author: Per Curiam.

text:
    Overtus BRINKER v. FORREST CITY SCHOOL DISTRICT NO. 7; Virginia L. Roland; and Southern Farm Bureau Casualty Insurance Company
    00-56
    29 S.W.3d 740
    Supreme Court of Arkansas
    Opinion delivered November 9, 2000

      Easley, Hicky & Hudson, by: B. Michael Easley, for appellant.

      Butler, Hicky, Long & Harris, by: Phil Hicky, for appellee Southern Farm Bureau Casualty Insurance Company.
   Per Curiam.

This appeal involves underinsured-motorist (UIM) benefits. The crux of the case is whether an insurer may contract with its insured in such a way that the insurer may never be joined as a party to a lawsuit against an underinsured motorist nor be bound by any judgment rendered against an under-insured motorist.

A school bus from Forrest City School District No. 7 collided with appellant Overtus Brinker, who indisputably had UIM benefits of $100,000 with Southern Farm Bureau Casualty Insurance Company (Southern Farm Bureau). Appellant sustained serious personal injuries as a result of the accident. He filed suit against the school district, bus driver, and Southern Farm Bureau. Southern Farm Bureau filed a motion to dismiss based on the fact that it was unknown at that time whether appellant was underinsured; in the alternative, Southern Farm Bureau requested that it be severed from the trial against the school district. Southern Farm Bureau refused, in any case, pursuant to the terms of the consent clause contained in the insurance policy, to be bound by any jury verdict that might be rendered in appellant’s case against the school district. The trial court denied Southern Farm Bureau’s motion to dismiss, but severed it from the first trial.

Appellant’s case against the school district went to trial; the suit against the bus driver, Virginia L. Roland, was nonsuited. The district admitted liability, and the jury awarded appellant $100,000. The district paid its limit of $25,000 and received a partial satisfaction of judgment. Appellant made demand on Southern Farm Bureau to pay the remaining $75,000 of his UIM benefits; Southern Farm Bureau refused. Appellant filed an amended complaint; Southern Farm Bureau denied liability, and appellant filed a motion for summary judgment seeking the $75,000 judgment, as well as statutory penalty and attorney’s fees. The trial court denied the motion for summary judgment and ordered a second trial, wherein the jury awarded appellant $65,000.

On appeal, appellant contends that it was error for the trial court to sever Southern Farm Bureau from the original action without requiring that Southern Farm Bureau be bound by the jury verdict and that it was error to deny his motion for summary judgment. Southern Farm Bureau argues contrary to appellant and contends that appellant’s appeal of the denial of his summary-judgment motion is not appealable.

Appellant asserts the following points on appeal:

1) The trial court erred in severing appellant’s cause of action against Southern Farm Bureau without requiring that Southern Farm Bureau be bound by the fact-finder’s determination of liability and damages;
2) The trial court erred in denying appellant’s motion for summary judgment following trial of the underlying tort case.

Although asserting important arguments regarding the terms contained in the consent clause of the insurance policy, appellant has failed to abstract either the policy or the consent clause contained in the policy. As such, we hold the abstract, as submitted, to be deficient. However, this case differs significantly from other cases in which the abstract was so flagrantly deficient that this Court would never have been able to reach the merits. Therefore, we decline to affirm based upon noncompliance with our abstracting rules, as we hold that doing so in this case would cause an unduly harsh result. See Ark. S. Ct. R. 4-2(b)(6).

In this case, while appellees did call a number of other minor deficiencies to the Court’s attention, appellees did not cite appellant’s failure to abstract the insurance policy itself as a reason for deficiency, nor did appellees offer a supplemental abstract of said policy as they could have done under Rule 4-2(b)(l) of the Rules of the Supreme Court. In addition, in their briefs, both appellant and appellees quoted identical language from the consent clause contained in the policy. In other words, there was no challenge to the language of the consent clause in the policy. Both sides agreed that it said what it said; ambiguity was never an issue.

Therefore, as no dispute existed as to the language of the policy, thereby presenting no prejudice to the appellees, we decline to affirm the case for noncompliance with Rule 4-2(a)(6) of the Rules of the Supreme Court, as we consider that action to be unduly harsh in this case. Rule 4-2(b)(3) of our Rules states in part:

Whether or not the appellee has called attention to deficiencies in the appellant’s abstract, the Court may treat the question when the case is submitted on its merits. If the court finds the abstract to be flagrantly deficient, or to cause an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. If the Court considers that action to be unduly harsh, the appellant’s attorney may be allowed time to revise the brief, at his or her own expense, to conform to Rule 4-2(a)(6).

[Emphasis added.]

Therefore, pursuant to Rule 4-2(b)(3), we hereby allow appellant’s attorney time to supplement his abstract, at his own expense, to conform to Rule 4-2(a)(6). The appellees will then be afforded an opportunity to revise or supplement their brief, if necessary, at the expense of appellant’s counsel. Appellant’s attorney is given thirty days to supplement his abstract to conform to Rule 4-2 (a) (6).


source: Caselaw Access Project

license: Public Domain

text:
    Rodney RAGLIN v. STATE of Arkansas
    CR 97-402
    29 S.W.3d 722
    Supreme Court of Arkansas
    Opinion delivered November 9, 2000

      Kelly M. Pace, for appellant.
    No response.
   Per Curiam.

Appellant Rodney Raglin, by and through his attorney, has filed a motion for belated appeal. His attorney, Kelly M. Pace, states in the motion that Raglin asked counsel to appeal from an order denying him postconviction relief, which was entered on June 30, 2000. Due to an admitted mistake on her part, counsel failed to do this.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


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

text:
    Dean Floyd NIX v. ST. EDWARD MERCY MEDICAL CENTER; T.C. Kelly, M.D.; Cooper Clinic, P.A.; and John Does 1-4
    00-163
    30 S.W.3d 746
    Supreme Court of Arkansas
    Opinion delivered November 16, 2000

      Hardin, Jesson & Terry, by: Bradley D. Jesson; John M. Burnett; and Law Offices of Harry Scoufos, P.C., by: Fourth Scofous, for appellant.

      Thompson & Llewellyn, P.A., by: William P Thompson, for appellee St. Edward Mercy Medical Center.

      Warner, Smith & Harris, by: G. Alan Wooten and Matthew C. Carter, for appellees T.C. Kelly, M.D., and Cooper Clinic, P.A.
   W.h. “Dub” Arnold, Chief Justice.

On February 20, 1998, appellant Dean Floyd Nix filed a medical-malpractice action individually and as his wife’s guardian against appellees, St. Edward Mercy Medical Center, T.C. Kelly, M.D., Cooper Clinic, P.A., and John Does 1-4, for medical injuries allegedly sustained in February 1996 by his wife, Gloria Rose Nix. Approximately four months after the complaint was filed, Mrs. Nix died on June 28, 1998, pendente lite. Thirteen months later, appellees filed a motion to strike the abated action from the trial court’s docket pursuant to Ark. Code Ann. sections 16-62-108 and 16-62-109 (revival-of-action statutes). Citing the supersession rule, appellant argued that Ark. R. Civ. P. 25 superseded the statutes because the statutes and the court’s rule concerning substitution of parties conflicted. See Arkansas Court Rules at 723 (2000). Pursuant to Rule 25, Nix contended that, at most, dismissal without prejudice was warranted.

During a hearing on November 1, 1999, the trial court reasoned that the supersession rule did not apply because section 16-62-108 imposed a substantive limitation on revival that could not be superseded by the procedural Rule 25. Thus, the trial court determined that the action had abated and was no longer capable of being revived pursuant to section 16-62-108. The court further concluded that Nix’s claim for loss of consortium had abated because it was derivative of his wife’s claim. In reaching its decision, the court noted that, although Nix filed the action individually and as his wife’s guardian, Gloria Nix was the “real party in interest.” Moreover, there was no suggestion of death on the record and no application for an order to revive the action. Reluctantly, the trial court dismissed appellant’s action with prejudice in accordance with section 16-62-109. The instant appeal followed.

Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. 1-2(d)(2) and l-2(b)(l), (5), and (6) (2000). The Court of Appeals certified this case for us to consider a significant issue of first impression and one needing clarification of the law. Appellant’s sole point on appeal challenges the trial court’s conclusion that Ark. Code Ann. sections 16-62-108 and 16-62-109 (1987) are not superseded by Ark. R. Civ. P. 25. We find no merit in appellant’s arguments, and we affirm the trial court’s order dismissing appellant’s complaint with prejudice.

Sections 16-62-108,16-62-109, and Ark. R. Civ. P. 25

Arkansas Code Annotated section 16-62-108 requires a plaintiff’s representative or successor to revive an action within one year from the time the order might first have been made, unless the defendant consents. Section 16-62-109 directs the court to strike an action from the docket if it appears “by affidavit that either party to an action has been dead, or, where he sues or is sued as a personal representative, that his powers have ceased for a period so long that the action cannot be revived in the names of his representatives or successor without the consent of both parties.” Significantly, a resulting dismissal is with prejudice. Here, the parties agree that appellant failed to revive the action pursuant to section 16-62-108. However, the parties disagree as to whether Ark. R. Civ. P. 25 permits appellant to substitute himself as a party beyond the statutory limitation and achieve a dismissal without prejudice.

In support of his position, appellant cites our supersession rule, which provides that:

All laws in conflict with the Arkansas Rules of Civil Procedure, Rules of Appellate Procedure and Rules for Inferior Courts shall be deemed superseded as of the effective dates of these rules.

Arkansas Court Rules at 723 (2000). If the supersession rule applied, Rule 25 would permit a substitution of parties within ninety days of death, with or without notice and a hearing. Significantly, a dismissal may follow if substitution is sought too late, as here, but any dismissal is discretionary and without prejudice. As a result, appellant maintains that only dismissal without prejudice was warranted per Rule 25.

The Reporter’s Notes to Rule 25 offer guidance to resolve the matter before us. For example, the Notes explain that the purpose of Rule 25 is “to permit the action to be prosecuted by or against those who are, following the death of a party, either the real party in interest or a representative thereof.” The comments to subsection (e), captioned “Limitation of Rule,” indicate that Ark. R. Civ. P. 25(e) represents an attempt to limit the rule’s effect to the determination of who may be substituted as a party but “not to enlarge the time during which a claim may be prosecuted.” Additionally, the comments acknowledge that subsection (e) is not intended to determine which claims survive the death of a party.

Writing in the Arkansas Law Review, former Justice David Newbern of the Arkansas Supreme Court addressed the import of the subsection (e) limitation. He pointed out that part (e) was not found in the federal counterpart to Ark. R. Civ. P. 25. Intentionally included in our rules, subsection (e) “makes it clear that the rule is not intended to extend the statute of limitations or to permit a claim which is otherwise barred by law. Nor is the rule intended to deal with survival of actions.” Walter Cox & David Newbern, New Civil Procedure: The Court that Came in from the Code, 33 Ark. L. Rev. 40 (1979). Given the expressed intent that Rule 25 does not represent a means to extend otherwise applicable statutes of limitation, we cannot say that it operates here to extend appellant’s rights by permitting a dismissal without prejudice.

In reaching our decision, we also consider the applicability of Ark. R. Civ. P. 81(a). In Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), we explained the relationship between Rule 81(a) and the supersession rule. Rule 81(a) carves out an exception to the supersession rule where a statute “creates a right, remedy or proceeding [and] specifically provides a different procedure in which event the procedure so specified shall apply.” Ark. R. Civ. P. 81(a) (2000); see also Weidrick, 310 Ark. at 143, 835 S.W.2d at 846.

Under the facts in Weidrick, we held that the rules of civil procedure superseded a conflicting statute requiring a sixty-day notice requirement for commencing a civil medical-malpractice action. We rejected the additional, conflicting notice requirement imposed by the statute in favor of Ark. R. Civ. P. 3, which provided that a civil action is commenced by filing a complaint with the proper court clerk. Underlying our decision was the fact that the statute at issue did not create a “special proceeding” or a statutory right as contemplated by the Rule 81(a) exception. See Weidrick, 310 Ark. at 144, 835 S.W.2d at 846.

Here, however, Ark. Code Ann. section 16-62-108 creates a special proceeding with a different procedure distinct from an ordinary civil action to which the rules apply. In light of the comments to Rule 25, Rule 81(a), and our reasoning in Weidrick, we cannot say that the trial court erred by finding that section 16-62-108 was not superseded by Rule 25. The time limitation imposed by section 16-62-108 applied and, given appellant’s failure to timely revive the action, dismissal was mandated pursuant to section 16-62-109. Accordingly, we affirm the trial court’s order dismissing appellant’s claim with prejudice.


author: Tom Glaze, Justice.

text:
    McLANE COMPANY, INC. v. Charlie DAVIS, Director of the Arkansas Tobacco Control Board
    00-417
    33 S.W.3d 473
    Supreme Court of Arkansas
    Opinion delivered November 16, 2000
    [Substituted Opinion on Denial of Rehearing delivered December 14, 2000.]

      Williams & Anderson LLP, by: Peter G. Kumpe, Stephen B. Niswanger, and Patrick W McAlpine, for appellant.

      Lax, Vaughn, Evans, & Fortson, P.A., by: Audrey R. Evans and Dana M. Landrum; and Connie Carroll, for appellee.
   Tom Glaze, Justice.

This is the second appeal by appellant McLane Company, Inc., regarding the application of Arkansas’s Unfair Cigarette Sales Act, Ark. Code Ann. § 4-75-701 et seq., (R.epl. 1999) (“the Act”). McLane Company is a wholly owned subsidiary of Wal-Mart Stores, Inc., and a wholesaler of cigarettes and other products. In McLane, Inc. v. Weiss, 332 Ark. 284, 965 S.W.2d 109 (1998) (McLane I), we upheld the Act’s constitutionality, and held it reasonably protects wholesalers and retailers from unfair competition and predatory pricing.

Prior to 1981, the Department of Finance and Administration (“DFA”) limited cigarette wholesalers to a minimum sales price for cigarettes that was calculated as the cost of cigarettes to the seller plus two percent. In 1981, DFA raised that presumptive mark-up to four percent. This “cost of doing business” could not be, lowered unless the wholesaler presented proof of a lesser or higher cost of doing business to DFA. In 1988, DFA promulgated Miscellaneous Tax Regulation 1988-2, which formally established the 4% markup and which allowed a wholesaler who desired to sell cigarettes for less than the “cost plus 4%” limit to request permission to do so in writing and offer information that supported the wholesaler’s claimed lower cost of doing business.

On October 19, 1995, McLane requested that DFA repeal Regulation 1988-2 and the regulation’s four-percent requirement. McLane submitted to DFA a detailed and lengthy cost analysis and report, reflecting a lesser cost of doing business than that presumed by either the Act or Regulation 1988-2. After reviewing McLane’s proof, DFA promulgated Miscellaneous Tax Regulation 1995-5, which established that a wholesaler’s cost of doing business is one-half of one percent of the basic cost of cigarettes. On October 25, 1995, the Director of DFA notified McLane in writing that, on November 6, 1995, McLane could commence to sell cigarettes at the new minimum price. The new regulation went out in the form of a directive to all wholesale cigarette distributors on October 25, 1995.

Claiming that McLane’s “proof’ violated the Act, a group of McLane’s competitors filed suit on November 1, 1995, in Chicot County Chancery Court. The competitors obtained a preliminary injunction preventing DFA from implementing Regulation 1995-5 until such time as it had developed administrative rules and procedures to review statutorily-mandated proof such as cost surveys or audits to establish a lower cost of doing business, and established exactly what “proof’ it would accept as part of the review procedure. On November 21, 1995, after the preliminary injunction had been entered, DFA moved to dismiss the suit in chancery court, asserting McLane had not been joined as a necessary party despite the fact that the injunction directly named McLane.

Instead, McLane subsequently filed suit against DFA in November of 1995 in Pulaski County Chancery Court, alleging that the Act and Regulation 1988-2 were unconstitutional. McLane’s competitors intervened, and the chancery court later upheld the constitutionality of the Act, a decision which we affirmed in McLane I.

Almost four years later, on July 15, 1999, McLane sought to intervene in the earlier November 1, 1995, ongoing suit in Chicot County, where it claimed a recognized interest in that litigation and asserted that its interests were not being fairly represented. McLane suggested its intervention was timely, since no developments or discovery had occurred since the injunction was entered in November of 1995. On December 29, 1999, the trial court denied McLane s motion to intervene as untimely. McLane now appeals the trial courts denial of its motion on January 13, 2000, arguing that it had a right to intervene in the Chicot County Chancery Court action pursuant to Ark. R. Civ. P. 24(a), and that its intervention was timely because no significant discovery or developments had occurred in that lawsuit since November of 1995.

Rule 24(a) provides as follows:

Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

On appeal, McLane argues that it has an economic interest in the outcome of the suit pending in Chicot County, and that its interest will be impaired by the disposition of that suit if it is unable to intervene. Even if this were true, however, Rule 24(a) does not give an absolute right to intervene unless the application is timely. Bank of Quitman v. Phillips, 270 Ark. 53, 603 S.W.2d 450 (Ark. App. 1980). Here, McLane’s application was untimely. Indeed, this court has noted that “the first three words of Rule 24(a) ... are ‘upon timely application . . . .’ A decision as to the timeliness of intervention is a matter within the sound discretion of the trial court and is subject to reversal only where that discretion has been abused.” Employers Nat’l Ins. Co. v. Grantors, 313 Ark. 645, 647, 855 S.W.2d 937 (1993) (emphasis added). In exercising its sound discretion, the trial court must first be satisfied as to timeliness. Cupples Farms Partnership v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 839 S.W.2d 187 (1992) (citing NAACP v. New York, 413 U.S. 345 (1973)).

Timeliness is to be determined from all the circumstances, Carton v. Missouri Pacific R.R., 315 Ark. 5, 865 S.W.2d 635 (1993), and those factors to consider in a decision on timeliness are as follows: 1) how far have the proceedings progressed; 2) has there been any prejudice to other parties caused by the delay; and 3) what was the reason for the delay. Delay in asserting a right is obviously a critical factor. Cupples Farms, 310 Ark. at 603 (motion filed after seven to ten years untimely, when parties had been aware of rights for all that time); Lowell v. Lowell, 55 Ark. App. 211, 934 S.W.2d 540 (1996) (motion filed three months after final order entered found to be timely).

As already stated, the Chicot County Chancellor specifically denied McLane’s motion to intervene on the grounds that it was untimely, because its intervention was sought nearly four years after the November 1995 preliminary injunction had been entered. In these circumstances, our threshold inquiry is whether or not the denial of the motion was an abuse of the chancellor’s discretion. Because we agree that McLane’s motion was untimely, it is unnecessary to consider whether McLane had a sufficient interest to protect by its intervention.

McLane contends that it was an abuse of discretion for the trial court to deny its 1999 motion to intervene, because little or no activity took place in the years after the injunction had been entered. For this proposition, McLane cites UHS of Arkansas, Inc. v. Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988), where this court held that timeliness is generally not a consideration where little or no litigation has ensued. The UHS case is distinguishable, however, because there, only twenty-three days had lapsed between the filing of the initial petition for declaratory relief and the motion to intervene, and the motion to intervene was made one day after the judgment was entered. Here, in stark contrast, McLane waited almost four years after the preliminary injunction was issued. McLane contends that the reason for the delay was because it was litigating the constitutionality of the Act in another forum. However, McLane fails to explain why it could not, at the same time, have entered the Chicot County action long before 1999. In addition, there was no urgent need for the plaintiffs to actively pursue a course of litigation, because the plaintiffs had gotten the relief they sought in the form of the preliminary injunction. Thus, the fact that little or no litigation had ensued since the chancellor’s initial injunction is not particularly relevant, and McLane’s delay remains inexplicable.

McLane does mention in its reply brief that Regulation 1995-5 never became valid, and that it was not until a 1998 regulation, preventing the Tobacco Control Board from modifying Regulation 1988-2, was promulgated by the Board that the Chicot County lawsuit became relevant to McLane. It was this point in time, McLane argues, that it appreciated the potential adverse effect an adjudication of the Chicot County legislation might have on its interests. McLane cites United States v. Jefferson County, 720 F.2d 1511 (11th Cir. 1983), to support its argument. Once again, though, McLane’s argument still fails to explain why McLane waited until the next year to file its motion to intervene. Indeed, instead of intervening at that point, McLane began lobbying the General Assembly to amend the Unfair Cigarette Sales Act to permit McLane to begin pricing cigarettes at the claimed lower cost. Like its actions in instituting the Pulaski County lawsuit, it was McLane’s choice to approach the legislature instead of intervening; it should not now be permitted to complain that the Chicot County chancellor abused his discretion in finding the motion to intervene untimely.

We also note that McLane can still seek relief from the “cost plus 4%” pricing scheme. It can actively or legally encourage the Tobacco Control Board to establish the criteria and necessary proof for demonstrating a lower cost of doing business and develop rules and procedures to properly and deliberately review the required information; alternatively, like the other cigarette wholesalers in the state, McLane may merely wait for the Board to establish these measures.

In addition, McLane argues that the preliminary injunction was entered without the benefit of an evidentiary hearing. Again, however, this does not explain why McLane did not pursue the option of becoming involved in the Chicot County Chancery Court case. The preliminary injunction affected all wholesalers — including McLane •— who might have wanted to obtain a lower cost of doing business. If McLane suffered prejudice from the chancery court’s actions, it could have sought relief by intervening much earlier in that court’s proceedings. Instead, McLane dehberately chose other avenues to pursue to protect its interests, at least until July of 1999, when it decided to intervene.

Given the extraordinary delay before McLane filed its motion to intervene, we cannot say that it was an abuse of discretion for the chancellor to deny the motion. For that reason, the chancellor’s order is affirmed.

       Subsequently, on March 14, 2000, the Chicot County court made its November 1995 preliminary injunction permanent, enjoining the Arkansas Tobacco Control Board (the agency which supplanted DFA as the appropriate regulatory body with respect to the Act) from promulgating regulations repealing Regulation 1988-2 until the Board 1) promulgated rules specifying the information needed to establish a lower cost of doing business, and 2) developed procedures to give wholesalers notice of the Board’s review of an application to lower the cost of doing business.


author: Donald L. Corbin, Justice.

text:
    Dane Arnell BLUNT v. Jerry L. and Vallie J. CARTWRIGHT
    00-347
    30 S.W.3d 737
    Supreme Court of Arkansas
    Opinion delivered November 16, 2000
    [Petition for rehearing denied January 4, 2001.]

      Davidson Law firm, LTD, by: Charles Darwin “Skip ” Davidson and Patricia Bryant; and Eilhott Law Firm, by: Don A. Eilhott, for appellant.

      E. Dion Wilson, for appellees.
   Donald L. Corbin, Justice.

Appellant Dane Arnell Blunt appeals the order of the Phillips County Probate Court appointing Appellees Jerry and Vallie Cartwright as guardians of the estate and person of their six-year-old granddaughter, Dana Nacole Blunt. For reversal, Appellant argues that (1) venue was properly in Jefferson County; (2) the probate court erred in refusing to recuse from the case; and (3) the probate court erred in appointing Appellees as guardians, rather than him. This appeal was certified to us from the court of appeals, pursuant to Ark. Sup. Ct. R. l-2(d). We affirm.

The need for a guardianship of Dana Nacole Blunt arose on March 21, 1999, when Dana’s mother, Valeria Cartwright, was killed in an accident that occurred at the Six Flags amusement park in Arlington, Texas. Appellees are the parents of Valeria and the grandparents of Dana. Appellant claims to be Dana’s biological father; however, he and Valeria were not married at any time. Four days after Valeria’s death, Appellant petitioned the Jefferson County Probate Court to appoint him as the guardian of the person and estate of Dana. The court granted the petition and entered an emergency order appointing Appellant as Dana’s temporary guardian on March 29, 1999. Pursuant to that order, Appellant removed the child from Appellees’ home in Phillips County.

Appellees subsequently filed a petition for guardianship in the Phillips County Probate Court. In their petition, Appellees alleged that at the time of the accident, Valeria and Dana lived in Phillips County, and that it was in the child’s best interest to be placed with them. Appellant responded to Appellees’ petition by filing a petition for writ of prohibition with this court on April 28, T 999, requesting that the proceedings in Phillips County be stayed pending the outcome of his guardianship action in Jefferson County. See Blunt v. Bell, 337 Ark. 535, 990 S.W.2d 533 (1999) (per curiam). We denied the writ and directed the attention of the parties and both probate courts to Ark. Code Ann. § 28-65-202 (1987), which provides that venue in guardianship cases lies in the county where the incapacitated person is domiciled.

Pursuant to our mandate, the Jefferson County Probate Court concluded that venue of this matter was properly in Phillips County. Accordingly, the case was transferred to Phillips County. Ultimately, the Phillips County Probate Court appointed Appellees as the permanent guardians of the estate and person of Dana Nacole Blunt. The court found that Appellant was not suitable to be the child’s guardian. Appellant raises three points on appeal. We discuss the issue of venue first.

I. Venue Pursuant to Section 28-65-202

Appellant argues that Jefferson County was the appropriate venue for this guardianship action. Appellant does not deny that prior to Valeria’s death, Dana’s domicile was in Phillips County. He contends, however, that after Valeria’s death, his actions established Dana’s residence and domicile in Jefferson County. Thus, he argues that Phillips County was not the proper venue for this case. We disagree.

Before we reach the merits of this point, we must address Appellees’ argument that this issue is waived because Appellant did not immediately appeal the Jefferson County order and did not seek a second writ of prohibition from this court. An order fixing venue is not a final order under Rule 2 of the Arkansas Rules of Appellate Procedure — Civil. Rather, it is an intermediate order encompassed by Rule 2(b), which provides: “An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.” This court has held that once a final order has been entered and an appeal taken, the question of venue, once put in issue, is not lost by continuing through a trial of the matter. Heber Springs Lawn and Gdn., Inc. v. FMC Corp., 275 Ark. 260, 628 S.W.2d 563 (1982) (citing Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980)). See also Arkansas Savings & Loan v. Corning Savings & Loan, 252 Ark. 264, 478 S.W.2d 431 (1972) (holding that an order granting or denying a change of venue is not an appealable order); State v. Langstaff, 231 Ark. 736, 332 S.W.2d 614 (1960) (holding that an order granting or denying a change of venue is not final, because the case still stands for trial). Accordingly, Appellant’s timely appeal from the final order in this matter preserves his challenge of the Jefferson County Probate Court’s order fixing venue in Phillips County. We thus consider the merits of Appellant’s argument on this point.

Section 28-65-202(a) provides in pertinent part that “[t]he venue for the appointment of a guardian shall be: (1) In the county of this state which is the domicile of the incapacitated person[.]” Subsection (b)(1) requires the court in which the first action is commenced to determine where venue lies, and that “[i]f the proper venue is finally determined to be in another county, the court shall transmit the original file to the proper county.” Subsection (c)(4) provides that in the event of a transfer, “the receiving court shall complete the proceedings as if originally commenced in it.”

In the present case, a hearing was held in the Jefferson County Probate Court to determine the proper venue for the guardianship. Based on the testimony presented, the court found that since her birth on June 14, 1994, Dana had resided in Phillips County, either in Appellees’ home or in her mother’s home, which was located directly across the street from Appellees’ home. The court found that on the date of the accident, Dana was physically present in Jefferson County, at the home of Appellant’s parents; however, the child’s presence there was for the purpose of visitation only. The court found that on March 29, 1999, the date on which it granted Appellant’s petition for temporary guardianship, Dana was domiciled in Phillips County. The court then transferred the case to Phillips County.

We agree with the Jefferson County Probate Court that at all times relevant to this action, Dana was domiciled in Phillips County. There is simply no merit to Appellant’s contention that the child was domiciled in Jefferson County after her mother’s death. Indeed, the evidence shows that the only reason that Dana was physically residing in Jefferson County at that time was because Appellant had removed the child from Appellees’ home pursuant to the order granting him temporary guardianship. This evidence is insufficient to establish the child’s domicile in Jefferson County. Accordingly, we affirm the determination of venue in Phillips County.

II. Motion to Recuse

Appellant argues that the Phillips County Probate Judge, The Honorable Kathleen Bell, erred in denying Appellant’s motion to recuse. Among the reasons offered for recusal was Appellant’s contention that Judge Bell was biased against him, due to her former professional association with Appellees’ attorney, J. L. Wilson. Appellees have filed a motion to dismiss this appeal based on Appellant’s failure to include in the abstract and record a transcript of the hearing on this motion. We deny the motion to dismiss, but we summarily affirm, the trial court’s decision due to the deficient abstract and record on this issue.

Our review on appeal is limited to the record as abstracted, and we will not reach the merits of an issue when the documents or proceedings that are necessary for an understanding of the issue are not abstracted. Luttrell v. City of Conway, 339 Ark. 408, 5 S.W.3d 464 (1999); Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999). Rule 4-2(a)(6) of the Arkansas Supreme Court Rules requires that an abstract contain “such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” A transcript of a hearing on a motion that is the subject of appeal is a material part of the proceedings that must be abstracted. See Warnock, 336 Ark. 506, 988 S.W.2d 7 (affirming the trial court’s denial of a motion to recuse because the abstract omitted the hearing on the motion); Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997) (affirming the trial court’s denial to transfer the case to juvenile court because the transfer hearing was omitted from the abstract and record). We cannot emphasize enough that it is the appellant’s burden to bring up a record sufficient to demonstrate that the trial court erred. Warnock, 336 Ark. 506, 988 S.W.2d 7. Without a record of the hearing on the motion to recuse, we cannot conduct a meaningful review of the arguments raised on this issue. See Miller, 328 Ark. 121, 942 S.W.2d 825. We thus have no choice but to affirm on this point.

III. Determination of Guardianship

For his last point for reversal, Appellant contends that the probate court erred in granting Appellees’ petition for permanent guardianship and in simultaneously finding that he was not a suitable guardian for Dana. We review probate proceedings de novo, but we will not reverse the decision of the probate court unless it is clearly erroneous. Amant v. Callahan, 341 Ark. 857, 20 S.W.3d 896 (2000); Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000). When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Id. Based on the testimony presented below, we cannot say that the probate courts decision was clearly erroneous.

Pursuant to Ark. Code Ann. § 28-65-210 (1987), three things must be proved before a guardian may be appointed: (1) the person for whom guardianship is sought is a minor or otherwise incapacitated; (2) a guardianship is desirable to protect the needs of that person; and (3) the person to be appointed guardian is qualified and suitable to act as such. Where the incapacitated person is a minor, the key factor in determining guardianship is the best interest of the child. Bennett v. McGough, 281 Ark. 414, 664 S.W.2d 476 (1984); Trammell v. Isom, 25 Ark. App. 76, 753 S.W.2d 281 (1988); Marsh v. Hoff, 15 Ark. App. 272, 692 S.W.2d 270 (1985); Monroe v. Dallas, 6 Ark. App. 10, 636 S.W.2d 881 (1982). Preferential status may be given to the natural parents of the child under Ark. Code Ann. § 28-65-204 (Supp. 1999). This preference, however, is but one factor that the probate court must consider in determining who will be the most suitable guardian for the child. See Marsh, 15 Ark. App. 272, 692 S.W.2d 270. Indeed, any inclination to appoint a parent or relative must be subservient to the principle that the child’s interest is of paramount consideration. See Bennett, 281 Ark. 414, 664 S.W.2d 476.

In the present case, the probate court found that it was in the best interest of the child, Dana Nacole Blunt, that Appellees be appointed as her permanent guardians. The court found: (1) Appellees were the biological grandparents of the child; (2) Appellees owned their own home, were gainfully employed, and had a stable living environment in Phillips County; (3) Dana had gone through private daycare in Phillips County and was presently enrolled in the public school system there and was doing well as a student; (4) testimony of daycare teachers established that Dana was a well-rounded, happy child; (5) a home study established that Appellees’ home was suitable and desirable and that Appellees possessed the ability to care for the instant and future welfare and happiness of Dana; and (6) Appellees had contributed continual financial support to both Dana and her mother, including the payment of prenatal care, cost of the birth, and hospital bills.

On the other hand, the probate court concluded that Appellant, even if legally determined to be Dana’s biological father, was not suitable to be the child’s guardian. The court found that Appellant, who is thirty-two years old, was “in transition,” as he had only been employed at his current job for one week prior to the hearing, and he did not have a home of his own. The probate court found that there was no credible evidence to support Appellant’s testimony that he had provided support for Dana all of her life. Rather, the court found that, other than two checks totaling $325, the only regular support provided by Appellant was during a thirteen-month period while he was in the United States Army. Once he was discharged, however, following Valeria’s death, Appellant ceased making any payment toward Dana’s support. The probate court found this lack of support significant, in light of the fact that Appellant admitted that he had expended over $500 per month for the support and ownership of a car during that same period. Perhaps most significantly, the probate court found that there was credible evidence from two witnesses detailing Appellant’s physical abuse of Valeria, even while she was seven or eight months pregnant with Dana.

The probate court found that Appellant was not a suitable guardian for Dana, even if he was the child’s biological father. The court found that Appellant had not assumed his parental responsibilities, such as providing care, supervision, protection, and financial support for the child. Ultimately, the probate court found that Dana is in an environment that she is used to, surrounded by an extended family that has been a major part of her young life. The court found that it would be quite disruptive to the child to be moved from her current environment, particularly because her mother, who was her primary care giver, had died so recently. The court thus concluded that it was in the child’s best interest that Appellees be appointed as her permanent guardians.

We cannot say that the probate court’s ruling in this case was clearly erroneous, taking into consideration all the testimony presented and the probate court’s superior position to weigh and assess the credibility of the witnesses and their testimony. We disagree with Appellant that the preference found in section 28-65-204 automatically attaches to a child’s natural parent. That section provides in pertinent part: “The parents of an unmarried minor, or either of them, if qualified and, in the opinion of the court, suitable, shall be preferred over all others for appointment as guardian of the person.” (Emphasis added.) A plain reading of that provision demonstrates that only a natural parent who is both qualified and, in the opinion of the probate court, suitable shall be preferred over all others to be the child’s guardian. The probate court in this case accepted Appellant’s assertion that he was the child’s natural father, but nonetheless found that he was not suitable to serve as the child’s permanent guardian. Appellant has failed to offer any convincing argument or authority that would justify a reversal of that ruling. Accordingly, we affirm the probate court’s decision.

Apart from the issues pertaining to the merits of this appeal, Appellant has filed a motion to strike several portions of Appellees’ brief as being unsubstantiated or patently false. We agree that the statements reflected in the motion are offensive. By way of illustration only, Appellees’ brief states: “The Appellant, by his own description is a typical ‘dead-beat’ parent, if he is indeed a parent. He has according to the testimony in the case below, contributed only $i75.00 to the direct support of the child individually that is documentable.” This statement is both inflammatory and false. As set out above, the trial court specifically found that Appellant had contributed to Dana’s support, in the form of regular allotments to Valeria, while he was in the Army. We thus grant the motion to strike. While we do not impose sanctions against Appellees’ counsel in this instance, we take this opportunity to caution the bar that an attorney who knowingly makes a false statement of material fact to a tribunal risks sanctions under Rule 3.3 of the Model Rules of Professional Conduct.

Affirmed.

       Appellant does not deny that a hearing was held on the motion, or that a transcript of the hearing is not included in the abstract or the record on appeal.

       The court found that diere had been no legal determination by a court of competent jurisdiction that Appellant was Dana’s biological father. Appellant admitted as much during the hearing. Nonetheless, for purposes of determining guardianship, the court treated Appellant as the child’s biological father.


author: Robert L. Brown, Judge.

text:
    CONAGRA, INC., and ConAgra Poultry Company v. TYSON FOODS, INC.
    00-446
    30 S.W.3d 725
    Supreme Court of Arkansas
    Opinion delivered November 16, 2000
    [Petition for rehearing denied January 4, 2001.]

      Cypert, Crouch, Clark & Harwell, by: James D. Cypert, James E. Crouch, and Charles L. Harwell; and McGrath, North, Mullin & Kratz, PC., by: Leo A. Knowles, RogerJ. Miller, and Patrick E. Brookhouser, Jr., for appellants.

      Conner & Winters, P.L.L.C., by: Ruth A. Wisener and John R. Elrod; Shemin Law Firm, by: Kenneth Shemin; and Jim Blair, for appellee.
   Robert L. Brown, Judge.

The appellants, ConAgra, Inc., and ConAgra Poultry Company (referred to jointly as ConAgra), appeal from a decree enjoining them for a period of one year (1) from misappropriating any trade secrets of appellee Tyson Foods, Inc. (Tyson), and (2) from continuing the employment of Jerry Dowd in the sale and marketing of poultry products; Mike Flamblin in the involvement of any type of sales or marketing with Burger King/RSI, KFC/Tricon, and IPC/Subway; and John Cur-ran in the sale and marketing of poultry products. ConAgra raises four points on appeal: (1) that it was error for the trial court to find that trade secrets were involved; (2) that the trial court impermissibly shifted the burden of proof; (3) that the trial court erred in concluding that the trade secrets would be inevitably disclosed; and (4) that the injunction issued by the trial court was overbroad. Because we conclude that the trial court clearly erred in its finding that the information involved constituted trade secrets, we reverse and remand.

Both Tyson and ConAgra are major producers, processors, and marketers of poultry products. Tyson is the world’s number one producer with sales of $7.4 billion in fiscal year 1998. ConAgra is the fifth leading poultry producer, although it is engaged in other areas of the food industry. In fiscal year 1998, ConAgra had total food sales of $24.2 billion, with $1.2 billion in sales associated with the poultry industry.

On November 19, 1999, Tyson filed its Second Amended Complaint against ConAgra in which it alleged that ConAgra had “raided” Tyson and hired away three of its top management executives. Those executives were Jerry Dowd, Senior Vice President of Food Service Distribution; Mike Hamblin, Division Manager of Food Service National Accounts; and John Curran, Senior Vice President and General Manager Consumer Products ■— Fresh. All three executives, according to the allegations, had access to confidential information, including pricing, pricing programs, cost of goods sold, profit margins, and marketing strategies. The complaint asserted that this information constituted trade secrets; that the trade secrets would be inevitably disclosed contrary to Ark. Code Ann. § 4-75-601 (Repl. 1996); and that ConAgra would use the trade secrets to its competitive advantage. Tyson prayed for injunctive relief against the continued employment of the three executives.

A three-day trial was held, and on January 4, 2000, the trial court issued its decree. In its decree, the trial court found that in 1998, Dowd, Hamblin, and Curran became disgruntled by a reorganization of Tyson’s high management, following the resignation of its Tyson CEO, Leland Tollett. On May 20, 1999, Dowd resigned from Tyson and was immediately hired by ConAgra as President of Food Service. On July 6, 1999, Hamblin resigned from Tyson and was immediately hired by ConAgra as Vice President of National Accounts. On July 29 or 30, 1999, Curran resigned from Tyson and was immediately hired as Senior Vice President of Sales and Marketing — Retail Division. Tyson had in effect at the time of the resignations a written Corporate Code of Conduct and Compliance Policy, according to the decree. That Code of Conduct was adopted in the mid-to-late 1990s as part of Tyson’s settlement with the Independent Counsel for the United States, who was investigating Tyson’s relationship with former United States Secretary of Agriculture, Mike Espy. The Code of Conduct included the following language:

AH Tyson Foods’ employees are required to safeguard the Company’s confidential business and technical information and use such information only for Company purposes. Failure to observe this duty of confidentiality may additionaHy result in a conflict of interest or a violation of securities, antitrust, or employment laws. Confidential information whether Tyson Foods’ information or the information of others, may further be subject to agreements Tyson Foods has with other companies, trade secret statutes, or other laws for the protection of such information. In addition to protecting its own trade secrets, it is the policy of Tyson Foods to respect the trade secrets of others. Tyson Foods will not tolerate the violation of confidentiality or secrecy agreements or the improper acquisition of protected information. If a Tyson Foods’ employee is furnished with information or becomes aware of information which may have been misappropriated from another party, the employee must immediately contact the legal department.

The trial court then noted the factors involved in determining whether the information is a trade secret. For the most part, those factors are derived from § 4-75-601(4), which reads:

“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(A) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Ark. Code Ann. § 4-75-601(4) (Repl. 1996). The trial court found that Tyson’s pricing, pricing programs, cost of goods sold, profit margins, and marketing strategies were trade secrets.

The trial court then turned to the issue of whether these trade secrets had been disclosed. It concluded that even though there was no evidence that ConAgra or the three executives had misappropriated trade secrets, the three executives did have vast knowledge of Tyson’s sales and marketing strategies. The court said: “The real issue here is whether any of these three employees can, and will, perform his duties with ConAgra Poultry without using or disclosing some, or all, of Tyson’s trade secrets in the process.” The court concluded that disclosure of trade secrets by these three executives was inevitable, and for that reason, the court enjoined ConAgra from misappropriating any of Tyson’s trade secrets for a period of one year and further from allowing Dowd and Curran to engage in the sale and marketing of poultry for one year and from allowing Flamblin to continue his involvement in a sales or marketing relationship with Burger King/RSI, KFC/Tricon, and IPC/Subway for the same period of time.

ConAgra first contends on appeal that the trial court clearly erred in finding that the information in question constituted trade secrets sufficient to support an injunction. We agree. Our standard of review in chancery cases is de novo. This court has been precise in stating what de novo review entails:

Equity cases are tried de novo on appeal upon the record made in the chancery court, and the rule that this court disposes of them and resolves the issues on that record is well established; the fact that the chancellor based his decision upon an erroneous conclusion does not preclude this court’s reviewing the entire case de novo. An appeal in a chancery case opens the whole case for review. All of the issues raised in the court below are before the appellate court for decision and trial de novo on appeal in equity cases involves determination of fact questions as well as legal issues. The appellate court reviews both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sifts the evidence to determine what the finding of the chancellor should have been and renders a decree upon the record made in the trial court. The appellate court may always enter such judgment as the chancery court should have entered upon the undisputed facts in the record.

Ferguson v. Green, 266 Ark. 556, 563-64, 587 S.W.2d 18, 23 (1979) (citations omitted). We do not reverse a finding of fact of the chancery court unless we conclude that the chancery court has clearly erred. Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 994 S.W.2d 468 (1999); Saforo & Assoc., Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999). We have said, in addition, that a finding is clearly erroneous when, even though there is evidence to support it, the appellate court is left with the definite and firm conviction that a mistake has been made. Bendinger v. Marshalltown Trowell Co., supra.

Bearing these standards firmly in mind, we turn then to the applicable criteria for determining whether company information qualifies as a trade secret. Our caselaw has endorsed these factors as integral in making that determination: (1) the extent to which the information is known outside the business; (2) the extent to which the information is known by employees and others involved in the business; (3) the extent of measures taken by the company to guard the secrecy of the information; (4) the value of the information to the company and to its competitors; (5) the amount of effort or money expended by the appellee in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. See Saforo & Assoc., Inc. v. Porocel Corp., supra, (citing Vigoro Indus., Inc. v. Cleveland Chem. Co. of Ark., 866 F. Supp. 1150 (E.D. Ark. 1994), aff’d in part, rev’d in part, 82 F.3d 785 (8th Cir. 1996)). See also Ark. Code Ann. § 4-75-601(4) (Repl. 1996).

The focal point of ConAgra’s appeal is that Tyson considered certain information to be confidential, but that does not necessarily mean that the information qualifies as a trade secret. In making this argument, ConAgra claims that Tyson failed to meet two of the criteria set out in Saforo and in § 4-75-601(4) for determining a trade secret. Specifically, ConAgra asserts that (1) the information in dispute was readily ascertainable by proper means, and (2) Tyson failed to take reasonable steps to keep the information secret. The failure of Tyson to meet both criteria, according to ConAgra, is evidenced by the fact that none of the seven customer contracts that Tyson is able to claim involved trade secrets contained a restriction on those customers to keep pricing information secret. Thus, ConAgra asserts that the information was essentially in the public domain, if there was no proscription against revealing that information to third parties.

Tyson’s retort to this argument is that disclosure of pricing information by Tyson customers was unlikely because the disclosure of that information would benefit the competitors of those customers. That may be in some cases, but the fact remains that Tyson neglected to include any restriction in its customer contracts which prevented disclosure to third parties. Regardless of whether proof was presented that such disclosure by Tyson customers had transpired, Tyson manifestly failed to take steps to guard the secrecy of this information. Moreover, without a curb or some restriction on its customers, the information was readily ascertainable by third parties from some, if not all, of Tyson’s customers. This lapse is important to this court. If Tyson did not consider it necessary to preclude the dissemination of pricing information by its customers, why should this court on de novo review enforce the secrecy of that same information?

But there is a second, more comprehensive aspect of the chancery court’s decree which we believe is in error. In finding that Tyson met the criterion of guarding its secrets, the trial court relied solely on Tyson’s Corporate Code of Conduct and Compliance Policy and “verbal understandings” with its managers. On de novo review, we hold that the chancery court clearly erred in doing so. See Ferguson v. Green, supra. The salient part of that Code, as quoted above, relates only to Tyson employees and the requirement that they safeguard Tyson’s confidential business and technical information. Tyson had not entered into a covenant not to compete with the three executives to be effective for a certain period of time after the three men left Tyson, such as was the case in Bendinger v. Marshalltown Trowell Co., supra. Nor did Tyson have a separate confidentiality agreement with these executives which extended the period of time for confidentiality of certain proprietary information for a period of one year after the three men left the company’s employment. A separate confidentiality agreement was what was at issue in Cardinal Freight Carriers, Inc. v. J.B. Hunt Transp. Serv., Inc., 336 Ark. 143, 987 S.W.2d 642 (1999). In short, Tyson had in place no protection against postemployment revelation of confidential information by these executives.

In Cardinal Freight, we relied on PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir. 1995), and held that the amount of profit, profit margins, and marketing strategies involved constituted trade secrets. There, certain key employees had resigned from the J.B. Hunt trucking firm and been hired by its competitor, Cardinal Freight. J.B. Hunt sought to protect itself against the disclosure of trade secrets. We concluded that the information involved constituted trade secrets. But in doing so, we took pains to emphasize the reasonable steps that J.B. Hunt had taken to safeguard the profit-margin information and the marketing strategies from disclosure. We said:

Hunt’s CEO Thompson testified that the company’s trade secrets are not readily ascertainable by others outside the company. Thompson said that the confidential agreement Hunt requires employees to sign is one way it assures its trade secrets are not passed to others. It is significant, too, that Hunt’s agreement limits its employees from disclosing Hunt’s information for a period of one year, which seems patently reasonable for the type of trade secrets covered, especially since the terms of Hunt’s customer contracts generally run between one and five years. Thompson also testified that Hunt issues passwords and pass codes to employees who are privy to trade secret information in order to prevent the releasing of such information. Finally, Thompson said that Hunt maintains trade-secret information by the employment of a “loose-lips” policy, which is well known by everyone at Hunt and permits only two Hunt personnel to talk to the media.

Cardinal Freight, 336 Ark. at 151, 987 S.W.2d at 646.

No comparable protection to assure against postemployment disclosure of confidential information was instituted by Tyson. Though reasonable efforts to protect the secrecy of certain information is only one of the factors we look to in determining the status of a trade secret, it is a prominent one. To reiterate in part, § 4-75-601 (4) (B) requires that for information to qualify as a trade secret, it must be “the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” And in Saforo & Assoc., Inc. v. Porocel Corp., supra, we listed as a factor the extent of measures taken by the company to guard the secrecy of the information. As best we can tell, there were no efforts on Tyson’s part to restrain disclosure of information postemployment. And that distinguishes the facts in this case from the facts in Cardinal Freight. Obviously, the failure of a business to protect against the disclosure of information it considers to be secret following employment is critical to our analysis and ultimate decision regarding whether the information is in fact a trade secret.

Accordingly, we conclude that the trial court was clearly erroneous in finding that the information at issue qualified as a trade secret. We reverse the decree of the trial court ordering the one-year injunctions and remand for an order to be entered forthwith voiding the injunctions.

Reversed and remanded.

       A fourth executive, David Purdle, was originally included in the litigation, but the litigation respecting his misappropriation of Tyson trade secrets was severed from the complaint respecting Dowd, Hamblin, and Curran.

       Those customer contracts were with Sysco, Domino’s, Burger King/RSI, Subway, Pathmark, Food Lion, and AWG.


author: Annabelle Clinton Imber, Justice.

text:
    Harold Dean QUALLS v. Dr. John WHITE, Chancellor, University of Arkansas; Board of Trustees, University of Arkansas; Office of Certification, Department of Education; Attorney General; State of Arkansas
    00-478
    30 S.W.3d 735
    Supreme Court of Arkansas
    Opinion delivered November 16, 2000

      Appellant, pro se.

      T. Scott Varady, Jeffrey A. Bell, and Rhonda M. Thornton, for appellees Dr. John White, Board of Trustees of the University of Arkansas, and Dr. Joyce Wroten.

      Mark Pryor, Att’y Gen., by: Dennis R. Hansen, Ass’t Att’y Gen., for appellees Department of Education and State of Arkansas, Mike Huckabee, Governor.
   Annabelle Clinton Imber, Justice.

Appellant, Harold D. Qualls, filed suit, pro se, in the Washington County Circuit Court, naming as defendants the State of Arkansas, the University of Arkansas, Governor Mike Huckabee, Chancellor John White, Vice President Joyce Wroten, the Arkansas Department of Education, and the University Office of Central Administration. According to his abstract, Mr. Qualls alleged in his complaint that the University of Arkansas and the State of Arkansas have discriminated against him to the extent that, even with a valid teaching degree, he is unable to obtain employment.

Separate defendants, Board of Trustees of the University of Arkansas, Chancellor John White, and Vice President Joyce Wroten, filed a motion to dismiss the claims against them on October 18, 1999. Separate defendants, State of Arkansas, Governor Mike Huckabee, and the Office of Professional Licensure of the Arkansas Department of Education, also filed a motion to dismiss on October 20, 1999. The trial court granted both motions to dismiss in an order entered December 17, 1999, finding that Mr. Qualls’ claims were barred by: (1) the defendants’ sovereign and statutory immunity; (2) failure to state a claim upon which relief can be granted; (3) res judicata; (4) the statute of limitations; (5) the prohibition of Ark. R. Civ. P. 12(b)(8) against duplicative and piecemeal litigation; and (6) all of the reasons stated in the orders of dismissal in the first two suits filed by Mr. Qualls against the University and its Chancellor.

On appeal, Mr. Qualls argues that the trial court’s order of dismissal was in error because this action is not barred by res judicata. Mr. Qualls further argues that the trial court violated his right to procedural due process by depriving him of a trial on the merits.

We are unable to address the merits of Mr. Qualls’ arguments because his abstract is flagrantly deficient. See Ark. Sup. Ct. R. 4-2(b). An abstract must contain “such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” Ark. Sup. Ct. R. 4-2(a)(6). Failure to abstract the essential portions of the record will result in dismissal. See Qualls v. Ferritor, 329 Ark. 235, 947 S.W.2d 10 (1997) (Qualls I). Pro se appellants are held to the same abstracting standards as attorneys. Miller v. State, 338 Ark. 445, 994 S.W.2d 476 (1999) (citing Markham v. State, 303 Ark. 438, 798 S.W.2d 58 (1990)).

Mr. Qualls appeals the finding that his claims were barred by res judicata and argues that the dismissal of his claims violated due process. The trial court explicitly premised its finding of res judicata on two prior complaints filed by Mr. Qualls in the same court against the University of Arkansas and its Chancellor in 1996 and 1998. Although Mr. Qualls included a copy of the 1996 complaint in his abstract, he provided no abstract of the complaint filed in 1998, the abstract of the most recent complaint is nothing more than a one sentence summary of the allegations made, and the motions to dismiss which were ultimately granted are not abstracted. Nor do we find in the abstract any arguments before the trial court that Mr. Qualls was being deprived of due process of law. An argument that was never raised below will not be considered for the first time on appeal. Western Foods, Inc. v. Weiss, 338 Ark. 140, 992 S.W.2d 100 (1999). If the argument was raised below, it must be properly abstracted on appeal. Ark. Sup. Ct. R. 4-2(a)(6). The order of dismissal is affirmed.

       Mr. Qualls’ two prior cases were also dismissed by the trial court on defense motions. Mr. Qualls appealed each order of dismissal and the trial court was affirmed in both instances because of the flagrantly deficient abstracts and unclear arguments on appeal. Qualls v. Ferritor, 329 Ark. 235, 947 S.W.2d 10 (1997) (Qualls I); Qualls v. White, CA 99-241 (Ark. App. October 6, 1999) (Qualls II).


author: Lavenski R. Smith, Justice.

text:
    Michael Darrell BENSON v. STATE of Arkansas
    CR 99-1455
    30 S.W.3d 731
    Supreme Court of Arkansas
    Opinion delivered November 16, 2000

      William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   Lavenski R. Smith, Justice.

Michael Darrell Benson appeals his conviction in Pulaski County Circuit Court for possession of firearms as a convicted felon. Benson asserts that the trial court erred when it denied his motion to suppress evidence of a weapon found in the car Benson had been driving. Police arrested Benson for driving with a suspended license. Following the arrest, an inventory search of the car uncovered the weapon. Benson argues that the search of the car violated the Fourth Amendment in that police failed to comply with their own standards and procedures in undertaking an inventory search incident to impounding his vehicle. We disagree and affirm.

Facts

While on patrol on February 22, 1999, at about 9:30 pm, Little Rock police officer Dwayne Chapman observed a car backed up to a wooden fence at South Oak Apartments near Kaufman Lumber Company. Behind the car, Officer Chapman saw a man with his hands up on the fence. According to Officer Chapman, the man appeared to toss something over the fence. Finding this somewhat suspicious, Officer Chapman and his partner, Officer Oberle, turned their car around to observe. However, by the time they got in place, the man at the fence had left the area. The car remained, but the man was gone. Moments later, the officers observed the person on the other side of the fence climbing back over to get to his car. Apparently he had climbed over the fence and gone into the apartment complex. The man went back to the car, started it, and drove toward the officers. Officers Chapman and Oberle called for back up and pulled over the car.

Officer Jeff Thompson arrived to assist. The officers determined appellant was driving on a suspended driver’s license, and Officer Thompson took custody of appellant. The officers also detained Benson because they were concerned about what may have occurred at the apartment complex. Appellant identified himself and told the officers that the car belonged to his wife, and that they lived in the South Oak Apartments. He also told them she was home at that time. The officers’s check on Benson’s license indicated the car was registered to a woman living in the apartment complex. Officers Chapman and Oberle then left appellant with Officer Thompson and went to the apartment complex where they found the owner of the car, who confirmed that she was appellant’s wife. The officers found all in order at the apartment complex.

Meanwhile, Officer Thompson undertook an inventory search of the car incident to impoundment. Existing police procedure required mandatory impoundment of cars driven by persons driving on suspended licenses. Officer Thompson testified that they always impound the car when a driver’s license has been suspended. According to Thompson, they were operating according to departmental guidelines and under Municipal Judge Fleming’s court order when they impounded and then searched appellant’s car. He also testified it was departmental policy to impound a vehicle as a last resort, and that it would not be impounded if the driver could make an alternate disposition of the vehicle. When appellant’s wife arrived, the officers released the car to her rather than have it towed to an impoundment facility.

On April 19, 1999, the Pulaski County Prosecuting Attorney charged Benson with violation of Ark. Code Ann. § 5-73-103(a)(1), possession of a firearm by a convicted felon. Additionally, Benson was charged as an habitual offender, having four prior felony convictions. A Pulaski County jury found Benson guilty, and he was sentenced to six years in prison. Benson timely filed his notice of appeal. The court of appeals certified this case to us under Ark. Sup. Ct. R. 1-2 (b)(3) as a case involving an issue of federal constitutional interpretation.

Standard of Review

When a trial court’s denial of a motion to suppress is challenged, our court makes an independent examination of the issue based on the totality of the circumstances and views the evidence in the light most favorable to the State. Muhammad v. State, 337 Ark. 291, 295, 988 S.W.2d 17, 19 (1999). We reverse only if the decision to deny the motion to suppress was clearly against the preponderance of the evidence. Id.; Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000).

On appeal, Benson essentially makes two arguments. First, he argues that the inventory search violated the police department’s guidelines. Benson asserts the guidelines required that the police only impound as a last resort and that under the guidelines he should have been given an opportunity to make a legal disposition of the vehicle before it was impounded. Second, appellant argues that the impoundment was unreasonable under the Fourth Amendment. Benson contends that, as a warrantless search, there was no necessity the police take charge of the property. He alleges because appellant’s wife lived nearby there was no necessity the police impound the car.

Inventory Searches Incident to Impoundment

It is well settled that police officers may conduct a warrantless inventory search of a vehicle that is being impounded in order to protect an owners property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. Colorado v. Bertine, 479 U.S. 367 (1987); see also, Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). An inventory search, however, may not be used by the police as a guise for “general rummaging” for incriminating evidence. Florida v. Wells, 495 U.S. 1 (1990); Welch v. State, supra. Hence, the police may impound a vehicle and inventory its contents only if the actions are taken in good faith and in accordance with standard police procedures or policies. See Colorado v. Bertine, supra; Florida v. Wells, supra; Welch v. State, supra. In Welch v. State, we clarified that these standard procedures do not have to be in writing, and that they may be established by an officer’s testimony during a suppression hearing. In accordance with these principles, we have promulgated Ark. R. Crim. P. 12.6(b), which states that:

A vehicle impounded in consequence of an arrest, or retained in official custody for other good cause, may be searched at such times and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents.

(Emphasis added.) Thompson v. State, 333 Ark. 92, 97-98, 966 S.W.2d 901 (1998).

Whether the impoundment violated internal police department policies

Officer Thompson stated the sole reason for the search was an inventory search incident to impoundment. Benson argues that the impoundment and search violated police policies, and under Thompson v. State, the search was thus illegal, and the evidence should be suppressed.

Benson points out that under Little Rock Police Department General Order 305(C)(1), issued July 1, 1997, the policy of the department was to impound vehicles “only as a last resort.” Subsections (a) through (e) of the General Order provide specific conditions under which impoundment may be avoided. Relevant to these facts is subsection (a), which forbids impoundment where other disposition can be made by the owner or driver. However, this provision does not apply to the impoundment in the instant case. The impoundment in the instant case was not discretionary but mandatory under paragraph 305(B)(2) of General Order. Paragraph 305(B)(2) incorporates into police procedures a mandatory impound order of the Litde Rock Municipal Court issued December 22, 1998. This order was adopted as part of the guidelines as noted by a police department memorandum dated December 29, 1998. Specifically, paragraph 305(B)(2)(g), provides for mandatory impoundment where “Arkansas driver’s license or privileges [are] suspended for any purpose (Ark. Code Ann. § 27-16-303).” We hold that the impoundment did not violate applicable police procedures.

After resolving the issue of the police procedures, we next address the validity of the search incident to the impoundment. Our precedent on inventory searches is clear. In Thompson v. State, we stated, “It is well settled that police officers may conduct a warrant-less inventory search of a vehicle that is being impounded in order to “protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen or vandalized property, and to guard the police from danger.”

Based upon the totality of circumstances and viewing the evidence in the light most favorable to the State we hold the search of the vehicle incident to its mandatory impound was not contrary to the preponderance of the evidence.

Whether the impoundment violated the Fourth Amendment in that an alternative to impounding the vehicle should have been given

Benson also argues the Fourth Amendment protection against unlawful search and seizure requires police to provide the driver of a car about to be impounded an opportunity to otherwise dispose of the vehicle and thus avoid an inventory search. The U.S. Supreme Court has rejected this argument. In Colorado v. Bertine, 479 U.S. 367, 373-374 (1986), the court stated,

“The Supreme Court of Colorado also expressed the view that the search in this case was unreasonable because Bertine’s van was towed to a secure, lighted facility and because Bertine himself could have been offered the opportunity to make other arrangements for the safekeeping of this property. But the security for the storage facility does not completely eliminate the need for inventorying; the police may still wish to protect themselves or the owners of the lot against false claims of theft or dangerous instrumentalities. And while giving Bertine an opportunity to make alternative arrangements would undoubtedly been possible, we said in Lafayette:
“[T]he real question is not what ‘could have been achieved, but whether the Fourth Amendment requires such steps....’ ”
“The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative ‘less intrusive means.’ ” Lafayette, 462 U.S., at 647 (emphasis in original).

Citing to Bertine, 479 U.S. at 372, the Eighth Circuit Court of Appeals in U.S. v. Agofsky, 20 F.3d 866, 873 (1994), stated, “[N]othing in the Fourth Amendment requires a police department to allow an arrested person to arrange for another person to pick up his car to avoid impoundment and inventory.” The Fifth Circuit Court of Appeals in U.S. v. Skillern, 947 F.2d 1268, 1275 (1991), following Bertine, also rejected the argument Benson now makes.

In U.S. v. Privett, 68 F.3d 101, 104 (1995), the Fifth Circuit Court of Appeals refused to find clear error in the trial court’s finding that an inventory search could be conducted even if the vehicle were to be towed to the residence of the arrested person because “the problem of security was the same whether the contents were inventoried prior to delivery of the conveyance to a third party wrecker driver or occupant of the vehicle.” Benson asserts a Fourth Amendment right to be offered an opportunity to arrange for someone to dispose of the vehicle rather than allow it to be impounded and be subjected to the consequent inventory search. The Fourth Amendment provides no such protection.

Affirmed.

       We note the Supreme Court of Kansas seemed to find a Fourth Amendment right to have an opportunity to dispose of the vehicle rather than submit to its impoundment, but there is no reference to Bertine, and little discussion other than reference back to earlier Kansas cases. State v. Teeter, 249 Kan. 548, 819 P.2d 651 (1991).