author: DAVID Newbern, Justice.

text:
    William George Edward WEBER v. STATE of Arkansas
    CR 96-706
    933 S.W.2d 370
    Supreme Court of Arkansas
    Opinion delivered November 11, 1996

      Richard R. Parker, Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   DAVID Newbern, Justice.

William George Edward Weber was convicted of rape in violation of Ark. Code Ann. § 5-14-103(a) (3) (Repl. 1993) upon evidence that he engaged in deviate sexual activity with a person less than fourteen years of age. He was sentenced to sixty years’ imprisonment as an habitual offender. The charge arose from allegations that Mr. Weber engaged in fellatio and other sexual misconduct with an eight-year-old child.

Mr. Weber contends that the evidence was insufficient to support the conviction and that his motion for a directed verdict should have been granted. He also argues that a written statement made by the victim should not have been admitted into evidence because it had not been furnished to him by the prosecution prior to trial and was admitted in violation of the hearsay rule. In addition, he argues a statement made to an investigating officer should not have been admitted into evidence. He also questions the Trial Court’s refusal to instruct on first-degree sexual abuse as a lesser included offense.

We hold that it was not error to overrule the directed-verdict motion and that the admission of the child’s written statement was harmless because it was cumulative of other evidence. We also hold Mr. Weber’s statement to the investigating police officer was admissible because it was spontaneous, and we conclude that first-degree sexual abuse is not a lesser included offense of rape. The judgment is affirmed.

1. Sufficiency of the evidence

The victim testified about instances in which fellatio had occurred and about an instance in which Mr. Weber placed his finger in her anus. The mother of the victim stated Mr. Weber sometimes stayed overnight at her home and had opportunities to engage in the conduct alleged. She knew nothing of it until she came home unexpectedly on the evening of May 29, 1995, entered a bedroom, and found her daughter with her pants down and leaning over a bed. Mr. Weber came from behind a door looking nervous and said he had been examining the child for tick bites. The child said Mr. Weber had told her he intended to place his penis in her anus, and she then revealed the other conduct which led to the charge. The mother testified that Mr. Weber admitted his acts with the child to her but said the child “started it.” She testified that, after Mr. Weber became aware that she had notified the police, he admitted his guilt and said something like, “I’m busted ain’t I?”

In arguing that the evidence is insufficient, Mr. Weber points to inconsistencies in the child’s and the mother’s statements. While that argument could have affected the jury’s assessment of the credibility of the witnesses, it does not provide a reason for us to hold the Trial Court erred in refusing to grant a directed verdict in favor of Mr. Weber.

Mr. Weber argues further that the evidence was insufficient because a medical report resulting from an emergency-room examination of the child did not indicate that the child had suffered any physical injuries and showed no physical abnormality.

The evidence was sufficient that Mr. Weber engaged in deviate sexual activity with the child. “Deviate sexual activity” is defined as

any act of sexual gratification involving: (A) The penetration, however slight, of the anus or mouth of one person by the penis of another person; or (B) The penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person.

Ark. Code Ann. § 5-14-101(1) (Repl. 1993).

As we have repeatedly held, “The uncorroborated testimony of a child rape victim is sufficient evidence to sustain a conviction.” Caldwell v. State, 319 Ark. 243, 246, 891 S.W.2d 42 (1995). See Gunter v. State, 313 Ark. 504, 509, 857 S.W.2d 156, cert. denied 510 U.S. 948 (1993); Jones v. State, 300 Ark. 565, 566, 780 S.W.2d 556 (1989); Winfrey v. State, 293 Ark. 342, 351, 738 S.W.2d 391 (1987).

2. Statement to police

On the evening mentioned above when the child’s mother discovered the child and Mr. Weber in a compromising position, the mother called the police. Officer Marc Arnold of the Harrison Police Department was sent to the residence where he encountered Mr. Weber outdoors nearby. Officer Arnold knew only that he was to investigate a child abuse case, and he had no knowledge that Mr. Weber was the accused. Officer Arnold greeted Mr. Weber, and Mr. Weber’s response was “Man, I’ve really messed up.” The officer testified he then informed Mr. Weber of his rights and stayed with him until backup officers arrived. Officer Arnold then went into the house and spoke with the mother and child while another officer stayed outside with Mr. Weber.

Mr. Weber asserts that his statement should have been suppressed because it was made in the context of a custodial interrogation and without the benefit of the warnings required by Miranda v. Arizona, 384 U.S. 436 (1960). Mr. Weber further argues that the State failed to show that he made a voluntary and intelligent waiver of his right to remain silent.

In considering whether Mr. Weber’s statement was properly admitted, “we evaluate the totality of the circumstances and reverse only if the trial court’s finding is clearly against the preponderance of the evidence.” Day v. State, 306 Ark. 520, 525, 816 S.W.2d 852 (1991). In denying Mr. Weber’s suppression motion, the Trial Court found that Mr. Weber made the incriminating statement in response to Officer Arnold’s greeting or salutation and that the statement was not elicited by police questioning. Although Mr. Weber does not dispute that finding, he insists that reversal is nonetheless required because (1) he made the statement before receiving Miranda warnings; (2) he did not feel “free to leave” and therefore was in police custody at the time he made the statement; and (3) he may have made the statement while under the influence of drugs and alcohol.

Even if those assertions are true, “the important point,” in the words of Justice George Rose Smith, is that Mr. Weber “was not being interrogated as a suspect, with respect to his possible guilt, when the statements were made.” Lacy v. State, 271 Ark. 334, 335, 609 S.W.2d 13 (1980). Although Mr. Weber argues that the statements made prior to his arrest should be suppressed because he was not advised of his Miranda rights, the Miranda warning is not required unless the statements were a result of custodial interrogation. The Miranda warning is not required for voluntary, spontaneous statements. Ward v. State, 308 Ark. 415, 421, 827 S.W.2d 110 (1992). A spontaneous statement is admissible because it is “not compelled or coerced in any way significant under the Fifth Amendment’s privilege against self-incrimination.” Stone v. State, 321 Ark. 46, 53, 900 S.W.2d 515 (1995).

The record leaves no doubt that Officer Arnold was not interrogating Mr. Weber when he made the incriminating statement. According to the United States Supreme Court,

the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Rhode Island v. Innis, 446 U.S. 291, 301 (1980). It is undisputed that Officer Arnold posed no express questions to Mr. Weber that could have elicited his incriminating statement. It is also undisputed that Mr. Weber was not “subjected to the ‘functional equivalent’ of questioning,” as discussed in the Innis case. Officer Arnold could not have known that his simple greeting was reasonably likely to trigger an inculpatory response on the part of Mr. Weber. It was not error to refuse to suppress the statement.

3. The mitten statement

A counsellor who worked with the victim asked that she write about the events with Mr. Weber. The child prepared such a statement, and the prosecution offered it as evidence at the trial. It was received as an exhibit. Mr. Weber argues the written statement should not have been received into evidence because his counsel had not been furnished a copy of it prior to trial as required by his discovery motion and because it is hearsay. Ark. R. Evid. 801, 802.

Any error that may have occurred in the admission of the exhibit was harmless. As abstracted by Mr. Weber, the written statement contained the same information to which the child victim testified in person at the trial. The written statement was, therefore, merely cumulative of evidence that was admitted without objection.

When hearsay evidence is erroneously admitted, we will not reverse if it is “cumulative to other evidence admitted without objection.” Zufari v. Architecture Plus, 323 Ark. 411, 420-21, 914 S.W.2d 756 (1996). See Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996); Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995). See also Williams v. Southwestern Bell Tel. Co., 319 Ark. 626, 631, 893 S.W.2d 770 (1995).

The same is true with respect to evidence that may not have been provided to the defendant in violation of the State’s obligation under Ark. R. Crim. P. 17.1(a)(v). There was a dispute between Mr. Weber’s counsel and the prosecutor over whether the statement had been in the prosecutor’s file which had been open to inspection by the defense. Even if we were to assume that the State had improperly failed to provide the statement to the defense, we would affirm in this instance.

When evidence is not disclosed pursuant to pretrial discovery procedures, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial.... The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose; absent a showing of prejudice, we will not reverse.

Burton v. State, 314 Ark. 317, 319, 862 S.W.2d 252 (1993).

In view of the fact that the abstract of the record reveals that the written statement was not different in any significant detail from the oral testimony of the victim, which was received without objection, we cannot say that Mr. Weber was prejudiced by its admission into evidence.

4. Lesser included offense

Mr. Weber argues the Trial Court erred in refusing to instruct the jury on the offense of first-degree sexual abuse, Ark. Code Ann. § 5-14-108(a)(3)(Repl. 1993), as a lesser included offense of rape.

A defendant is entitled to an instruction on a lesser included offense if two conditions are satisfied. First, the proffered instruction must truly cover a lesser included offense. “An offense is so included if: (1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; Ark. Code Ann. § 5-1-110(b)(Repl. 1993). As we said in Cozzaglio v. State, 289 Ark. 33, 38, 709 S.W.2d 70 (1986), an offense is not a lesser included offense of another if “[e]ach crime requires a different element of proof.”

The second condition is that there must be “a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” § 5-1-110(c). We need not consider the rational basis requirement because we have concluded that first-degree sexual abuse, as it might have been proven in this case, and as Mr. Weber asked that it be described to the jury by his proffered instruction, contains an element not included in rape, and thus it is not a lesser offense included in the offense charged.

In considering Mr. Weber’s contention, it is necessary to compare the. elements of the offense charged with those of first-degree sexual abuse. As stated above, Mr. Weber was charged with rape based on the provision that, “A person commits rape if he engages in ... deviate sexual activity with another person: ... (3) Who is less than fourteen (14) years of age.” § 5-14-103(a)(3).

The elements of first-degree sexual abuse that might have applied in this case are described as follows: “A person commits sexual abuse in the first degree if: ... (3) Being eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old.” Ark. Code Ann. § 5-14-108(a)(3) (Repl. 1993). “Sexual contact” is defined as “any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of a person or the breast of a female.” § 5-14-101(8).

We have no case in which the Court has held that first-degree sexual abuse is, or is not, a lesser offense included in rape. We have, however, held that rape does not include certain degrees of carnal abuse because, unlike the rape provision, the carnal abuse statutes permit conviction only if the defendant is a certain age. See Ark. Code Ann. §§ 5-14-104(a)(Repl. 1993)(stating accused must be “under the age of eighteen (18) years” to commit first-degree carnal abuse); 5-14-106(a)(stating accused must be “twenty (20) years old or older” to commit third-degree carnal abuse). Because the carnal abuse statutes contain an element not included in the rape statute (i.e., the accused’s age requirement), we have concluded that certain degrees of carnal abuse are not included in the offense of rape. Bonds v. State, 310 Ark. 541, 543-44, 837 S.W.2d 881 (1992); Leshe v. State, 304 Ark. 442, 448, 803 S.W.2d 522 (1991); Kester v. State, 303 Ark. 303, 308, 797 S.W.2d 704 (1990); Sullivan v. State, 289 Ark. 323, 328-30, 711 S.W.2d 469 (1986).

By clear analogy to the carnal abuse cases, we hold that first-degree sexual abuse, as it might have been proven by the evidence in this case, is not a lesser included offense of rape because it contains an element (age of the perpetrator) not found in the rape statute. Therefore, Mr. Weber was not entitled to an instruction on first-degree sexual abuse under Ark. Code Ann. § 5-1-110(b) (Repl. 1993).

Before leaving this subject, we must point out that in obiter dicta we and the Court of Appeals have said from time to time that first-degree sexual abuse is a lesser included offense of rape. We said it in Bonds v. State, supra, and in at least four other cases. See Langley v. State, 315 Ark. 472, 473, 868 S.W.2d 81 (1994) (stating, where defendant was charged with rape, that “the trial court correcdy charged the jury on the lesser included offense of sexual abuse”); Curtis v. State, 279 Ark. 64, 65, 648 S.W.2d 487 (1983) (“The jury also found the appellant not guilty of rape but guilty of the lesser included offense of sexual abuse in the first degree....”); Beed v. State, 271 Ark. 526, 547, 609 S.W.2d 898 (1980) (where defendant was charged with rape and Trial Court failed to instruct on first-degree sexual abuse, Supreme Court affirmed because there was no rational basis for the instruction; the Court did not dispute the contention that sexual abuse was included in rape); Speer v. State, 18 Ark. App. 1, 8, 708 S.W.2d 94 (1986) (stating first-degree sexual abuse is a lesser included offense of attempted rape but that “sexual abuse in the first degree is proven by a finding of the same or less than all of the elements of rape”).

We note that first-degree sexual abuse may be proven by facts other than those evident in this case, and we decline to say that it may not be a lesser included offense in rape in any case. Our holding in this instance is solely that first-degree sexual abuse as defined in § 5-14-108(a)(3), the subsection upon which Mr. Weber wanted the Trial Court to instruct the jury, is not a lesser offense included in rape as charged here pursuant to § 5-14-103(a)(3).

Affirmed.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    ABC HOME HEALTH OF ARKANSAS, INC., Appellant v. ARKANSAS HEALTH SERVICES COMMISSION, Appellee; Care Network, Inc., Intervenor; Visiting Nurse Association of Arkansas, Intervenor
    96-486
    932 S.W.2d 331
    Supreme Court of Arkansas
    Opinion delivered November 11, 1996
    [Petition for rehearing denied December 16, 1996.]

      William H. Trice, III, and Scott G. Lauck, for appellant.

      Winston Bryant, Att’y Gen., by: Harold W Hamlin, Asst. Att’y Gen., for appellee Arkansas Health Services Commission.

      Jack, Lyon & Jones, P.A., by: John W. Fink, for intervenor Visiting Nurse Association of Arkansas.
   Donald L. Corbin, Justice.

Appellant, ABC Home Health of Arkansas, Inc., appeals the order of the Pulaski County Circuit Court affirming the decision of Appellee, Arkansas Health Services Commission, to deny Appellant’s applications for permits to operate a home health services company in numerous Arkansas counties. This appeal requires our interpretation of the statute on the powers and duties of the Arkansas Health Services Commission and the Arkansas Health Services Agency, Ark. Code Ann. §§ 20-8-103 and 20-8-104 (Repl. 1991). Therefore, jurisdiction is in this court pursuant to Ark. Sup. Ct. R. l-2(a)(17)(vi). We cannot reach the merits of the appeal, however, due to a flagrantly deficient abstract. Accordingly, we affirm pursuant to Ark. Sup. Ct. R. 4-2 (a) (6).

Appellant makes two arguments for reversal. First, Appellant contends the Commission exceeded its statutory authority when it denied Appellant’s applications based on Appellant’s inability to demonstrate need. Second, Appellant contends alternatively that the Commission arbitrarily and capriciously applied its review criteria and methodology for determining need when it denied Appellant’s applications. On review of an agency decision, the circuit court is limited to a review of the evidence to determine whether there was substantial evidence to support the agency’s decision, and on appeal, this court’s review is similarly limited. Beverly Enter.—Ark., Inc. v. Health Servs. Comm’n, 308 Ark. 221, 824 S.W.2d 363 (1992). To set aside the Commission’s denial of Appellant’s permits as an arbitrary and capricious agency decision, Appellant must demonstrate that the decision was a willful and unreasoning action, made without consideration and with a disregard of the facts or circumstances of the case. Id.

We cannot address the merits of Appellant’s arguments because we do not have an abstract of the Commission’s decision. Although the abstract does contain a summary of the trial court’s decision to affirm the Commission’s decision, that is not sufficient for our review as it is the Commission’s decision that is at issue on appeal. Id. It is impossible for us to determine whether the Commission’s decision exceeded the scope of its statutory authority or whether the Commission’s decision was arbitrary and capricious when we do not know what the Commission’s decision was or the factors that led to it. The abstract of the trial court’s decision lends no clarity in this regard. The Commission’s decision is therefore necessary for an understanding of the questions presented for our decision, and its omission from the abstract renders the abstract flagrandy deficient. Rule 4-2 (a) (6). We have said that “[w]hen an abstract’s deficiencies are so flagrant that a decision is well nigh impossible, we will affirm.” Carmical v. City of Beebe, 316 Ark. 208, 212, 871 S.W.2d 386, 389 (1994) (quoting Haynes v. State, 313 Ark. 407, 409, 855 S.W.2d 313, 315 (1993)). Accordingly, we affirm the order of the circuit court.


text:
    John L. BAKKER, D.D.S. v. Anna RALSTON and Judy Champlin
    96-510 (consolidated with 96-511)
    932 S.W.2d 325
    Supreme Court of Arkansas
    Opinion delivered November 11, 1996

      Davis, Cox & Wright, P.L.C., by: Walter B. Cox and Tim E. Howell, for appellant.

      Laura J McKinnon, for appellees.
   Donald L. Corbin, Justice.

Appellant, John L. Bakker, D.D.S., appeals two orders of the Washington County Circuit Court dismissing without prejudice two complaints against him for dental malpractice, breach of fiduciary duty, outrageous conduct, and invasion of privacy. The dismissals were granted based on failure to serve Appellant with the summonses. Appellant contends the dismissals should have been with prejudice because separate Appel-lees Anna Ralston and Judy Champlin had previously taken voluntary nonsuits. We find merit to Appellant’s argument and therefore affirm the orders of dismissal but modify them as being with prejudice.

This appeal consolidates two cases filed separately by Appellee Ralston and Appellee Champlin; both cases involve the same issue on appeal. The court of appeals certified this case to us pursuant to Ark. Sup. Ct. R. l-2(d). This appeal requires interpretation of the Arkansas Rules of Civil Procedure, specifically Rules 4 and 41, and resolution of a conflict between a decision of this court and the court of appeals.

Appellee Champlin filed her first complaint on March 5, 1992. Appellee Ralston filed her first complaint on December 10, 1993. Both complaints were dismissed by voluntary nonsuits on December 15, 1994. Both complaints were refiled on June 20, 1995, but summonses were never served on Appellant. Neither Appellee Champlin nor Appellee Ralston moved for an extension of the 120-day period to obtain service as provided in ARCP Rule 4(i).

Relying on Rifle 4(i), Appellant filed motions to dismiss both complaints for failure to obtain service upon him. Appellant argued that, although Rule 4(i) provides that a dismissal for failure to obtain service be without prejudice, these dismissals should be with prejudice pursuant to ARCP Rule 41(b) because Appellees had previously dismissed their complaints voluntarily. The trial court entered an order granting Appellant’s motion to dismiss, but denying the request that the dismissal be without prejudice. This appeal followed. Appellant makes the same argument on appeal that he made to the trial court in his motion to dismiss.

We note that neither Appellee Champlin nor Appellee Ral-ston have challenged on appeal the trial court’s findings that service was not obtained or that an extension was not sought. Consequently, those issues are not before us in this appeal. We note also that Appellee Champlin and Appellee Ralston did not file a brief in this appeal.

Rule 4(i) provides in pertinent part that “[i]f service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative.” Rule 41(b), however, provides:

In any case in which there has been a failure of the plaintiff to comply with these rules. . . the court shall cause notice to be mailed to the attorneys of record . . . that the case will be dismissed for want of prosecution .... A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.

Although without expressly addressing the overlap of these two procedural rules, this court has stated that when a dismissal is granted for failure to obtain service and the plaintiff has previously taken a voluntary nonsuit, the second dismissal is to be with prejudice. Dougherty v. Sullivan, 318 Ark. 608, 887 S.W.2d 305 (1994). This court has also stated that Rule 41(b)’s requirement that second dismissals operate as adjudications on the merits applies to a plaintiff’s failure to comply with a statutory notice-of-intent-to-sue requirement. Dawson v. Gerritsen, 295 Ark. 206, 748 S.W.2d 33 (1988). Along somewhat similar fines, this court has stated that the “without prejudice” language of Rule 4(i) is not applicable if a plaintiff’s cause of action is otherwise barred by the statute of limitations. Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991).

Dougherty, 318 Ark. 608, 887 S.W.2d 305, controls this case as the facts are substantially similar. Both cases involve a first dismissal by voluntary nonsuit followed by a second dismissal for failure to obtain service. As for the overlap of Rules 4(i) and 41, we note that Rule 4(i) applies when there is a failure to obtain service and nothing more. See Green, 304 Ark. at 489, 803 S.W.2d at 539. Rule 41(b), however, is expressly addressed to a situation similar to the one presented here where there has been more than one dismissal, whether voluntary or involuntary. Rule 41 expresses that while a plaintiff may take a voluntary nonsuit without prejudice, there is a limit to the number of times a case can be dismissed, regardless of whether the dismissals are voluntary under subdivision (a) or involuntary under subdivision (b). See reporter’s notes to Rule 41. Here, Appellees’ failure to serve Appellant was a failure to comply with Rule 4(i), or “a failure of the plaintiff to comply with these rules” as provided in Rule 41(b); such a failure results in an involuntary dismissal pursuant to Rule 41(b). Because these cases had previously been dismissed, Rule 41 (b) requires that the second dismissals operate as adjudications on the merits. Accordingly, we hold that the trial court erred in granting these dismissals without prejudice.

Our decision today and our decision in Dougherty, 318 Ark. 608, 887 S.W.2d 305, are in direct conflict with Gilmore v. Bryant, 49 Ark. App. 26, 894 S.W.2d 607 (1995), although Dougherty was decided four months prior to Gilmore. Accordingly, we overrule Gilmore, 49 Ark. App. 26, 894 S.W.2d 607, and note that the trial court’s reliance on Gilmore was misplaced. In his letter opinion, the trial court distinguished Dougherty and Gilmore on the basis that the complaint in Dougherty was barred by limitations. Such a distinction cannot be made on the facts as reported in Dougherty. Furthermore, the first paragraph of the Dougherty opinion expressly states that no limitations questions are discussed. Moreover, the trial court’s distinction overlooks the rule that when a complaint is filed within the limitations period, nonsuited, and then refiled within the one-year savings statute, Ark. Code Ann. § 16-56-126 (1987), the complaint is held to be within the limitations period, so long as service was obtained within 120 days. See Carton v. Missouri Pac. R.R. Co., 295 Ark. 126, 747 S.W.2d 93 (1988), and Green, 304 Ark. 484, 803 S.W.2d 536.

For the reasons aforementioned, the dismissals in these cases should have been granted with prejudice to future actions as adjudications on the merits. As is our practice in such cases, we affirm the result but modify to the extent the dismissals are with prejudice. See generally Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984); see also Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996) (modifying from without prejudice to with prejudice) and Insurance From CNA v. Keene Corp., 310 Ark. 605, 839 S.W.2d 199 (1992) (modifying dismissals under ARCP Rule 41).

Affirmed as modified.

Roaf, J., not participating.


author: PER CURIAM.

text:
    Terrell Demond BAKER v. STATE of Arkansas
    CR 96-502
    931 S.W.2d 443
    Supreme Court of Arkansas
    Opinion delivered November 11, 1996

      Tell Hulett, for appellant.
   PER CURIAM.

Appellant, through his attorney, Tell Hulett, has filed a motion to file a belated brief. The record in this case was lodged on April 29, 1996, making the appellant’s brief due forty days thereafter. See Ark. R. Sup. Ct. 4-4(a). Counsel states that he never received any correspondence from our clerk’s office regarding a briefing schedule. On September 12, 1996, the Clerk of the Court sent a letter to attorney Hulett inquiring about the status of the case. The letter was returned on October 2, 1996, with the notation that it had been sent to the wrong address. Counsel says he learned for the first time on October 7, 1996, that the deadline for filing the appellant’s brief was June 8, 1996. This motion was filed eight days later.

Since it appears that certain correspondence from the court to attorney Hulett may have gone to an old address, we will grant the motion. However, the rules clearly state that an appellant’s brief is due forty days after filing the record. Counsel made no inquiries concerning the case for over five months after the record was filed. For that reason, a copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Per Curiam.

text:
    BOARD OF TRUSTEES for the City of Little Rock Police Pension Fund v. Mark STODOLA, et al.
    96-948
    931 S.W.2d 443
    Supreme Court of Arkansas
    Opinion delivered November 11, 1996

      Tell Hulett, for appellant.

      Stephen Cobb, Pulaski County Att’y’s Office, for separate ap-pellee Pulaski County.
   Per Curiam.

On October 14, 1996, the separate appellee, Pulaski County, filed a motion to dismiss this appeal because the appellant had failed to timely file its brief or to request an extension.

On October 15, 1996, Tell Hulett, counsel for the appellant, filed a motion for extension of time to file a belated brief. Hulett lodged the record on August 15, 1996, and, according to Ark. S. Ct. R. 4-4(a), was required to file his brief by September 24, 1996. As of today, Hulett has not filed the brief nor has he been granted an extension.

Hulett explains that he failed to file a timely brief because the Supreme Court Clerk did not notify him of the date on which his brief was due. The rules clearly state that the appellant must file a brief within forty days of lodging the record. Ark. S. Ct. R. 4-4(a). It is Hulett’s, not the court’s, responsibility to make himself aware of the date on which his brief was due.

The motion to dismiss the appeal is denied. The motion to file a belated brief is granted. A copy of this per curiam will be forwarded to the Committee on Professional Conduct. See also Bakerv. State, (slip op. CR96-502, November 11, 1996)(per curiam).


text:
    Franklin Woolery GAITHER v. STATE of Arkansas
    CR 96-1271
    931 S.W.2d 442
    Supreme Court of Arkansas
    Opinion delivered November 11, 1996

      Chester A. Baugus, for appellant.
   PER CURIAM.

Appellant, Franklin Woolery Gaither, by his attorney, Chester A. Baugus, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


author: PER CURIAM. Tom GLAZE, Justice,

text:
    STATE of Arkansas v. TIEN Ngoc Doan and Trung Do
    CR 96-348
    933 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered November 11, 1996

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Asst. Att’y Gen., for petitioner-appellant.

      Sam Sexton III and Jeanne Ann Whitmire, for respondents-appellees.
   PER CURIAM.

Petitioner State of Arkansas requests rehearing on several grounds and seeks clarification of whether this court’s decision in State v. Tien, 326 Ark. 71, 929 S.W.2d 155 (1996) (Tien I), affirmed the trial court’s decision to suppress confessions or, alternatively, dismissed the State’s appeal. As the State points out, the difference between affirmance of the trial court’s order and dismissal of the State’s appeal in this context is important in that if our decision in Tien I affirmed the trial court’s suppression order “in its entirety,” this would bar further proceedings against respondents Tien and Trung under Arkansas Rule of Appellate Procedure — Criminal 3(d).

In Tien I, the respondents filed a motion to affirm the trial court’s order in this court due to the State’s failure to file its appellate brief in timely fashion, and the State responded and simultaneously moved that we accept its late brief. Because the State’s brief had not been filed by the final extension date, we quoted from State v. Parkman, 325 Ark. 35, 923 S.W.2d 281 (1996), where we warned of future dismissals in the event the State’s brief in State appeals was not filed by the date of the final extension. In light of the fact that the State’s brief had not been filed by the final-extension date in this case, we affirmed the order of the trial court in Tien I and dismissed the appeal.

It is clear from the history of this matter outlined above that we did not consider the merits of the trial court’s suppression order in Tien I. Rather, we affirmed the trial court’s order on the sole basis that the State’s brief was not timely filed. Thus, we did not sustain the trial court’s order “in its entirety” in order to effect a complete bar to subsequent prosecution as Appellate Rule — Criminal 3(d) contemplates. Our decision in Tien I is more akin to a dismissal of the State’s appeal as we discussed in State v. Parkman, supra.

We, therefore, grant rehearing for the purpose of holding that the State’s appeal is dismissed and that we are not affirming the trial court’s suppression order so as to bar further proceedings in this matter. The effect of our decision is to allow the State to prosecute the respondents, should it so desire, but without the availability of the suppressed statements as evidence. At the same time, we deny the State’s petition that we reverse our order of dismissal.

Glaze, J., dissents.

Tom GLAZE, Justice,

dissenting. The State asks this court to correct its earlier mistakes in dismissing this case because the Attorney General filed a late brief. The State points out that this court’s earlier opinion granted the defendants’ request to affirm the trial court’s suppression order on its merits, thereby barring the State from further prosecuting defendants. Without actually saying it had erred by using the word “affirm,” the majority court now says, “It is clear from the history of this matter outlined above that we did not consider the merits of the trial court’s suppression order in Tien 7.” In short, even when the majority court recognizes its mistake, it cannot concede the mistake in plain terms. I submit that when this court sends mixed signals in the same opinion such as “affirm” and “appeal dismissed,” nothing about that opinion can be considered clear.

However, the primary problem with the majority court’s supplemental opinion is that it fails to concede its failure to follow its rules and long-established precedent when dismissing the state’s appeal. As I previously have emphasized, this court has never dismissed a criminal appeal because an attorney failed to file a timely brief. See Glaze, J., dissenting opinions, State v. Tien, 326 Ark. 71, 72, 929 S.W.2d 155 (1996); Bowden v. State, 326 Ark. 266, 931 S.W.2d 104 (1996). This court’s unwillingness to admit its errors in this case does little to preserve the integrity of its decisions. In my sixteen years on the appellate bench, this decision is undoubtedly the worst I have seen from this court. I would reverse Tien I before its precedential value causes further harm.


author: Bradley D. Jesson, Chief Justice.

text:
    William T. FINNEGAN v. Valerie JOHNSON
    96-717
    932 S.W.2d 344
    Supreme Court of Arkansas
    Opinion delivered November 18, 1996

      Appellant, pro se.

      Ralph Patterson, for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant, William T. Finnegan, an attorney, appeals an order of the Pulaski County Circuit Court dismissing his claim for an attorney’s lien against appellee Valerie Johnson. We affirm.

Appellant claims that appellee was injured in a bar fight at a North Litde Rock hotel, and that she retained his services by entering into a contingent fee agreement whereby he would receive a certain percentage upon setdement with the hotel. After appellee hired another attorney and subsequently setded her claim against the hotel, appellant claimed he was entided to a percentage of the settlement under his contract with appellee.

The attorney’s lien statute, Ark. Code Ann. § 16-22-301 et seq. (Repl. 1994), on which appellant relies in seeking his lien, allows an attorney to obtain a lien for services based on his agreement with his client to provide for compensation in the event of settlement or compromise. The compensation is governed by contract. See § 16-22-302. This statutory lien is available to attorneys who have been dismissed without cause. Williams v. Ashley, 319 Ark. 197, 890 S.W.2d 260 (1995).

The entire case below and the principal point in this appeal concern the attorney-client agreement. While this contract is contained in the record, it is not abstracted. We have said many times that there are seven justices of the Supreme Court and one record, and it is impossible for each of the seven judges to examine the one transcript. Hardy Constr. Co. v. Arkansas State Hwy. & Transp. D., 324 Ark. 496, 922 S.W.2d 705 (1996); Winters v. Elders, 324 Ark. 246, 920 S.W.2d 833 (1996). Because appellant failed to abstract the critical document necessary for us to decide this appeal, we must affirm without reaching the merits of his argument. See Ark. Sup. Ct. R. 4-2 (b)(2).

Affirmed.

NEWBERN, J., not participating.


author: BRADLEY D. JESSON, Chief Justice. ROBERT L. Brown, Justice,

text:
    Duane RICHIE, Next Friend of Phillip Richie v. BOARD of EDUCATION of the Lead Hill School District; Mark Methvin, President
    96-521
    933 S.W.2d 375
    Supreme Court of Arkansas
    Opinion delivered November 18, 1996
    [Petition for rehearing denied December 23, 1996.]

      George B. Morton, for appellant.

      W Paul Blume, for appellee.

       Brown, J., would grant.

   BRADLEY D. JESSON, Chief Justice.

Appellant Duane Richie filed a petition for mandamus in Boone County Circuit Court on behalf of his son, Phillip Richie, to compel appellee Lead Hill School District to hear an appeal of Phillip’s three-day suspension from school. The trial court granted summary judgment in the district’s favor and denied" the petition. Because we agree that Ark. Code Ann. § 6-18-507(b)(Repl. 1993 and Supp. 1995), clearly establishes the legal right to a hearing before the school board when a student is suspended by a teacher, we hold that the trial court erred in granting summary judgment and reverse and remand.

On March 29, 1995, Phillip Richie, a sixth grader, was travel-ling to a school basketball game in a school bus being driven by Charles Archer, superintendent of the Lead Hill School District. While on the bus, Phillip asked a friend, “Did you fart?” According to Mr. Archer, Phillip immediately admitted to asking this question, which Mr. Archer viewed as obscene. The superintendent told Phillip to report to the principal’s office the following morning, at which time Phillip would receive a paddling. The next morning, Duane Richie arrived at the principal’s office with his son. After explaining what Phillip had said on the bus, Mr. Archer told Mr. Richie that Phillip would receive a paddling. When Mr. Richie complained that the punishment was too severe for the offense, Mr. Archer, in the presence of Principal Pat Bailey, explained that the alternative punishment was a three-day suspension from school. Mr. Richie would not allow his son to be paddled, and instructed Phillip to go to their vehicle. Phillip did not return to school for three days.

In his petition for mandamus, Mr. Richie claimed that he requested permission to appeal the suspension to the school board on March 30, April 13, and April 14, 1995, and that all three requests were denied by the board through Mr. Archer. The district filed a motion for summary judgment. After receiving affidavits from Mr. Archer and Ms. Bailey and briefs from both parties, the trial court granted the motion and dismissed the mandamus petition. Specifically, the trial court concluded that (1) the mode of punishment chosen by Mr. Archer, a paddling, was not appealable; (2) Mr. Richie voluntarily selected an alternative form of punishment — suspension — and in doing so forfeited his right to appeal to the school board; (3) the relief sought was moot because Phillip had served his suspension; and (4) Mr. Richie was not entitled to a hearing as a matter of law. It is from this ruling that Mr. Richie has appealed.

We first address the trial court’s ruling that Mr. Richie’s claim was moot because Phillip had already served his suspension. In Springdale Bd. of Educ., v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987), appellee Bowman, a high-school student, was suspended for receiving drugs on school grounds and sought and obtained an injunction in chancery court. The school board appealed. We rejected Bowman’s claim that the case was moot since she had already graduated, reasoning that the questions raised in the case were issues of public interest and practical importance, and were subject to repetition. Id. at 68. Because we view the right of a student to appeal to the school board a suspension from school made by a teacher as an issue of public importance and one subject to repetition, we decline to dismiss this case for mootness.

Turning to the merits, Mr. Richie claims that Phillip was entided to a hearing in front of the school board as a matter of law. Particularly, he asserts that the plain wording of Ark. Code Ann. § 6-18-507(b) specifically gives a student who is suspended from school by a teacher thé right to appeal the suspension to the school board. In response, the district asserts that Phillip was not entided to appeal his three-day suspension under the United States Supreme Court’s decision in Goss v. Lopez, 419 U.S. 565 (1974), holding that a student facing suspension is entided, at the very minimum, to some kind of notice and some kind of hearing. The district relies on the portion of the Goss decision in which the Court stopped short of requiring that hearings in connection with suspensions less than ten days must afford the student “the full panoply of procedural rights applicable to a criminal prosecution.” Bethel School Dist. No. 403 v. Frazier, 488 U.S. 675, 686 (1986).

In construing statutes, we give words their ordinary meaning and attempt to give effect to legislative intent:

The beginning point in interpreting this statute, as with all statutes, is to construe words just as they read and to give them ordinary and accepted meaning. In addition, this court adheres to the basic rule of statutory construction which is to give effect to the intent of the legislature, making use of common sense.

Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 221 (1995), quoting State v. Johnson, 317 Ark. 226, 876 S.W.2d 577, 579 (1994) (other citations omitted).

The statute at issue, Ark. Code Ann. § 6-18-507(b), provides in pertinent part:

(b) The board of directors may authorize the teacher to suspend any pupils, subject to appeal to the board.

(Emphasis added.) The tide to the predecessor of this provision, Ark. Stat. Ann. § 80-1516 (Repl. 1980) is “Suspension of pupils — Causes — Right to appeal” (emphasis added).

While the United States Supreme Court has oudined in Goss v. Lopez what minimum due process is required in cases involving school suspensions and expulsions, some states have accorded greater substantive and procedural due process rights than the minima that are mandated by the Fourteenth Amendment. William D. Valente, Education Law Public and Private, § 16.91 at 567 (1985 and Supp. 1995). When reading § 6-18-507(b), it is clear that our legislature has afforded greater procedural due process protections to students who have been suspended by teachers. Section 6-18-507(b) gives the suspended student the right to a hearing before the school board. There is no qualification in the statute indicating that it only applies to suspensions greater than ten days, and we cannot defy the plain meaning of this provision by inserting such a restriction. The legislature has amended § 6-18-507 twice since Goss v. Lopez was decided, and has chosen not to revise or remove this subsection. See Act 567 of 1995; Act 441 of 1979. We have repeatedly held that, where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Office of Child Support Enforcement v. Harnage, supra; Arkansas Dep’t of Human Serv. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993). The clear and definite meaning of § 6-18-507(b) is that a student who is suspended by a teacher has the right to appeal the suspension to the school board.

The dissent cites Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994), in support of its position that Ark. Code Ann. § 6-18-502(c) (Supp. 1995), which generally directs the Arkansas Department of Education to establish school-district student-discipline policies, impliedly repeals § 6-18-507(b). We initially observe that this point was not raised in the parties’ briefs. In any event, the dissent’s reliance on Donoho is misplaced. In that case, we held that a subsequent, specific statute governing the timeliness of setoffs of judgments impliedly repealed two earlier provisions generally authorizing setoffs. Here, we have a specific statute governing a student’s right to appeal a suspension by a teacher to the school board. The general statute cited by the dissent simply cannot impliedly repeal this specific statute at issue. See Donoho, 318 Ark. at 639. We feel certain that, if the legislature no longer wishes to provide these heightened procedural due process protections to students who face teacher suspensions, it will amend or repeal § 6-18-507(b).

The district also asserts that, because Mr. Richie voluntarily selected suspension as an alternative form of punishment to paddling, he forfeited his right to appeal the suspension to the school board. While the trial court agreed with district’s contention, we do not.

The General Assembly has charged the Department of Education with the responsibility of establishing guidelines for the development of school-district student-discipline policies. Ark. Code Ann. § 6-18-502 (Supp. 1995). In turn, each school district is responsible for developing its own written policies in compliance with the Department’s guidelines. Ark. Code Ann. § 6-18-503 (Supp. 1995). The Lead Hill School District developed a written student-discipline policy which includes certain rules concerning conduct on its buses. Particularly, Rule 8 prohibits loud yelling and profane language. Specific disciplinary procedures for infractions of bus rules are as follows:

1. Warning, conference with student
2. Paddling
3. Suspension from bus (3 days)
4. Conference: Principal/bus driver/bus supervisor/parent Suspension from the bus

(Emphasis added.) The policy further provides that the standardized lists for disciplinary infractions will be adhered to in “alphabetical” order after each occurrence. In Mr. Archer’s affidavit, he states that “[I]t is the standard practice in the Lead Hill School District to paddle, with three (3) licks, each student who utters an obscenity or profanity, whether on a school bus or on campus.” Obviously, the standard practice that Mr. Archer articulates differs from the district’s written policy. To protect due process, the courts, in matters pertaining to a governmental entity’s observance and implementation of self-prescribed procedures, must be particularly vigilant and must hold such entities to a strict adherence to both the letter and the spirit of their own rules and regulations. Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995). In this case, the district failed to adhere to its own expressly enunciated procedures for punishing infractions of its school bus rules. Because neither alternative form of punishment offered to Phillip was authorized by the district’s own written policy, it would undermine the very purpose of procedural due process protections for us to allow the district, through violation of its own procedural guidelines, to effectively deny Phillip’s right to appeal his suspension from school.

A writ of mandamus will issue whenever the directors of a school district fail or refuse to do an act which is plainly their duty to do. Springdale Bd. of Educ. v. Bowman, supra; Maddox, et al. v. Neal, et al., 45 Ark. 121 (1885). Because § 6-18-507(b) clearly establishes the legal right to a hearing before the school board when a student is suspended by a teacher, we hold that the trial court erred in granting summary judgment in appellee’s favor and denying Mr. Richie’s petition for writ of mandamus.

Reversed and remanded.

Dudley, Glaze, and Brown, JJ. dissent.

ROBERT L. Brown, Justice,

dissenting. Although I agree that the relief sought by Phillip Richie is not moot because of the potential for recurrence, I must respectfully dissent. The practical effect of the majority opinion is to hold that any student, whether in the Lead Hill, Pine Bluff, or Littie Rock School District, has a mandated right to have appeals of suspensions heard by the school board. This is so, according to the holding, even when the suspensions are for half a day. That interpretation reaches an absurd result because I can now foresee school boards being inundated by suspension appeals. See Hensen v. Fleet Mortgage Co., 319 Ark. 491, 892 S.W.2d 250 (1995). I respectfully disagree.

The predecessor of Ark. Code Aim. § 6-18-507(b) (Supp. 1995) was enacted as part of Act 169 of 1931. Since that time, the General Assembly has directed the Arkansas Department of Education [”ADE”] to establish school district student discipline policies. 1983 Ark. Acts Ex. Session 77, 104. The Arkansas Code now reads in relevant part:

(c) The school discipline policies shall:
(3) Establish procedures for notice to students and parents of charges, hearings, and other dm process proceedings to be applicable in the enforcement and administration of such policies by the school administrator and by the school board.

Ark. Code Ann. § 6-18-502(c) (Supp. 1995)(emphasis added). In turn, the ADE, pursuant to this express authority from the General Assembly, promulgated the following provision:

Suspension: Schools may suspend students from school. A suspension is defined as dismissing the student from school for any time period not exceeding 10 days. For a suspension, the United States Supreme court in Goss v. Lopez required that a student be accorded the minimum due process requirements under the United States Constitution. Districts should only use suspension and/or expulsion when ah other alternatives fail. Districts should afford suspended students the following rights:
1. Prior to any suspension, the principal or his/her designee, shah advise the student in question of the particular misconduct of which he/she is accused, as weh as the basis for the accusation.
2. The pupil shah be given an opportunity at that time to explain his/her version of the facts to the school principal or his/her designee.
3. Written notice of suspension and the reason(s) for the suspension shah be given to the pupil.
4. Any parent, legal guardian, or person acting as a parent shah have the right to appeal to the superintendent or his/ her designee.

Arkansas Department of Education Rules and Regulations Governing Development, Review and Revision of School District Student Discipline and School Safety Policies § 6.04(B).

When reading § 6-18-502(c) together with the ADE rules, it is clear that minimal due process is achieved pursuant to Goss v. Lopez, 419 U.S. 565 (1974), which is ah that is required. Although not favored, repeal of a statute by implication may be effected when there exists “an invincible repugnancy between the former and later provisions that both cannot stand together.” Donoho v. Donoho, 318 Ark. 637, 639, 887 S.W.2d 290, 291 (1994). Furthermore, the implication must be “clear and irresistible.” Riceland Foods, Inc. v. Second Injury Fund, 289 Ark. 528, 532, 715 S.W.2d 432, 434 (1986).

Section 6-18-507(b), originally enacted in 1931, calls for appeals before the school board relating to any suspension, which is clearly repugnant to Ark. Code Ann. § 6-18-502(c) (Supp. 1995), originally enacted in 1983, which directs the ADE to promulgate appropriate procedures to satisfy due process requirements. Mandatory appeals for any and all suspensions, no matter how short the duration, goes well beyond the General Assembly’s subsequent enactment to address due process requirements and delegate rule-making authority to the ADE.

The due process afforded to Phillip Richie with respect to the three-day suspension is consistent with the ADE rules discussed above. Because the ADE rules were promulgated under a later act of the Arkansas General Assembly and because the majority’s reading of the 1931 Act leads us to an absurd and impractical result, I would affirm.

Dudley, J., joins.


author: Robert H. Dudley, Justice.

text:
    ARKANSAS STATE HIGHWAY and TRANSPORTATION DEPARTMENT v. Milton A. KIDDER and Douglas Kidder
    96-645
    933 S.W.2d 794
    Supreme Court of Arkansas
    Opinion delivered November 18, 1996

      Robert L. Wilson and Maria L. Schenetzke, for appellant.

      Hardin, Dawson & Terry, by: J. Leslie Evitts, III, for appellees.
   Robert H. Dudley, Justice.

On April 16, 1993, the Arkansas State Highway and Transportation Department notified Milton and Doug Kidder that their large, four-sided, rotating billboard located next to State Highway 22 in Fort Smith could no longer rotate or move in any way. The Kidders responded that the billboard had been rotating since 1965, and its rotation was protected under a “grandfather clause.” They requested a hearing. The hearing officer ruled that a rotating billboard was in violation of the statutes and regulations governing the maintenance of outdoor, off-premise advertising devices and ordered the Kidders to stop rotating the billboard. The Kidders appealed to circuit court on August 27, 1993, and, the same day, the circuit court stayed the ruling of the hearing officer. On November 16, 1995, the circuit court ruled that part of the hearing officer’s findings were not supported by substantial evidence and that the hearing officer’s conclusion of law was arbitrary, capricious, and erroneous. The Department appealed to this court. We hold that the hearing officer’s findings of fact were supported by substantial evidence and that his conclusion of law was neither arbitrary nor erroneous. We reverse the judgment of the circuit court and remand for orders consistent with this opinion.

I. Standard of Review

Section 25-15-212 of the Arkansas Code Annotated provides that a person who considers himself injured by a final act of an agency is entitled to a review of the action by a circuit court. Ark. Code Ann. § 25-15-212(a) & (b) (Repl. 1996). Section 25-15-212(h), in material part, provides:

(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.

Ark. Code Ann. § 25-12-215((h) (Repl. 1996). The rules governing judicial review of decisions of administrative agencies by both the circuit and appellate courts are the same. Franklin v. Arkansas Dep’t of Human Servs., 319 Ark. 468, 892 S.W.2d 262 (1995). In Franklin, we set out the standard of review as follows:

Our review is not directed toward the circuit court but toward the decision of the agency recognizing that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. If we find the administrative decision is supported by substantial evidence and is not arbitrary, capricious or characterized by an abuse of discretion, we uphold it.

Id. at 472, 892 S.W.2d at 264 (citations omitted). The opinion also sets out the manner in which this court determines whether a decision is supported by substantial evidence:

To determine whether a decision is supported by substantial evidence, we review the record to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. When reviewing the evidence, we give it its strongest probative force in favor of the agency. Appellant’s burden, then, in order to establish an absence of substantial evidence, is to show that the proof before the Department was so nearly undisputed that fair-minded persons could not reach its conclusion. The issue is not whether the evidence supports a contrary finding, but whether it supports the finding that was made.

Id. at 474-75, 892 S.W.2d at 266 (citations omitted).

II.

A. Findings of Fact

The Department’s first point on appeal is that the circuit court erred in ruling that there was no substantial evidence to support the hearing officer’s findings of fact. The point is well taken. The circuit court ruled that the hearing officer’s “determination that prior to the effective date of the [Arkansas State Highway Beautification] Act the advertising device had been an on-premise device and therefore was not subject to the requirements of the Act, is not supported by substantial evidence in the record.” The hearing officer simply did not make a finding of fact that the billboard was an on-premises device before the effective date of the State Highway Beautification Act, Ark. Code Ann. §§ 27-74-101 — 502 (Repl. 1994). Rather, the hearing officer, on practically undisputed facts, found moot the Kidders’ contention that the billboard was nonconforming and pre-existed the State Highway Beautification Act because it was undisputed that the billboard rotates and no attempt was made to obtain a permit under a grandfather clause. Moreover, a review of all of the evidence introduced at the administrative hearing reveals that all of the pertinent findings of facts were undisputed.

B. Conclusion of Law

The Department’s next point on appeal is that the circuit court erred in ruling that the hearing officer arbitrarily and erroneously concluded that the billboard was subject to the requirements of state and federal acts. This point is also well taken.

The material part of the hearing officer’s ruling is as follows:

It’s clear from a reading of the Federal law and State Regulations that many aspects of the criteria for operating outdoor advertising devices on Primary Highways in the State of Arkansas applies to both conforming and nonconforming devices alike. Devices violating those expressly prohibited aspects cannot be operated and maintained in conformance with the law. Federal law prohibits the maintenance of devices which move and the Regulations prohibit devices with more than two faces and more than one face visible from the main traveled way of the highway. As a Conclusion of Law the continued operation and maintenance of this device as a four faced rotating sign violates the provisions of the permit approval, the Regulations, and State and Federal law.

The Arkansas Highway Beautification Act, Ark. Code Ann. §§ 27-74-101 — 502 (Repl. 1994), was enacted in 1967 to bring Arkansas into conformance with the Federal Highway Beautification Act and, in part, to avoid losing substantial amounts in federal-aid highway funds. Preamble to Act 640 of 1967. The Act authorizes the Arkansas State Highway Commission to enter into agreements with the Secretary of Transportation, as provided in Title 23 of the United States Code. Ark. Code Ann. § 27-74-209.

Pursuant to the Act, the Commission entered into an agreement with the Secretary of Transportation and promulgated rules and regulations for the erection of outdoor advertising signs. See Regulations for Control of Outdoor Advertising on Arkansas Highways. The scope of the agreement in the regulations provides that the determinations set forth in the agreement do not apply to “outdoor advertising signs legally erected and maintained, in zoned and unzoned commercial and industrial areas established by this agreement, on FAP and FAI Highways prior to the date of enactment of this agreement.” Regulations for Control of Outdoor Advertising, II., p. 7 (emphasis added).

The federal regulations provide the following regarding grandfather clauses:

(c) Grandfather clause. At the option of the State, the agreement may contain a grandfather clause under which criteria relative to size, lighting, and spacing of signs in zoned and unzoned commercial and industrial areas within 660 feet of the nearest edge of the right-of-way apply only to new signs to be erected after the date specified in the agreement. Any sign lawfully in existence in a commercial or industrial area on such date may remain even though it may not comply with the size, lighting, or spacing criteria. This clause only allows an individual sign at its particular location for the duration of its normal life subject to customary maintenance. Preexisting signs covered by a grandfather clause, which do not comply with the agreement criteria have the status of nonconforming signs.

23 C.F.R. § 750.707(c) (1996). Section 750.707(d) provides in part that for a nonconforming sign to be continued and maintained, it “must have been lawful on the effective date of the State law or regulations, and must continue to be lawfully maintained.” Section 750.303(e) defines nonconforming signs as:

One which was lawfully erected, but which does not comply with the provisions of State law or State regulations passed at a later date or which later fails to comply with State law or State regulations due to changed conditions. Illegally erected or maintained signs are not nonconforming signs.

The state regulations specifically require permits for outdoor, off-premise advertising devices such as the one in issue, including devices already in existence, as of October 1, 1972. Revised Regulations for Issuance of Permits for Outdoor Advertising Devices and Signs, Section 2, p. 21. The state regulations provide two different types of permits, Class A permits for conforming devices and Class B permits for existing nonconforming devices. Revised Regulations for Issuance of Permits for Outdoor Advertising Devices and Signs, Section 3, p. 21. Permits are not required for on-premises devices. Section 6, p. 23.

Under the foregoing state and federal regulations, in order for the Kidders to continue to use the billboard in a nonconforming manner, it would have been necessary for them to maintain it lawfully. They failed to do this because they did not obtain a permit on or after October 1, 1972, as the regulations required. They did obtain a permit in 1980, but it was a Class A conforming permit with restrictions on it, one of which was that the sign not rotate or simulate movement. They did not comply with the restrictions; therefore, the sign was unlawfully maintained.

Under the federal regulations, the agreements between states and the Secretary of Transportation may contain grandfather clauses that apply to devices that do not comply with the requirements for size, lighting, and spacing, but, in the present case, the issue was not size, fighting, or spacing; rather, it was that the billboard had four sides and rotated. Additionally, the agreement between the State and the Secretary of Transportation provides in pertinent part that a sign structure may consist of two facings as long as only one facing is visible from the approaching traveled way. Each facing may contain two signs; a sign structure may not contain more than four signs. Regulations for Control of Outdoor Advertising, III. B., p. 8. The federal regulations provide that “[n]o sign may be permitted which has any animated or moving parts.” 23 C.ER. § 750.106(b)(6) (1996) (emphasis added). The undisputed evidence supports the conclusion that the advertising device in question violated the state regulations in that it had more than two faces, with more than one face being visible to the approaching traveled way. In sum, the conclusion of the hearing officer was not arbitrary and not in error.

The hearing officer’s conclusion was correct for an additional reason. The Kidders finally applied for and obtained a permit for the billboard in 1980, but it was a Class A conforming permit that provided the sign could not rotate. It is settled that one cannot accept the benefits of a permit and then challenge the conditions of the permit. See Arkansas State Highway Comm’n v. Hightower, 238 Ark. 569, 383 S.W.2d 279 (1964). In Hightower, this court said: “The plaintiff could not, after having applied for and accepted from the building inspector a permit to build a wall twelve inches thick, build one eight inches thick, and, when ordered to show cause why the permit granted should not be revoked or cancelled, for that reason plead that the provisions of the building ordinance requiring him to agree to build in accordance with the plans and specifications were illegal and void and not binding upon him.” Id. at 575-76, 383 S.W.2d at 283 (quoting James H. Dailey Estate v. City of Lincoln, 107 Neb. 151, 159, 185 N.W 332, 335 (1921)).

Reversed and remanded for proceedings consistent with this opinion.

JESSON, C.J., not participating.


author: DAVID NEWBERN, Justice.

text:
    Terry Lynn CARROLL v. STATE of Arkansas
    96-650
    932 S.W.2d 339
    Supreme Court of Arkansas
    Opinion delivered November 18, 1996

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   DAVID NEWBERN, Justice.

Terry Lynn Carroll appeals from an order of the Pulaski Circuit Court overruling his motion to transfer charges against him to the Juvenile Division of the Chancery Court. Mr. Carroll was charged with aggravated robbery and theft of property. The information accused Mr. Carroll and an accomplice of using a shotgun to take property valued in excess of $200 from the victim, Willie Chism, on May 25, 1995, when Mr. Carroll was sixteen years old.

The State opposed the transfer motion on the ground that three counts of capital murder were pending against Mr. Carroll and the crime charged here was serious and involved an act of violence.

At a hearing on the motion, Mr. Carroll presented testimony by his grandmother, who had raised him, to the effect that he had been well behaved but got “off track” with friends in junior high school. He also presented evidence of intelligence and psychological testing which apparendy had occurred in connection with the other charges pending. The essence of the reports was that Mr. Carroll was functioning at a rather low level of intelligence but was not retarded and suffered no other mental disease or defect.

The State presented testimony of a detective with the Little Rock Police Department who said Mr. Carroll admitted that he pointed a shotgun at Mr. Chism and another person, “racked the slide on the shotgun,” and demanded keys in order to steal an automobile.

Another LRPD detective testified that an investigation he conducted led to Mr. Carroll being charged with three counts of capital murder. Mr. Carroll allegedly entered a residence armed with a shotgun where he held the mother of three children at bay while accomplices killed the children.

While we do not discount Mr. Carroll’s argument that the evidence indicated he might be a prospect for rehabilitation, we cannot say the Trial Court erred in overruling his motion. The factors to be considered in ruling on such a motion are set forth in Ark. Code Ann. § 9-27-318(b) (Supp. 1995), which provides:

(b) A circuit court and a juvenile court have concurrent jurisdiction and a prosecuting attorney may charge a juvenile in either court when a case involves a juvenile:
(1) At least sixteen (16) years old when he engages in conduct that, if committed by an adult, would be any felony;
* * *
(d) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

The Trial Court is not required to give equal weight to each of the factors. Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996); Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). The serious and violent nature of an offense is a sufficient basis for denying a motion to transfer and trying a juvenile as an adult. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Holland v. State, 311 Ark. 494, 844 S.W.2d 943 (1993).

The information alone is sufficient evidence of the serious and violent nature of the crime to support an order denying the motion to transfer. Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996); Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996).

We do not reverse a decision overruling a motion to transfer, such as the one considered here, unless the decision was clearly erroneous. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). Aggravated robbery, Ark. Code Ann. § 5-12-103 (Supp. 1995), is a class Y felony, a serious offense. In the circumstances presented, including strong evidence of extreme violence, the Trial Court did not err.

Affirmed.

Roaf, J., concurs.


text:
    ST. JOSEPH’S REGIONAL HEALTH CENTER; Sisters of Mercy Health System, St. Louis, Inc.; and Randall J. Fale v. Dr. Louis R. MUNOS, M.D.
    95-1217
    934 S.W.2d 192
    Supreme Court of Arkansas
    Opinion delivered November 18, 1996

      Wright, Lindsey & Jennings, by: Edwin L. Lowther, Claire Shows Hancock, and Anna Hirai Gibson, for appellants.

      Jess L. Askew III and Grace Ann Weber, for appellee.
   DAVID NEWBERN, Justice.

Sisters of Mercy Health System, St. Louis, Inc. (“Sisters”), is a Missouri corporation that operates twelve hospitals, one of which is St. Joseph’s Regional Health Center (“St. Joseph’s”) in Hot Springs. St. Joseph’s is described as a “member” of the Sisters hospital system. We do not know all the details of the relationship between Sisters and St. Joseph’s, but we understand from pleadings and from oral argument that St. Joseph’s is an Arkansas non-profit corporation owned by Sisters. Sisters employs Mr. Randall J. Fale to act as chief executive officer and president of St. Joseph’s.

In 1989, St. Joseph’s formed a partnership with Dr. Louis R. Munos and four other physicians. The purpose of the partnership was to provide magnetic resonance imaging services at a facility operated by the partnership and known as the Hot Springs MRI Center. St. Joseph’s owns 51 percent of the partnership, and it appointed Mr. Fale, along with two others, to represent it in the partnership. Dr. Munos owns 19.8 percent of the partnership, and the other four physician partners own varying lesser amounts.

On March 8, 1989, the partnership entered a ten-year agreement with Dr. Munos to manage the MRI Center. The partnership terminated the contract in 1993. Dr. Munos sued the partnership for breach of the contract, Sisters and Mr. Fale for tortious interference with the contract, and St. Joseph’s and Mr. Fale for breach of the fiduciary duty between partners. The alleged liability of Sisters and St. Joseph’s was derivative, based upon the conduct of Mr. Fale.

The jury returned a verdict upon interrogatories and found that the partnership did not breach the contract but that Mr. Fale and Sisters interfered with the contract and that St. Joseph’s and Mr. Fale violated their fiduciary duty to Dr. Munos. The three defendants were held jointly and severally liable for damages of $100,000.

We agree with the argument of Sisters and Mr. Fale that the acts of Mr. Fale resulting in the termination of the contract were taken on behalf of St. Joseph’s rather than Sisters. Sisters’ motion for directed verdict should have been granted on this point because St. Joseph’s, through its membership in the partnership, was a party to the contract in question and could not have interfered with its own contract. We also agree with the argument of Mr. Fale and St. Joseph’s that the evidence produced at trial failed to show a breach of the fiduciary duty owed by one partner to another. The directed verdict motion of St. Joseph’s and Mr. Fale on the latter point also should have been granted.

As we reverse and dismiss the two parts of the judgment upon which the liability was based, we need not consider Dr. Munos’s cross-appeal, which concerns only the amount of damages.

The contract between the partnership and Dr. Munos provided that Dr. Munos, as an independent contractor, would “provide professional radiology and administrative services to the [MRI] Center and ... manage the provision of MRI services at the Center.” Dr. Munos agreed to “protect the confidentiality of patient records” and to “comply with all applicable federal, state and local laws and regulations relating to such records.” Although the contract was for a term of ten years, the parties agreed that it could be terminated immediately in a “duly called meeting” of St. Joseph’s and two of the four physician partners. This termination clause required that Dr. Munos receive notice of the termination, but it did not confer on him the right to be present at the “duly called meeting.”

At some point after the partnership was created, St. Joseph’s and two of the individual physician partners became involved in medical malpractice litigation. In late 1992 and early 1993, the partners began to question whether Dr. Munos was protecting the confidentiality of patient records at the MRI Center. They suspected information was being “leaked” from patients’ records for which there had been no release authorizations. The partners investigated the record-keeping practices of various departments within the St. Joseph’s system, and they focused on the MRI Center.

Gary Sammons, an attorney who represented plaintiffs in the medical malpractice actions, was a personal friend of Dr. Munos. He also rented office space from Dr. Munos in a building adjacent to the MRI Center. The partners feared that Mr. Sammons might have ascertained the identities of potential plaintiffs by reviewing information from patient records at the MRI Center. The allegation that emerged against Dr. Munos was that he had allowed Mr. Sammons into the non-public areas of the MRI Center and had possibly permitted him to view patients’ medical records without authorization.

Evidence presented at the trial showed that Mr. Fale met with Dr. Munos on February 9, 1993, and raised these concerns. Mr. Fale stressed the need for patient confidentiality and instructed Dr. Munos to confine to the public reception area anyone (especially Mr. Sammons) who was not a patient or employee and to release patient information only if the particular patient authorized the release. Dr. Munos relayed Mr. Fale’s instructions to other members of the MRI Center staff.

Nonetheless, the partners’ anxieties persisted, and Mr. Fale continued to hear allegations that the MRI Center was improperly releasing confidential information. On April 28, 1993, Mr. Fale notified Dr. Munos and the other partners that they would have the opportunity to support or refute the allegations at a meeting scheduled for May 12. In the notice, Mr. Fale stated that the allegations had not been verified.

On May 5, 1993, Dr. Munos wrote a letter denying that he or anyone else had improperly disclosed confidential information. Dr. Munos also requested, and later received, a list of some forty MRI Center patients whose records were allegedly released without authorization in connection with the malpractice litigation. Dr. Mu-nos testified that he and other MRI Center employees reviewed those patients’ files to determine if any records had been “checked out” to plaintiffs’ attorneys. Dr. Munos claimed that his investigation revealed that records of some of the listed patients had not been released and that records of others had been released but with authorization.

The May 12 partnership meeting was postponed so that the partners could continue to investigate the matter. According to Mr. Fale, none of the partners produced any evidence concerning Dr. Munos or the MRI Center, and “[n]othing happened for another couple of months.” In June 1993, however, Mr. Fale learned from Cindy Godwin, an MRI Center employee, that Mr. Sammons had been seen in private areas of the MRI Center. Around June 18, Mr. Fale sought the advice of attorney Edwin Lowther, who interviewed Ms. Godwin and Terri Cooper, another MRI Center employee, and prepared affidavits for them to sign regarding their observations of Mr. Sammons in the Center’s private areas.

The evidence concerning Mr. Sammons’s visits to the Center was disputed. The affidavits of Ms. Godwin and Ms. Cooper, and testimony they gave later at the trial of this matter, made it seem that Dr. Munos was involved in clandestine activities with Mr. Sammons at the MRI Center. To the contrary, Dr. Munos’s testimony characterized the one, and perhaps two, instances in which Mr. Sammons had been in the break room or kitchen of the MRI Center after the issue of the propriety of his visits had arisen as “chance encounters” that were totally innocent.

The upshot of the affidavits was that an “emergency meeting” of the MRI Center partners was convened by Mr. Fale to consider the concerns of the partners with respect to their suspicions about Dr. Munos. When confronted about the allegations that Mr. Sammons had twice visited the MRI Center after the warning, Dr. Munos told the partners he knew of only one visit and explained it had to do with the matter of an unpaid electric bill of an office rented by Mr. Sammons from Dr. Munos. Dr. Munos was asked to leave the meeting and did so without protest. The affidavits were presented, and the partners voted to terminate Dr. Munos’s contract without giving Dr. Munos an opportunity to present the results of his own investigation. There was no attempt to dissolve the partnership or to oust Dr. Munos as a partner or to affect in any way his interest in the partnership.

In reviewing the denial of a motion for a directed verdict, we must view the evidence in the light most favorable to the party against whom the verdict is sought and give its highest probative value, taking into account all reasonable inferences deducible from it. If there is any substantial evidence to support the verdict, we must affirm the trial court.

Arkansas Kraft v. Cottrell, 313 Ark. 465, 470, 855 S.W.2d 333 (1993) (citations omitted). Applying this standard, we agree that the Trial Court erred in denying the motions for directed verdict.

1. Tortious interference with a contract

Dr. Munos alleged that Mr. Fale, acting in the course and scope of his employment with Sisters, influenced the partners to terminate wrongfully the contract between Dr. Munos and the partnership. Dr. Munos claimed the following actions taken by Mr. Fale constituted improper “interference” with the contract: (1) asking Mr. Lowther to draft the affidavits of Ms. Godwin and Ms. Cooper; (2) concealing the existence of the affidavits from Dr. Munos; (3) calling the partnership meeting on June 22 and revealing the affidavits to the other partners; and (4) requesting Dr. Munos to leave the portion of the meeting in which the partners reviewed the affidavits and voted to terminate the contract. As we said above, the jury found Mr. Fale direcdy liable, and Sisters vicariously Hable, for interfering with the contract between Dr. Munos and the partnership.

While we have serious doubt as to whether the actions taken by Mr. Fale rise to the level of “tortious interference” in any event, we must reverse the jury’s verdict because the evidence adduced at trial fails to show that Mr. Fale was acting in the scope of his agency relationship with Sisters. In our view, the evidence shows only that Mr. Fale took the actions described above in the scope of his employment with St. Joseph’s; therefore, the issue of Sisters’ liability for interference with the contract should not have gone to the jury.

Under the doctrine of respondeat superior, an employer may be held vicariously liable for the tortious conduct of an agent if the evidence shows that such conduct was committed within the scope of the agent’s employment. National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 58, 800 S.W.2d 694 (1990). Although it is true that Sisters hired Mr. Fale and paid his salary, Mr. Fale’s employment with Sisters was solely to serve as chief executive officer and president of St. Joseph’s. Thus, while Mr. Fale was an agent of Sisters, he also was a “loaned employee,” or “borrowed servant,” of St. Joseph’s. The critical question is whether Mr. Fale, in taking the actions described above, was acting in the scope of his agency with Sisters or his agency with St. Joseph’s.

We have recognized the borrowed-servant doctrine in numerous cases. As we have said,

one who is the general servant of another may be lent or hired by his master to another for some special service, so as to become as to that service the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired.

Arkansas Nat. Gas Co. v. Miller, 105 Ark. 477, 482, 152 S.W. 147 (1912) (citation omitted). See Barton-Mansfield Co. v. Bogey, 201 Ark. 860, 147 S.W.2d 977 (1941). See also Cash v. Carter, 312 Ark. 41, 46, 847 S.W.2d 18 (1993) (“The most significant question regarding a loaned employee is which company has direction and control of the employee.”); George’s, Inc. v. Otwell, 282 Ark. 152, 154, 666 S.W.2d 406 (1984) (“In a series of cases we have held that the most significant question regarding a loaned employee is which company has direction and control of the employee.”).

The Restatement provides additional guidance on this point:

Since the question of liability is always raised because of some specific act done, the important question is not whether or not he remains the servant of the general employer as to matters generally, but whether or not, as to the act in question, he is acting in the business of and under the direction of one or the other. It is not conclusive that in practice he would be likely to obey the directions of the general employer in case of conflict of orders. The question is whether it is understood between him and his employers that he is to remain in the allegiance of the first as to a specific act, or is to be employed in the business of and subject to the direction of the temporary employer as to the details of such act. This is a question of fact in each case.

Restatement (Second) of Agency § 227 cmt. a (1958).

We agree that, “[o]rdinarily the question whether the general or special employer had the right of control and thus was the employee’s master, presents an issue of fact for the jury.” Watland v. Walton, 410 F.2d 1, 3-4 (8th Cir. 1969). However, “where all of the evidence is in one direction and there is no rational basis for reasonable minds to differ as to the status of the servant the issue is one of law for the court to resolve.” Id.

Mr. Fale testified he reported occasionally to his superior with Sisters in St. Louis. He also testified, however, that he responded to the St. Joseph’s Board of Directors. In this case, the evidence is “in one direction” that St. Joseph’s directed and controlled Mr. Fale in the narrow arena of partnership affairs. It is clear that Mr. Fale did not participate in matters affecting the partnership by virtue of his employment with Sisters. Rather, Mr. Fale was chosen by St. Joseph’s to represent its interest in the partnership, and he was able to take the actions leading to Dr. Munos’s termination because St. Joseph’s had placed him in a position to do so. All the evidence points to St. Joseph’s retaining control over Mr. Fale in this instance, and there simply is no evidence in the record that Sisters directed or controlled Mr. Fale with respect to partnership matters, including those related to the contract with Dr. Munos.

Thus, viewing the evidence in the light most favorable to Dr. Munos, we hold there was no substantial evidence supporting the jury’s finding that Mr. Fale acted, with respect to the contract between Dr. Munos and the partnership, on behalf of Sisters. We therefore reverse and dismiss the verdict against Sisters.

We also reverse and dismiss the verdict against Mr. Fale. We do so because he took the actions described above on behalf of St. Joseph’s, a party to the contract in question. It is well setded that a party to a contract, and its agents acting in the scope of their authority, cannot be held liable for interfering with the party’s own contract. See Fisher v. Jones, 311 Ark. 450, 457, 844 S.W.2d 954 (1993); Harrell v. Reynolds Metals Co., 495 So.2d 1381, 1387-1388 (Ala. 1986). See also Abruzzo v. Haller, 603 So.2d 1338, 1340 (Fla. App. 1 Dist. 1992), in which it was said that “An agent of a corporate party to a contract, acting within his capacity and scope as an agent, cannot be considered to be a separate entity outside of the contractual relationship which can tortiously interfere with that relationship.” In Hicks v. Haight, 171 Misc. 151, 11 N.Y.S.2d 912, 917 (N.Y. Sup. Ct. 1939), the Court said, “It would be anomalous indeed to hold an agent liable for tort committed within the scope of his authority, when liability does not attach to the principal for the same tort committed on his behalf and presumably for his benefit.”

The contract in this case was between the partners and Dr. Munos. Mr. Fale, acting on behalf of St. Joseph’s, stood in the shoes of one of the partners and therefore was incapable of interfering in the contract. Mr. Fale was thus entided to a directed verdict.

2. Breach ofjiduciary duty

Dr. Munos alleged that St. Joseph’s, as a partner, and Mr. Fale, as an officer of St. Joseph’s, owed and breached a fiduciary duty of loyalty and utmost good faith and fair dealing. Dr. Munos claimed the following actions taken by St. Joseph’s and Mr. Fale constituted a breach of this asserted duty: (1) terminating the contract; (2) scheming to terminate the contract in order to blame Dr. Munos for the malpractice litigation, oust him from the partnership, and increase their share of partnership profits; and (3) refusing to review evidence that supposedly rebutted the allegations against Dr. Mu-nos. As stated previously, the jury found Mr. Fale and St. Joseph’s liable on this claim.

We agree with St. Joseph’s and Mr. Fale that the evidence adduced at trial fails to show a breach of fiduciary duty. The issue of St. Joseph’s and Mr. Fale’s liability on this claim should not have gone to the jury.

Our cases have established that a partner owes a fellow partner certain fiduciary duties. “A partnership,” as we said in Boswell v. Gillet, 226 Ark. 935, 944, 295 S.W.2d 758 (1956), “is a relationship of trust and confidence and partners must observe the utmost good faith toward each other in all of their transactions from the time they begin negotiations with each other to the complete settlement of the partnership affairs.”

Not only does our common law recognize a fiduciary duty between partners, but the General Assembly, in adopting the Uniform Partnership Act, has imposed on partners the following fiduciary obligation:

Every partner must account to the partnership for any benefit and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property.

Ark. Code Ann. § 4-42-404(1) (Repl. 1996). A breach of this obligation entitles the injured partner to an accounting. Ark. Code Ann. § 4-42-405 (Repl. 1996).

We do not question the existence of a fiduciary duty between partners, and we agree that St. Joseph’s owed such a duty to Dr. Munos. However, we believe that Dr. Munos has failed to show that St. Joseph’s or Mr. Fale has breached any fiduciary obligation.

The proof showed only that Dr. Munos, a partner in the MRI Center, acquired by contract the additional status of an independent contractor who was responsible for managing the Center and providing certain services. The terms of the contract conferring this status on Dr. Munos provided that St. Joseph’s, with the consent of only two other partners, could terminate the contract. St. Joseph’s and the other partners exercised this option provided by the contract and dismissed Dr. Munos from his management position upon credible evidence that he had failed to maintain a confidential atmosphere at the MRI Center. Moreover, we are mindful that some or all of the partners might not have considered Dr. Munos’s rebuttal evidence in reaching their decision, but we point out that the contract did not require the partners to take such evidence into account before voting to terminate the contract.

Finally, there was absolutely no proof that St. Joseph’s or Mr. Fale acted out of a desire to expel Dr. Munos from the partnership or otherwise affect his status as a partner, his partnership interest, or his monthly partnership income. As the testimony established, Dr. Munos remains a partner in the MRI Center and continues to receive a monthly income based on his 19.8 percent share. Nothing in the evidence presented by either side showed a breach of the fiduciary relationship.

We have found no case in which a partner who was also an independent contractor employed by the partnership has claimed a breach of the fiduciary relationship among partners arising out of his or her treatment with respect to the employment contract. We have, however, found support for our conclusion in analogous cases from other jurisdictions.

We have placed particular reliance on a line of cases considering whether partners violate their fiduciary duty when they expel another partner from the partnership in accordance with a partnership agreement. As noted by the Texas Court of Appeals, several jurisdictions have concluded “that expulsion of a partner from a partnership cannot be in bad faith even where the partnership agreement allows for expulsion without cause and even, at times, without notice.” Bohatch v. Butler & Binion, 905 S.W.2d 597, 602 (Tex. App.—Houston [14 Dist.]1995). Such a rule is appropriate, courts have found, because “at the heart of the partnership concept is the principle that partners may choose with whom they wish to be associated.” Gelder Medical Group v. Webber, 363 N.E.2d 573, 577 (N.Y. 1977).

As a result, if the partners have “the right to expel [a fellow partner] without stating reason or cause pursuant to the partnership agreement, there [is] no breach of any fiduciary duty” on the part of the partners when they exercise that right. Holman v. Coie, 522 P.2d 515, 524 (Wash. App. 1974). See Leigh v. Crescent Square, Ltd., 608 N.E.2d 1166, 1170 (Ohio Ct. App. 1992).

The analogy to those cases is useful here. If a partner, pursuant to an agreement, may expel another partner from the partnership without breaching a fiduciary duty, then he may also dismiss a partner, pursuant to an agreement, from an independent contractor position without breaching a fiduciary duty. See Day v. Sidley & Austin, 394 F. Supp. 986, 992 (D.C. 1975), in which it was said that, “Generally, common law and statutory standards concerning relationships between partners can be overridden by an agreement reached by the parties themselves.”

Finally, we find an apt analogy in the suggestion made by the New York Court of Appeals that it is necessary “to appreciate and keep distinct the duty a corporation owes to a minority shareholder as a shareholder from any duty it might owe him as an employee.” Ingle v. Glamore Motor Sales, Inc., 535 N.E.2d 1311, 1313 (N.Y. 1989). In that case, a shareholder in a closed corporation was terminated as an at-will employee and claimed that his fellow shareholders breached their fiduciary duty by firing him. The Court of Appeals rejected the claim. The Court noted that the employment agreement allowed for his termination for any reason, and it refused to find that the shareholder was “entided by reason of his minority shareholder status to a fiduciary-rooted protection against being fired.” Id. at 1313.

St. Joseph’s owed Dr. Munos no fiduciary duty in its contractual relationship with him, and there was no evidence that the fiduciary duty owed to him as a partner was violated. Therefore, the directed-verdict motion should have been granted.

Reversed and dismissed on appeal; cross-appeal moot.