text:
    Rita WENRICK, et al., v. Paula CRATER and Hartford Casualty Insurance Company
    93-571
    868 S.W.2d 60
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993
    [Rehearing denied February 7, 1994.]

      Frederick S. “Rick” Spencer, for appellants.

      Frye, Mickel & Boyce, P.A., by; Thomas W. Mickel, for appellees.
   Robert H. Dudley, Justice.

The insured, appellant Rita Wenrick, was injured in a car wreck which was caused by the negligence of the tortfeasor, Paula Crater. Appellant Wenrick was insured by appellee, Hartford Casualty Insurance Company, and made a claim for benefits under the personal injury protection, PIP, coverage of her policy. The insured subsequently filed suit for damages against the tortfeasor. After discovering that the insured would not protect its PIP lien and its right to reimbursement, Hartford filed a complaint in intervention, alleging a lien of $10,824.00. The insured did not respond to Hartford’s complaint in intervention. The case was tried, and the jury awarded the insured a $26,000.00 verdict against the tortfeasor. Later, in an effort to have its lien reduced to judgment, Hartford filed a motion for a default judgment on its complaint in intervention. At the hearing on the motion, the sole question was the amount of the “cost of collection” to be deducted from the insurer’s lien.

The applicable statute, Ark. Code Ann. § 23-89-207 (1987), in the material part, provides:

(a) Whenever a recipient of [PIP] benefits recovers in tort for injury,..., the insurer paying the benefits has a right of reimbursement and credit out of the tort recovery ..., less the cost of collection, as defined.
(b) All cost of collection thereof shall be assessed against insurer and insured in the proportion each benefits from the recovery.

Id. § 23-89-207 (emphasis added).

In its original order on the cost of collection the trial court found:

In the first accounting ..., there were duplicative expenses including several thousand dollars of medical bills for medical treatment; charges for no less than two economic experts; charges for medical and psychological evaluations and treatment; charges for aerial views of the accident scene; and other items which totaled $15,315.15. . . .
The second accounting ... contains numerous duplications of expense which were also duplicated in the first accounting; there are expenses which either have no explanation at all or are expenses which are not costs of collection, such as medical bills; and Plaintiffs purport to charge Hartford for telephone calls as before, an item which common sense dictates should be considered as simply office overhead which is paid for by the Plaintiffs’ attorneys’ fee. This time, the costs are $8,515.15... .

The trial court concluded the order by providing that it interpreted the statutory phrase “cost of collection” to mean reasonable costs, and that it “could find no justification for saddling Hartford with expenses incurred in trying to obtain a six-figure judgment.” The insured appeals and contends that the circuit court had no discretion to deny costs, but instead was bound to award all costs claimed by the insured. We affirm the ruling of the circuit court.

The insured’s argument actually addresses two issues. First, does the trial court have discretion to determine whether an expense is a cost of collection? The statute provides that “cost of collection” is defined, but, in fact, the statute does not contain a definition. Under these circumstances, we have said that when words have been palpably omitted from a statute, we will read the qualifying expression into the sense of the provision plainly implied by the general context of the act in order to prevent the legislative purpose from failing. Dooley v. Hot Springs Family YMCA, 301 Ark. 23, 781 S.W.2d 457 (1989); Snowden v. Thompson, 106 Ark. 617, 153 S.W. 823 (1913). In this case we have no hesitancy in giving a common sense definition to the words “cost of collection.” We construe the phrase to mean expenses such as court costs, cost of service of process, cost of witness fees, cost of depositions, cost of attorney fees, and other similar expenses. In this case the insured initially submitted a list of costs of collection that included a claim of $7,500 for treatment of the insured by a chiropractor. In oral argument, the insured’s counsel candidly admitted the claim was erroneously submitted, but, regardless of the reason for submitting the claim, the trial court ruled that an expense incurred solely for the treatment of the insured was not a cost of collection. In oral argument the insured conceded that the trial court had discretion to decide whether an item was a cost of collection. The insured does not argue that the trial court abused its discretion in determining what constituted a cost of collection, and, as a result, we do not consider whether the trial court abused its discretion in determining which of the listed expenses were costs of collection.

The second part of the issue is, once an expense has been determined to be a cost of collection, does the trial court have discretion to limit that expense to a reasonable amount? The insured contends that, once the trial court has determined an expense is a cost of collection, the trial court has no discretion whatsoever to limit the amount of that expense. For example, in oral argument, the insured contended that if the trial court ruled that the attorney’s fee was a cost of collection, and if the insured had agreed to a sixty percent contingency fee with his or her personal attorney, the trial court would not have any authority to limit the fee to a reasonable amount, but rather would be bound to award the sixty percent. The argument is without merit. Both this court and the court of appeals have construed the statute to mean that the trial court should award a reasonable fee. National Inv. Fire & Casualty Ins. Co. v. Edwards, 5 Ark. App. 42, 633 S.W.2d 41 (1982); Northwestern Nat’l Ins. v. American States Ins., 266 Ark. 432, 585 S.W.2d 925 (1979). These holdings are confirmed in another way. We have often written that in determining legislative intent we will look to comparable statutes on the same subject. See Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 798 (1988). Section 16-22-308 of the Arkansas Code Annotated is on the same subject and provides:

In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, ware, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.

Id. § 16-22-308 (Supp. 1993) (emphasis added).

Even though we hold that the trial court has some discretion in fixing the amounts of the costs of collection, it is a limited discretion. We recognize that the plaintiff’s attorney is the one solely responsible for his or her trial strategy in matters such as how many expert witnesses to call, and it would constitute an invasion of that attorney’s responsibility to give the trial court authority to second guess the reasonableness of the attorney’s strategy. However, in this case, the insured does not argue that the trial court abused its discretion, and we need not delve further into the matter. Here, the sole contention is that the trial court had no authority whatsoever to determine the reasonableness of the costs, and that argument is without merit.

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Veronica CAMPBELL by Next Friend P. Chapman v. Shirley BARD, M.D.
    93-465
    868 S.W.2d 62
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993

      W. Frank Morledge, P.A., for appellant.

      Womack, Landis, Phelps McNeill & McDaniel, by: Paul D. McNeill, for appellee.
   Steele Hays, Justice.

This is a medical malpractice case. Patricia Campbell sued Dr. Shirley Bard on behalf of herself and her ten-year-old daughter, Veronica. Mrs. Campbell claimed Dr. Bard treated Veronica for chronic constipation when in fact she was suffering from colitis, alleging a failure to properly test, diagnose, and treat.

After the issues were joined Dr. Bard moved for summary judgment with two affidavits- her own and that of another physician. It thus developed that Dr. Bard sought to impute liability to an emergency room physician employed by a hospital represented by counsel for Mrs. Campbell, posing a conflict. Counsel for Mrs. Campbell filed a response to the motion for summary judgment asserting that the supporting affidavits were conclusory. Counsel also moved for leave to withdraw as attorney for Mrs. Campbell. The motion to withdraw was granted and later the motion for summary judgment was granted.

Mrs. Campbell appeals from the summary judgment on two points: it was error to grant summary judgment without first holding a hearing and Dr. Bard’s supporting affidavits were conclusory. As we find merit in the first point, we do not reach the second.

Rule 56(b) of the Ark. R. Civ. P. provides that a party against whom a claim is asserted may move at any time for a summary judgment. Rule 56(c) provides in part:

The motion shall be served at least ten days before the time fixed for the hearing. The adverse party, prior to the day of the hearing, may serve opposing affidavits.

While the rule plainly intimates that the opposing party is entitled to ten days notice before a ruling on a motion for summary judgment, we have hesitated to formalize that interpretation of the rule. In Ragar v. Hooper, 298 Ark. 353, 767 S.W.2d 521 (1989), we said:

We do not address the appellant’s argument that Rule 56 requires ten days notice of an intent by the trial court to rule on a motion for summary judgment.

D. Newbern, Arkansas Civil Practice and Procedure § 26-7 2d Ed. (1993) (Summary Judgment Procedure), gives this analysis:

The rule [56] contemplates notice of the motion and says it shall be served not less than 10 days before “the hearing.” While in most cases service of notice and a hearing will be required, they are not absolutely necessary, and if failure to provide them results in no prejudice to the party against whom summary judgment was entered, it will not be reversed.

Nor have the federal courts interpreted the identical language of FRCP Rule 56 with uniformity:

Even though FRCP 56(c) and FRCP 56(d) both make reference to a hearing on the motion for summary judgment, there is a division of authority among the courts on whether a motion for summary judgment may be granted without affording a hearing to the adverse party. While there are cases indicating that it is normally appropriate to have oral argument on a motion for summary judgment, and it has been held that a District Court errs in giving effect to a local rule in such a manner as to preclude oral argument on motions for summary judgment, there is considerable authority that FRCP 56 does not require a hearing, in the sense of oral argument or testimony by witnesses, or at least that oral argument may be avoided in appropriate circumstances. The fact that there is no oral hearing before a motion is granted does not necessarily mean that the party against whom the motion is granted has been denied due process. Courts not requiring a hearing have interpreted FRCP 56(c) as contemplating 10 days’ advance notice to the adverse party that the matter will be heard and taken under advisement as of a certain day, and that, if the responding party has had an opportunity to prepare and submit affidavits, memoranda, and other materials for the court to consider when ruling on the motion, then he has been “heard” within the meaning of FRCP 56. Alternatively, under this view, the District Court may conduct an informal conference in chambers on a summary judgment motion instead of holding a formal evidentiary hearing.

28 Federal Procedure § 62:579 (1984).

While we remain resistant to a rigid requirement that a hearing be held, we believe that in some situations, particularly the one before us, it is inappropriate to order summary judgment without notice to the responding party that the trial court is ready to act on the matter. Certainly the wording of paragraph (c) gives respondents the right to assume they may submit opposing affidavits up until “the day of the hearing.” In this case, however, we need look no farther than the fact that counsel had been permitted to withdraw by court order and new counsel had not yet entered the case. We deem that fact sufficient to conclude that it was error for the trial court to act on the pending motion for summary judgment while Mrs. Campbell lacked representation without adequate notice that the court was about to do so.

Reversed and remanded for further proceedings.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I agree with the result reached in this case but would reverse on the basis that Dr. Bard’s affidavits are merely conclusory and, thus, material issues of fact remain for resolution at trial.


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

text:
    Rodney CHAMBERS, Executor of the Estate of Mac Childs, Deceased v. Venita MANNING, et ux.
    93-491
    868 S.W.2d 64
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993

      Will Stocks, for appellant.

      Claudell Woods, for appellees.
   David Newbern, Justice.

Rodney Chambers, executor of the estate of Mac Childs appeals from a Chancellor’s ruling involving a real estate contract between Mr. Childs and Venita Manning and her husband James Manning. Mr. Chambers claims the Chancellor erred by imposing a 6% interest rate, pursuant to Article 19, § 13, of the Arkansas. Constitution, on a contract that contained a readily ascertainable interest rate. Mr. Chambers also claims the Chancellor erred by reforming the agreement, which he contends was a lease-purchase contract, into a sale and mortgage and by incorrectly imposing post-judgment interest pursuant to Ark. Code Ann. § 16-65-114(a) (1987). With respect to Mr. Childs’ first two arguments, we find no error; however, we remand this case for a proper determination of post-judgment interest.

In late 1987, James and Venita Manning approached Mac Childs about purchasing a home Mr. Childs owned in Magnolia. Mr. Childs told the Mannings he was willing to sell for $20,000. The Mannings explained they could only afford to pay $160 per month.

After some discussion, Mr. Childs prepared a “memo” for the Mannings dated November 14, 1987. The memo stated Mr. Childs would sell the house for $20,000, with a $1,000 down payment. The $19,000 balance would be paid at a rate of $160 per month for twenty-four months. The monthly payments would then increase to approximately $225 per month until the balance was paid in full. The memo stated the interest rate charged would be the interest rate a bank charged Mr. Childs to finance the outstanding balance. Mr. Childs added that he currently had a commitment of 10.25% for one year. The memo further stated the Mannings would be responsible for insurance and taxes, and the agreement was a “rental-purchase” agreement.

On December 12, 1987, the Mannings presented Mr. Childs with the $1,000 down payment. Mr. Childs prepared a handwritten document that essentially restated his November memo. This document stated that payments of $160 per month would begin on February 1, 1988, and would increase to $200 per month in two years. It additionally stated “interest rate is to be the amount seller has to pay bank for financing.” This document was signed by Mac Childs but not by Mr. or Ms. Manning.

The Mannings moved into the home and made their first $160 payment on February 5, 1988. Their next payment, on March 24, 1988, was for $40. For the next two years, the Mannings’ payments were sporadic.

The Mannings subsequently asked Mr. Childs about purchasing a vacant lot adjacent to the home. Mr. Childs stated that he would sell the lot for $3,000 which would be added to the balance of the Mannings’ debt.

Both parties grew frustrated with their agreement. The Mannings, believing they were purchasing the home, made frequent requests for a deed. Mr. Childs grew impatient with the Mannings’ arrears in payments.

In 1990 the Mannings divorced. Ms. Manning requested that Mr. Childs remove Mr. Manning from the agreement. Mr. Childs agreed to re-negotiate the sale of the home with Ms. Manning. In a letter, he stated the new purchase price would be the balance currently owed from the original agreement. Mr. Childs calculated it to be approximately $26,000. Additionally, he stated the new interest rate would be 11%.

In October, 1991, the Mannings sued to enforce the original agreement which, including the sale of the lot next to that on which the house was located, totalled $22,000, plus interest. The complaint stated the Mannings intended to learn the actual interest rate charged through discovery, but should that be impossible, 6% should be imposed by the Chancellor.

Mr. Childs answered and filed a counterclaim seeking a vendor’s lien foreclosure for the balance of $27,546.98; or, in the alternative, enforcement of the rental agreement and payment of unpaid rent in the amount of $4,177.40. The counterclaim stated the figures were based on an interest rate of 10.5%, accruing from December of 1987.

At trial both parties stated they were still willing to perform the agreement. Mr. Childs testified he had mortgaged the home with an interest rate of 10.5% from December, 1987, until March, 1991. At that time he refinanced the house for 9.5%. Mr. Childs presented a payment history from the first mortgage which corroborated that portion of his testimony. Mr. Childs also presented a statement prepared by an accountant, but based on information given by Mr. Childs to the accountant, to show the payment schedule for the home based on these interest rates. No other evidence was presented to verify the 9.5% mortgage in 1991.

Mr. Childs testified that some time after the original agreement, he agreed to sell the adjacent vacant lot to the Mannings for $3,000. He also testified it was understood the $3,000 would be “added back” to the Mannings’ unpaid balance from the original contract date.

The Mannings testified they never knew the actual interest rate they were being charged. They agreed that they purchased the vacant lot for $3,000, but neither could remember exactly when this took place. Neither of the Mannings remembered being told the price of the lot would be “added back” to their unpaid balance. No written agreement for the sale of the lot was introduced by either side.

The Chancellor issued a letter opinion on September 11,1992. He stated that an agreement existed between the parties to purchase the home for $20,000, with $1,000 down and Mr. Childs to finance the balance. The opinion stated the remainder of the agreement was unclear.

The Chancellor found that no written contract was signed by the parties. He concluded, however, that the statute of frauds did not apply because it was not affirmatively pleaded by either party and the partial performance of the parties allowed enforcement of the agreement.

Additionally the opinion stated that an interest rate could not be determined for the agreement. The Chancellor, therefore, imposed a 6% interest rate pursuant to Ark. Const, art. 19, §13(d)(i).

Using that rate, the Chancellor determined the Mannings owed Mr. Childs $19,881.46. This balance included taxes and insurance paid by Mr. Childs, and $3,000 for the vacant lot. The price of the lot was added to the balance as of January 1, 1989, rather than “added back” to the original date of the agreement.

The Chancellor’s ruling allowed the parties 60 days to execute a promissory note secured by a mortgage on the house. The note would be for $19,881.46 at a prevailing interest rate.

In the alternative, the Chancellor stated the Mannings could pay the balance within 60 days, accruing interest at a rate of 6% from the date of his ruling.

1. Final order

A Chancellor’s order must be final to be appealable. Ark. R. App. R 2(a)(1). The requirement is jurisdictional. Even if the parties to an appeal do not address this issue, it is our duty to determine whether our jurisdiction is proper. Alberty v. Wideman, 312 Ark. 434, 850 S.W.2d 314 (1993); Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988). Neither party has raised the issue, but it was discussed in oral argument and we choose to discuss it here.

After the Chancellor determined the balance the Mannings owed Mr. Childs, his ruling provided for alternative resolutions, recognizing that both parties were willing to consummate the transaction. Either resolution was to take place within 60 days from the Chancellor’s ruling. Mr. Childs, who has since died and been replaced as a party to the appeal by his executor, appealed the ruling before the expiration of the 60-day period. The record does not indicate whether either party attempted to comply with the parts of the Chancellor’s ruling which went beyond the determination of the debt due.

The final order question was analyzed at length in Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967). While the Thomas case was decided based on prior Arkansas statutory law, we have relied on its authority in several cases since promulgating Ark. R. App. P. 2 which now governs the issue of finality. See Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991)(Newbern, J., dissenting); Estate of Hastings v. Planters and Stockmen Bank, 296 Ark. 409, 757 S.W.2d 546 (1988); Mueller v. Killam, supra. In the Thomas case we stated that a final judgment is one that “finally adjudicates the rights of the parties, putting it beyond the power of the court which made it to place the parties in their original positions [citation omitted]. It must be such a final determination as may be enforced by execution or in some other appropriate manner [citation omitted] ”

Applying this analysis to this case, we hold the Chancellor’s ruling is final for purposes of appeal. Unlike the Mueller case, the ruling of the Trial Court now before us addressed every issue presented by the parties, reserving no issues for latter determination. Unlike the Estate of Hastings case, this ruling also determined the specific dollar amount the Mannings owed Mr. Childs. Unlike Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992), cited in the dissenting opinion, the Trial Court’s order in this case did not refer to the possibility of any further hearing or judicial intervention subsequent to the judgment.

Although the parties were given a 60-day period to work out their apparent desire to have a sale and purchase of the property in question, we have no doubt that, in the absence of the taking of the prescribed steps to that end, the decree would have been enforceable by execution for the amount determined to be owed by the Mannings to Mr. Childs. The ruling was thus final in accordance with Ark. R. App. R 2(a).

2. Article 19, § 13, and reformation

The Chancellor determined that Mac Childs entered an agreement to sell a home to the Mannings. However the Chancellor further determined that the interest rate the parties agreed to was “vague and unclear.” For this reason the Chancellor applied Ark. Const, art. 19, § 13(d)(i), which imposes a six percent interest rate on contracts in which no interest rate has been established. Mr. Chambers contends the interest rate the parties agreed to was readily ascertainable from the contract and the Chancellor erred in imposing the six percent rate.

Mr. Childs presented the Mannings with two documents concerning this transaction. Each stated the interest rate would be the amount a bank charged Mr. Childs to finance a loan to him on the home. The first document stated Mr. Childs believed that rate was 10.25%. Mr. Childs’ answer to the Mannings’ complaint stated that it was “11% or higher.” His counterclaim stated the rate was 10.5%.

At trial, Mr. Childs presented a bank statement that showed he had mortgaged the home from December, 1987, until March, 1991 at a rate of 10.5%. Mr. Childs testified that he then refinanced the home for an interest rate of 9.5%. The only evidence Mr. Childs presented to support his testimony was an amortization schedule prepared by Mr. Childs’ accountant. That schedule showed what the Mannings’ payments and balance should have been applying the 10.5% and 9.5% interest rates.

A Chancellor’s findings of fact are reviewed de novo, and will not be set aside unless they are clearly erroneous. Ark. R. Civ. P. 52(a); Guaranty Nat’l Ins. v. Denver Roller, Inc., 313 Ark. 128, 854 S.W.2d 312 (1993). Mr. Childs’ presentation to the Chancellor left much confusion as to what the actual interest rate was. It is, however, also clear that the parties agreed how the interest rate was to be calculated.

While Mr. Childs appears to have presented strong evidence that his original mortgage was 10.5%, the Chancellor was not obligated to accept Mr. Childs’ testimony with respect to his 9.5% mortgage. As the Chancellor could not calculate the interest rate charged throughout the entire agreement, we cannot say it was clearly erroneous to find that no interest rate had been established.

We affirm the Chancellor’s decision to reform the parties’ agreement and to impose a 6% interest rate pursuant to Article 19, § 13(d)(i). While the decree might be called a “reformation,” its effect did no more than establish the debt owed and give the parties themselves a chance to “re-form” their agreement. A Chancellor has broad power in fashioning a remedy, limited only to the extent that it be reasonable and justified by the proof. Smith v. Eastgate Properties, Inc., 312 Ark. 355, 849 S. W.2d 504 (1993). Under these circumstances, the Chancellor’s ruling fashioning this agreement as a sale, and not a lease-purchase agreement was very reasonable. As the correct interest rate could not necessarily be calculated, the Chancellor’s decision to impose the Constitutional rate was justified.

3. Post-judgment interest

Mr. Childs finally contends the Chancellor erred with respect to post-judgment interest. The Chancellor’s ruling provided:

Within sixty (60) days of this date plaintiffs shall execute and deliver to defendant their Promissory Note, secured by a mortgage on the property at an interest rate and for a term consistent with the prevailing rate and terms offered....
In lieu of the above, plaintiffs may, within sixty (60) days from this date, pay the balance owed the defendant plus interest accrued from September 10, 1992 at the rate of 6% per annum.

The ruling also provided that, should the plaintiffs execute a promissory note, it would be in the amount of the balance owed to Mr. Childs.

Either of these alternatives had to be in effect within 60 days. However, only the latter provided for interest to accrue during this period. Post-judgment interest is governed by Ark. Code Ann. § 16-65-114(a) (1987), which states:

interest on any judgment entered by any court or magistrate on any contract shall bear interest at the rate provided by the contract or ten percent (10%) per annum, whichever is greater, and on any other judgment ten percent (10%) per annum, but not more than the maximum rate permitted by the Arkansas Constitution ....

It was error for the Chancellor not to impose post-judgment interest on each alternative. Otherwise, the appellees would be permitted to execute a promissory note and mortgage on a debt that has accrued no interest since the Chancellor’s ruling.

With respect to the alternative that has been accruing post-judgment interest, it was error for the Chancellor to simply impose the rate of 6%. Arkansas Code Ann. § 16-65-114(a) (1987) clearly provides for imposing the greater of the contract rate, ten percent, or the maximum rate allowed by the Arkansas Constitution. As we cannot determine whether ten percent would have been a legal (non-usurious) rate in September, 1992, we must remand this case to the Chancellor for entry of an order that imposes post-judgment interest in accordance with § 16-65-114.

Affirmed in Part and Reversed in Part and Remanded.

Glaze and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. This court has been assiduous in holding that we will only review final orders under Ark. R. App. P. 2(a). See, e.g., Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992); Jackson v. Yowell, 307 Ark. 222, 818 S.W.2d 950 (1991). We have underscored consistently that unlike some of our sister states we will entertain only one appeal from a matter after it is finally decided.

Here, the matter is not final. The chancellor’s order provides:

IT IS THEREFORE ORDERED, that;
1) Within sixty (60) days, the plaintiffs execute and deliver to the defendant their Promissory Note, secured by a mortgage on the property at an interest rate and for a term consistent with the prevailing rate and terms offered by lending institutions in Columbia County; or, alternatively,
2) Within sixty (60) days, the plaintiffs have the option of paying the balance owed plus interest accrued from September 10, 1992 at 6% per annum to the defendant.

The order clearly leaves several questions unanswered, assuming the chancellor’s order was affirmed:

1. How much of the sixty days remains for choosing Alternative 1 or Alternative 2?
2. Has the sixty days expired?
3. Is the amount of the promissory note under Alternative 1 to be the balance owed as of September 10, 1992, or is it to include accrued interest from that date?
4. When does the interest in the promissory note begin to run under Alternative 1?
5. What judgment amount will any post-judgment interest apply against?
6. What non-usurious post-judgment interest rate will apply under either alternative?

There has been no Rule 54(b) certification in this case. And based on the above it is more than likely that additional matters will be resolved by the chancellor after this decision which could result in a subsequent appeal. Indeed, the judgment amount is not even known at this juncture.

Factually, this case is akin to Kelly v. Kelly, supra. In Kelly, an appeal was taken from an intermediate order directing a party to execute a quitclaim deed. Still pending before the chancellor at the time the notice of appeal was filed was a motion to set aside the order. We said there:

For a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. (Citations omitted.) To be final, an order must be of such a nature as to not only decide the rights of the parties, but to put the court’s directive into execution, ending the litigation or a separable part of it.

310 Ark. at 245, 835 S.W.2d at 871. Surely, the order appealed from in the instant case does not “put the court’s directive into execution ending the litigation.”

The majority opinion seeks to distinguish the Kelly decision from the case at hand by stating that the chancellor’s order did not specifically “refer to the possibility of any further hearing or judicial intervention subsequent to the judgment.” Nevertheless, that order, as quoted above, most definitely contemplates further action by the court once an election of alternatives is made by the Mannings. The issues of the judgment amount and any assessment of post-judgment interest are the most glaring examples of matters left to be decided. The majority virtually admits this by remanding the case to the chancellor for imposition of non-usurious post-judgment interest under either alternative. Thus, a further hearing is contemplated. What is the practical distinction between this case and Kelly?

With this case now as precedent, it will be difficult to gauge the “finality” of court orders. This is an area where the standard needs to be crystal clear and consistently applied. For that reason, I respectfully dissent.

Glaze, J., joins.


author: David Newbern, Justice.

text:
    Lee DOUGLASS, Insurance Commissioner for the State of Arkansas v. LEVI STRAUSS & COMPANY
    93-530
    868 S.W.2d 70
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993
    [Rehearing denied January 31, 1994.]

      Jack East III, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellee.
   David Newbern, Justice.

The issue in this case is whether the appellee, Levi Strauss & Company (Levi) may recover from the Arkansas Property and Casualty Insurance Guaranty Fund (Fund) money owed to Levi by a defunct insurance company. The appellant, Lee Douglass, Arkansas Insurance Commissioner, argues Levi may not recover from the Fund because the Act creating the Fund limits recovery against it to claims by Arkansas residents and Levi, a Delaware corporation with its principal place of business in California, does not qualify. Thus refined, the issue becomes whether a foreign corporation which has its principal place of business elsewhere but which established a substantial presence in Arkansas is to be considered a resident for the purpose of the Act. The Trial Court held that Levi was a resident of Arkansas, but we hold to the contrary and reverse and dismiss Levi’s claim.

There is no dispute that Levi maintained a number of manufacturing facilities in Arkansas from 1981 to 1985. It was a self-insurer for Arkansas workers’ compensation claims but contracted with Mission Insurance Company (Mission) for indemnity insurance. There were two policies. One provided that Mission would indemnify Levi when annual workers’ compensations claims exceeded $2,500,000. The other provided Mission would indemnify Levi when any single workers’ compensation claim exceeded $100,000. In 1988, aggregate claims exceeded the limit, and to date Levi has paid some $64,000 it claims to be owed by Mission under the first policy. Also in 1988, Levi paid a single claim which exceeded $100,000 by $63,853.74 which it claims under the second policy.

1. The statute

Act 871 of 1977, as amended by Act 738 of 1987 and Act 901 of 1993, now codified as Ark. Code Ann. § § 23-90-101 through 123 (1987 and Supp. 1993), is known as the “Arkansas Property and Casualty Insurance Guaranty Act.” Its purpose, declared in § 23-90-102, is to provide funds in addition to assets of insolvent insurers for the protection of “covered claims” against such insurers which would otherwise go unpaid. To achieve that purpose, the Act is to be interpreted liberally. § 23-90-105. “Covered claim” is defined in § 23-90-103. One of the elements of the definition is, “and the third party claimant or liability claimant or insured is a resident of this state. . . .” Nothing in the remainder of the Act makes an exception to the residency requirement.

2. Residency

’’Residency” is not defined in the Act, and the meaning of the term in general usage is not fixed for all circumstances. Davis v. Holt, 304 Ark. 619, 804 S.W.2d 362 (1991); Krone v. Coop er, 43 Ark. 547 (1884). The use of the term with respect to corporations presents special problems.

After discussing the general rule that a corporation is a resident of the state “by or under the laws of which it was created, and primarily of that state ... only,” 17 W. Fletcher, Cyclopedia of the Law of Private Corporations § 8300 (Perm. ed. 1987) states:

It is, however, the general tendency and policy of the courts and legislatures to regard and deal with corporations, as far as their inherent nature will permit, as standing on the same footing as individuals. Thus, generally speaking, a corporation is regarded as a “citizen,” “resident,” or “inhabitant,” within the purview of those terms as used in statutes and constitutional provisions, whenever and to the extent that this becomes necessary to give full effect to the purpose and spirit of the statute or constitution and the words thereof will permit such a construction. Consequently, whether a corporation is included within such a provision depends largely upon its object. In other words, a foreign corporation may so establish its . business within the state in conformity with local laws as to justify treatment of the corporation as a “resident” for certain purposes, depending upon the context of the statute in which the term is used and the purpose and object to be attained. [Footnotes omitted.]

We have not previously been called upon to define “resident” in the context of Act 871, as amended, so the question is one of first impression in Arkansas. Other jurisdictions having legislation like or similar to Act 871 have, however, dealt with the problem of residency of a corporation which becomes a claimant under such an act.

In reaching the conclusion that Levi was a resident for this purpose, the Trial Court relied on In Re Mission Ins. Co., 816 P.2d 502 (N.M. 1991); Iowa Cont. Wkrs’ Comp. v. Iowa Ins. Guar., 437 N.W.2d 909 (Iowa 1989); and Zinke-Smith, Inc. v. Florida Ins. Guar. Ass’n, Inc., 304 So.2d 507 (Fla. App. 1974). We agree these cases support the Levi’s argument that the insurance involved in this case is “direct insurance” and thus that it is the type of insurance which meets another requirement of the Act. We do not agree, however, that those cases support the conclusion that Levi is a resident of Arkansas for the Act’s purposes.

In the Zinke-Smith case, there is no discussion of the residency question. The employer group in the Iowa Cont. Wkrs’ case was an Iowa-based association formed under Iowa law and seeking recovery from the Iowa state guaranty fund based on the insolvency of Mission. No question of residence of the claimant was involved. In the In Re Mission case Levi sought to recover under the New Mexico Act. Although we know, from the record now before us, that Levi was a Delaware corporation with its principal place of business in California, no mention was made of residency, and the New Mexico Court’s opinion dealt only with whether Levi had purchased direct insurance from Mission or reinsurance — a point not before us.

Several cases are cited which do involve challenges to corporate claims on guaranty funds where the residency of the claimant was at issue. In Kroblin Refrigerated Xpress, Inc. v. Iowa Insurance Guaranty Association, 461 N.W.2d 175 (Iowa 1990), Kroblin Refrigerated Xpress, Inc. (Kroblin) was incorporated in Iowa and subsequently moved its corporate office to Oklahoma without changing its corporate status in Iowa. The claim on the guaranty fund arose from vehicle liability insurance purchased from an Iowa insurance company. A costly accident involving one of Kroblin’s trucks occurred. Thereafter, the insurance company, Carriers Insurance Company, was declared insolvent and ordered liquidated. Kroblin filed claims with the guaranty funds of Iowa, Illinois, and Oklahoma. The Iowa fund denied coverage on the basis that Kroblin had not met the residency requirement. Iowa amended its Act in 1986 to define residence of any entity other than an individual as the state in which its principal place of business is located. After discussing other issues raised and the development of the definition of “resident” in connection with corporate entities, the Iowa Supreme Court determined that a corporation’s residence is its principal place of business and affirmed the denial of Kroblin’s claim.

Cited in the Kroblin opinion were Alabama Ins. Guaranty Ass’n v. Colonial Freight Systems, Inc., 537 So.2d 475 (Ala. 1988), and Eastern Seaboard Pile Driving Corp. v. New Jersey Proper-Liability Ins. Guaranty Ass ’n, 421 A.2d597 (N.J.Super.A.D. 1980). In the Alabama case, a claim by a corporation chartered in Alabama but headquartered in Tennessee was allowed. In the New Jersey case it was held that a corporation chartered in Delaware with its principal place of business in New Jersey qualified as a claimant of the New Jersey fund.

In McMahon v. Louisiana Insurance Guaranty Association, 596 So.2d 1384 (La.App. 1 Cir. 1992), the claimant was a Pennsylvania resident injured in 1984 in an accident with a tractor-trailer rig driven by an employee of Caravan Refrigerated Cargo, Inc. (Caravan), a Louisiana corporation. McMahon obtained a judgment in 1987 in Pennsylvania and sought to collect from the Louisiana fund because the insurer was the defunct Carriers Insurance Company, declared insolvent and ordered liquidated in 1985. The Louisiana fund denied the claim, asserting it was not a “covered claim” because Caravan, the employer, was a resident of either Texas or California.

The Louisiana Court established that Caravan, an interstate trucking company, maintained its corporate status in Louisiana and transacted substantial business within Louisiana, even though it had been purchased by a Texas resident and moved its principal operating offices to Texas. The Louisiana Court declined to hold that the mere fact that Caravan was incorporated in Louisiana was sufficient to make it a resident. It held that the fact of incorporation there in addition to the continuation of its substantial trucking business in the State was sufficient, however, to conclude that at the time the claim arose, Caravan was a resident of Louisiana and entitled to benefits from the Louisiana fund.

We cannot know what our General Assembly or the legislature of any other state may have in mind when it uses the term “residence” in a statute which may apply to a corporate entity. Douglass argues that, because the money the Arkansas Guaranty Fund uses to pay claims against defunct insurers comes from assessment of a percentage of the net direct written premiums collected by all insurers in the State of Arkansas, Ark. Code Ann. § 23-90-112(b) (1987), only Arkansas residents should be allowed to claim against the Fund. The argument is no help. Assuming Levi had purchased insurance from an Arkansas insurer we would still be confronted with the requirement that Levi be an Arkansas resident.

Having looked to the case law from other jurisdictions, we can say that in no case in which we know the issue was raised has a corporation been held a resident of a state in which it was neither incorporated nor maintained its principal place of business.

While Levi did indeed have a substantial manufacturing presence in Arkansas when its claims against Mission were generated, it was essentially a California (that being its principal place of business) corporation which bought insurance from a California insurance company which subsequently went under. We have been cited to no authority indicating that a corporation which • is incorporated in state A and which has its principal place of business in state B is to be considered a resident of state C in the context of an insurance guaranty fund. All of the cases which have permitted an insured whose residence was in doubt to collect from such a fund have been ones in which the insured was either incorporated or had its principal place of business in the state from whose fund the money was being sought. We hold Levi is not a resident of Arkansas and thus its claim is not a “covered claim” as defined in the statute.

Reversed and dismissed.


author: Tom Glaze, Justice. Robert L. Brown, Justice,

text:
    Rammie Earl HALL v. STATE of Arkansas
    CR 93-398
    868 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993
    [Rehearing denied January 24, 1994.]

      Murrey L. Grider, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Rammie Hall was convicted for the capital murder of George DeClerk, and sentenced to life without parole. He raises nine points for reversal. We find none of them have merit.

Hall first argues the trial court erred in failing to grant his directed verdict. Hall’s conviction was based upon circumstantial evidence which he claims fails to link him to the murder scene or show premeditation or deliberation, and at most only proves he committed the crimes of theft or breaking or entering.

In addressing Hall’s first argument the standards of review are well-settled that the court looks to determine whether substantial evidence exists to support the verdict and that circumstantial evidence may constitute substantial evidence. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). Substantial evidence is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture, and in determining the sufficiency of the evidence, this court need only ascertain that evidence most favorable to appellee; it is permissible to consider only that testimony which supports the verdict of guilty. Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993). We now review that evidence to support Hall’s guilty verdict.

The state presented evidence that Hall knew DeClerk, and was on DeClerk’s ranch in Randolph County, Arkansas on December 5 or 6 of 1990, where he was able to obtain one of DeClerk’s business checks which Hall promptly forged and cashed at a local grocery store. On December 7th, Hall returned to Sallisaw, Oklahoma where he resided and told his girlfriend he had found a black extended-cab Chevrolet truck that he wanted. On December 12, 1990, Hall, driving his 1976 blue Oldsmobile, returned to Randolph County where and when he took the necessary steps to steal DeClerk’s extended-cab black truck. Without explanation, DeClerk disappeared from sight this same day even though two friends had made their respective plans to see him on December 13th and 14th. One friend, Patricia Reynolds, testified she had gone to DeClerk’s ranch on the 14th and found a strange padlock on the entrance gate; the house was locked and dark inside.

On December 13th, Hall was seen with DeClerk’s truck, trailer and other property in White County. On that same date, he traded DeClerk’s trailer and two horses for a gooseneck trailer. In disposing of DeClerk’s property, Hall identified himself as DeClerk. On the 13th, Hall also appeared at a bank in Beebe, and made a $2,200 cash withdrawal using DeClerk’s credit card; he also purchased a saddle and two lariat ropes with DeClerk’s credit card, signing DeClerk’s name. It was also December 13th when Hall called a salvage owner in Randolph County asking him to tow Hall’s Oldsmobile which he had left parked on a road about two-tenths of a mile from DeClerk’s ranch. Hall gave Grissom the Oldsmobile for the $35.00 towing charge.

Hall returned to Oklahoma late afternoon of December 13th, when he was seen with DeClerk’s black pickup and the goose-neck trailer he had acquired. On December 15th, he moved his girlfriend and her sister to Colorado, and three days later, Hall sold the trailer and traded DeClerk’s pickup for a Ford pickup. Hall’s girlfriend said that Hall disappeared on December 19th.

DeClerk’s body was found on December 28, 1990, in his house under a pile of clothes. An autopsy dated January 2, 1991, revealed DeClerk had been shot in the head, and because of the decomposition of the body, the doctor reported DeClerk had been dead for several weeks, placing his death on or about December 12, 1990. The autopsy report reflected DeClerk was last seen alive on December 12th. When DeClerk’s body was found, it also was learned that his truck, trailer, horses, saddles and other property were missing. Those items were later discovered to be the ones Hall had stolen on December 12 and later sold or exchanged.

An Arkansas fugitive warrant was issued for Hall which eventually resulted in his arrest. On May 29, 1991, Hall was located in Henderson, Nevada where he was stopped for a traffic offense; he identified himself to the officer as William Charles Thomas. The officer subsequently learned Hall’s real identity and Hall was returned to Arkansas. Ann Martin, who dated Hall at the time of his arrest, quoted Hall, after his arrest, as saying, “[T]hey couldn’t have anything on him about anyone’s death [because] . . . they don’t even have a gun.” Martin said that she had not told Hall that the Arkansas authorities did not have the murder weapon and that she had not given him news clippings that related that information. Hall also told Martin that he had never been in Arkansas, that he was from Texas, and that they had picked up the wrong person.

From the above, it is readily apparent that Hall previously knew DeClerk, made plans to steal his pickup truck and other personal property items and returned to Arkansas to carry out those plans on December 12, 1990 — the same day DeClerk was killed. The next day he tried to cover up his presence at DeClerk’s home by calling someone to tow his car away from the place he had left it, two-tenths of a mile from DeClerk’s driveway. That same day, Hall proceeded to dispose of DeClerk’s property which Hall had stolen. Besides falsely identifying himself as DeClerk and by other aliases when disposing of the stolen property, Hall offered other statements that were clearly falsehoods, or at best, improbable statements explaining suspicious circumstances. Such statements are admissible as proof of guilt. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). In addition to the inconsistent statements already discussed, Hall testified that, on December 12, 1990, he had bought DeClerk’s truck, trailer, horses and other items for $6,300 from a man named Jim Bradley and that Hall’s Oldsmobile was given to Bradley as a part of the transaction. Hall did not offer Bradley as a witness at trial and the only Jim Bradley found by the state to live in the county testified that he did not know Hall. Hall used this story in an attempt to explain that he found DeClerk’s billfold and credit cards in DeClerk’s truck. However, Hall’s story failed to mention or explain his Oldsmobile’s presence near the DeClerk ranch on December 13th or his request to have it towed.

We conclude the evidence, albeit circumstantial, was more than sufficient to support the state’s case that Hall’s scheme commenced on his December 6, 1990 trip to Randolph County when he saw DeClerk’s truck and used DeClerk’s business check • to obtain money at a nearby grocery store. The jury could have with reasonable and material certainty believed that when Hall returned to DeClerk’s ranch on December 12, 1990, it was necessary for Hall to shoot DeClerk in order to take DeClerk’s many possessions described hereinabove, including his personal billfold and credit cards; Hall then locked the entrance gate to the farm and had his car towed to delay anyone finding DeClerk and to coverup Hall’s presence in the area. Hall’s further use of DeClerk’s name when disposing of the stolen property, if believed by those duped into trading for or buying such property, merely was designed to foster the false belief that DeClerk was still alive after December 12th and the 13th, when Hall was seen again in Oklahoma. Accordingly, we hold that the trial court ruled correctly in denying Hall’s directed verdict motion.

Hall’s second argument is the trial court erred in refusing to prevent the prosecutor from discussing the definition of reasonable doubt with jurors on voir dire. The prosecutor on voir dire voiced the state must prove Hall guilty beyond a reasonable doubt, but wanted assurance that jurors would not require more. He explained the phrase “shadow of doubt” was not law and attempted to explain “reasonable doubt” by examples. For instance, the prosecutor informed a juror that the law did not require them to be one hundred percent certain in order to render a guilty verdict. He illustrated that, if five people saw an event occur and five others said it did not, the juror would have to decide who was telling the truth but the jury might still make a determination of guilt. Hall argues that the state’s attempt to quantify reasonable doubt was improper.

In reading the voir dire, we find the trial court injected itself by quoting the AMCI definition of reasonable doubt and asking one juror in the hearing of the others, if she would listen and follow the court’s instructions on burden of proof. The juror said she would. The trial judge also submitted the same AMCI instruction to the jury at the close of the case. In sum, the jury was instructed on the proper burden of proof, and it is presumed to have followed the court’s instruction. The course and conduct of voir dire examination of the veniremen is primarily within the trial judge’s discretion and Hall fails to show that the judge abused it. Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981).

Hall’s third point urges the trial court erred in permitting the state to introduce evidence of another crime. Specifically, he argues the state should not have been able to introduce evidence bearing on the check he forged and passed to the grocery store near DeClerk’s ranch on December 6. He claims this evidence merely portrayed.him as a bad character and was more prejudicial than probative. The December 6th event, however, showed when Hall first manifested his intent to steal from DeClerk, and it reflected his ability to access DeClerk’s checks. Clearly, Hall’s actions show when his plan commenced which involved a scheme to use DeClerk’s name for pecuniary gain and negated his defense that he had acquired certain items owned by DeClerk by mistake. See A.R.E. Rule 404(b). The probative value of the state’s evidence went to plan, identity and absence of mistake, and we cannot say the trial judge abused his wide discretion in deciding that the probative value outweighed any danger of unfair prejudice. Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988).

Next, Hall contends he was entitled to a new trial based upon newly discovered evidence. At a post-trial hearing on his motion for a new trial, Hall offered the testimony of Fenton Baltz. Hall argues this testimony would have supported the testimonies of Theron Rice and Dick Thielemier that DeClerk was seen alive on December 13, thus offering an alternate theory that DeClerk was killed after his property was stolen and after Hall had returned to Oklahoma. Hall points out the testimony given by Baltz that he thought he had last seen DeClerk on a Wednesday which Baltz believed was December 13th. When confronted with the fact that the Wednesday in question was the 12th, Baltz agreed he saw DeClerk last on December 12th.

In referring to Baltz’s statement, Hall fails to show this statement could not have been discovered or produced at trial, and therefore qualify as newly discovered evidence under ARCP Rule 59(a)(7). In addition, Baltz’s testimony merely reflected that he misspoke in stating he never saw DeClerk after December 13 th.

Hall’s fifth point involves a defense witness, Robbie Baltz, who would have testified that a Barry Thompson said that a man named Arlet Humes bragged to a boy named Grimsley that Humes and another man had killed or beat up DeClerk and took his truck. The trial court denied this proffered testimony as double hearsay. The trial court, of course, was right that hearsay is inadmissible except as provided by law or by these rules. A.R.E. Rule 802. Hall offered Baltz’s statement to show Humes and another had killed DeClerk, and in doing so, clearly qualified as hearsay which is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, and offered in evidence to prove the truth of the matter asserted. A.R.E. Rule 801(c). Hall never attempted to offer any authority by which Baltz’s hearsay testimony should be excepted and admitted. Accordingly, the triál court properly excluded Baltz from testifying.

In point six, Hall says that, in the White County Circuit Court, he had pled guilty to a theft of property charge involving his withdrawal of $2,200 in funds from a bank in Beebe by using DeClerk’s credit card. Citing State v. Thornton, 306 Ark. 402, 815 S.W.2d 386 (1991), he argues the state should have been prohibited from utilizing the same conduct or elements contained in the White county case to convict him later in this Randolph County case. See also Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993). The Thornton and Craig cases discuss the Blockburger test for double jeopardy which in pertinent part provides that if the offenses have identical statutory elements or if one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred. Such is not the situation here.

In this Randolph County case, the state charged Hall with capital murder and also included a class B felony theft count that Hall knowingly took or exercised unauthorized control over, or made an unauthorized transfer of an interest in DeClerk’s property with the purpose of depriving DeClerk of his property, which is valued over $2,500. DeClerk’s truck, trailer, horses and other items taken by Hall were clearly shown to exceed a value of $2,500. In the White County case, the state charged Hall with the separate class C felony theft crime where Hall without authorization used DeClerk’s credit card to obtain $2,200 in cash at a bank in Beebe. In short, the White County conviction which Hall offers as a bar to the Randolph County conviction involved separate conduct and a separate crime which took place in White County.

Hall’s seventh point for reversal urges the trial court should have inquired of the prospective jurors of their views on the death penalty rather than allowing the state to do so. Of course, the Supreme Court, as well as our court, has allowed the death qualification of the jury. See Lockhart v. McCree, 476 U.S. 162 (1986); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992). We are unaware of any authority that mandates a trial court to death-qualify potential jurors and Hall cites none.

Hall next claims the trial court erred in permitting the prosecutor to inquire of a juror if the juror understood Hall had the same power to subpoena witnesses as did the state. Hall objected on the basis that the prosecutor’s question implied Hall was compelled to call witnesses and put on a defense. While such a comment might have been prejudicial out of context, here, Hall testified and called a number of witnesses in his defense. He simply fails to show how he was prejudiced.

Hall’s final argument bears on the request he made to the trial court to permit him to introduce a page of a letter written by the prosecutor to the sheriff’s office prior to charges having been filed against Hall. In the letter, the prosecutor asked a deputy sheriff to write a letter detailing the information the officer felt justified a charge of capital murder rather than a charge against him merely for taking the victim’s property. The letter further provided the prosecutor would file the capital murder charge once evidence was presented justifying it and concluded by saying, “Hopefully Hall will be arrested by the FBI on the fugitive warrant and evidence of capital murder will be developed.”

The trial court excluded the prosecutor’s letter because it was the state’s work product. The main reason for rejecting the introduction of such a letter is that it is the duty of either a grand jury or prosecutor to charge an accused with a felony. See Ark. Const. Amend. 21, § 1; State v. Brooks, 301 Ark. 257, 783 S.W.2d 368 (1990). Here, the prosecutor eventually brought the capital murder charge against Hall and offered substantial evidence supporting that charge. To allow as evidence one page of a state prosecutor’s letter to show the state had no proof to bring a capital murder charge against Hall would have been woefully inaccurate and misleading. The trial court did not abuse its discretion when denying the letter’s introduction into evidence.

In conclusion, we add that the record in this case has been examined in accordance with Rule 4-3 (h), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.

Holt, C.J. and Brown, J. dissent.

Robert L. Brown, Justice,

dissenting. What was proved in this case was that Rammie E. Hall was a thief and a liar. No substantial evidence was presented that he was a'murderer. I would reverse this conviction.

Sam DeClerk, the victim, lived on an isolated ranch in Randolph County. He was something of a recluse, and it was not unusual for him not to be seen for weeks. No one saw him between the night of December 12, 1990, and the day his body was discovered in bed on December 28, 1990. No murder weapon was found. No physical evidence of Hall’s presence was found at the crime scene. DeClerk’s guns were missing but the stolen guns have not been located and have never been tied to Hall.

An autopsy was performed on January 2, 1991 — three weeks after December 12,1990, the assumed date of death — and Dr. Violette Hnillica testified that she could not pinpoint the date of death. What follows is cross-examination by the defense:

Q: From your medical findings in the autopsy, were you able to give a specific date as to when this person was killed?
A: No, not at all.
Q: And as far as whether he was killed, for medical purposes, on December 12 or the 13th or the 14th, is there anyway you could determine the date of death?
A: I wouldn’t be able to determine that.
Q: Is there any way for medical purposes for you to be able to determine the approximate time in the daytime or . . .
A: No, sir.

On redirect, she added that her findings were consistent with a December 12, 1990 date of death, but on recross, she again admitted that she could not pinpoint date of death other than to say that the victim had been dead a long time and that her “estimate” was even longer than December 12, 1990.

Date of death is, therefore, uncertain.

For circumstantial evidence to constitute substantial evidence, it must exclude every other reasonable hypothesis inconsistent with the guilt of Hall. Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993); Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993). Ordinarily, that is for the factfinder to resolve. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). Our responsibility is to decide whether the jury resorted to speculation and conjecture in reaching its verdict. Id.

We have recently affirmed murder convictions or declared error based on circumstantial evidence but in each case there was more proof than exists in the instant case. See Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993) (Defendant was at the rest stop soliciting sex from truck drivers the night of the murder and was seen the next morning with lacerations on her arm, back, and neck. She told a friend that she had stabbed a truck driver and a bloody knife was found in the area.); Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993) (Defendant was present at the shooting and claimed that the victim’s death was a suicide. The medical examiner testified that it was not a contact wound and that the manner of death indicated murder.); State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992) (Victim was struck by a vehicle and her hair was found on the defendant’s car.); Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989) (Defendant was seen fleeing from the area in what could have been minutes after victim’s death and possessed stolen property from the victim’s home.); Ferguson v. State, 298 Ark. 600, 769 S.W.2d 418 (1989) (Defendant and an accomplice were seen behind the victim’s apartment on the night she was killed and then fled to Kansas City. He later confessed to burglary and stated that the accomplice killed the victim.)

Proof of theft should not equate to proof of murder. A verdict based on the evidence offered can only be conjectural. I respectfully dissent.

Holt, C.J., joins.

       The check was made payable to R. C. Johnson and purportedly signed by DeClerk. A documents examiner opined Hall signed DeClerk’s name.

       HaII does not challenge the AMCI reasonable doubt definition instruction and the facts here do not warrant a discussion of the court’s decision in Cage v. Louisiana, 498 U.S.39 (1990).

       Hall mistakenly cites the testimonies of Rice and Thielemier as supporting his theory. At trial, Rice testified that he last saw DeClerk on December 12 and never saw him from December 13 onward. Thielemier testified that he gave a statement to an Officer Sammons, but he did not remember citing a date, in the statement. Further, Thielemier testified he did not recall the date on which he last saw DeClerk.’ The statement taken by Officer Sammons from Thielemier on the date DeClerk’s body was found was read to the jury and states, “Mr. Thielemier says the last time he saw Mr. DeClerk was possibly around December 13, 1990.” This evidence hardly supports Hall’s contention that DeClerk was still alive on December 13.

       The White County charge also included a theft by receiving crime, but Hall did not plead in that case and instead that charge was continued.


author: Tom Glaze, Justice.

text:
    Harvey HARRIS v. STATE of Arkansas
    CR 93-867
    868 S.W.2d 58
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993

      Sam Whitfield, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Sherry L. Daves, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Harvey Harris brings this appeal from his convictions on two counts of delivery of a controlled substance. He was sentenced to twenty-years imprisonment and a $5,000 fine on each count. His sentences were ordered to be served consecutively. For reversal, he raises three points on appeal.

In Harris’s first argument, he claims the state failed to establish a proper chain of custody before introducing into evidence the crack cocaine Harris purportedly sold a confidential informant on two different occasions. The state points out that Harris has failed to abstract any objection to the admissibility of these cocaine exhibits, and therefore, this issue is not preserved for appellate review. The state is correct. Nowhere in the abstract is Harris’s objection, nor can we find the prosecutor’s response or the trial court’s ruling on this point. In the recent case of Haynes v. State, 313 Ark. 407, 855 S.W.2d 313 (1993), we reiterated the court’s reasons for requiring an abstract of the record that supports those issues argued on appeal. We stated the following:

Our rule is clear on this point and has been for decades. Without proper abstracting, seven justices would be constrained to pore through the sole record ... in search of the error propounded by the defense. We have said repeatedly, and our rule so states, that we will not go to the record in research of prejudicial error. [W]e have no other mechanism to protect against egregious violations of the rule except to affirm in instances like this.

See also, Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993).

Harris’s second argument is that he was denied a fair trial because of ineffective assistance of counsel. We can find nowhere in the abstract of record that Harris timely asserted this ineffective counsel claim either during or upon motion after the trial. In these circumstances, he may not raise this post-conviction claim on direct appeal. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993).

Finally, Harris contends that the trial court erred in the procedure used to select five jurors. This argument, too, is not preserved for appellate review because the voir dire proceedings have not been abstracted. Although he makes reference to a few transcript pages and some abbreviated colloquy, this court has said that scattering transcript references thoughout an argument is not a substitute for a proper abstract. Watson, 313 Ark. 304, 854 S.W.2d 332; Ketcher v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). For the foregoing reasons, we affirm.

       We note that in his reply brief, Harris requested that he be permitted to supplement his abstract, but that request was without a prior timely motion, and as a matter of course, would not (and did not) come to the court’s attention until after this case was submitted to the court for decision. It is not permissible to supply a deficiency in the abstract of the record in a reply brief. Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979).


author: Donald L. Corbin, Justice. David Newbern, Justice,

text:
    Russ MORTON and Glenda M. Morton v. PARK VIEW APARTMENTS, an Arkansas Limited Partnership, Warren Theis, Individually, and Joanne S. Smith, Individually
    92-808
    868 S.W.2d 448
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993
    [Rehearing denied January 24, 1994.]

      Barrett, Wheatley, Smith & Deacon, by: Tom D. Womack and D. P. Marshall, Jr. and Eilbott Law Firm, by: Don Eilbott, for appellants.

      Arnold, Grobmyer & Haley, by: Robert R. Ross, for appellees.

      Glaze and Brown, JJ, not participating.

   Donald L. Corbin, Justice.

Appellants, Glenda and Russ Morton, appeal a judgment of the Jefferson Chancery Court rendering moot their claim for foreclosure of a vendor’s lien, granting reformation of a contract, and dismissing their claim for damages due to a failure of proof. On appeal, the Mortons challenge the rulings on damages and reformation. We reverse and remand the judgment as to damages; otherwise we affirm the judgment as entered by the chancellor.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

In 1978, the Mortons sold Park View Apartments to appellees Joanne Smith and Warren Theis by means of a contract of sale and an installment note for $230,000.00. The contract and the note specified that the obligation of Smith and Theis was without recourse but that the debt was secured by the property. Further, the contract provided that Smith and Theis could request a deed on the property at any time in return for a vendor’s lien.

The property in question consists of a large two-story apartment building located in Pine Bluff, Arkansas, that was built in the 1920’s and was previously owned by Mrs. Morton’s parents. Upon moving out of state, the Mortons desired to sell the property and eliminate the need for long distance management. Smith and Theis were real estate investors who located investment properties, syndicated them to other investors, and then managed the properties. Smith and Theis, as general partners, formed a limited partnership of investors and used the Park View Apartments and the partnership to take advantage of federal income tax benefits. The limited partnership was named the Park View Apartments (the Partnership).

With changes in the tax code in 1986, the property no longer provided its previous investment benefits, so Smith sought funding to improve the investment value of the property. Funds for rehabilitation were sought from the Department of Housing and Urban Development (HUD), and the property was placed on the national historic registry. Because HUD required prospective borrowers to have title in the property in order to qualify for funding, Smith and Theis exercised their option under the 1978 sales contract with the Mortons, and in 1988, requested a deed. Accordingly, their attorney drew up an installment note reflecting the unpaid balance of $205,070.53, and a special warranty deed which retained the vendor’s lien and the buyers’ responsibility to insure the property.

None of the terms of the 1988 transaction were negotiated and all parties signed the documents. In the event the property had to be returned to the Mortons, the special deed provided that the property was to be returned “in as good condition as when delivered, normal wear and tear and damage caused by fire, windstorm or casualty excepted.” Unlike the documents in the 1978 transaction, neither the deed nor the note in this 1988 transaction provided that this was a non-recourse transaction. The Mortons had an attorney available to them during the transactions in both 1978 and 1988, but, by their own admission, failed to utilize those services completely.

In the spring of 1989, a hailstorm damaged the roof of Park View. While water buckets, plastic window shades, and plastic sheeting were used to catch the water, no significant repairs were made.

Before making funds available for the rehabilitation project, HUD required the Partnership to invest $200,000.00 of its own money. The Partnership was not willing to invest the $200,000.00, thus Smith and Theis were unable to secure adequate funds from HUD for the renovation project. Smith testified on direct examination that “[i]n June of 1989 we gave up trying to take care of the property after we could not get adequate financing or sell it.to other people”, and in July 1989, Smith, Theis and the Partnership defaulted on the note. Smith offered to return the complex to the Mortons without foreclosure, or to take the Mortons in as partners in the rehabilitation project in return for their investment. The Mortons declined both offers.

In late August or early September of 1989, Smith and Theis filed an insurance claim on the hail damage and settled with the insurance company for $9,064.43. In September 1989, Smith and Theis offered the deed and insurance proceeds to the Mortons; the offer was again refused.

In October 1989, the Mortons filed to foreclose on their vendor’s lien and to hold Smith and Theis personally liable on the 1988 note. The Mortons also sued the Partnership. Smith and Theis answered, offering possession of the property to the Mortons, and denied intent of the parties to allow recourse under the 1988 deed or note; they further counterclaimed for reformation of the 1988 documents so those documents would reflect the non-recourse provision contained in the earlier 1978 documents.

In December 1989, during the pendency of the foreclosure suit, freezing temperatures caused the water pipes in Park View to freeze and burst. While Smith and Theis capped leaking water lines and relocated affected tenants, they made no repairs. Smith filed an insurance claim for these damages resulting from the freeze. Smith asked for $10,064.43 from the insurance company, but the company paid only $4,000.00, The Mortons then amended their complaint to seek damages alleging waste, breach of contract, and negligence against Smith, Theis, and the Partnership for failing to maintain and repair Park View.

In December of 1991, the chancellor held there was a mutual mistake regarding the omission of the non-recourse provision from the 1988 deed and note, and reformed the deed to include the omitted provision. Title to the property was vested in the Mortons along with the insurance proceeds from both casualties ($13,064.43 total). Since the hailstorm and frozen pipe events were casualties and as such excepted under the terms of the deed, the chancellor found that Smith, Theis, and the Partnership were not legally responsible for the damages directly attributable to those two events. However, he did find the Partnership liable for the damages due to untimely repairs. Nonetheless, because he found the Mortons’ proof went only to the total costs of repairs without apportioning which damages were attributable to the hailstorm and freeze as opposed to those resulting from Smith’s and Theis’ negligence, the chancellor denied the Mortons’ request for damages. The chancellor stated that any attempt on his part to apportion damages would be speculative, so he dismissed the Mortons’ amended complaint. The Mortons appeal from that order.

II. DAMAGES

On appeal, the Mortons claim they are entitled to $48,289.60. They contend this figure represents the difference between the value of the property as they should have received it from the defaulting buyers and the value of the property as received by them in its state of disrepair. Appellees respond with the argument that it is the Mortons’ burden to prove their damages, that the only evidence presented at trial was in relation to a claim for over $100,000.00, and that the Mortons are raising the claim for $48,289.60 for the first time on appeal.

In finding the Mortons’ proof was inadequate to establish with any degree of certainty the portion of damages caused by Smith and Theis, the trial court held the applicable measure of damages was the reasonable expense of necessary repairs to the property. See AMI 3d 2213. No one questions that standard in this appeal. In his detailed letter opinion, the chancellor made slight reference to normal wear and tear of the building as being a consideration when determining damages. But he later correctly stated the measure of damages for the temporary or repairable injury to real property. Normal wear and tear is not an element of the cost-of-repairs measure applied in these circumstances.

In applying this cost-of-repair standard, the trial court found that the proof offered bore only to the cost of repairing the entire complex and that Smith and Theis were not responsible for all damages since a large portion of the damages were caused by the hailstorm in April of 1989, and rains falling on the damaged roof afterwards. The trial court was clearly wrong in this finding.

The Mortons offered expert testimony concerning the total cost of repair to restore the Park View building without attempting to apportion the amount to what or who caused the damage. This total was $101,159.00. However, among other evidence before the trial court were estimates submitted by insurance adjusters fixing the hail damage to the Park View Apartments in the amount of $14,434.97 ($8,040.00 for roof repairs and $6,394.97 for interior repairs). A roofing company estimated it would repair the building roof for $11,424.10. In addition, the parties introduced an estimate totalling $10,593.80 to repair the damages occurring in December 1989 from the frozen pipes. These items of evidence clearly were available to the trial court to apportion or fix the damages that resulted from the two casualties that occurred. The Mortons’ expert witness offered further testimony useful in apportioning the total repair costs; he estimated that 40% to 50% of the damage to the roof was caused by the hailstorm. The Mortons’ expert also stated that the rotting of the lumber underneath the roof, fascia, and around the windows was caused by the failure to repair and properly maintain the property.

We appreciate the trial court’s expressed concern to obtain an exact or certain damage figure that it could clearly apportion to the casualties involved and to the fault attributable to Smith and Theis. Nonetheless, Mortons’ recovery will not be denied merely because the damages are difficult to ascertain. Taylor v. Green Memorial Baptist Church, 5 Ark. App. 101, 633 S.W.2d 48 (1982). As we said recently in Dr. Pepper Bottling Co. v. Frantz, 311 Ark. 136, 842 S.W.2d 37 (1992), this court has not insisted on exactness of proof in determining damages, and if it is reasonably certain that some loss has occurred, it is enough that damages can be stated only approximately. See Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985).

The Mortons’ claim for $48,289.60 is not an argument raised for the first time on appeal, but an attempt to ascertain the specific amount of damages proved at trial. The Mortons arrive at the $48,289.60 by subtracting $30,869.40 (the amount of damage caused by the two casualties) and $22,000.00 (the depreciation of the property as measured by the estimate for exterior paint and repairs) from $101,159.00 (the estimate for total repairs to the property).

We review chancery cases de novo. Janssen v. McKimmey, 305 Ark. 360, 807 S.W.2d 920 (1991). The evidence supports the Mortons’ ascertainment of damages, except for the figure of $30,869.40. The Mortons contend this figure is the sum of repairs caused by the two casualties: $8,040.00 for interior repairs (insurance adjustor’s figure from hail damage) + $11,424.10 for roof damage (private company’s estimate from hail damage) + $11,405.30 for damage caused by frozen water pipes. The insurance company’s estimate for interior repairs was $6,394.97, not $8,040.00. Thus, the amount of damages proved as a result of the two casualties was only $29,224.37, not $30,869.40. Therefore, the findings and conclusions that the Mortons are entitled to damages are affirmed and modified to reflect their damages were proved in the amount of $49,934.63.

III. REFORMATION

The Mortons’ second point on appeal is that the chancellor erred in reforming the 1988 documents. They allege the omission of the non-recourse provision was not a mutual mistake as the chancellor found but a unilateral mistake, and thus no reformation was justified. The Mortons actually urge that a couple of unilateral mistakes occurred, the first of which occurred in the 1978 documents with the inclusion of the non-recourse provision since it was their intent to be able to hold Smith and Theis personally liable under the contract. Further, they argue that the second unilateral mistake was Smith’s and Theis’ when the provision was omitted from the 1988 documents.

Courts of equity have the authority to reform deeds when the evidence is clear, convincing, and decisive that there is either a mutual mistake in the drafting of the instrument or a unilateral mistake accompanied by inequitable conduct by the other party. Falls v. Utley, 281 Ark. 481, 665 S.W.2d 862 (1984); Bonner v. Sikes, 20 Ark. App. 209, 727 S.W.2d 144 (1987). Parol evidence is admissible to show mutual mistake. Garot v. Hopkins & Coats, 266 Ark. 243, 583 S.W.2d 54 (1979).

Both parties signed and validated the 1978 non-recourse provision, and also agreed that, if Smith and Theis asked, the Mortons would execute a warranty deed with a retained lien covering the then unpaid balance. The parties made no provision indicating that their individual liability would change if a warranty deed later ensued. In an effort to obtain the HUD financing for renovation, Smith and Theis exercised their right to request the warranty deed. The 1988 documents were the result of that request. Thus, the 1988 documents were not a separate and subsequent transaction but a continuation of the 1978 agreement. Any terms included in the 1978 documents should therefore have been included in the 1988 documents. Any terms excluded from the 1988 documents were the result of a mutual mistake.

The parties testified that no additional negotiations were conducted prior to the drafting and signing of the special warranty deed and note in 1988. Additionally, Mr. Morton testified that he did not question the attorney who drafted the instruments about any of the provisions. Smith’s and Theis’ attorney, Mr. Harley Cox, Jr., testified that he was directed to track the 1978 documents and that the omission of the non-recourse provision from the 1988 documents was an oversight on his part. The record reflects the Mortons, Smith and Theis were unaware of this material omission when they signed the new documents.

Although Mr. Morton testified that he did not understand the non-recourse provision, he was represented by counsel when he signed the 1978 agreement. The 1978 agreement was intended as a device to facilitate the establishment of a limited partnership for the purpose of taking favorable federal income tax deductions. Mr. Cox testified that, under the tax code, in order for the limited partners to take advantage of the favorable deductions, Smith and Theis, as general partners, could not be personally liable for the debt. Thus, all the parties to the 1978 agreement intended for the debt to be non-recourse. That the non-recourse provision was not included in the 1988 documents was due to mutual mistake. Concerning the 1988 documents, Mr. Morton merely stated he signed them without reading them.

In sum, the evidence supports the chancellor’s finding that there was mutual mistake in omitting the non-recourse provision from the 1988 instruments. Thus, the reformation to allow non-recourse to Smith and Theis for liability in foreclosure should be affirmed. We emphasize that, while our holding today renders Smith and Theis free from personal liability on the debt foreclosed, Smith and Theis remain personally liable for the damages they caused to the property.

The judgment is affirmed as modified herein.

Special Justices C.C. Gibson, III and Peter G. Kumpe join in this opinion.

Dudley and Newbern, JJ., dissent.

Glaze and Brown, JJ., not participating.

David Newbern, Justice,

dissenting. In spite of its seeming recognition that evidence to reform a deed must be clear, convincing, and decisive that there has been either a mutual mistake or a unilateral mistake accompanied by inequitable conduct by the other party, the Court’s opinion ignores the law. It holds that the evidence supports the chancellor’s finding that there was a mutual mistake in omitting the non-recourse provision from the 1988 instruments and upholds the reformation. There is no evidence which supports that conclusion or indeed any conclusion that the Morton’s ever intended this to be a non-recourse transaction. The testimony adduced at trial reveals that the Morton’s were unaware of the meaning of the non-recourse language in the 1978 documents but that they both intended Theis and Smith to be personally liable for the obligation. While this may have supported reformation of the 1978 agreement it has nothing to do with the 1988 contract.

The attorney preparing the 1988 documents testified that the omission of the language was an oversight on his part, but such an occurrence presents no evidence of mistake on the part of the Mortons. Both parties in these transactions were represented by counsel at all times in the drafting of these documents, and at most we are presented with a unilateral mistake on the part of Theis and Smith in the signing of the 1988 agreement. There is no evidence of inequitable conduct by the Morton’s which would support a reformation based on unilateral mistake, and the chancellor correctly rejected that as a basis for reformation.

The Court’s reasoning that Mr. Morton’s signing the 1988 document without reading it suggests unconcern with the provisions of the agreement is much more applicable to Theis and Smith, the parties who were in the business of putting together tax deals like this one and who were obviously their limited partners’ motivating experts in these circumstances. I take particular exception to the Court’s statement that, because Theis and Smith intended to get tax benefits for their limited partners and thus they could not be liable as general partners for the debt, “Thus all the parties to the 1978 agreement intended for the debt to be non-recourse. That the non-recourse provision was not included in the 1988 documents was due to mutual mistake.” That is an exercise in illogic.

While the absence of negotiation concerning the 1988 agreement and the oversight by the lawyer may have resulted in a mistake, it was clearly not a mutual mistake as contemplated by our cases regarding reformation. To affirm the chancellor creates a bald fiction unsupported by any evidence whatever.

I respectfully dissent.

Dudley, J., joins in this dissent.


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

text:
    SHELTER GENERAL INSURANCE COMPANY v. Callie Mae WILLIAMS, Tracy Deering, and Gail Deering, Individually, and as Next Friend for Dominique Deering and Deshell Deering
    93-592
    867 S.W.2d 457
    Supreme Court of Arkansas
    Opinion delivered December 20, 1993
    [Rehearing denied January 24, 1994.]

      Jones, Gilbreath, Jackson & Moll, by: Robert L. Jones, Jr., and Charles R. Garner, Jr. for appellant.

      James W. Robb, for appellees.
   Donald L. Corbin, Justice.

Appellant, Shelter General Insurance Company, appeals from the Sebastian Circuit Court’s entrance of summary judgment and the denial of appellant’s motion for a new trial. Our consideration of this case requires construction of our statutes on no-fault insurance; thus, our jurisdiction is pursuant to Ark. R. Sup. Ct. l-2(a)(3).

Appellee, the insured, lived with her two daughters and two granddaughters. She obtained an automobile liability insurance policy specifically excluding her daughters from coverage. Appellant had issued a policy of automobile liability insurance which contained sections providing medical and income disability benefits as required under the no-fault statute. The policy also contained named driver exclusions for both of appellee’s daughters. The exclusion endorsements, signed by the insured, provided that no insurance would be provided while any automobile was being driven by either daughter. The daughters and granddaughters, also appellees, were injured in an accident when one of the daughters, Tracy Deering, drove the car into a tree.

Both parties filed motions for summary judgment, and the judge found that appellees were entitled to recover benefits under the policy pursuant to Ark. Code Ann. § 23-89-202 (1987) since any exclusion that attempted to limit the no-fault benefits beyond the scope of statutory law is void as against public policy. Accordingly, the trial court entered partial summary judgment in favor of appellees. Damages were awarded pursuant to the stipulation entered by the parties. All other issues in the case were disposed of by the trial judge. Appellant’s subsequent motion for new trial was denied, and this appeal resulted.

The crux of appellant’s argument is whether or not the no-fault coverage provided by our statutes can be waived. Section 23-89-202, the no fault statute, reads:

Every automobile liability insurance policy covering any private passenger motor vehicle issued or delivered in this state shall provide minimum medical and hospital benefits, income disability, and accidental death benefits, under policy provisions and on forms approved by the Insurance Commissioner, to the named insured and members of his family residing in the same household injured in a motor vehicle accident, to passengers injured while occupying the insured motor vehicle, and to persons other than those occupying another vehicle struck by the insured motor vehicle, without regard to fault[.]

The statute just preceding this one, Ark. Code Ann. § 23-89-201 (1987), states:

Nothing contained in this subchapter shall be construed to prevent an insurer from providing broader benefits than the minimum benefits enumerated in § 23-89-202.

However, the section following the no-fault statute is more instructive in the instant case. Under Ark. Code Ann. § 23-89-203 (1987) the insured has the right to reject the coverages enumerated in section 23-89-202. Section 23-89-203 clearly states:

(a) The named insured shall have the right to reject in writing all or any one (1) or more of the coverages enumerated in § 23-89-202.
(b) After the rejection, unless the named insured requests coverage in writing, the coverage need not be provided in, nor supplemental to, a renewal policy.

This court has stated an insurer may contract with its insured upon whatever terms the parties may agree upon which are not contrary to statute or public policy. Aetna Ins. Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978). This is not like the situation' presented in State Farm Mut. Auto. Ins. Co. v. Sims, 288 Ark. 541, 708 S.W.2d 72 (1986) wherein the insurance company was not allowed to seek a right of set off against its own insured. The Sims court noted that an insurance company is prohibited from setting off one payment under the policy against another one under the same policy for which the insured specifically paid premiums. Here, the premium reflected the lesser coverage as accepted by the insured. Though there is a mandatory minimum, which may be increased by the insurer, there is also a right to reject the coverages as long as it is accomplished in writing. This is precisely the situation before us since appellant obtained a written rejection of coverage:

No insurance is provided by this policy while any automobile is being driven by or is under the direct control of:
Tracy Deering [the insured’s daughter]

This endorsement was signed by appellee, the insured.

The Arkansas Insurance Commissioner in 1984 set forth the requirement that driver exclusion endorsements contain the insured’s signature. Bulletin No. 17-83, issued by the Commissioner on January 2, 1984, approved exclusionary endorsements:

Insurers are notified that no driver or operator exclusion is acceptable for use on an automobile policy unless the exclusionary endorsement includes a provision for the signature of the named insured (s), accepting and acknowledging the restricted coverage.
Any existing form that does not provide for this signature should be revised accordingly and submitted to this Department for approval.

Thus compliance with that agency regarding the named driver exclusion is not at issue.

The premium for coverage was commensurate with the risks the insurance company assumed. Appellee voluntarily waived coverage in writing with regard to two named drivers. We would violate the express intent of the legislature if we did not give effect to the statute regarding rejection. An insurance provision which is in accordance with a statute cannot be contrary to public policy. Sims, 288 Ark. 541, 708 S.W.2d 72. A named driver exclusion cannot violate public policy when one realizes that a prospective purchaser of insurance may reject no-fault insurance altogether. The statutes encompass the mandatory offering of coverage accompanied by the right to reject such coverage in whole or in part, not mandatory coverage of any and all risks.

On appellate review, we determine if there was a material question of fact left unanswered. Nixon v. H & C Electric Co., 307 Ark. 154, 818 S.W.2d 251 (1991). Summary judgment should only be entered if there is no issue of fact and the movant is entitled to judgment as a matter of law. Ark. R. Civ. P. 56(c). We have no Arkansas cases specifically addressing this situation. Both parties have cited cases from outside our jurisdiction purportedly advancing their respective positions; however, we need not address those cases since our legislature has unambiguously stated that no-fault benefits can be rejected in writing, and our Insurance Commissioner has clearly approved named driver exclusions provided the insured signs such an endorsement. The trial court erred in entering judgment on appellees’ behalf. Appellant’s appeal of the denial of its motion for a new trial is not addressed since we are reversing the order of summary judgment.

Reversed and remanded for the trial court to enter an order consistent with this opinion.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. Callie Mae Williams, the insured, obtained no-fault coverage from Shelter General Insurance Company. Shelter and other insurers issuing automobile liability insurance policies are mandated by the General Assembly to provide such coverage which includes (1) medical and hospital benefits, (2) income disability benefits and (3) accidental death benefits. Ark. Code Ann. § 23-89-202 (1987). In enacting this law,, the General Assembly made clear this state’s policy that no-fault coverage protection within statutory limits must be offered the insured which covers the insured, members of the insured’s household family, passengers occupying the insured’s vehicle and persons occupying another vehicle struck by the insured’s vehicle. The statutory law further provides that any one or all of the three coverages provided in § 23-89-202 may be rejected by the named insured if done so in writing. Ark. Code Ann. § 23-89-203 (1987).

Callie Williams did not reject any of the coverages in this case. Instead, Shelter issued its policy to Ms. Williams with an exclusion provision which provided that no insurance will be provided under the policy if Ms. Williams’s vehicle is driven by her daughter, Tracy. Ms. Williams approved this exclusion provision. Arkansas’s no-fault coverage law, however, specifically allows an insurer to exclude benefits to an insured only in the two following circumstances: (1) when the insured intentionally caused his own injury and (2) when the insured causes any injury while committing a felony or while seeking to elude lawful apprehension or arrest by a law enforcement officer. Ark. Code Ann. § 23-89-205 (1987).

In State Farm Mut. Auto. Ins. Co. v. Sims, 288 Ark. 541, 708 S.W.2d 72 (1986), this court, in construing § 23-89-202, clearly stated that separate protective coverage such as Arkansas’s no-fault coverage mav not be diminished or con-traded awav bv a provision in the insurance contract. Here, that is exactly what happened. Shelter’s exclusionary provision is neither authorized by statutory law nor has Arkansas’s Insurance Commissioner recognized the validity of this type of named-driver exclusion provision. More important, the exclusion is contrary to Arkansas law and declared public policy.

For the foregoing reasons, I would affirm the trial court’s ruling that the named-driver exclusion provision contained in the Shelter policy is void as against public policy.

       This court in Aetna Ins. Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978), indicated it did not read § 23-89-205 to prohibit other exclusions, but that decision clearly stated, as well, that whatever agreement or exclusion the insurer and insured entered into must not be contrary to statute or public policy. There, the insurer’s policy excluded payment of benefits to the extent the insured had already been paid disability benefits under workers’ compensation law. Such exclusion of no-fault disability benefits was held not contrary to public policy because Arkansas, had statutes that eliminated double recovery for injuries. In the present case, no double recovery is involved and Arkansas’s no-fault statutory scheme is designed to protect the public by-availing injured persons at least some insurance coverage, albeit minimum.