appellant’s assessment of sales tax upon the repairs appellee performed for its Arkansas customers. Thus, the question posed by appellant’s argument is whether the sales tax can be imposed on services performed on electrical devices when the repairs are performed in the state, but the transfer of possession of the device to appellee actually takes place outside the state. We hold it can, and, therefore, must reverse the trial court’s holding to the contrary.

Arkansas imposes a three percent tax upon the gross proceeds or receipts derived from all sales listed in Ark. Stat. Ann. § 84-1903 (Repl. 1980 and Supp. 1985), and, under subsection (c)(3) of that statute, the tax is levied on, among other things, the service of alteration and repair of electrical appliances and devices. Under Ark. Stat. Ann. § 84-1902(c), the term “sale”, in pertinent part, is defined to mean the transfer of either title or possession for a valuable consideration of tangible personal property, regardless of the manner, method, instrumentality, or device by which such transfer is accomplished. Appellee’s argument, adopted by the chancellor below, is that because appellee picked up and delivered the transformers owned by out-of-state customers at the customers’ business locations, no sale, i.e. transfer of possession, occurred within the state pursuant to §§ 84-1902(c) and -1903(c) to make those transactions taxable. To support its argument, appellee cites the case of Gaddy v. DLM, Inc., 271 Ark. 311, 609 S.W.2d 6 (1980), a case we find unpersuasive because it involved the sale of tangible personal property and did not concern a service, as is the situation here.

In considering the proper construction to be given § § 844902(c) and -1903(c), as those provisions pertain to the assessment of taxes on services, it is this court’s duty to look to the whole act and, as far as practicable, to reconcile the different provisions to make them consistent, harmonious and sensible. Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985). We must also decline an interpretation that results in absurdity or injustice, leads to contradiction or defeats the plain purpose of the law. Id., 285 Ark. at 185; 686 S.W.2d at 392. Towards these ends, we first look at § 84-1902(c), the provision which defines “sale.” In doing so, we find the last sentence of that subsection excludes the furnishing or rendering of services from the definition of sale. As a result, the general assembly obviously intended, under these provisions, that the transfer of title or possession requirement must occur in the sale of tangible personal property before the tax is imposed; it provided no such requirement when imposing the tax on services. Other reasons support this interpretation, as well.

For example, the general assembly, in three instances, has deemed it necessary to exempt from the gross receipts tax certain services performed in-state on out-of-state property. In 1981, it excluded from the tax the repair or maintenance of railroad parts, railroad cars and equipment brought into the state for such repair. See Ark. Stat. Ann. § 84-1903(c)(3) (Supp. 1985), as amended by Act 983 of 1981. That same year, the general assembly also provided that the gross receipts tax would not apply to in-state services performed on watches and clocks which are received by mail or common carrier from outside the state and which, after the service is performed, are returned in the same manner, or in the repairman’s own conveyance, to points outside the state. See Ark. Stat. Ann. § 84-1903.4 (Supp. 1985). And, finally, the general assembly in 1985, provided an exemption (until July 1, 1987) for in-state repair or refurbishing services performed on telephone instruments that are sent into this state, and, after such repairs or refurbishing, are shipped back to the state of origin. See Ark. Stat. Ann. § 84-1903.6 (Supp. 1985). Unquestionably, the general assembly, in providing for these special exemptions on specified equipment or devices brought into state for repairs, obviously understood and intended Arkansas’s sales tax, levied under § 84-1903(c)(3), to cover services performed within the state for both in-state and out-of-state customers.

Appellant underscores another compelling reason why Arkansas’s gross receipts law must be construed in this fashion by pointing to the absurdities that could result if that law were read to allow the imposition of tax on services only when a transfer of possession occurs within the state. To illustrate, under appellee’s rationale and the trial court’s holding, the repair of a television could be taxable only if the owner surrendered title to or possession of his set. Thus, if the repairman picks up the set and repairs it at the shop, the sales tax would apply; if he repaired it at the customer’s house, no transfer would occur, so no tax would attach. The same rationale would extend to other type services or repairs, as well. In the same vein, we need only look to this court’s decision in Department of Finance and Administration v. Otis Elevator Co., 271 Ark. 442, 609 S.W.2d 41 (1980) wherein we upheld the state’s assessment of sales tax on services performed on elevators, when, clearly, no transfer of title or possession occurred. We conclude, in harmonizing and reconciling our sales tax provisions dealing with services and repairs performed within the state, the appellant’s assessment of a sales tax on services performed for both in-state and out-of-state customers of appellees was correct.

Next, we turn to appellee’s arguments that Arkansas’s Gross Receipts Act is ambiguous, vague and violates appellee’s rights to due process and equal protection. Appellee, consistent with its earlier contention, argues that, at best, uncertainty exists under the act as to whether a sales tax should be assessed on transactions involving its out-of-state customers. Referring to Wiseman v. Arkansas Utility Co., 191 Ark. 854, 88 S.W.2d 81 (1935), it urges that a tax cannot be imposed except by express words indicating that purpose, and that any ambiguity in the act must be resolved in appellee’s favor. Appellee further argues an earlier audit performed on its records in 1971 reflects no assessment on out-of-state transactions and it was provided no notice of appellant’s later position to assess such transactions although the tax laws were the same at the time the 1971 audit and the one in issue here were performed.

In response to appellee’s concerns, we simply cannot agree that § 84-1903 (c)(3) is in any way vague in its levy of taxes upon the services provided by appellee. Even appellee concedes that the transformers are electrical devices covered under § 84-1903(c)(3) and, as such, the repairs of the transformers are subject to the sales tax. Contrary to appellee’s assertion, we simply disagree that the tax law is vague in its levy of taxes on appellee’s out-of-state customers. Nor do we agree that the appellant’s prior audit could have reasonably misled appellee into the belief that its out-of-state transactions would not be assessed. We have carefully reviewed appellee’s exhibit #5, which it argues reflects a tax was not assessed on five out-of-state customers; we find the five transactions to which appellee refers bear changes in each instance to reflect Arkansas addresses. In short, the exhibit provides no real insight concerning whether the transactions occurred in state or out.

Finally, appellee attacks the assessment as a violation of the interstate commerce clause, saying all the sales occurred outside the State of Arkansas, and to tax those transactions would have a chilling effect on its ability to do business with out-of-state customers. We find no merit in appellee’s argument. In Evco v. Jones, 409 U.S. 91 (1972), the Supreme Court, citing its earlier holding in Department of Treasury v. Ingram-Richardson Mfg. Co., 313 U.S. 252 (1941), reiterated the rule that a state may tax the proceeds from services performed in the taxing state, even though they are sold to purchasers in another state. The Evco decision was relied on by the Tennessee Supreme Court in its recent decision in Le Tourneau Sales and Service, Inc. v. Olsen, 691 S.E.2d 531 (Tenn. 1985). In rejecting there the same interstate commerce clause argument as is now made here, the Tennessee court upheld the imposition of sales taxes on services performed within the state when motors were shipped into Tennessee, where they were rebuilt and then returned to the out-of-state customer. As was the situation in Olsen, the taxable event involved here is the rendering of services within the state, and a substantial connection with this state exists to justify the imposition of the sales tax on repair work performed by the appellee in Arkansas.

Consistent with the foregoing reasons, we reverse and remand this cause. In doing so, we need not reach appellant’s challenge of the trial court’s award of attorney’s fees to the appellee as the prevailing party below, except to state that award, too, is reversed upon remand of this cause.


author: Per Curiam.

text:
    Michael MONK a/k/a Al Capone v. STATE of Arkansas
    739 S.W.2d 539
    Supreme Court of Arkansas
    Opinion delivered November 23, 1987

      Marc Aaron Kline, for appellant.
    No objection.
   Per Curiam.

Appellant, Michael Monk, by his attorney, has filed for a rule on the clerk.

His attorney, Marc Aaron Kline, admits that the record was tendered late 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 our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice. Steele Hays, Justice,

text:
    Jeffery Lee ALLEN, Administrator of the Estate of Wayne R. Allen, Deceased, and as Natural Guardian and Loco Parentis for Dedrick Allen, Diedra Allen, Margaret Allen, Ferbia Allen, Larry Allen, and Charlotte Jones v. Dale KIZER, Ronnie Luttman, Brad Jackson, David Alverson, Rommie Morris, and Haden Jones
    87-208
    740 S.W.2d 137
    Supreme Court of Arkansas
    Opinion delivered November 30, 1987
    [Rehearing denied January 13, 1988.]

      Brockman & Norton, by: E.W. Brockman, Jr., for appellants.

      Ramsey, Cox, Lile, Bridgeforth, Gilbert, Harrelson & Starling, for appellees.
   Jack Holt, Jr., Chief Justice.

In this tort action, the appellant alleges that the circuit court erred in refusing to recuse, failing to render a default judgment, and in granting appellee’s motion for summary judgment. We find no error in these actions and affirm the trial court.

On March 30, 1984, appellant Jeffery Lee Allen, administrator of the estate of Wayne R. Allen, filed a complaint against the appellees, Dale Kizer, Ronnie Luttman, Brad Jackson, David Alverson, Rommie Morris, and Haden Jones (“employees”), who were the controller, plant superintendent, shift foreman, relief shift foreman, assistant plant superintendent, and maintenance employee, respectively, of Planters’ Cotton Mill. The estate alleged that the employees were negligent in allowing bare wires to exist in the work area of the mill. These wires came into contact with a hopper that Allen was loading with cotton, which resulted in his death by electrocution.

On the morning of May 10,1984, the deadline for filing the answer to the estate’s complaint, the employees’ attorney dictated the final draft of the answer to his secretary. Under normal circumstances the attorney would have returned between 3:30 and 4:00 p.m. to sign the answer and place it in the hands of a runner for filing. However, at approximately 3:30 p.m. the attorney was met in the hallway by one of his partners who stated, “We need to meet, we’ve got a problem.” One of the firm’s associates was apparently having significant professional and personal problems. The attorney and the rest of the partners in the firm met to discuss the matter for a couple of hours. As a result of this distraction, the attorney failed to file the answer when due.

On May 11, 1984, the estate filed a motion for default judgment, and the employees filed a belated answer and a motion to extend the time in which to file an answer. On August 21,1984, the circuit judge denied the motion for default judgment and granted the motion for extension of time stating that the attorney’s failure to file was the result of excusable neglect or other just cause. He concluded that the circumstances, the complexity of the case, and the heavy legal responsibilities of the attorney in this case and others constituted excusable neglect or other just cause.

On December 23, 1986, the employees filed a motion for summary judgment alleging that the duty to provide a safe place to work is a nondelegable duty of an employer and that the Arkansas Worker’s Compensation Act provides the exclusive remedy for the estate. The trial court granted this motion. From the various findings and orders as to recusal, default judgment, and summary judgment, the estate appeals.

The estate first contends that the trial judge should have recused. The state in its affidavit stated that the judge commented on May 11, 1984, at a hearing on the motion for default judgment, before testimony was taken, that if the employees were only one day late in filing their answer, he would allow them to file their answer and would deny the motion for default judgment. On May 30,1984, the estate asked the judge to recuse, but he refused stating that the affidavit was not correct as to what he had said. However, he did state that “my inclination would probably be that if the answer was filed just one day late, my leanings probably would be-toward allowing the filing of any answer. It certainly was not a prejudgment.”

The estate argues that the statements of the trial judge amount to an obvious objective demonstration of prejudice in violation of Canon 3(C) of the Code of Judicial Conduct. We disagree. Canon 3(C) requires a judge to disqualify himself in a proceeding in which his impartiality might reasonably be questioned. “The fact that a judge may have, or develop during the trial, an opinion or a bias or prejudice does not make the trial judge so biased and prejudiced as to require his disqualification in further proceedings.” Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983). “Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge.” Id. The circuit court judge merely indicated his opinion regarding the application of law pending a full hearing. This opinion did not make the judge so biased as to require his disqualification.

The estate also contends that the circuit court erred in finding that the attorney’s failure to file a timely answer was due to excusable neglect or other just cause. Ark. R. Civ. P. 6(b) provides the following:

Enlargement: When by these Rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the Court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect, unavoidable casualty or other just cause, but it may not extend the time for taking an action under Rules 50 (b), 52 (b), 59 (b), (d) and (e) and 60 (b), except to the extent and under the conditions stated in them.

In DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982), the attorney prepared an answer, but he put it in a place where it was covered by other papers, and as a result, it was not discovered until four days after its due date. We held that the trial judge abused his discretion in condoning such negligence by refusing to grant a default judgment. We stated, “If such carelessness is excusable, then any attorney can shift the responsibility for filing any pleading to his secretary by simply dictating the pleading and dismissing the pleading from his mind.”

We see no basic difference in DeClerk and this case. If the attorney believed that the problem with the associate was of such importance that it demanded his full attention, he could have delegated the responsibility for filing to another attorney in the firm, who would have understood the necessity of a timely filing. Instead, he merely failed to take any action on the matter. The fact that the answer was filed only one day late is of no consequence whatsoever.

We state without reservation that the attorney of the employees responsible for the late filing failed to show excusable neglect, unavoidable casualty, or other just cause. Accordingly, we conclude that the trial court erred in finding that the attorney’s conduct was excusable and, thus, in allowing the answer to be filed.

Even though the attorney’s conduct is inexcusable, it does not automatically follow that the circuit court erred in failing to render a default judgment. “The rendition of a default judgment upon a complaint which fails to state facts sufficient to state a cause of action is reversible error.” Thompson v. Dildy, 227 Ark. 648, 300 S.W.2d 270 (1957); see also Kohlenberger v. Tyson’s Foods, Inc., 256 Ark. 584, 510 S.W.2d 555 (1974). If the estate’s complaint which is before us does not state facts sufficient to state a cause of action, the trial court did not err in refusing to render a default judgment or in granting the employees’ motion for summary judgment.

We denied tort immunity in King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959) for two fellow employees, a truck driver and a laborer, who negligently backed over the decedent employee with a truck. We held that for the purposes of Ark. Stat. Ann. §81-1340 (Repl. 1976) of the Worker’s Compensation Act, an employee’s claim against his employer does not affect his right to sue a negligent co-employee. However, in Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969) we stated that the duty to provide a safe place to work is that of the employer and cannot be delegated to an employee.

Recently, in Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985), we held that supervisory employees are immune from suit for negligence in failing to provide a safe place to work. See Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987). In Simmons we stated, “Since an employer is immune under the Worker’s Compensation statutes from suit for a negligent failure to provide a safe place to work, the same immunity should protect supervisory employees when their general duties involve the overseeing and discharging of that same responsibility.”

Based upon our holdings in Simmons and Fore, we conclude that supervisory as well as non-supervisory employees are immune from suit for negligence in failing to provide a safe place to work. Dale Kizer, controller of the mill, Ronnie Luttman, plant superintendent, Rommie Morris, assistant plant superintendent, and David Alverson, relief shift foreman, were clearly acting as supervisory employees of the mill at the time of the accident. They are immune under our holdings in Simmons and Fore.

Haden Jones, a maintenance employee of the mill, was not acting as a supervisory employee but simply as a fellow employee of Allen. One of his duties as a maintenance employee was to check and repair the electrical equipment in the plant. Even assuming that he was negligent in the maintenance of the bare wires that caused the death by electrocution of Allen, he is immune from suit because failing to repair or check for bare wires involves failure to provide a safe place to work. No negligence apart from the failure to provide a safe place to work is alleged.

We find that the estate has failed to state a cause of action since the employees of the mill are immune from suit. The trial court was correct in refusing to render a default judgment and in granting the motion for summary judgment.

Affirmed.

Hays, J., concurs.

Steele Hays, Justice,

concurring. While I concur in the affirmance I do not agree that the trial court’s discretion was abused under the circumstances of the case. Well within the time for response an attorney for the appellees called appellants’ counsel to ask for an extension of time in which to plead, a common practice. It was agreed and an order was entered extending the time to May 10, 1984. On the morning of May 11 counsel for appellees called opposing counsel to explain that the answer had been prepared the previous afternoon but had not been filed due to the events outlined in the majority opinion. Counsel for appellant neither agreed nor objected to the late filing but said he would consider the matter and call back, which he did. In this conversation it was arranged that appellees’ motion would be presented to the trial court at 1:30 p.m. ARCP Rule 6(b) gives the trial court the discretion to grant a motion made after the expiration of the specified period to permit an act to be done where the failure is the result of excusable neglect, unavoidable casualty or other just cause.

The majority opinion regards this case as indistinguishable from DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982). But the problem there was neglect, pure and simple, extending over four days rather than overnight. And here, there were mitigating circumstances which the trial court found to justify the brief default. The case more nearly resembles Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984), where we held the trial court’s discretion was not abused. Citing Burns v. Shamrock Club, 271 Ark. 572, 609 S.W.2d 55 (1980), we said:

It is within the sound discretion of the trial court to grant or deny a motion to set aside a default judgment, and the question on appeal is whether there has been an abuse of that discretion. Default judgments are not favorites of the law and should be avoided when possible, (citations omitted). (My emphasis).
Furthermore, ARCP Rule 55 provides that a default judgment should be entered when a party “fails to appear or otherwise defend.” Here, the appellees defended when they filed their motion to dismiss. This holding is also consistent with Ark. Stat. Ann. § 27-1160 (Repl. 1979) which provides that, “The court must in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.” There was no prejudice to these appellants by the appellees’ delay in filing their answer.

Under the circumstances in their entirety, I cannot conclude the trial court’s discretion was abused in refusing to enter a default judgment in this case.


author: Robert H. Dudley, Justice.

text:
    Joan EDDLEMAN v. ESTATE OF Barney Eugene FARMER, Deceased
    87-275
    740 S.W.2d 141
    Supreme Court of Arkansas
    Opinion delivered November 30, 1987

      Robert G. Millar, and Lody & Arnold, Attorneys at Law, P.A., by: Dale R. Arnold and Wesley G. Lody, for appellant.

      Edwards & Edwards, by: N.D. Edwards, and M. Ray Edwards, for appellee.
   Robert H. Dudley, Justice.

The principal issue in this case is whether the probate court erred in admitting the decedent’s will to probate. We find no error in admitting the will to probate.

The decedent, Barney Eugene Farmer, prepared his own typewritten will and, by it, left everything to one of his daughters, Betty Lou Farmer. His other daughter, appellant Joan Eddleman, contends that the will is invalid because an exhibit was not attached to the will.

In the third paragraph of the will the decedent bequeathed everything that he owned to Betty Lou Farmer. In the sixth paragraph he wrote:

It is my desire for Betty Lou to have our home place and the entire contents. All my possessions, personal property, including money, tools, clothes; everything thereon and therein to have and hold and do with as she pleases. Exhibit A to this will is a Deed complete with legal description indicating “rights of survivorship so that probate will not be necessary on this item. . . .”

In the residuary clause he also left everything he owned to Betty Lou Farmer.

Approximately two weeks before he died the decedent sold his homeplace, which had been described in “exhibit A.” Not surprisingly then, the deed, or “exhibit A,” conveying the homeplace to Betty Lou Farmer was not attached to the will and was never found.

Wills may validly incorporate by reference a document or paper, not witnessed as a will, if it was in existence at the time of the execution of the will and is identified by clear proof. Montgomery v. Blankenship, 271 Ark. 357, 361, 230 S.W.2d 51, 54 (1950); Ark. Stat. Ann. § 60-418 (Supp. 1985). The appellant argues that, since “exhibit A” was not offered in probate, the entire will, and not just the provision containing “exhibit A,” must fail.

The appellant does not cite any authority for her point, nor does she make a convincing argument for it, and it is not apparent without further research that the point is well taken. Therefore, we affirm the point. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

The appellant next argues that the will must fail because the decedent, at the time of making the will, was suffering under the insane delusions that Betty Lou Farmer was his daughter and that he had adequately provided for his other daughter, the appellant. We find no merit in the argument.

In Taylor v. McClintock, 87 Ark. 243, 277, 11 S.W. 405, 413 (1908), this Court stated:

Where one conceives something extravagant, and believes it as a fact, when in reality it has no existence, but is purely a product of the imagination, and where such belief is¡ so persistent and permanent that the one who entertains it cannot be convinced by any evidence or argument to the contrary, such a one is possessed of an insane delusion.

However, as we pointed out in Huffman v. Dawkins, 273 Ark. 520, 526, 622 S.W.2d 159, 162 (1981), “[i]f there is any basis in fact of the delusion, or if it is not proved that the will was a product of the delusion, such a delusion will not warrant setting aside a legal, document.”

We cannot say that the Probate Judge was clearly erroneous in ruling that there were factual bases for each of the alleged delusions. The mother of Betty Lou Farmer testified that she was separated from her then husband, Hodge Rhodes, at the time Betty Lou was conceived and that the decedent was the father. A delayed birth certificate reflected that decedent was the father, and the decedent’s girlfriend testified that he referred to Betty Lou as “the kid,” and he was^ mentally competent. As to the allegation that he was suffering from the delusion that he had provided for his other daughter, the appellant, we need only point out that he left $15,0.00.00. worth of bonds in which she was the payee. Thus, there were bases of fact to support the alleged delusions, and, therefore, the will should not be set aside.

Appellant next argues that the probate court erred in refusing to invalidate the. will on the ground of undue influence. Again, the argument is without merit. The decedent’s daughter, Betty Lou Farmer, lived with him and cared for him. The decedent’s will simply reflected his affection for Betty Lou. There was no evidence of fear, coercion, or the deprivation of free agency on the part of the decedent. The influence of Betty Lou cannot be termed undue. As we explained in Rose v. Dunn, 284 Ark. 42, 45, 679 S.W.2d 180, 182 (1984):

Undue influence which avoids a will is not the influence which springs from natural affection or kind offices, but is such as results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property, and it must be specially directed toward the object of procuring a will in the favor of particular parties.

Appellant’s final argument concerns a contingent tort claim which she filed against the estate in probate court. The contingent claim was not filed as a notice to the probate court that a separate tort action was being filed in circuit court. See Wolfe v. Herndon, 234 Ark. 543, 353 S.W.2d 540 (1962); Ark. Stat. Ann. § 62-2602 (Repl. 1971). Instead, it was filed as a contingent tort claim for damages as the result of sexual abuse, with the merits of the case to be tried by the probate court. The estate responded on the merits and pleaded that the statute of limitation had run on the tort claim. The appellant then pleaded that the limitation had not run because she was incompetent and, therefore, fell within the savings provisions of Ark. Stat. Ann. § 37-226 (Repl. 1962). The probate court ruled that the statute of limitation had run and dismissed the tort action. We must reverse this ruling because the probate court did not have jurisdiction to rule in the tort suit.

In Arkansas, the probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers as are conferred by the constitution or by statute, or necessarily incidental to the exercise of the jurisdiction and powers specifically granted. Hilburn v. First State Bank, 259 Ark. 569, 535 S. W.2d 810(1976). Nothing is said about the trial of tort cases in the probate court in the constitutional provision. See Ark. Const, art. 7, § 34, as amended by Ark. Const, amend. 24. The decision on the tort claim was without the jurisdiction of the probate court and, therefore, void. See Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984); Moss v. Moose, 184 Ark. 798, 44 S.W.2d 825 (1931). Accordingly, we must reverse on this point of appeal and hold that an unliquidated contingent tort claim is still pending.

Affirmed in part; reversed in part.


author: Steele Hays, Justice.

text:
    Jeffery Louis CARR v. Sheela WOODS
    87-128
    740 S.W.2d 145
    Supreme Court of Arkansas
    Opinion delivered November 30, 1987

      Shackleford, Shackleford & Phillips, P.A., for appellant.

      Griffin, Rainwater & Draper, P.A., for appellee.
   Steele Hays, Justice.

Sheela Woods, appellee, sued Jeff Carr, appellant, for personal injuries sustained when her vehicle and his collided in Hamburg, Arkansas. Carr pled guilty to driving while intoxicated and failure to yield the right-of-way.

Ms. Woods established in trial that she suffered a fracture to a bone in her right foot. Although she was examined in a local emergency room immediately following the 2:00 a.m. collision, the fracture went undetected for over a week because it was impacted, the bones being pressed inward, and was unrevealed by x-ray photographs. She testified to considerable pain and discomfort. She lost nine weeks work at $280 per week and her medical expenses totaled $417.86. The jury awarded $2,000.

Ms. Woods moved for a new trial, which the circuit judge granted upon findings that the award was grossly inadequate and the verdict as to damages was clearly contrary to the preponderance of the evidence. Carr has appealed, contending that it was error to grant the motion for a new trial. We affirm the order.

When the trial court grants a motion for a new trial the standard on review is whether there is a manifest abuse of discretion. Lamons v. Croft, 290 Ark. 341, 719 S.W.2d 426 (1986). A showing of an abuse of discretion is even more difficult when a new trial is granted, because the beneficiary of the verdict which has been set aside has less basis for a claim of prejudice than does one who has unsuccessfully moved for a new trial. Roberts v. Simpson, 275 Ark. 181, 628 S.W.2d 308 (1982).

Rule 59(a) of the Arkansas Rules of Civil Procedure gives the trial court the power to grant new trials for grounds materially affecting the substantial rights of a party, including error in the assessment of the amount of recovery, whether too large or too small, and where the verdict is clearly contrary to the preponderance of the evidence.

Carr theorizes that the jury, by reducing Ms. Woods’s out-of-pocket expenses from $2,937.86 to $2,000, may have done so on the basis of comparative fault by attributing 30% of the negligence to the plaintiff and 70% to the defendant. Since the case was submitted to the jury upon a general verdict form, following a comparative fault instruction, such a result is possible. Carr contends the jury could have believed Ms. Woods contributed to the collision by driving with her headlights off, or believed that her injury occurred when a jack which she knew to be under the seat of the vehicle she was driving (her father’s truck) dislodged on impact and struck her foot.

Such factors might be controlling if we were reviewing the trial court’s denial of the motion for a new trial. See Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982), for example. But the trial court granted the motion under Rule 59 and in that instance our review of the record, while independent, is influenced by the action of the trial court, because it is the exercise of his discretion that we are reviewing.

As to the argument that Ms. Woods was driving without headlights, there was no substantial evidence to support such a conclusion, indeed, there was barely an inference. Mr. Carr said he never saw her headlights, but he declined to say they were not on. Admittedly she was coming directly toward him when he turned left in her path. As to the jack, the only thing the record tells us is that she was aware the jack was under her seat and that it might have struck her foot. There was no proof as to how it was stationed, or that it had dislodged previously, or that she should have anticipated that it might do so if she stopped suddenly. The trial court heard all of this proof firsthand as it developed, and it concluded that the verdict as to damages was clearly against the preponderance of the evidence. We find no manifest abuse of discretion in granting a new trial.

Jeff Carr cites the case of Law v. Collins, 242 Ark. 83, 411 S.W.2d 877 (1967), where we held that the trial court’s discretion was abused in granting a new trial to Ms. Collins on her personal injury claim against Mr. Law. The jury had awarded her $750 in the face of her testimony that she had sustained medical expenses totalling $544.65 and loss of earnings of $976 over twenty-six and a half weeks of recuperation. However, the issue of liability was closer in Collins (the trial judge termed his own basis for ordering a new trial, “debatable”) whereas here there is nothing of substance in this record to suggest the collision was attributable to anything other than Carr’s failure to keep a lookout for other vehicles, impaired as he doubtless was by enough alcohol in his system to register .10 on a breathalyzer. Moreover, Law v. Collins was a case in which the trial court’s ruling was reversed because it violated Ark. Stat. Ann. §27-1902. That statute provided that a new trial could not be awarded for “smallness of damages” if the damages awarded by the jury in a personal injury case “equal the actual pecuniary injury sustained.” In Saber Mfg. Co. v. Thompson, 286 Ark. 150, 689 S.W.2d 587 (1985), we noted that that statutory section has now been superseded and is no longer in effect. Law v. Collins did not ever stand for the proposition that a court may not award a new trial for damages which are too small in any case in which there has been an instruction on comparative negligence.

As we noted in the Saber case, a trial judge does not abuse his or her discretion when a new trial is granted if it could fairly be found that the jury failed to take into account all the elements of the total injury proven, even if it might be possible to explain the verdict on the basis of something like awarding the plaintiff only the proven pecuniary loss. That same reasoning applies to the awarding of damages in a case where the jury has been instructed on comparative negligence.

We conclude that the trial court’s discretion in granting a new trial was not manifestly abused and, accordingly, the order granting a new trial is

Affirmed.

Hickman, J., dissents.


text:
    Gloria J. JOLLY v. Judge George HARTJE, Jr., Faulkner County Circuit Court; Charles Castleberry, Faulkner County Sheriff; and Sandy E. Jolly
    86-68
    740 S.W.2d 143
    Supreme Court of Arkansas
    Opinion delivered November 30, 1987
    [Rehearing denied January 13, 1988.]

      William J. Velek, for appellant.

      Ronald L. Burton, for appellees.
   Steele Hays, Justice.

Petitioner Gloria Jolly and Respondent Sandy Jolly were divorced in 1982. They have continued to engage in frequent disputes over property and child support. In February of 1986 Mrs. Jolly filed an action in the Faulkner Circuit Court claiming that Mr. Jolly had removed timber from lands held in trust for their two daughters. A series of hearings over widening issues followed and at one point Mrs. Jolly was held to be in contempt and sentenced to thirty days in jail with twenty-six days suspended. She appealed and that order was reversed. Jolly v. Jolly, 290 Ark. 352, 719 S.W.2d 930 (1986). While that appeal was pending she petitioned for prohibition, which was denied.

On October 20 and 21, the Faulkner circuit judge, sitting as circuit judge and special chancellor on exchange, conducted two days of non-jury hearings dealing with matters pending on both the law and chancery dockets. The hearings resulted in a judgment against Mr. Jolly for the value of timber removed and a decree which included findings that Mrs. Jolly had used the SCAN office to harass Mr. Jolly with complaints of child abuse. She was ordered to bring her complaints to the court.

Mrs. Jolly has appealed on a number of points: whether appellant was entitled to a trial by jury under the Arkansas Constitution; whether appellant was denied due process; whether appellant’s motion for a continuance should have been granted; whether the court can privately question witnesses about the case being tried by banning a party and her attorney; whether it was a denial of free speech to prohibit appellant from petitioning SCAN; whether the trial judge should have recused.

We cannot reach the issues we are asked to decide. The appellant has given us almost nothing in the way of an abstract of the pleadings or testimony. In fact, the abstract consists of nothing more than a few sentences covering two hearings in March, two in June, 1986 and from two days of hearings in October. There is no abstract whatever of the pleadings, testimony, exhibits, orders and final judgment and decree. Appellant has referred us (in oral argument) to her brief and abstract filed in July, 1986 in connection with her appeal of the contempt order. But that offers no assistance. The points of error are wholly different and the pleadings were deliberately omitted from that brief as well, as being “not relevant.” Obviously a brief filed in July 1986 cannot contain proceedings, testimony, and final orders which came months later.

This four volume record contains 551 pages. We do not suggest that irrelevant portions of the trial proceedings should be abstracted. Indeed, the rules provide that the abstract should consist of “only” such material parts as are necessary to an understanding of all questions presented to this court for decision. Rule 9(d) of the Rules of the Supreme Court and the Court of Appeals. Ordinarily the basic pleadings and judgment or decree appealed from are essential constituents of the abstract, as we have frequently noted. Farrco Construction et al. v. Coleman, 267 Ark. 159, 589 S.W.2d 573 (1979); Zini v. Percival, 289 Ark. 343, 711 S.W.2d 477 (1986); Wells v. Paragon Printing Company, 249 Ark. 950, 462 S.W.2d 471 (1971). See also, Smith, Arkansas Practice Abstracting the Record, 31 Ark. L. Rev. 359 (1977). We cannot decide the points argued for the want of an abstract and, accordingly, we must affirm under Rule 9(d).

Affirmed.


author: Darrell Hickman, Justice.

text:
    Ruth BOHNSACK v. Robert A. BECK and Veirlone G. Beck, et al.
    87-304
    740 S.W.2d 611
    Supreme Court of Arkansas
    Opinion delivered December 7, 1987

      Swindell & Bradley, by: Len W. Bradley, for appellant.
    Laws, Swain & Murdock, P.A., by: William S. Swain, for appellees.
   Darrell Hickman, Justice.

The only issue in this case is whether ARCP Rule 4(i), which generally provides that a summons must be served within 120 days, applies to a writ of scire facias. The trial court held that it applies. We hold that it does not apply and, therefore, reverse the judgment.

The Latin phrase, scire facias, means “that you cause to know.” A writ of scire facias is a writ issued requiring a person against whom it is brought to show cause why a judgment should not be revived. See Black’s Law Dictionary 1208 (5th rev. ed. 1979). On June 30, 1980, the appellant obtained a judgment against Don Duvall for $90,000. The judgment was revived by an order of revivor on June 28,1983. On June 19,1986, before three years had expired, a writ of scire facias was issued by the Pope County Circuit Court directing the sheriff to serve the order on Duvall. The writ was returned on July 14,1986, with the notation that Duvall was in Mineral Springs, Texas. Another writ was issued by the clerk on July 16,1986, directing the sheriff in Texas to serve the writ; it was served on August 27, 1986.

The trial judge signed three different orders of revivor. The first, dated November 19, 1986, revived the judgment for ten years from June 30,1986; the second order signed December 19, 1986, was a nunc pro tunc order, reviving the judgment for ten years from June 19, 1986. The appellees then intervened challenging the revivor contending that they owned the land in Pope County previously owned by Duvall. The Pope County Circuit Court issued a third order of revivor which stated that the ten year period was to run from July 16, 1986. The trial judge based his decision on the theory that his prior orders were incorrect because the first writ was not served within 120 days; therefore, the judgment could not be revived except on the basis of the second writ. The appellant filed an appeal based on this last decision.

Rule 4(i) relates to the commencement of a suit and the service of a summons after a complaint is filed; the summons must be served within 120 days or the cause will be dismissed. The Rules of Civil Procedure were not intended to apply to all proceedings. ARCP Rule 81(a) provides:

These rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this State except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.

A writ of scire facias is not the commencement of an action and, therefore, Rule 4(i) was not intended to govern. While this writ has been deemed to occupy both the place of a declaration and a summons, it is merely a continuation of a former action. In Waldstein v. Williams, 101 Ark. 404, 142 S.W. 834 (1912), we said: “ [T] he proceedings under the statute to revive the lien of the judgment are only subsidiary to the original action. They do not constitute a new action, but only a continuation of the old one.”

Survival and revival of judgments are governed by Ark. Stat. Ann. §§ 29-601 to 29-607 (Repl. 1979 & Supp. 1985). The time when the lien begins is governed by Ark. Stat. Ann. § 29-607 which provides:

If a scire facias be sued out before the termination of the lien of any judgment or decree, the lien of the judgment revived shall have relation to the day on which the scire facias issued; but if the lien of any judgment or decree shall have expired before suing out the scire facias, the judgment of revival shall only be a lien from the time of the rendition of such judgment.

The scire facias issued by the clerk started the process of reviving the judgment; from that date, rights, if any, are fixed. Interested parties are on notice from that date. Personal service is not required. See Ark. Stat. Ann. § 29-604. There is no reason to arbitrarily dismiss this kind of action because service is not obtained within 120 days. The Arkansas statutes do not place a time limit on the service of a writ of scire facias, and we hold that Rule 4(i) is not intended to govern.

Reversed and remanded.


author: John I. Purtle, Justice.

text:
    GARRETT TIRE CENTER, INC. v. Robert HERBAUGH
    87-249
    740 S.W.2d 612
    Supreme Court of Arkansas
    Opinion delivered December 7, 1987

      Ford, Blair & Crabtree, by: John M. Blair, for appellant.

      Croxton & Boyer, by: Hardy W. Croxton, Jr., for appellee.
   John I. Purtle, Justice.

The chancellor granted a summary judgment in favor of a purchase money mortgagee over a prior judgment lien holder. The appellant argues that his judgment lien was superior because it attached before the appellee’s mortgage lien. We hold that the appellee’s purchase money mortgage had priority.

The appellant, Garrett Tire Center, Inc., obtained a judgment on account against Robert Herbaugh on April 26, 1984. Attempts to execute on the judgment were unsuccessful because no assets could be located. On January 28, 1985, appellee Farmers and Merchants Bank made a purchase mortgage loan to Robert Herbaugh. The purchase money mortgage was filed on January 30, 1985, five minutes after the deed to Robert Herbaugh had been filed. On October 1, 1986, Farmers and Merchants Bank filed for foreclosure of its purchase money mortgage. The appellant intervened and asserted its judgment lien was superior to the bank’s purchase money mortgage lien.

When a deed and a purchase money mortgage are a part of one continuous transaction, they are treated as being executed simultaneously. A prior judgment lien cannot attach because the purchaser never obtains title to the land, but acquires only an equity interest subject to the payment of the purchase money. Faulkner County Bank and Trust Co. v. Vail, 173 Ark. 406, 293 S.W. 40 (1927). In Vail we quoted with approval 19 R.C.L., art. 196, p. 416:

It is a general rule, to which there is little dissent, that a mortgage on land executed by the purchaser of the land contemporaneously with the acquirement of the legal title thereto, or afterwards, but as a part of the same transaction, is a purchase money mortgage, and entitled to preference as such over all other claims or liens arising through the mortgagor, though they are prior in point of time; and this is true without reference to whether the mortgage was executed to the vendor or to a third person. The reason for the rule most frequently given is that the execution of the deed and mortgage being simultaneous acts, the title to the land does not for a single moment rest in the purchaser, but merely passes through his hands, and, without stopping, vests in the mortgagee, and during such instantaneous passage no lien of any character can attach to the title. The deed and mortgage need not be executed at the same moment, nor even on the same day, to make them contemporaneous, provided they were parts of one continuous transaction, and so intended to be, so that the two instruments should be given contemporaneous operation in order to promote the intent of the parties.

The appellant argues that under Ark. Stat. Ann.§ 51-1002 (Repl. 1971), a mortgage, including a purchase money mortgage, is not valid against a third party until recorded. Therefore, appellant’s judgment lien attached during the five minute space of time after the deed was filed and before the purchase money mortgage was recorded. Appellant relies on Western Tie & Timber Co. v. Campbell, 113 Ark. 570, 169 S.W. 253 (1914), where the state obtained a statutory lien on a defendant’s real property for the criminal fines and costs adjudged against the defendant. Subsequently, the defendant simultaneously purchased land and executed a purchase money mortgage on it. The purchase money mortgage was recorded eight months later. The priority between the state’s lien and the purchase money mortgage became the issue on appeal.

The Western Tie court correctly stated the law as follows:

It is quite well settled by the authorities that a mortgage, given at the time of the purchase of real estate to secure the payment of purchase money, whether given to the vendor or to a third person, who, as a part of the same transaction, advances the purchase money, has preference over all judgments and other liens against the mortgagor.

Nonetheless, the court held that thé legislature intended to give the state a lien against an unrecorded mortgage; so, under the circumstances the prior state lien was superior to the purchase money mortgage.

Despite the result in Western Tie, there is no dispute that a purchase money mortgage, executed with a deed as a part of one continuous transaction, and recorded within a reasonable time to prevent detrimental reliance by a third party, is superior to any other lien. In the present case appellee Farmers and Merchants Bank obtained a promissory note secured by a purchase money mortgage as part of one transaction and recorded its lien within a reasonable time. The appellant did not in any way rely on the deed before the purchase money mortgage was recorded. The fact that the purchase money mortgage was filed five minutes after the deed was recorded did not affect the validity of the mortgage. We hold that the deed was encumbered by the purchase money mortgage at the time it was filed.

The appellant also argues that the court improperly granted summary judgment because material issues of fact were in dispute. We do not find anything in the record or the appellant’s brief to indicate that a material fact was controverted. It was proper for the trial court to dispose of the case by summary judgment.

Affirmed.