author: Donald L. Corbin, Justice.

text:
    Everett FOREMAN v. STATE of Arkansas
    CR 94-645
    901 S.W.2d 802
    Supreme Court of Arkansas
    Opinion delivered June 19, 1995

      Wallace, Hamner & Adams, by: Dale E. Adams, Esq., for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Sr. Appellate Advocate, for appellee.
   Donald L. Corbin, Justice.

On May 15, 1993, Henry Callanen was fatally shot and robbed in the course of his employment as a security guard at a McDonald’s restaurant on Roosevelt Road in Little Rock. In connection with that event, appellant, Everett Foreman, was charged by felony information with committing the crimes of aggravated robbery and capital murder. A co-defendant, Durrell Childress, was likewise charged. In November 1994, pursuant to jury verdict, appellant was found guilty of the crimes of aggravated robbery and murder in the first degree. The trial court entered a judgment of conviction for murder in the first degree and sentenced appellant to life imprisonment. This appeal arises therefrom.

Appellant states four points of appeal, one of which is the trial court erred in denying his motion to suppress his out-of-court statement given to the police. We find this point has merit and reversible error occurred. The judgment is reversed on this point and the case remanded. We discuss this point as well as appellant’s point that it was error to admit the hearsay statement of an unavailable witness for the benefit of the trial court upon retrial. Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994). Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(a)(2).

ADMISSION OF APPELLANT’S STATEMENT

During custodial interrogation at the Little Rock police station on May 19, 1993, appellant gave an unsworn statement to Little Rock Police Detectives Randy Reaves and James Chandler. In the statement, appellant admitted driving Childress to McDonald’s on the night of the shooting, waiting with Childress behind the restaurant, seeing Callanen emerge from the restaurant, hearing gunshots, running from the scene, and telling his girlfriend, Tracy Brooks, that he and Childress had “done something bad.” In the statement, appellant implicated Childress as the shootist.

Appellant filed a motion to suppress the statement which, he alleged, was taken in violation of his federal constitutional Fourth, Fifth and Sixth Amendment rights and his rights under the Arkansas Constitution. An evidentiary hearing was conducted and testimony was given by Reaves, Chandler and appellant. Appellant testified that a third policeman, who was identified as former Little Rock Police Officer Tim Isenberg, threatened him shortly before and during a break in his interrogation by Reaves and Chandler. Isenberg did not testify at the hearing. The trial court ruled the statement was freely and voluntarily given and denied the suppression motion. At trial, the statement was admitted over appellant’s objection.

Appellant argues the admission of his statement was reversible error in two respects: (1) the state failed to carry its burden of proof at the hearing to establish the statement was voluntarily given, and (2) the state violated his constitutional right to counsel. We agree with appellant’s first argument. Therefore we do not address appellant’s constitutional argument because its resolution is not so necessary to the determination of this case that it cannot otherwise be decided. Grimmett v. State, 251 Ark. 270-A, 476 S.W.2d 217 (1972).

Appellant relies upon Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981), for the proposition that the state’s failure to call Isenberg as a material witness at the hearing precluded it from sustaining its burden to prove appellant’s statement was voluntarily given. In Earl, the appellant challenged the admissibility of a confession he made to police during custodial interrogation on the ground that it was coerced. Sheriff Grady, the officer who escorted the appellant’s co-defendant, Burton, from the interview room and then escorted the appellant to the interview room, was not called as a witness at the hearing to determine the voluntariness of the appellant’s statements. This court stated:

The prosecution did not call Sheriff Grady as a witness at the Denno hearing. And, it is undisputed that in-custodial statements of defendants are presumed to be involuntary and the State has the burden of proving their voluntariness. When an accused offers testimony that his confession was induced by violence, threats, or coercion, it is incumbent upon the State to call all material witnesses who were connected with the contested confession or give an adequate explanation for their absence at the Denno hearing.
Sheriff Grady, we think, was a material witness since his testimony would have reflected on the state of mind of the defendant at the time of entering the interview room by corroborating or negating the appellant’s testimony concerning co-defendant Burton. Also, arguably, Sheriff Grady was a participant to the coercion by allegedly telling the appellant he had to “go in there and talk.”
Therefore, since the State failed to call a material witness at the Denno hearing, it did not sustain its burden of proof as to the voluntariness of the confession.

Id. at 14-15, 612 S.W.2d at 102-03 (citations omitted). The case was reversed and remanded for retrial.

In the present case, appellant testified at the hearing that, prior to his interrogation by Reaves and Chandler, Isenberg took him from a holding cell over to the police department. At that point, appellant testified:

A We goes in the room and Detective Isenberg, he telling me that he know I done killed this police and he say — then I told him I don’t know nothing, and then that’s when, you know, he just starts to holler at me and then, you know, he pushed me up against the wall.
Q Okay. Anything else happen?
A Then he leaves out the room.
Q What happens then?
A The other two detectives come in.
Q These two detectives that testified here today, Detective Chandler and Detective Reaves?
A Right.

Appellant testified he reported Isenberg’s actions to Reaves and Chandler during the interrogation and told them he would make a statement if they would keep Isenberg out. Appellant testified Reaves and Chandler left the interview room at one point in the interrogation during which time Isenberg re-entered the interview room and again yelled at him, pushed him against the wall, and told him he knew appellant killed Callanen. Appellant testified another “dark-haired officer” entered the interview room and told Isenberg to leave. Appellant testified he made the statement to Reaves and Chandler because he was afraid of Isenberg and that it was coerced.

Chandler testified at the hearing that appellant was read his rights at 1:40 p.m. and his statement, which was audio-taped, commenced at 3:50 p.m. Chandler testified appellant signed a written waiver form and made his statement voluntarily. Chandler testified Isenberg could have spoken with appellant and he (Chandler) would not have known. Reaves’s testimony at the hearing was consistent with that of Chandler. Reaves also testified he had seen Isenberg with appellant shortly before appellant’s interrogation by Reaves and Chandler began. Reaves testified it was possible appellant told him about his conversation with Isenberg and he (Reaves) did not write it down.

At the conclusion of the hearing, appellant cited Earl and objected to the state’s failure to account for Isenberg, as well as to the alleged constitutional violation of his right to counsel. The trial court indicated it would allow the state three days to respond. The record, however, reveals that prior to the time the trial court ruled on the suppression motion, no response or explanation was offered by the state with respect to the objection arising from Isenberg’s absence at the hearing.

In Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973), we held that whenever an accused offers testimony that his confession was induced by violence, threats, coercion or offers of reward, the state has a burden to produce all material witnesses who were connected with the controverted confession or give an adequate explanation of their absence. We have reiterated this ruling many times. E.g., Williams v. State, 278 Ark. 9, 642 S.W.2d 887 (1982); Earl, 272 Ark. 5, 612 S.W.2d 98; Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979), cert. denied, 446 U.S. 938 (1980); Gammel & Spann v. State, 259 Ark. 96, 531 S.W.2d 474 (1976); Russey v. State, 257 Ark. 570, 519 S.W.2d 751 (1975); Northern v. State, 257 Ark. 549, 518 S.W.2d 482 (1975); Smith v. State, 256 Ark. 67, 505 S.W.2d 504 (1974). The state’s failure to comply with this ruling has constituted reversible error in many cases. E.g., Williams, 278 Ark. 9, 642 S.W.2d 887; Earl, 272 Ark. 5, 612 S.W.2d 98; Russey, 257 Ark. 570, 519 S.W.2d 751; Northern, 257 Ark. 549, 518 S.W.2d 482; Smith, 256 Ark. 67, 505 S.W.2d 504; Smith, 254 Ark. 538, 494 S.W.2d 489.

In determining whether a witness is “material” this court has stated “[t]here must be some connection between the witness and the alleged acts of coercion or an opportunity to observe the alleged coercion.” Bushong, 267 Ark. 113, 121, 589 S.W.2d 559, 564. In the present case, we conclude Isenberg was a material witness and the state gave no adequate explanation for his absence at the hearing.

In its brief, the state argues this point of appeal is procedurally barred because appellant failed to allege in his suppression motion that his statement was coerced by any police officer and therefore the state was unfairly surprised when the issue was raised at the hearing. The state requests we modify the Smith rule to clarify that the defendant has an initial burden to plead the custodial statement was the product of threats or abuse. We decline to do so. Appellant’s suppression motion raised the issue of the voluntariness of his statement to the police. The trial court permitted the state a three-day period to respond to appellant’s objection arising from Isenberg’s absence at the hearing prior to issuing its ruling. The state could have requested a continuance of the hearing for the purposes of producing Isenberg or adequately explaining his absence. On this record, consistent with Smith, 254 Ark. 538, 494 S.W.2d 489, and its progeny, we find the trial court committed reversible error in denying the suppression motion.

ADMISSION OF HEARSAY STATEMENT OF UNAVAILABLE WITNESS

During questioning at the Little Rock police station on May 19, 1993, appellant’s girlfriend, Tracy Brooks, gave an unsworn statement to two Little Rock Police Department officers. In the statement, Brooks repeated statements that she asserted were made to her by appellant shortly after the May 15 shooting. Brooks’s statement corroborated appellant’s May 19 statement in many respects but also differed significantly by implicating appellant as the shootist.

On the day before appellant’s trial was to commence, Brooks was declared an unavailable witness under A.R.E. Rule 804(a)(2) and Rule 804(a)(5) pursuant to the state’s motion. Her statement was ruled admissible under Rule 804(b)(3) as a statement against interest and under Rule 804(b)(5) as a statement not specifically covered by a hearsay rule exception but having equivalent circumstantial guarantees of trustworthiness (the so-called “residual hearsay exception”). Brooks’s statement was admitted at trial over appellant’s objection.

Appellant argues Brooks was not an unavailable witness and her statement did not qualify for admission under Rule 804(b)(3) or Rule 804(b)(5). We conclude that, although the trial court did not err in ruling Brooks was an unavailable witness, it did err in ruling her statement was admissible under Rule 804(b)(3) or Rule 804(b)(5).

UNAVAILABILITY

The record shows the trial court’s ruling that Brooks was unavailable was based upon substantial evidence introduced by the state at pretrial hearings on the state’s motions first to continue the trial due to its inability to locate Brooks and later to declare her unavailable. At the hearing on the motion for continuance, the testimonies of two investigators of the prosecuting attorney’s office and an officer of the Little Rock Police Department regarding their unsuccessful attempts to serve Brooks with a subpoena for trial showed they had made repeated efforts on several days to locate her at her reported whereabouts first with appellant’s mother and then with her siblings in Little Rock. At the conclusion of the hearing on the motion for continuance, the trial judge stated: “[w]e’re having trouble locating a witness the State considers crucial and it’s not because they’re dilatory. It’s because — I think because the defendant’s family is assisting in this[.]”

We conclude the state satisfied its burden of proving Brooks was unavailable by showing it made a good faith effort to procure her attendance at trial. Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993); Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). We find no abuse of discretion by the trial court in ruling Brooks was unavailable. Lewis v. State, 288 Ark. 595, 709 S.W.2d 56 (1986).

STATEMENT AGAINST INTEREST EXCEPTION — RULE 804(B)(3)

Rule 804(b)(3) provides the following is not excluded by the hearsay rule if the declarant is unavailable as a witness:

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception. [Emphasis added.]

The trial court stated Brooks’s statement was admissible under Rule 804(b)(3) because “[a]s Everett Foreman’s live-in girlfriend, the statement, extremely detrimental to her boyfriend, would surely subject her to unmitigated hatred, ridicule or disgrace from Mr. Foreman as well as his family, with whom the two lived.” The trial court thereby relied upon the aspect of Rule 804(b)(3) categorized as a statement against the declarant’s “social interest.” The statement against social interest exception is not recognized by the federal courts or by the majority of the state courts. Hence case law is scarce. David F. Binder, Hearsay Handbook § 29.05 (3d ed. 1991 & Supp. 1994). The trial court cited no authority for its ruling and we are unaware of any Arkansas decisional law that has previously applied this exception.

We agree with the state’s virtual concession in its brief that Brooks’s statement was not admissible as a statement against her social interest. See, e.g., Franco v. State, 866 P.2d 247 (Nev. 1993) (rejecting admission of wife’s hearsay statement admitting that her husband may have killed someone ás too indirect or remote to qualify under the hearsay exception for statements against social interest); State v. Stevens, 490 N.W.2d 753 (Wis. Ct. App. 1992) (stepdaughter’s hearsay statement reporting her stepfather’s burglary was too attenuated and uncertain to guarantee its reliability and permit its admission under the statements against social interest exception).

The state, proceeding on the principle that we may affirm the trial court’s ruling if the correct result was reached, asserts in its brief that Brooks’s statement was admissible under Rule 804(b)(3) as a statement against her penal interest because it was a statement that tended to subject her to criminal liability under Ark. Code Ann. § 5-54-122 (Repl. 1993). This argument is not persuasive. Section 5-54-122 criminalizes the filing of a report with law enforcement of another person’s alleged criminal activity by one who knows the report is false. The state’s use of this statute is incongruous with the philosophy underlying the hearsay exception for statements against penal interests which is that the declarant would not have made the statement unless it was true because its making may subject the declarant to civil or criminal liability. It is this potential punishment that provides the circumstantial guaranty of trustworthiness upon which this hearsay exception is based. In contrast, section 5-54-122 does not punish the declarant who makes a true statement, only a false one. We conclude the trial court’s admission of Brooks’s statement under Rule 804(b)(3) was prejudicial error.

RESIDUAL HEARSAY EXCEPTION — RULE 804(B)(5)

Rule 804(b)(5) provides, in pertinent part, the following is not excluded by the hearsay rule if the declarant is unavailable as a witness:

(5) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statements into evidence. [Emphasis added.]

The trial court stated Brooks’s statement was admissible under Rule 804(b)(5) because “the statement is highly corroborative of the statements made by Childress and Foreman; the state has made every reasonable effort and more to call Ms. Brooks to testify at trial and; justice will best be served by admitting Ms. Brooks’ statement as it is trustworthy under the conditions on which it was taken.” Appellant argues the statement did not qualify under Rule 804(b)(5) because it lacked equivalent circumstantial guarantees of trustworthiness and its admission violated the federal constitutional Confrontation Clause. We agree.

In the context of a Confrontation Clause analysis, the United States Supreme Court examined whether guarantees of trustworthiness were shown with respect to a hearsay statement of a child declarant sought to be admitted under Idaho’s residual hearsay exception. The residual hearsay exception at issue was that applicable for the statement of a declarant even though the declarant is available as a witness. However, the Court assumed for purposes of its analysis, without deciding, that the child declarant was an unavailable witness. The Court ruled the residual hearsay exception was not a “firmly rooted” hearsay exception. The Court ruled trustworthiness guarantees required for a statement’s admission under that exception must be shown from the totality of the circumstances that surrounded the making of the statement and rendered the declarant particularly worthy of belief. Idaho v. Wright, 497 U.S. 805 (1990). The Court rejected the state’s contention that evidence corroborating the hearsay statement may properly support a finding that the statement bears such trustworthiness guarantees. The Court ruled to be admissible the hearsay evidence “must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” Id. at 822.

When the factors relied upon by the trial court for its conclusion that Brooks’s statement was trustworthy are reviewed, eliminating references to corroborating evidence, these factors remain: (1) the statement was made on the same day as appellant’s arrest thereby leaving Brooks little time or opportunity to fabricate the statement; (2) Brooks was read her rights two hours prior to the time she gave her statement; and (3) in United States v. Lyon, 567 F.2d 777 (8th Cir. 1977), cert. denied, 435 U.S. 918 (1978), the agent who took that unavailable declarant’s statement “was able to testify in detail about how he took the witnesses [sic] [unsworn] testimony and transcribed it.”

We find the trial court’s reliance upon the first and third factor is misplaced. First, appellant allegedly told Brooks about the events of May 15 immediately after they occurred. Therefore, even though appellant was not arrested for several more days, Brooks cannot be said to have lacked time or opportunity to fabricate the statement. Second, Lyon is not persuasive because the officers who took Brooks’s statement did not testify at the evidentiary hearings. On this record, we cannot say that Brooks’s unsworn statement contained the “equivalent circumstantial guarantees of trustworthiness” inherent in the other hearsay exceptions under Rule 804(b). Therefore it was error to admit Brooks’s statement under the residual hearsay exception. See Doles v. State, 275 Ark. 448, 631 S.W.2d 281 (1982) (reversing the trial court’s judgment that the Rule 804(b)(5) exception applied to an unsworn statement given to police at the crime scene by the victim’s live-in girlfriend).

In his remaining two points for reversal, appellant argues, first, the trial court erred in admitting the testimony of the McDonald’s restaurant owner that appellant, a former employee at the Roosevelt Road store, was fired from that position, and, second, the trial court erred in admitting certain testimony on direct examination of state’s witness, Lottie Sims, a former girlfriend of Childress, that, as between appellant and Childress, appellant was the “leader” of the two men. Our review of the record shows neither of these arguments has merit.

In accordance with Ark. Sup. Ct. R. 4-3(h), the transcript has been examined for prejudicial errors objected to by appellant but not argued on appeal and we conclude no such errors occurred.

The trial court’s judgment is reversed and remanded.

      The victim was also employed as an officer of the Little Rock City Police.

      Al trial, the evidence showed that Isenberg left the Little Rock Police Department to return to his home state of Indiana and a job with the Indiana State Police.

       A.R.E. 803(24) sets forth an identical exception for the hearsay statement of a declarant even though the declarant is available as a witness.


source: Caselaw Access Project

author: Donald L. Corbin, Justice. James V. Spencer, III, Special Justice,

license: Public Domain

text:
    MARSH & McLENNAN OF ARKANSAS v. Richard P. HERGET, Jr., and Rebsamen Insurance, Inc.
    94-766
    900 S.W.2d 195
    Supreme Court of Arkansas
    Opinion delivered June 19, 1995

      Williams & Anderson, by: John E. Tull III, Philip S. Anderson, and Jeanne L. Seewald, for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard, by: Allan Gates and J. Lee Covington II, for appellees.
   Donald L. Corbin, Justice.

Appellant, Marsh & McLennan of Arkansas, Inc., appeals an order of the Pulaski County Chancery Court awarding an attorney’s fee to appellee, Richard P. Herget, Jr., pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1994) for his expense incurred in defending an action for breach of contract brought against him by appellant. Because resolution of this appeal requires interpretation or construction of section 16-22-308 and certain rules of this court, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(a)(3). Appellant raises three arguments for reversal. We find no merit and affirm the trial court’s judgment.

The facts of this case are not disputed. On December 16, 1985, Herget and his employer at that time, Atkins Insurance Corporation, entered into an employment agreement that included a non-compete covenant. Our review of that agreement, as abstracted, reveals its terms did not address payment of an attorney’s fee or costs in the event of litigation to enforce it. Appellant acquired Atkins by stock purchase and became assignee of its rights and obligations under the 1985 employment agreement. On January 27, 1992, Herget voluntarily terminated his employment with appellant and immediately went to work for Rebsamen Insurance, Inc.

By complaint filed on May 27, 1992, as amended on July 29, 1992 and on August 31, 1992, appellant sued Herget for violation of the 1985 employment agreement and sued Rebsamen for intentional interference with contract. Appellant also alleged the actions of Herget and Rebsamen violated the Arkansas Trade Secrets Act. Appellant prayed for damages, equitable relief, and an award of its attorney’s fee and costs. Herget counterclaimed, alleged the 1985 employment agreement constituted an unreasonable restraint on trade and was void and unenforceable, and prayed for dismissal of appellant’s complaint and an award of his attorney’s fee pursuant to section 16-22-308. On September 27, 1993, the trial court entered its opinion and order in favor of appellees and dismissed appellant’s complaint. No appeal was taken from the September 27 order.

Forty-two days later, on November 8, 1993, Herget filed a motion for attorney’s fee pursuant to section 16-22-308 for his expense incurred in defending appellant’s dismissed claim. By order filed on March 23, 1994, the trial court granted Herget’s motion and allowed him the sum of $106,536.00 for his attorney’s fee as the prevailing party in a breach of contract action. This appeal arises therefrom.

LACK OF JURISDICTION

For reversal, appellant first argues the trial court lacked jurisdiction of the motion for attorney’s fee because it was untimely as Herget failed to ask the court to consider or to reserve his right to seek an award of an attorney’s fee prior to entry of the September 27 order. Alternatively, appellant argues jurisdiction was lost because the motion was filed more than thirty days after entry of the September 27 order. Appellant relies upon Temple v. Lawson, 19 Ark. 148 (1857), for his argument. We find appellant’s reliance upon that decision is misplaced.

In Temple, this court reversed a decree of the chancery side of circuit court that allowed the appellee, an interpleading party, an attorney’s fee for his expense incurred nearly three years earlier in filing his bill for interpleader in an action of assumpsit by attachment. The appealed decree directed that payment of the fee be made from the fund the appellee had brought into court. On appeal, this court held the trial court had no power at any time to make an allowance for an attorney’s fee to an interpleading party that was payable from the special fund the interpleading party had brought into the court, and more particularly so after the decree in the case had been passed. In dictum, this court also observed that, were it proper to allow the attorney’s fee in such a case, the application for the fee should be made at the hearing or before the decree “has been passed.” Id. at 154. In consideration of its unique facts, we find Temple is inapplicable to the present case.

Thus, appellant argues without persuasive authority that the trial court had lost jurisdiction of Herget’s fee motion. We reject appellant’s argument which, we find, is predicated on the assumption that the fee motion was integral to the merits of the underlying breach of contract action. This assumption is incorrect. Herget’s fee motion raised issues collateral to the underlying action. The trial court’s decision concerning Herget’s entitlement to fees under section 16-22-308 required an inquiry separate from its decision on the merits of the underlying action — an inquiry which could not commence until Herget “prevailed” over appellant in the underlying action. See White v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445 (1982) (holding the ten-day limit for a Rule 59(e) motion to alter or amend judgment was not applicable to the petitioner’s motion, as the prevailing party, for an attorney’s fee under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, where the fee motion was filed four and one-half months after entry of a final judgment for the petitioner on the underlying action); accord, Obin v. District No. 9 of the Int’l Ass’n of Machinists and Aero space Workers, 651 F.2d 574 (8th Cir. 1981) (holding a post-judgment motion for an attorney’s fee under the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), raised a collateral and independent claim, and, therefore, no question existed that the district court retained jurisdiction to rule upon the motion notwithstanding entry of a judgment resolving the merits of the discrimination claim).

“Collateral action,” this court has stated, is “action that does not make any direct step toward final disposition of the merits of a case, will not be merged in the final judgment, is not an ingredient of the cause of action, and does not require consideration with the main cause of action.” Pledger v. Bosnick, 306 Ark. 45, 50, 811 S.W.2d 286, 290 (1991), cert. denied, 113 S. Ct. 3034 (1993). A motion for an attorney’s fee pursuant to section 16-22-308, we have held, is a matter “collateral or supplemental to the trial court’s judgment” which is “left within the trial court’s jurisdiction even though an appeal has been docketed” from the order disposing of the underlying litigation. Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 308, 896 S.W.2d 867, 873 (1995) (citing Alexander v. First Nat’l Bank of Ft. Smith, 278 Ark. 406, 646 S.W.2d 684 (1983)). In the present case, the absence of an appeal from the September 27 order disposing of the underlying breach of contract action did not alter the collateral nature of Herget’s fee motion. We conclude the trial court did not lack jurisdiction of the fee motion. White, 455 U.S. 445; Obin, 651 F.2d 574.

Appellant concedes that no statute or local court rule prescribes any specific time limit on a motion for an attorney’s fee under section 16-22-308, but entreats this court to adopt a reasonable rule. Because this issue is unnecessary to our disposition of this case, we do not address it. In so ruling, however, we note that section 16-22-308 authorizes the award of an attorney’s fee in the discretion of the trial court. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). We agree with the observation made by the White Court with respect to section 1988, which similarly authorizes discretionary attorney’s fee awards in appropriate cases, when it stated: “We believe that [the trial court’s] discretion will support a denial of fees in cases in which a postjudgment motion unfairly surprises or prejudices the affected party.” White, 455 U.S. at 454 On the facts of this case, we conclude the trial court committed no abuse of its discretion in ordering the fee award for Herget.

WAIVER AND ESTOPPEL

Appellant next argues Herget should either be estopped or deemed to have waived his right to the fee award because he waited until twelve days after the September 27 order became final and non-appealable to file his fee motion. We summarily dispose of these arguments which are without merit.

Appellant’s estoppel argument, which is unsupported by binding authority, is that Herget delayed filing the fee motion until after the appeals period had run in order to induce appellant not to file an appeal of the underlying action. Our review of the record on appeal reveals that appellant’s estoppel argument was not raised before the trial court. As this court has repeatedly stated, an argument which is raised for the first time on appeal is not properly preserved for this court’s review and will not be addressed. See, e.g, Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994); Jarboe v. Shelter Ins. Co., 317 Ark. 395, 877 S.W.2d 930 (1994).

Appellant’s waiver argument is framed as follows: “Herget knew that there was [a] 30-day limitation period in which [appellant] had to file an appeal. By waiting 42 days to file his motion for an award of attorneys’ fees, he surrendered any right he had to make such a claim.” This argument is without merit. As noted above, there is no statute or local court rule that prescribes any specific time limit on a motion for an attorney’s fee under section 16-22-308. Therefore, because the essence of waiver is the voluntary relinquishment of a known right, Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993), it was impossible for Herget to waive his right to request a fee award under section 16-22-308 by filing his motion more than thirty days after the underlying judgment was rendered.

PAYMENT OF HERGET’S ATTORNEY’S FEES BY REBSAMEN

Appellant’s final argument for reversal is that Herget was not entitled to an award of an attorney’s fee because Rebsamen paid Herget’s attorney’s fee and Herget is under no obligation to repay Rebsamen. Thus, appellant argues, the trial court’s fee award violated two legal concepts: (1) the purpose for statutory awards of attorney’s fees is to make whole the prevailing party, not to award him a windfall, and (2) punitive damages in contract actions are not allowed. We reject these arguments.

Appellant cites no authority for his assertion that the purpose of section 16-22-308 is to make whole the prevailing party. The statute itself requires only that, unless otherwise provided by law or the contract which is the subject matter of the action, the movant must have prevailed on the merits of one of the causes of action enumerated in the statute. Further, we are aware of no decisional law or express statement by the General Assembly of its legislative intent respecting the purpose of section 16-22-308 that supports appellant’s argument.

Appellant’s contention that Herget’s fee award is tantamount to punitive damages is merely stated in a conclusory fashion without binding authority or convincing argument. On this record, we decline to address the argument.

The judgment is affirmed.

Special Justice Gene E. McKissic joins in this opinion.

Special Justices James V. Spencer, III and Donna C. Pettus concur.

Glaze, Brown, and Roaf, JJ., not participating.

James V. Spencer, III, Special Justice,

concurring. I concur in the decision with one reservation.

This appeal has brought squarely before the court the uncertainty to a losing party of a judgment’s finality after the appeal period has expired. In other words, the losing party now remains vulnerable after the appeal period has expired to a motion for an award of attorney’s fee.

I concur with the majority opinion not to adopt a rigid rule within the context of this case, but I feel the court should adopt by subsequent order the rule followed by the federal courts requiring the filing of a post judgment motion for an attorney’s fee within fourteen (14) days after entry of final judgment in the underlying action as referenced by the second footnote to the majority opinion. Such a rule would avoid the uncertainty on this issue and eliminate the discretionary rule presently existing in our state courts.

Special Justice Donna C. Pettus joins in this concurrence.

       The pertinent language of section 16-22-308 provides that:
      In any civil action to recover on ... contract... for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.

       We are aware that, in 1993, Fed. R. Civ. P. 54(d)(2) was amended to require the filing of a postjudgment motion for an attorney’s fee within fourteen days after entry of final judgment on the underlying action, subject to the exceptions enumerated in that rule. It is undisputed, however, that no such rule applies to the present case.


text:
    David ROETZEL, Individually, and as Parent and Next Friend of Jacquelyne Roetzel, a Minor v. Renita Gayle BROWN, and Joseph Randall Brown, Individually, and as Parents and Next Friends of Joseph (Joey) Brown, a Minor
    94-1169
    900 S.W.2d 185
    Supreme Court of Arkansas
    Opinion delivered June 19, 1995

      John Wesley Hall P.C., by: John Wesley Hall, Jr., for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A. Rowlett, for appellee.
   Donald L. Corbin, Justice.

Appellant, David Roetzel, individually and as parent and next friend of his minor child Jacquelyne Roetzel, appeals an order of the Pulaski County Circuit Court denying his motion for new trial based on newly discovered evidence following a jury verdict for appellees, Renita Gayle Brown and Joseph Brown, individually and as parents and next friends of their minor child, Joey Brown, also a separate appellee. The sole issue on appeal is the denial of the motion for new trial. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(3), as interpretation of a court rule, ARCP Rule 59(a)(7), is required. We find no error and affirm the denial of the posttrial motion.

Appellant filed a negligence suit against appellees following an incident in appellant’s front yard which resulted in an injury to Jacquelyne’s eye. Jacquelyne’s eye injury was severe enough to require hospitalization at Arkansas Children’s Hospital for seven days. There was conflicting testimony as to how the injury occurred. Three witnesses testified about the incident. It was undisputed that Joey struck Jacquelyne in the eye with some sort of stick while swinging at a water balloon she tossed to him. The conflict in the testimony was whether Jacquelyne was running toward Joey when he swung. Jacquelyne testified she did not move when she pitched the water balloon. Joey and a neighborhood boy, Benjamin Dennio, both testified she was running toward Joey when she pitched the water balloon and Joey swung at it.

Following the entry of judgment for appellees pursuant to a jury verdict, appellant filed a timely motion for new trial on the basis of newly discovered evidence. The affidavits of Lisa McNeir, Ph.D., and Evelyn Weber, appellant’s neighbor, were attached to the motion. Neither affiant testified at trial. The affidavit of Dr. McNeir reflected that Jacquelyne’s testimony at trial differed from what she told Dr. McNeir during an initial interview, and that the change in Jacquelyne’s memory could be due to post traumatic stress or fantasy, but that such a change in memory was not uncommon after considerable time had passed. According to the affidavit, Jacquelyne initially told Dr. McNeir that she had been playing alone and was attacked by a neighborhood boy with a stick when she went to retrieve a toy. At trial, Jacquelyne stated that she was injured while pitching the water balloon during a game of ball with the boys. Ms. Weber stated in her affidavit that she witnessed the incident while looking out her window, that she saw a boy hit Jacquelyne with a pole, and that Jacquelyne was not playing with the boys.

At the hearing on appellant’s motion for new trial, appellant argued that the testimonies of both Dr. McNeir and Ms. Weber were “newly discovered evidence.” On appeal, appellant does not mention Dr. McNeir, but argues only that the trial court erred in its ruling concerning Ms. Weber. Appellant has therefore waived any argument on appeal concerning Dr. McNeir. As for Ms. Weber, appellant’s counsel told the trial court at the hearing that appellant contacted her prior to trial and she denied witnessing the incident. Appellant argued it was not within the province of diligence to discover what someone will not divulge, and therefore Ms. Weber’s testimony constituted newly discovered evidence. The trial court ruled appellant was aware of Ms. Weber prior to trial and that Rule 59(a)(7) did not apply to situations where a witness was known but changed her testimony.

On appeal, appellant contends that, prior to trial, Ms. Weber indicated her unwillingness to get involved in a dispute between neighbors. Therefore, argues appellant, “reasonable diligence” did not require him to call Ms. Weber as a witness since he had no reasonable basis for thinking she had any material testimony to offer. We find no merit to this argument and affirm the trial court’s denial of the motion for new trial, albeit for a different reason than that given by the trial court. West v. G.D. Searle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994).

Rule 59(a)(7) provides that a new trial may be granted on grounds of “newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.” A new trial based on newly discovered evidence is not favored. St. Louis S.W. Ry. Co. v. White, 302 Ark. 193, 788 S.W.2d 483 (1990). The decision to grant a new trial based on newly discovered evidence is a decision within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987). At the hearing on a motion for new trial based on newly discovered evidence, the burden is on the moving party to establish he or she “could not with reasonable diligence have discovered and produced the evidence at the time of trial, that the evidence is not merely impeaching or cumulative, and that the additional testimony would probably have changed the result of the trial.” Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 428-29, 844 S.W.2d 337, 339 (1993).

Appellant has failed to meet this burden. First, appellant has not demonstrated that, with reasonable diligence, he could not have discovered Ms. Weber’s testimony. Despite appellant’s counsel’s representations to the trial court that appellant inquired of Ms. Weber prior to trial, Ms. Weber’s affidavit is completely silent on that issue. Appellant has not demonstrated any refusal to testify by Ms. Weber prior to trial. Second, appellant has not demonstrated that Ms. Weber’s testimony would have been material to his case or would have changed the result of the trial. Ms. Weber’s affidavit stated, in its entirety:

I was watching out my window on the day in question, and I saw that boy hit Jaclin [sic] with a pole. I was watching, [and] she was not playing with those boys. The boys were in the Roetzel’s yard for only a few minutes.

The affidavit failed to show Ms. Weber’s testimony would have been material or would have changed the results of the trial because it was silent on the issue of whether Jacquelyne was running toward Joey when she was struck. Third, while the testimony offered in Ms. Weber’s affidavit is not impeaching, it is certainly cumulative of the testimonies of Jacquelyne, Joey, and Benjamin Dennio.

Accordingly, we affirm the judgment denying the motion for new trial.


author: Andree Layton Roaf, Justice.

text:
    IN THE MATTER OF ESTATE OF F.C., DECEASED
    94-618
    900 S.W.2d 200
    Supreme Court of Arkansas
    Opinion delivered June 19, 1995

      Christopher M. Jester, for appellant.

      Penix, Penix & Lusby, by: Bill Penix and J. Robin Nix II, for appellee.
   Andree Layton Roaf, Justice.

This is a paternity case. Appellant R.P. filed a petition for appointment of administrator and a petition for paternity in the matter of the Estate of F.C., deceased. The probate judge found that a paternity action may not be pursued against a deceased father or his estate, and dismissed the petition. The sole issue presented on appeal is whether the death of the putative father precludes an action for the determination of paternity. We hold the probate court did not have subject matter jurisdiction, and affirm the dismissal on this basis.

FACTS

F.C. died on May 14, 1986. On February 26, 1993, R.P. filed a petition for appointment of administrator in the matter of the Estate of F.C. in the Probate Court of Craighead County, contending that her daughter, E.P., born August 27, 1983, was the natural child of the decedent. The widow and the legitimate children of the decedent opposed the appointment of an administrator and asserted the petition was barred by the statute of limitations.

On September 14, 1993, R.P. filed a petition for paternity in the Matter of the Estate of F.C., once again asserting that the decedent was the father of E.P. and stating that she wanted to establish paternity for the “sole purpose of entitling the child to whatever military and other government benefits she would be entitled to as a result of F.C. being her father.”

In response, the widow of F.C. filed a petition to be appointed special administratrix of the estate for the purpose of claiming the attorney-client privilege. An order appointing her special administratrix was entered on October 6, 1993. After the petitioner and respondents presented briefs regarding the applicable statutes of limitations, the probate judge dismissed both petitions. The judge found there was no specific statutory authority for a paternity action to be pursued against a deceased father or his estate and a paternity action against a putative father therefore dies when he dies. Because the sole purpose of the petition for appointment of administrator for the estate was to pursue the paternity action, the petition was dismissed.

The case was certified to the Supreme Court by the Court of Appeals pursuant to Ark. Sup. Ct. R. l-2(d)(2) as a case which presents a novel issue of significant public interest and legal importance and under Rule l-2(a)(3) as any decision will require the interpretation of conflicting statutes.

Although neither party addressed the question of subject matter jurisdiction, jurisdiction is a question we can address at any time. Viswanathan v. Mississippi County C.C. Board, 318 Ark. 810, 887 S.W.2d 531 (1994). In fact, it is not only the right but the duty of this Court to determine whether there is jurisdiction of the subject matter. Id. In this instance, the probate court was without jurisdiction over the paternity matter, and the dismissal should be affirmed. We will uphold the decision of the trial court when it reaches the right result, even if it did not enunciate the right reason. Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995).

The probate court has jurisdiction over the administration, settlement, and distribution of estates of decedents and the determination of heirship. See Ark. Code Ann. § 28-1-104 (1987). Chancery court, however, has concurrent jurisdiction with the juvenile division of chancery court in cases and matters relating to paternity. Ark. Code Ann. § 9-10-101 (Repl. 1993); Ark. Code Ann. § 16-13-304(b) (Repl. 1994); Ark. Const, amend. 67. In the instant case, the sole purpose of the action is to establish paternity. Consequently, the probate court was without jurisdiction to hear the matter.

Arkansas Code Ann. § 28-9-209 (1987) provides that an illegitimate child may inherit property from his father provided an action is commenced or claim asserted against the estate of the father within 180 days of the death of the father. However, one of the following conditions must also be satisfied:

(1) That a court of competent jurisdiction has established the paternity of the child or has determined the legitimacy of the child pursuant to subsections (a), (b), or (c) of this section; or
(2) That the man has made a written acknowledgment that he is the father of the child; or
(3) That the man’s name appears with his written consent on the birth certificate as the father of the child; or
(4) That the mother and father intermarry prior to the birth of the child; or
(5) That the mother and putative father attempted to marry each other prior to the birth of the child by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; or
(6) That the putative father is obligated to support the child under written voluntary promise or by court order.

(Emphasis supplied.) Section 28-9-209(d)(l) clearly contemplates that even where the illegitimate child is attempting to inherit property from his father, the probate court cannot establish paternity — a court of competent jurisdiction must do so. Further, § 28-9-209 is found in the chapter entitled “Intestate Succession,” and the sole purpose of the procedures outlined is to determine intestate succession. The instant case is simply not an action to determine heirship.

Also, in the instant case, the action was not commenced within 180 days as required by § 28-9-209. Further, Ark. Code Ann. § 28-40-103 (1987) provides no administration shall be granted unless application is made to the court within five years from the death of the decedent. The appellant, however, asserts that the two statutes are “not applicable in a paternity case” and “only apply to [a] situation in which a claim is going to be made against the estate.” Consequently, she asserts the statutes should not bar the paternity action. This argument only serves to support the conclusion that the action must be commenced in chancery court because it is a paternity action and not a determination of heirship.

Because our affirmance of the trial court’s dismissal is based upon a lack of subject matter jurisdiction, we do not reach the issue of whether a paternity action survives the death of the putative father.

Affirmed.

Glaze, J., concurs in this opinion.


author: Per Curiam.

text:
    Jimmy Wayne SMITH v. STATE of Arkansas
    CR 95-163
    900 S.W.2d 939
    Supreme Court of Arkansas
    Opinion delivered June 19, 1995

      Appellant, Pro Se.
    No response.
   Per Curiam.

On September 8, 1993, judgment was entered in the Circuit Court of Columbia County reflecting that Jimmy Wayne Smith had been found guilty of carnal abuse and that a suspended sentence had been revoked. Mr. Smith was sentenced to ten years imprisonment. An appeal of the judgment was not perfected. On April 11, 1994, Smith filed in the circuit court a pro se petition to correct sentence pursuant to Ark. Code Ann.§ 16-90-111 (Supp. 1993) which was denied April 19, 1994. As Rule 4 (a) of the Rules of Appellate Procedure provides that a notice of appeal must be filed within thirty days from the entry of the order from which the appeal is taken, Smith would have had to file any notice of appeal of the order by May 18, 1994. The record does not reflect that he did so.

On August 1, 1994, the trial court entered an order stating that Smith had filed on May 19, 1994, an untimely notice of appeal and that no action would be taken with respect to the untimely notice. (The untimely notice of appeal referred to by the trial court does not appear in the record.)

Petitioner Smith now seeks to proceed with a belated appeal of both the order which denied the petition to correct sentence and the order which declared the notice of appeal to be untimely. As his ground with respect to the order which declared the notice of appeal untimely, petitioner states that the court misunderstood the notice of appeal which was filed, assuming it to be from the original judgment rather than the order which denied the petition to correct sentence. Whether the trial court misunderstood the intention of the notice is not at issue, however, because petitioner did not include in the record any notice of appeal of the order denying the petition. Moreover, even if there had been a timely notice of appeal of the order which denied the petition to correct sentence, it is clear that the petition itself was not timely filed and thus did not warrant relief.

Criminal Procedure Rule 37.2 (b) provides in pertinent part that all grounds for post-conviction relief from a sentence imposed by a circuit court must be raised in a petition under Rule 37. Arkansas Code Annotated § 16-90-111 (Supp. 1993) is in conflict with Criminal Procedure Rule 37 in that it permits claims for post-conviction relief to be raised under the statute. The statute permits the trial court to correct a sentence imposed in an illegal manner within one hundred-twenty days after judgment is entered and permits an illegal sentence to be corrected at any time. It further permits a circuit court to reduce a sentence within 120 days after sentence is imposed or within one hundred-twenty days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal and to reduce a sentence upon revocation of probation as provided by law. In contrast, Criminal Procedure Rule 37.2 (c) provides that a petition under the rule is untimely if not filed within ninety days of the date judgment was entered if no appeal of the judgment was taken or within sixty days of the date the mandate was issued if the judgment was affirmed on appeal. (If judgment was not entered of record within ten days of the date sentence was pronounced, a petition under Rule 37 must be filed where a guilty plea was entered or no appeal was taken within ninety days of the date sentence was pronounced.)

Statutes are given deference only to the extent that they are compatible with our rules, and conflicts which compromise these rules are resolved in favor of our rules. Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994), citing Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). The time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on a untimely petition for post-conviction relief. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). As petitioner did not file his petition for post-conviction relief within the ninety-day period set by Rule 37 to raise such claims, the petition wás untimely. Petitioner therefore could not have prevailed on appeal even if he had perfected an appeal.

Motion denied.


author: Robert H. Dudley, Justice.

text:
    Katherine BARNHART, for Herself and All Others Similarly Situated v. CITY OF FAYETTEVILLE, Arkansas; City of West Fork, Arkansas; Washington County, Arkansas; Northwest Arkansas Resource Recovery Authority; Union National Bank, Little Rock, Arkansas; and Financial Guaranty Insurance Company
    94-969
    900 S.W.2d 539
    Supreme Court of Arkansas
    Opinion delivered June 26, 1995
    [Rehearing denied September 11, 1995.]

      E. Kent Hirsch, P.A., by: E. Kent Hirsch; Pearson, Evans & Chadwick, by: Marshall Dale Evans', and George K. Cracraft, for appellant.

      Niblock Law Firm, by: Walter R. Niblock and Katherine C. Gay, for appellee City of Fayetteville.

      Friday, Eldredge & Clark, by: William H. Sutton, Larry W. Burks, and Jeffrey H. Moore', and Cravath, Swaine & Moore, by: Robert S. Rifkind and Robert H. Baron, of counsel.

      Jesson, C.J., not participating.

   Robert H. Dudley, Justice.

The City of Fayetteville imposed a sanitation charge of $2.02 on each residence to pay a bonded indebtedness owed by the Northwest Resource Recovery Authority. Katherine Barnhart filed suit in chancery court alleging that the levy is a tax and an illegal exaction. The chancellor upheld the levy. We reverse and remand. The tax constitutes an illegal exaction.

On August 30, 1980, the Northwest Arkansas Resource Recovery Authority was formed pursuant to the Joint County and Municipal Solid Waste Act. See Ark. Code Ann. § 14-233-101 to -121 (1987). The Authority was formed to construct and operate a waste disposal incineration plant for the cities of Fayetteville and West Fork and the County of Washington. The affairs of the Authority are directed by a board of directors composed of nine members, and, at all times material to this case, seven of the directors were also directors of the City of Fayetteville.

On December 31, 1985, the Authority issued bonds that were payable solely from revenues derived from the incineration project. The proceeds from the issue were made available to the Authority, but.were placed in escrow because much of the development work such as site selection, contracts, and impact studies had not been completed.

By December 1986, the Authority had developed the project to the point that the proceeds could be fully utilized. The Authority let contracts for the construction of the incineration plant, and agreements were entered into with the participating governments for use of the incinerator service. Under these contracts, Fayetteville would deliver in excess of 33,000 tons of waste per year, and West Fork and Washington County would deliver 1,800 tons of waste per year. The two cities and the county agreed to pay tipping fees, or direct charges for the delivery of waste, from their sanitation funds, and agreed to pass the cost on to their sanitation users. The tipping fees were to be calculated so that they would pay all of the operating costs of the incineration plant and all fees, principal, and interest on the Authority’s outstanding revenue bonds.

The Authority chose to remarket the bonds as fixed rate bonds and, to get a better rate of interest, applied to appellee Financial Guaranty Insurance Company for an insurance policy that would pay the bond debt in event of default by the Authority. As a condition for the issuance of the policy to the Authority, the insurance company required eighteen changes in the existing contracts with the two cities and the county. Up to this time, the Authority had issued the original bonds, received the proceeds from the issue, and was solely responsible for the payment of the obligation. The changes mandated by the insurance company would require the City of Fayetteville to unconditionally guarantee to collect sanitation fees from its citizens and then to pay over from its sanitation fund a sufficient amount of funds to pay all of the Authority’s obligations on the fixed rate bonds. This requested unconditional guarantee would also include an obligation by the City of Fayetteville to pay all unpaid tipping fees of West Fork and Washington County. The guarantee would be absolute and require that tipping fees be collected and paid over to the Authority from sanitation funds without setoff, abatement, credit, or other reduction so long as the bonds remained unredeemed. Under the mandated chainges, the City of Fayetteville could not terminate the agreement even if the Authority were in complete default, unless the trustee was furnished sufficient funds with which to redeem the bonds issued. Finally, it was required that the trustee of the bondholders would be made a third-party beneficiary of the amended contract with the right to sue for its enforcement. The requested changes were made in a Waste Disposal Agreement executed on December 22, 1986.

The city attorney for Fayetteville certified to the insurance company that the amendments had been made, were enforceable, and that Fayetteville was obligated to pay not only its own tipping fees but those of West Fork and Washington County as well, regardless of whether the project was completed or functional and regardless of whether the Authority provided alternative facilities. The fixed rate bonds, designated “Series 1985 Bonds,” were re-issued on December 30, 1986. The bonds, in accordance with Ark. Code Ann. § 14-233-112(a), provided on their face that they were obligations of the Authority and that they were not the indebtedness of any municipality.

Public opposition to the project grew soon after construction was begun in 1987. On March 8, 1988, the Fayetteville Board of Directors conducted a non-binding referendum on continuing with construction of the incineration plant, and a majority voted against continuing with the project. By this time, over $6,000,000 had been spent on the project. On March 11, 1987, the Authority voted to discontinue the project and notified the contractor to stop work. On March 15, 1987, the bond trustee, appellee Union National Bank, notified the Authority and the Financial Guaranty Insurance Company that a default had occurred.

On August 15, 1989, the City of Fayetteville passed Ordinance No. 3444 which imposed the fee of $2.02 per residence, with higher fixed fees for businesses, for the purpose of “absorbing termination cost and retiring the bonds issued.” The fixed fees are to be in effect until January 1, 2003. The rate of $2.02 per residence was calculated as the amount required to pay all fees, principal, and interest on the outstanding bonds of the Authority. This fee is an addition to the charge for sanitation services actually provided.

On August 29, 1989, appellant filed this illegal exaction suit. This suit does not question whether the bonds are valid obligations of the Authority, and does not question whether the bonds are covered by the policy of insurance the Authority purchased from Financial Guaranty Insurance Company. The only issue before us is whether the fee levied on each residence and business in Fayetteville constitutes an illegal exaction.

Appellant’s first point of appeal is that Fayetteville Ordinance No. 3444 imposes an illegal tax because, on its face, it purports to levy a fee or tax on each residence in Fayetteville to pay the long-term debt of the Authority. The argument is well taken. Act 699 of 1975, the act under which the bonds were issued provides in material part:

It shall be plainly stated on the face of each bond that has been issued under the provisions of this chapter, that the bonds are obligations only of the sanitation authority, and that in no event shall they constitute an indebtedness for which the faith and credit of its member municipalities or counties or any of its revenues are pledged.

Ark. Code Ann. § 14-233-112(a) (1987).

The chancellor ruled that “the bonds were issued by authority per Act 699 of 1975 to provide no recourse against Fayetteville..” (Emphasis supplied.) There is no cross-appeal from that ruling. Thus, before Ordinance No. 3444 was passed, the bonds were not the obligation of the City of Fayetteville and did not provide for recourse against the City of Fayetteville. They were the obligations of the Authority, and they were payable solely from revenue derived from the operations of the Authority.

Ordinance No. 3444 declares that the fee is for “absorbing terminating cost and retiring the bonds issued.” The Ordinance, in effect, changed the bonds from being payable solely from funds derived from the revenue of the Authority to being payable from a fee on residences and businesses in Fayetteville.

Municipal corporations have only those taxing powers delegated to them by statute or by the Arkansas Constitution. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), cert. denied, 462 U.S. 1111 (1983). The levy of an unauthorized or illegal tax by a city constitutes an illegal exaction, and relief for such is provided in Article 16, section 13. Id. at 501, 644 S.W.2d at 231. We have long held that a city is not authorized to pay or assume the obligations of a separate governmental entity which exists outside that city. Russell v. Tate, 52 Ark. 541, 13 S.W. 130 (1889); Halbut v. Forrest City, 34 Ark. 246 (1879).

The Authority is a separate governmental entity. Section 14-233-105 of the Arkansas Code Annotated provides that the Authority is “a public body and a body corporate and politic.” Ark. Code Ann. § 14-233-105(c)(3). Section 14-233-107 confers on the Authority “perpetual succession” as a body politic with power to adopt rules, regulations, and policies for conducting its affairs. Id. § 14-233-107(1). The Authority can sue and be sued in its own name, procure insurance, and hire employees. Id. § 14-233-107(3), (7), & (8). Section 14-233-109 confers on the Authority the power to issue revenue bonds and provides the terms and conditions of those bonds. Id. Section 14-233-112 forbids the Authority from accepting a pledge of municipal revenue as security for its bonds. Id. § 14-233-112(a).

Even though the City of Fayetteville had no obligation to pay the bonds, it assumed the debt of the Authority, a separate governmental entity, and levied a charge against the residences to pay the Authority’s debt. The City was without authority to levy a fee that was to pay the long-term debt of the Authority. Thus, the Ordinance imposing the charge was unlawful.

The chancellor ruled, in part, that the charge was valid because it was a fee and not a tax. Appellant assigns the ruling as error. Under the terms of the Ordinance, each residence in Fayetteville is assessed the monthly surcharge until the year 2003, and, in addition, each residence is assessed a fee for the sanitation services that are actually provided. Fayetteville was neither acquiring, owning, maintaining, nor operating the plant. It was acquired, owned, to be maintained, and to be operated by the Authority. The surcharge is not related to providing sanitation services in Fayetteville, but instead is a fee imposed to pay the debt for the Authority’s acquisition of the plant. Since the surcharge is not related to services provided by Fayetteville, it is not a “fee,” but rather is a “tax.” A governmental levy of a fee, in order not to be denominated a tax by the courts, must be fair and reasonable and bear a reasonable relationship to the benefits conferred on those receiving the services. City of Marion v. Baioni, 312 Ark. 423, 850 S.W.2d 1 (1993); City of North Little Rock v. Graham, 278 Ark. 547, 647 S.W.2d 452 (1983). There are exceptions to the foregoing rule, see City of Little Rock v. AT&T Communications of the Southwest, Inc., 318 Ark 616, 888 S.W.2d 290 (1994), but they are not applicable to this case. The fact that the Ordinance labels the exaction a “fee” rather than a “tax” is not binding. Courts look at the true character of the levy to determine whether it is a fee or a tax. Baioni, 312 Ark. at 425, 850 S.W.2d at 2. The true character of the levy in this case is a tax because it is imposed solely to retire the debt of the Authority.

Appellees contend that charge is a fee because it comes from a special fund, but the special-fund doctrine has no application to this case. The doctrine recognizes that the prohibition against a city’s lending of its credit does not apply when a city owns a revenue-producing facility, secures the payment of debt solely with revenues from that asset, and impairs neither the city’s credit nor its revenue. Snodgrass v. City of Pocahontas, 189 Ark. 819, 75 S.W.2d 223 (1934); McCutchen v. City of Siloam Springs, 185 Ark. 846, 49 S.W.2d 1037 (1932). Here, under the terms of the Ordinance the debt is not to be paid solely from the Authority’s revenues. Rather, it is to be paid by a tax on the residences and businesses of Fayetteville.

While a city can assess a fee for providing a service without obtaining public approval, a tax cannot be levied unless it has received approval by the taxpayers. Ark. Code Ann. § 26-73-103(a) (1987). The voters did not approve this tax. Thus, the surcharge constituted an illegal tax.

The chancellor ruled that the Ordinance was valid on the additional ground that the Waste Disposal Agreement unconditionally provided that Fayetteville would pay the Authority’s debt, and the Ordinance was enacted pursuant to the Agreement. Appellant contends that the ruling is in error because the City Board did not have the authority to execute the unconditional guarantee contained in the Waste Disposal Agreement, and the Board of Directors’ action in doing so was ultra vires and void. Again, the argument is meritorious.

The chancellor found:

[T]he [Waste Disposal] agreement further required Fayetteville to unconditionally guarantee the total debts of the authority, which would include the possible default of West Fork and Washington County, each being separate governmental agencies, or even in the current event of termination of the project with no receipt of services to Fayetteville. (Emphasis supplied.)

There is no cross-appeal from the ruling. Thus, it is undisputed that under the terms of the Waste Disposal Agreement, Fayetteville was unconditionally required to pay all of the debt of the Authority, including debt incurred as a result of default by the City of West Fork or Washington County, even if Fayetteville received no services from the Authority. This was in violation of Article 16, section 1, which provides that no municipality shall ever lend its credit for any purpose whatsoever. The foregoing section has been superseded in part by Amendments 62 and 65, to allow local governments to issue bonds, but the later amendments are not applicable to this case; thus, the part of Article 16, section 1, relied on by appellant is still valid. City of Hot Springs v. Creviston, 288 Ark. 236, 713 S.W.2d 230 (1986). Therefore, Fayetteville’s agreement to unconditionally guarantee the obligations of West Fork and Washington County was in violation of the constitution, was unauthorized, and was ultra vires.

The agreement was invalid for a second reason. Under the terms of the Waste Disposal Agreement, the Authority is not obligated to accept or dispose of any waste, nor is it required to supply an alternative facility, and the City of Fayetteville expressly gave up any right of relief in event of default by the Authority. Yet the City of Fayetteville is obligated to pay a fixed sum per month, “without abatement, offset or deduction whatsoever,” and without regard to services being provided by the Authority. The Waste Disposal Agreement denies the City the right to seek redress, abatement, or termination for any reason so long as the bonds remain unredeemed. The Fayetteville city attorney certified to the Financial Guaranty Insurance Company, in part:

[T]he documents have been executed, delivered and are binding and enforceable in accordance with their terms, and 401(d) of the project disposal contract unconditionally obligates the City of Fayetteville to charge, collect and pay from sanitation fund revenue all obligations of “401(c) of said contract to the extent not actually paid by other parties, regardless of whether the facility (as defined in the contract) is completed or is functioning or whether the Authority has provided alternative facilities. (Emphasis supplied.)

Contracts of this nature have been referred to as “dry hole” contracts and have been declared void and ultra vires in other jurisdictions.

In Chemical Bank v. Washington Pub. Power Supply Sys., 666 P.2d 329 (Wash. 1983), the court considered a contract which was similar to the one at issue. There, municipalities contracted to purchase power from a power authority and agreed to pay fees to be calculated on the cost of production which would be sufficient to pay the power authorities’ bonded indebtedness “whether or not the projects were completed, operable or operating.” The obligation was “unconditional and not subject to any reduction whether by offset, or otherwise” and was not conditioned upon the performance by the power agency. Id. at 332.

The initial issue determined by that court was whether the contract came within the municipalities’ authority to “purchase electric power.” In holding that it did not come within that authority the court wrote:

Initially we must decide whether the agreement is authorized as a purchase of electricity by the participants. As discussed in greater detail infra, the purchase of “project capability” under this agreement is essentially an unconditional guarantee of payments on the revenue bonds, secured by a pledge of the participants’ utility revenues, in exchange for a share of any power generated by these projects. The agreement expressly provides for the possibility that no electricity will be generated and that participant payments will be due even if the project is not completed.

Id. at 335.

In Asson v. City of Burley, 670 P.2d 839 (Id. 1983), the Idaho court considered an almost identical contract with the same power authority. In holding the contract invalid that court wrote:

[W]e can find no statutory authorization for the purchase of project capability “where such purchase comprehends the payment of long-term indebtedness for which no power may be supplied, and for which no ownership interest is acquired. The municipality is neither acquiring, owning, maintaining, or operating a plant, nor purchasing electrical power. It is underwriting another entity’s indebtedness in return for merely the possibility of electricity.

Id. at 850.

In Vermont Dep’t of Pub. Serv. v. Massachusetts Mun. Wholesale Elec. Co., 558 A.2d 215 (Vt. 1988), the court considered a contract which it termed “virtually identical” to those before the Washington and Idaho courts as above set out. Id. at 218. It also reached the conclusion that such a contract was not for the “purchase of electricity;” therefore it was ultra vires and void. Id. The court pointed out that the authority to purchase or obtain power did not mean that the municipalities “are free to enter into speculative contracts that impose unconditional long term obligations in the face of ‘if any’ disclaimers.” Id.

In the Waste Disposal Agreement, Fayetteville agreed to pay the outstanding bonded indebtedness of the Authority without regard to whether the Authority unilaterally, and without cause, terminated the sanitation services before the bonds were paid with revenue generated by the Authority. A municipality’s authority to contract for the purchase of a service does not carry with it the power to incur long-term obligations for which no services may be supplied. This was not a contract for the purchase of sanitation services; rather, it was a contract to pay long-term obligations of a separate governmental entity even when the municipality would not receive sanitation services. Thus, it was ultra vires and void.

The trial court additionally upheld the Waste Disposal Agreement on the grounds of ratification, estoppel, and unjust enrichment. Appellant’s assignment of the ruling as error is also well taken. We have long made a distinction between a contract with a municipality that is ultra vires in the general sense and, because it is wholly outside the authority of the municipality to make such a contract under any circumstances, is void ab initio, Town of Newport v. Batesville & Brinkley Ry. Co., 58 Ark. 270, 24 S.W. 427 (1893), and a contract that is ultra vires in the limited sense because the power to contract was merely exercised irregularly and thus can be ratified. Blount v. Baker, 177 Ark. 1162, 9 S.W.2d 802 (1928). In this case the dry hole contract to pay the debts of West Fork and Washington County was outside the authority of the municipality to enter; therefore it was ultra vires and void ab initio, and not subject to ratification. Lamar Bath House Co. v. City of Hot Springs, 229 Ark. 214, 315 S.W.2d 884 (1958), appeal dism’d 359 U.S. 534 (1958). In summary, we hold that Ordinance No. 3444 was unlawful, the Waste Disposal Agreement was void ab initio, and the surcharge is an illegal exaction.

Appellee Financial Guaranty Insurance Company asks that, if we hold that the fee is an illegal exaction as we do, we declare it is an illegal taking of the bondholders’ property. The argument was not raised below. While we do not consider an appellant’s arguments which are raised for the first time on appeal, we will affirm a trial court for a reason not specified by the trial court. However, here appellees seek something more than they received below; they seek a ruling that this action constitutes an illegal taking of the bondholders’ property and such a holding would necessarily entitle the bondholders to damages for the illegal taking. Appellees did not receive that relief in the trial court. An appellee must give notice of cross-appeal in order to obtain affirmative relief. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979). Since notice of cross-appeal was not given, we are precluded from granting any affirmative relief not given by the trial court. Further, there is no showing that Financial Guaranty Insurance Company has standing as a bondholder.

Reversed and remanded for proceedings consistent with this opinion.


author: Tom Glaze, Justice.

text:
    FIRST COMMERCIAL TRUST COMPANY, Administrator of the Estate of Stephanie Michelle Jungkind, Deceased v. LORCIN ENGINEERING, INC.
    94-1094
    900 S.W.2d 202
    Supreme Court of Arkansas
    Opinion delivered June 26, 1995
    [Rehearing denied July 17, 1995.]

      The McMath Law Firm, by: Sandy S. McMath, for appellant.

      Wright, Lindsey & Jennings, by: Edwin L. Lowther, Jr., for appellee.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Guy Amsler, Jr. and Campbell & Associates, a Professional Corporation, by: Richard P. Campbell, Kurt B. Gerstner, & Timothy Wilton, amicus curiae for the Product Liability Advisory Council, Inc.
   Tom Glaze, Justice.

This civil case arises from the fatal shooting of Stephanie M. Jungkind by Michael Catlett. Two weeks ago we affirmed Catlett’s conviction for the capital murder of Stephanie. See Catlett v. State, 321 Ark. 1, 900 S.W.2d 523(1995). In this litigation, Stephanie’s estate, represented by First Commercial Trust Company, brought suit against Catlett, Garry’s Pawn Shop and Lorcin Engineering, Inc. Garry’s sold to Catlett the .380 pistol, manufactured by Lorcin, which Catlett utilized in his killing of Stephanie.

In pertinent part, First Commercial’s complaint alleged Lorcin was negligent in promoting its .380 handgun for sale to a market it knew or should have known included a substantial number of persons who would be prone to misuse the handgun by injuring and killing others. It further alleged Lorcin negligently failed to supply distributors or retailers with a safe-sales policy, including descriptions of the point-of-purchase appearance/conduct “profiles” of prospective purchasers Lorcin knew would likely misuse the .380 handgun. Finally, First Commercial alleged Lorcin negligently failed to warn its distributors and retailers so as to enhance their abilities to identify probable misusers of Lorcin’s .380 handgun. This negligence of Lorcin, First Commercial urged, was a contributing proximate cause of Stephanie’s death.

Lorcin moved to dismiss, stating First Commercial did not allege Lorcin’s .380 handgun was defective in design or manufacture. Lorcin further asserted it owed no other duty to the plaintiff. Upon reviewing the parties’ pleadings, all evidence and argument of counsel, the trial court held Lorcin owed no duty to First Commercial’s estate and was not liable under the negligence theories asserted by First Commercial.

The trial court then entered an Ark. R. Civ. R 54(b) order granting First Commercial’s motion for entry of final judgment wherein the court specifically and factually stated that Garry’s Pawn Shop was the only defendant against which First Commercial could proceed, since (1) Lorcin had been dismissed from the case and (2) Catlett had criminal charges pending against him, making it impractical or impossible to proceed against him because of Fifth Amendment considerations. Accordingly, the trial court entered a final judgment in Lorcin’s favor, permitting First Commercial to pursue an immediate appeal from the judgment while First Commercial’s claims against both Catlett and Garry’s Pawn Shop became fully triable. As previously noted, the criminal charges against Catlett have now been tried and affirmed upon appeal. The trial court’s specific reasons for allowing this appeal and Catlett’s separate criminal proceeding to conclude were reasonable and appropriate considerations under Rule 54 and were designed to permit the parties’ respective claims and defenses to be invoked and presented at one timely trial. Thus, we accept jurisdiction of this cause on appeal. See Guebert v. Williams, 319 Ark. 43, 889 S.W.2d 30 (1994).

While Lorcin filed a motion to dismiss First Commercial’s complaint because it failed to state facts upon which relief could be granted, the trial court, in dismissing the complaint with prejudice, considered evidence outside the pleadings, thereby effectively converting the motion to one for summary judgment. See Amalgamated Clothing & Textile Workers Int’l Union v. Earle Indus., Inc., 318 Ark. 524, 886 S.W.2d 524 (1994). On appeal, we must only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leaves a material question of fact unanswered. Knowlton v. Ward, 318 Ark. 867, 889 S.W.2d 721 (1994). Here, because we agree with the trial court’s holding that Lorcin owed no legal duty to First Commercial’s estate, we must conclude First Commercial had no cognizable claim and the trial court properly dismissed it with prejudice.

First Commercial primarily relies upon Franco, Adm’x v. Bunyard, 261 Ark. 144, 547 S.W.2d 91 (1977), and Cullum & Boren v. Peacock, 267 Ark. 479, 592 S.W.2d 442 (1980), in arguing that liability based upon common law negligence should be imposed upon Lorcin as the manufacturer and supplier of its .380 handguns ultimately sold to customers. In sum, it theorizes that, because common law liability can be imposed upon a retailer selling firearms to customers, manufacturers like Lorcin should also bear similar responsibility, especially when the manufacturer withholds information that bears upon public safety decisions in selling such firearms.

Neither the Bunyard nor Peacock case supports First Commercial’s contentions. First Commercial concedes, as it must, that both of those cases bear upon a retailer’s common law negligence liability in selling a gun to a customer. Those cases in no way suggest such liability applies to the manufacturer or supplier of guns. In fact, Bunyard suggests the contrary. There, a convict escaped the state penitentiary and, days later, bought a second-hand pistol from Bunyard Supply Company, Inc. with which he killed two victims and injured a third after conducting a robbery. Bunyard failed to comply with the federal gun control law and regulations when selling the pistol. Those laws required the seller (licensed dealer) to complete federal form 4473 which served to identify the purchaser and to obtain information that would aid in determining if the firearm should be sold to the customer. The Bunyard court held the proof presented questions of fact as to the liability of Bunyard Supply, pointing out that the violation of a statute or valid regulation is ordinarily evidence of negligence. After holding that the retailer, Bun-yard Supply, was subject to common law negligence liability when selling firearms, the court then concluded Western Auto Supply Company bore no such liability, stating as follows:

Bunyard Supply did business as Western Auto Supply, but it was home-owned and so identified to the public. In the franchise contract Bunyard Supply reserved to itself the “ownership, management, and control” of the store. The national chain agreed to sell its various brands of merchandise to the local store, but the vital power of control remained with Bunyard. And, specifically, the federal license to sell guns was issued to Bunyard Supply, not to Western Auto Supply Company. There was certainly no partnership between the two companies; so, in the absence of any power on the part of Western Auto Supply Company to control the actions of Bunyard Supply, there is no basis for a finding of liability on the theory of agency or joint venture. (Emphasis added.)

The Bunyard holding is fully consistent with this court’s later decisions of Keck v. American Employment Agency, Inc., 319 Ark. 294, 652 S.W.2d 2 (1983), and Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994), where the court adhered to the rules that the question of what duty is owed is always a question of law and that one is ordinarily not liable for the acts of another unless a special relationship exists. Although Keck did not involve a firearm, it was a negligence case where an employment agency sent one of its customers to interview a prospective employer who raped the agency’s customer, Mrs. Keck. In imposing a duty owed the customer of the agency, the Keck court relied upon an Arkansas statute which placed a duty on employment agencies to assure a “bona fide job order” existed before any customer was referred for a job interview. The court further held that a special relationship existed between Keck and the agency as a result of (1) the contractual relationship between the agency and its customer, (2) the agency’s ability to foresee some danger in sending the customer to prospective employers, and (3) the degree of control the agency had over the employers it made available to its customers.

This “special relationship” requirement utilized in Arkansas cases in imposing a legal duty in tort liability situations resulting from the criminal acts of third parties is also enunciated in Delahanty v. Hinckley, 564 A.2d 758 (D.C. 1989). There, Thomas Delahanty sustained injuries from a “Saturday Night Special” handgun employed by John Hinckley when Hinckley attempted to assassinate President Ronald Reagan. The court rejected Delahanty’s negligence argument in his attempt to impose tort liability upon the manufacturer of the handgun, stating as follows:

“In general no liability exists in tort for harm resulting from the criminal acts of third parties, although liability for such harm sometimes may be imposed on the basis of some special relationship between the parties.” Hall v. Ford Enterprises, Ltd., 445 A.2d 610, 611 (D.C. 1982); see also Kine v. 1500 Massachusetts Ave. Apartment Corp., 141 U.S. App. D.C. 370, 375-76, 439 F.2d 477, 482-83 (1970) (relationships giving rise to a duty of protection include landlord to tenant, school district to student, employer to employee, and hospital to patient); District of Columbia v. Doe, 524 A.2d 30, 32 (D.C. 1987) (school to student). We are not inclined to extend the rationale of these decisions to the present case. Appellants [Delahantys] have alleged no special relationship with the gun manufacturer and have suggested no reasonable way that gun manufacturers could screen the purchasers of their guns to prevent criminal misuse.

In the present case, no special relationship exists between Lorcin, Garry’s or the ultimate purchaser of its handgun. First Commercial agrees Lorcin had no control over its retailers or dealers, nor does a federal or state law otherwise impose a duty upon Lorcin as a manufacturer of a firearm sold to the purchaser.

Courts in other jurisdictions have also rejected contentions similar to First Commercial’s. See Knott v. Liberty Jewelry & Loan, Inc., 50 Wash. App. 267, 748 P.2d 661 (1988). For example, in Riordan v. International Armament Corp., 132 Ill. App. 3d 642, 477 N.E.2d 1293 (1985), the court held that no common law duty exists upon the manufacturer of a nondefective handgun to control the distribution of that product to the general public, as distribution was intended for the general public “who presumably can recognize the dangerous consequences in the use of handguns and can assume responsibility for their actions.” In addition, the court in Hinckley acknowledged and then rejected the plaintiff’s argument that, while no malfunction or defect of the handgun caused his injury, the manufacturer still had a duty to warn of the dangers of criminal misuse of the gun. The Hinckley court held, in addressing whether manufacturers had a duty to warn of the criminal misuse of a gun, that there is no duty to warn when the danger, or potentiality of danger, is generally known and recognized. The court further concluded that, because hazards of firearms are obvious, the manufacturer had no duty to warn. See also Patterson v. Gasellschaft, 608 F. Supp. 1206 (D.C. Tex. 1985).

In view of the foregoing authority, which overwhelmingly rejects placing a duty upon a firearm manufacturer in like circumstances as those described here, we uphold the trial court’s dismissal of First Commercial’s complaint against Lorcin.

       Other defendants named but later dismissed from suit were the Interstate Distributing Company, Inc., the Mental Health Center of Greater Little Rock and St. Paul Fire and Marine Insurance Company, Inc., which was alleged to be the Center’s insurer.


author: Robert L. Brown, Justice.

text:
    Douglas James CLAYTON v. STATE of Arkansas
    CR 94-1446
    900 S.W.2d 537
    Supreme Court of Arkansas
    Opinion delivered June 26, 1995

      Ralph M. Cloar, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This is an appeal by appellant Douglas James Clayton from a judgment of conviction for first degree murder, attempted first degree murder, and aggravated assault. The judgment arose out of a drive-by shooting on July 13, 1992, in which occupants of a car were fired upon while traveling east on Roosevelt Road in Little Rock. One of those occupants, Shiranda Abdullah, died of a gunshot wound.

At the trial of this matter, a prosecution witness, Kenneth Johnson, who was in the car with Shiranda Abdullah, first positively identified Clayton as the driver of the car but then recanted his testimony identifying Clayton. After all evidence had been presented and during jury deliberations, a juror raised the question by note to the circuit judge about whether he could share something that he had seen with the other jurors. The judge interviewed the juror in camera, and the juror stated that he had seen a defense attorney pay money to a man who had brought Kenneth Johnson back to testify a second time at trial. The implication was that Kenneth Johnson may have been paid to change his story. Discussions followed among trial counsel and the judge, but out of the presence of Clayton. Counsel for Clayton moved for a mistrial on grounds that the jury was tainted, but the circuit judge refused to terminate the proceedings. Verdicts of guilty then followed.

The judgment of conviction was entered on June 1, 1994. That same day, a motion for a new trial was filed by Clayton on the basis that several jurors had seen the money change hands and that Clayton’s trial was prejudiced as a result. On June 15, 1994, a hearing was conducted on the motion, and jurors were brought in to testify concerning whether the perceived payment by defense counsel affected their deliberations. The circuit judge denied the motion for a new trial but only made a docket entry denying the motion. The record does not disclose that any order was entered to that effect. Clayton filed his notice of appeal on June 22, 1994.

In his brief before this court, Clayton urges that the circuit judge erred in denying his motions for mistrial and his post-judgment motion for a new trial and further erred in excluding his presence during a substantial step in his trial. We dismiss the appeal, however, for failure to comply with Rule 36.9(b) of the Arkansas Rules of Criminal Procedure, which states:

(b) A notice of appeal is invalid if it is filed prior to the entry of the judgment or order appealed from or if it is filed on or before the date a post-trial motion under Rule 36.22 is deemed denied pursuant to Rule 4(c) of the Rules of Appellate Procedure.

Rule 36.9(b), as amended, was effective January 31, 1994. In the case at bar, the notice of appeal was filed prior to the date that the motion for a new trial was deemed denied, which date would have been July 1,1994. The premature notice was filed on June 22, 1994, and as a result was void and of no effect.

It might be argued that because the notice of appeal was filed within 30 days of the judgment of conviction, it was effective with regard to the judgment though not timely with regard to the denial of the motion for a new trial. We have previously decided this issue and determined that a premature notice of appeal with respect to a post-trial motion is ineffective for all purposes, including an appeal from the original judgment of conviction. Nance v. State, 318 Ark. 758, 891 S.W.2d 26 (1994) (per curiam). In Nance, the judgment was entered on April 11, 1994, and a motion for a new trial was filed that same date. No order denying the new trial motion was entered. A notice of appeal was filed on April 18, 1994. We stated:

Under Ark. R. Crim. R 36.9(a)(2), the time for taking an appeal is within thirty days from the date of entry of an order denying a post-trial motion under Ark. R. Crim. P. 36.22. As we first decided in Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989), and reaffirmed in Kelly above, the trial judge’s decision from the bench denying appellant’s motion does not become effective until the date of filing. In Ark. R. Crim. P. 36.9(b), as amended by per curiam on January 31, 1994, this court provided that a notice of appeal is invalid if it is filed prior to the entry of the judgment or order appealed from. Here, no order denying appellant’s request for new trial was ever filed, so appellant’s notice of appeal was invalid. In addition, we note that, under Rule 36.9(a)(3) and (b), appellant’s April 11 post-trial motion would otherwise have been deemed denied on May 11, 1994, therefore, his April 18, 1994 notice of appeal would be invalid and ineffective as premature.

318 Ark. at 759-760, 891 S.W.2d at 27.

The holding of Nance v. State is stare decisis and controls the present case.

Appeal dismissed.

      The record also reflects that a judgment of conviction was entered on May 23, 1994.


text:
    Johnny BREWER v. STATE of Arkansas
    CR 95-607
    901 S.W.2d 11
    Supreme Court of Arkansas
    Opinion delivered June 26, 1995

      Thomas B. Devine, III, for appellant.
    No response.
   Per Curiam.

We treat this motion for rule on the clerk as a motion for a belated appeal. Appellant filed his notice of appeal on December 16, 1994 at 1:17 p.m., whereas the judgment was not entered until December 16, 1994 at 2:36 p.m. Under our rules the notice of appeal was of no effect. Ark. R. App. P. 4; Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 249 (1991).

We grant the motion for a belated appeal and direct that a copy of this opinion be forwarded to the Committee on Professional Conduct.


text:
    Donald E. ZUCCO v. STATE of Arkansas
    CR 94-46
    900 S.W.2d 545
    Supreme Court of Arkansas
    Opinion delivered June 26, 1995

      Micheál Knollmeyer, for appellant.
    No response.
   Per Curiam.

Donald E. Zueco, by his attorney, Michael Knollmeyer, has filed a motion for rule on the clerk. The motion admits that the record was not timely filed but states that it was not the fault of appellant’s counsel.

The motion does not state good cause for granting the motion as discussed in our per curiam issued February 5, 1979. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

If the appellant’s attorney will file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct. The present motion for rule on the clerk is denied.


author: Jack Holt, Jr., Chief Justice.

text:
    Clifton GARRIGUS v. STATE of Arkansas
    CR 95-204
    901 S.W.2d 12
    Supreme Court of Arkansas
    Opinion delivered July 3, 1995

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Senior Appellate Advocate, for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Clifton Duane Garrigus appeals from his conviction for underage driving while under the influence of alcohol in violation of Act 863, Acts of Arkansas (1993), which offense is codified at Ark. Code Ann. § 5-65-301 through -311 (Repl. 1993). For his sole point of error, Garrigus contends the trial court erred in denying his motion to declare Act 863 unconstitutional. We find no merit to the argument and affirm.

Garrigus asserts that Act 863, cited as the “Underage DUI Law” is unconstitutional for three reasons. First, he appears to claim that because the trial court found section 5-65-306 to be facially unconstitutional, the entire act is rendered unconstitutional. Section 5-65-306 mandates that persons convicted of underage DUI be ordered to perform public service work “of the type and for the duration as deemed appropriate by the court.” The trial court agreed with Garrigus, and it was conceded by the state, that the statute is violative of due process rights in that it grants the trial judge authority to mandate the performance of public service indefinitely.

We need not consider the constitutionality of section 5-65-306, as Garrigus’ argument to the trial court was successful. A party who prevails on a certain issue at trial cannot later raise the issue on appeal. See Kelley v. Medlin, 309 Ark. 146, 827 S.W.2d 47 (1994). In addition, the Benton County Circuit Court found that section 5-65-306 was unconstitutional without the benefit of an adversarial argument from the state. This Court has previously held that it will not consider the constitutionality of section 5-65-306 in the absence of a fully developed adversarial case at trial level. Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995). This was not done in this case.

In his second point for reversal, Garrigus asserts that section 5-65-311(a) violates a defendant’s former jeopardy right not to suffer multiple punishment for the same offense. That statute provides that the penalties for underage DUI “shall be in addition to all other penalties prescribed by law for the offense under other laws of the State of Arkansas.” The trial court found Garrigus guilty only of underage DUI, however, and imposed sentence under those provisions. There was no finding of guilt or punishment imposed under another state law; therefore Garrigus lacks standing to raise the issue. See David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985); Chronister v. State, 265 Ark. 437, 580 S.W.2d 676 (1979).

For a similar reason, we must also refuse to consider Garrigus’s third contention that section 5-65-310 violates equal protection principles. Section 5-65-310 prescribes various penalties for the refusal of an underage person arrested for DUI to submit to a chemical test based on whether the arrestee is a resident or nonresident of the state and whether he has a valid driver’s license. Testimony at trial established that Garrigus voluntarily submitted to a breathalyzer test and thus there was no finding that he violated section 5-65-310. In order to challenge the constitutionality of a statute, a person must demonstrate that the challenged statute had a prejudicial impact on him. Greer v. State, 310 Ark. 522, 837 S.W.2d 884 (1992). Garrigus again lacks standing to warrant consideration of the issue raised on appeal.

The judgment of the trial court is affirmed.