author: Robert L. Brown, Justice. James Roy, Special Justice,

text:
    Beatrice DOLPHIN v. Jimmie L. WILSON and Henrietta J. Wilson
    97-1391
    983 S.W.2d 113
    Supreme Court of Arkansas
    Opinion delivered November 12, 1998
    [Petition for rehearing denied December 17, 1998.]

      David Solomon, for appellant.

      Wilson & Valley, by: E. Dion Wilson, for appellees.
   Robert L. Brown, Justice.

This is the second appeal we have had regarding the parties’ dispute, which relates to an alleged oral contract for the sale of land. See Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997) (Wilson I). The facts surrounding the dispute are sufficiently laid out in Wilson I. In the first case, we reversed the trial court’s decree and held as follows:

When considering all the evidence, we conclude that the chancellor clearly erred in finding that there was clear and convincing evidence that an agreement existed between the parties. Under these circumstances, we hold that the Wilsons’ complaint was barred by the statute of frauds, and reverse and remand for entry of an order consistent ivith this opinion.

Wilson I, 328 Ark. at 8, 942 S.W.2d at 819-820 (emphasis ours).

A mandate was subsequendy issued by the Supreme Court Clerk after rehearing in the case had been denied, and that mandate read in pertinent part:

It is therefore ordered and decreed by the Court that the decree of said Chancery Court in this cause rendered be, and the same is hereby reversed, annulled and set aside with costs and that this cause be remanded to said Chancery Court for further proceedings to be therein had according to the principles of equity and consistent with the opinion herein delivered. (Emphasis ours.)

When the case returned to the trial court on remand, appellees Jimmie L. Wilson and Henrietta J. Wilson filed a Motion For Refund of Funds Expended wherein they claimed that appellant Beatrice Dolphin was unjustly enriched in the amounts of $13,200, which they had paid to the Farmers Home Administration for the removal of liens on the farm land, and $1,239.40, which they had paid to the United States Department of Justice for costs. They prayed that she be ordered to reimburse them in the amount of $14,439.40. Dolphin responded to the motion and asserted that the Wilsons had paid those amounts as volunteers, that the Supreme Court had decreed there was no contract that could be specifically performed, and that the trial court should enter an order placing into effect the Supreme Court mandate following Wilson I. The Wilsons replied that the expenses paid were for Dolphin’s benefit and that Dolphin’s response should be struck for lack of factual or legal support. Wilson then amended his reimbursement motion to claim relief under the equitable doctrine of quantum meruit.

Legal briefs accompanied the parties’ motion and response, and the trial court entered its order, granting Wilson judgment in the amount of $14,239.40 under the theory of unjust enrichment. The trial court relied on Townsend v. Arkansas Highway Commission, 317 Ark. 581, 879 S.W.2d 447 (1994), in finding that it had jurisdiction to hear the Wilsons’s motion. We quote the pertinent part of the trial court’s order on jurisdiction:

In Arkansas State Highway Commission v. Townsend, Townsend 1313 Ark. 702, (1993), the Arkansas Highway Commission petitioned this court for injunctive relief to have a structure removed from a right-of-way held by the Commission. This court denied the requested relief. The matter was appealed to the Arkansas Supreme Court, and the denial of injunctive relief was reversed and the case “dismissed” by the Arkansas Supreme Court. In a later proceeding filed in the same case, the Commission petitioned this court to grant it the injunctive relief that it had originally requested and felt itself entitled because of the reversal by the Arkansas Supreme Court. This court declined to act on the matter because the Arkansas Supreme Courts mandate reflected that the case had been dismissed. According to the law, as it was understood by this court at that time, a dismissal removed jurisdiction from the trial court to act for any purpose. The Supreme Court, on the second appeal of this case, Townsend v. Arkansas Highway Commission, 317 Ark. 581, (1994) Townsend II, held otherwise. To quote the Arkansas Supreme Court in that case:
“When the Arkansas State Highway Commission petitioned for an injunction subsequent to our original decision, the chancellor could have treated it as a new case rather than as continuation under the aegis of the original fihng. Under those circumstances, she would have assumed jurisdiction independendy of the mandate from this court in Townsend I.
317 Ark. at 585.
Thus, although the opinion of this court would almost certainly have been different before the Arkansas Supreme Court’s pronouncement in Townsend II, it is now of the opinion that it has the authority to render such further orders as may be necessary to fully effectuate the decision of the Arkansas Supreme Court. If this court has the authority to act where the case has been “dismissed” by the Arkansas Supreme Court, surely it may act where, as here, the case has been remanded. This court has the authority to grant such relief as may be required under the Arkansas Supreme Court’s mandate to fully and finally resolve the matter. Therefore, since the relief requested by the plaintiffs is entirely consonant with, and in no way conflicts with the Arkansas Supreme Court’s ruling, this court finds that it has jurisdiction to treat this as “a new case” within the meaning of Townsend II.

The first issue raised by Dolphin on appeal is whether the trial court exceeded its authority in hearing and deciding the unjust-enrichment claim after our opinion in Wilson I had come down and the mandate had issued. We believe that it did.

It is instructive, initially, to turn once more to our decision in Wilson I. Our opinion in that case discussed the sole issue on appeal, which concerned the existence of an oral contract to sell farm land. An unjust-enrichment claim was not pled in Wilson I; nor was relief in the form of quantum meruit requested. Moreover, the Wilsons do not contend that the unjust-enrichment claim was tried by the express or implied consent of the parties during the first trial. See Ark. R. Civ. P. 15(b). Also, the Wilsons did not make a motion in the first trial to amend the pleadings to conform to the evidence. Id. Because of this, the trial court did not consider a claim for unjust enrichment or address it as part of the decree. This being the case, the issue before us today is whether the Wilsons can raise a new cause of action after the case on appeal has been decided and when the opinion and mandate both require an order consistent with the opinion in Wilson I.

The history of the mandate rule was reviewed recently by the Third Circuit Court of Appeals. See Casey v. Planned Parenthood, 14 F.3d 848 (3d Cir. 1994). In Casey, the Third Circuit observed:

Of these rules, the most compelling is the mandate rule. This fundamental rule binds every court to honor rulings in the case by superior courts. As the Supreme Court has stated, “In its earliest days this Court consistently held that an inferior court has no power or authority to deviate from the mandate issued by an appellate court.” Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 1040, 92 L.Ed. 1403 (1948).

Casey, 14 F.3d at 856. Quoting from Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir. 1985), the Third Circuit went on to underscore the deference a trial court must give to the mandate:

A trial court must implement both the letter and spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces.

Casey, 14 F.3d at 857.

The Casey decision is in accord with the blackletter law on mandates which we garner from American Jurisprudence. See 5 Am. Jur. 2d Appellate Review, §§ 776-794 (1995). We take this opportunity to cite with approval a few of the major precepts regarding mandates:

A “mandate” is the official notice of action of the appellate court, directed to the court below, advising that court of the action taken by the appellate court, and directing the lower court to have the appellate court’s judgment duly recognized, obeyed, and executed.

5 Am. Jur. 2d, § 776.

However, the lower court is vested with jurisdiction only to the extent conferred by the appellate court’s opinion and mandate. Therefore, the question of whether the lower court followed the mandate is not simply one of whether the lower court was correct in its construction of the case, but also involves a question of the lower court’s jurisdiction.

5 Am. Jur. 2d, § 784.

If an appellate court remands with specific instructions, those instructions must be followed exacdy, to ensure that the lower court’s decision is in accord with that of the appellate court.
Where a remand limits the issues for determination, the court on remand is precluded from considering other issues, or new matters, affecting the cause. Thus, where the case is remanded for disposition of the remaining post-trial issues that were not addressed by the trial court, any issue the trial court had previously addressed may not be considered on remand. Similarly, when a case is remanded for a specific act, the entire case is not reopened, but rather the lower tribunal is only authorized to carry out the appellate court’s mandate, and the trial court may be powerless to undertake any proceedings beyond those specified.

5 Am. Jur. 2d, § 787.

Any proceedings on remand which are contrary to the directions contained in the mandate from the appellate court may be considered null and void.

5 Am. Jur. 2d, § 791.

Two cases, in particular, have touched on this issue in Arkansas. See Little Red River Levee Dist. No. 2 v. Moore, 199 Ark. 946, 137 S.W.2d 234 (1940); Felker v. McKee, 154 Ark. 106, 241 S.W. 378 (1922). In Felker, we referred to a previous appeal in that case where we overruled the trial court’s sustaining of a demurrer and reversed and remanded “with directions to overrule the demurrer, and for further proceedings to be therein had according to the principles of equity and not inconsistent with the opinion of the court.” Felker, 154 Ark. at 105, 241 S.W. at 378. On remand, the appellant sought to offer proof on the market value of certain stock and payment. The trial court refused to allow additional proof and limited its consideration to the record originally made. We affirmed the trial court’s ruling and said:

Ample opportunity was given him to fully develop his case upon all issues presented by the pleadings. To construe a reversal and remand of a cause for further proceedings, which had been submitted originally upon the merits, to mean that appellant might further develop his cause would enable him to proceed in his case by piecemeal and try it over every time he secured a reversal ad infinitum.
Had this been done, and had the court been of the opinion that appellant was entitled to further develop the case, specific directions to that effect would have been included in the mandate.

Felker, 154 Ark. at 106, 241 S.W. at 378-379.

In Little Red River Levee Dist. No. 2 v. Moore, supra, the facts were more akin to the facts in the instant case. There, we reversed the trial court, ordered specific performance of certain contracts, and remanded the case with directions to make payments on the land to effect that specific performance. On remand, a party filed an answer raising a prayer for reformation of the timber contract, which the trial court entertained. We reversed the trial court’s decision to allow a new defense to be raised after remand and said:

When it had been held that plaintiffs were entitled to the relief prayed under the contracts, which the demurrers confessed to be true, an answer was filed, after remand of the cause, in which it was alleged that the contracts, made exhibits to the complaint, did not express the true contract between the parties, and its reformation was prayed. The prayer to reform the contract comes too late. Litigation would be interminable if a party were allowed to present his defenses piecemeal, or, failing in one defense, to then interpose another. One way may not change his hold in this manner.

Little Red River Levee Dist. No. 2, 199 Ark. at 950, 137 S.W.2d at 236.

Neither of these cases is on all fours with the facts in the instant case, but they stand for the proposition that either new proof or new defenses cannot be raised after remand when they are inconsistent with this court’s first opinion and mandate. Indeed, to allow such to occur undermines the finality of this court’s decision and denies closure on matters litigated. The same principle applies to raising a new cause of action after appeal and the issuance of the mandate. It is indisputable that this court held in Wilson I that an order should be entered by the trial court consistent with our opinion. To go outside of that opinion, hear a new cause of action which had not been pled or tried, and then enter an order on the new cause of action cannot be said in any wise to be action which conforms with this court’s holding.

Clearly, the trial court’s first instincts in this appeal were to refrain from entertaining the unjust-enrichment claim. The trial court, however, relied on our opinion in Arkansas State Highway Comm’n v. Townsend, 317 Ark. 581, 879 S.W.2d 447 (1994) (Townsend II). In Townsend II, the issue was whether the trial court had authority to grant a petition for injunctive relief which was consistent with our opinion in Townsend I (Arkansas State Highway Comm’n v. Townsend, 313 Ark. 702, 858 S.W.2d 66 (1993)). In Townsend I, the Highway Department had filed a petition to enjoin Townsend from maintaining a gate, fence, and cabins on the Highway Department’s right-of-way. The chancery court denied the petition. We reversed the chancery court and dismissed the matter. After this court’s dismissal, the Highway Department sought an injunction in the trial court to enforce our opinion in Townsend I. The trial court first granted the injunction but then reversed itself and found it had no authority to grant injunctive relief because of the dismissal.

We again disagreed with the trial court in Townsend II and noted that the Townsend I mandate stated that the trial court had erred in denying the injunction “as set out in the opinion.” Townsend II, 317 Ark. at 583, 879 S.W.2d at 448. We further stated that our language in Townsend I that the trial court was wrong in denying the Highway Department an injunction was very clear. We concluded in Townsend II on de novo review that the trial court could have assumed jurisdiction of the Highway Department’s petition independently of the mandate and treated it as a new case. We affirmed the trial court’s initial grant of the petition for injunctive relief.

That situation in Townsend II, of course, is categorically different from the case before us. There, injunctive relief granted by the trial court to the Highway Department was entirely consistent with the intended result of our opinion in Townsend I. In the case at hand, the trial court’s order, which entertained a new cause of action, went far beyond the mandate and was not an order which gave effect to our opinion in Wilson I.

The trial court, further, misconstrues our opinion and the mandate in Wilson I, when it says in the order: “This court has the authority to grant such relief as may be required under the Arkansas Supreme Court’s mandate to fully and finally resolve the matter.” That is incorrect. Directions by an appellate court to the trial court as expressed by the opinion and mandate must be followed exactly and placed into execution. Indeed, the jurisdiction of the trial court on remand is limited to those directions. The trial court’s authority was circumscribed in this case, and the court was empowered only to enter an order consistent with this court’s opinion. The trial court’s order unquestionably exceeded those bounds.

We acknowledge that had this court remanded the matter for further proceedings without specific instructions as opposed to requiring the entry of an order conforming to our opinion, our holding might well be different. See generally RemandChange of Fact Findings, 19 A.L.R. 3d 502-505 (1968). But that is not the situation. We reverse the trial court’s order because it exceeded that court’s jurisdiction following this court’s opinion in Wilson I and the mandate, and we dismiss this case.

Reversed and dismissed.

Special Justice Paul Byrd joins.

Thorjsiton, J., Special Justice Kent Tester, and Special Justice James Roy dissent.

Newbern, Glaze, and Corbin, JJ., not participating.

James Roy, Special Justice,

dissenting. The only issue to be determined by this Court is whether the Chancellor’s decision in Dolphin v. Wilson II was consistent with the Supreme Court’s mandate of May 12, 1997, in regard to Dolphin v. Wilson I. Appellant Dolphin argues that the Chancery Court had no authority to act as it did in granting .a judgment to appellee for unjust enrichment in light of this Court’s opinion and mandate in the previous appeal of Dolphin v. Wilson, 328 Ark. 1, 940 S.W.2d 494 (1997). The Court there held that plaintiffs Henrietta and Jimmie Wilson had failed to come forward with clear, cogent, and convincing evidence that would take an oral contract for the sale of land out of the statute of frauds. Both the statute of frauds, ACA §4-59-101(a)(4), and the case law interpreting same require a quantum of proof to remove an oral contract from the statute of frauds to be clear, cogent, and convincing.

The mandate in Dolphin I provided:

It is therefore ordered and decreed by the Court that the decree of said Chancery Court in this cause rendered be, and the same is hereby reversed, annulled and set aside with costs and that this cause be remanded to said Chancery Court for further proceedings to be therein had according to the principles of equity and consistent with the opinion herein delivered.

The mandate did three things: (1) it remanded the case to Chancery Court, it did not dismiss the case; (2) it directed the Chancellor to act in accordance with the principles of equity; and (3) it directed the Chancellor to act consistent with the opinion in Dolphin I.

Two questions must be answered. (1) Did the Chancellor act according to the principles of equity in awarding Wilson a judgment based on unjust enrichment, and (2) was the chancellor’s opinion in Dolphin II consistent with this Court’s mandate in Dolphin I?

The answer to both of these questions is “yes.”

While the Wilsons did not pray for the relief of unjust enrichment in their original complaint, upon remand to the Chancery Court the Wilsons so amended their pleadings. The Dolphins timely objected to such amendment based on this Court’s decision in Dolphin I. However, the chancellor, in relying on this Court’s decision in Townsend v. Arkansas Highway Commission, 317 Ark. 581, 879 S.W.2d 447 (1994) (hereinafter referred to as Townsend II), held that she had authority to allow such amendment.

After the ruling by the chancellor, neither Mrs. Dolphin nor her attorney made any request to the court to submit additional proof, nor even made an additional offer of proof to in any way modify the record made in Dolphin I. In Dolphin I, all the facts were developed on which the chancellor relied in making her award on remand for unjust enrichment.

The facts as developed in Dolphin I reflect that Mrs. Dolphin and her deceased husband were several hundred thousand dollars indebted to the Farmers’ Flome Administration for agricultural loans. The United States of America filed suit against Beatrice Dolphin, surviving wife of Leroy Dolphin, deceased, in January 1994 and at that time filed a lis pendens on the property which is the subject matter of this litigation.

Mrs. Dolphin was duly served but took no action to defend herself. In fact, the judgment issued by the U. S. District Court, Eastern District of Arkansas, Eastern Division, in regard to this matter in Case No. H-C-94-5, specifically held:

That said defendant, after having waived service as reflected by the waiver filed herein, has not answered, appeared or otherwise made any defense to the plaintiffs complaint and is wholly in default. . . .

The Court thereafter entered judgment against Beatrice Dolphin:

in the amount of $136,114.34 and interest in the sum of $135,268.98 accrued to September 29, 1993, and thereafter at the daily rate of $36.2113 to the date of this judgment and thereafter at the statutory rate pursuant to 28 U.S.C. § 1961 plus advances and recoverable charges made during the pendency of this action for protection and maintenance of the subject property, and the costs of this action.

(Tr. 190 of Dolphin I.)

Mrs. Dolphin had no hope whatsoever of ever repaying or discharging the judgment. Subsequently, a notice of sale was entered on April 13, 1995, advising that the property would be sold at the courthouse steps on May 25, 1994, to satisfy the judgment.

Mrs. Dolphin admitted at the trial in Dolphin I that she had asked Wilson to take steps on her behalf. The exact nature of these steps, however, was disputed.

However, it is undisputed that Wilson interceded on behalf of Mrs. Dolphin and succeeded in stopping the sale and satisfying the indebtedness (Tr. 60-61).

Plaintiff’s Exhibits 5 and 6 show that the judgment was in fact satisfied and the sale was stopped.

The Wilsons paid the money out of their own funds as part of the agreement (Tr. 60-61, 66) but the U.S. demanded that the payment be in the Dolphins’ name (Tr. 80, 200).

There is no question that the funds to satisfy the government’s claim came from the Wilsons as reflected on the checks which appear as Plaintiff’s Exhibit 4 (Tr. 160) and part of Defendant's Exhibit 9 (Tr. d, (1) stopped the sale, and (2) satisfied the indebtedness. (Tr. 161-162)

It is also undisputed that Mrs. Dolphin never did anything once the lawsuit in foreclosure was filed to stop it. She entered her appearance, she did not contest the amount in issue, she did not contest the validity of the United States government’s claim. (Tr. 190) While she says she hired an attorney (Tr. 89), there is no evidence the attorney ever did anything but enter her appearance and consent to the judgment.

She further admitted that she took no action whatsoever to stop the sale or foreclosure (Tr. 179-180, 187, 190), she did not care if the foreclosure went through (Tr. 140-141), she was not going to the sale (Tr. 89, 97), she was not going to pay to stop the sale (Tr. 142), she was not going to pay any dollars to stop the sale or to satisfy the judgment (Tr. 88, 94, 113), and she admitted that she would have no interest in the property whatsoever after the sale (Tr. 145).

Dolphin further admitted that she had no intention of redeeming the property after the sale (Tr. 98).

It is clear that Mrs. Dolphin did not care and was going to let the property be sold and go wherever it might.

However, based on the actions of Wilson and the expenditure of his own funds, the property was not sold at a foreclosure sale. Even though Mrs. Dolphin claims she did not want Wilson to stop the sale of the property, she admitted she knew of his actions but yet never contacted Wilson, never complained to Wilson of his actions, and she never told the federal government not to accept Wilson’s checks on her behalf or to stop the foreclosure sale (Tr. 100, 122, 127, 143).

It is further undisputed that even prior to the foreclosure sale, Mrs. Dolphin did nothing to care for the property. Mrs. Dolphin admits that in 1988 she abandoned the property (Tr. 85, 101), that she had not farmed the property since 1985 (Tr. 107), that the house burned on the property on which her son had been living and that he left in 1990 (Tr. 125), that she never rented the land nor worked the land in any way after her son left (Tr. 124), and that she had not cared for the property in any way since she had left (Tr. 101) and had not seen the property in seven years until the day before the trial of Dolphin I (Tr. 101).

Her son, who testified, made similar admissions (Tr. 155).

The record reflects that only Wilson cared for and maintained the property after his conversation with Mrs. Dolphin.

The chancellor’s decision in Dolphin II that Wilson did not act as a volunteer is certainly supported by a preponderance of the evidence and is consistent with the principles of equity. The chancellor’s award to Wilson entitling him to judgment and a lien on the property if not paid in 60 days in the amount of $14,439.40 is supported by the record.

Further, even though chancery cases are tried de novo on the record, the Supreme Court does not reverse a finding of fact by the chancellor unless it is clearly erroneous. Ark. R. Civ. P. 52(a); Merchant & Planters Bank & Trust Co. v. Massey, 302 Ark. 421, 790 S.W.2d 889 (1990); and other cases too numerous to cite.

The Chancellor determined that the sole question to be reached in regard to this equitable argument was “whether the defendant would be unjusdy enriched if she were not required to repay the funds.” (Page 6 of the Chancellor’s opinion).

The law on unjust enrichment is relatively clear and is stated as follows:

The doctrine of unjust enrichment is an equitable one, providing that one party should not be allowed to benefit at the expense of another because of an innocent mistake or intentional error. Brookfield v. Rock Island Improvement Co., 205 Ark. 573, 169 S.W.2d 662 (1943). Here the chancellor correctly determined that, absent restitution being paid to Stoddard, Shannon would without justification reap the benefits of Stoddard’s labor and expense. . . . See Kistler v. Stoddard, 15 Ark. App. 8, 688 S.W.2d 746 (1985).

Therefore, whether Wilson was mistaken in his directions from Mrs. Dolphin or she intentionally deceived him into making payments with no intention of conveying the land to him, is of no matter in regard to unjust enrichment. The important thing is, would Mrs. Dolphin be unjustly enriched by being allowed to keep the property which she had done nothing to protect from foreclosure and which she had done nothing to care for, for over seven years. The answer to this is a clear and resounding yes.

A similar decision was reached in Smith v. Whitener, 42 Ark. App. 225, 856 S.W.2d 328. In Smith, the pertinent facts are that Patricia Birlson had owned property in White County which she encumbered with a mortgage in favor of Newport Federal Savings & Loan. In 1980 Birlson sold all the property but one acre to Billy Ray Whitener. In conjunction with the purchase of that property, Whitener assumed the existing mortgage. Birlson later sold the remaining one acre to Charles Burress who then sold the acre to appellant Jimmy Smith. Smith constructed a house on the property and then entered into a contract for its sale with J.J. Reeves. The title search revealed Newport’s Hen on the property and to facilitate the sale, Smith obtained a release of his one acre from the mortgage by signing a $5,000 certificate of deposit to Newport Federal Savings & Loan.

It was Smith’s understanding that the CD would be returned once the note secured by the mortgage was paid off.

Unfortunately for Smith, the note became delinquent and Newport Federal applied the CD to the indebtedness.

Smith then brought suit against Whitener claiming he was entitled to be repaid his $5,000 CD since it had been applied to Whitener’s loan which had been assumed by Whitener when he purchased the property from Birlson.

Whitener contended that he would not be unjustly enriched by his indebtedness being reduced by Smith’s $5,000.

The facts, at least in this regard, are very similar to Dolphin. Whitener was going to receive the benefit of Smith’s money and Dolphin would receive the benefit of Wilson’s money without any benefit to the person who had actually paid the money to save the property.

The Chancellor agreed with Whitener and held that Smith had failed to meet his burden of proof and dismissed his case.

On appeal, the Court of Appeals held that Whitener would be unjustly enriched since Whitener’s indebtedness was reduced by the application of the proceeds of the funds from the CD which rightfully belonged to Smith. The Court even held this to be the case in spite of the fact that Whitener apparently didn’t even know that Smith’s money had been applied to reduce his indebtedness, stating:

If one has money belonging to another, which in equity and good conscience, he ought to retain it, it can be recovered although there is no privity between the parties. Patton v. Brown Moore Lumber Co., 173 Ark. 128, 292 S.W.2d 383 (1927).
Although the enrichment was to appellee and at the expense of appellant, the enrichment need not have come directly from appellant but could come from a third source, Newport Federal.

The Court went on to state:

When one not primarily bound to pay a debt to remove an encumbrance nevertheless does so, either from his legal obligation or to protect his own secondary right, he may assert a claim of unjust enrichment against the other who is liable. See Cox v. Wooten Brothers Farms, 271 Ark. 735, 601 SD.W.2d 278 (Ark. App. 1981) Here appellant was not obligated to appellee to pay any portion of appellee’s mortgage. . . . (Emphasis added.)

Wilson was obviously not obligated to pay any portion of Dolphin’s mortgage, but did so based on their understanding or based on a mistake on his part. Under the doctrine of Kistler v. Stoddard, supra, one is entitled to benefits of the doctrine of unjust enrichment if such payment is made based on an innocent mistake. There is no evidence whatsoever that the acts of Wilson were anything other than that.

This brings us to question number two, were the Chancellor’s actions inconsistent with the opinion delivered in Dolphin P. In order to make that determination, we must look at the mandate and the Court’s opinion. As pointed out injustice Brown’s excellent opinion, the mandate governs what actions the lower court may take once a decision is made by a superior court. In this case, the case was remanded, not dismissed.

Three things need to be considered in determining whether or not the Chancellor violated the mandate: (1) the fact that the case was not dismissed but was remanded to the Chancellor; (2) that the quantum of proof required to prove specific performance is clear, cogent and convincing (see Dolphin I) and the quantum of proof required to support a claim for unjust enrichment is a mere preponderance of the evidence (see Kistler v. Stoddard, supra); and (3) is there anything in the language of Dolphin I that would preclude the request for unjust enrichment by the Wilsons upon remand.

The previous decision of this Court merely held that the Chancellor had erred in finding “that there was clear and convincing evidence that an agreement existed between the parties.

Under these circumstances, we hold that the Wilsons’ complaint was barred by the statute of frauds and reverse and remand for an Order consistent with this opinion.

In comparing the chancellor’s decision on remand and this Court’s opinion and mandate on Dolphin I, the following is evident:

1. Unjust enrichment does not require clear and convincing evidence as is required for specific performance;
2. A claim for unjust enrichment is not barred by the statute of frauds;
3. An award for unjust enrichment can be made where the facts would be insufficient to support a claim for specific performance.

Therefore, the Chancellor’s Order was not inconsistent with this Court’s decision in Dolphin I.

Therefore, the answer to question No. 2 is yes, the chancellor’s decision was consistent with this Court’s decision in Dolphin I. Dolphin I dealt with a different quantum of proof required for specific performance and did not preclude an award for unjust enrichment based on a lower standard of proof, i.e., a mere preponderance of the evidence.

The main issue that troubles this writer is what rights, if any, a party has to amend its pleadings upon remand. Justice Brown apdy cites in his opinion at page 6, Little Red Levee Dist. No. 2 v. Moore, 199 Ark. 946, 137 Ark. 106, 241 S.W.2d 234 (1940) and Felker v. McKee, 154 Ark. 106, 241 SW. 378 (1922). However, both of these cases predate both our current Rules of Civil and Appellate Procedure. Felker even dealt with the sustaining of a demurrer which is no longer even recognized under our rules of civil procedure.

The Court’s mandate in Dolphin I directed the Chancellor to act consistently with both the principles of equity as. well as consistent with the mandate. The Chancellor in this writer’s opinion has done both and her decision should be affirmed.

The Townsend case may be an anomaly and may be distinguishable. Perhaps it should be limited to its facts or overruled as suggested by Justice Glaze in Townsend III, Townsend v. Arkansas State Highway Commission, 322 Ark. 122, 907 S.W.2d 726 (1995).

Since the rule in Townsend II and Townsend III results in uncertainty and lack of finality, the Court may want to cure this problem by overruling Townsend II as suggested by Justice Glaze in his dissents in Townsend II and Townsend III. Until Townsend II is overruled or limited to its facts, it would appear the chancellor was correct in relying on Townsend in her decision. Further, even without Townsend the chancellor’s decision was not contrary to this Court’s mandate or this Court’s decision in Dolphin II. In fact, it would appear to the writer that even without Townsend, the chancellor’s acts were consistent with both the mandate and the principles of equity as ordered by this Court.

Thornton, J., joins.

Special Associate Justice Kent Tester joins.

       The abbreviation “Tr” is a reference to the transcript pages from Dolphin I.


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    Charles ALEXANDER v. STATE of Arkansas
    CR 98-1412
    983 S.W.2d 110
    Supreme Court of Arkansas
    Opinion delivered November 12, 1998

      Dana A. Reece, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant, Charles Alexander, was convicted of one count of first-degree murder for purposefully causing the death of Marquis Brown, and was sentenced to fife in prison without possibility of parole. Appellant’s sole issue on appeal is whether the trial court erred in allowing the testimony of Sharika Hubbard in light of the provisions of Ark. R. Evid. 403 and 404(B). Appellant claims that allowing this testimony also violated his substantial rights and that we should consider this violation as an exception to our plain-error rule. Finding no errors, we affirm.

Because appellant does not challenge the sufficiency of the evidence, we limit our recitation of the facts. On the night of January 9, 1997, Marquis Brown was leaving an apartment. Appellant came from around the corner and began shooting a large caliber pistol. He fired the pistol as many as nine times, killing Marquis Brown. The State contends that appellant mistakenly killed Marquis Brown, believing he was David Dean.

Appellant argues that Sharika Hubbard should not have been permitted to testify, despite his failure to make a contemporaneous objection and preserve his argument for appeal. Prior to trial, the State notified appellant that they had a witness who was going to testify that she heard appellant threaten to harm David Dean. Appellant objected on the basis that her testimony was unrelated, and after further discussion the court stated that the testimony would be admissible “with what the Court knows at this time.” During the trial, the State called Ms. Hubbard to the stand and appellant did not object to her testimony.

Appellant contends that his objection prior to trial was a continuous one. We disagree. The pretrial objection resulted in a preliminary or qualified ruling similar to that presented in Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994), where the trial court made a preliminary ruling and Byrum faded to object when the witness testified at trial. In the preliminary ruling in Byrum, the court stated, “I believe it is excited utterance based on what I have heard about it so far,” Id. at 93, 252 (emphasis in original). Here, the court’s statement that the testimony would be admissible “with what the court knows at this time” was clearly a preliminary or qualified ruling. To preserve the point for appeal, appellant was required to renew his objection when the testimony was elicited at trial. We will not review a matter on which the trial court has not ruled. In order to preserve a point for appellate review, a party must obtain a ruling from the trial court. Jordan v. State, 323 Ark. 628, 632, 917 S.W.2d 164, 166 (1996). The burden of obtaining a ruling is on the movant; matters left unresolved are waived and may not be raised on appeal. Parmley v. Moose, 317 Ark. 52, 57, 876 S.W.2d 243, 246 (1994).

Appellant next argues that the admission of Ms. Hubbard’s testimony violated his substantial rights because her testimony had not been disclosed in discovery. Appellant relies upon our decision in Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988) which addresses the duty of the State to disclose statements made by the defendant. There, we reversed and remanded a capital murder conviction based on the State’s failure to disclose oral statements made by the defendant. During the discovery phase of Bowden, the defense requested “any oral statements made by the defendant.” Id. at 178, 158. The State only turned over statements made by the defendant to law enforcement. At trial, defense counsel objected to “any conversation the witness had with [the appellant]” The objection was overruled. Id. at 180, 158.

In the present case, appellant asked for disclosure of oral statements attributed to him, but unlike counsel in Bowden, appellant faded to object to the testimony given by Ms. Hubbard during the trial. Appellant objected, prior to trial, on the basis that her testimony concerned unrelated events and the court gave a preliminary ruling. Once Ms. Hubbard was on the stand and appellant heard her testimony, he did not object on the basis that the State had not complied with the disclosure requirement and that he had not received her statements. In fact, appellant did not object on any basis during the trial, and the issue is not preserved for appeal. Parker v. State, 333 Ark. 137, 152, 968 S.W.2d 592 (1998). To preserve an argument for appeal there must be an objection in the trial court that is sufficient to apprise that court of the particular error alleged. Moore v. State, 321 Ark. 249, 252, 903 S.W.2d 154, 155 (1995). In Rank v. State, 318 Ark. 109, 883 S.W.2d 843, (1994) the prosecutor failed to disclose two witnesses during discovery. There, as here, no objection was made to the calling of the witnesses, thus the issue was not preserved for appeal. Id. at 116, 846.

Before the trial, appellant objected to Ms. Hubbard’s testimony as “unrelated.” At the trial, he did not object on any grounds, and he is precluded from raising on appeal the argument that the evidence was “prejudicial” or “misleading,” nor can he change the rationale for exclusion of the evidence to that of discovery violations. Appellant failed to make a contemporaneous objection and the issue is not preserved for appeal.

Relying on Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997), appellant argues that he did not need to object to Ms. Hubbard’s testimony because of the exception to the requirement of an objection to preserve an issue for the court’s review under Ark. R. Evid. 103(d). Our decision in Green does not support appellant’s argument. There we interpreted the language of Ark. R. Evid. 103(d) in the context of Green’s contention that an argument not raised to the trial court should be reviewed by us under Ark. Sup. Ct. R. 4-3(h) in our search of the record for reversible error in life cases. We noted in Green that Ark. R. Evid. 103(d) “provides that nothing in the rules precludes taking notice of errors affecting substantial rights though they were not brought to the attention of the trial court” and further stated that “Green’s argument could not be salvaged by the language of Rule 103(d) of the Rules of Evidence. This court has previously held that this language does not authorize review of plain error. See, e.g., Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996). This issue is barred from our review.” Id. at 469-70.

Appellant seeks to distinguish his argument from that in Green by asserting that the alleged error in this case fits into the fourth exception discussed in Wicks v. State, 270 Ark. 781, 606 S. W.2d 366 (1980), where we stated:

A fourth possible exception might arguably be asserted on the basis of Uniform Evidence Rule 103(d): “Nothing in this rule precludes taking notice of errors affecting substantial rights although they were not brought to the attention of the court.” Ark. Stat. Ann. 28-1001 (Repl. 1979) [now Ark. R. Evid. 103(d)], That statement, however, is negative, not imposing an affirmative duty, and at most applied only to a ruling which admits or excludes evidence.

Id. at 786-88, 370 (emphasis added).

We note that appellant’s preliminary objection to Ms. Hubbard’s testimony was brought to the attention of the court. The preliminary objection made to her testimony at pretrial was not based upon the same grounds that appellant now asserts, and appellant failed to make a proper, contemporaneous objection during trial. We have narrowly defined the exceptions outlined in Wicks, and we decline to expand those exceptions.

We also note that appellant filed a Motion to Supplement the Record which was denied on October, 29, 1998. Our conclusion in this matter is based solely on the briefs, record, and abstracts filed with the clerk.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3 (h). No other rulings adverse to appellant which constitute prejudicial error are found.

The trial court is affirmed.


author: Per Curiam.

text:
    Eric DAVIS v. STATE of Arkansas
    CR 98-1135
    983 S.W.2d 122
    Supreme Court of Arkansas
    Opinion delivered November 12, 1998
    C. Richard Lippard, for appellant.
    No response.
   Per Curiam.

Appellant Eric Davis filed a motion for rule on the clerk on September 15, 1998. We denied the motion because appellant’s attorney, C. Richard Lippard, did not admit fault in failing to timely file the record. See Davis v. State, 334 Ark. 427, 975 S.W.2d 97 (1998) (per curiam). We indicated, however, that we would grant the motion if appellant’s attorney filed within thirty days a motion and affidavit accepting full responsibility for not timely filing the record. Appellant’s attorney has assumed full responsibility for the error in a second motion for rule on the clerk filed on October 28, 1998.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Johnson v. State, 332 Ark. 78, 959 S.W.2d 54 (1998) (per curiam); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this per curiam will be forwarded to the Committee on Professional Conduct. See Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).


text:
    Bobby ROBERTS, et al., Petitioners v. Sharon PRIEST, Secretary of State, Respondent v. John Hoyle, et al., Intervenors
    98-1052
    979 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered November 12, 1998

      Friday, Eldredge & Clark, by: Elizabeth Robben Murray, Robert S. Shafer, and Ellen M. Owens, for petitioner.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Ass’t Att’y Gen., for respondent.

      Oscar Stilley, for intervenors.
   Per Curiam.

Presently pending in this matter is the obligation to pay the costs of the master’s fact-finding and the cost of the court reporter for transcription of the three-day hearing conducted by the master. The master, the Honorable Jack L. Lessenberry, was appointed as a fact-finder by per curiam order of this court dated September 11, 1998. See Roberts v. Priest, 334 Ark. 244, 973 S.W.2d 797 (1998). On that same date, we required petitioner’s counsel and intervenor’s counsel each to post a bond for costs in the amount of $1,000. Id. Pursuant to Ark. Sup. Ct. Rule 6-5, which deals with an original action and the costs incurred by a master’s taking of evidence, we have held that the master’s hearing and the transcript of it are for the mutual benefit of the parties. See Bailey v. McCuen, 319 Ark. 369, 370, 891 S.W.2d 797 (1995). Accordingly, we hold that the real parties in interest, the petitioner and the intervenor, shall share equally the obligation of costs. The respondent, Sharon Priest, Secretary of State, is not subject to payment of costs because of sovereign immunity. Id. at 369. After being credited with the $1,000 bond amount for their share of the $4,682.50 master’s bill and the $2,788.50 reporter’s bill, petitioner is directed to pay $2,735.50 into the registry of this court. Likewise, the intervenor is directed to pay $2,735.50 into the registry of this court.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    Timothy Wayne KEMP v. STATE of Arkansas
    CR 98-463
    983 S.W.2d 383
    Supreme Court of Arkansas
    Opinion delivered November 19, 1998

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Todd L. Newton, Asst. Att’y Gen. and Kelly K. Hill, Deputy Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

In October of 1993, police found the bodies of David Wayne Helton, Robert “Sonny” Phegley, Cheryl Phegley, and Richard “Bubba” Falls in a trailer in Jacksonville, Arkansas. All four victims had been shot, and all but Falls had been shot more than once. Another victim, Becky Mahoney, was also shot but hid in a bedroom closet during the shootings and survived. Mahoney later identified her boyfriend, Timothy Wayne Kemp, as the perpetrator. In November of 1994, Kemp was convicted of four counts of capital murder and sentenced to death on each count. On appeal, this court affirmed all four convictions but reversed three of the death sentences, leaving one intact. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996). Following a resentencing hearing in October of 1997, Kemp was again sentenced to the three death penalties. From these three sentences, Kemp brings the instant appeal challenging the admissibility of victim-impact evidence, the constitutionality of the victim-impact statute, and the applicability of the law-of-the-case doctrine. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule l-2(a)(2) (1998), because this is a criminal appeal involving the death penalty. We find no merit in appellant’s arguments, and we hold that the law-of-the-case doctrine controls this case. Accordingly, we affirm the appellant’s three death sentences.

I. Constitutionality of the victim-impact statute and the law-of-the-case doctrine

In his first trial and appeal, Kemp challenged the constitutionality of Arkansas’s victim-impact statute, Ark. Code Ann. § 5-4-602(4) (Repl. 1997). This court rejected his arguments and declared the statute constitutional. Kemp, 324 Ark. at 203-06. During Kemp’s resentencing trial, he renewed his constitutional objections to the statute, and his motion was again rejected by the trial court. Victim-impact testimony was introduced at the resentencing hearing through two relatives of victims Robert Phegley and Cheryl Phegley. In the instant appeal from the three death sentences, Kemp reargues that the victim-impact statute is void for vagueness, facially and as applied, and is substantively and procedurally unconstitutional, pursuant to the Eighth and Fourteenth Amendments to the United States Constitution and Ark. Const, art. 2, § 8.

Arkansas’s victim-impact statute provides, in part:

In determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in § 5-4-604, or any mitigating circumstances, or any other matter relevant to punishment, including, but not limited to, victim impact evidence, provided that the defendant and the state are accorded an opportunity to rebut such evidence.

Further, the publisher’s notes to section 5-4-602 indicate that the statute’s enacting clause provided: “It is the express intention of this act to permit the prosecution to introduce victim impact evidence as permitted by the United States Supreme Court in Payne v. Tennessee, 111 S. Ct. 2597, 115 L. Ed. 2d 720, [reh’g denied, 112 S. Ct. 28, 115 L. Ed. 2d 1110] (1991).”

In Payne, the United States Supreme Court overruled the per se bar to victim-impact evidence, established in Booth v. Maryland, 482 U.S. 496 (1987) and South Carolina v. Gathers, 490 U.S. 805 (1989), and upheld a state’s choice to permit the admission of victim-impact evidence and prosecutorial argument on that subject. Significantly, the Payne Court noted that:

the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.

Payne, 501 U.S. at 827.

In response to the appellant’s renewed constitutional objections to Arkansas’s victim-impact statute, the State contends that our review of these arguments is barred by the law-of-the-case doctrine. We agree. We also note that we have upheld the constitutionality of the victim-impact statute on many occasions. See Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). However, because we considered and decided in Kemp’s prior appeal the same constitutional arguments raised in the instant appeal, our prior decision with regard to those matters is binding in this subsequent appeal from the appellant’s resentencing hearing.

The doctrine of the law of the case provides that the “decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review.” Washington v. State, 278 Ark. 5, 7, 643 S.W.2d 255 (1982) (citing Mayo v. Ark. Valley Trust Co., 137 Ark. 331, 209 S.W. 276 (1919)). Although we noted in Washington that the doctrine is not inflexible and does not absolutely preclude correction of error, id. (citing Ferguson v. Green, 266 Ark. 556, 557, 587 S.W.2d 18 (1979)), we have also held that the doctrine prevents an issue raised in a prior appeal from being raised in a subsequent appeal “unless the evidence materially varies between the two appeals.” Fairchild v. Norris, 317 Ark. 166, 170, 876 S.W.2d 588 (1994). We adhere to this doctrine to preserve consistency and to avoid reconsideration of matters previously decided. Id. Significantly, the doctrine extends to issues of constitutional law. Id.; Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991).

Here, there is neither an allegation for correction of an error nor of evidence that materially varies from the prior appeal. Kemp merely reargues the merits of his former constitutional challenges to the victim-impact statute. Kemp’s argument that the statute is void for vagueness and is unconstitutional, substantively and procedurally, facially and as applied, was addressed and rejected by this court in his prior appeal. Likewise, we considered and rejected Kemp’s argument that the statute violates due process and the protection against cruel and unusual punishment because it does not give sufficient guidance to the jury and judge about how to consider such evidence. Pursuant to the law-of-the-case doctrine, we hold that the appellant’s arguments provide no basis for relief in the instant appeal.

II. Other issues

On appeal, Kemp also discusses several issues that he raised at the resentencing trial and that were adversely ruled upon by the trial court, including a ruling authorizing the appellant’s shackling at trial, overruled voir dire objections, a proffered but rejected jury instruction on mercy, a denied directed-verdict motion, and other preserved guilt-phase claims. First, Kemp acknowledges that although the trial court authorized his shackling during the trial, Kemp was never actually shackled. Given the lack of prejudice, the issue is moot. Second, Kemp raised some objections during jury voir dire but admits that he did not exhaust his peremptory challenges and announced that his jury was satisfactory. Similarly, this point is moot.

Third, Kemp contests the trial court’s rulings on several objections previously considered and rejected by this court in Kemp’s prior appeal. For example, the trial court overruled Kemp’s proposed jury instruction, based upon the authority of Duncan v. State, 291 Ark. 521, 728 S.W.2d 653 (1987), permitting the jury to show mercy. This court considered and rejected this argument in the prior appeal, and the law-of-the-case doctrine controls. See Kemp, 324 Ark. at 206-07; Fairchild, 317 Ark. at 170. Accordingly, we will not revisit this point in the instant appeal. Likewise, we decline to consider Kemp’s objection to the admission of autopsy photographs previously introduced at the original trial and whose introduction this court affirmed in his prior appeal. Notably, Kemp also concedes that the resentencing statute permits the photographs’ reintroduction. Similarly, Kemp again objects to the sufficiency of the aggravator concerning “risk of death.” We rejected this argument in the prior appeal, and the law-of-the-case doctrine controls. See id. at 208.

Fourth, Kemp moved for a mistrial based upon the prosecuting attorney’s expression of opinion during closing argument. Specifically, the appellant objected to the prosecutor’s remark: “And I think that is one of the most telling things about this defendant.” Although the trial court denied the motion for mistrial, he granted the request for an admonition to the jury. Kemp also objected to the prosecutor’s statement: “So I know that when you go back with these forms and you check . . . .” The trial court again overruled appellant’s objection.

This court has long held that a mistrial is an extreme remedy that is rarely granted and only when an error is so prejudicial that justice cannot be served by continuing the trial. A mistrial should only be ordered when the fundamental fairness of the trial itself has been manifestly affected. Kemp, 324 Ark. at 198 (citing King v. State, 317 Ark. 293, 297, 877 S.W.2d 583 (1994)). Moreover, the trial court has wide discretion in granting or denying a motion for mistrial. Except where there is an abuse of discretion or manifest prejudice to the complaining party, we will not disturb the trial court’s discretion. Id. Generally, an admonition to the jury cures a prejudicial statement unless it is so “patently inflammatory” that justice could not be served by continuing the trial. Id. Significantly, we noted in Kemp that attorneys are given leeway in closing remarks. Id. (citing Bowen v. State, 322 Ark. 483, 906 S.W.2d 681 (1995)). Here, we conclude that the prosecutor’s comments were harmless, and, in any event, the trial court’s admonition to the jury cured any prejudice.

III. Rule 4-3 (h)

In accordance with Ark. Sup. Ct. Rule 4-3(h), the record has been reviewed for adverse rulings objected to by appellant but not argued on appeal, and no reversible errors were found. In bght of the foregoing, we affirm the appellant’s three death sentences.

Affirmed.


author: W.H. “Dub” Arnold, Chief Justice. Annabelle Clinton Imber, Justice,

text:
    Winthrop Paul ROCKEFELLER v. Deborah Cluett Sage ROCKEFELLER
    94-205
    980 S.W.2d 255
    Supreme Court of Arkansas
    Opinion delivered November 19, 1998

      Pamela S. Osment and Michael L. Murphy, for appellant.

      Wright, Lindsey & Jennings, by: Alston Jennings, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

The parties were divorced on January 11, 1979. An agreement between the parties was executed on September 15, 1978, [hereinafter “Agreement”], that set out the mutual property rights of the parties and the amount of monthly payments to be made to the appellee. In the order granting the divorce, the trial court incorporated the Agreement into the decree and found that “the agreement... is fair, just and equitable and it is hereby approved, ratified and confirmed in all things set forth as the final determination of this court as to the property rights of the parties as therein defined.”

The Agreement provides, in pertinent part, that:

SECOND: A. Husband and Wife shall share the care and custody of the Children and the supervision of their upbringing. It is recognized, however, that the Husband will assume the primary obligation for the care, support, maintenance, education, security and general welfare of the Children.
%
FOURTH: A. The Husband shall pay to the Wife for her maintenance and support, and for the maintenance and support of the Children* [* “Maintenance and support of the Children,” as used in this fourth paragraph includes provision for food, lodging, entertainment and other similar expenses, but does not include the cost of education, health care, or mutually agreed security. (Footnote in the original text.)] during such times as they may be with her, the sum of $15,000 on September 20, 1978, and the sum of $20,000 on the 15th day of each month thereafter provided, however, that the Husband’s obligation to make such payments shall terminate in the event that a decree of divorce shall be awarded.
B. If a decree of divorce is awarded . . . Husband shall thereafter pay to the Wife for her maintenance and support, and for the maintenance and support of the Children during such times as they may be with her, the sum of $18,000 on the 15th day of each month . . . provided, however, that the Husband’s obligation to make such payment shall terminate in the event that the Wife shall remarry. In such event, the final payment. . . shall be on the 15th of the day of the month in which the remarriage occurs.
C. If the Wife remarries, Husband shall thereafter pay to the Wife for her maintenance and support, and for the maintenance and support of the Children the following sums:
1) [$18,000 each month for 36 months]
2) [After the ending of the 36th month,_,$9,000 each month for 24 months]
3) [After the 24th month, if any of the children are under the age of 21, $5,000 a month until the youngest child reaches 21 years old.]
F. It is the understanding of the parties that the “alimony” paid ... by the Husband to the Wife . . . will be deductible by the Husband and taxable to the Wife for Federal and State income tax purposes.”
* * * *
SIXTH: A. If a decree of divorce is awarded by a court of competent jurisdiction, to either or both of the parities the Husband shall pay to the Wife the single sum of $500,000. . . .
* * * *
SEVENTH: The parties agree that the Husband shall be entitled to claim on his federal income tax return any exemption deduction allowed for each of the Children as dependents. . . .
* ❖ * *
TENTH: . . . The parties hereto covenant and agree that in the event that either of them shall obtain a final judgment or decree of separation or divorce, it shall contain no provision for the support and maintenance of the Wife or the Children and no provision for the setdement of the property rights of the parties hereto or for the custody of the children except as provided herein. The parties agree to submit this Agreement to the court ... it being their desire that the Agreement shall be ratified, confirmed, approved and fully adopted by the court and incorporated in any such judgment or decree by reference and may be enforced by either party with the same effect as if the Agreement had been set out in full in the decree of divorce, and the terms and provisions of this agreement shall not be merged in any such judgment or decree and shall in all respects survive the same and shall not be subject to modification.
* * * *
FIFTEENTH: . . . No modification or waiver of any of the terms of this Agreement shall be valid unless in writing and signed by the parties hereto.

On March 18, 1992, appellant filed a Petition for the Termination of Alimony or, in the alternative, a Modification of the Divorce Decree. Appellant contends that the section of the Agreement that requires termination of the payments to the appellee upon her remarriage should take effect because, although she has not legally entered into a marriage, in reality she has “remarried” by living with a man, having three children with him, and holding herself out to be-married. The appellant contends that appellee is engaged in a defacto marriage and that allowing her to use financial gain to avoid the institution of marriage violates the pubfic policy of Arkansas.

The trial court denied appellant’s petition. The trial court noted that the appellee had been living with a man for over five years, had used the man’s name, had incurred joint debt, jointly leased property, and produced three children. Despite these facts, the trial court noted that Arkansas does not recognize defacto marriages and that enforcing the Agreement does not violate public policy. The court further noted that it did not have authority to terminate the obligation or to modify the Agreement by allocating the respective amounts of alimony and child support. We affirm.

The appellant appeals on three bases: (1) the trial court erred by not recognizing that the appellee is the party to a defacto marriage and thus terminating the Agreement; (2) the trial court erred by failing to find that enforcing the Agreement violates public policy; and (3) the trial court erred in denying the petition to allocate the lump-sum payment amount between child support and alimony and modify the payment amount by decreasing the amount paid for child support due to a change of circumstances. Based upon the merits of the case and for the reasons set forth below, we affirm the trial court’s decision.

I. Incorporated agreement and de facto marriage

For his first argument on appeal, the appellant contends that the trial court erred when it refused to terminate alimony because the appellee had entered into a defacto marriage. We disagree.

In Armstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660 (1970), the parties offered a written property setdement contract during a divorce proceeding that the trial court incorporated into the divorce decree. The husband later filed for a modification of alimony payments; the request was denied. Id. This court affirmed the trial court’s denial and stated: “The fact that Dr. Armstrong entered into an improvident agreement is not grounds for relief, and we think the provisions of the agreement make clear that it was a separate and independent contract entered into l between the parties.” Id. at 838-39.

There are other cases which hold that a court has no authority to modify an independent contract that is made part of a divorce decree. See, e.g., McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938 (1946); Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700 (1908). In Pryor, this court determined that a court can later modify an alimony decree entered by the court because it is a “question of fixing by decree the amount of alimony to be allowed,” while a court is prohibited from altering alimony agreed to in a property setdement contract because “it is based upon the contract of the parties [and modification] would be no less than a modification of the contract itself.” Id. at 309-10.

Appellant argues that the contract for alimony payments should be terminated by this court on the basis that there is a de facto marriage between the appellee and the man with whom she has been living and has had three children. In support of this, appellant offers two theories: (1) this court in Byrd v. Byrd, 252 Ark. 202, 478 S.W.2d 45 (1972), “widely left open the possibility that certain ‘extreme situations’ could warrant an interpretation that a former spouse has effectively remarried”; and (2) other jurisdictions acknowledge that certain situations can exist where a defacto marriage can exist.

Arkansas does not recognize de facto marriages. Furthermore, appellant’s reliance on Byrd is unfounded. Byrd involves a petition by a husband to terminate court-ordered alimony when his ex-wife was living with another man. This court upheld the trial court’s denial of the husband’s petition and concluded that “we are not prepared to say that a former husband is entitled to sit in judgment of his divorced wife’s conduct, any more than she is entitled to take such a position with respect to his conduct.” Id. at 203.

The language from Byrd that appellant cites follows the discussion by this court that a trial court could terminate alimony in the event that the wife had remarried because the wife’s care would have been assumed by the new husband. We noted that there had been instances, in other jurisdictions, where an ex-wife had assumed another man’s name and held herself out in public as his wife, and court-ordered alimony had been terminated. Id. at 203.

This language is not applicable to the situation at bar, nor is it arguable that it leaves open the possibility that an “extreme situation” could warrant the termination of a contract to provide alimony. The distinction lies in the fact that the Byrd court was examining a situation involving court-ordered alimony of which courts retain jurisdiction to modify in light of changed circumstances. See Ark. Code Ann. § 9-12-314(a) (Repl. 1995). As stated in the Pryor decision, there is a distinction between alimony awarded by court decree and alimony established by a contract, as in this case.

Appellant’s reliance upon other jurisdictions is not persuasive in that he fails to give argument why findings of other jurisdictions should apply to this state. All states have domestic-law statutes that give the factors for determining whether a marriage exists and the procedures for divorce and alimony. Another state’s case law is not persuasive, in itself, to prove that the State of Arkansas should follow it. Lacking a closely parallel statute that is being interpreted, cases of another state are totally unrelated on an issue so closely intertwined with our state statutes.

Moreover, modifying the term “remarriage” would be in effect modifying the Agreement. These agreements are generally drafted with great care and undergo much negotiation. To include such a new provision defining cohabitation as “remarriage” would effectively redraft the contract rather than enforce the contract entered into by the parties. This would effectively cure one party’s mistake in entering into an improvident agreement. See Armstrong, supra. The alimony, in instances where there is an agreement, arises from a contract right, not an equitable right through the system of justice. The moral or immoral actions of the recipient should not be relevant in any manner to the enforcement of a contract. See Pryor, supra. Accordingly, we affirm the trial court’s refusal to terminate alimony based on the theory of defacto marriage.

II. Public policy

Next, the appellant asserts that the Agreement was void as a matter of public policy because it encouraged the appellee to avoid remarriage and to have children outside of marriage. The trial court found that “the enforcement of the parties’ agreement does not violate any established public policy of the State of Arkansas,” and we agree.

It is well settled that the public policy of this state can be found in our statutes and constitution. Vincent v. Prudential Ins. Brokerage, 333 Ark. 414, 970 S.W.2d 215 (1998); Western World Ins. Co., Inc. v. Branch, 332 Ark. 427, 965 S.W.2d 760 (1998); Wal-mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991). The statute most applicable to the facts at hand, Ark. Code Ann. § 9-12-312 (Repl. 1998), provides, in relevant part, that:

(a)(1) When a decree is entered, the court shall make such orders concerning the alimony of the wife or the husband and the care of the children, if there are any, as are reasonable from the circumstances of the parties and the nature of the case. Unless otherwise ordered by the court or agreed to by the parties, the liability for alimony shall automatically cease upon the earlier of:
(A) The date of the remarriage of the person who was awarded the alimony; or
(B) The establishment of a relationship that produces a child or children and results in a court order directing another person to pay support to the recipient of alimony, which circumstances shall be considered the equivalent of remarriage; or
(C) The establishment of a relationship that produces a child or children and results in a court order directing the recipient of alimony to provide support of another person who is not a descendant by birth or adoption of the payer of the alimony, which circumstances shall be considered the equivalent of remarriage.

(Emphasis added.)

At the outset, we acknowledge that this statute is not determinative because the parties provided for alimony in an incorporated agreement, instead of a “court order.” This statute, however, is important to the resolution of this case because by using the words “[ujnless otherwise . . . agreed by the parties,” the General Assembly clearly indicated that it is permissible for a divorcing couple to contractually agree to continue alimony even after one of the parties has children with another person and is obligated to pay child support. In light of this statute, we cannot say that the Agreement in this case is contrary to Arkansas public policy.

Furthermore, we have continuously refused to allow parties to create a common-law marriage within the boundaries of this State. Brissett v. Sykes, 313 Ark. 515, 855 S.W.2d 330 (1993); Fox v. Fox, 247 Ark. 188, 444 S.W.2d 865 (1969). A de facto marriage is similar to a common-law marriage in that both are legal fictions created when the parties have not completed the formalities necessary for creating a legal marriage. See Ark. Code Ann. §§ 9-11-201 to 211 (Repl. 1988). If we recognized a defacto marriage, as the appellant suggests, we would actually be retreating from our well-established public policy of requiring a marriage license. Accordingly, we affirm the trial court’s ruling that the Agreement did not violate public policy.

III. Allocation of the support payment

Finally, the appellant contends that the trial court erred in dismissing his claim of relief, which requested that the monthly lump sum paid to appellee be apportioned into respective amounts for child support and alimony. The trial court denied this petition upon the finding that the appellant had waived such a claim and was estopped from raising the same because he had failed to do so in the 1985 hearing on the change of custody in which joint custody of the children was changed to sole custody of the appellant. The appellant continued to make the full payments until he filed a petition for termination of alimony in 1992. We, however, do not need to address the trial court’s finding of waiver because a trial court’s decision can be sustained if the ultimate decision is right even if the basis for that decision was incorrect. Stated differendy, this court may sustain the decision upon a different basis. Viswanathan v. Mississippi County Community College Bd. of Trustees, 318 Ark. 810, 887 S.W.2d 531 (1994); McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994); Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981). Further, we held in Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979), that the fact that the chancellor based his decision upon an erroneous conclusion does not preclude the appellate court’s reviewing the entire case de novo and entering such judgment as the chancery court should have entered upon the undisputed facts in the record.

Appellee contends that the contract was for alimony alone. She contends that while support of the children was mentioned briefly in the Agreement, it only referred to maintenance and support of the children at such times as they were with the appellee, which was only during visitations, and that actual child support was never awarded nor intended. Therefore, because the Agreement was only for alimony, the court had and has no authority to modify said Agreement in any way.

Obviously, an ambiguity exists in the wording of the Agreement in the present case. Therefore, because such an ambiguity exists, we are permitted to look outside of the Agreement to determine the actual intent and conduct of the parties. We held in the case of Wynn v. Sklar & Phillips Oil Co., 254 Ark. 332, 493 S.W.2d 439 (1973), that in arriving at the intention of the parties, the courts may consider and accord considerable weight to the construction of an ambiguous contract or deed by the parties themselves, evidenced by subsequent statements, acts, and conduct. Citing Organized Sec. Life Ins. Co. v. Munyon, 247 Ark. 449, 446 S.W.2d 233 (1969); Schnitt v. McKellar, 244 Ark. 377, 427 S.W.2d 202 (1968); Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S.W. 622 (1916).

Courts may also acquaint themselves with and consider circumstances existing at the time of the execution of a contract and the situation of the parties who made it. Brown v. Windland, 249 Ark. 6, 457 S.W.2d 840 (1970); Schnitt v. McKellar, supra. Further, pursuant to Ark. R. Civ. P. Rule 52, chancery cases are reviewed de novo and findings of fact will not be set aside unless “clearly erroneous.” The review can be based upon a complete and independent review of the record. See Thomas v. Thomas, 246 Ark. 1126, 443 S.W.2d 534 (1969); Keesee v. Keesee, 48 Ark. App. 113, 891 S.W.2d 70 (1995); Dodson v. Dodson, 37 Ark. App. 86, 825 S.W.2d 608 (1992); Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). Therefore, an examination of the facts in this case is required.

As previously mentioned, the Agreement called for joint custody of the children. However, in her answers to a request for admissions promulgated by the appellant, the appellee admitted that her “three children with Winthrop Rockefeller have not lived with [her] since the divorce in 1978.” Furthermore, the appellant did not decrease his monthly payments to the appellee after he was granted sole custody of the children on November 1, 1985.

The Agreement also specifically provides that the money paid to the appellee includes the maintenance of the children “when they are with her,” and maintenance is defined as “food, lodging, entertainment, and other similar expenses, but does not include the cost of education, health care, or mutually agreed security.” When asked about this contractual language, the appellant described these payments as “recreational expenses,” and not as child support.

We are also persuaded by the way the appellant treated his monthly payments to the appellee on his income-tax returns. According to the Internal Revenue Code, amounts characterized as alimony or separate maintenance are income to the payee and deductible by the payor. See 26 U.S.C. §§ 71 and 251. Conversely, child-support payments are not deductible by the payor and are not taxable income to the payee. See 26 U.S.C. § 71(b). For “IRS” purposes, support is defined as “food, shelter, clothing, medical and dental care, education and the like.” See 26 U.S.C. §§151, 152. For Arkansas income-tax purposes, neither payments for alimony nor child support are considered income for the payee nor are they deductible by the payor. See Ark. Income Tax Reg. 5.84 — 2008(2)(e).

In this case, the Agreement clearly provides that the entire amount paid by the appellant is to be treated as “alimony” for the purposes of his federal income-tax deductions and to be treated as income on the appellee’s returns. Moreover, the appellant testified, during the February 12, 1993 hearing, that he deducted the entire amount of the payments to the appellee as alimony on his income-tax returns, and that he did not treat any portion of the payments as child support. It is fair to assume that the appellant was fully aware of the consequences of classifying such payments solely as “alimony” when entering into the Agreement since he obtained the best possible tax situation for himself by doing so. Another important fact is that the appellant, through the Agreement, retained the right to claim all three children as his dependents.

Finally, the appellant admitted, during the February 12, 1993 hearing, that he continued to make the full monthly payments to the appellee even after he learned that she had two children with Mr. Padden.

These facts lead us to the inescapable conclusion that the payments were solely intended as alimony. The trial court’s denial of the petition for modification of the child-support amount could have been denied upon the basis that there was no provision for child support in the Agreement. Because the entire lump sum was obviously intended as alimony, the trial court was correct in denying the petition because it does not have the authority to modify an independent contract that is incorporated into the divorce decree.

Further, appellee’s motion seeking sanctions against the appellant for violation of the provisions of Ark. R. Civ. P. 11 is without merit and is denied.

Affirmed.

Special Justice Keith Wood joins in this opinion.

Brown and Imber, JJ., concur.

Newbern and Thornton, JJ., not participating.

Annabelle Clinton Imber, Justice,

concurring. I agree with the majority opinion, but write separately only to suggest that we may have conflicting precedent in two of the cases cited by the parties. Particularly, in Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439 (1950) and Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983), overruled on other grounds, Gould v. Gould, 308 Ark. 213, 823 SW.2d 890 (1992), we have reached different conclusions as to whether a chancery court may divide a lump-sum payment of alimony and child support that is contained in an incorporated agreement. Although the resolution of this issue is not relevant to the case at hand because we have concluded that the entire monthly payment was alimony, it is important to note that we have not been consistent on this matter.

In Bachus v. Bachus, supra, the parties entered into an agreement whereby the husband agreed to pay the wife $200 a month “as alimony and support for their four children.” The chancellor approved the agreement and incorporated it into the divorce decree. Id. Soon thereafter, the trial court reduced the lump-sum payment to $150 a month due to changed circumstances. Id. On appeal, we held that:

The court erred in reducing the amount of the monthly payments. The parties to a divorce action may agree upon the alimony or maintenance to be paid. Although the court is not bound by the litigants’ contract, nevertheless if the court approves the setdement and awards support money upon that basis there is then no power to modify the decree at a later date. McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938. If changed circumstances should subsequently render the payments inequitable the court may decline to enforce by contempt proceedings the payment of a greater sum than the circumstances warrant, thereby remitting the plaintiff to her remedy at law to collect the balance due under the contract. Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700, 129 Am. St. Rep. 102.

Id. Although we did not expressly so hold, we implied in Backus that the trial court did not have the authority to determine how much of the lump-sum payment was for child support and then reduce that portion due to changed circumstances.

Since Backus was decided in 1950, we have consistently held that an incorporated agreement regarding alimony cannot be modified by the chancery court. See, e.g., Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954 (1953); Hodge v. Hodge, 241 Ark. 712, 409 S.W.2d 316 (1966); Law v. Law, 248 Ark. 894, 455 S.W.2d 854 (1970); Powell v. Pearson, 251 Ark. 1107, 476 S.W.2d 802 (1972); Kersh v. Kersh, 254 Ark. 969, 497 S.W.2d 272 (1973); Songer v. Songer, 267 Ark. 1075, 594 S.W.2d 33 (1980). In contrast, we have firmly held that the chancery court always has jurisdiction to modify child support and custody even if the parties have entered into an incorporated agreement on the subject. See, e.g., Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409 (1953); Reiter v. Reiter, 225 Ark. 157, 278 S.W.2d 644 (1955); Johnston v. Johnston, 241 Ark. 551, 408 S.W2d 885 (1966). Specifically, in Lively, we said that “the power of a court to modify a decree for the support of minor children cannot be defeated by an agreement between the parents even when the agreement is incorporated in the decree.” Lively, supra. The issue then became whether, as in Bachus, a chancellor may segregate a lump-sum payment of alimony and child support contained in an incorporated agreement and then reduce the portion attributable to child support due to changed circumstances. Bachus seemed to indicate that such action was not permissible.

In Collie v. Collie, 242 Ark. 297, 413 S.W.2d 42 (1967), the parties entered into an agreement that required the father to pay $150 a month alimony and $7000 a year child support. The chancellor incorporated the agreement into the divorce decree. Id. Seven months later, the father sought modification of both the alimony and child-support arrangements due to changed circumstances. Id. We held that alimony could not be reduced because the agreement was incorporated, and that child support could not be reduced because the father failed to prove any changed circumstances. Id. We then said that:

It has been held by this court that when an independent, formal, written contract for alimony and child support has been approved by the chancellor and incorporated in the decree, the trial court has no jurisdiction to reduce the amount of monthly payments provided for or to modify the decree at a later date. Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439. The cited case recognized, however, that a chancery court might decline to use its powers to enforce such payments where changed circumstances rendered such inequitable, leaving the parties to their remedy at law. Later decisions have held that the court has power to modify a divorce decree as to provisions for support of minor children on the showing of changed conditions necessitating such a modification, by either increasing or reducing such amounts. Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409. Any apparent conflict in these cases is probably attributable to the fact that the alimony and child support were not provided for separately in the Bachus case, but child support was a separate item in the Lively case. See Reiter v. Reiter, 225 Ark. 157, 278 S.W.2d 644. At any rate we think that the better rule is that a chancery court may withhold enforcement of the payment of child support payments that have become inequitable by change of circumstances and the court may either reduce or increase amounts of child support payments provided for by such agreements because of changed circumstances. The interests of minors have always been the subject of jealous and watchful care by courts of chancery. Myrick v. Jacks, 33 Ark. 425; Crenshaw v. Crenshaw, 203 Ark. 1086, 160 S.W.2d 37. The public interest in the welfare of children is sufficient reason for the exercise of this power, the interests of the children being paramount. Daily v. Daily, 175 Ark. 161, 298 S.W. 1012; Penny v. Penny, 210 Ark. 16, 193 S.W.2d 811; Reiter v. Reiter, 225 Ark. 157, 278 S.W.2d 644.

Id. (emphasis added). Admittedly, the emphasized language regarding a chancellor’s authority to divide a lump-sum payment and modify child support is mere dicta because we concluded that there were no changed circumstances proved in this case that justified a reduction in child support. However, the emphasized language clearly indicates a displeasure with the Backus rule because it circumvents our well-established policy of allowing modification of child-support agreements.

We addressed the issue a final time in Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983). In Nooner, the parties entered into an agreement, which was later incorporated into the divorce decree, requiring the husband to pay “the sum of $100 per week for support of the wife and two children for the life of the husband.” Id. Because the agreement was incorporated into the decree, we held that the trial court could not modify the amount of the lump-sum payment that was attributable to alimony. However, as to the amount attributable to child support, we said:

The Court always retains jurisdiction over child support, as public policy. No matter what an independent contract states, either party has a right to ask for a change in child support. In this case where alimony and child support were not separately stated, the appellant can ask the Chancery Court to make a determination as to how much of the $100 is child support and how much is alimony.

Id. Unfortunately, we did not attempt to reconcile this case with our holding in Bachus, supra. Furthermore, since Nooner was handed down in 1983, we have not spoken again concerning whether a trial court may divide a lump-sum payment that is incorporated into the divorce decree and then modify the amount attributable to child support due to changed circumstances. Specifically, we have not yet addressed the apparent discrepancy in the Backus and Nooner holdings.

In contrast, the Court of Appeals has wrestled with this issue on several occasions. In most cases, the Court of Appeals has concluded, albeit in dicta, that the chancery court has the legal authority to determine how much of a lump-sum agreement is child support and then modify that portion of the incorporated agreement. See, e.g., Terry v. Terry, 28 Ark. App. 169, 771 S.W.2d 321 (1989); Crow v. Crow, 26 Ark. App. 37, 759 S.W.2d 570 (1988). However, in some cases the Court of Appeals concluded that child support was so intermingled with the other terms of the property agreement that it could not be factually separated from the remaining portions of the incorporated agreement. See, e.g., Reeves v. Reeves, 21 Ark. App. 177, 730 S.W.2d 904 (1987); Hunter v. Hunter, 13 Ark. App. 204, 681 S.W.2d 424 (1985); McInturff v. McInturff, 7 Ark. App. 116, 644 S.W.2d 618 (1983).

To say the least, the law in Arkansas is not well developed as to the discrete issue of whether a trial court may divide a lump-sum payment for child support and alimony that is contained in an incorporated decree and then reduce the child-support payments due to changed circumstances. However, as mentioned previously, the reconciliation of Backus and Nooner will have to wait for another day because the agreement in the case before us today only involved alimony payments.

Brown, J., joins in this concurrence.