author: W.H.“Dub” Arnold, Chief Justice. Glaze, Brown, and Imber, JJ., Annabelle Clinton Imber, J.,

text:
    Janet CALANDRO and Dale Suezaki v. John W. PARKERSON
    95-825
    936 S.W.2d 755
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997
    [Petitions for rehearing denied March 10, 1997.]

      T.B. Patterson, Jr. P.A., for appellants.

      Stephen M. Bingham, for appellee.
   W.H.“Dub” Arnold, Chief Justice.

The appellants, Janet Calandro and Dale Suezaki, were the sole shareholders in U and Me, Inc., a Hot Springs convenience store. As individuals, appellants filed suit for legal malpractice, deceit, and breach of contract against appellee John W. Parkerson. The trial court granted summary judgment in appellee’s favor on the basis that the causes of action alleged were those of the corporation, not the individual appellants. We affirm summary judgment as to the claims for malpractice and breach of contract, but reverse and remand the trial court’s ruling on appellants’ claim for deceit.

On April 29, 1994, appellants filed their complaint against appellee, an attorney practicing in Hot Springs. They alleged that, in the spring of 1991, they had desired to open a convenience store, had located a site for the business, and had found a prospective landlord, Kwik Lane Management Company, which had agreed to rent the property and necessary equipment to them. Appellants obtained a proposed lease agreement from Jim Davis, a representative of the purported lessor, and took it to appellee.

Upon appellee’s recommendation, appellants incorporated as U and Me, Inc. Thereafter, appellee redrafted the lease agreement, which was executed on May 1, 1991, by Kwik Lane Management Corporation as lessor and U and Me, Inc., as lessee. The business had been in operation for approximately five months when, in September of 1991, appellants were advised that Kwik Lane was not the owner of the business premises; rather, Southern Farm Bureau Life Insurance Company owned the real property and Worthen Bank owned the equipment. It was appellants’ position that appellee’s failure to inquire as to the status of the lessor and the tide of the property leased constituted professional negligence, which proximately caused them to lose possession and use of the premises and equipment.

According to appellants’ complaint, in October of 1991, appellee agreed to assist them in obtaining leases for the real property and the equipment and promised that he would “get back to them.” On or about January 2, 1992, appellee, knowing that appellants would rely on his statement, told appellant Calandro that the real property had been sold, when, in fact, appellee knew that the property had not been sold. Relying on appellee’s statement, appellants vacated the premises and allowed Worthen to take the equipment. Appellants claimed that, as a result of appellee’s deceit as to the sale of the business premises, they voluntarily surrendered their rights in the equipment and fixtures necessary to operate their store, which closed in January of 1992. Two years later, on January 24, 1994, U and Me’s corporate charter was revoked for nonpayment of franchise taxes. Appellants asserted that appellee’s negligence and malfeasance constituted a breach of the attorney-client agreement, entitling them to a return of attorney’s fees and costs.

After the complaint was filed, discovery ensued with the taking of both appellants’ depositions. Appellee moved for summary judgment on the basis that the causes of actions alleged in appellants’ complaint were those of the corporation, not the individual appellants. Attached to the motion were copies of checks written on the corporation’s account to appellee covering fees and costs, as well as portions of appellants’ depositions. While appellants filed a written response to the motion, they submitted no supporting affidavits, nor did they or their attorney appear at the scheduled hearing.

On April 12, 1995, the trial court issued a letter opinion and found: (1) that it was clear from the pleadings that the services upon which the complaint was based were rendered to the corporation, U and Me, Inc., and that appellants Calandro and Suezaki were not the proper parties in the case and had not moved to substitute the proper party; (2) that U and Me, Inc. lost its capacity to sue when its charter was revoked for failure to pay franchise fees; (3) that the acts complained of were now barred by the statute of Hmitations; (4) that the complaint failed to state a cause of action; and (5) that there was no genuine issue of material fact remaining to be tried in the case. On April 17, 1995, the trial court granted summary judgment to appellee.

We have recently summarized our standards for summary judgment review as follows:

In these cases, we need only decide if the granting of summary-judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. K. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Renfro v. Adkins, 323 Ark. 288, 295-296, 914 S.W.2d 306, 309-310 (1996); Cash v. Lim, 322 Ark. 359, 360-362, 908 S.W.2d 655, 656-657 (1995); Oglesby v. Baptist Medical Sys., 319 Ark. 280, 284, 891 S.W.2d 48, 50 (1995).

Once the moving party establishes a prima facie entidement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Renfro v. Adkins, supra; Ford Motor Credit Co. v. Twin City Bank, 320 Ark. 231, 895 S.W.2d 545 (1995); Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). If a moving party supports its motion for summary judgment by making a prima facie showing of an absence of factual issues and entitlement to judgment as a matter of law, and the adverse party fails to set forth specific facts showing a genuine issue of material fact, then we will not say the trial judge erred in granting summary judgment. Pyle v. Roberson, 313 Ark. 692, 858 S.W.2d 662 (1993).

Appellee asks that we affirm summary judgment on the basis that the causes of action alleged in appellants’ complaint are those of the corporation, and, since the corporation lost its capacity to sue when it lost its charter, appellants cannot, as individuals, do for the corporation what it could not do for itself. As supporting authority for his position, appellee cites Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991). In Schmidt, appellants Schmidt were the sole shareholders of Aero Corporation, a family farming and egg-producing business. Aero held its checking accounts and borrowed money from appellee Mcllroy Bank. Appellants Schmidt and Aero filed a lender-liability suit against Mcllroy Bank, but did not plead any individual cause of action as guarantors of Aero’s debts. The trial court granted the bank’s motion for summary judgment as to Aero on the ground that Aero’s charter had been revoked for failure to pay franchise fees, and later granted summary judgment as to the Schmidts on the grounds that they had not amended their complaint to allege individual guarantor status. On appeal, we affirmed, explaining:

The reasoning behind the cases holding officers and stockholders liable is that they ought not be allowed to avoid personal liability because of their nonfeasance. On the other hand, it does not follow that they should be allowed to benefit by their nonfeasance by allowing them to bring suit as partners. The effect of revocation was that the corporation lost its capacity to sue, Sulphur Springs Recreational Park v. City of Camden, 247 Ark. 713, 447 S.W.2d 844 (1969), and this particular type of corporate cause of action ceased to exist. To allow the individual appellants to bring this cause of action would effectively reverse prior law which prohibits suits by a corporation whose charter has been revoked and, in addition, would reward them for their nonfeasance.

306 Ark. at 33. We agree with appellee that our holding in Schmidt controls the malpractice and breach of contract claims in this case. It is axiomatic that a corporation is an entity separate from its stockholders. Wiseman v. State Bank & Trust, N.A., 313 Ark. 289, 854 S.W.2d 725 (1993). A corporation, once formed, owns the corporate property and owes the corporate debts, is the creditor to sue or debtor to be sued, has perpetual existence, and can act only through its duly constituted organs, primarily its board of directors. Arkansas Iron & Metal v. First National Bank of Rogers, 16 Ark. App. 245, 701 S.W.2d 380 (1995), citing H. Henn, Laws of Corporations and Other Business Enterprises § 78 (3d ed. 1983).

It is undisputed that appellants came to appellee to form a business and that appellee assisted in incorporating the business. However, appellants do not complain that appellee was negligent in forming the corporation; rather, they contend that appellee failed to conduct a title search of the real property listed in the lease agreement and to verify the purported lessor’s status. The lease agreement, a copy of which is attached to appellants’ complaint, demonstrates that the lease was entered into by the corporation, not the individual appellants. Significantly, appellee’s motion for summary judgment was supported by two checks demonstrating that the corporation paid his fees and costs. In their response to the motion, appellants asserted that forming the corporation was “just one of the services” appellee provided to them. However, they did not delineate any specific services that appellee had provided them as individuals. During oral argument, appellants conceded that they did not offer any evidence to meet the proof offered by appellee. Thus, they failed to meet proof with proof to show that an issue ' of fact remained as to whether the services were rendered to the corporation, or to them as individuals.

Turning to appellants’ claim for deceit, this tort, also known as fraud or misrepresentation, consists of five elements that must be proved by a preponderance of the evidence: (1) a false representation, usually of a material fact; (2) knowledge or belief by the defendant that the representation is false; (3) intent to induce reliance on the part of the plaintiff; (4) justifiable reliance by the plaintiff; and (5) resulting damage to the plaintiff. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996); Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993).

Appellee defends the trial court’s granting of summary judgment on the basis that appellants had no standing to assert any of the causes of action set forth in their complaint. While this argument is persuasive as to appellants’ malpractice and contract claims, it cannot defeat appellants’ separate claim for deceit. This is so because, in Arkansas, privity of contract is not required in order to have a cause of action against an attorney for intentional misrepresentations or fraud. Clark v. Ridgeway, supra; Wiseman v. Batchelor, supra; Ark. Code Ann. § 16-22-310(a)(l) (Repl. 1994). Thus, the fact that the deceit claim was brought by the individual appellants, and not the corporation, is of no consequence.

In appellants’ complaint, their claim for deceit included the following factual allegations: (1) appellee falsely represented that the real property had been sold; (2) he knew this representation was false; (3) he misrepresented the status of the property with the intention that appellants would rely on his statement and act on it; (4) appellants were justified in relying on appellee’s representation, as he told them he was working with the real property owner and would get back with them; and (5) appellants were damaged by the misrepresentation, as they voluntarily surrendered their rights in the equipment and fixtures necessary to operate their business.

Appellee further maintains that appellants’ testimony in their depositions is inconsistent with their claim for deceit. Particularly, he points to appellant Calandro’s testimony that she could not remember whether appellee told Suezaki and her that the real property had been sold, or whether he told them that the equipment had been sold. However, Suezaki was certain that appellee related that the building, not the equipment, had been sold. Thus, a question of fact remains as to whether appellee made the false representation alleged.

Appellee also contends that appellants’ testimony in their depositions demonstrated that there was no genuine issue of fact on the element of damage. Specifically, appellee references Calandro’s admission that she and Suezaki closed the business after Worthen Bank announced its plans to take the equipment, and that both the equipment and the real property were necessary to continue business operations. Appellee also refers to appellants’ failure to pay or to negotiate the rent with the true owner, their failure to make an offer to purchase the equipment, and their failure to look for an alternate business location or to obtain financing. However, both Calandro and Suezaki stated that their actions or inactions were based on appellee’s agreement to assist them in obtaining a new lease for both the real property and the equipment, and his repeated promises that he would “get back to them.” In light of this testimony, the issue of whether appellants were damaged by the appellee’s alleged misrepresentation is one of disputed fact that remains to be resolved.

For the foregoing reasons, we affirm the trial court’s entry of summary judgment against appellants on their claims for malpractice and breach of contract. We reverse and remand the entry of summary judgment on appellants’ claim for deceit.

Affirmed in part; reversed and remanded in part.

Glaze, Brown, and Imber, JJ.,

concurring in part and dissenting in part.

Annabelle Clinton Imber, J.,

dissenting. I concur with affirming the trial court’s entry of summary judgment against appellants on their claims for malpractice and breach of contract for the reasons stated in the majority opinion. However, I would also affirm the trial court’s entry of summary judgment on appellants’ separate claim for deceit.

The corporation U & Me, Inc., lost its capacity to sue when its charter was revoked for failure to pay franchise fees. Thus, any claims by the corporation for legal malpractice, deceit, or breach of contract have ceased to exist. Schmidt v. McIlroy Bank and Trust, 306 Ark. 28, 811 S.W.2d 281 (1991).

In order to state a cause of action for deceit by the individual appellants, and not the corporation, appellants must allege sufficient facts to support each of the five elements of the cause of action for deceit, including facts to support the resulting damage to the individual appellants. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996).

Although appellants may have alleged sufficient facts to come within the first four elements of a claim for deceit, they have failed to allege sufficient facts under the fifth element — the resulting damage to the individual appellants. Appellants allege in their complaint that as a result of appellee’s misrepresentation, “they voluntarily surrendered their rights in the equipment and fixtures necessary to operate their business.” (Emphasis added.) This allegation ignores the fact that all rights to the equipment and fixtures belonged to the corporation under the lease agreement.

The majority agrees with the well-settled rule that a corporation is an entity separate from its stockholders. Shipp v. Bell & Ross Enterprises, Inc., 256 Ark. 89, 505 S.W.2d 509 (1974). And, as a separate legal entity distinct from its members, a corporation owns the corporate property and owes the corporate debt, with the corresponding right to sue as a creditor and to be sued as a debtor. Arkansas Iron and Metal Co. v. First National Bank of Rogers, 16 Ark. App. 245, 701 S.W.2d 380 (1995). As stated in Red Bug Realty Co. v. South, 96 Ark. 281, 291, 131 S.W. 340, 344 (1910):

A stock holder does not acquire any estate in the property of a corporation by virtue of its stock; the full legal and equitable tide thereto is in the corporation, and a cause of action for the recovery of its property or for a violation of its rights thereto is in the corporation.

(Emphasis added.)

I find no factual basis for the conclusory allegation in the complaint that the individual appellants were damaged by the alleged misrepresentation. Under the lease agreement, all rights in the equipment and fixtures necessary to operate the business belonged to the corporation. Consequently, the appellants would have sustained no damages in their individual capacities by the surrender of the corporation’s rights to the equipment and fixtures. Thus, appellants have failed to allege sufficient facts to support the required element of damages in their individual cause of action for deceit.

I must therefore conclude that no genuine issue of material fact has been presented on the deceit claim brought by the individual appellants and that the complaint fails to state a cause of action for deceit. For the above-stated reasons, I would affirm the trial court’s entry of summary judgment in its entirety.

Glaze and Brown, JJ., join in the dissent.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Hugh B. CHALMERS and Janelle Chalmers v. Nina CHALMERS and Ralph W. Sloan, Successor Trustee
    96-358
    937 S.W.2d 171
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997

      Rieves & May ton, by: Martin W. Bowen, for appellants.

      Sloan, Rubens & Peeples, by: Kent J. Ruebens, for appellees.
   David Newbern, Justice.

The issues in this case concern whether a promissory note was delivered, and if so, whether the interest specified was usurious thus rendering the note unenforceable. We affirm the Chancellor’s decision that the note was delivered and that the interest charged was not usurious.

Appellant Hugh B. Chalmers issued a promissory note to his father, Hugh J. Chalmers, now deceased, in the amount of $50,000. The note was payable upon demand or within sixty days of the death of Hugh J. Chalmers. The note, dated January 1, 1975, provided for interest at 10% per year. According to the note, payment was secured by 150 shares of common capital stock of Chalmers Buick Company.

On November 9, 1982, the parties substituted a deed of trust on certain real property in place of the stock as security for the note. The substitution agreement referred to the note as “a note dated January 1, 1975.” The deed of trust was recorded on November 19, 1985.

On February 2, 1989, an additional agreement was entered between Hugh B. Chalmers and his father. According to the agreement, Hugh B. Chalmers would pay $15,000 to First Commercial Bank and “The balance owed to Hugh [J.] Chalmers by Hugh B. Chalmers will be $35,000.”

Hugh B. Chalmers paid interest on the note, including a $5,000 payment for the year 1975, up until 1991. On July 9, 1992, Hugh J. Chalmers assigned the deed of trust to his wife, Nina Chalmers, “together with the note and indebtedness described in and now secured thereby, and all monies due or to become due thereunder with the interest thereon.” The assignment was recorded on July 9, 1992.

Hugh J. Chalmers died. Nina Chalmers’s demand for payment of the note was rejected by Hugh B. Chalmers, and she filed this action to recover the $35,000 remaining unpaid on the note and to foreclose on the deed of trust.

Hugh B. Chalmers moved to dismiss the complaint on the ground that the note was unenforceable because interest was charged at a usurious rate. He also contended that his father failed to make an effective inter vivos assignment of the note because it was not delivered to Nina Chalmers while he was alive. The Chancellor refused to dismiss the complaint.

At the trial, Mr. Chalmers admitted that the interest rate provided in the note, 10%, was not usurious on its face. He claimed that, rather than being issued January 1, 1975, the date on the note, the original transaction occurred and the note was actually issued on September 30, 1975. According to Mr. Chalmers, the interest for 1975 was at a usurious rate because he paid $5,000 in interest for the three months immediately following the issuance of the note.

Nina Chalmers testified that she and her husband had a bank safety-deposit box. It was referred to as a “lock box.” She knew nothing of the note until after her husband died when she found the note in the lockbox. The note was indorsed, “Pay to the order of Nina L. Chalmers,” and signed “Hugh Chalmers.”

The Chancellor’s letter opinion stated that “The proof showed that. . . [Nina Chalmers] was unaware of the gift, but the court is satisfied that the deceased intended a present gift, and delivery is satisfied by the recording of the deed of trust assignment, when coupled with the endorsement on the back of the note.”

The Chancellor declined to hold the note usurious. The Chancellor found that “it is not clear that the instrument did not reflect the agreement of the parties. . . . The note is not usurious on its face. The burden of showing usury, by clear and convincing evidence, is upon defendants, and the court feels they have failed to do this.” The decree granted Nina Chalmers a judgment on the note for $35,000 and ordered a sale of the property described in the deed of trust if the debt were not paid in ten days.

i. Delivery

Hugh B. Chalmers contends that Hugh J. Chalmers did not effect an inter vivos gift to Nina Chalmers because Hugh J. Chalmers failed to deliver the note to her during his life. A promissory note, or any chose in action or other evidence of debt, may be the subject of a gift inter vivos. See Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 827 (1992). The requirements for an effective inter vivos gift have been stated by the Court as: an actual delivery of the subject matter of the gift to the donee with a clear intent to make an immediate, unconditional, and final gift beyond recall, accompanied by an unconditional release by the donor of all future dominion and control over the property so delivered. Ragland v. Commercial Nat’l Bank of Arkansas, 276 Ark. 418, 635 S.W.2d 258 (1982); Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979).

Although the rule with respect to delivery of gifts is less strictly applied to transactions between members of a family, delivery must occur for a gift to be effective. Aycock v. Bottoms, 201 Ark. 104, 144 S.W.2d 43 (1940). See Baker v. Applen, 181 Ark. 454, 26 S.W.2d 109 (1930).

Mr. Chalmers contends that placement of the note in the lockbox was insufficient to effect delivery because the gift was not beyond recall by his father. He submits that Hugh J. Chalmers retained the right to exercise dominion and control over the note. Nina Chalmers contends that placement of the note in the lock-box to which she and Hugh J. Chalmers both had access was sufficient delivery when combined with the recordation of the assignment of the deed of trust and the indorsement on the note. She also points out that the transaction was between family members.

Some of our cases state a requirement that the validity of an inter vivos gift is dependent upon acceptance by the putative donee in addition to the elements stated above. See, e.g., Irvin v. Jones, supra. Although reference is made to the fact that Nina Chalmers was unaware of the note and deed of trust until after Hugh J. Chalmers’s death, that fact is argued under the point that delivery was not effected. We are not asked to hold that there was no gift due to lack of acceptance, and we do not address that point.

The gravamen of delivery is a showing of an act or acts on the part of the putative donor displaying an intention or purpose to part with dominion over the object of the gift and to confer it on some other person. Express words or particular conduct may be dispensed with when reasonable minds would conclude from attending circumstances that the purpose was present. Carlson v. Carlson, 224 Ark. 284, 273 S.W.2d 542 (1954). Intention to give, by itself, is not sufficient; there must be a delivery to consummate the gift and to pass title. Gross v. Hoback, 187 Ark. 20, 58 S.W.2d 202 (1933). The decisive factor is whether the putative donor has the power to reclaim the property. Carlson Administrator v. Carlson, supra.

The mere placing of an item in a lockbox to which both the alleged donor and donee have access is not sufficient to constitute delivery. Cowan v. Powell, 219 Ark. 498, 243 S.W.2d 373 (1951). Even the placement of an item in a lockbox exclusively controlled by the alleged donee may not constitute delivery. McCune v. Brown, 8 Ark. App. 51, 648 S.W.2d 811 (1983). We do, however, consider other evidence to determine the intent of the alleged donor.

In Boling v. Gibson, supra, certificates of deposit were placed in a lockbox over which both the alleged donor and the alleged donee may have had control. The case was decided on a different point, but in an obiter dictum we said, “The question was not whether . . . [the alleged donor] had lost all dominion and control over these certificates. It was whether he clearly intended to relinquish all dominion and control.”

According to Ark. Code Ann. § 4-3-203 (a) (Repl. 1991), “An instrument is transferred when it is delivered by a person [Hugh J. Chalmers] other than its issuer [Hugh B. Chalmers] for the purpose of giving to the person receiving delivery the right to enforce the instrument.” According to Ark. Code Ann. § 4-3-204(c) (Repl. 1991), “. . . an indorsement that transfers a security interest in the instrument is effective as an unqualified indorsement of the instrument.” In this case, the Chancellor’s decision is supported by the indorsement on the back of the note in favor of Nina Chalmers and the fact that Hugh J. Chalmers declared “to the world” that he had assigned the note and deed of trust to his wife by recording the assignment to her of the deed of trust. The assignment mentioned the note as well.

The Chancellor relied on our decision in Aycock v. Bottoms, supra, not only for the holding that the delivery requirement is relaxed as between family members, but for the statement that, “Indeed it has been held quite frequently in many jurisdictions that the assignment of certificates of stock to a donee by a holder is tantamount to delivery of the stock, although manual delivery may be wanting.”

The Chancellor’s conclusion that it was the intention of Hugh J. Chalmers to make a present gift was not clearly erroneous, and his conclusion that delivery occurred was proper in the circumstances presented.

2. Usury

Hugh B. Chalmers also contends that the note is void because he was charged a usurious rate of interest. All parties concede that the 10% interest rate included in the terms of the note is facially valid.

The evidence presented by Mr. Chalmers to support his claim consisted solely of his testimony that the note was actually issued on September 30, 1975. In his letter to the attorneys explaining his decision, the Chancellor stated the following:

This note was prepared by an accountant, and appears to have been prepared at the request of both parties to the note. It is clear defendant [Hugh B. Chalmers] was well versed about usury, he being a director on a bank board. It must be pointed out that if a borrower is the author of, or joint adventurer of the tainted transaction, he cannot profit by his own action. Perry v. Selby, 196 Ark. 541, 118 S.W.2d 849 (1938); McDermott v. Strauss, 283 Ark. 444, 678 S.W.2d 334 (1984); Crawford v. Gen. Contract Corp., 174 F. Supp. 283 (1959).

Reference was also made by the Chancellor to the fact that Hugh B. Chalmers had referred to the note as a note of January 1, 1975, in subsequent instruments to which he was a party.

The Chancellor thus held that Hugh B. Chalmers failed to meet his burden of showing usury by clear and convincing evidence. In reviewing that factual determination, we do not reverse unless we can say that it is clearly erroneous (clearly against the preponderance of the evidence). Ark. R. Civ. P. 52(a); Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993). We defer to the superior position of the chancellor to judge the credibility of the witnesses. Id.; Brown v. City of Stuttgart, 312 Ark. 97, 847 S.W.2d 710 (1993); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991). We cannot say the Chancellor’s determination was clearly erroneous or clearly against the preponderance of the evidence.

Affirmed.

Thornton, J., not participating.


author: David Newbern, Justice. Robert L. Brown, Justice,

text:
    Tod HALL v. Doug FREEMAN
    96-179
    936 S.W.2d 761
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997
    [Petition for rehearing denied March 24, 1997.]

      Melinda R. Gilbert, for appellant.

      Randell Templeton, for appellee Doug C. Freeman.

       Brown, J., dissents. See 327 Ark. 720, 942 S.W.2d 230 (1997), for supplemental opinion.

   David Newbern, Justice.

In 1994, almost six years after being divorced from his ex-wife, Jamie McFall, Doug Freeman sued her and Tod Hall. The complaint alleged that Tod Hall was the father of Stuart Freeman, a child conceived and born during the marriage of Doug Freeman and Jamie McFall. A guardian ad litem was appointed to represent Stuart’s interests. The guardian moved, along with Mr. Freeman, for blood (DNA) tests to determine the paternity of the child. The Chancellor held Mr. Freeman’s complaint was barred due to the res judicata effect of the divorce decree which recited the child was “born of this marriage.” She held, however, that Stuart was not barred, so the paternity action could be pursued on his behalf. Based on the DNA evidence, Mr. Hall was held to be the father of Stuart. The order changed the child’s name from Freeman to Hall, relieved Mr. Freeman of the support obligation, and required Mr. Hall to assume it. We reverse and remand because a child conceived and born of a marriage, and thus presumed to be the child of the marital partners, has no standing to bring a paternity action.

Mr. Freeman and Ms. McFall were married in 1983. Stuart was born in 1987. At the hearing on Mr. Freeman’s petition there was ample evidence that Mr. Hall and Ms. McFall (then Freeman) engaged in sexual intercourse during the time Stuart was conceived. Ms. McFall testified that she and Mr. Freeman did not engage in sexual intercourse at that time. She further testified, as did Mr. Hall, that Mr. Hall was made aware that he was the father of Stuart shortly after Ms. McFall learned she was pregnant. Mr. Freeman was told that Mr. Hall was the father of Stuart some three or four months after Stuart’s birth; thus he knew of it well in advance of filing his divorce complaint in which he pleaded that “The parties have one minor child, Stuart D. Freeman.”

Evidence of the DNA test presented at the paternity hearing excluded Mr. Freeman as the father and concluded there was a 99.97% probability that Mr. Hall was Stuart’s father.

Mr. Hall presents many arguments in favor of reversal. As we reverse solely on the standing issue, we need not address the other contentions. Mr. Freeman has not cross-appealed the Chancellor’s decision barring his claim on the basis of the res judicata effect of the divorce decree.

In her order, the Chancellor cited cases from other jurisdictions to the effect that a child is not barred from bringing a paternity suit even though a prior divorce decree had described the child as being “of the marriage.” State ex rel. Cline v. Pentasuglia, 457 S.E.2d (W.Va. 1955). See also People in re: M.C., 895 P.2d 1098 (Colo. App. 1994). We have no quarrel with the principles of law stated in those cases. Paternity actions are, however, governed by statute in Arkansas. Ark. Code Ann. §§ 9-10-101 through 9-10-120 (Repl. 1993 and Supp. 1995).

Section 9-10-104 provides as follows:

Petitions for paternity establishment may be filed by:
(1) A biological mother;
(2) A putative father;
(3) A person for whom paternity is not presumed or established by court order; or
(4) The Department of Human Services.

Stuart, who through his guardian ad litem effectively became the petitioner in this case, obviously does not fall within the first, second, or fourth category. To fall within the third category, Stuart must be one for whom paternity is neither presumed nor established by court order. Stuart is a person for whom paternity is presumed.

In Thomas v. Pacheco, 293 Ark. 564, 740 S.W.2d 123 (1987), Ms. Pacheco alleged that Mr. Thomas was the father of her child conceived and born during her marriage to Mr. Pacheco, and it was so held at the trial level. A blood test showed Mr. Pacheco was not the father and a 95.5% probability that Mr. Thomas was. We held that the blood test evidence should have been excluded because of failure to follow statutory guidelines in the procurement of it. We also held that testimony of Mr. and Ms. Pacheco to the effect that they had no access to one another at the time of conception was inadmissible because of Lord Mansfield’s rule. The majority opinion noted the modern-day criticism of the rule, and the dissenting opinion pointed out, “Any rule adopted more than two hundred years ago that espouses fiction over fact needs to be reexamined.”

Lord Mansfield’s rule is a rule of evidence not at issue here. The important aspect of the Thomas case is this statement:

[T]here is more at issue than a rule of evidence. Marriage is still considered an honorable institution; children born during marriage should be deemed legitimate, and legal efforts to declare such children illegitimate are not and should not be made easy.
Belief in that principle is so great that we have created a legal presumption to protect it. This presumption, that a child born during marriage is the legitimate child of the parties to that marriage, is one of the strongest presumptions recognized by the law. See Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22 (1920).

See also Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

Nothing in the statutes creating the paternity action purports to do away with the presumption of legitimacy of a child born during marriage. We can only assume that presumption is the one to which reference is made in § 9-10-104(3) and that the General Assembly has indeed seen fit to preserve it as a bar to an action by a child born during a marriage. Because it was thus error for the Chancellor to permit the paternity action to be pursued on behalf of Stuart, we must reverse.

Reversed and remanded.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. The decision today forces the child, S.F., now age 9, to five a lie for the remainder of his life in light of the fact that the DNA proof is clear that Tod Hall is his natural father. The majority holds that S.F. has no standing under the governing statute to petition the court to determine who is his natural father. See Ark. Code Ann. § 9-10-104 (Repl. 1993). But here, Doug Freeman, who claimed in his complaint that he was merely the putative father of S.F., filed the paternity action. Furthermore, the biological mother, Jamie McFall, asserted in her answer that it was in S.F.’s best interests to have the DNA testing done and to determine paternity. In her prayer, she requested that the testing be done. The chancellor then consolidated Freeman’s paternity action with the previous divorce action and appointed a guardian to represent S.F.’s interests. DNA testing was performed at the request of both Doug Freeman and S.F.’s guardian, as well as Jamie McFall, and it showed beyond a shadow of a doubt that Tod Hall was the natural father. Hence, everyone but Tod Hall agreed that the testing should be done.

Under these facts, the standing requirements of the paternity statute were satisfied in my judgment, and the determination of paternity could proceed. Moreover, once DNA testing was performed showing the probability that Tod Hall was S.F.’s father to be 99.97%, any presumption that S.F. was Doug Freeman’s natural child flew out the window. It is true that the chancellor ultimately ruled that Freeman could not contest paternity because his previous divorce decree referred to S.F. as being born of the marriage. But that conclusion was reached by the chancellor after the DNA testing was completed. A successful defense raised by Tod Hall does not negate Freeman’s standing to file the suit initially and ask for DNA testing with the concurrence of the biological mother. Nor does it vitiate S.F.’s right to have the matter proceed to conclusion after the DNA results were furnished.

In a sense, DNA testing has changed the rules of the game regarding paternity. Though I believe a statutory mechanism was in place, under these facts, to afford Freeman, McFall, and S.F. the right to have S.F.’s natural father identified, the General Assembly would do well to examine § 9-10-104 and weigh the competing policies involved in this case.

In short, I believe that Doug Freeman had sufficient standing to file the paternity action, as an alleged putative father, and to request DNA testing, with the concurrence of Jamie McFall and the guardian for S.F. After the testing, S.F. was not presumed to be legitimate. Under these circumstances, S.F. had the right to have his natural father identified as between Doug Freeman and Tod Hall. I respectfully dissent.


text:
    Daniel J. JEWELL and Bryan Rodgers v. MILLER COUNTY ELECTION COMMISSION, et al.; Gary Bailey, et al., Intervenors
    95-1322
    936 S.W.2d 754
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997
    [Petition for rehearing denied March 10, 1997.]

      Law Firm of Stephen T. Arnold, by: Stephen T. Arnold, for appellants.

      Thomas H. Johnson, for appellees.

      Atchley, Russell, Waldrop, & Hlavinka, L.L.P., by: J. Dennis Chambers, for appellees-intervenors.
   David Newbern, Justice.

This appeal has arisen from the tortured recent history of city government in Texarkana. The issue presented is whether the General Assembly’s attempt to remedy the situation by passage of Act 8 of the First Extraordinary Session of 1995 violates the constitutional prohibition against special or local legislation. Ark. Const, amend. 14. The Circuit Court held Act 8 was not unconstitutional. We affirm the decision because the appellants’ abstract is flagrandy deficient.

Texarkana has a city-manager form of government. Prior to and during the six-year duration of the dispute over the manner of electing the City’s directors, four directors were elected from discrete districts, and three were elected at large. That system was held to violate the federal Voting Rights Act because it deprived African-American citizens of an equal opportunity to participate in the political process. Williams v. City of Texarkana, 861 F. Supp. 756 (W.D. Ark. 1992), supp. op., 861 F. Supp. 771 (W.D. Ark. 1993). At a subsequent election, the voters of Texarkana approved a system by which six directors would be elected from districts and one at large, i.e., a “6-1 plan.” For some time thereafter, incumbent officials declined to hold an election under the 6-1 plan as they claimed they interpreted the order of the United States District Court to require that all seven directors be elected from districts. The argument on the other side was that the District Court order contained no provision suggesting the system approved by the voters would be considered illegal.

On appeal, the District Court’s order was affirmed, and the argument that the 6-1 plan would violate the Voting Rights Act was rejected. The United States Court of Appeals for the Eighth Circuit declined to rule on that issue as it had not been decided by the District Court. Williams v. City of Texarkana, 32 F.3d 1265 (8th Cir. 1994). The parties appeared again before the District Court which accepted a settlement on attorney’s fees but declined to rule further in the matter as it involved interpretations of state law on the manner of calling special elections. The parties continued to wrangle.

Act 8 is the second of two attempts by the General Assembly to deal with the situation. The first, Act 750 of 1995, was opined by the Attorney General to be ineffective in prescribing a means of electing officials under a system of government already adopted. Act 8 purports to accomplish that purpose.

The contention that Act 8 is unconstitutional is based on its opening provision that it applies

only to a city with the city manager form of government in which the Arkansas city is divided by a street state line from an incorporated city or town in an adjoining state and the city or town in the adjoining state is of greater population than the Arkansas city or town. . . .

As mentioned above, the Miller County Circuit Court determined that Act 8 was not in violation of Amendment 14 to the Constitution of Arkansas. From the appellants’ abstract of the Circuit Court’s order, we cannot determine why. The judgment is abstracted as follows: “December 15, 1995 judgment holding that Act 8 of the First Extraordinary Session of 1995 is constitutional.” Other parts of the abstract are equally cryptic. Pleadings and exhibits are referred to without any designation as to who presented them.

Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987), is one of many cases in which we have expressed the need for an abstract of the record sufficient to allow us to know what happened in the case. We wrote:

This four-volume record contains 551 pages. We do not suggest that irrelevant portions of the trial proceedings should be abstracted. Indeed, the rules provide that the abstract should consist of “only” such material parts as are necessary to an understanding of all questions presented to this court for decision. . . . Ordinarily the basic pleadings and judgment or decree appealed from are essential constituents of the abstract, as we have frequently noted.

294 Ark. at 18, 740 S.W.2d at 144 (citations omitted).

Here, we are confronted with a record of some 1500 pages plus exhibits in six volumes. We have a nine-page abstract that leaves out the most basic information and is otherwise most difficult to decipher. The appellants’ abstract does not comply with Arkansas Supreme Court and Court of Appeals Rule 4-2. We deem it flagrantly deficient, and thus we affirm the judgment. Ark. Sup. Ct. R. 4-2(b)(2).

Affirmed.


author: Tom Glaze, Justice.

text:
    Clarence RICHARDSON v. Emment WILLIAMS
    96-516
    936 S.W.2d 752
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997

      Wilson Law Firm, P.A., by: E. Dion Wilson, for appellant.

      Rieves & Mayton, by: Eric Newkirk, for appellee.
   Tom Glaze, Justice.

Appellant Clarence Richardson brought suit against appellee Emment Williams for personal injuries resulting from an automobile accident. The case was tried to a jury which returned a verdict in Williams’s favor. Richardson appeals, and his sole argument for reversal is that the trial court erred in rejecting his contention that Arkansas’s method of selecting jurors under Ark. Code Ann. § 16-32-103 (Repl. 1994) is unconstitutional by violating his rights under the Sixth Amendment and Equal Protection Clause.

We initially point out that, in this civil proceeding, Richardson has an equal protection right to jury selection procedures that produce juries from a representative cross section of his community. Cleveland v. State, 318 Ark. 738, 888 S.W.2d 629 (1994). However, in order to establish a prima facie violation of the cross-section requirement, he must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. See Duren v. Missouri, 439 U.S. 357 (1979).

Here, Richardson’s argument is that Arkansas’s jury-selection process does not represent a fair cross section of the community because it excludes from the jury pool and petit jury all unregistered voters who, as citizens, would otherwise be qualified to serve as jurors. At trial, Richardson submitted that the population of Phillips County was comprised of fifty-four to fifty-six percent persons of African-American descent, but African-Americans accounted only for forty-eight to fifty-two percent of those persons registered to vote. Specifically, Richardson asserts that, because a fewer proportional number of blacks register to vote in Phillips County, it is impossible to select a jury panel that reflects a representative fair cross section of the community. He concluded his argument below as follows:

There is nothing sacrosanct about the voter registration roll that calls for it to be the exclusive avenue for selection of jurors and to deny persons who do not participate in the electoral process service on the jury is, in our opinion, unconstitutional so we would ask that the jury panel be quashed on the basis that it excludes persons who are not registered voters.

In considering Richardson’s constitutional argument on appeal, we immediately note that it is one which has been considered and decided on many occasions. In fact, the Eighth Circuit Court of Appeals and this court have addressed this same jury-selection issue now raised by Richardson, and in doing so, have consistently approved the use of voter registration lists to select jury pools. Floyd v. Garrison, 996 F.2d 947 (8th Cir. 1993); U.S. v. Garcia, 991 F.2d 489 (8th Cir. 1993); Brown v. Lockhart, 781 F.2d 654 (8th Cir. 1986); United States v. Clifford, 640 F.2d 150 (8th Cir. 1981); Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996); Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975).

In Floyd v. Garrison, Floyd asserted the contention Richardson now argues in this appeal, namely, that the use of voter registration lists as the sole source for selecting jury pools does not provide a fair cross section of the community because blacks do not register to vote in the same proportion as other persons. The Floyd court, citing United States v. Clifford, rejected Floyd’s argument by stating the following:

Even if proportionally fewer blacks register to vote, “[t]he mere fact that one identifiable group of individuals votes in a lower proportion than the rest of the population does not make a jury selection system illegal or unconstitutional.” Absent proof obstacles are placed in the path of blacks attempting to register to vote, voter registration lists may be used as the sole source for selecting jury pools.

In the present case, Richardson offers no proof that there has been exclusion of jurors based on any basis other than the mere failure to register to vote. Because he has failed to show any underrepresentation due to a systematic exclusion of a distinctive group, we hold § 16-32-103 is constitutional as applied in this cause. Therefore, we affirm.

       We note that both Richardson and Williams are African-Americans and, as reflected in the abstract of the record, two of the twelve persons selected to serve on the petit jury were black.


author: Donald L. Corbin, Justice.

text:
    Bryan Hank COLLINS v. Florida HINTON
    96-171
    937 S.W.2d 164
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997
    [Petition for rehearing denied March 10, 1997.]

      Butler, Hicky & Long, by: Phil Hicky and Rita Reed Harris, for appellant.

      Easley, Hicky, Cline, & Hudson, by: B. Michael Easley, for appellee.
   Donald L. Corbin, Justice.

Appellant Bryan Hank Collins appeals the jury’s verdict awarding damages of $150,000 to Appellee Florida Hinton from the St. Francis County Circuit Court. Because this case involves a question concerning the law of torts, this court has jurisdiction of the appeal pursuant to Ark. Sup. Ct. R. l-2(a)(15) (as amended by per curiam July 15, 1996). Appellant raises four points on appeal, two of which are components of one argument: (1) The trial court erred in allowing Dr. Raymon Lopez to give expert testimony concerning Appellee’s injuries; (2) the trial court erred in excluding the testimony of one of Appellant’s witnesses; and (3) the damages awarded by the jury are excessive. Because we find no merit to any of Appellant’s arguments, we affirm.

This case involves an automobile accident that occurred on December 10, 1992. According to the facts presented at trial, Appellee had just left the home of Mrs. Betty Proctor, where she worked in a domestic capacity, and had walked across the street to her car. As she began to get into her car, her car was struck from behind by Appellant’s truck. As a result of the impact of the collision, Appellee’s car was forced forward approximately forty-eight feet from where it had been originally parked, dragging Appellee with it. Appellee was taken to the hospital emergency room where she was treated and ultimately hospitalized overnight.

The emergency-room diagnosis revealed that Appellee had a hematoma to the right thigh as well as various abrasions and contusions. Appellee also complained of pain in her right hip. The x-rays taken at the hospital revealed that Appellee had degenerative arthritis in some of her joints. In January of 1993, Appellee consulted a chiropractor, Dr. Xavier Haymer, and began receiving regular treatments from him. According to Dr. Haymer, Appellee complained about pain in her lower back, her right hip and thigh area, and her right knee. Additionally, Dr. Haymer observed that Appellee’s right knee and ankle were swollen. Appellee stated to Dr. Haymer that the pain in her knee had resulted from the accident and that she had not had any pain in her knee before that time. Dr. Haymer continued to treat Appellee for just over a year, at which time he referred her to an orthopedic surgeon, Dr. Raymon Lopez, concerning the injury to her knee.

After reviewing the information supplied to him by Dr. Haymer and taking a patient history from Appellee, Dr. Lopez examined Appellee’s knee. Appellee informed Dr. Lopez that she began experiencing pain in her knee after being involved in the automobile accident. As a result of his examination and the other pertinent information, Dr. Lopez recommended that Appellee undergo surgery to replace her knee. In an affidavit filed with the trial court, Appellee confirmed that she wished to undergo the knee surgery, but that she did not have insurance and that Medicare would not cover the procedure.

Appellee filed suit against Appellant in September of 1993 alleging that he was negligent in the operation of his vehicle and that she was injured as a result. Trial was conducted on June 28 and 29, 1995. Subsequent to her examination by Dr. Lopez but before trial in this matter had begun, Appellee suffered a stroke, and was confined to a wheelchair and unable to talk for the duration of the trial. Appellee was only able to testify through a deposition taken before her stroke. At the conclusion of the case, the jury returned with a verdict finding Appellant negligent and awarding compensatory damages to Appellee in the amount of $150,000. This appeal followed.

I. Testimony of Dr. Lopez

Appellant argues on appeal that it was error for the trial court to allow Dr. Lopez to testify as an expert witness on two grounds: (1) His opinion and evaluation were based in part on the hearsay statement of Appellee concerning the cause of her knee injury; and (2) the doctor’s examination and recommendation of knee surgery, which preceded Appellee’s stroke, may have no longer been valid because there was no indication that Appellee would ever walk again after the stroke.

In the present case, Appellee was referred by her chiropractor to seek an evaluation of her injuries by Dr. Lopez. Dr. Lopez testified that in reaching his conclusion that Appellee needed to undergo knee-replacement surgery, he relied upon the patient history given by Appellee, as well as his physical examination of her and the information provided to him by Dr. Haymer. Dr. Lopez testified further that it was common practice for a physician to rely at least in part on the patient’s history of the injuries. Dr. Lopez related that as to the symptoms of pain experienced by Appellee in her back and knee, Appellee stated the symptoms started after a motor vehicle accident that she had been involved in about a year prior to seeing Dr. Lopez. Specifically, Appellee told Dr. Lopez that she was experiencing pain, swelling, and stiffness in her right knee.

Appellant argues that Dr. Lopez’s opinion as to the cause or aggravation of Appellee’s knee injury was based entirely on Appellee’s statement, and that such a statement was hearsay and not included as an exception to the hearsay rule found in A.R.E. Rule 803(4) because it was made to the doctor after litigation had begun and was, therefore, self-serving. Appellee responds that Dr. Lopez’s testimony, including statements made to him by Appellee, was admissible under A.R.E. Rule 703 and that there is no provision in Rule 803(4) that prohibits statements given after litigation has begun. Appellee responds further that Appellant’s objection to Dr. Lopez’s testimony goes to the weight of the evidence, rather than its admissibility, and that there was no evidence presented at trial indicating that Appellee would never be able to walk again. We find no error in the trial court’s decision to permit Dr. Lopez to testify on either ground raised by Appellant.

This court has long recognized that the admissibility of expert testimony rests largely within the broad discretion of the trial court and the appellant bears the burdensome task of demonstrating that the trial court abused its discretion. See, e.g., Sims v. Safeway Trails, Inc., 297 Ark. 588, 764 S.W.2d 427 (1989); Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984). In support of his argument, Appellant asserts that Dr. Lopez was not Appellee’s treating physician, and thus, he should not have been allowed to provide hearsay testimony concerning Appellee’s patient history because such hearsay falls outside the medical-diagnosis exception found in Rule 803(4). Additionally, Appellant relies heavily on this court’s decision in Ben M. Hogan Co., Inc. v. Nichols, 254 Ark. 771, 496 S.W.2d 404 (1973), in support of his contention that only a treating physician, as opposed to a medical expert witness consulted solely for the purpose of providing trial testimony, may give opinion testimony pertaining to injury. Appellant also cites this court to its decision in Carton v. Missouri Pac. R.R. Co., 303 Ark. 568, 798 S.W.2d 674 (1990), in support of his contention that statements made by persons as to pain for the sole purpose of furnishing an expert with information on which to base his opinion are not admissible.

Rule 702 of the Arkansas Rules of Evidence provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Rule 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. [Emphasis added.]

Pursuant to Rule 703, an expert witness may base his opinion on facts or data in evidence, which may otherwise be inadmissible, if they are of a type reasonably relied upon by experts in the particular field; the test is whether the expert’s reliance on such information is reasonable. Scott v. State, 318 Ark. 747, 888 S.W.2d 628 (1994); Dixon v. Ledbetter, 262 Ark. 758, 561 S.W.2d 294 (1978). In Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986), this court held that “obviously the requirement of personal knowledge has no application to an expert witness who is, in many instances, testifying to an opinion based entirely on assumed facts.” Id. at 303, 718 S.W.2d at 944. In Scott, 318 Ark. 747, 888 S.W.2d 628, this court stated:

The very purpose of Rule 703 is to allow the courts to follow the same practice as do experts themselves in forming their opinions, illustrated, for example, by allowing a physician to base his diagnosis on reports from other medical sources. Moreover, when an expert’s testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the testimony, rather it presents a jury question as to the weight of the testimony.

Id. at 749, 888 S.W.2d at 629 (citations omitted). Similarly, the court of appeals observed in Arkansas State Hwy. Comm’n v. Schell, 13 Ark. App. 293, 683 S.W.2d 618 (1985), that under Rule 703 “an expert must be allowed to disclose to the trier of fact the basis facts for his opinion, as otherwise the opinion is left unsupported in midair with little if any means for evaluating its correctness.” Id. at 298, 683 S.W.2d at 621. Rules 702 through 705 emphasize the function of cross-examination, with the burden being placed upon the opponent of the testimony to show that the expert’s conclusion lacks adequate support in order for the testimony to be subject to being stricken by the trial court. Id. at 299, 683 S.W.2d at 622.

In Carton, 303 Ark. 568, 798 S.W.2d 674, this court held that a portion of the plaintiff s statement to a doctor concerning the cause of her injury should have been excluded as it did not fall within the hearsay exception in Rule 803(4). Appellant relies on that holding in support of his argument, but the facts presented in that case differ greatly from those presented below. In fact, the holding in Carton clearly supports the trial court’s decision in this case to admit the testimony of Dr. Lopez. In Carton, the plaintiff sued the railroad company claiming that she was injured when she slipped on some spilled diesel fuel and fell. The doctor’s medical report, which was admitted into evidence, stated that, “[a]t the time she was in the process of getting out of the truck her foot slipped having apparently accumulated some diesel fuel on her sole [.]” Id. at 574, 798 S.W.2d at 677. This court held that the underlined words should have been excluded as that portion of her statement was not relevant for diagnosis and attempted only to fix blame. This court noted, however, that, ‘“a patient’s statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light.’” Id. at 575, 798 S.W.2d at 677 (quoting Cotchett and Elkind, Federal Courtroom Evidence 144 (1986)). The challenged information given by Dr. Lopez in the present case would likewise qualify as an exception to the hearsay rule found in Rule 803(4).

In Hogan Co., 254 Ark. 771, 496 S.W.2d 404, which was rendered before this court adopted the Arkansas Rules of Evidence in 1986, the expert witness was a doctor who had been retained for purposes of testifying at trial. The doctor stated that the plaintiff had been referred to him by his attorney and that when the plaintiff consulted him, the plaintiff s wife and his attorney were also present and assisted the plaintiff in reciting his patient history. The doctor also stated that he had not intended to treat the plaintiffs condition. This court held that the trial testimony conclusively established that the witness was not a treating physician, but that he occupied the exclusive role of a medical expert witness whose testimony was secured for purposes of giving an opinion at trial. The facts presented below starkly contrast the facts presented in the Hogan Co. case since Appellee consulted Dr. Lopez for possible treatment.

Contrary to Appellant’s argument, Dr. Lopez was a treating physician for purposes of testifying as to the nature, extent, and cause of her injuries. His expert testimony was not sought by Appellee or her attorney for the purpose of testifying at trial; rather, Dr. Lopez examined Appellee’s injuries upon referral by Dr. Haymer. That Appellee had not actually had the knee-replacement surgery prior to trial does not change the fact that Dr. Lopez examined Appellee for the purpose of diagnosing her injuries, and that the doctor made suggestions as to the proper treatment of those injuries. Ultimately, Dr. Lopez testified that in his opinion, Appellee’s knee injury was not caused by the collision, but that it was very possible that her preexisting condition of degenerative arthritis was aggravated by the trauma of the collision. Likewise, Dr. Haymer also testified that he believed Appellee’s condition was aggravated in the accident.

Appellant has not met his heavy burden of demonstrating that the trial court abused its discretion by permitting the witness to testify or that he was unfairly prejudiced by Dr. Lopez’s testimony, especially in light of the fact that Dr. Haymer had also testified as to the cause or aggravation of Appellee’s injuries. The pertinent provisions of the Arkansas Rules of Evidence and case law clearly support the trial court’s decision to admit the testimony. Furthermore, Appellant conducted extensive cross-examination of Dr. Lopez in an attempt to show that his opinion was unreasonable in that it was not supported by the facts. The fact that the jury chose to believe the testimony of the doctor is insufficient to meet Appellant’s burden on appeal.

As for Appellant’s remaining contention that Dr. Lopez should not have been permitted to testify as to Appellee’s need for knee-replacement surgery because she had since suffered a stroke, we agree with Appellee that such an argument is more properly directed toward the weight to be attached to the evidence, rather than its admissibility. As Appellee points out, Appellant could have chosen to put on evidence that Appellee would never be able to walk again, had such evidence existed, in an attempt to demonstrate that the surgery was no longer necessary. We find no error in the trial court’s ruling upon either argument presented by Appellant.

II. Exclusion of Defense Witness

Appellant argues that the trial court erred in refusing to allow him to present the testimony of Mrs. Kelly Henson on the ground that he had failed to notify Appellee that she would be called as a defense witness. Appellant further argues that the trial court abused its discretion in excluding this witness’s testimony absent some showing that his attorney knowingly concealed the name and address of the witness from Appellee’s counsel. We do not agree with Appellant’s assessment of our standard of review in these cases, nor are we convinced that the trial court did not find that Appellant’s counsel had knowingly concealed the identity of this witness.

Rule 26 of the Arkansas Rules of Civil Procedure provides in pertinent part:

(b)(1) . . . Parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues in the pending actions, . . . including the existence, description, nature, custody, condition, identity and location of persons who have knowledge of any discoverable matter or who will or may be called as a witness at the trial of any cause.
(e)(1) A party is under a duty seasonably to supplement his response with respect to any question direcdy addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity and location of each person expected to be called as a witness at trial ....
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

The standard of appellate review of decisions by the trial court to exclude or permit the testimony of any witness at trial is whether the trial court has abused its discretion. Marvel v. Parker, 317 Ark. 232, 878 S.W.2d 364 (1994); F.L. Davis Builders Supply, Inc. v. Knapp, 42 Ark. App. 52, 853 S.W.2d 288 (1993). In light of the facts and circumstances demonstrated below, the trial court did not abuse its discretion in excluding the testimony of Mrs. Henson.

At the conclusion of Appellee’s case as plaintiff, Appellee’s counsel informed the trial court that he had learned through the course of the trial that Appellant intended to call Mrs. Henson as a witness. Appellee’s counsel objected to her being allowed to testify on the ground that he had no prior notice of her testimony. Appellee’s counsel stated further that he had specifically requested the names and addresses of Appellant’s witnesses in interrogatories and that in both the initial and supplemental answers to the interrogatories, Appellant had failed to mention Mrs. Henson.

Appellant’s counsel argued below, as he does on appeal, that although he did not actually list Mrs. Henson as a witness in either request by Appellee, Appellee nonetheless had notice of the witness because she was mentioned, not by name, but only by a reference to the wife of Lester Henson, in a deposition conducted by Appellee’s counsel with Mrs. Betty Proctor. Appellant’s counsel argued further that he indicated in both answers to interrogatories that he was continuing to investigate the case and that he reserved the right to call additional witnesses who surfaced as a result of his investigation or through the discovery process. Appellant’s counsel also asserted that he had announced Mrs. Henson as a witness during voir dire, and that Appellee was at least put on notice as of the first day of the trial. Appellant’s counsel alternatively argued that even though Appellee had not received proper notice of the witness, Appellee’s case would not be prejudiced by Mrs. Henson’s testimony, as she was present at the scene of the accident and would only tell the truth as to what she saw. In response, Appellee’s counsel stated that Mrs. Henson’s anticipated testimony would directly contradict Appellee’s proof and would force him to secure additional witnesses, including her husband and son, for rebuttal.

After considerable argument between counsel for both sides, the trial court stated:

I don’t like for you all to put me in this situation. I would like to say a whole lot more than I’m going to because I don’t want to mess up this record but Mr. Hicky, I’m not going to let her testify because I don’t think this is just a lack of response.

In response to the trial court’s ruling, Appellant’s counsel denied trying to “sandbag” Appellee’s counsel and argued that he had only learned of the location of Mrs. Henson approximately two days before trial. Appellant’s counsel stated that the reason that he had not called opposing counsel to inform him of the witness’s name and address as soon as he had learned of the information was because he “was actually getting ready for trial[.]” We can only assume that by his remarks Appellant’s counsel was telling the trial court that he was too busy or occupied with trial preparation to notify Appellee’s counsel by telephone of this witness’s existence. It is significant, then, that Appellant’s counsel did apparently have time to have the clerk’s office issue a trial subpoena for Mrs. Henson on the day before trial. Under the circumstances, we conclude that the trial court did not abuse its discretion in excluding the witness’s testimony.

III. Damages

Appellant asserts that he is entitled to a new trial, or at least a remittitur of the damages, because the jury’s award of $150,000 is excessive and is not supported by the evidence presented at trial. Appellant further stresses that the jury was impermissibly swayed by compassion for Appellee, who sat through the trial in a wheelchair. Appellee asserts that the jury’s award was not excessive and not wholly unsupported by the evidence.

When an award of damages is alleged to be excessive, we review the proof and all reasonable inferences most favorably to the appellee and determine whether the verdict is so great as to shock the conscience of this court or demonstrate passion or prejudice on the part of the trier of fact. Builder’s Transp., Inc. v. Wilson, 323 Ark. 327, 914 S.W.2d 742 (1996). In determining whether the amount of damages is so great as to shock the conscience, we consider such elements as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Id. We make such determinations on a case-by-case basis, as precedents are of little value in appeals of this kind, with the understanding that a jury has much discretion in awarding damages in personal injury cases. Id. In the present case, we conclude that the damages awarded to Appellee were not so great as to shock this court’s conscience and, thus, we affirm.

Appellee, who was seventy-two years old, testified in her deposition that when Appellant’s truck crashed into her car, she “hugged” the driver’s seat and held on all the while she was being dragged backwards for some fifty feet. She stated that she was in constant pain and that she is in “misery” at night because the pain was coming up into her arms and had “messed up” that whole side of her body. In her affidavit, Appellee stated that she had no medical insurance to cover any of the recommended treatments for her injuries.

Mrs. Betty Proctor testified that before the accident, Appellee was active for her age and got around well. She also stated that after the accident, Appellee was in constant pain and had to wear a knee brace and walked with the assistance of a cane. She stated that after the accident, Appellee’s working days were finished. She further stated that Appellee’s lack of mobility because of the knee injury was such that she could no longer perform such simple tasks as picking up her own laundry basket and carrying it to the washer.

The jury was also furnished medical evidence through Dr. Haymer that the pain in Appellee’s lower back and knee will continue into the future. Dr. Lopez testified that when he examined her, Appellee could hardly get up from a sitting position without assistance and that her knee was “completely gone.” Moreover, Appellant does not challenge that the actual medical expenses presented to the jury exceeded $20,000 or that Appellee’s average life expectancy exceeded eleven years. Finally, contrary to Appellant’s arguments, there was no indication whatsoever that Appellee would not recover from her stroke and walk again. In fact, there was some indication through Appellee’s cross-examination of Dr. Turner that she had made progress in her rehabilitation.

From the above-cited testimony, we cannot conclude that the damages awarded by the jury were unfairly prompted by the jurors’ compassion for Appellee, who was confined to a wheelchair, nor can we conclude that the sum of $150,000 was so great as to shock the conscience or demonstrate passion or prejudice on the part of the trier of fact.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Juanita Duke SHACKELFORD, Administratrix of the Estate of James Anthony Shackelford, Deceased v. Carrick H. and Pat T. PATTERSON, Husband and Wife; Arkansas Power & Light Company; John Doe 1, Electrician; and John Doe 2, Boat Hoist Manufacturer
    96-178
    936 S.W.2d 748
    Supreme Court of Arkansas
    Opinion delivered February 3, 1997

      McMath Law Firm, by: Mart Vehik; and Tapp Law Firm, by: Sky Tapp, for appellant.

      Richard H. Wootton, P.A., by: Richard H. Wootton, for appellee.
   Robert L. Brown, Justice.

This appeal is from an order of summary judgment in a wrongful-death and survival action brought by appellant Juanita Duke Shackelford, administratrix of the estate of James Anthony Shackelford (James), against appellees Carrick H. and Pat T. Patterson as well as Arkansas Power and Light Company (AP&L) and others. Summary judgment was granted in favor of the Pattersons, and an appropriate certification for purposes of appeal was made pursuant to Ark. R. Civ. P. 54(b). Juanita Shackelford contends on appeal that issues of material fact remain to be resolved regarding the death of her son, James, which renders summary judgment inappropriate. We agree that at least one material fact must be determined, and we reverse the order of summary judgment and remand for further proceedings.

On May 11, 1991, James and three teenage friends (Thomas James McDaniel, Larry Wayne Kennedy, and Joseph Faulkner) were in a canoe on Lake Hamilton in Garland County at about 11:30 at night. The boys attempted to shift position in the canoe, and it capsized. James told his friends that he would swim to shore, which was about 50 to 60 yards away, remove his clothes, and come back to help. Joseph Faulkner stayed with the other two boys, one of whom was in a life jacket, to assist them in swimming to shore. As the three boys made their way to shore, they heard James cry out for help.

When the boys came closer to land, they saw a boat dock and felt a tingling in the water, which they attributed to electricity. Faulkner testified in his deposition that this occurred 10 to 12 feet from the boat dock. The boys swam away from the electricity. McDaniel, who was in a life preserver, testified in his deposition that the tingling sensation “pulled the energy from you.” Kennedy testified in his deposition that the electric current felt in the water was not strong but that they were “fixing to get in it,” and that is why they swam away. When the three boys got to shore, they could not find James. They alerted the Pattersons, who resided in a house by the boat dock. The cause of death apparently was by drowning, with trauma caused by electric shock.

In her first amended complaint, Juanita Shackelford sued the Pattersons for negligently installing electrical wiring to the boat dock which caused the wrongful death of her son. She alleged that a portion of the wiring cable had a cut in it and had dropped in the water and electrified both the water and the dock. She further asserted that the Pattersons knew they had electrical problems at the boat dock because electricity in the water had shocked a neighbor a year preceding James’s death. Since they had knowledge of the danger, Shackelford alleged that the Pattersons were guilty of willful and wanton misconduct. She also claimed that Carrick Patterson was guilty of willful and wanton misconduct in wiring the boat hoist in violation of established standards.

The Pattersons moved for summary judgment on the ground that James was a trespasser on their boat dock at the time of his death and that no duty of care is owed to an unknown trespasser. Various affidavits and depositions were attached in support of the motion. Carrick Patterson averred in an affidavit that he had no notice James was on his property and no notice of an electrical problem prior to James’s death except a year or two before the accident when the electrical outlet from shore was under water. In a later deposition, Carrick Patterson stated that he did the electrical wiring from the oudet on shore to the boat dock for the boat hoist. He also made repairs to the wiring. He stated that he never saw the wire or cable in the water on the night of the accident.

Joseph Faulkner testified in his deposition that Carrick Patterson told him the night James died: “You should have seen Aunt Ethel . . . when she got shocked out there about a year ago.” Faulkner also testified in his deposition that he stuck his hand in the water after walking out on the boat dock and was shocked. Larry Wayne Kennedy confirmed that Carrick Patterson said that electricity previously had leaked from the oudet leading to the boat dock. He also related that when he touched the handrail on the boat dock, the electricity “knocked [his] arm off.”

Shackelford’s response to the summary-judgment motion was (1) the Patterson dock was a “use” and not a property right that would invoke landowner defenses; (2) if James was on the Patterson property, he was there by necessity, which triggers a duty of care owed by the Pattersons; and (3) it had not been proven that James actually reached the boat dock and died as a result of that as opposed to an electric shock in the water. In support of her response, Shackelford attached a report from the State Crime Laboratory which revealed a quarter-inch cut in the cable wiring that serviced the boat dock. The report also noted that the plug to the cable contained a defect that caused a short circuit. The report concluded that the defect “could have caused considerable leakage of electrical current from the hot brown circuit wire into the neutral grounding wire.” In addition, Shackelford attached the affidavit of Austin Bollen, an electrical engineer, who concluded that the energized ground wire coupled with the cut in the cable would cause electricity to leak into the lake, once it came in contact with the water. According to Bollen, the amount of electricity available for leakage would have been sufficient to cause death.

On the issue of whether the wire was touching the water on the night of James’s death, Carrick Patterson stated in his deposition that he never saw the wire in the water. Pat Patterson related in her deposition that it was pointed out to her by one of the boys on the night of the accident that part of a wire was in the water off the gangplank. Larry Wayne Kennedy confirmed that the wire “looped down through the water.”

The trial court granted summary judgment in favor of the Pattersons on the basis that they were the owners or occupants of the boat dock and that James was a trespasser on that dock. The trial court concluded that no duty of care was owed by the Patter-sons to James because they did not know that he was on their property until after the occurrence.

Shackelford now contends on appeal that the trial court erred in granting summary judgment and assigns eight reasons for that error:

(1) The Pattersons submitted no valid proof that James came in contact with the boat dock. Thus, landowner defenses such as James’s alleged trespasser status do not come into play.
(2) There is a disputed issue of fact on whether James received the fatal electric shock in the water or when he touched the boat dock. If he did not touch the boat dock, landowner defenses are not relevant.
(3) The Pattersons’ ownership of the boat dock is a nonpossessory use on the lake and not a real property interest. Landowner defenses do not pertain to non-possessory usage.
(4) The Pattersons built the boat dock without a permit from the owner of the lake (AP&L), which makes them trespassers. Trespassers cannot claim a trespasser defense against third parties.
(5) Any entry by James on the Pattersons’ property was due to necessity and, therefore, was privileged. His entry by necessity gives him the status of licensee. If the Pattersons should have known that he might be present on their property, they owed him the duty not to cause injury by willful or wanton misconduct.
(6) There is evidence that the Pattersons engaged in willful and wanton misconduct by' negligendy installing the electrical wiring near water and in failing to repair the wiring adequately after prior notice of a defect.
(7) The recreational-defense statutes [Ark. Code Ann. § 18-11-301 to 18-11-307 (1987 & Supp. 1995)], do not provide a defense for the Pattersons.
(8) The Pattersons owed a duty to others based on their implied agreement with AP&L to maintain the boat dock in a safe condition.

We have summarized our standard of review for summary judgment many times. For example, in Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995), we stated:

Summary judgment is a remedy that should be granted only when it is clear that there is no genuine issue of material fact to be litigated. [Citation omitted.] The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubts and inferences must be resolved against the moving party. [Citations omitted.] The burden in a summary judgment proceeding is on the moving party and cannot be shifted when there is no offer of proof on a controverted issue. [Citation omitted.] When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing genuine issue as to a material fact. [Citation omitted.]

Brumley, 320 Ark. at 315, 896 S.W.2d at 863, quoting Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). We have further stated that summary judgment should not be granted when reasonable minds could differ as to the conclusions that can be drawn from the facts presented. Craig v. Taylor, 323 Ark. 363, 915 S.W.2d257 (1996); Schmidt v. Gibbs, 305 Ark. 383, 807 S.W.2d 928 (1991); Lee v. Doe, 274 Ark. 467, 626 S.W.2d 353 (1981).

We agree with Shackelford that a disputed issue of fact remains to be decided as to whether James received the fatal charge before he reached the boat dock. The Pattersons contended in their brief and at oral argument that the evidence is conclusive that James reached the boat dock. They refer in particular to a police report by Lieutenant Larry Selig of the Garland County Sheriffs Department, who was told by another police officer who retrieved James’s body that his arms were looped around a metal post at the end of the boat dock. The Pattersons further assert that James had rust on his hands, arms, face, and clothes and that his body, according to two of the boys, was found at the end of the boat dock. Hence, they urge that James’s contact with the boat dock is an issue where reasonable minds cannot differ, and it is appropriately resolved as a matter of law. See, e.g., Tyson Foods, Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374 (1996); Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996); Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994).

Shackelford vigorously objects to the trial court’s consideration of Lieutenant Selig’s police report because it was not made under oath, it contained hearsay, and it was not timely presented. We believe that the police report, as presented, had dubious probative value. But even if the trial court appropriately considered the police report, we conclude that a fact question still remains as to (a) whether James received the fatal electric shock before he reached the boat dock, or (b) whether the shock in the water coupled with the shock upon touching the boat dock resulted in his demise, or (c) whether he died solely from the shock experienced upon touching the boat dock.

There is certainly evidence that James, who may well have been fatigued by the swim to shore in his clothes, received a shock in the water. There is proof that the boys felt the electricity in the water 10 to 12 feet in front of the boat dock. Thomas James McDaniel stated that the electricity pulled energy from him. Larry Wayne Kennedy saw the wire looped into the water. Shackelford’s expert witness, Austin Bollen, opined that the electricity leaked into the water by the defective cable was sufficient to cause a person’s death. No contravening affidavit or proof was submitted by the Pattersons in response to Bollen’s affidavit. Resolution of where James received the fatal shock is critical because it goes to his status with respect to the Pattersons and what duty of care was owed. Hence, we conclude that where James received the fatal electric shock was a material question of fact for the jury to resolve. Ark. R. Civ. P. 56(c).

Shackelford further argues that even if James did reach the boat dock and received the electric shock as a consequence, this brings into play other fact questions. For example, she contends that the Pattersons were not persons to whom an owner or occupant defense applied because of their mere possessory interest in the boat dock and, in addition, that James’s presence at the boat dock was privileged because he was there only to save himself. See Restatement (Second) of Torts § 197 (1965). According to Shackelford, the privilege of necessity made James a licensee. Due to our holding that a material issue of fact remains to be resolved regarding where the fatal shock was received, we find it unnecessary to address these other issues which undoubtedly will be developed in the trial court.

We reverse and remand the matter to the trial court for further proceedings.

       There is no autopsy report in the record of this appeal.