author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice,

text:
    Sharra DRUCKENMILLER v. Danny J. CLUFF
    93-734
    873 S.W.2d 526
    Supreme Court of Arkansas
    Opinion delivered April 11, 1994

      Gary Eubanks & Associates, by: James Gerard Schulze and Hugh F. Spinks, for appellant.

      Anderson & Kilpatrick, by: Mariam T. Hopkins, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal follows a defendant’s verdict in an action for negligence arising from a motor-vehicle accident. The appellant, Sharra Druckenmiller, argues two points for reversal, asserting error on the trial court’s part in submitting the issue of her own negligence to the jury and in refusing to give AMI Civil 3d, 614, the “sudden emergency” instruction. We hold that the trial court did not err in either instance, and we affirm its judgment.

Facts

On September 29, 1990, at about 3:20 p.m., Mrs. Druckenmiller was driving her Honda Accord west on Highway 100, a four-lane, divided thoroughfare, in Maumelle, Arkansas. Appellee Danny J. Cluff was headed east on Highway 100, driving a Freightliner truck owned by his employer, appellee M.S. Carriers, Inc.

At the intersection of Highway 100 and Murphy Road, Mr. Cluff began to make a left turn. Mrs. Druckenmiller was between seventy-five and one-hundred feet away, and, as she subsequently testified, she applied her brakes at a distance of approximately fifty feet from the truck. Her car skidded from the inside to the outside westbound lane and struck the truck. Mrs. Druckenmiller was injured and her vehicle damaged. The police cited Mr. Cluff for failing to yield right-of-way when making a turn.

In her complaint, Mrs. Druckenmiller alleged that Mr. Cluff negligently made a left turn into the path of her vehicle, thereby causing a collision, damages, and personal injuries. The trial court submitted the issue of negligence with respect to both parties to the jury and refused to give a sudden emergency instruction proffered by Mrs. Druckenmiller. The jury rendered a general verdict in favor of Mr. Cluff and M.S. Carriers, Inc.

/. Submission of appellant’s negligence to jury

On appeal, Mrs. Druckenmiller first contends that the trial court erred in submitting the issue of her negligence to the jury in the absence of any substantial evidence that she was guilty of any fault. She maintains that the photographic exhibits show that there is a straight stretch of road for a substantial distance before the intersection of Highway 100 and Murphy Road, rendering it improbable that she could have been going fast enough for Mr. Cluff not to have seen her approaching as he turned.

The trial court instructed the jury, under AMI Civil 3d, 203, that Mrs. Druckenmiller had the burden of proving that she sustained damages, that Mr. Cluff and M.S. Carriers were negligent, and that such negligence was a proximate cause of her damages. The court also employed AMI Civil 3d, 206, in instructing the jury that Mr. Cluff and M.S. Carriers asserted that Mrs. Druckenmiller was guilty of negligence which was a proximate cause of her own injuries and that they bore the burden of proving their contention.

To aid the jury in its determination of negligence on the part of either driver, the trial court read AMI Civil 3d, 901, which permits consideration of the following rules of the road:

First, it is the duty of the driver of a motor vehicle to keep a lookout for other vehicles or persons on the street or highway. The lookout required is that which a reasonably careful driver would keep under the circumstances similar to those shown by the evidence in this case; and
Second, it is the duty of the driver of a motor vehicle to keep his vehicle under control. The control required is that which a reasonably careful driver would maintain under circumstances similar to those shown by the evidence in this case.
A failure to meet the standard of conduct required by either of these rules is negligence.

In addition, the trial court read AMI Civil 3d, 903, allowing the jury to consider as evidence of negligence the violation of the following statutory provision:

The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard. The driver, after having so yielded and having given a signal when and as required by this chapter, may make the left turn after all other vehicles approaching the intersection which constitute an immediate hazard shall have cleared the intersection.

Ark. Code Ann. § 27-51-502 (1987).

Reading AMI Civil 3d, 2102, the trial court offered the jurors four options:

If you should find that the occurrence was proximately caused by the negligence on the part of Danny Cluff and not by the negligence on the part of Sharra Druckenmiller, then Sharra Druckenmiller is entitled to recover the full amount of any damages you may find she has sustained as a result of the occurrence.
If you should find that the occurrence was proximately caused by the negligence of both Sharra Druckenmiller and Danny Cluff, then you must compare the percentage of their negligence.
If the negligence of Sharra Druckenmiller is of less degree than the negligence of Danny Cluff, then Sharra Druckenmiller is entitled to recover any damages which you may find she has sustained as a result of the occurrence after you have reduced them in proportion to the degree of her own negligence.
On the other hand, if Danny Cluff was not negligent or if the negligence of Sharra Druckenmiller is equal to or greater in degree than the negligence of Danny Cluff, then Sharra Druckenmiller is not entitled to recover any damages.

The jury returned a general verdict in favor of Mr. Cluff and M.S. Carriers.

This verdict, in effect, was a declaration that the jury had concluded either that Mrs. Druckenmiller had not met her burden of proof that Mr. Cluff was negligent or that her own negligence was equal to or greater than any negligence assessed against Mr. Cluff. This court will affirm the verdict and judgment of the trial court if the verdict is supported by any substantial evidence; the question is not whether the evidence would have supported some other conclusion but whether it supports the conclusion reached by the trier of fact. John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993).

The record of trial shows that Mrs. Druckenmiller, by her own testimony, provided a substantial evidentiary basis for the trial court to submit the issue of her negligence to the jury. For example, the following dialogue transpired during her cross-examination:

Q Mrs. Druckenmiller, I want to take you a minute back to the day of the accident so we can make sure we understand what your testimony is about how the accident occurred. I think we all agree you were traveling on the inside lane closest to the median, is that correct?
A Yes
Q And you first saw Mr. Cluff approximately 75 to 100 feet away, is that correct?
A Yes.
Q Okay. And if I understand your testimony correctly from direct examination, are you saying you saw him in the middle of the intersection at that point?
A No, he was pulling out into the intersection.
Q Okay. In any event, you saw him moving into the intersection about 75 to 100 feet away?
A Yes.
Q Okay. And you thought, at that point, that he was going to stop and you could just go on straight around his truck?
A Yes. I thought at that point that he saw me and that I would be able to manuever around in front of him.
Q Okay. So despite the fact that he was in the intersection, you made the decision to continue on toward the intersection, is that correct?
A Yes.
Q So, Mrs. Druckenmiller, you saw him doing that and you made the decision to continue on because you thought you could get around him, is that correct?
A Yes.
Q And you did not actually start applying your brakes until you were about 50 feet away from Mr. Cluff, is that correct?
A I had started applying my brakes. I did not have to slam on my brakes that —
Q Okay. You first started applying your brakes when you were approximately 50 feet away from Mr. Cluff, is that correct?
A Yes.

(T. 170-171) The jury could have concluded from the testimony that Mrs. Druckenmiller’s collision resulted from her waiting to apply her brakes until she was approximately fifty feet away from Mr. Cluff’s vehicle after having seen the truck turning at a distance of seventy-five to one-hundred feet.

Moreover, photographic evidence provided a basis for the jury to conclude that Mrs. Druckenmiller failed to keep her vehicle under control — the duty addressed by AMI 901. As she testified, she was traveling in the inside lane next to the median when she saw Mr. Cluff’s truck in the intersection. The photographs of the accident site show that Mrs. Druckenmiller’s car skidded from the inside to the outside lane before colliding with the truck.

As for Mr. Cluff’s actions, the evidence presented was sufficient to enable the jury to determine, under AMI 903, incorporating Ark. Code Ann. § 27-51-502, that the truck driver had yielded right-of-way to “all vehicles” that constituted an “immediate hazard.” Mr. Cluff testified that no vehicles were approaching from the opposite direction at the time he began making his left turn in the intersection. Indeed, he stated that he allowed two cars to pass by before he started turning. It was his belief, he stated, as an experienced driver, that he could see far enough down the road in order to make a turn safely.

It is the prerogative of the jury to believe or disbelieve the testimony of any witness. Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993). Further, the jury may choose simply to believe a portion of the testimony of each party. Johnson v. Clark, 309 Ark. 616, 832 S.W.2d 254 (1992). Here, the jury implicitly found that Mrs. Druckenmiller’s claim that Mr. Cluff’s negligence was the proximate cause of the collision was not credible.

But, more to the point, Mrs. Druckenmiller’s own statements on cross-examination amply warranted the trial court’s submission of the question of her negligence to the jury. The trial court, therefore, did not err in this regard, and we so hold.

II. “Sudden emergency ” instruction AMI 614

In her second point for reversal, Mrs. Druckenmiller argues in the alternative that, if there was a submissible issue concerning her negligence, she was still entitled to the benefit of the “sudden emergency” instruction, AMI Civil 3d, 614:

A person who is suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation.

Mrs. Druckenmiller proffered AMI 614 during the reading of instructions, and the trial court refused to give it but noted the proffer. The evidence presented at trial, however, showed that the sudden emergency instruction was not appropriate.

Recently, we have said that in order to warrant the giving of AMI 614, the driver must be in a stressful situation that dictates a quick decision regarding possible courses of conduct. Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993). Before a person is entitled to the instruction, she must have been aware of the danger, must have perceived the emergency, and must have acted in accordance with the stress caused by the danger. Id.

For example, in McElroy v. Benefield, 299 Ark. 112, 771 S.W.2d 274 (1989), we approved the giving of the sudden emergency instruction because of the circumstances surrounding the accident. The appellee, Benefield, testified that, as he came over a rise in the road, he saw the appellants’ vehicle sitting at the edge of the highway, and he decided to ease over to avoid hitting it. As he was doing so, however, the McElroys suddenly pulled out in front of him. Benefield slammed on his brakes, skidding a distance of 108 feet to the point of impact. We held that the evidence supported Benefield’s contention that he was confronted with a sudden emergency.

On the other hand, in Diemer v. Dischler, supra, we held that “the trial court had a sound basis for finding that the danger was not so sudden or unexpected as to justify the instruction.” 313 Ark. at 159, 852 Ark. at 795. There, the appellant, Diemer, had rounded a curve some distance from an intersection where a forklift driven by the appellee, Dischler, had begun to cross and was in her lane of traffic. Dischler stated that he saw Diemer’s car heading toward him from a distance of between 200 to 300 feet at what appeared to be a “pretty fast” speed, and two accident reconstructionists testified that, given the posted speed limit and natural reaction time, Diemer could have stopped before hitting the forklift or could have exercised at least two options.

In the Diemer case, we noted that where the evidence of some negligence on the part of the requesting party is “very strong,” that party is not entitled to the sudden emergency instruction. This view represents an attempted reconciliation of two previous, apparently inconsistent approaches, and was first formulated by the Arkansas Court of Appeals in Ashmore v. Ford, 267 Ark. 854, 591 S.W.2d 666 (Ark. App. 1979):

Two lines of Arkansas Supreme Court cases have developed on the propriety of giving this instruction. Some say the language of the instruction pointing out that it applies only where the negligence of the party seeking the instruction did not cause the emergency is a sufficient safeguard, thus implying the instruction may be given even when there is some evidence of negligence on the part of the party seeking the instruction. See, e.g., Hooten v. DeJarnett, 237 Ark. 792, 376 S.W.2d 272 (1964). Others say a party is not entitled to the instruction where his own negligence has created the emergency. See, e.g., Williams v. Carr, et al, 263 Ark. 326, 565 S.W.2d 400 (1978). These approaches are not inconsistent. When they are combined, the result is that the trial judge may give the instruction in cases where there is some negligence on the part of the party seeking the instruction, but the instruction should not be given where the evidence is very strong that the party requesting the instruction has “created” the emergency by his own negligence.

267 Ark. at 860, 591 S.W.2d at 670. We explicitly adopted the Ashmore v. Ford synthesis in Scoggins v. Southern Farmers’ Ass’n, 304 Ark. 426, 803 S.W.2d 515 (1991), where we quoted the language of the opinion by the Court of Appeals and declared that “We regard that reasoning as sound. . . .” 304 Ark. at 433, 803 S.W.2d at 519.

In considering the present case, however, we have concluded that Ashmore v. Ford’s “very strong” standard is a confusing and misleading statement of the law where AMI 614 is concerned, and for this reason we retreat from our position set forth in both Scoggins v. Southern Farmers’ Ass’n, supra, and Diemer v. Dischler, supra. The language of the sudden emergency instruction speaks in terms of “[a] person who is suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence” and supplies no verbal qualifier or intensifier to justify the “very strong” standard.

Thus, our cases since Scoggins v. Southern Farmers’ Ass’n, supra, have interpolated a position regarding the instruction that is in fact inconsistent with AMI 614’s clear language. Specifically, in Diemer v. Dischler, supra, we held that, under the seenario presented, the trial court could have readily found that the evidence was sufficiently strong that Diemer had been speeding and thus helped to create the emergency and, therefore, that the trial court correctly refused to give AMI 614. The corollary to this rationale would necessarily be that if the evidence of negligence on the part of one seeking to invoke AMI 614 is merely slight, he or she is entitled to have the instruction read to the jury. The application of such a principle would amount to a subversion of the sudden emergency doctrine.

In reexamining the language of AMI 614 itself, we conclude that, when an emergency arises wholly or partially from the negligence of the person who seeks to invoke the sudden emergency doctrine, AMI 614 has no application and should not be delivered to the jury. See Smith v. Stevens, 313 Ark. 534, 855 S.W.2d 323 (1993); Williams v. Carr, supra; Johnson v. Nelson, 242 Ark. 10, 411 S.W.2d 661 (1967); Hooten v. DeJarnett, supra.

Applying this narrower reading of AMI 614, we hold that the trial court did not err in refusing to give the sudden emergency instruction. As quoted above, Mrs. Druckenmiller acknowledged that when she saw Mr. Cluff turning in the intersection, at a distance of between seventy-five to one-hundred feet, she decided to continue heading toward him in the belief that she could get around him. She did not apply her brakes until she was about fifty feet away from the truck, and, further, she “did not have to slam on my brakes.” Like the appellant in Diemer v. Dischler, supra, Mrs. Druckenmiller had a clear view of a vehicle already in an intersection. Unlike the situation in McElroy v. Benefield, supra, there was no sudden veering into the path of an oncoming vehicle.

If there was an emergency here, it was one of Mrs. Druckenmiller’s making. One who creates an emergency cannot take advantage of AMI 614. Smith v. Stevens, supra. As we have indicated, the instruction applies, by its own terms, only to emergencies not caused by a person’s own negligence. Id. In the Smith case, two vehicles collided at the crest of a hill, and both drivers stated that they did not see the other vehicle until about two seconds before the impact and that they immediately made efforts to stop. We rejected one party’s assertion that the other had created the emergency. Any emergency, we held, “was created by the nature of the hill and the road.” 313 Ark. at 538, 855 S.W.2d at 326.

In the present case, though, Mrs. Druckenmiller had the benefit of a level road and a clear field of vision. She simply waited too long to begin braking. To reiterate, one cannot create an emergency by her own action and then seek to benefit by requesting an instruction on sudden emergency. Williams v. Carr, supra. Hence, as we have held, the trial court did not err in declining to read AMI 614 to the jury.

Affirmed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I concur. Today, the court corrects an obvious misstatement of the law which has crept into a few Arkansas cases where AMI 614, our “sudden emergency” instruction, has been in issue. The recurring error is obvious and required this court’s attention and correction.

AMI Civil 3d, 614 provides as follows:

A person who is suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation. (Emphasis added.)

As can be readily discerned from AMI 614’s language, the sudden emergency doctrine has no application and may not be asserted if the emergency arises wholly or partially from the negligence of the one who seeks to invoke the doctrine. See Smith v. Stevens, 313 Ark. 534, 855 S.W.2d 323 (1993); Williams v. Carr, 263 Ark. 326, 565 S.W.2d 400 (1978); Johnson v. Nelson, 242 Ark. 10, 411 S.W.2d 661 (1967); Hooten v. DeJarnett, 237 Ark. 792, 376 S.W.2d 272 (1964). See also J. D. Lee and Barry A. Lindahl, 1 Mod Tort Law § 3.37 (rev. ed. 1993); W. Page Keeton, et al., Prosser and Keeton on Law of Torts § 33, at 196-197 (5th ed. 1984); Henry Woods, Comparative Fault § 4:8 (2nd ed. 1987 and Supp. 1993).

Contrary to AMI 614’s clear language, several cases have surfaced that have stated the law differently. For example, in our most recent case of Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993), this court, citing Scoggins v. Southern Farmers’ Assn., 304 Ark. 426, 803 S.W.2d 515 (1991), and Ashmore v. Ford, 267 Ark. App. 854, 591 S.W.2d 666 (Ark. App. 1979), said the following:

AMI 614 requires the sudden emergency not be caused by the negligence of the party requesting the instruction. We have held in this regard that where the evidence of some negligence on the part of the requesting party is “very strong,’’ that party is not entitled to the instruction. (Emphasis added.)

Diemer at 159. In applying the foregoing misstatement of the law in AMI 614, the Diemer court held that, under the facts existent there, the trial court could readily have found that the evidence was sufficiently strong that Diemer was speeding and helped create the emergency, thus, the trial court correctly refused to give AMI 614. Of course, the corollary rule would have been, if the evidence had been slight on the part of the party seeking to invoke AMI 614, he or she would have been entitled to have it read to the jury. Such a result is a misapplication of the sudden emergency doctrine.

This court’s prior misapplication or misinterpretation of this doctrine is obviously not uncommon. In their treatise, Professors Prosser and Keeton state as follows:

Despite the basic logic and simplicity of the sudden emergency doctrine, it is all too frequently misapplied on the facts or misstated in jury instructions. As'a result, the model jury instructions in at least Illinois, Florida, Kansas and Missouri recommend that no such instruction be given, and Mississippi abolished the doctrine altogether in 1980.

W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 33, at 197 (5th ed. 1984).

ludge Henry Woods, in his edition and update, points to other states adhering to the comparative negligence concept that have since abolished the sudden emergency doctrine. See Eslinger v. Ringsby Truck Lines, Inc., 195 Mont. 292, 636 P.2d 254 (1981); Knapp v. Standford, 392 So. 196 (Miss. 1980); cited as Contra Young v. Clark, 814 P.2d 364 (Colo. 1991); Keller v. Vermeer Mfg. Co., 360 N.W.2d 502 (N.D. 1984). See also Miller v. Eichhorn, 426 N.W.2d 641, 644 (Iowa App. 1988) and Bellas v. Dressier Industries, Inc., 564 So.2d 1305 n. 4 (La. App. 1st Cir. 1990), cert, denied at 569 So.2d 988 (these two cases express doubt regarding the sudden emergency doctrine after their respective state’s adoption of comparative fault).

Other more recent cases in sister jurisdictions have joined the trend either to restrict the use of the sudden emergency instruction in negligence cases or to abolish it altogether. DiCenzo v. Izawa, 723 P.2d 171 (Hawaii 1986) (inasmuch as the risk of prejudicial error in instructing the jury on the [sudden emergency] doctrine exceeds by far the possibility of error in not doing so, [the court] thinks the wiser course of action would be to withhold sudden emergency instructions); Bass v. Williams, 839 S.W.2d 559 (Ky. App. 1992) (with the adoption of comparative negligence, it is error to instruct the jury on a sudden emergency theory); Cowell v. Thompson, 713 S.W.2d 52 (Mo. App. 1986) (emergency instructions are no longer permitted under MAI); Simonson v. White, 713 P.2d 983 (Mont. 1986) (the use of the sudden emergency instruction in automobile cases is hereafter banned); McClymont v. Morgan, 238 Neb. 390, 470 N.W.2d 768 (1991) (the giving of an independent sudden emergency is not warranted in a negligence action). See also 10 ALR 5th 680, Modern Status of Sudden Emergency Doctrine.

In reviewing those cases from jurisdictions that have adopted comparative fault, the appellate courts have generally stated that the problem in giving the sudden emergency instruction is that it singles out one aspect of the general standard of care and may give the doctrine of sudden emergency undue emphasis and may unduly emphasize one party’s argument regarding a certain part of the standard of care. The Hawaii Supreme Court worded it another way, saying, “It would be foolhardy to jeopardize the outcome of trial by giving a [sudden emergency] instruction adding little to the basic jury charge that must be given in any negligence action.” DiCenzo v. Izawa, 723 P.2d at 173.

The utility of the sudden emergency doctrine seems of lit-tie value to me in light of our state’s adherence to the comparative fault doctrine view. In my view, where a sudden emergency occurs, that is only a circumstance for the jury to consider when determining whether a person was exercising ordinary care under the circumstances. An emergency instruction adds nothing to the established law applicable in any negligence case and serves only to leave an impression in the minds of jurors that a driver is somehow excused from the ordinary standard of care because an emergency existed.

The emergency instruction does little more than confuse attorneys and courts when weighing its application, and understandably so when they are about to agree upon giving the comparative fault instruction. If this has been confusing to the bench and bar (and the cases and treatises reflect it has been), surely we cannot expect any better from a jury which must be confounded by such choices.

I certainly agree with the court’s decision to clarify our law that AMI 614 should never hereafter be applicable in situations where there is any evidence of negligence on the part of the party seeking to invoke it. Preferably, I think the court should abolish the use of the sudden emergency doctrine since its use is unnecessary, considering Arkansas’s comparative fault instruction, and serves mainly to confound those who must apply it.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Roy A. FINCH, Jr. v. Jim NEAL, Executive Director, Arkansas Supreme Court Committee on Professional Conduct
    93-1190
    873 S.W.2d 519
    Supreme Court of Arkansas
    Opinion delivered April 11, 1994

      James L. Sloan, for appellant.

      Jeff Rosenzweig, for appellee.
   Jack Holt, Jr., Chief Justice.

The Arkansas Supreme Court Committee on Professional Conduct (Committee) issued a reprimand to appellant, attorney Roy Finch, for a violation of Rule 8.4(d), Model Rules of Professional Conduct, which provides “it is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice” and that he did so while acting as advocate for Don Jones. Mr. Finch appeals. We affirm the Committee’s actions.

Ms. Diana McIntyre Kimbrell (McIntyre) filed a formal complaint with the Committee alleging that Roy Finch, as attorney for her ex-husband Don Jones, committed the following violations of the Model Rules of Professional Conduct:

(1) He knowingly made a false statement of material fact to a tribunal.
(2) He, in the course of representing his client, knowingly made a false statement of material fact to Stephen Cobb.
(3) He engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.
(4) He engaged in conduct that is prejudicial to the administration of justice.

Mr. Finch filed an “affidavit in response” with the Committee. An evidentiary hearing was held after which the Committee, in executive session, unanimously found that Mr. Finch had violated Rule 8.4(d) (incorrectly cited as Rule 8.4(c) in the transcript of the hearing) by engaging in conduct that was prejudicial to the administration of justice. By a vote of six to one, the Committee issued a reprimand to Mr. Finch, with one of its members voting to issue a caution rather than a reprimand.

“Appeals from any action by the Committee after hearing shall be heard de novo on the record and the Arkansas Supreme Court shall pronounce such judgment as in its opinion should have been pronounced below.” Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, § 5(H)(3). We affirm the Committee’s action unless it is clearly against the preponderance of the evidence and will not reverse its findings unless they were clearly erroneous. Arens v. Committee on Prof. Conduct, 307 Ark. 308, 820 S.W.2d 263 (1991); Muhammed v. Arkansas Sup. Ct. Comm, on Prof. Conduct, 291 Ark. 29, 722 S.W.2d 280 (1987); Sexton v. Supreme Ct. Comm, on Prof. Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989).

We are hampered somewhat in our de novo review because the Committee did not make specific findings; however, the record of proceedings and the parties’ briefs are such that we can, on de novo review, determine and resolve the issues before us. The Committee’s failure to make specific findings will be dealt with at length as a separate issue in this opinion.

In determining if Mr. Finch engaged in conduct that was prejudicial to the administration of justice, we look first at the chronology of events, beginning with Mr. Finch filing a motion to abate child support on Mr. Jones’s behalf, a copy of which was sent to Ms. McIntyre. Accompanying the motion was a letter informing her that “the child support unit here claims that it no longer represents either of you in this matter. Thus I am not including them in the notice.” Upon receipt of these materials, she called the Pulaski County Child Support Enforcement Unit (CSEU), which confirmed Mr. Finch’s letter; however, she was advised that she could make application to re-open her file, and an application would be sent to her. Upon receiving the application, she returned it, but she claimed at the hearing that a CSEU employee told her that doing so would be futile because of the short time available to respond to the motion to abate. Relying on this advice, she engaged private counsel, Mr. Maxie Kizer, to represent her, and he filed, on her behalf, a “response to motion,” “requests for production,” and “counter-petition,” noting that Mr. Finch was served with a copy of each.

A few days later, Mr. Finch directed “requests for admissions” to Ms. McIntyre which contained a notation of service on “both attorneys for plaintiff,” but he did not respond to Mr. Kizer’s pleadings. During this time frame, Mr. Finch prepared an agreed order and submitted it to Steve Cobb, attorney for CSEU, who in turn made modifications, returned the order to Mr. Finch who approved the order and returned it to Mr. Cobb with instructions to file the order of record. Neither Ms. McIntyre nor her counsel, Mr. Kizer, were made aware of these actions.

This agreed order, which in essence discontinued child support to the detriment of Ms. McIntyre on her son’s eighteenth birthday, was entered of record on July 10, 1992. On July 14, 1992, Mr. Finch sent a letter, along with a copy of the agreed order, to Mr. Kizer which stated in essence that CSEU was Ms. McIntyre’s attorney of record at that time and that the agreed order abating child support was approved by CSEU attorney Steve Cobb on Ms. McIntyre’s behalf. Apparently, the first knowledge Ms. McIntyre had as to the entry of the “agreed” order was by this letter of notice, and she surmised that Mr. Finch had persuaded Mr. Cobb to enter an agreed order on her behalf without consulting with her or employed counsel, Mr. Kizer.

As a result, Mr. Kizer filed a motion to set aside the order on July 28, 1992. The chancery court declined to set the order aside, noting that the only way it could do so, would be to determine that the judgment was obtained by fraud. Concluding that the intent of the previous order had been for Mr. Jones to pay child support through high school graduation, the court reinstated child support to Ms. McIntyre because her son had returned to her home and had enrolled in high school.

Meanwhile, the Committee conducted an evidentiary hearing on Ms. McIntyre’s complaint against Mr. Finch, at which Ms. McIntyre, CSEU employees Adam Walloch and attorney Steve Cobb, and Mr. Finch testified. Mr. Cobb admitted that he and Mr. Finch had worked on the order and explained that “there really wasn’t an attorney of record” when the final order was entered. He conceded that he had not consulted Ms. McIntyre before approving the final order on her behalf.

Mr. Finch testified that both attorneys seemed to be representing Ms. McIntyre and acknowledged that Mr. Kizer had filed pleadings on Ms. McIntyre’s behalf; however, he did not believe it was necessary to involve Mr. Kizer in perfecting the order as Mr. Kizer had never entered an appearance with the chancery court, and the record still showed CSEU as attorney of record. In examining the records of proceedings before us, we observe that they do not contain any information, other than the testimony of Mr. Cobb and Mr. Finch which are inapposite to one another, as to whether or not there was a designated attorney of record during the time frame in question.

Failure to make special findings

Mr. Finch contends that the Committee committed error by refusing to make special findings of fact and conclusions of law; however, in examining the record we note that Mr. Finch’s request was general and somewhat nebulous in nature:

Mr. Finch: “May we request special findings?”

To which the following response was made by a Committee member, Mr. Virden:

We have never made special findings and we just — we are not finding — I’ll say this on the record, I don’t think anybody will object: we are not saying that there was a fraud committed. We’re saying there was a violation of Rule 8.4(c) [actually, Rule 8.4(d)].

Mr. Finch contends that the Committee committed error by refusing to state facts constituting a violation of Rule 8.4(d) or by failing to explain at the hearing what respondent did that constituted a violation, and that because of this failure, his “due process rights” were violated.

The Committee submits that Mr. Finch has waived this issue because he did not argue below that the failure to make special findings violated his due process rights. It is an elementary principle of administrative law that an issue must be raised at the hearing below in order to be raised on appeal. Reed v. Alcoholic Beverage Control Div., 295 Ark. 9, 746 S.W.2d 368 (1988); Arkansas Cemetery Bd. v. North Hills Memorial Gardens, 272 Ark. 172, 616 S.W.2d 713 (1981); Hawthorne v. Davis, 268 Ark. 131, 594 S.W.2d 844 (1980); Jeffrey Stone Co. v. Raulston, 242 Ark. 13, 412 S.W.2d 275 (1967). However, inasmuch as Mr. Finch asked for “special” findings, we address this issue in a limited manner.

The Committee was established pursuant to Amendment 28 of the Arkansas Constitution which provides, “The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.” The Committee is not bound by rules of the court and is not required to strictly adhere to the rules of evidence or the rules of procedure, because “[t]o do so would unduly complicate and probably lengthen the proceedings before the Committee.” Sexton, 299 Ark. at 447, 774 S.W.2d at 118.

In order to proceed in an orderly fashion, we have established procedural rules, and these rules, on their face, do not require the Committee to make findings of fact. Most pertinent is Section 5(F)(5-6) of the Procedures, which provides:

(5) At the end of the hearing, the Committee shall hold an executive session to deliberate upon any disciplinary action to be taken.
(6) The decision of the Committee shall be announced immediately with a statement of the votes of the individual members, if the decision is not unanimous. If a majority of the Committee votes to caution, reprimand, or suspend an attorney, the Committee shall have the Executive Director notify the complainant of the specific action taken against the attorney and file a copy of the letter of caution, reprimand, or suspension as a public record in the office of the Clerk.

In asking for “special findings,” we assume Mr. Finch meant findings of fact and conclusions of law for he cites Ark. R. Civ. P. 52 in support of his position, which provides in pertinent part: “If requested by a party, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58.” While this is a correct recital, we have held that the Committee is not bound by rules of the court and is not required to strictly adhere to the Rules of Evidence or the Rules of Procedure. Sexton, supra.

Granted, under the circumstances of this case, it would have been appropriate and most helpful for the Committee to have made findings as to Mr. Finch’s conduct which was prejudicial to the administration of justice. By doing so, Mr. Finch would have understood the Committee’s actions and this court would have been in a better position to evaluate the Committee’s findings in our de novo review. Nevertheless, we will review this case on its record and pronounce such judgment as in our opinion should have been pronounced below.

Res judicata or collateral estoppel

For his next argument, Mr. Finch contends that because the chancery court found that there was not clear and convincing evidence of fraud justifying setting aside the decree abating child support, then the question of whether he should be sanctioned by the court for fraud or for engaging in “conduct that is prejudicial to the administration of justice” is barred by res judicata or collateral estoppel. As he limits his argument to res judicata, so will we, but we hold that this argument is meritless.

Mr. Finch is correct in his assessment of the basic elements for res judicata, for in Ward v. Davis, 298 Ark. 48, 765 S.W.2d 5 (1989), we enunciated these elements:

The claim preclusion aspect of the doctrine bars relitigation in a subsequent suit when: (1) the first suit resulted in a judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action which was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies.

Ward, 298 Ark. at 50., 765 S.W.2d at 6.

However, Mr. Finch’s application of these elements is erroneous, because he claims that the chancery court’s disposition of Ms. McIntyre’s motion to set aside the child support order precluded the determination by the Committee of whether he behaved badly as an attorney. The test in determining whether res judicata applies is whether matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein; when the case at bar is based on the same events and subject matter as the previous case, and only raises new legal issues and seeks additional remedies, the trial court is correct to find the present case is barred by res judicata. Arkansas Louisiana Gas Co. v. Taylor, 314 Ark. 62, 858 S.W.2d 88 (1993).

There are a number of reasons why res judicata does not bar action by the Committee. For instance, although the motion to set aside the decree was founded on allegations of fraud, Ms. McIntyre’s complaint to the Committee alleged a number of professional conduct violations: false statement of material fact, dishonesty, fraud, deceit or misrepresentation, as well as conduct prejudicial to the administration of justice. Since the Committee’s findings were predicated on conduct prejudicial to the administration of justice, rather than on fraud, Mr. Finch’s claim of res judicata in this instance is a non-issue.

Conduct Prejudicial to the Administration of Justice

For his final argument, Mr. Finch contends that the Committee erred in concluding that he engaged in conduct prejudicial to the administration of justice because the Committee failed to refer to any standard against which to measure his conduct.

To support his argument, Mr. Finch cites a court of appeals decision, Hollabaugh v. Arkansas State Medical Bd., 43 Ark. App. 83, 861 S.W.2d 317 (1993), which involved discipline of a physician. The Arkansas State Medical Board placed Dr. Hollabaugh on probation and directed her to refrain from writing certain narcotics prescriptions, and the circuit court affirmed this decision. Citing Hake v. Arkansas State Medical Board, 237 Ark. 506, 374 S.W.2d 173 (1964), the court of appeals in Hollabaugh reversed the circuit court, determining that there was not substantial evidence to support the board’s decision:

There is a virtual absence of evidence in the record to sustain the board’s findings, as well as no expert testimony to provide a standard for the board’s medical opinions. The valuable property rights here involved cannot be taken from appellant upon such questionable compliance with due process.

Hollabaugh, 43 Ark. App. at 87, 861 S.W.2d at 319 (citing Hake, 237 Ark. at 520, 374 S.W.2d at 176).

However, what Mr. Finch fails to mention is that the court in Hake noted, prior to the above-cited passage, that the Medical Board had failed to comply with the Medical Practice Act (now Ark. Code Ann. § 17-93-410 (1987)), which required that “all evidence considered by the Board shall be reduced to writing and available for the purpose of appeal or certiorari to any of the parties of said hearing.” Hake, 237 Ark. at 520, 374 S.W.2d at 176. There is not such a requirement in the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law.

In conducting a de novo review, it is obvious to us that Mr. Finch, while representing Mr. Jones in an effort to obtain an abatement of child support, was made aware that Mr. Jones’ ex-wife, Diana McIntyre Kimbrell, had, during the course of the proceedings, employed private counsel in the person of Maxie Kizer to represent her. Although there may have been confusion as to whether she was also represented by CSEU, still, Mr. Finch was well aware of the fact that Mr. Kizer did in fact represent Ms. McIntyre. As mentioned previously, during the time frame in question, Mr. Kizer served Mr. Finch with a response to his motion to abate child support, request for production and a counter petition. Although Mr. Finch did not respond to these pleadings, he did acknowledge Mr. Kizer’s participation in this litigation by sending him a request for admissions directed to Ms. McIntyre. In addition, upon obtaining an order abating child support, Mr. Finch sent a letter, along with a copy of the agreed order, to Mr. Kizer.

In short, Mr. Finch was well aware that Mr. Kizer represented Ms. McIntyre during the proceedings to abate child support, and his claim that Mr. Kizer was not the attorney of record at any given moment, which is subject to factual dispute, is of little consequence under the circumstances. Whether it was intentional or unintentional, the facts remain that Mr. Finch drafted the proposed order, circumvented Ms. McIntyre and her counsel, Mr. Kizer, and negotiated a settlement of these proceedings without the benefit of input from either party. Mr. Finch’s conduct under these circumstances was prejudicial to the administration of justice, and for these reasons we affirm the Committee’s action.


author: Robert H. Dudley, Justice. Robert L. Brown, Justice,

text:
    CITY OF GREEN FOREST, et al. v. Hugh MORSE
    93-1021
    873 S.W.2d 154
    Supreme Court of Arkansas
    Opinion delivered April 11, 1994

      Terry R. Ballard, for appellants.

      F. Lewis Steenken, for appellee.
   Robert H. Dudley, Justice.

Plaintiff, Hugh Morse, was employed as a police officer by the defendant, City of Green Forest, in May 1986. Defendant William Andrews was the Chief of Police. Morse and Chief Andrews had a strained relationship. Andrews, rightly or wrongly, thought Morse had a number of faults as a police officer. On July 10, 1987, Morse engaged in a high speed chase which resulted in a wreck. Morse, an employee-at-will, was discharged by the City on July 27, 1987, for engaging in the high speed chase and for submitting an accident report that Andrews thought was false. Morse sued both the City and Andrews. A jury returned a $5,000 verdict against the City in the wrongful discharge, a $10,000 verdict against Andrews for wrongful discharge, and a $22,000 verdict against Andrews for the tort of outrage. Both the City and Andrews appeal. We reverse and dismiss.

We have consistently taken a narrow view in recognizing claims for the tort of outrage that arise out of the discharge of an employee. The reason is that an employer must be given considerable latitude in dealing with employees, and at the same time, an employee will frequently feel considerable insult when discharged. In this context we have written: “Because of the employer’s right to discharge an at-will employee, a claim of outrage by an at-will employee cannot be predicated upon the fact of the discharge alone. However, the manner in which the discharge is accomplished or the circumstances under which it occurs may render the employer liable.” Harris v. Arkansas Book Co., 287 Ark. 353, 356,700 S.W.2d 41, 43 (1985). In another employee discharge case, Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 244-45, 743 S.W.2d 380, 383 (1988), we wrote, “The recognition of the tort of outrage does not open the doors of the courts to every slight insult or indignity one must endure in life.” In other employee discharge cases we have held that the facts surrounding the discharge did not meet the criteria for the tort of outrage. Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991); Sterling v. Upjohn Healthcare Servs., Inc., 299 Ark. 278, 772 S.W.2d 329 (1989); Ingram v. Pirelli Cable Corp., 295 Ark. 154, 747 S.W.2d 103 (1988). The duty owed is a matter of law, and we have said that duty is to refrain from conduct that is so extreme and outrageous as to go beyond all possible bounds of decency and to be utterly intolerable in a civilized society. M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980).

Only once have we held that a plaintiff met the standard for proving the tort of outrage in an employee discharge case. That case was Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). The facts surrounding that discharge were so extreme and outrageous that they went beyond the bounds of decency and truly were intolerable. The employer, Tandy Corporation, thought that Bone, the manager of one of its stores in Little Rock, was stealing either money or merchandise. Bone suffered from a personality disorder which made him more susceptible to stress and fear than normal. His psychiatrist had prescribed, and he had been taking, a tranquilizer for three years. Bone’s supervisor and two security officers came to the store to conduct an investigation of the losses. Bone was questioned at thirty minute intervals throughout the day. According to Bone, the security men cursed him, threatened him, and refused to allow him to take his prescribed medication. Bone was subsequently asked to take a polygraph examination and consented. At that time he was in a highly agitated condition and again asked for his medication. The request was denied. He testified that on at least three occasions he had asked to be allowed to take his medication, but each time his request was refused. He stated that once he reached in á desk drawer for his medicine, but one of the investigators slammed the drawer shut. He was eventually taken to another location in Little Rock for the examination, and, while there, hyperventilated. An ambulance was called, but Bone was taken home by the supervisor. The next day, Bone attempted to return to work, but was unable to do so. He was subsequently hospitalized for a week. In holding that Bone had met the standard for the tort of outrage surrounding the discharge, we endeavored to make the basis for the holding clear when we wrote:

It was for the jury to decide whether under the circumstances it was outrageous conduct for the employer to deny Bone his medication and to continue to pursue the investigation knowing Bone was on medication or Valium. We emphasize that the notice to the employer of Bone’s condition is the only basis for the jury question of extreme outrage.

Tandy Corp., 283 Ark. at 408, 678 S.W.2d at 317 (emphasis supplied). The case was reversed and remanded on other grounds.

The facts of this case do not come close to meeting the standard for the tort of outrage. Viewing the evidence, and all inferences from that evidence, most favorably to appellee Morse, the facts do not show any act wholly beyond the bounds of decency surrounding the discharge. It is undisputed that a high speed chase and wreck occurred and that Morse filed an accident report. He was subsequently suspended with pay. The chief then wrote a letter to the City Council requesting the dismissal of Morse. A meeting of the Council was held. Subsequently, the City Council discharged Morse. The facts surrounding the discharge do not constitute the tort of outrage.

Morse contends that even if the facts immediately surrounding the discharge were insufficient for the tort of outrage, all of the other indignities that he endured during his tenure as a police officer were sufficient to meet the standard for the tort. He bases his argument on the case of Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792, cert, denied, 475 U.S. 1036 (1985). In that case, Hess, a city director during most of the material time, had a very strong dislike for Treece, a city policeman, over an incident involving a girlfriend. Hess stated that he would have Treece’s job at any cost. Over a two-year period he made vengeful attempts to have Treece fired and, in doing so, acted in a manner that went beyond the bounds of decency and inflicted severe emotional distress on Treece. Hess frequently called Treece’s superior officers to complain about Treece. On one occasion he notified one of the superiors that Treece was in an apartment at a time when he was supposed to be at work. A police investigation found Treece innocent of the charge. Hess made other frenzied and groundless charges, which caused departmental investigations. Hess asked Treece’s bookkeeper to watch his movements and report those movements back to him. Police supervisors testified they were called upon by Hess sometimes as often as twice a week over the two-year period to investigate Treece’s conduct. Treece’s superiors frequently questioned him about his activities. Hess also contacted the city manager and the assistant chief and sought to have Treece fired. Hess employed a woman who lived in the same apartment as Treece to report on Treece’s movements. Hess frequently called the police department from the woman’s apartment, and he told her that he would spend every dime he had to see that Treece was fired. Hess even contacted a newspaper reporter and told him that Treece was being paid to perform private security duty while he was supposed to be on duty for the police department. Treece knew of Hess’s actions and became concerned for his safety and the safety of his family. He changed his lifestyle because of the fear. Fellow police officers testified that over the two-year period Treece became distraught, nervous, frightened, and asked for their help. Under those facts, we affirmed the jury’s finding that Hess’s conduct was utterly intolerable in a civilized society.

The case at bar does not rise to the same level of conduct. Plaintiff Morse and defendant Andrews, the chief of police, had a rocky, fourteen-month employer-employee relationship. Morse was hired as a employee-at-will, and, under the applicable statutes, was a probationary police officer. His probation was extended on two occasions by Andrews. Andrews showed anger toward Morse on occasion and cursed him. The proof also showed that during the same period Andrews got angry at other officers and likewise cursed them. Andrews inquired about Morse’s personal debts and whether he was paying his creditors, about his roommate, who was a former convict, and whether he had parties at which he served alcohol to minors. Andrews chastised Morse for drinking soft drinks in the squad car and accused him of fabricating an excuse for not attending a short course on the operation of a breathalyzer machine. There were other minor incidents. Morse testified that he was constantly on edge while working for the department. Morse testified that the accident report he filed was not false, and that Andrews was in error in thinking that it was. He also said that Andrews told him that sheriffs in three counties would arrest him for making a false report. Such proof does not reach the level of being so extreme and outrageous as to be utterly intolerable in a civilized society. As we said in Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), we have not opened the doors of the courthouse to every insult or indignity one must endure in life. Accordingly, we reverse and dismiss the claim for the tort of outrage.

Appellants next contend that the evidence was not sufficient to support the awards for wrongful discharge. Again, the argument has merit. Morse was hired as a probationary officer. He was an at-will employee. “It is the general rule that ‘when the term of employment in a contract is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at will and without cause.’” Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 244, 812 S.W.2d 463, 466 (1991) (quoting Griffin v. Erickson, 277 Ark. 433, 436, 642 S.W.2d 308, 310 (1982) (emphasis added). We further stated, “Generally, ‘employment is held only by mutual consent, and at common law the right of the employer to terminate the employment is unconditional and absolute.’” Baysinger, 306 Ark. at 244, 812 S.W.2d at 466 (quoting Griffin, 277 Ark. at 436, 642 S.W.2d at 310).

In Sterling Drug, we approvingly quoted from a United States District Court opinion that outlined four exceptions to the employment-at-will doctrine. We quoted:

Arkansas law would recognize at least four exceptions to the at-will doctrine, excluding implied contracts and estoppel. These are: (1) cases in which the employee is discharged for refusing to violate a criminal statute; (2) cases in which the employee is discharged for exercising a statutory right; (3) cases in which the employee is discharged for complying with a statutory duty; and (4) cases in which employees are discharged in violation of the general public policy of the state.

Sterling Drug, 294 Ark. at 245, 743 S.W.2d at 383 (quoting Scholtes v. Signal Delivery Serv., Inc., 548 F. Supp. 487, 494 (W.D. Ark. 1982)). In Sterling Drug, we recognized a public policy exception when an employer discharges an employee for disclosing that the employer was submitting false information to the government in contract negotiations. We wrote: “Therefore, we hold that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state. This is a limited exception to the employment-at-will doctrine. It is not meant to protect merely private or proprietary interests.” Sterling Drug, 294 Ark. at 249, 743 S.W.2d at 385 (emphasis supplied). In sum, the exceptions to the at-will doctrine will be recognized to protect a well-established and substantial public policy and not merely to protect the private or proprietary interests of the employee. The existence of a clear and substantial public policy presents a question of law.

All of the exceptions to the at-will doctrine listed in Sterling Drug are based on well-established and substantial public policy. Thus, under our established case law, the City had full discretion to discharge Morse with or without cause unless he came within one of the exceptions which are recognized to protect an established public policy. Stated differently, unless Morse could establish that his discharge would jeopardize some substantial and well-established public policy, the City had complete discretion to fire him.

Morse argues that he comes within an exception because he was discharged for complying with a statutory duty. He contends that (1) Ark. Code Ann. § 14-44-113 (1987) requires a police officer “to pursue and arrest any person fleeing from justice,” (2) that he was pursuing a person who was fleeing from justice when he wrecked the police car, and (3) his discharge was the result of the wreck and therefore against public policy. Morse’s contention that he is entitled to recover for wrongful discharge is without merit for two reasons. First, his construction of the statute is skewed. The word “pursue” means to follow with enmity. Webster’s Third New Int’l Dictionary 1848 (1961). Enmity means ill will such as actuates a personal enemy. Id. at 754. The statute means that a police officer is charged with the duty of following a lawbreaker with dogged determination for the purpose of arresting him. It does not mean that a police officer is required to drive a police car at high speeds in contravention of departmental policy and required to endanger lives of others, in order to immediately arrest a misdemeanant. Second, Morse was not fired for violating a substantial and well-established public policy. There is no substantial and well-established public policy that requires a police officer to drive a police car at unsafe speeds in order to arrest a misdemeanant. Rather, cities have a legitimate public policy interest in preventing such dangerous chases. There is no damage to a substantial public policy if cities are allowed to discharge police officers for engaging in dangerous high speed chases of misdemeanants.

Finally, Morse’s argument ignores the obvious fact that the manner in which he pursued the misdemeanant was only one of the factors, albeit an important one, that contributed to his discharge. Chief Andrews testified, and Morse agreed, that Andrews constantly stated, rightly or wrongly, that Morse’s performance as a police officer was lacking. Morse was fired for what was perceived, rightly or wrongly, by Andrews and the City Council as poor performance as a police officer, for the manner in which he conducted the pursuit, and for falsifying a report about the accident. However, even if he were fired solely for the manner in which he conducted the pursuit, there is no public policy that requires a police officer to pursue a nondangerous offender at high speeds. In sum, there was no evidence, or fair inference from the evidence, that Morse was fired solely for carrying out a well-established public policy of the State. Consequently, we must also reverse and dismiss the verdicts for wrongful discharge.

Reversed and dismissed.

Holt, C.J., Newbern and Brown, JJ., dissent in part and concur in part.

Robert L. Brown, Justice,

Concurring in part; dissenting in part. I concur completely in the majority’s reversal of the verdict for tort of outrage but would affirm the jury’s verdicts for wrongful discharge.

While Hugh Morse may well have been an at-will employee, he was fired in significant part for fulfilling his duties as a law enforcement officer and that raises a jury question of whether the public policy of the State of Arkansas has been contravened. As the majority points out, this court has held that one exception to the at-will doctrine occurs when an employee is discharged for performing a duty which that employee is obligated by statute to perform. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), citing Scholtes v. Signal Delivery Service, Inc., 548 F.Supp. 487 (W.D. Ark. 1982). That is what occurred in this case.

The public policy of this state is found in its constitution and statutes. The statute applicable to these circumstances, according to the majority, defines the duty of police officers:

(3) Pursue and arrest any person fleeing from justice in any part of this state; and
(4) Apprehend any persons in the act of committing any offense against the laws of the state or the ordinances of the city and forthwith to bring such persons before the mayor or other competent authority, for examination or trial.

Ark. Code Ann. § 14-44-113(b)(3) & (4) (1987).

By dismissing Morse for a high speed chase of a DWI offender, Chief Andrews appears to have terminated Morse for doing precisely what he was supposed to do — pursue one who violates the law and flees from authority. Here, the chase began when Morse observed a suspicious individual get in a brown Dodge pick-up truck and begin driving erratically in the wrong lane. Morse pulled behind the truck and put on his blue lights. The driver refused to pull over and increased his speed to over 80 miles per hour. Morse got on his radio and reported the matter. He testified that he was told to give pursuit. He did so on a dusty road and wrecked his police car.

Chief Andrews responded to the accident scene. Morse told the Chief that the suspect must have rammed him. The Chief disagreed. Morse said he was pressured by the Chief to file his report of the incident as soon as possible. In his report, Morse apparently stated that the suspect rammed him. Chief Andrews did not believe that this occurred. Morse then prepared a second report which included information that he said he omitted from his first report. Chief Andrews still did not believe Morse’s version of the events.

Chief Andrews sent the City Council a memo setting out his belief that Morse’s actions violated police procedures outlined in his manual entitled “Andy’s Red Book”. The manual lists seven factors that should be considered before an officer engages in a high speed chase. They are: (1) type of violation; (2) weather conditions; (3) road conditions; (4) visibility; (5) danger to motorists and pedestrians; (6) availability of assistance; and (7) probability of success. Applying these' seven factors to the case at hand, the City Council first suspended Morse and then dismissed him.

At trial, Morse maintained that the high speed chase and accident was the sole reason for his dismissal. Chief Andrews disagreed but did admit that he too would have initiated pursuit against the suspect driver. The issue then seems to be when should Morse have broken off the chase.

It is clear that the dogged pursuit by Morse was an integral reason for his termination. It is also clear that Chief Andrews and Morse had a personality problem and that Morse believed that the Chief used the chase and accident as a means of getting rid of him. This, to my way of thinking at least, raises the spectre of penalizing Morse for doing his duty according to statute with unfortunate results. We have said that a firing caused by an employee’s claim for workers’ compensation benefits runs afoul of state policy. Mapco, Inc. v. Payne, 306 Ark. 198, 812 S.W.2d 483 (1991). In that case we noted that the employee had presented sufficient facts for the matter to go to the jury. That the public policy exception presents a fact question has been referenced in other cases. See Cross v. Coffman, 304 Ark. 666, 805 S.W.2d 44 (1991); Webb v. HCA Health Services of Midwest, Inc., 300 Ark. 613, 780 S.W.2d 571 (1989).

Police chiefs and city councils must be endowed with the authority to fix policy and criteria for termination. And a law enforcement officer who goes too far and is overly zealous in executing his duties should be subject to punishment. The circumstances in this case, however, do present an issue as to whether other motives were at work here. At least a sufficient fact question has been raised.

In my judgment, this was a proper matter for the jury’s resolution. The jury found in Morse’s favor. I would defer to that verdict and affirm the judgments for wrongful discharge.

Holt, C.J., and Newbern, J., join.

Corbin, J., not participating.


author: Tom Glaze, Justice.

text:
    Larry HUTCHERSON v. STATE of Arkansas
    93-1211
    873 S.W.2d 164
    Supreme Court of Arkansas
    Opinion delivered April 11, 1994

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by; Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Larry Hutcherson filed a petition for writ of habeas corpus in the Lincoln County Circuit Court in an attempt to set aside his 1976 conviction for capital felony murder rendered in Monroe County Circuit Court. He claimed the Monroe County Circuit Court lacked subject matter jurisdiction because the Interstate Agreement on Detainers Act (IAD) had been violated by authorities at the time he was convicted. The Lincoln County Circuit Court rejected Hutcherson’s argument and request for writ, and Hutcherson brings this appeal from the lower court’s decision. We affirm.

In 1975, Hutcherson was arrested and subsequently convicted on a federal felony charge, but before his conviction he escaped. An Arkansas state trooper was killed in Monroe County during Hutcherson’s capture. Hutcherson was convicted on the federal charge on May 14, 1975, and, in June of 1975, federal authorities released him on a detainer so the state could try him on a capital murder charge for the death of the state trooper. That trial resulted in a mistrial, but the federal authorities later released Hutcherson on a second detainer, so he could be tried again on March 17, 1976. At the second trial, he was convicted and sentenced to life imprisonment without parole. That conviction was affirmed on appeal in Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977). He has served his federal sentence and is now serving his life sentence in this state’s penitentiary.

Hutcherson argues the Monroe County Circuit Court had no jurisdiction of his 1976 state murder conviction because the federal and state authorities violated the IAD, specifically, Article IV(e) of Ark. Code Ann. § 16-95-101 (1987) of that Act. That provision reads as follows:

(e) If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Hutcherson claims that, under the foregoing terms, the Monroe County Circuit Court lost jurisdiction of the capital felony murder charge against him after he was first tried, suffered a mistrial and returned to federal prison. That reading of the IAD is clearly distorted, since that Act merely provides an indictment, information, or complaint is invalidated only where a criminal defendant is not brought to trial on pending state charges before he is returned to federal custody. Here, Hutcherson was brought to trial, although the first trial ended in a mistrial.

Even if Hutcherson’s interpretation of the IAD had any merit — and it does not — we have held that a violation of Article IV(e) of that Act is a non-jurisdictional error and is therefore waivable by a criminal defendant. Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988). Such an issue was one to be raised on direct appeal which Hutcherson did not do when he was tried and convicted in 1976. See Hutcherson, 262 Ark. 535, 558 S.W.2d 156. This court has held repeatedly that a petition for writ of habeas corpus cannot serve as a substitute for an appeal of a criminal conviction. See Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991); Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990).

Based on the foregoing authorities and reasoning, we affirm the trial court’s denial of Hutcherson’s request for issuance of a writ of habeas corpus.


text:
    Danny Lee MIDGETT v. STATE of Arkansas
    CR 93-1040
    873 S.W.2d 165
    Supreme Court of Arkansas
    Opinion delivered April 11, 1994

      Val P. Price and Christopher M. Jester, for appellant.

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

The twenty-eight year old appellant, Danny Midgett, was arrested and charged by information as a habitual offender for two counts of rape by deviate sexual activity of his two stepdaughters, who were ten and seven years old at the time, and for possession of a firearm by a convicted felon following events on the night of May 8, 1992. Subsequently, the firearm charge was severed. Following trial by jury, Midgett was convicted on both counts of rape and sentenced to life imprisonment on each to run consecutively. Midgett appeals from that verdict.

The evidence at trial demonstrated Midgett was in the living room of his house on the night in question, and during that time he coerced the younger child to penetrate herself with her own hand, and he inserted his hand into her vagina. Further, evidence showed that Midgett had forced the older child to place his penis in her mouth, he had inserted his hand into her vagina, and had attempted to insert his penis into her vagina. At home during this time but in different rooms were the girls’ two brothers and their natural mother. The mother, hearing the cries of her daughters and seeing her husband and older daughter naked together in a chair, left the house and called for help. When the sheriff’s department arrived, at least three deputies viewed Midgett through a window as he was attempting to penetrate the older child.

After breaking down the door, the deputies chased Midgett through the house and out into the yard where Midgett was apprehended. At the time of his capture, Midgett was informed of his rights and indicated he was “pleading the fifth,” but later gave an inculpatory statement. Evidence showed Midgett had been drinking heavily that night and that he was intoxicated.

At trial, Midgett elected not to present any witnesses or other evidence. For reversal, Midgett argues the trial court erred in failing to suppress his inculpatory statement, allowing the state to amend the information and instruct the jury accordingly, denying his motion for a directed verdict, and refusing to submit certain instructions to the jury. Because we find his arguments without merit, we affirm.

Midgett first argues his inculpatory statement should have been suppressed because it was not voluntarily given. He claims he was drunk, he had invoked his fifth amendment rights and he did not initiate the conversation. At the Denno hearing, the undisputed testimony was that Midgett had been informed of his constitutional rights at the time of his capture.

Deputy Sheriff Allan Hicks, the investigating officer, testified he first encountered Midgett shortly after midnight when Midgett was being transported from the scene of the crime, and Midgett had requested that he be taken to the hospital for injuries he sustained during his capture. Hicks testified that each time he questioned Midgett about his injuries, Midgett responded that he was pleading the fifth amendment. Hicks also testified that there was a strong odor of alcohol and that Midgett exhibited “at least some degree of intoxication.” After Midgett’s third response that he was pleading the fifth, Hicks determined Midgett’s injuries did not warrant a hospital visit, and Midgett was transported to jail.

Around 2:30 a.m., Hicks met with Midgett at the jail and, still detecting a strong odor of alcohol, asked Midgett how much he had had to drink. Hicks went over the rights form and Midgett stated he understood each question. Hicks then asked Midgett to read the waiver statement and sign the form. Midgett read the statement but refused to sign, and stated that he wished to plead the fifth and wanted an attorney. As Hicks was leaving the room, Midgett asked Hicks to explain the charges against him. Hicks did so and testified Midgett said, “[W]hat he had done was wrong but what we had done to him was also wrong.”

It is this statement that Midgett argues should have been suppressed. The trial court found that the time between the initial contact with Midgett around 12:15 a.m. and the 2:30 a.m. meeting at the jail was a reasonable time in which Hicks could have expected Midgett to have sobered. It further found that Midgett understood his rights and that his statement was given voluntarily and spontaneously.

The state has the burden of proving by a preponderance of the evidence that a custodial confession or inculpatory statement was given voluntarily or was knowingly and intelligently made. And while this court makes an independent determination based on the totality of the circumstances, a trial court will not be reversed unless its determination is clearly erroneous. Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992); Anderson v. State, 311 Ark. 332, 842 S.W.2d 855 (1992); McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988). Whether an accused had sufficient mental capacity to waive his constitutional rights, or was too incapacitated due to drugs or alcohol to make an intelligent waiver is a question of fact for the trial court to resolve. McDougald, 295 Ark at 280, 748 S.W.2d at 341. The fact that an appellant might have been intoxicated at the time of his statement, alone, will not invalidate that statement, but will only go to the weight accorded it. Id.; Davis, 308 Ark. at 488, 825 S.W.2d at 588.

. When the appellant claims intoxication at the time he waives his rights by making a statement, the test for an intelligent waiver is whether, the individual had sufficient mental capacity at the time to know what he was saying under the totality of the circumstances. Id. at 488-489. Previously, this court has found it significant that the appellant answered questions without indications of physical or mental disabilities, remembered details of the interrogation, and gave the statement within a short period of time after his rights had been read to him. McDougald, 295 Ark. at 280.

Here, the evidence showed Midgett was informed of his rights both at the scene of the crime and at the jail, Midgett was a convicted felon and knew enough to “plead the fifth”, and Deputy Hicks went over the Miranda form with Midgett two hours after his capture. Even though he still smelled of alcohol, Midgett was able to acknowledge his understanding of each right, read the waiver statement, and request a court-appointed attorney. Upon Midgett’s request for an attorney, Hicks correctly terminated the interview by rising from his chair and turning to leave the room when Midgett initiated further conversation. The fact that Midgett demonstrated concern for what charges would be filed against him is also significant evidence that he understood the situation and had the mental capacity to comprehend the gravity of the consequences. Based on the record before us, the trial court was not clearly erroneous in denying Midgett’s motion to suppress.

Midgett next argues that, prior to trial, the state filed an information on him to include two counts of rape by deviate sexual activity pursuant to Ark. Code Ann. § 5-14-103 (Repl. 1993); but following presentation of the evidence, the court allowed the state to amend the information by adding a charge of rape by sexual intercourse against the older child. Midgett contends he was both surprised and prejudiced by the state’s amendment and this constituted error.

As long as the amendment does not change the nature or degree of the crime charged and the appellant is not surprised, the state may amend an information at any time prior to submission of the case to the jury. Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993). In Cokeley v. State, 288 Ark. 349, 705 S.W.2d 425 (1986), this court held rape is a single crime with two different methods of commission. Ark. Code Ann. § 5-14-103 (Repl. 1993) provides in relevant part as follows:

(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(3) Who is less than fourteen (14) years of age.

Deviate sexual activity is described as sexual gratification by penetration, however slight, of the anus or mouth of one person by the penis of another or of the vagina or anus of one person by any body member or foreign instrument manipulated by another; while sexual intercourse is defined as penetration, however slight, of the vagina by a penis. Ark. Code Ann. § 5-14-101(1) and (9); Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984). The penalty for rape is the same whether it is by deviate sexual activity or by sexual intercourse.

At trial, Deputy George Williamson testified that he saw Midgett penetrate the older child:

When I bent down to look in the window, I saw a naked man standing there and a young girl sitting on a chair with her legs spread out. The man was holding his penis in his hand and ramming it into the girl. I was about 2-3 feet from him that he was attempting to get his penis into the girls (sic) vagina. He had his penis in her vagina and kept ramming it in to her.

While deputies Spencer Moore and Steve Bradley were not able to testify that they saw Midgett actually penetrate the child, they were able to testify that Midgett was naked and kneeling in front of the child who was sitting naked on a chair with her legs spread, and Midgett was making movements and the appearance of sexual intercourse. The older child, herself, testified that “right before the police got there, Danny tried to put his private part inside mine.”

Additionally, the older child testified about an event that occurred earlier that same night when Midgett had her outside the house:

When I was outside and didn’t have any clothes on it was because Danny made me pull them off. He put his thing in my private part when he had me take my clothes off.

Consistent with the foregoing law and evidence, the trial court was correct in allowing the state to amend the information to conform to the proof and to instruct the jury accordingly since the amendment did not change the nature or degree of the crime. See Wood v. State, 287 Ark. 203, 697 S.W.2d 884 (1985). Since he was already charged with two counts of rape, Midgett cannot claim surprise due to the amendment.

Midget’s next point involves his motions for a directed verdict at the end of the Denno hearing, and again at the close of the state’s case. Because Midgett did not present evidence, it was not necessary that he renew his motion after the defense rested. Midgett argues the evidence was insufficient to prove he raped the older child by sexual intercourse and insufficient to prove he raped the younger child by deviate sexual activity.

This court views the evidence most favorably to the appellee and the testimony of a rape victim is sufficient to support a conviction. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992); White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990). Further, any inconsistencies in the victim’s testimony is for the jury to resolve. Id.

The testimony of the older child alone is sufficient to support Midgett’s conviction for rape by sexual intercourse. But when her testimony is coupled with the testimonies of the three deputies, the evidence against Midgett overwhelmingly supports his conviction for rape by sexual intercourse.

Midgett now argues it was physically impossible for the deputies to view the scene as they testified due to the layout of the house. However, Midgett failed to abstract any impeaching testimony, or any diagrams or photographs to support his argument. This court has stated numerous times the record on appeal is confined to that which is abstracted, and failure to abstract a critical document or other evidence precludes this court from considering the issues concerning it. Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991).

Next, the evidence supporting Midgett’s conviction for rape by deviate sexual activity of the younger child includes her testimony and testimony of a nurse. Midgett requested that the court strike the younger child’s testimony from the record because immediately after the event, she did not tell the officers that Midgett “stuck his hand in my private thing” as she did at trial. The trial court correctly denied Midgett’s motion to strike. While Midgett’s attorney attempted to impeach the child on cross-examination, she was adamant that she did not remember talking to the officers after the event and that Midgett had penetrated “her private thing” with his hand.

A child who is called to testify is held to the same standard of competency as an adult, and a trial court must begin with the presumption that every person is competent to be a witness. Holloway v. State, 312 Ark. 306, 849 S.W.2d 473 (1993). The burden of persuasion is upon the party alleging the witness is incompetent by establishing the lack of at least one of the following: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the person can communicate to the factfinder a reasonable statement of what was seen, felt and heard. Further, the competency of a witness is a matter lying within the sound discretion of the trial court, which this court will not reverse on appeal absent clear abuse of that discretion. Id.

This court has held a child was competent to testify even when his testimony is not completely clear, and where the child had instances of not remembering and minor conflicts in his testimony. Id., Warbington v. State, 240 Ark. 1073, 405 S.W.2d 281 (1966). In Holloway, 312 Ark. at 314, this court reaffirmed its view that the evaluation of the child by the trial court is particularly important because of the court’s opportunity to observe the child and to assess the child’s intelligence and understanding of the need to tell the truth.

Here, the younger child, who was eight years old at the time of trial, indicated her understanding of the need to tell the truth, the meaning of her oath, and the consequences of not telling the truth. The child testified not only about what Midgett did to her, but also about what she saw Midgett do to her sister. Variances in testimony do not warrant a finding of incompetence but are for the jury to resolve. Holloway at 316.

Additionally, Cindy Rothe, a licensed practical nurse at Methodist Hospital, testified as to the physical examination of the younger child in the emergency room on the night of the crime. Rothe testified that the child had bruises and welts on her buttocks and small bruises billaterally on her inner thighs. The younger child suffered from erythema of the introitus and labia which Rothe testified indicated irritation and swelling of the vaginal area.

Taken as a whole, the evidence is more than sufficient to support both Midgett’s convictions for rape by sexual intercourse and rape by deviate sexual activity.

Finally, Midgett argues the court should have instructed the jury on sexual abuse in the first degree as a lesser included offense and that this instruction was proffered to the court. However, because the record fails to reveal the proffer, and neither the proffer nor the instruction is abstracted, it is not necessary to address the merits of Midgett’s argument. Additionally, Midgett argues the trial court erred by refusing to give a theory of the defense instruction which he also failed to proffer.

As this court as stated many times, the failure to proffer an instruction results in a waiver of that issue on appeal. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). Simply giving a set of instructions to the trial judge is not sufficient, and places the responsibility on the trial judge of bringing up a record on appeal which rightfully belongs on the appellant. Id.

Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been reviewed and no other errors appear which were prejudicial to the appellant.

Affirmed.

      It is not clear if this witness was offered as an expert, but if so, the defense did not object.


text:
    Billy WHITEHEAD v. STATE of Arkansas
    93-1259
    873 S.W.2d 800
    Supreme Court of Arkansas
    Opinion delivered April 11, 1994

      Ogles Law Firm, by: John Ogles, for appellant.

      Winston Bryant, Att’y Gen., by; Vada Berger, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

On August 24, 1992, the Cabot Municipal Court issued an arrest warrant for appellant Billy Whitehead, who was sixteen years old. The warrant was based upon an affidavit by Janet Stanley, who averred Whitehead had raped Stanley’s fourteen-year-old daughter on May 29, 1992, at a vacant house located behind a residence where both teenagers had attended a party. On November 10, 1992, the municipal court conducted a probable cause hearing and bound Whitehead’s case over to the Lonoke County Circuit Court for further proceedings; however, the state has never filed an information or indictment in circuit court, specifying any felony charge against Whitehead. Nonetheless, the circuit court acted on Whitehead’s motion to transfer his case to juvenile court, and denied it on July 19, 1993. Pursuant to Ark. Code Ann. § 9-27-318(h) (Repl. 1993), Whitehead brings this interlocutory appeal and contends the court erred in denying his transfer motion. He also argues he has never been properly charged by information or indictment, so the state’s case should be dismissed.

Whitehead correctly points out that felony charges in circuit court are required to be brought by indictment or information. State v. Pulaski County Circuit-Chancery Court, 316 Ark. 473, 872 S.W.2d 854 ( 1994); Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). In Rhoades v. State, 315 Ark. 662-A, 875 S.W.2d 814 (1994) (1994), we made it clear that, under Ark. Code Ann. § 9-27-313(b) (Repl. 1993), an officer taking a juvenile into custody must immediately take the juvenile before the court out of which the warrant was issued and that court shall decide whether jurisdiction is in juvenile court or circuit court under § 9-27-318. Then, under Ark. Code Ann. § 9-27-318(d) (Repl. 1993), the judge of the court in which a delinquency petition or criminal charges have been filed shall conduct a hearing to determine whether to retain jurisdiction or to transfer the case to another court having jurisdiction.

As pointed out above, the state never filed a felony charge by information or indictment against Whitehead, thus the circuit court had no authority to conduct a hearing under § 9-27-318(d). In addition, it is fundamental, established law that a party cannot be found guilty of a crime with which he or she was never charged. Davis v. State, 296 Ark. 524, 758 S.W.2d 706 (1988); Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985). Until a proper charging instrument (information or indictment) is filed by the state in this matter, the circuit court simply had no authority to proceed, much less rule on a transfer motion under § 3-27-318.

In conclusion, we note the state’s argument that Whitehead filed this interlocutory appeal under § 9-27-318(h) to obtain a ruling that the circuit court erred in denying his transfer motion and that Whitehead is limited only to those issues expressly permitted under that statute. This court, of course, has the discretion to treat an appeal from an order, judgment or decree which lacks judicial support as if it were brought up on certiorari, Dennison v. Mobley, Chancellor, 257 Ark. 216, 515 S.W.2d 215 (1974). Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy, and the writ is available to us in the exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). Certiorari, however, may only be resorted to in cases where an excess of jurisdiction is apparent on the face of the record. Id. That is the situation before us now.

. The circuit court certainly has subject matter jurisdiction over criminal charges, but as discussed above, the record clearly reflects (and the state does not dispute) that no felony charge has, as yet, been properly filed against Whitehead. That being so, the circuit court’s order denying transfer of this cause is a nullity and must therefore be quashed.

Writ granted.

      Curiously, the Stanley affidavit was captioned “In the Chancery Court Juvenile Division of Lonoke County, Arkansas —Affidavit for Petition for the Following Person: Billy Whitehead.”

      Whitehcad filed a motion to dismiss, but no ruling was obtained.

      The necessity of a charging instrument, before allowing the state to proceed against an accused, seems fundamental, but an information’s significance here is further heightened by this court’s prior holdings that a criminal information alone may be a sufficient basis for a circuit court’s decision to refuse to transfer a case to juvenile court. See Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991).