author: Tom Glaze, Justice.

text:
    Randy Dean LEACH v. STATE of Arkansas
    CR 92-927
    852 S.W.2d 116
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      Callis L. Childs, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Randy Leach has been on appeal on three other occasions. Leach v. State, 311 Ark. 485, 845 S.W.2d 11 (1993) (Leach III); Leach v. State, 38 Ark. App. 117, 831 S.W.2d 615 (1992) (Leach II); Leach v. State, 303 Ark. 309, 796 S.W.2d 837 (1990) (Leach I). In Leach I, Leach sought a writ of prohibition to prevent the state from seeking to convict him of three separate conspiracy charges because all three arose from one agreement and should be tried as one offense under Ark. Code Ann. § 5-3-403 (1987). Leach had been charged and convicted for having conspired with persons named Clements and McMillan to commit aggravated robbery of a Wal-Mart courier. He also remained separately charged for conspiracy with the same individuals to burglarize the Wilkerson residence and to steal a flatbed trailer. In sum, Leach argued it was “inescapable” that the Wilkerson and flatbed trailer conspiracies should be treated as a part of one agreement which included the Wal-Mart conspiracy. Thus, because he was convicted already for the WalMart conspiracy, Leach asserted on double jeopardy grounds that the state was prevented from trying him for the Wilkerson and flatbed trailer conspiracies. We denied Leach’s request for a writ because the record reflected no evidence showing whether the conspiracy charges involved three separate agreements or one continuing agreement. Leach, 303 Ark. at 311, 796 S.W.2d at 838.

Leach II followed, and, based on two trial errors, the court of appeals reversed Leach’s Wal-Mart conviction. Upon determining the evidence was sufficient to sustain aggravated robbery, the court of appeals remanded the case for a new trial. In Leach III, we affirmed the court of appeals decision after considering additional arguments raised by Leach that are not relevant in the appeal now before us.

In the present case, Leach asks this court to rule that double jeopardy prevents the state from prosecuting him on the Wilkerson burglary and the flatbed trailer conspiracy charges. In his argument, he recognizes the Wal-Mart conspiracy conviction has been remanded for a new trial, but suggests his “successful appeal will result in an increased jeopardy of a charge of a continuous conspiratorial relationship intended to result in an aggravated robbery, a burglary and a theft of a flatbed trailer.” In addition, Leach argues he cannot be penalized for his successful appeal by being retried on a greater or more serious charge.

We first point out that this court is in no position to predict either the state’s or Leach’s course once these three matters are again before the trial court. We are aware that the trial court entered an order on April 22,1992, in the Wilkerson and flatbed trailer cases wherein the trial court found those two offenses and the Wal-Mart offense were the object of the same continuous relationship under § 5-3-403 and was one conspiracy for double jeopardy purposes. However, that order reflected Leach’s conviction in the Wal-Mart conspiracy case, and that conviction was subsequently reversed by the court of appeals on May 13,1992.

It is the court of appeals’ reversal of the Wal-Mart conviction that precludes this court’s review of Leach’s double jeopardy arguments in this appeal. Relevant to Leach’s arguments, Ark. Code Ann. § 5-1-112(2) (1987) provides that a former prosecution is an affirmative defense to a subsequent prosecution for the same offense where the former prosecution resulted in a conviction. Section 5-1-112(2) further provides that there is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated.

Here, the Wal-Mart conspiracy case has been reversed and remanded for a new trial, and Leach stands as though he had never been tried. Marshall v. State, 265 Ark. 302, 578 S.W.2d 32 (1979). At this stage, we have no knowledge concerning which of the charges pending against Leach that the state will try first. In fact, we are in no better position now to grant Leach the relief he seeks than we were when we denied his request for a writ of prohibition on double jeopardy grounds in Leach I.

The trial court denied Leach’s motion to dismiss the Wilkerson burglary and flatbed conspiracy cases involved in this appeal because Leach had failed at trial to move to join the three separate conspiracy cases for trial. We affirm the trial court’s denial of Leach’s motion, but do so for the reason discussed above, namely, his motion proved premature in these two conspiracy cases since the Wal-Mart conviction against him has been reversed and remanded for a new trial. See Laymon v. State, 306 Ark. 377, 814 S.W.2d 901 (1991).

We affirm.

       This finding has not been challenged.


source: Caselaw Access Project

license: Public Domain

text:
    POPE COUNTY, Arkansas, et al. v. FRIDAY, ELDREDGE & CLARK, a Partnership and Professional Association
    92-1060
    852 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      Young & Finley, by: Dale W. Finley, for appellants.

      Bridges, Young, Matthews & Drake, by: Stephen A. Matthews, for appellee.
   Tom Glaze, Justice.

In 1988, the appellee law firm was retained by the appellants as bond counsel for the purpose of assisting them in obtaining a valid bond issue for renovation and expansion of the county courthouse. On September 8, 1988, the quorum court adopted Emergency Ordinance No. 88-0-51 which was drafted by one of appellee’s partners. On November 8,1988, the bond issue was submitted to and approved by the voters, and on February 21, 1989, the appellee rendered its opinion to the trustee and the underwriter stating the new bonds had been validly issued and were binding on Pope County. Land was purchased and improvements were constructed.

A taxpayers’ suit was subsequently filed, challenging the issuance of the bonds for the courthouse improvements, but on March 9, 1990, the chancellor upheld the bond issue and dismissed the plaintiffs’ complaint. On appeal this court in a split-decision reversed the chancellor, finding that the bond ordinance was improperly presented to the voters and that it failed to obtain the voters’ consent to transfer and use surplus funds from another or earlier public project for the courthouse improvements. This court further held that language in the ordinance did not authorize the expenditure of bond funds for construction of a parking lot. Keeton v. Barber, 305 Ark. 147, 806 S.W.2d 363 (1991). The Keeton decision was delivered on April 1,1991. On remand the appellants were ordered to refund to the taxpayers approximately $300,000.00 and to pay their attorney fees and costs.

On January 21, 1991, the appellants filed their complaint alleging appellee was negligent in its performance as bond counsel. On June 10, 1992, the trial court granted the appellee’s motion for summary judgment and dismissed the appellants’ complaint with prejudice. In granting the summary judgment, the court found that the applicable statute of limitations for legal malpractice actions is three years. The trial court ruled the statute commenced when appellee’s negligent act, if any, occurred which was when appellee prepared the bond ordinance, or at the latest, when the voters approved the bond issue on November 8, 1988. Under the trial court’s findings, appellants had until November 8,1991, to file their action against appellee. Thus, because the appellants delayed filing their suit until January 21,1992, the trial court held their action was procedurally barred. The trial court rejected appellants’ argument that the statute of limitations had been tolled under the facts and circumstances of the case.

Appellants’ primary argument is that the trial court erred in ruling the three-year-limitation period had not been tolled. In short, appellants for purposes of argument agree that, at the latest, the appellee’s negligent act occurred and the limitation period started when the voters approved the courthouse bond issue on November 8, 1988. They contend, however, that that period was tolled on March 9,1990, when the chancellor in the Keeton case upheld the validity of the bond issue for the Pope County Courthouse improvements. At that juncture, sixteen months had run on the three-year period. It was at that stage, appellants argue, that the trial court’s favorable bond decision effectively suspended the running of the statute of limitations for more than one year, namely, until this court on April 1, 1991 reversed the chancellor’s ruling. Because of the one-year suspended period, appellants urge that they still had twenty months within which to file their malpractice action against appellee, and they did so on January 21, 1992.

In support of their tolling argument above, appellants rely on Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989). We agree the Stroud decision is controlling. There, attorney Ryan failed to respond to a writ of garnishment which was served on his client, and Ryan’s failure resulted in a default judgment against his client Stroud on November 3,1982. Ryan successfully requested that the default judgment be set aside, and an order to this effect was entered on December 4, 1984. On February 19, 1986, the court of appeals reversed the lower court’s order setting aside the default judgment. On December 18, 1986, Stroud sued Ryan alleging Ryan’s negligence caused the default judgment, and Ryan defended, claiming the three-year limitation had run from the date of his negligent act. The trial court held Stroud’s action was barred by the statute of limitations, but this court reversed. In sum, we held the limitation period had been tolled between the time the trial court erroneously set aside the default judgment against Stroud on December 4, 1984, and when the court of appeals’ decision reversing the trial court’s ruling was delivered on February 19, 1986. We reasoned that during this approximately fourteen-month period, Stroud simply had no malpractice claim which he could file against Ryan, and for that reason, the three-year statute of limitation should be suspended during that period. See and compare Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992).

Appellee attempts to distinguish the present case from the situation in Stroud, and asserts no need existed here to invoke the “tolling doctrine.” It points out that its alleged negligence occurred on November 8, 1988, and our Keeton decision giving rise to appellant’s malpractice claim was rendered on April 1, 1991, leaving appellants seven months to file suit before the original three-year limitation period expired. In Stroud, the initial three-year period had expired barring any suit but for this court having extended the limitation period. Appellee strongly urges that the tolling should not be applied as a salvage operation to permit the appellants to assert their claims after they slept on their rights through the normal statute of limitations.

Like in Stroud, the three-year limitation here was tolled during the period the trial court’s ruling was in effect. Appellee cites no authority to support its suggestion that a court may refuse to recognize a tolled period where the reason for tolling happens to have ended prior to or within the original limitation period. To the contrary, this court has clearly indicated that the full period during which the effect of a statute is tolled is to be added to the statutory period without regard to the time when the limitation time would have otherwise expired. See Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985); Dendy v. Greater Damascus Baptist Church, 247 Ark. 6, 444 S.W.2d 71 (1969). Of course, the extension of the statutory period on account of tolling cannot enlarge the actual time period specified by the applicable statute.

In conclusion, we note appellee’s argument and out-of-state citations of authority in asking this court to apply the doctrine of equitable estoppel against appellants for their delay in filing their action. Appellee states the general rule as being where grounds exist for estopping a defendant from pleading the statute of limitations, estoppel will nevertheless be denied where the plaintiff fails to exercise due diligence in filing his action after such grounds cease to be operational as a valid basis for plaintiff to delay such filing. Appellee’s argument merely reasserts in a different form its contention that the appellants here should have filed their lawsuit within the initial limitation period. We fail to see the applicability of equitable estoppel to the facts and circumstances before us. Neither the appellee caused appellants to delay filing their suit, nor was it shown appellants were not diligent in initiating their action. In any event, we find no legal justification to preclude appellants from relying on the full three-year limitation period which is clearly provided by the statute. Because appellants filed within that three-year period, their action was timely.

For the reasons given above, we reverse and remand.

       In their second issue, appellants suggest even a later date by asserting appellee’s negligence did not end until February 21,1989, when the firm by letter opinion certified the validity of the bond issue. Because we reverse on appellants’ first argument, we do not reach appellants’ second issue.


author: Donald L. Corbin, Justice.

text:
    McKinley Charles GREEN v. STATE of Arkansas
    CR 92-1171
    852 S.W.2d 110
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      Jan Thornton, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, McKinley Charles Green, appeals a judgment of the Union Circuit Court convicting him of attempted kidnapping and sentencing him as an habitual offender to forty years in the Arkansas Department of Correction. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (2), In re: In the Matter of Rules of the Arkansas Supreme Court and the Arkansas Court of Appeals, 311 Ark. Appx. (Feb. 1, 1993). Appellant asserts three points for reversal of the judgment entered in accordance with the jury’s verdict. We find no merit to the arguments and affirm.

Appellant’s first argument for reversal is that the trial court erred in denying his motion for directed verdict. Appellant claims the state failed to prove he intended to commit the offense of attempted kidnapping. He argues that the evidence the state presented of his intent is circumstantial evidence, and that this circumstantial evidence is not substantial because it does not exclude all reasonable hypotheses inconsistent with appellant’s guilt.

We treat the challenge of a denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. On appeal, we review the evidence in the light most favorable to appellee and affirm if there is any substantial evidence to support the jury’s verdict. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Circumstantial evidence may constitute substantial evidence; however, in order for circumstantial evidence to constitute substantial evidence, it must exclude every other reasonable hypothesis inconsistent with an accused’s guilt. Id. Whether the circumstantial evidence excludes all other reasonable hypotheses inconsistent with an accused’s guilt is a question to be determined by the finder of fact. Id.

The crime of attempted kidnapping is encompassed in Ark. Code Ann. §§ 5-3-201 and 5-11-102 (1987). As applied to this case, these sections provide that a person commits attempted kidnapping if he intends to commit kidnapping and purposely engages in conduct that constitutes a substantial step toward the commission of the kidnapping. A person commits kidnapping if, without consent, he restrains another person so as to substantially interfere with that person’s liberty, with the purpose of inflicting physical injury upon that person, or engaging in sexual intercourse, deviate sexual activity, or sexual contact with that person. Ark. Code Ann. § 5-ll-102(a)(4).

We recite the evidence as viewed most favorably to appellee. Appellant entered a convenience store and purchased a cigar. He loitered in the store for a while and asked to use the telephone. The store clerk denied his request pursuant to store policy. While loitering in the store, appellant stared at the store clerk’s breasts and buttocks, and inquired of her marital status and whether she was lonely. After the denial of his subsequent request to use the telephone, appellant jumped over the counter and grabbed the clerk. She struggled with appellant for some time, but to no avail. He pinned her arms to her sides and forced her to walk outside the store. Appellant, still pinning the victim’s arms to her sides, stopped at his car and opened the passenger door. The victim was able to slam the car door on appellant’s hand causing him to lose his grip on her. The victim escaped and flagged down, a car that was passing by. Appellant then drove away from the convenience store. The victim and the driver of the car who stopped to help her returned to the store where the victim called the El Dorado police. Soon thereafter, the police apprehended appellant while driving his car. The victim later identified appellant as her attacker. A search of appellant’s vehicle produced an unsmoked cigar.

Kidnapping, or in this case, attempted kidnapping, requires that the victim’s liberty be restrained without consent. Ark. Code Ann. § 5-11-102. “Restraint without consent” is defined as including restraint by physical force. Ark. Code Ann. § 5-11-101(2) (1987); Fairchild v. State, 305 Ark. 406, 808 S.W.2d 743 (1991). Substantial interference with another person’s liberty does not require that the interference be for a substantial period of time. Jackson v. State, 290 Ark. 160, 717 S.W.2d 801 (1986). The purpose of the restraint may be inferred from circumstantial evidence. Id.; Fairchild, 305 Ark. 406, 808 S.W.2d 743. Intent to commit a crime may also be inferred from the circumstances. Jackson, 290 Ark. 160, 717 S.W.2d 801.

The foregoing evidence is substantial evidence and supports the jury’s verdict of guilt. The victim’s testimony that she struggled with appellant and that he had her arms pinned to her sides while pushing her through the store and outside clearly indicates he restrained her without her consent and that he interfered substantially with her liberty. Appellant’s use of physical force against the victim leads to an inference that he intended to cause her physical harm. The questions appellant asked the victim regarding her marital status and her state of loneliness lead to the inference that he was considering sexual contact with the victim. See Fairchild, 305 Ark. 406, 808 S.W.2d 743; Jackson, 290 Ark. 160, 717 S.W.2d 801; and Ark. Code Ann. §§ 5-11-101, -102.

Thus, the jury could have reasonably concluded that appellant intended to commit kidnapping and that no other reasonable conclusion consistent with appellant’s innocence could be drawn from this evidence. The evidence is substantial and supports the jury’s verdict of guilt. The trial court did not err in denying appellant’s motion for directed verdict on the charge of attempted kidnapping.

As his second point for reversal, appellant argues that his Sixth Amendment rights were violated because he was incarcerated longer than nine months while awaiting trial. He recognizes this court has held that release on one’s own recognizance, rather than a dismissal or discharge, is the remedy for an accused who has been incarcerated continuously since his arrest and not brought to trial within nine months. A.R.Cr.P. Rules 28.1(a), 30.1 (b); Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). However, appellant urges this court to reverse its ruling in Jackson and adopt the rule that one who, while awaiting trial, is incarcerated for a period in excess of that provided for in A.R.Cr.P. Rule 28.2 should be released and discharged pursuant to the Speedy Trial Clause of the Sixth Amendment and Barker v. Wingo, 407 U.S. 514 (1972).

As part of this argument, appellant claims he was prejudiced by the trial court’s order granting the state’s motion to exclude the period of time from when the original scheduled trial date until the actual trial date. The state moved for the period to be excluded because of the trial court’s crowded docket.

We do not reach the merits of appellant’s speedy trial argument because he never raised this argument to the trial court. We have stated time and time again that we do not consider arguments raised for the first time on appeal, and even speedy trial arguments must be so raised. Gooden v. State, 295 Ark. 385, 390,749 S.W.2d 657, 660 (1988). Moreover, even constitutional arguments are waived when not raised below. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).

As his third point for reversal, appellant argues that his prior conviction for second degree sexual assault in Wisconsin should not have been used to sentence him as an habitual offender because his sentence for that conviction was probation for four years. Appellant claims that our habitual offender statutes allow a conviction from another state to be used only when the defendant actually serves a sentence of imprisonment for more than one year.

Appellant acknowledges the rule announced in Rolark v. State, 299 Ark. 299, 772 S.W.2d 588 (1989), that, for purposes of our habitual offender statutes, previous convictions resulting in probation are nonetheless previous convictions and may be considered for enhanced sentencing purposes. However, appellant urges this court to overrule Rolark, arguing that it is inconsistent with legislative intent. The state argues that Rolark is good law and should be followed here.

We agree with the state. This court has held that a prior conviction in another state resulting in a sentence of probation may be used for enhanced sentencing purposes, provided the law in the other state authorizes a sentence of imprisonment for more than one year. See e.g., Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990); Campbell v. State, 264 Ark. 575, 572 S.W.2d 845 (1978). See also Ark. Code Ann. § 5-4-503 (1987). Our habitual offender statutes focus on prior convictions, not on prior sentences as appellant contends. That the legislature intended the focus of the act to be on prior convictions is evident in the official commentary to section 5-4-503, which states as follows:

If a sentence in excess of one year in prison was authorized upon conviction in the other jurisdiction, then regardless of the sentence actually received, the defendant has a previous felony conviction or finding of guilt for purposes of § 5-4-501 [emphasis added].

As our prior holdings on this issue are consistent with section 5-4-503 and its supporting legislative intent, we decline to overrule Rolark. The trial court’s order denying appellant’s motion to dismiss habitual offender status states that as appellant was sentenced to four years probation, it is clear that Wisconsin law authorized a sentence of imprisonment in excess of one year. We agree and find no error in the trial court’s imposition of an enhanced sentence.

The judgment of conviction is affirmed.


text:
    Charles J. SMITH v. STATE of Arkansas
    CR 92-1440
    852 S.W.2d 109
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      Ronald Marc Chaufty, for appellant.

      Winston Bryant, Att’y Gen., by: Catherine Templeton, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Charles J. Smith, appeals his conviction for aggravated robbery under the Habitual Offender’s Act. We have jurisdiction over this appeal because appellant was sentenced to sixty (60) years in prison. Ark. Sup. Ct. R. 1-2(a) (2), In re: In the Matter of Rules of the Arkansas Supreme Court and the Arkansas Court of Appeals, 311 Ark. Appx. (Feb. 1, 1993). Appellant’s only argument on appeal is that the trial court erred in denying his motion to dismiss for lack of speedy trial.

Time for purposes of speedy trial began to run on July 19, 1990, when appellant was arrested for aggravated robbery. A.R.Cr.P. Rule 28.2(a). Appellant’s trial began April 22, 1992. This exceeds the speedy trial requirements by two hundred and seventy-seven (277) days. A.R.Cr.P. Rule 28.1(c). Once the accused has shown that the trial is to be held after the speedy trial period expires the state has the burden of showing the delay was legally justified. Harwood v. Lofton, 288 Ark. 173, 702 S.W.2d 805 (1986). Under A.R.Cr.P. Rule 28.3 certain periods of delay are excluded from the computation of time for speedy trial purposes. The state contends that when delays under Rule 28.3 are excluded from the time for speedy trial, the speedy trial period was met. We agree.

Specifically, the time from November 1, 1990, to January 22, 1991, eighty-two (82) days, should be excluded since that delay was the result of a request for a continuance from appellant’s attorney. A.R.Cr.P. Rule 28.3(c). Appellant contends he did not request this continuance and was not aware of the continuance or involved in any of the proceedings related to the continuance, so it cannot be charged to him. We have rejected this argument previously and do so again in this case. Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980). Rule 28.3(c) excludes all periods of delay “resulting from a continuance granted at the request of the defendant or his counsel.” (Emphasis added). “This rule... [recognizes] that there will be occasions ... on which a defendant’s attorney will be compelled to seek a continuance because of his own situation.” Matthews, 268 Ark. at 490, 598 S.W.2d at 62. Thus, the eighty-two (82) day delay resulting from the November 1,1990, continuance requested by appellant’s counsel is excluded for purposes of speedy trial.

Next, appellant’s counsel requested a continuance on November 21, 1991, which the trial court granted, continuing the case to April 20,1992, one hundred and fifty-two (152) days. Id. This delay, also at the request of appellant’s counsel, is also chargeable to appellant. These two delays total two hundred and thirty-four (234) days, leaving just forty-three (43) days for which the state must account.

A hearing was held on September 3, 1991, for which appellant did not appear. Appellant, who was on parole at the time, admits he knew about the hearing, but did not attend. When appellant failed to appear for the hearing, an alias warrant was issued for his arrest. A.R.Cr.P. Rule 28.3(e) provides “[t]he period of delay resulting from the absence or unavailability of the defendant” is an excluded period. Under Rule 28.3(e),

[a] defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.

Appellant’s presence for trial was not obtained until October 22, 1991, when he was arrested on the alias warrant. Thus, the time period from September 3, 1991, to October 22, 1991, fifty (50) days is excluded for speedy trial purposes. Thompson v. City of Little Rock, 264 Ark. 213, 570 S.W.2d 262 (1978); A.R.Cr.P. Rule 28.3(e).

The state has met its burden of proving the trial fell within the speedy trial time, taking into account all excluded periods.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Val P. PRICE v. STATE of Arkansas
    92-1276
    852 S.W.2d 107
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993
    [Supplemental Opinion on Denial of Rehearing June 28, 1993.]

      Val P. Price, for appellant.

      Winston Bryant, Att’y Gen., by; Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The present case comes to this court as an appeal from a post-conviction order removing a court-appointed defense attorney, Val Price, from the representation of Rammie Hall in his appeal and awarding Price legal fees of $5,500 for work done in Hall’s capital murder trial. Rammie Hall continues to be represented in his separate trial by the part-time public defender, Murrey Grider.

The notice of appeal from the trial judge’s order removing Price and setting his fee was filed in Hall’s case and was styled State of Arkansas versus Rammie E. Hall, Randolph County No. CR 90-67. Despite the notice of appeal, the record and briefs filed in this court are styled with Val Price versus State of Arkansas. On appeal, Price contests both his removal as court-appointed counsel and the amount of his fee award.

We hold that Price has no basis for jurisdiction in this court, and we, therefore, dismiss the appeal.

Price predicates jurisdiction on Ark. R. App. P. 2(a)(8), which permits an appeal when an order disqualifies an attorney from further participation in a case. The disqualification, of counsel envisioned in Ark. R. App. P. 2(a)(8) is something altogether different from what occurred in this case.

Appellate Rule 2(a) (8) had its genesis in a 1982 case where a motion was made by one party to disqualify counsel of the opposing party for violation of the Code of Professional Responsibility. Herron v. Jones, 276 Ark. 493, 637 S.W.2d 569 (1982); see also First American Carriers, Inc. v. The Kroger Co., 302 Ark. 86, 787 S.W.2d 669 (1990); Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986). The motion was granted, and the disqualification order was appealed. We held that the order was final, and that same date we issued a per curiam order amending Appellate Rule 2(a) to render appealable an order disqualifying counsel. In Re Amendment of rule 2 of the Rules of Appellate Procedure, 276 Ark. 605 (1982). In the present case, the trial judge, on his own motion, simply removed court-appointed counsel for purposes of the appeal, leaving the public defender to represent Rammie Hall. This removal is not a disqualification initially raised by opposing counsel on ethical grounds under Appellate Rule 2(a)(8) and, hence, does not constitute an appealable order under that Rule.

Price further asserts that the trial judge’s order removing him as counsel is a final order depriving Hall of his Sixth Amendment right to counsel. This appeal, though, is brought in the name of Val Price — not Rammie Hall. Moreover, the part-time public defender, Murrey Grider, is representing Hall on appeal, as he did in the capital-murder trial with Price. At the hearing on this question, Hall voiced no objection to the public defender’s continued representation of him on appeal or to Price’s removal. Accordingly, Price, in his separate appeal has no standing to assert that Hall is without counsel or that he alone can provide effective counsel to Hall. These rights are personal to Hall. See Kennedy v. Kelly, 295 Ark. 678, 751 S.W.2d 6 (1988). Should Hall wish to assert his Sixth Amendment rights, there is nothing to prevent him from doing so as part of his own appeal.

Price then goes forward and devotes virtually his entire brief to his contention that the fee awarded by the trial judge was inadequate. But that argument, standing alone, presents no independent basis for jurisdiction in this court, and we decline to address the issue. In sum, we can ascertain no basis for jurisdiction in this court. Because this appeal lacks an appropriate jurisdictional basis, we. dismiss it.

Appeal dismissed.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUNE 28, 1993

856 S.W.2d 10

1. Courts — jurisdiction — appeal of attorney’s fees by trial appointed counsel who was removed and without normal avenues of appeal. — The supreme court accepted the appeal of the appellant under its general supervisory authority to regulate the practice of law as established by Ark. Const. Amend. 28 and by Sup. Ct. R. l-2(a)(8), where an attorney was appointed by the trial judge to represent a defendant, was awarded a fee, and then was denied a traditional vehicle for review of the adequacy of that fee.

2. Attorney & client — fees — criteria to be considered. — The criteria to be considered by a trial judge in setting a reasonable fee, among others, include the experience and ability of the attorney, the time and labor required to perform the legal services properly, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar services, the time limitations imposed by the client’s defense, and the impact on the attorney’s practice.

3. Attorney & client — fees—no fixed formula. — There is no fixed formula for computing remuneration for attorneys, and the appellate court will defer to the superior perspective of the trial judge to weigh and apply the factors based on an intimate familiarity with the proceedings and with the quality of services rendered.

4. Appeal & error — standard of review for attorneys fees. —The discretion of the trial judge is not to be disturbed on appeal in the absence of abuse.

5. Attorney & client — fees — no abuse of discretion. — Where the trial judge weighed the factors, noted the county judge’s position, concluded a fee in the range of $600 to $900 would be contrary to public policy, and found an increase of the fee by $2,000 for a total fee of $5,500 to be appropriate, he did not abuse his discretion.

Petition for Rehearing denied.

Val Price, for appellant.

Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.

Robert L. Brown, Justice. The appellant, Val P. Price, petitions for rehearing on the basis that by dismissing his appeal due to lack of jurisdiction in this court, we foreclosed him from any avenue for a review of the attorney’s fee awarded by the trial judge. We agree with the point made regarding jurisdiction but deny the petition for rehearing. In addressing the appeal on the merits, we affirm the trial judge’s order.

We initially declined to accept jurisdiction for two reasons: 1) the appellant’s claim of jurisdiction based on Ark. R. App. P. 2(a)(8) was ill-founded; and 2) any constitutional argument predicated on the rights of Rammie Hall (the defendant below) were personal to him, and the appellant had no standing to raise them. We are struck, however, by the fact that traditional avenues for appeal do not appear open to an attorney such as the appellant who has been removed as counsel by the trial judge and, thus, will not appear before this court as part of Rammie Hall’s appeal. Yet, without the ability to appeal to this court for review of the trial judge’s order regarding fees (an order that is unquestionably final), the appellant is without a remedy for appeal.

The appellant was appointed by the trial judge to represent Rammie Hall in his capital murder trial and was awarded $5,500 for his services. He vehemently contests the adequacy of this fee. Under the circumstances, the adequacy of an attorney’s fee falls well within the ambit of the practice of law over which this court has general supervisory authority. Ark. Const., Amendment 28. (“The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.”) Moreover, we have defined our appellate jurisdiction to embrace: “Cases involving the discipline of attorneys-at-law and other cases arising under the power of the Supreme Court to regulate the practice of law.” Ark. Sup. Ct. R. 1-2(a)(8).

We, therefore, accept the appeal of the appellant under our general supervisory authority to regulate the practice of law as established by Amendment 28 and by Supreme Court Rule 1-2(a) (8) where an attorney has been appointed by the trial judge to represent a defendant, has been awarded a fee, and then has been denied a traditional vehicle for review of the adequacy of that fee. We note, however, that we view this as an extremely narrow window for relief and that the circumstances of removal of court-appointed trial counsel from participating in the appeal is highly unusual.

In addressing the appeal on the merits, we have recently reviewed the issue of appropriate attorney’s fees for court-appointed counsel and the factors to be considered in three recent decisions. State v. Campbell, 312 Ark. 593, 851 S.W.2d 434 (1993); State v. Independence County, 312 Ark. 472, 850 S.W.2d 842 (1993); State v. Post, 311 Ark. 510, 845 S.W.2d 487 (1993). We do so again in the present case.

Price, in his petition for a larger fee which he presented to the trial judge after Hall’s conviction, used the criteria set forth in Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991). The criteria to be considered by a trial judge in setting a reasonable fee, among others, include the experience and ability of the attorney, the time and labor required to perform the legal service properly, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar services, the time limitations imposed by the client’s defense, and the impact on the attorney’s practice. See also Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).

Price contended, regarding the criteria, that 1) he had practiced law for ten years and had handled 41 criminal jury trials, including five murder cases and three federal cases; 2) he had graduated from a two-week program offered by the National Defense College’s Trial Practice Institute; 3) he practiced law in Craighead County but was appointed to represent Hall in Randolph County; 4) he had spent considerable time on the case, as it involved a capital felony murder charge with a possible death sentence, and, being a solo practitioner, he was obliged to put additional employment aside; 5) in a recent Craighead County rape and kidnapping case, the trial judge had granted a fee of $7,37 5, or $50 per hour, for 147.5 hours of work; 6) federal courts pay a rate of $40 per hour for out-of-court time and $60 per hour for in-court time, and, for federal habeas cases involving review of state capital-murder death-penalty cases, $100 to $125 per hour; and 7) $50,000 is the approximate going rate for an attorney in any capital murder case. Price also attached copies of his hourly billing, which recorded 86 hours of out-of-court time and 64.5 hours of in-court time, amounting to a total of 150.5 hours spent on the Hall case. He argued that the trial judge’s initial fee of $3,500 rendered him a fee at the rate of $23 per hour.

The trial judge allowed Price ample scope for presenting comparative fees at the hearing. Additionally, Murrey Grider, Price’s co-counsel at trial, testified that Price had done a good job and was of great assistance to him. The prosecutor also testified that the Hall case was probably the “hardest capital murder case I’ve ever tried” and that “Mr. Price did an excellent job in the case.” It was a six-day trial, and there were 46 witnesses and 124 exhibits involved. However, there was also testimony from the Randolph County Judge, Jim Andrews, that Price agreed to accept $600 and then $900 to assist Grider in Hall’s defense and that he should be limited to that amount.

The factors listed in Arnold v. Kemp, supra, and used by Price are familiar components for fee setting. There is, though, no fixed formula for computing remuneration for attorneys, and we have made it clear that we will defer to the superior perspective of the trial judge to weigh and apply the Arnold v. Kemp factors based on an intimate familiarity with the proceedings and with the quality of services rendered. State v. Campbell, supra, State v. Independence County, supra. The discretion of the trial judge is not to be disturbed on appeal in the absence of abuse. Id.

From a review of the record and arguments in the present case, it appears that the trial judge weighed the factors set forth in Arnold v. Kemp and noted the Randolph County Judge’s position, although the trial judge concluded that a fee in the range of $600 to $900 for Price would be contrary to public policy. He then found an increase of the fee by $2,000 for a total fee of $5,500 to be appropriate. Price argues that this compensates him at a rate of about $36 an hour. Be that as it may, we defer to the trial judge in this instance in determining the reasonableness of Price’s compensation. We hold that he did not abuse his discretion in awarding the fee.

The petition for rehearing is denied.


author: Per Curiam. Tom Glaze, Justice,

text:
    Ronald DAVIS v. HELENA-WEST HELENA SCHOOL DISTRICT
    93-31
    853 S.W.2d 864
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      David Solomon, for appellant.

      R. S. McCullough, for appellee.
   Per Curiam.

Petition for Review is denied.

Tom Glaze, Justice,

dissenting. This case should have initially come to the Arkansas Supreme Court since it involves the interpretation of “The Teacher Fair Dismissal Act” (Ark. Code Ann. §§ 6-17-1501-1510 (1987) and the Arkansas Administration Procedures Act (APA) (Ark. Code Ann. §§ 25-15-201-214 (1987). See Rule 29, 6(a) of the Arkansas Rules of Supreme Court. Neither party cited the APA in their briefs before the court of appeals, but that court in reaching its decision relied on cases construing the APA — an Act which this court has held applies only to state agencies and does not include school districts. Corbin v. Spec. School Dist. of Fort Smith, 250 Ark. 357, 465 S.W.2d 342 (1971). In doing so, the court of appeals held petitioner Ronald Davis never objected to having no opportunity to cross-examine certain students or their parents before the respondent’s school board proceeding and therefore Davis effectively waived his rights to cross-examine those witnesses. Davis argues § 6-17-1510(d) of The Teacher Fair Dismissal Act allows additional testimony and evidence in an appeal to show facts that his or her termination or renewal was lawful or unlawful.

Obviously the construction of the foregoing Acts comes into play in reaching the parties’ issue on appeal. This court should particularly grant certiorari since the court of appeals decided this appeal based in part by construction of the APA when that Act was never previously mentioned by the respective parties.

Brown, J., joins this dissent.


author:
Steele Hays, Justice.
      Donald L. Corbin, Justice, Robert L. Brown, Justice,

text:
    DEFFENBAUGH INDUSTRIES and Travelers Insurance Company v. Earl ANGUS
    92-838
    852 S.W.2d 804
    Supreme Court of Arkansas
    Opinion delivered May 10, 1993

      Michael E. Ryburn, for appellants.

      Schieffler Law Firm, by: Edward H. Schieffler, for appellee.
   Steele Hays, Justice.

In this Workers’ Compensation case the claimant, Earl Angus (appellee) sustained injuries when a tornado destroyed a mobile home where he resided on the premises of his employer, Deffenbaugh Industries (appellant). The Commission’s finding that the injuries were compensable was affirmed by the Court of Appeals by a vote of three to three. In Deffenbaugh Industries, Inc. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992) the Court of Appeals adopted the positional risk doctrine to allow compensation for an employee injured by neutral risks. We granted the petition for review of Deffenbaugh. and its carrier Traveler’s Insurance Company pursuant to our Rule 29(6) because of the tie vote. We affirm and apply the increased risk doctrine in so doing.

Earl Angus was the manager of West Memphis Industrial Oil Services, a subsidiary of Deffenbaugh Industries. Appellants’ facility was engaged in the business of collecting and reselling waste oil, operating twenty-four hours per day. Trucks bringing waste oil to the facility arrived at odd hours. The parties stipulated that all of Mr. Angus’ duties of employment were required to be performed as needed, twenty-four (24) hours a day, seven (7) days a week.

Earl Angus and his wife entered into a rental agreement with his employer pursuant to which the company purchased a trailer and placed it on the premises of the bulk plant so the family could reside there. This was a condition of his employment. A zoning ordinance of the City of West Memphis prohibited a residence in a commercial area and Angus obtained a zoning variance to permit the mobile home in a commercial zone. Although Angus conducted business from an office in another building, a telephone was installed in the mobile home so that he could be reached by company drivers or customers at any time.

One the night of December 14, 1987, Angus went to the mobile home while awaiting a truck driven by Billy Harris. He had been there approximately fifteen minutes and was eating dinner with his family when a tornado struck the mobile home. Mrs. Angus was killed and Mr. Angus and his daughter were severely injured. Billy Harris arrived several minutes after the storm and discovered the Angus family.

The Workers’ Compensation Commission affirmed the Administrative Law Judge’s decision that Angus suffered compensable injuries arising from and in the course of his employment. The Commission found that the conditions and obligations imposed upon Angus by his employer required him to maintain a constant presence on the premises and exposed him to the risk of the danger which caused his injury.

The Court of Appeals affirmed the Commission’s decision and accepted the positional risk doctrine to provide compensation for employees who are injured by neutral risks but declined to draw a fine distinction between types of risks. The court held that Angus’ injuries “arose out of his employment” because “but for” the employment, he would not have been in his home on his employer’s premises at the time the tornado struck the area.

On appeal of a worker’s compensation case from the Court of Appeals to this court, the evidence must be viewed in the light most favorable to the Commission’s decision and its decision must be upheld if it is supported by substantial evidence. Hall's Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992). Substantial evidence exists if reasonable minds could have reached the same conclusion. Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989). Thus, before the appellate court may reverse a decision by the Commission, it must be convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. International Paper Co. v. Tuberville, 302 Ark. 22, 786 S.W.2d 830 (1990); Howard v. Arkansas Power & Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987).

Thus, the issue now before us is whether there is substantial evidence to support the Commission’s finding that Angus sustained injuries “arising out of and in the course of his employment.” A claimant seeking benefits must prove by a preponderance of the evidence that the injury arose out of and in the course of the employment. Arkansas Dep’t of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). “Arising out of the employment” refers to the origin or cause of the accident while the phrase “in the course of the employment” refers to the time, place, and circumstances under which the injury occurred. Jones v. City of Imboden, 39 Ark. App. 19, 832 S.W.2d 866 (1992); Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985).

The appellants first argue that Mr. Angus was not “in the course and scope” of his employment because he was not performing any job related duties at the time he was injured. Appellants contend that because Angus was eating dinner when the tornado struck, it does not meet the time, place and circumstances requirements of being in the course of employment.

With respect to course of employment, the test requires that the injury occur within the time and space boundaries of the employment, while the employee is carrying out the employer’s purpose or advancing the employer’s interests directly or indirectly. City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987) (citing 1 A Larson, Workmen’s Compensation Law §§ 14.00, 20.00 (1985)).

In applying the foregoing test, we affirm the Court of Appeals decision that there was substantial evidence that Angus was injured while in the course of his employment. Angus was required to live on the premises as a condition of his employment and was on call twenty-four (24) hours a day, seven days a week. Because he was continuously on duty, Angus qualifies as a resident employee. As such, “the entire period of his presence on the premises is deemed included in the course of employment.” See 1 A Larson, Law of Workmen’s Compensation § 24.00 (1992). Appellants obviously benefitted from Angus’s accessibility to the plant and the security his presence provided. In addition, Angus was waiting for the Harris truck to arrive and thus the conditions of his employment made it incumbent on him to remain in an area of risk. Therefore, we conclude the conditions of employment and the imminent arrival of the Harris truck demonstrate that Angus was in the course of his employment when he was injured by the tornado.

Appellants next argue the injuries did not arise out of the employment because a tornado is an “Act of God” which has no known cause. In order for an injury to arise out of the employment, it must be a natural and probable consequence or incident of the employment and a natural result of one of its risks. J & G Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (Ark. App. 1980).

Both parties urge us to apply the positional risk doctrine. Under this theory, an injury is compensable if it would not have happened but for the fact that the conditions or obligations of the employment put the claimant in the position where he was injured. 1 A Larson, Law of Workmen’s Compensation, § 6.00 (1992). This doctrine only applies when the risk is neutral, meaning that the risk which caused the injury was neither personal to the claimant nor distinctly associated with the employment. See 1 Larson, Law of Workmen’s Compensation, § 6.50 (1992).

Although the appellants purport to argue the positional risk doctrine, they suggest that the increased risk doctrine is applicable. Under the latter doctrine, the injuries are compensable if the employment exposed the employee to a greater degree of risk than other members of the general public in the same vicinity.

The Court of Appeals chose to apply the positional risk doctrine, which it refers to as a “substitute for the ‘arising out of test.” The court stated that “but for” the employment, Mr. Angus would not have been exposed to injury by neutral risks. Thus, the court classifies tornadoes as neutral risks which are compensable under this doctrine.

Until this decision, Arkansas courts had not expressly adopted the positional risk doctrine, although it has been discussed in such cases as Adkins v. Teledyne Exploration Co., 8 Ark. App. 342, 652 S.W.2d 55 (1983); Burks v. Anthony Timberlands, Inc., 21 Ark. App. 1, 727 S.W.2d 388 (1987); Pigg v. Auto Shack, 27 Ark. App. 42, 766 S.W.2d 36 (1989) and Kendrick v. Peel, Eddy, & Gibbons Law Firm, 32 Ark. App. 29, 795 S.W.2d 365 (1990).

In Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W.2d 468 (1964), this court applied the increased risk doctrine to compensate a claimant who was injured at work by a gust of wind which picked him up, carried him approximately 7 5 feet and dropped him on a concrete apron. The claimant was securing a sign outside at the time. The court stated:

The general rule with respect to injuries and deaths due to tornadoes, hurricanes and other forms of windstorms is, if an employee, by reason of his employment, is exposed to a risk of being injured by storm ‘which is greater than the risk to which the public in that vicinity is subject, or if his employment necessarily accentuated the natural hazard from the storm, which increased hazard contributed to the injury,’ it is an ‘injury arising out of the employment, although unexpected and unusual.’ The test has been said to be ‘not whether the injury was caused by an act of God,’ but ‘whether the one injured was by his employment specially endangered by the act of God.’ ”

Parrish, 237 Ark. at 560.

In Pigg, supra, and in the present case, the Court of Appeals has stated that Parrish presents the fact situation favorable to the positional risk doctrine. Although an appropriate scenario to the positional risk doctrine may eventually arise, the fact remains that we chose to apply the increased risk doctrine in Parrish. We believe that is the appropriate standard to apply in the present case.

The increased risk doctrine is necessary in order to preserve the requirement that a causal connection must exist between the injury and some risk of the employment. Under this theory, the claimant must only prove that the conditions of employment, or the place where his employment required him to be, intensified the risk of injury due to extraordinary natural causes.

In applying the increased risk test to the instant case, we believe that Earl Angus was more at risk than the general public due to the performance of the duties of his job. His employment increased his risk of injury because he was obliged to wait for Billy Harris during the time when a tornado struck the area. He did not have the option to seek safer ground. Moreover, there is advertence in the record to the manifest susceptibility of trailers to tornado damage. Photographs of the scene reflect that the mobile home was wrenched from its moorings and totally destroyed, whereas the evident damage to the structures of the surrounding plant was partially caused by impact with the trailer debris. Clearly, the conditions and obligations of Angus’s employment exposed him to higher risk, positioned so that the tornado dealt the injuries he suffered. Therefore, we affirm the Court of Appeals decision that the claimant’s injuries arose out of and in the course of his employment.

Affirmed.

Corbin, J., concurs.

Brown, J., dissents.

Donald L. Corbin, Justice,

concurring. I concur. I prefer to apply the positional risk doctrine adopted by the Arkansas Court of Appeals. Thus, applying the positional risk doctrine, Mr. Angus would not have been exposed to injury by the tornado, a neutral risk, “but for” his employment.

Robert L. Brown, Justice,

dissenting. The opinion of the majority effectively does away with the requirement that an injury arise out of employment to be compensable. The twin tests for a workers’ compensation award are that the injury 1) arise out of employment, and 2) occur in the course of employment. Ark. Code Ann. §§ 11-9-102(4); 1 l-9-401(a)(l) (1987). The majority correctly concludes that Earl Angus’s injury occurred in the course of employment. I cannot agree, however, that his injury, which was caused by a tornado while he was not performing work duties and was eating supper at his home, arose out of his employment.

Angus’s mobile home was on the premises of his employer, where he was the manager, but he worked in a separate office. That office was not destroyed by the tornado. He had left his office at 9:15 p.m. to return to his home to have supper. That is what he was doing when the tornado struck. There is no question that he had quit work for this period of time, though he knew that a trucker named Billy Harris would be coming in sometime later that evening:

Q. Was Mr. Harris working that day?
A. Yes, he was loaded that morning. I was in the process of cooking oil that night and I knew Billy wouldn’t be in until late, so I went home to eat and wait for Billy to get back in and load him when he got back in that night.
Q. What time was this when you quit?
A. It was about 9:15 when I got home.
Q. And then what happened?
A. I was talking to my wife and I heard some loud pops and noises and I had heard a transformer explode before, the lights were flickering and I heard the roar and everything. I grabbed my wife and my child and we started to get out of the trailer and everything exploded. That is all I remember.
Q. But, before the tornado demolishing your quarters there, would you have had work to do that night?
A. I had to load Billy when he come back in. The tornado then hit at about 9:30.

Angus testified that normally he went to work at 6:45 in the morning and would be finished at about 7:00 or 8:00 p.m. His typical routine was to go to the house trailer after 7:00 or 8:00 in the evening and then return to his office after supper to turn the alarm system off and perform other duties. When the tornado hit, Angus admitted that he had gone home and was not performing any duties for his employer while he was eating supper with his family:

Q. But you were not performing of (sic) your employment at the time you were in the trailer?
A. Well, not any duties, no, but my work wasn’t done until Billy got back in.
Q. So, you might have gone back in the yard to help Billy when he got back in, but as far as what you were doing in the trailer, you testified that all you were doing was eating.
A. Eating dinner.
Q. And you were staying there with your family?
A. Right.
Q. And that is when the tornado hit?
A. Correct.

In sum, we have a neutral risk — the tornado — unrelated to Angus’s employment that caused his injury while he ate supper in his home during a period of time when, by his own admission, he was not performing duties for his employer. The fact that a truck would be arriving later that night and that he would have to leave his home and perform some duties does not convert Angus’s injury by the tornado into an injury arising out of his employment. He might have been operating in the course of his employment because his mobile home was on his employer’s premises and he was on call, but the injury did not arise out of it.

The majority, accordingly, stretches to reach this result. In my judgment, this court was correct in Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W.2d 468 (1964), which also involved a wind-related injury. In that case, Adams was employed as a night manager of a service station, and at the time in question he was the only person working on the shift. At about 3:30 a.m., Adams decided to go fasten and secure items on the service station islands. It was while performing these duties that he was injured by a gust of wind. We stated in that case:

Certainly, there was a duty upon Adams, as an employee, to protect the property of his employer, and the protection that Adams was seeking to afford, could not have been done without leaving the building. The acts being performed were as much a part of his duties as though he had been waiting on a customer when the wind struck. There is absolutely no evidence that Adams was not engaged in the work that he testified to at the time the injury was sustained.

237 Ark. at 568, 374 S.W.2d at 473. Those facts are substantially different from the facts in the present case and exhibit a clear injury arising out of employment. Adams was unquestionably performing work-related duties when he was injured. The same cannot be said in the case before us.

We granted review of this case because of a three-to-three division in the Court of Appeals sitting en banc. The evenly divided court amounted to an affirmance of the Workers’ Compensation Commission’s decision. Did the origin and cause of the injury emanate from Angus’s employment? I do not think so. Angus did not perform work-related duties twenty-four hours a day at Deffenbaugh Industries, and he was not working at the time the tornado struck. Indeed, he had left his office and was in his mobile home having supper. The mere fact that he lived on the premises cannot sustain the requirement of work-related causation and this award. Had the tornado injured him when he was in his office or assisting Billy Harris unload his truck, I would have no hesitancy in affirming the award. Here, though, that is not the case. I would reverse the Commission’s decision.


author: Steele Hays, Justice.

text:
    The NATURE CONSERVANCY and Arkansas Natural Heritage Commission v. Grace Evelyn Clayton KOLB, Jessie Pearl Gosney, John W. Clayton, Jr., Edith Eleanor Taylor, Edward Schafer and Betty Schafer
    92-752
    853 S.W.2d 864
    Supreme Court of Arkansas
    Opinion delivered May 10, 1993

      Winston Bryant, Att’y Gen., by: Susan G. Jones, Asst. Att’y Gen., for appellant Nature Conservancy.

      Haley, Claycomb, Rober & Anderson, by: Bruce Anderson, for appellant Arkansas Natural Heritage Commission.

      Green & Henry, by: David G. Henry, for appellees.
   Steele Hays, Justice.

This litigation involves disputed claims to a tract 100 feet wide across the north half of a section of land in Lonoke County. The tract, formerly used as a railroad right of way, extends across acreage owned by appellees, Edward and Betty Sue Schafer, and by appellees, Grace Evelyn Clayton Kolb, Jessie Pearl Gosney, John W. Clayton, Jr., and Edith Eleanor Taylor. The opposing claimants are appellants, The Nature Conservancy and Arkansas Natural Heritage Commission. The Schafer tract comprises the Wl/2 NW 1 /4 and the Kolb tract, the E 1/2 NW 1/4 and the NE 1/4.

In 1853 the Memphis and Little Rock Railroad Company was incorporated by Act of January 11, 1853, of the Arkansas General Assembly and authorized to acquire land on which to construct a railroad. The ultimate successor in interest was the Chicago Pacific Corporation which abandoned the operation around 1985 and removed all tracks and ties from the right of way. Chicago Pacific Corporation conveyed its interest to Brewer & Taylor Company, which in 1986 conveyed to The Arkansas Nature Conservancy. The Nature Conservancy then conveyed in part to Arkansas Natural Heritage Commission. The parties stipulated that appellees are the owners of the lands on either side of the disputed strip.

Appellees filed suit to quiet title, alleging that upon abandonment of the tract for railroad purposes all interest in the right of way reverted to the appellees as the owners of the fee to their respective properties. The case was submitted to the trial court upon written stipulations. The trial court ruled the Chicago Pacific Corporation and its predecessors held easements in the subject tract which had been abandoned and appellees became the owners in fee by reversion.

The Nature Conservancy and Arkansas Natural Heritage Commission rely on three points for reversal:

I.
The Trial Court erred in ruling that the Act of January 11,1853, of the General Assembly of the State of Arkansas, conveyed only an easement to the Memphis and Little Rock Railroad Company, the predecessor in interest of the Appellants.
II.
The Trial Court erred in ruling that the Quitclaim Deed conveying that part of the subject land located in the Northeast Quarter of Section 24 from Charles E. Smiley to the Chicago, Rock Island and Pacific Railway Company was an easement and not a fee simple conveyance.
III.
The Trial Court erred in ruling that the land involved in this litigation reverted to the Appellees rather than to the heirs of the predecessors in interest of the Appellees who retained ownership of any reversion by excepting the subject land from conveyances out of them.
I.

The parties stipulated that prior to the Act of January 11, 1853, and up to the present time, appellees have had continuous exclusive possession of the lands traversed by the right of way, subject only to the dispute now before us. Thus, the issue is whether the language of the 1853 act created title in fee simple or merely an easement.

In general the act authorized the formation of a railroad and granted to that corporation the power to buy and appropriate land for the construction of a railroad between Memphis and Little Rock. Section 15 of the act provided the procedure for condemnation when the corporation and the landowners could not agree upon a price. Section 16 outlined the procedure when there was no contract with the landowner (presumably where the owner could not be located):

In the absence of any contract with the company in relation to the lands through which the said road may pass, signed by the owner thereof, or by his agent, or any claimant, or person in possession thereof, which may be confirmed by the owner, it shall be presumed that the land upon which the said road may be constructed, together with a space of one hundred feet on each side of the center of said road, has been granted to the company by the owner thereof, and the said company shall have good right and title thereto, and shall have, hold and enjoy the same as being as the same to be used only for the purpose of the road, and no longer, unless the person or persons owning the said land at the time that part of the road which may be on said road [land] was finished, or those claiming under him, her, or them, shall apply for an assessment for the value of said lands, as hereinafter directed, within five years next after that part of said road was finished; and in case the said owner or owners, or those claiming under him, her, or them, shall not apply for such assessment within five years next after the said part was finished, he, she, or they shall be forever barred from recovering the said land, or having any assessment or compensation therefore. . . .

Both appellants and appellees rely on language in Section 16. Appellees cite the following:

[I]t shall be presumed that the land upon which the said road may be constructed. . . has been granted to the company by the owner thereof and the said company shall have good right title thereto, and shall have, hold and enjoy the same as the same to be used only for the purpose of the road and no longer. . . . [Our emphasis.]

Whereas, appellants cite this language:

. . .unless the person or persons owning the said land at the time that part of the road which may be on said road [land] was finished or those claiming under him, her, or them, shall apply for an assessment for the value of said lands, as hereinafter directed, within five years next after that part of said road was finished; and in case the said owner or owners, or those claiming under him, her or them, shall not apply for such assessment within five years next after the said part was finished, he, she or they shall be forever barred from recovering the said land, or having any assessment or compensation therefore. . . . [Our emphasis.]

Thus, appellants contend that in the absence of a claim by the true owner within five years of completion of the railroad, the railroad owns the property in fee simple. Appellants urge that this grant is not a delegation of the power of eminent domain because the Constitution of 1836, in effect at the time, contained no provision for eminent domain. That may be true, but we have held that the power of eminent domain belongs inherently to the state. In Cairo and Fulton Railroad Co. v. Turner, 31 Ark. 494 (1876), this Court considered a companion enactment to the act of 1853, involving the Cairo and Fulton Railroad and the powers delegated. We wrote:

The Constitution of most of the American states contains a similar provision [to that of the eminent domain provision in the United States Constitution.] Our Constitution of 1836 contained no such provision, but, in Martin et al., ex parte, 19 Ark. 206, it was well said by Chief Justice Watkins: . . .The right of eminent domain is inherent in the government or sovereign power. . . . The right of eminent domain means, that when the public necessity or common good requires it, the citizens may be forced to sell his property for fair value. . . .

The rules affecting the construction of statutes delegating the powers of eminent domain are well settled. They are to be strictly construed in favor of the landowner, the editors of American Jurisprudence provide this general overview:

The legislature has the plenary power to define the quantum of interest or estate which may be acquired by eminent domain, whether an easement or the fee, or some estate intermediate to these two, such as a base, conditional or determinable fee. The interest taken depends on the statute authorizing the taking and the extent of the title or rights which may be adjudged under the pleadings in the particular proceedings. Generally the rule of construction applied to determine the extent of the grant of the power of eminent domain, and the interest obtainable, is limited to the express terms or clear implication of the statute in which the grant is contained. [Our emphasis.]

26 Am. Jur. 2d Eminent Domain § 132 (1966).

Our own cases are in accord with that summation. In City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W.2d 830 (1958), we said:

Statutes which relate to the power of eminent domain should be strictly construed in favor of the landowner largely because they are in derogation of the common law.

See also Hampton v. Arkansas State Game and Fish Commission, 218 Ark. 757, 238 S.W.2d 950 (1951): (“The right of eminent domain is to be strictly construed against the condemnor and in favor of the landowner.”) In Graham v. St. Louis, Iron Mountain & Southern Railway Company, 69 Ark. 562, 65 S.W. 1048 (1901), we considered virtually identical language in a deed (“To have and to hold the same to the said party of the second part so long as said lands are used for the purpose of a railroad and no longer”) and construed the language to convey a perpetual easement rather than a fee.

In view of those rather decisive canons of construction we think the evident intent of the legislature was to empower the railroad to acquire an easement to continue as long as the lands were used for purposes of a railroad, but no longer. Arguably, the apparent ambiguity in Section 16 can be reconciled by construing the intent to be that an owner who fails to act within five years loses any right to eject the railroad or to recover compensation for the taking of the right of way, but not the right of reversion in the event of abandonment. Admittedly, the use of the word “forever” without qualification casts a shadow over that interpretation, but we nevertheless infer from the act in its entirety, that the phrasing presupposes the railroad has not abandoned the right of way. But even if the ambiguity cannot be plausibly explained, we believe the rules of construction favorable to the landowner in eminent domain must govern.

In the alternative, appellants argue that even if the act of 1853 did not exist, appellants are the owners of the tract by virtue of adverse possession. But of course the act did exist and it requires no supporting authority to observe that under all the traditional concepts of adverse possession the railroad could not acquire title under that doctrine of the law where its possession and usage were consistent with a grant. Its possession, in other words, was not adverse and hostile, but in accordance with the grant by which it obtained possession.

II.

A second argument, which concerns only the east half of the tract, is based on a quitclaim deed dated September 9,1916, from C.E. Smiley and Rhoda A. Smiley, his wife, to the Chicago, Rock Island and Pacific Railway Company, a successor to the Memphis and Little Rock Railroad Company. The instrument, reciting a consideration of $1.00, purports to “grant, sell and quitclaim unto the said The Chicago, Rock Island and Pacific Railway Company, and unto its successors and assigns forever, the following lands lying in the county of Lonoke and State of Arkansas, to-wit:

A right of way One Hundred (100) feet wide, the same being Fifty (50) feet wide on each side of the center line of the main tract of the said Railway Company, as the same is now located on and across the East one-half (E. l/i) of Section Twenty-four (24), Township Two (2) North, Range Seven (7) West.
To have and to hold the same unto the said The Chicago, Rock Island and Pacific Railway Company and unto its successors and assigns forever, with all appurtenances thereunto belonging.

The outcome as to this issue rests on the interpretation of the deed from the Smileys to the railroad. In Coleman v. Missouri Pacific Railroad Company, 294 Ark. 633, 745 S.W.2d 622 (1988), we wrote:

When called upon to construe deeds and other writings, this court is concerned primarily with ascertaining the intention of the parties, and such writings will be examined from their four corners for the purpose of ascertaining that intent from the language employed, and, if such intention clearly appears, effect will be given thereto. Chicago, Rock Island & Pacific Railroad Company v. Olsen, 222 Ark. 828, 262 S.W.2d 882 (1953). In Olsen, the court stated the general rule to be that if the deed purports to convey only a right of way, it does not convey the land itself, but the fee remains in the grantor, and the railway company acquires a mere easement in perpetuity for railway purposes.

The changing economic and political environment since World War II affecting railroad transportation has spawned a number of cases wherein we have been called on to decide whether a railroad acquired an easement or a fee as grantee by construing documents drafted many years earlier. That determination necessitates that we examine the deeds “from their four corners” to glean the intention of the parties. Wylie v. Tull, 298 Ark. 511, 769 S.W.2d 409 (1989).

In Daugherty v. Helena & Northwestern Railway, 221 Ark. 101, 252 S.W.2d 546 (1952), addressing the identical issue, we examined factors we deemed pertinent to the issue: whether a nominal consideration had been paid by the railway company for the strip of land; whether the shape of the tract conveyed indicated a right of way; whether the railway company was given the right “to the stone, gravel and timber and to borrow earth on the said right of way” for the construction and maintenance of the railroad. Noting that it would be unusual, perhaps absurd, to authorize a grantee to take its own stone and gravel and borrow its own earth, we held the deed conveyed a fee. We also observed that the land was conveyed “for a right of way.” In El Dorado & Wesson Railway Co. v. Smith, 233 Ark. 298, 344 S.W.2d 343 (1961), we reached the same result on nearly identical facts, the only difference being that a consideration of $55 was given in Smith, as opposed to an entirely nominal consideration in Daugherty- not enough to change the result. The holding in those two cases rested primarily on the fact that the deed authorized the grantee to take stone, gravel and earth, for the construction or maintenance of the railroad- a provision plainly inconsistent with a right of way.

In Coleman v. Missouri Pacific, supra, we interpreted three deeds executed in 1902 by J.S. Coleman and his wife to the Missouri Pacific Railway Company. We upheld the chancellor’s finding that the intent of the parties was to convey title in fee rather than to create a servitude. We placed particular emphasis on two factors: Mrs. Coleman renounced her dower and homestead, a needless act if an easement were intended [See St. Louis & San Francisco Railway Company v. Tapp, 64 Ark. 357, 42 S.W. 667 (1897)], and the railroad company was given the right to remove or affect water, earth, gravel or stone located outside the lands granted, leaving an inference that no such authority was necessary as to the use of those materials from within the lands conveyed.

Here, we believe the chancellor focused solely on the narrow dimensions of the tract itself as having no suitable purpose other than a right of way. The chancellor cited Brewer & Taylor Co. v. Wall, 299 Ark. 18, 769 S.W.2d 753 (1989), as closely in point. But the shape of the tract, though pertinent, is hardly conclusive, and other significant factors were passed over unmentioned. In Brewer & Taylor we pointedly noted two factors which are absent here. The deeds in Brewer were entitled “Right of Way” and specified that the land conveyed was “for a right of way.” While the appellees’ brief asserts the Smiley deed “specifies that the land is conveyed for a right of way” (our emphasis), we find no such provision in the deed itself. The description uses “right of way,” but the word “for” appears nowhere in the deed (except “for and in consideration of etc.”) and that omission bolsters the argument that the words were used to facilitate identification of the tract conveyed, that is, fifty feet on either side of the center line of a railroad already installed and not otherwise identifiable from the deed. In other words, there is no way to identify the actual tract conveyed by the deed except by an on site inspection to determine where the existing tract was located. In short, the deed fails to contain any wording suggesting its purpose is for a right of way.

Turning to other factors which we have found noteworthy: This deed contains an habendum clause [El Dorado & Wesson Railway Co. v. Smith, supra]; dower and homestead relinquished [Coleman v. Missouri Pacific Railway Company, supra, and Wylie v. Tull, supra]; the deed is entitled simply “Quitclaim Deed” [Brewer & Taylor Co. v. Wall, supra]; and the deed contains no provision authorizing the grantee to remove stone or gravel or to borrow earth [Daughtery, Coleman, Wylie and Brewer, supra]. As to the latter provision, appellees argue that because the railroad had been completed many years earlier there was no need to include a provision for the removal of materials in the Smiley deed. But those clauses customarily extend to “construction and maintenance’'’ (our emphasis), a need which obviously continues beyond the initial construction.

This case contains another factor not present in other cases: At the time of the Smiley deed the railroad had already acquired an easement across the Smiley land pursuant to the 1853 act. Thus, there is no discernable reason why the railroad would have negotiated for the conveyance of an easement it had already acquired. It seems far more plausible that in that context the intent of the parties was to convey the fee. A possible consideration to the Smileys may have been that under the act the railroad was authorized to claim one hundred feet on either side of its tract, whereas the conveyance from the Smileys was limited to only fifty feet on either side.

When the foregoing factors are examined, we believe those favoring an intent to transfer the fee readily outweigh the opposing factors and the chancellor’s reliance on the dimensions of the tract was clearly erroneous.

III.

We find no basis for reversal in appellant’s third argument. Appellants contend it was error for the trial court to rule that the lands reverted to the appellees rather than to the heirs of appellees’ predecessors in title. Appellants cite only Coleman v. Missouri Pacific Railroad Company, supra.

Appellants point out that appellees’ chain of title to the NW 1/4 of Section 24 includes a 1904 warranty deed which excepts “that part occupied and used by the C.O. & R.R. Co. as a right of way. . . .’’Furthermore, appellees’chain of title to the E 1/2 of Section 24 includes a 1903 warranty deed “excepting and reserving from this conveyance, however, that part of said tract embracing the right of way of the Choctaw, Oklahoma & Gulf Railroad.” Appellants urge that by reason of these exceptions any reversionary interests would devolve on the heirs of the grantors of those two deeds, rather than on appellees.

Appellees counter that contention with the argument that at the time the two deeds were executed the railroad had been in existence over forty years. They maintain a “reservation” is a clause by which grantors create and reserve to themselves some right or interest which had no previous existence but “is first called into being by the instrument reserving.” They note that a reservation is distinguishable from an exception, the later being defined as “a clause by which a grantor excepts something out of that which he granted before the deed.” Because the two terms tend to be used interchangeably they are not treated as conclusive as to the nature of the provision, but must yield to manifest intent. Bodcaw Lumber Company v. Goode, 160 Ark. 48, 254 S.W.2d 345 (1923). Appellees cite Jennings v. Amerada Petroleum Corporation, 66 P.2d 1069 (S.C. Okla. 1937); Goodrich v. Easton Railroad, 37 N.H. 149 (1858); Moakely v. Blog, 265 P. 548 (C.A. Cal. 1928), for the rule that recitals such as “less the right of way” and “except the right of way” are accepted as meaning that the grantor conveys his or her entire estate while recognizing the dominant estate, i.e. the easement.

We will make no attempt to resolve that issue in this case. The trial court did not reach it, and just how it was presented to him is not revealed in the abstracted record. The case was submitted on written stipulation and we would be dependent solely on the language of two ancient deeds with no other indication of intent. Nor does the decision in the Coleman case, the only authority given us, provide guidance. That opinion merely mentions that the appellants, who did not prevail, were heirs of Mr. and Mrs. J.S. Coleman. And since the railroad was held to have acquired the fee, it was not necessary to decide who held the right of reversion.

For the reasons stated, the order appealed from is affirmed in part, reversed in part and remanded for entry of an order or orders consistent with this opinion.

Holt, C.J., and Newbern, J., not participating.

       Although the act purports to grant one hundred feet on either side of the center of the road, the railroad’s usage seems to have been limited to fifty feet on either side.

       Reduced to two years by Act of January 19, 1855.

       At least since 1862.


author: Tom Glaze, Justice. Donald L. Corbin, Justice,

text:
    Robert FITCH v. STATE of Arkansas
    CR 93-21
    853 S.W.2d 874
    Supreme Court of Arkansas
    Opinion delivered May 10, 1993

      Christopher O’Hara Carter, for appellant.

      Winston Bryant, Att’y Gen., by; Cathy Derden, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This case involves interpretation of the Omnibus DWI Act. The facts as stipulated are that at 11:45 p.m. on August 11, 1992, Robert Fitch, the appellant, was arrested and charged with his third offense of driving while intoxicated after a deputy sheriff was called to the scene by a neighbor; the breathalyzer test revealed a blood-alcohol level of 0.256.

Fitch was seen by neighbors and the arresting officer driving a 250 cc Suzuki three wheeler in his own yard and in the adjoining neighbor’s yard; there was no evidence that Fitch had driven the three wheeler onto a road or highway. Such a vehicle is commonly known as an all-terrain vehicle (ATV). No driver’s license, registration, or liability insurance is required to operate an ATV under Arkansas law.

Fitch was found guilty of DWI in Baxter County Municipal Court, and then appealed to the circuit court which found operation of the ATV “constitutes a vehicle under Arkansas DWI law” and that Fitch’s “operation of the vehicle, even though not on a public roadway, still constituted a violation of the law. . .when he did so in an intoxicated condition.” The court sentenced Fitch to 365 days in jail with all but sixty days suspended, revoked his driver’s license for two years, and required him to pay a fine of $900.00 plus costs of $332.25. He was further ordered to attend an inpatient program of at least twenty-eight days in an approved alcohol rehabilitation program and was placed on one year of probation. Fitch appeals from the circuit court’s decision.

This is a case of first impression in which this court is required to define the term “motor vehicle” under the Omnibus DWI Act which is codified as Ark. Code Ann. §§ 5-65-101 through 117(1987 and Supp. 1991); the General Assembly failed to define this term as it relates to this Act. Relevant to the present case, § 5-65-103(a) provides, “It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.”

Fitch urges this court to adopt a policy that if a vehicle is not required to be registered, insured, or require a driver’s license to operate, it does not qualify as a motor vehicle under § 5-65-103(a) of the Omnibus DWI Act. The State asks this court to apply the general rule and give effect to the intention of the legislature in giving the term motor vehicle its fixed and commonly accepted meaning. State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991). When construing a statute, it is necessary to interpret that statute in concert with others that are “relevant to the subject and give it a meaning and effect derived from the combined whole.” Cousins v. Dennis, 298 Ark. 310, 315, 767 S.W.2d 296 (1989).

A motor vehicle is generally defined as “a self-propelled wheeled conveyance that does not run on rails.” American Heritage Dictionary, 817 (2d Ed. 1982). Under the Transportation Title chapter on Registration and Licensing, Ark. Code Ann. § 27-14-207(b) (Supp. 1991) defines the term motor vehicle as follows:

“Motor Vehicle” means every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.

The term motor vehicle is defined the same throughout the various chapters of the Transportation Title, e.g. see §§ 27-16-207(b), 27-19-206, and 27-49-219(b) (1987).

Ark. Code Ann. §§ 27-21-101 through 109 (Supp. 1991) of the Transportation Title refers to “all-terrain vehicles” (ATVs) and § 27-21-102(1) defines them as follows:

[E]very three-, four-, or six- wheeled vehicle seventy-five inches (75”) or less in width, having a dry weight of eight-hundred pounds (800 lbs.) or less, equipped with low pressure tires designed primarily for off-road recreational use and having an engine displacement of no more than six hundred fifty cubic centimeters (650 cc). The term “all-terrain vehicle” shall not include any golf cart, riding lawnmower, or lawn or garden tractor[.]

Section 27-21-101 describes the purpose of the legislation covering ATVs, which is to regulate and restrict their use so as to insure the safety and general welfare of the citizenry “by limiting the situations where all-terrain vehicles are permitted to be used in a dangerous and unsafe fashion.” While ATVs are generally restricted from use on the “public streets and highways of this state” and thus are exempt from registration requirements, § 27-21-106(a) lists specific conditions under which ATVs may be lawfully operated upon the public streets and highways. In § 27-21-109(b), four requirements are listed which operate as a complete defense to the operation of an ATV on a public street or highway; the statute does not identify a defense to driving an ATV while intoxicated.

In reviewing the statutory provisions that regulate ATVs, it is clear that an ATV meets the definition of a motor vehicle as set out in the Transportation Title set out hereinabove since ATVs are self-propelled and do not require rails. For definitional purposes, we keep in mind that the statutory scheme regarding ATVs indicates the General Assembly’s concern for the public’s safety by its having regulated the manner in which the ATVs are to be operated. In fact, the statutes regulate usage of ATVs on both private and public property. For these reasons, we conclude the Omnibus DWI Act’s employment of the term motor vehicle includes all-terrain vehicles.

In his second point for reversal, Fitch argues that DWI is a traffic offense, and since he was not on a public street or highway when he was arrested, his conviction under that act must be reversed. We disagree.

Nowhere within the Omnibus DWI Act is prosecution for DWI limited only to those driving on the public streets or highways. In Robinson v. Sutterfield, 302 Ark. 7, 786 S.W.2d 572 (1990), we held that DWI is a traffic offense and “a violation of a law regulating the operation of a vehicle upon a roadway”. In Sanders v. State, 312 Ark. 11, 846 S.W.2d 651 (1993), we affirmed a conviction for DWI, holding that a traffic offense can occur on a private roadway. In Sanders we pointed out that the Omnibus DWI Act “contains no location or geographic element, and we cannot read it to add as an element of DWI that the accused have operated or had control of a vehicle on a public highway.” Id. at 13.

Fitch cites State of Washington v. Day, 96 Wash. 646, 638 P.2d 546 (1981), to support his argument that prosecution for DWI should not occur where the facts arise on non-roadway or private property. In Day a conviction for DWI was reversed where the defendant, who was under the influence of alcohol or drugs, was observed by the arresting officer from the roadway driving a pickup truck in circles within a field owned by his parents. In reversing the conviction the court found:

[I]t would be an unreasonable exercise of police power to extend the prohibition to petitioner’s conduct. He was posing no threat to the public. This is not a case where it is logical to assume he would leave the private property and pursue a course along a public roadway. The vehicle was unlicensed and he was not on or even near a public road. In addition, the land on which he was driving was privately owned and the public had no right to be there nor was the public expected to be on the property. His arrest did not further the purpose of the statute in any way.

Id. 638 P.2d at 548. The Washington Supreme Court appended a footnote which opined that an officer, with probable cause to believe such a person was under the influence, should go ahead and investigate. The court alluded to the fact that it might have affirmed the conviction if the land or the vehicle had been owned by anyone other than the defendant or his parents, or if any of the facts had been different. Id.

In our own case of Sanders, we cited a Minnesota case. There, it was found that the Minnesota statutory scheme led to the conclusion that it was the legislative intent that prosecution for DWI could occur “anywhere within the state”. Minnesota v. Carroll, 31 N.W.2d 44, 45 (Minn. 1948). While not endorsing the Minnesota court’s breadth of inclusion, that state’s statute was similar to Arkansas’ in that it had no limitation on geographic location for prosecution purposes.

Here, Fitch was driving the ATV on his and on his neighbor’s properties when the neighbor summoned the arresting officer. The General Assembly’s intent when enacting the Omnibus DWI Act was to protect the public from the damage and tragedies that DWI can cause; the fact that an offender is not on a roadway is irrelevant. Certainly, AT Vs, as discussed above, may be utilized on both public and private property or thoroughfares. In any event, the potential for harm to Fitch’s neighbor’s property or to others on the property was present.

For the reasons cited above, we affirm the lower court, and in doing so, hold that an ATV is a motor vehicle for purposes of the Omnibus DWI Act. Because the General Assembly has not limited the Act as to geographic location, prosecution for DWI can occur where it is necessary to protect the public interest.

Corbin, J., dissents.

Donald L. Corbin, Justice,

dissenting. We backed ourselves into a corner with our ruling in Sanders v. State, 312 Ark. 11, 846 S.W.2d 651 (1993) where we held that one may be guilty of DWI even if the offense occurs on private property.

This was a good decision for the public welfare under a good set of facts that were comfortable to use to make a decision. The same holds true to the facts in the instant case. However, I am afraid that we engaged in a “little legislating” to reach the conclusion in Sanders. If we are going to be guilty of a “little legislating” let us amend our “judicial act.” We should limit this case today to the pertinent fact that this defendant on riding his three wheeler (four wheeler — no one seemed to agree as to how many wheels this vehicle had) onto another’s private property, endangered third parties. For the unwary public, I would advise you not to partake of an alcoholic beverage while operating your riding lawn mower in your backyard nor should you have an alcoholic beverage while doing donuts in your pickup on your back-forty because the rule in Sanders, and now this decision, may subject you to a DWI charge. So what happened to the Fourth Amendment? It may be suspect in Arkansas.

I would reverse and urge our legislature to reclaim the domain that is rightfully theirs. In the future, I hope I remember this lesson in the separation of powers.

       For other statutes in other titles that define vehicle or motor vehicle, see Ark. Code Ann. §§ 22-8-203, 23-112-102, 26-55-202 (1987). See also Ark. Code Ann. § 27-37-701(a) (Supp. 1991).