author: Otis H. Turner, Justice.

text:
    WSC, INC., d/b/a Wilkins Sanitation Co. v. The CITY OF JACKSONVILLE, Arkansas, and Tommy Swain, Mayor of the City of Jacksonville
    89-276
    789 S.W.2d 448
    Supreme Court of Arkansas
    Opinion delivered May 14, 1990

      Charles L. Carpenter, Jr., for appellant.

      Vaughan and Bamburg, by: Keith Vaughan, for appellee.
   Otis H. Turner, Justice.

This case presents a challenge to a Jacksonville city ordinance levying a fee on trash collection businesses within the city. The ordinance provides for a fee or tax equal to ten percent of their “gross receipts per month for services rendered within the city limit.” The chancellor found that the tax, though characterized as a privilege tax, was in fact a franchise fee arising from a contractual relationship between the parties. There was no writing evidencing a contractual relationship between the appellant, WSC, Inc., doing business as Wilkins Sanitation Company, and the city which would establish a contractual relationship. Further, we find the evidence overwhelming that the ordinance in question established a privilege tax “based upon earnings or income” in contravention of statutory authority, and we reverse.

Ordinance 523 was adopted by appellee City of Jacksonville in 1978 and established “a privilege tax of ten percent of gross revenues for each month they [commercial haulers of trash] operate within the city.” The city amended the ordinance in 1987, changing the designation of the assessment from a privilege tax to a franchise fee by providing that Ordinance 523 “incorrectly stated this was a privilege tax, when in essence it was and has always been a franchise tax for the operation of commercial haulers of garbage and refuse upon the city streets and right of ways of Jacksonville.”

The appellant and its predecessor, along with others, had been engaged in the commercial trash-hauling business in Jacksonville since 1978. In 1988, the appellant filed suit, seeking declaratory and injunctive relief, following the arrest of its manager for failure to pay the fees levied. The appellee counterclaimed, seeking judgment for the unpaid levies.

Following a hearing, the chancellor found that a contractual relationship existed. Further, he determined that a franchising arrangement had been established with the enactment of Ordinance 523 in 1978 and that the designation of the assessment as a privilege tax did not alter the fact it was a franchise fee or tax.

For reversal, the appellant raises three points. Because, however, we reverse on the first issue, it is not necessary to reach the other arguments raised.

The chancellor erred in finding that Ordinance 523 was valid and enforceable and not violative of the statutory prohibition against privilege taxes based upon earnings or income.

Arkansas Code Annotated § 26-77-102 (1987) provides:

(a) Any city council... of any municipal corporation in this state shall have the power to enact . . . ordinances requiring any . . . person ... or corporation who shall engage in, carry on, or follow any trade, business, profession, vocation, or calling, within the corporate limits of the city or town, to pay a license fee or tax ... .
(c) The license charged and collected shall be for the privilege of doing business or carrying on any trade, profession, vocation, or calling in the city where the trade, business, profession, vocation, or calling is situated, to take out and procure a license therefor and pay into the city or town treasury before receiving it such a sum or amount of money as may be specified by the ordinance for the license and privilege.
(d) The council or boards shall have the right to classify and define any trade, business, profession, vocation, or calling and to fix the sum or amount any person, firm, individual, or corporation shall pay for the license required for the privilege of engaging in, carrying on, or following any trade, business, vocation, or calling, based on the amount of goods, wares, or merchandise carried in stock in any business, or the character and kind of trade, business, profession, vocation, or calling. However, no classification shall be based upon earnings or income.
(e) The council or boards shall have the full power to punish for violation of these ordinances. . . . [Emphasis added.]

In City of Mountain Home v. Drake, 281 Ark. 336, 663 S.W.2d 738 (1984), the supreme court discussed this statute, under its previous codification as Ark. Stat. Ann. § 19-4601, in connection with a municipal ordinance imposing a privilege fee according to the number of units being operated by various businesses (e.g., $50 per ambulance, $7.50 per barber and beauty shop chair, $5 per billiard table, $3.50 per motel unit). The court sustained the city’s argument that the ordinance was not based on income or earnings, noting: “ [ W] e think the statute was intended only to prohibit a tax imposed according to the earnings of a trade or business, such as a percentage of annual sales, that is, a tax specifically related to income or volume.” 281 Ark. at 338, 663 S.W.2d at 740.

The court declined to speculate as to whether “a motel with six units has greater earnings than a motel with five, [for] it may well be just the reverse.” The court stressed that the statute does not prohibit “any tax which takes into account the size of an enterprise, so long as the amount is not unreasonable and a reasonable relationship exists between the goods and services afforded by the city and the distinctions drawn as to size.” 281 Ark. at 339, 663 S.W.2d at 740.

Here, the trash haulers are not being taxed on the basis of the number of vehicles or trash collection devices which they utilize within the city. Instead, the tax — irrespective of the name by which it is called — is levied directly upon the income of the involved businesses and violates the prohibition against classification “based upon earnings or income” as plainly stated in the enabling statute. It is an even more egregious example than the ordinance which we struck down in Davies v. Hot Springs, 141 Ark. 521, 217 S.W. 769 (1920). In that case, the court held that the imposition of a tax on attorneys based upon years of practice was related to income and therefore invalid. We there observed that the “length of service denotes probable earning capacity” and that “to permit a classification based on the distinction as to length of service necessarily results in a basis of earnings or income which is expressly forbidden by the statute.” 141 Ark. at 530-531; 217 S.W. at 772.

The amended ordinance substitutes “gross receipts” for “gross revenues” in an effort to avoid the “earnings or income” prohibition. However, gross receipts are regulated under a different statutory scheme, found at Ark. Code Ann. §§ 26-75-201 through 26-75-801 (1987 & Supp. 1989), and subject to the limitations of the Arkansas Gross Receipts Act of 1941, as amended, found at Ark. Code Ann. §§ 26-52-101 through 26-52-1006 (1987 & Supp. 1989). The term “gross receipts” refers to the “total amount of consideration for the sale of tangible personal property” and various specifically enumerated services (which do not include the hauling of refuse). See Ark. Code Ann. §§ 26-52-103(a)(4), and 26-52-301 (Supp. 1989).

A taxing scheme by which the City of Jacksonville may tax licensed trash haulers operating within the municipality is available to the appellees. However, the assessment must have as its basis something other than the statutorily-forbidden sources of “earnings or income.”

Reversed and remanded.


source: Caselaw Access Project

author: Dale Price, Justice.

license: Public Domain

text:
    FORT SMITH SERVICE FINANCE CORPORATION v. Claude PARRISH, Jr.
    90-25
    789 S.W.2d 723
    Supreme Court of Arkansas
    Opinion delivered May 14, 1990

      Daily, West, Core, Coffman & Canfield, by: Wyman R. Wade, Jr., for appellant.

      The Cortinez Law Firm, by: Mark D. D’Auteuil, for appellee.
   Dale Price, Justice.

The question in this case is whether the appellant’s acceptance of money, obtained as a result of a lien filed in a personal injury case, operated as an accord and satisfaction of a judgment in a different case. We hold it did not and reverse and remand.

The facts are that Claude Parrish’s daughter, Melinda, was injured in a car accident in 1985. She was treated at Sparks Regional Medical Center in Fort Smith, and incurred over $16,000 in medical expenses. Sparks assigned the account to the appellant, Fort Smith Service Finance Corporation (FSSFC).

To collect on the account, FSSFC took two initial steps. First, pursuant to the Medical, Nursing and Hospital Lien Act, FSSFC filed a notice of a lien claim with the Sebastian County Circuit Clerk on May 6, 1986. In that notice, FSSFC sought to establish a lien on any claim, right of action, or money to which the appellee might be entitled due to injuries received through the fault or neglect of another. Second, on December 8,1986, FSSFC filed suit against Claude Parrish for the balance due on the account, which, because of payments from various sources, had been reduced to $6,199.05. On April 22, 1987, FSSFC obtained summary judgment for that amount. This was case number 86-74.

In early 1987, Melinda Parrish filed suit against Arlis Swaim, the driver who had allegedly caused her injuries in the car accident. Once again, acting pursuant to the Medical, Nursing and Hospital Lien Act, FSSFC filed a notice of a lien claim. This time, the notice was filed directly in the personal injury suit. A lien was sought on any claim, right of action, or money to which Melinda became entitled as a result of injuries suffered through the negligence of Arlis Swaim. The total amount of the lien claimed was $6,199.05, the same as the amount for which FSSFC earlier had obtained a summary judgment.

In August of 1988, the personal injury suit against Swaim was settled for $10,000. A hearing was held to determine how to apportion the settlement proceeds among the appellant and two other lien claimants, the Department of Human Services and the Holt-Krock Clinic. The court distributed $4,500 of the proceeds on a pro rata basis as follows: Department of Human Services, $2,025; Holt-Krock Clinic, $1,485; FSSFC, $990. The court’s order provided that all liens were thereby satisfied in full. FSSFC accepted the $990.

Approximately ten months after the settlement proceeds had been distributed, Claude Parrish filed a motion in case number 86-74, the case in which summary judgment had been obtained against him. In his motion, Parrish noted that the amount of summary judgment was the same as the amount of the lien claimed by FSSFC in the personal injury action. By putting the matter in issue in the apportionment hearing and accepting $990, FSSFC, Parrish argued, agreed to accept the smaller sum in satisfaction of the whole debt.

The trial court agreed with the appellee and held that FSSFC’s acceptance of the $990 was an extinguishment of the entire debt by accord and satisfaction. It is from that order that FSSFC appeals.

The Medical, Nursing and Hospital Lien Act is codified at Ark. Code Ann. §§ 18-46-101 to 117 (1987). The Act provides that, if a hospital provides services to a patient who has been injured through the fault or neglect of another, the hospital shall have a lien on any claim, right of action, and money to which the patient is entitled because of that injury. Ark. Code Ann. § 18-46-104 (1987). The purpose of this lien is to encourage a hospital to extend its services and facilities to indigent persons who suffer personal injury through the negligence of another. Buchanan v. Beirne, 197 Ark. 635, 124 S.W.2d 813 (1939); see also Annot., Hospital Lien Statutes, 25 A.L.R. 3d 858 (1969). The act should be liberally construed to effectuate this purpose. Buchanan v. Beirne, supra.

To establish the lien, the hospital (or its assignee under Ark. Code Ann. § 18-46-108), may take either or both of the following steps: 1) serve a notice of its claim on the patient and on the tortfeasor or insurer, plus file the notice in the circuit clerk’s office in the county in which the services have been rendered; or 2) if it is aware the patient has filed suit against the one who caused her injuries, file its notice in the court in which the lawsuit is pending. Ark. Code Ann. § 18-46-105 (1987). If the case is settled and the amount of the settlement is not sufficient to pay all lien claimants in full, each claimant receives a pro rata share as computed under Ark. Code Ann. § 18-46-117 (1987).

On appeal, Parrish offers two theories to explain why FSSFC’s acceptance of $990 in satisfaction of its lien should discharge the entire debt. First, it is argued that, once the court awarded the $990 and extinguished the lien, the doctrine of res judicata barred FSSFC from seeking payment for a greater amount. Second, Parrish claims that FSSFC’s acceptance of the $990 operated as an accord and satisfaction of the debt.

The res judicata argument fails because extinguishment of a lien is not the equivalent of extinguishment of a debt. A lien is a right which the law gives to have a debt satisfied out of a particular thing. It affords a supplemental and additional remedy for collection of a debt. 51 Am. Jur. 2d Liens, § 2 at 143-44 (1969). A lien simply provides security for the payment of an obligation.

For the doctrine of res judicata to apply, it must appear that the particular matter involved was raised and determined or that it was necessarily within the issues that might have been litigated in the previous action. Talbot v. Jansen, 294 Ark. 537, 744 S.W.2d 723 (1988). When the court awarded FSSFC $990 and extinguished its lien, the result was that FSSFC would no longer have the lien as security for the debt. The matter of Parrish’s liability on the entire debt was not raised or determined in that proceeding, nor was it an issue that might have been litigated in that proceeding.

Parrish’s argument that the acceptance of the $990 operated as an accord and satisfaction of the debt must also fail. Accord and satisfaction is defined as a settlement in which one party agrees to pay and the other to receive a different consideration or a sum less than the amount to which the latter considers himself entitled. Jewell v. General Air Conditioning Corp., 226 Ark. 304, 289 S.W.2d 881 (1956). It is an affirmative defense which must be proved by the party asserting it. ARCP Rule 8(c).

The key element of an accord and satisfaction is a meeting of the minds, or, in more modern contract terms, an objective indicator of agreement. The parties must agree that the payment of the smaller sum will discharge the whole debt. Dudley v. Adams, 221 Ark. 376, 298 S.W.2d 701 (1957). The mere fact that the creditor receives less than the amount of his claim, with knowledge that the debtor claims to be indebted to him only to the extent of the payment made, does not necessarily establish an accord and satisfaction, Dudley v. Adams, supra.

In this case, there is simply nothing to show the parties agreed that the acceptance of the $990 would discharge the entire debt. There is no evidence that FSSFC accepted the money as anything other than the amount gained from enforcing its lien, to be applied toward the partial satisfaction of the debt owed by Parrish.

The court erred in holding that FSSFC’s acceptance of $990 on its lien claim discharged the appellee’s entire debt. The summary judgment should be reinstated, less a credit for the $990 and any other necessary adjustments.

Reversed and remanded.


text:
    Melissa Skaggs SCHUH v. Dorothy ROBERSON
    90-74
    788 S.W.2d 740
    Supreme Court of Arkansas
    Opinion delivered May 14, 1990

      Sloan, Rubens, Peeples & Coleman, by; Gerald A. Coleman and Julie B. Menke, for appellant.

      Skillman and Durrett, by: Chadd L. Durrett, Jr., for appellee.
   Dale Price, Justice.

This is an appeal from a child custody determination between the mother of the child and the maternal grandmother. Custody was awarded to the grandmother, appellee Dorothy Roberson, and the mother, Melissa Skaggs Schuh, appeals.

The history of this case begins with a 1987 divorce action between the appellant and her then-husband, James Skaggs. In that action, the appellant was awarded temporary custody of her infant son, Brandon. However, before the custody decree became final, the appellee intervened in the case and was awarded temporary custody of the child on June 22, 1988.

Shortly after the custody award to the appellee, the court discovered that Brandon was an illegitimate child. Based on the child’s newly determined status, the chancery court vacated its custody order. The appellant then began proceedings in the county court, asking that court to establish paternity and give her custody of her child. Once again, the appellee intervened.

The county court, acting through a specially appointed master, awarded temporary custody to the appellee. A few months after this custody award, we decided the case of Hutton v. Savage, 298 Ark. 256,769 S.W.2d 394 (1989), in which we held the juvenile master system unconstitutional. This custody case was held in abeyance pending implementation of a new juvenile court system. Once that occurred, the case was transferred to juvenile court.

On October 6, 1989, a hearing was held before the juvenile judge and permanent custody was awarded to the appellee. It is from this order that the appellant appeals, claiming that, because the judge made no finding that she was an unfit parent, the award of custody was in error. We agree and reverse and remand for further findings.

Generally, the prime concern and controlling factor in child custody cases is the best interest of the child. Tucker v. Tucker, 207 Ark. 359, 180 S.W.2d 571 (1944); Jones v. Jones, 13 Ark. App. 102, 680 S.W.2d 118 (1984). However, when a third person seeks to deprive a parent of custody, she cannot do so without first proving that the parent is not a suitable person to have the child. Riley v. Vest, 235 Ark. 192, 357 S.W.2d 497 (1962). The law establishes a preference for the natural parent and that preference must prevail unless it is established that the natural parent is unfit. Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988); Perkins v. Perkins, 266 Ark. 957, 589 S.W.2d 588 (Ark. App. 1979). The appellant in this case requested such a finding by the juvenile judge, but no such finding was made. Therefore, error occurred. Where a third party intervenes in a child custody matter, that party has the burden of proving the parents are incompetent or unfit to have custody. Greening v. Newman, 6 Ark. App. 261, 640 S.W.2d 463 (1982). In Parks v. Crowley, 221 Ark. 340, 253 S.W.2d 561 (1952), we made the following statement:

The law recognizes the preferential rights of parents to their children over relatives and strangers, and where not detrimental to the welfare of the children, they are paramount, and will be respected, unless special circumstances demand that such rights be ignored. . . . Courts are very reluctant to take from the natural parents the custody of their child, and will not do so unless the parents have manifested such indifference to its welfare as indicates a lack of intention to discharge the duties imposed by the laws of nature and of the state to their offspring suitable to their station in life. (Cites omitted.)

Ordinarily in chancery cases, we exercise our power of de novo review and decide the case on the record before us. However, when the situation warrants it, we have the authority to remand such cases. Lynch v. Brunner, 294 Ark. 515, 745 S.W.2d 115 (1988). We have had no hesitancy in remanding chancery cases when further proof is needed on a legal theory not considered by the chancellor and when we cannot plainly see what the rights and equities of the parties are. Henslee v. Kennedy, 262 Ark. 198, 555 S.W.2d 937 (1977). Because juvenile court is a division of chancery, we will exercise that same prerogative in juvenile court cases.

We, therefore, remand this case to allow the judge to receive further proof, if necessary, on the issue of the appellant’s fitness as a parent and to make a finding accordingly. Additionally, we remand to allow the judge to receive proof on any relevant matters contained in Ark. Code Ann. § 9-27-328 (Supp. 1989). That portion of the juvenile code requires that specific findings be made before the juvenile is placed somewhere other than in the parent’s home.

Reversed and remanded.


author: Ian W. Vickery, Special Justice.

text:
    Bobby BRATTON v. MITCHELL, WILLIAMS, SELIG, JACKSON & TUCKER
    89-205
    788 S.W.2d 955
    Supreme Court of Arkansas
    Opinion delivered May 14, 1990

      Art Dodrill, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Ian W. Vickery, Special Justice.

On March 30,1989, the appellant, Bobby Bratton, filed his initial complaint seeking damages in this action in the Circuit Court of Searcy County. At the time of the filing of this complaint, the record reflects that Bratton had previously filed for relief under Chapter VII of the Bankruptcy Code and that a bankruptcy trustee had been appointed to the case. The Chapter VII proceedings resulted from the conversion of a Chapter XI filed in 1982.

The issue of whether or not Bratton had standing, in addition to challenges to the sufficiency of the pleadings and venue, was disputed in the initial answer of the appellee, Mitchell, Williams, Selig, Jackson & Tucker, on April 21, 1989, and was subsequently raised as a procedural bar, together with other matters, in appellee’s motion to dismiss filed May 9, 1989.

After considering numerous pending motions in the matter, including appellee’s motion to dismiss, the trial court entered an order of dismissal on June 16, 1989, finding that “[p]laintifFs alleged cause of action is property of his pending bankruptcy estate, therefore Plaintiff lacks standing to maintain this action.”

We agree and affirm.

In this case, there is no evidence that the bankruptcy trustee abandoned this claim or that the trustee joined in or ratified Bratton’s filing of this complaint in circuit court. In fact, the evidence in the record indicates the contrary.

In Vreugdenhil v. Hoekstra, 773 F.2d. 213 (8th Cir. 1985), the Eighth Circuit Court of Appeals addressed the issue of standing and stated:

As noted, the district court also concluded appellants lack standing to maintain this suit. Authorities have in general agreed (although on varying rationales) that a debtor may not prosecute on his own a cause of action belonging to the estate unless that cause of action has been abandoned by the trustee. Baker v. Data Dynamics, Inc., 561 F.Supp. 1151, 1165 (W.D.N.C. 1983) (debtors lack capacity to maintain suit); In re Homer, 45 B.R. 15, 25 (Bankr. W.D. Mo. 1984) (debtor has no standing) ....

Similarly, in In re Homer, supra, the court stated:

The defendants’ counterclaim for conversion became property of the bankruptcy estate when the debtors filed their petition for relief under title 11 of the United States Code. See § 541 of the Bankruptcy Code. Thereafter, the claim was assertable only by the trustee in bankruptcy unless, after the trustee’s refusal to prosecute the claim, the court should restore its ownership to the debtors. That is not shown to be the case at bar.

It is clear that the claim asserted in circuit court remains the property of the bankrupt’s estate, and must be prosecuted, if at all, by the trustee unless it is abandoned to the debtor. Accordingly, we affirm, and need not consider other issues raised in this appeal.

Affirmed.

Special Justices John Stroud and John D. Eldridge join in this opinion.

Hays, Glaze, Turner and Price, JJ., not participating.


author: Steele Hays, Justice.

text:
    NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY v. Bruce A. HESLIP
    89-267
    790 S.W.2d 152
    Supreme Court of Arkansas
    Opinion delivered May 21, 1990

      Stanley, Harrington & Mars, by: Thomas A. Mars, for appellant.

      Hixson, Cleveland & Rush, by: David L. Rush, for appellee.
   Steele Hays, Justice.

The appellee, a member of the Arkansas National Guard, brought this action against Northwestern National Life Insurance Company (Northwestern), the appellant, to recover disability insurance benefits for a back injury. Northwestern issued a group disability policy to the National Guard Association of the United States Insurance Trust (NGAUS). The group disability policy provided benefits if the insured became totally disabled as a result of a nonoccupational accidental injury. However, the policy excluded from coverage any injury or sickness arising out of the insured’s occupation or employment for which the insured was eligible for worker’s compensation benefits or similar coverage.

The appellee incurred a series of back injuries. The first on March 15, 1985, while he was pushing a vehicle at his home. He suffered another on May 17,1985, at guard drill. The final injury occurred on July 17, 1985, when the appellee was working as a mechanic for the Arkansas National Guard. Appellee received disability benefits for the May 17th injury and received worker’s compensation benefits from the United States Department of Labor for the July 17th injury. Whether the benefits from the Department of Labor were actually worker’s compensation benefits is not clear.

Northwestern denied liability based on a policy provision excluding any disability for which the insured is eligible for worker’s compensation or similar benefits. Northwestern also denied coverage alleging that the Employee Retirement Income Security Act of 1974 (ERISA) preempted the appellant’s state law cause of action.

The jury returned a verdict of $19,800 for the appellee. The trial court awarded a 12% statutory penalty and attorneys’ fees of $10,000. The appellant appeals from the trial court’s denial of its post trial motions for a new trial or in the alternative for judgment notwithstanding the verdict. The appellee cross appeals, alleging the $10,000 attorneys fee awarded by the trial court is inadequate.

The appellant contends the trial court erred in refusing to give the jury an estoppel instruction. Our case law is quite clear that estoppel in pais or equitable estoppel may be pled in both courts of equity and courts of law. Aclin v. Caplener, 229 Ark. 718, 318 S.W.2d 141 (1953); People’s Fire Insurance Association of Arkansas v. Goyne, 79 Ark. 315, 96 S.W. 365 (1906). The appellant pled the affirmative defense of estoppel, as required by ARCP Rule 8(c), in his amended answer. Appellant then requested an estoppel instruction, relying on Atkins v. Pilot Life Ins. Co., 4 Ark. App. 257, 630 S.W.2d 50 (1982).

In Atkins the claimant signed a joint petition that his lung and brain abscess problems were work related and collected $15,000 in worker’s compensation benefits as a result of a settlement with his employer and the Workers’ Compensation Commission. Subsequently, the claimant attempted to collect under a health care policy claiming the illness to be non-work related. The Court of Appeals held that the claimant signed a sworn joint petition maintaining that his lung and brain abscess problems were work related, and therefore, the claimant was estopped from asserting either illness to be non-work related. The Court of Appeals quoted from a Texas Court of Appeals case citing the controlling rule:

If one having a right to pursue one of several inconsistent remedies makes his election, institutes suit, and prosecutes it to final judgment, or receives anything of value under the claim thus asserted, or if the other party has been affected adversely, such election constitutes an estoppel thereafter to pursue another and inconsistent remedy.

Aetna Life Insurance Company v. Bocanegra, 572 S.W.2d 355 (Tex. Civ. Ct. App. 1978).

Here, the appellee signed a statement certifying that his July 17, 1985, injury was sustained in the performance of his duty as an Arkansas National Guard mechanic. Subsequently, the appellee instituted suit to collect disability benefits from the appellant alleging that the March 15, 1985, back injury was the permanently disabling injury. On one hand the appellee claimed that the July 17th injury was work related, on the other he claims that the July 17th injury was not work related but merely an aggravation of his earlier non-occupational injury.

The appellant’s theory of the case is that the benefits for which the appellee now seeks recovery relate to the same back injury, the July 17th episode, for which he recovered worker’s compensation benefits. Relying on Atkins the appellant requested an estoppel instruction because the election by the appellee to collect worker’s compensation benefits for the July 17th injury precludes collection of disability payments for the same injury. Despite the trial judge’s remark that estoppel was not familiar to the jury and not generally understood by laypersons, our law requires that a trial court instruct the jury on all material issues presented by the pleadings and the evidence. Daniel v. Quick, 270 Ark. 528, 530 S.W.2d 81 (1980). Estoppel was pled in the appellant’s amended answer, and there was sufficient evidence to justify the estoppel instruction.

The appellee argues that an estoppel instruction was not appropriate because the appellant failed to prove the four central elements of estoppel. The Texas Court of Appeals answered this concern in Aetna Life Insurance Company v. Bocanegra, supra, explaining the consistency principle.

While the principle of requiring consistency is customarily considered a form of equitable estoppel, although lacking the elements of reliance and injury, it is more a matter in the nature of a positive rule of procedure based on manifest justice.

We find that the trial judge’s failure to give the appellant’s estoppel instruction constituted error, and accordingly we reverse.

Although we reverse upon the finding the trial judge erred in failing to give an estoppel instruction, we comment on appellant’s additional points for reversal for purposes of retrial. The appellant contends it was error to hold that the appellee’s state law causes of action were not preempted by the Employee Retirement Income Security Act of 1974 (ERISA). The appellee counters that the ERISA defense was waived because it is an affirmative defense which was not asserted in the pleadings pursuant to ARCP Rule 8(c). Here, the ERISA preemption was not mentioned in the pleadings as an affirmative defense. The ERISA preemption was raised on the day of the trial, September 28, 1988, and was argued in a trial memorandum filed with the court on October 5,1988, after the jury’s verdict. We find the record is inadequate to determine whether ERISA preempts the state law causes of action.

The appellant also alleged that the trial court erred in admitting plaintifPs/appellee’s exhibit #13, a document addressed to the appellee from the Civil Service Retirement System. Appellee introduced this document in part to prove that the funds from the Department of Labor were charged against his retirement benefits and therefore did not constitute worker’s compensation or similar benefits. The appellant argued that this document was the only basis upon which the jury might have determined that the appellee was not attempting to recover disability benefits from the same injury for which he received worker’s compensation benefits.

The trial court exercises discretion in the admission of evidence. Missouri Pac. R.R. v. Mackey, 297 Ark. 137, 760 S.W.2d 59 (1988); McNair v. Ozark Gas Transmission System, 292 Ark. 235, 729 S.W.2d 165 (1987); A.R.E. Rule 103(a). Absent an abuse of this discretion, we will not reverse the trial court’s ruling. The appellee failed to properly authenticate the document as a public record, and failed to establish a proper foundation. However, this evidence was not the only basis from which the jury could have concluded that the Department of Labor payments were not “worker’s compensation” benefits. Lynda Harris testified that the funds paid by the Department of Labor were charged against the appellee’s disability retirement fund. Since we do not presume error, it was the appellant’s duty to demonstrate it. Reed v. Alcoholic Beverage Control Division, 295 Ark. 11, 746 S.W.2d 368 (1988); The Baldwin Co. v. The Ceco Corporation, 280 Ark. 519, 659 S.W.2d 941 (1983). Absent proof of prejudice we find that the admission of exhibit #13 did not constitute reversible error. While under these circumstances we find the appellee’s failure to properly authenticate or establish a foundation was harmless error, on retrial that may not be true.

Reversed and remanded.

       Appellee received benefits of $21.67 for the May 17th injury under the rehabilitation clause of the policy.

       The four elements of estoppel are: (1) the party to be estopped must know the facts; (2) one must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has the right to believe the other party so intended; (3) the party asserting the estoppel must be ignorant of the true facts; and (4) the party asserting the estoppel must rely on the other party’s conduct. Linda Elenia Askew Trust v. Hopkins, 15 Ark. App. 19, 688 S.W.2d 316 (1985).

       The appellee’s complaint alleged breach of contract and also asked for a 12% statutory penalty and attorneys’ fees pursuant to Ark. Code Ann. § 23-79-208 (1987).


author: David Newbern, Justice. Steele Hays, Justice,

text:
    Dwayne HARRISON v. STATE of Arkansas
    CR 89-236
    790 S.W.2d 146
    Supreme Court of Arkansas
    Opinion delivered May 21, 1990
    [Rehearing denied June 18, 1990.]

      Harry L. Ponder, for appellant.

      Steve Clark, Att’y Gen., by: Paul L. Cherry, Asst. Att’y Gen., for appellee.

      Hays and Glaze, JJ., would grant rehearing.

   David Newbern, Justice.

Dwayne Harbison was convicted of being in possession of marijuana and cocaine. He was sentenced to six months in jail on the misdemeanor charge of possession of marijuana. On the cocaine possession charge, a felony, he was sentenced to three years imprisonment with two years suspended. He appeals only the cocaine conviction, contending that it was not the intent of the general assembly in criminalizing possession of a controlled substance to punish one found in possession of a bottle containing only cocaine dust or residue. We agree, thus the conviction is reversed and the case is dismissed.

In the record before us there is no testimony about the circumstances of Harbison’s arrest. The record does contain a Hoxie police officer’s affidavit, which apparently served as a basis for an arrest warrant in the case. That affidavit states that two officers stopped a car which had one headlight and one taillight out. They observed marijuana in the vehicle. They searched the vehicle and found marijuana and a brown glass bottle containing white powder.

A motion was made to dismiss the cocaine charge on the grounds that the amount in the brown bottle was insufficient to give rise to a charge of possession. Testimony of two experts from the state crime laboratory was taken. Apparently two defendants’ cases were being considered jointly because it was stipulated between Harbison’s lawyer and the prosecution that the testimony being taken would be used for both cases.

A drug chemist testified that he identified a substance found inside two plastic drinking straws as being a “trace amount” of cocaine “residue” too small to weigh with state crime laboratory equipment which could weigh nothing smaller than one milligram. From colloquy among the court and counsel, it is apparent that the two straws were unrelated to the case against Harbison but had to do with the other defendant.

The laboratory’s chief toxicologist then testified that the amount found in the two straws was not sufficient to have any effect on the “human system” and a drug user would not attempt to use it because it “would not be an amount that someone would be interested in trying to use.”

We have no similar testimony with respect to the brown bottle, but the prosecution stipulated that the expert testimony would have been the same with respect to the amount of cocaine found there. The record contains state’s exhibit “3” which is a laboratory report concerning examination of six items. The report lists Harbison as the suspect; otherwise, we have no information as to how the six items were obtained by the authorities except perhaps the brown bottle was the one found in the car stopped by the officers. Other than the brown bottle and 1.8 grams of marijuana, the list included a blue speckled tablet, three yellow tablets, a glass tube, and a mirror. On none of these latter items was any controlled substance detected.

The motion to dismiss was denied, and the case went to trial before the judge without a jury. The state introduced its exhibit “3” and the brown bottle. Conviction and sentencing followed.

1. Arkansas law

Harbison was convicted of violating Ark. Code Ann. § 5-64-401 (1987). The relevant operative part of that section appears in subsection (c): “It is unlawful for any person to possess a controlled substance. . . .” Harbison argues “all violations are based on weight of the controlled substance.” While that is so with respect to subsections (a), (b), and (d) of the statute, subsection (c) says nothing about weight. The argument does not end there, however, but goes on to cite cases from other jurisdictions with statutes like ours where it has been held that possession of a trace or less than a useable amount of a controlled substance does not constitute an offense.

The state’s brief dismisses the argument, contending we have already decided the issue. In Berry v. State, 263 Ark. 446, 565 S.W.2d 418 (1978), and Denton v. State, 290 Ark. 24, 716 S.W.2d 198 (1978), we reduced convictions of possession with intent to deliver to convictions of possession on the basis that the amounts of the controlled substances involved, a “trace amount of heroin” and a “powder residue” of amphetamine and methamphetamine, were insufficient to show intent to deliver. Nothing in either opinion indicated we had been presented with the question whether there was an amount sufficient to satisfy the possession requirement.

Also cited by the state is Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987), where we affirmed Holloway’s conviction of possession of a controlled substance and referred to the drug paraphernalia and the “cocaine residue” found in his room. It was not, however, the “cocaine residue” which formed the basis of his conviction. Rather it was the “bag filled with packets of. . . cocaine” found in the dining room of the home he shared with others. Our reference to the paraphernalia and residue had to do with circumstantial evidence that he was in constructive possession of the apparently large quantity found in the home.

The only other case cited in the state’s brief is Johnson v. State, 23 Ark. App. 200, 745 S.W.2d 651 (1988). Johnson argued that the small amount of cocaine found in the packets he was selling to police officers did not constitute a useable amount, and thus the evidence was insufficient for proof of possession with intent to deliver. The court of appeals distinguished Berry v. State, supra, on the ground that there was plenty of evidence that Johnson had the intent to deliver, and in the Berry case it was held only that the amount involved was insufficient to show an intent to deliver. The court was not presented with the question we have here.

The state apparently did not perceive in this case that we are squarely, and for the first time, asked whether possession of a controlled substance must be of a measurable or usable amount to constitute a violation of § 5-64-401.

2. Cases from other jurisdictions

Counsel for Harbison argues that common sense, justice, and fairness dictate that the law should not punish a person found to be in possession of a container which only a scientist can determine to contain a controlled substance. Cases from other states are cited in support of the argument. Although there is an abundance of them, the state’s brief did not cite any case on point. Some other jurisdictions, although in some instances only upon proof of additional facts, would punish such conduct. We must decide whether to follow that view or side with those jurisdictions which would require either a useable amount of the substance or an amount sufficient to permit the person in possession to know of its presence.

The early cases dealt with possession of alcoholic beverages during the prohibition period. In Schraeder v. Sears, 192 Iowa 604, 185 N.W. 110 (1921), the question was whether the defendant was in violation of an injunction against possession of liquor, having been found to possess a concoction called “Lash’s Bitters.” The Iowa Supreme Court found the defendant to be purged of contempt because the bitters was a laxative and cathartic unsuitable for use as an alcoholic beverage, despite its alcohol content.

In Henson v. State, 25 Ala. App. 118, 141 So. 718 (1932), Henson was found in his room lying on a bed. A bottle on the floor contained a teaspoon of what the invading police identified as whisky. More whisky was found in a nearby field, but there was no evidence connecting it with Henson. He was convicted of possession, and the conviction was affirmed only because he made no “request for an affirmative charge or a motion for new trial.” In obiter dicta, the court pointed out that possession requires some evidence of knowledge. It was stated that the prohibition laws are “upheld as police regulations affecting the morals, health, and well-being of the citizen,” and for that reason they are not in violation of constitutional provisions. Then the court noted, “[i]t would therefore seem to be inconceivable that the Legislature intended the prohibition laws to apply to the possession of a teaspoonful of whisky when that quantity could not in any manner affect the morals, health, or well-being of any person or persons.”

In Isner v. United States, 8 F.2d 487 (4th Cir. 1925), the defendant was indicted for being in possession of 70 gallons of grape wine described as “intoxicating liquor,” and thus being in violation of the National Prohibition Act. The government conceded that the beverage was not “intoxicating” but contended that, because of its alcohol content, possession of it was nonetheless a violation of those parts of the act defining “liquor” by alcohol content. The court held that the Congress intended that such wine or vinegar be excepted from the act if not intoxicating.

The earliest notable case dealing with a drug other than alcohol on the question of possession of a minuscule amount is Greer v. State, 163 Tex. Cr. R. 337, 292 S.W.2d 122 (1956). Police found Greer in possession of a piece of wet cotton in a bottle cap. A chemist “extracted the contents of the bottle top with hot water and evaporated that to dryness and ran tests on the residue which indicated that the material extracted from the cotton was heroin.” The court reversed the conviction in a very summary opinion, apparently issued upon rehearing, refusing to construe the Uniform Narcotic Act as “authorizing a conviction for possessing a small piece of wet cotton containing a trace of a narcotic such as may have been wiped from a needle following an injection.”

The Greer case was followed by Pelham v. State, 164 Tex. Cr. R. 226, 298 S.W.2d 171 (1957), in which there was a somewhat more elaborate opinion. Police had observed a car being driven by Pelham while occupants were shaking newspapers out the window and then discarding the newspapers. A “dust of some type” was flying from the newspapers. Scrapings of dust taken from Pelham’s right front pants pocket and examined under a microscope revealed traces of marijuana. The chemist could not say there was as much as a grain found. The court described the amount as “infinitesimal.” The court acknowledged that the legislature had not prescribed the amount necessary to be possessed in order to constitute the offense. It was held that “unless the amount of marijuana possessed is such as is capable of being applied to the use commonly made thereof, it does not constitute marijuana within the meaning of the statute.” The court added: “It would be a harsh rule, indeed, that would charge the appellant with knowingly possessing that which it required a microscope to identify.” The Texas Court of Criminal Appeals declined invitations to overrule the Pelham case in later cases involving marijuana, Moore v. State, 526 S.W.2d 226 (Tex. Cr. App. 1977), and cocaine, Coleman v. State, 545 S.W.2d 831 (Tex. Cr. App. 1977).

The California Supreme Court interpreted its possession statutes to require a “knowing” possession in the same sense that the accused must have knowledge of the presence of the object, although it is not necessary that he or she have knowledge of its “character.” The court noted that the essence of “possession” is dominion and control, and those do not exist absent knowledge. People v. Gory, 28 Cal.2d 450, 170 P.2d 433 (1946). That decision was followed by the leading case of People v. Leal, 50 Cal. Rptr. 777, 413 P.2d 665 (1966), which reviewed the Gory case and other decisions of California courts of appeals, some of which were conflicting. In the Leal case, approximately one-half grain of heroin was found encrusted on a spoon in a bathroom medicine cabinet along with a wad of cotton, an eyedropper, and a hypodermic needle. The court, in an opinion by Justice Tobriner, concluded that the California statute, which imposed penalties on “every person who possesses any narcotic other than marijuana” required an amount sufficient to permit a knowing possession. The court wrote, “ [i] t is not scientific measurement and detection which is the ultimate test of the known possession of a narcotic, but rather the awareness of the defendant of the presence of the narcotic.” The court noted that the presence of a residue or trace amount of a forbidden drug poses less danger of future harm and is less probative of the intent to use a narcotic in the future than the presence of drug paraphernalia which the legislature had made a misdemeanor. The intent of the legislature was to condemn “the commodity which could be used as such. It did not refer to useless traces or residue of such substance [emphasis in original].”

Without going into the question of whether the amount of controlled substance found was sufficient to permit knowledge of its presence the Arizona Supreme Court, in the other leading case, held that, to constitute the offense of possession, a “useable” amount must be found. State v. Moreno, 92 Ariz. 116, 374 P. 2d 872 (1962). The Arizona statute, like the one in California, prohibited possession of “any narcotic drug” with exceptions not relevant to the case. The court held that “in those cases where the amount is incapable of being put to any effective use” the evidence is insufficient to support a conviction.

Following primarily the Moreno case, the District of Columbia Court of Appeals reached a similar decision in Edelin v. United States, 227 A.2d 395 (D.C. 1967), where microscopic traces of heroin were found on drug paraphernalia in the possession of the accused. It was argued that possession of an unusable amount of a prohibited drug was not what Congress meant to criminalize because it can neither be used nor sold. The court agreed stating, “[i]f this substance cannot be sold, if it cannot be administered or dispensed, common sense dictates that it is not such a narcotic as contemplated by Congress to be a danger to society, the possession of which is proscribed.”

The Moreno and Edelin cases have been followed recently by another case in the District of Columbia Court of Appeals, Singley v. United States, 533 A.2d 245 (D.C. 1987), and in the United States Court of Appeals for the Fifth Circuit, United States v. One Gates Learjet, 861 F.2d 868 (5th Cir. 1988).

In Note, 77 Col. L. Rev. 596 (1977), it was reported that the states adopting the “useable amount” were in the minority of jurisdictions having considered the issue. However, the cases cited from the states in the majority were either those, unlike Arizona and California, adopting a blind adherence to statutory language requiring a finding of “any” amount of a drug or an “identifiable” amount. Our statute does not contain either of those words in its operative phrase. If it did, we would nonetheless examine the legislative intent. The other cases cited as being from states in the majority are ones, according to the author, which require more than an identifiable trace to permit an inference of knowledge in the absence of other circumstantial evidence, although they reject the “useable amount” rationale.

We have not held that possession must be “knowing” possession. During oral argument of this case, the state’s lawyer, in response to a hypothetical question, argued that knowledge is irrelevant to possession. He contended that a case where a citizen is found to be in possession of a controlled substance under circumstances indicating lack of knowledge on his part would probably not be prosecuted because the prosecutor would exercise his discretion not to prosecute. We find that to be a totally unsatisfactory response if we are to have, to the extent possible, a government of laws.

The cases we have discussed all drive toward the same logical point, whether the rationale is that the amount of a controlled substance is either (1) sufficient to permit knowledge of its presence without the need for scientific identification or (2) sufficient to be useable in the manner in which such a substance is ordinarily used. The intent of the legislation prohibiting possession of a controlled substance is to prevent use of and trafficking in those substances. Possession of a trace amount or residue which cannot be used and which the accused may not even know is on his person or within his control contributes to neither evil.

We recognize the possibility that one may be in possession of an amount of a controlled substance sufficient to permit knowledge of its presence and yet still not be in possession of a useable amount. We agree, however, with the courts that have concluded that possession of less than a useable amount of a controlled substance is not what legislators have in mind when they criminalize possession because it cannot contribute to future conduct at which the legislation is aimed, that is, use of or trafficking in drugs.

It is clear in this case that Harbison was found to be in possession of a bottle which had less than a useable amount of cocaine. As a practical matter, it was a bottle which had had cocaine in it, and that is not a crime.

Reversed and dismissed.

Hays and Glaze, JJ., dissenting.

Steele Hays, Justice,

dissenting. The majority characterizes the case as one in which the defendant was found to be in possession of a bottle “which had had cocaine in it, and that is not a crime.” But that assertion overtly understates the facts, against the myriad of cases holding that on appeal we give the facts their strongest probative force and consider them in the light most favorable to the appellee. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). The fact is the appellant was in possession of a bottle which contained cocaine. A small amount of cocaine, to be sure — less than a milligram, and too small to be accurately measured by the instruments at the state crime lab, but nevertheless cocaine. Two chemists from the laboratory testified that they tested the contents of the bottle and found cocaine. Those are the undisputed facts to which this court is now asked to apply the law of Arkansas.

The majority goes to some length to arrive at the conclusion that unless the quantity of cocaine is in “a useable amount,” there is no violation of the law. I respectfully disagree and submit that one need look no farther than the plain wording of our own Uniform Controlled Substance Act to refute the majority’s position. Ark. Code Ann. § 5-64-401 (c) (1987), states, “It is unlawful for any person to possess a controlled substance. . . .” Thus the act prohibits the possession of cocaine (a controlled substance), irrespective of the amount. That should end the matter, as we often say we must give effect to the language of the statute as we find it. Carry. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965).

By today’s decision the majority effectively overrides the plain intent of the legislature and holds that the possession of cocaine (and necessarily all other controlled substances) is legal, provided it is “less than a useable amount,” whatever that may prove to be. I venture that determination will prove difficult to apply and will needlessly complicate the enforcement of the Uniform Controlled Substance Act, for how much marijuana is necessary to constitute “a useable amount?” Or how much crack, or heroin? I have no idea and I doubt seriously if the majority does, but those are issues we will now be asked to address. I believe a more dependable standard would be whether the amount is sufficient to permit identification of the substance, in which case its possession is unlawful.

Glaze, J., joins in dissent.


author: Tom Glaze, Justice.

text:
    INDEPENDENCE FEDERAL BANK, F.S.B. v. PAINE WEBBER
    90-84
    789 S.W.2d 725
    Supreme Court of Arkansas
    Opinion delivered May 21, 1990

      John M. Belew; and Murphy, Post, Thompson, Arnold and Skinner, by: Jerry Post, for appellant.

      Arnold & Lax, by: W. Ellis Arnold III, for appellee.
   Tom Glaze, Justice.

This is an appeal from the trial court’s order granting Paine Webber’s motion for judgment against the garnishee, Independence Federal Bank, F.S.B. (Bank), for the full value of the garnishment. On appeal, the Bank argues that under our case law, the trial court erred in finding it liable under the writ of garnishment. We agree and therefore reverse.

To understand this case requires a recitation of the facts that led to this dispute. Paine Webber obtained a judgment by default against Harold Bowman for approximately $14,237 plus costs in the Circuit Court for St. Claire County, Alabama. On May 12, 1987, Paine Webber registered its foreign judgment in the Pulaski County Circuit Court and while the judgment became final, Bowman made no payments on it. However, on September 26, 1988, Bowman acquired a $425,000 judgment against the Bank in U.S. District Court, Eastern District of Arkansas, and upon learning of Bowman’s success against the Bank, Paine Webber served a writ of garnishment along with allegations and interrogatories on the Bank.

In its answer to Paine Webber’s writ of garnishment, the Bank affirmatively stated that, while Bowman had obtained a judgment against it, the judgment and any execution on it had been stayed pending post-trial motions; it further alleged that if the motions were denied, the Bank intended to perfect an appeal. Paine Webber filed a traverse and denial alleging that the Bank’s answer was insufficient and unresponsive; it further requested that the lower court enter an order declaring that the Bank should not disburse any funds to Bowman. The Bank countered requesting Paine Webber’s traverse of answers and writ of garnishment be dismissed.

On December 2,1988, the District Court denied the Bank’s post-trial motions and lifted the court’s stay of execution. One hour after that court’s ruling, U.S. Marshals executed a federal writ of execution on Bowman’s behalf by seizing from the Bank $124,000 in cash and negotiable instruments and two branch bank buildings. However, after an emergency hearing on December 3, 1988, the District Court again stayed the proceeding, permitting the Bank to post a $435,000 supersedeas bond for its appeal to the Court of Appeals. Since the Bank was insolvent, it made arrangements which authorized First Commercial Bank of Little Rock to issue a cashier’s check on the Bank’s behalf, payable to the clerk of the U.S. District Court.

The Bank later entered into a settlement agreement with Bowman and the District Court approved the agreement in a hearing held on January 19, 1989. Under the terms of this agreement, the clerk of the district court was to pay Bowman $250,000 out of the supersedeas bond as full and complete settlement of all claims against the Bank. The remaining money from the bond was to be refunded to the Bank. Apparently, secrecy was part of the agreement, because the parties agreed that the court order approving the settlement would not be filed and made public until after Bowman’s attorney had received a check in the $250,000 amount. The District Court approved the parties’ agreement only after it was assured the court’s clerk had not been served with a writ of garnishment.

Upon learning of the Bank’s settlement with Bowman, Paine Webber, on January 25,1989, filed a Motion for Judgment in its state garnishment action against the Bank, alleging that the writ it previously served on the Bank had effected a lien upon the judgment debt the Bank owed Bowman. Paine Webber contended the Bank was liable for the full value of the garnishment and the lower court agreed.

On appeal, the Bank argues the trial court was wrong for the three following reasons: (1) the Bank was never in possession of the money it owed Bowman, and Paine Webber should have garnished the district court clerk; (2) a judgment debtor, such as the Bank, is not subject to garnishment under Arkansas law; and (3) under Arkansas law, garnishment of a judgment debt is not allowed when the debt was suspended by a stay of execution, as was the case here. Since these arguments are interrelated, we will discuss them collectively.

In finding the Bank liable for the full amount of the garnishment, the trial court relied on the federal district court case of Equifax, Inc. v. Luster, 463 F. Supp. 352 (E.D. Ark. 1978). In that case, the district court was faced with the very issue now before the court — whether under Arkansas law, a judgment debtor is subject to garnishment. As did the federal district court in Equifax, we must analyze Arkansas’s statutory and case law pertaining to garnishments in order to resolve the issues before us.

We first turn to the general garnishment statute, Ark. Code Ann. § 16-110-401 (1987), which provides the following:

In all cases where any plaintiff . . . may have obtained a judgment before any of the courts, and the plaintiff shall have reason to believe that any other person is indebted to the defendant or has in his hands or possession goods and chattels, moneys, credits, and effects belong to the defendant, the plaintiff may sue out a writ of garnishment, setting forth the claim, demand, or judgment. . . .

Under Ark. Code Ann. § 16-110-112(a) (1987), property may be attached that is a fund in the court, by serving the writ of garnishment on the clerk of the court. While the wording of § 16-110-401 suggests that a judgment debtor can be subject to a writ of garnishment, our case law, set out below, suggests otherwise.

In Trowbridge & Jennings v. Means, 5 Ark. 135 (1843), this court addressed this issue. There, Means had obtained a judgment against Hartley, and sued out a writ of garnishment against Trowbridge and Jennings, whom Hartley had received a judgment against. In their answer to the writ of garnishment, Trowbridge and Jennings set up as a defense that their debt to Hartley was embodied in a judgment on which execution had been issued. The court held that the judgment debtors, Trow-bridge and Jennings, could not be reached by garnishment because such a procedure would subject the judgment debtors to double liability. While this court recognized that the judgment debtor could be protected by applying for some kind of extraordinary remedy, it stated that he or she should not be put to the trouble or expense.

The fact situation before the court in Tunstall v. Means, 5 Ark. 700 (1843), was similar to the present case. In that case, Means received a judgment against Hartley and served a writ of garnishment upon the judgment debtor, Tunstall. Tunstall answered the writ of garnishment stating that he and others owed Hartley $1,000 on a note and that Hartley had received a judgment for that amount and had executed on the judgment by levying on Tunstall’s property. In holding the judgment debtor could not be liable under Means’s garnishment, the court followed its Trowbridge decision and stated that the rationale in that holding was even stronger when applied to a situation where property held by the judgment debtor had been levied upon by his judgment creditor. The court stated the following:

The principal question in this case, whether a judgment debt is the subject of the garnishment under our statute, was decided by this court in Trowbridge vs. Means, at a former term. With the decision in that case, we are entirely satisfied and fully concur. The reasoning of the court there applies more strongly in this case where the debt of the garnishee had not only passed into judgment, but an execution upon it was levied upon his property. This to a certain extent was a satisfaction of the judgment. While the levy continued upon the property and until the means of satisfaction under the execution was exhausted, the creditor could not proceed against the debtor, but must rely upon the property seized for satisfaction. Here there was nothing upon which the garnishment could operate. The property of the debtor was divested by the levy and vested in the sheriff in trust for the creditor. It was thus in custodia legis and beyond the reach of the garnishment.

In the same year that Trowbridge and Tuns tal l were handed down, the court decided Fowler v. McClelland, 5 Ark. 188 (1843), where it again held that a judgment debtor could not be reached by garnishment. In Fowler, this court expounded on its concern about harassment of the judgment debtor by stating that “he would always be compelled to submit to great vexation and harassment, and in many instances be forced to resort to a court of equity for protection. . . .”

This court refused to apply the holdings of the above cases to the case of St. Louis I.M. & S. Ry. v. Richter, 48 Ark. 349 (1886). In that case, Richter recovered a judgment by default from the railroad before a justice of the peace. The railroad appealed to the circuit court, and the judgment was superseded the next day. Before the case reached trial in the circuit court, a judgment creditor of Richter served a writ of garnishment on the railroad. This court allowed the garnishment to stand, finding that the de novo appeal to the circuit court gave the railroad the opportunity to shield itself from liability of making payments to both the plaintiff and the plaintiffs creditor. In addition, the court stressed that no execution could issue on the suspended judgment. In so holding, the court gave the following explanation concerning the Trowbridge and Tuns tal l decisions where the court held that a judgment debtor could not be garnished:

This was not because the terms of the garnishment statute were not broad enough to cover a debt which had been reduced to judgment, but for the reason that to permit the garnishee to be pursued by process upon his creditor’s judgment, and that of the garnishor, at the same time, would bring about a clash of jurisdictions, or else subject the garnishee to the hazards of paying the same debt twice. . . . But neither of these evils will be presented in allowing the plaintiffs debt to be garnished in this case.

While these cases are over 100 years old, they were examined and reaffirmed in the more recent case of McIlroy Bank v. First National Bank, 252 Ark. 558, 480 S.W.2d 127 (1972). In Mcllroy, this court added that the Richter case in no way limited the holdings in Trowbridge and Tunstall because Richter was not concerned with a final judgment.

Finally, we discuss the Equifax case wherein, as previously mentioned, the federal district court was presented with a garnishment/judgment debtor situation that required that court to analyze the cases we just discussed. In that case, the judgment debtor, Equifax, Inc., brought suit in equity in the nature of an interpleader to determine which of various claimants, who had served writs of garnishments on Equifax, were entitled to the fund for which Equifax made bond when it instituted the suit. In holding that the writs of garnishment were properly served on the judgment debtor, the federal district court distinguished its fact situation from the Trowbridge, Tunstall and Fowler cases by relying on the following factors: (1) the interpleader suit had already been filed; (2) the validity of the garnishments was attacked only collaterally by rival claimants, and (3) the court was able to protect all the parties including the garnishee. Since Equifax had filed an interpleader action and all the affected parties were before the court, the court found that situation was the same as the judgment debtor’s de novo appeal in Richter, because the judgment debtor was protected from double liability. In its holding, the district court relied heavily on the fact that the court was able to protect all of the parties’ interests.

In the present case, the fact situation is very different from Equifax and Richter. Unlike in Richter, here we are concerned with a final judgment. The Bank argues that the judgment was not final for garnishment because of the stays of execution granted by the federal district court pursuant to Fed. R. Civ. P. Rule 62 (a) (b) and (d). However, under federal law, the judgment is entered forthwith and pendency of the motion for new trial does not prevent the judgment from becoming final and does not prevent the issuance of execution. See Marcelletti & Son Const. Co. v. Millcreek TP. Sewer Auth., 313 F. Supp. 920 (W.D. Penn. 1970). While a party may obtain stays of execution, such a stay does not prevent the judgment from being final. Likewise, contrary to Equifax, here all the parties were not before the district court and protected by an interpleader action, and the garnishment is being challenged by the Bank as garnishee.

The underlying theme of the holdings of our earlier cases is that we will not subject judgment debtors to double liability. While a judgment debtor can file an interpleader action like in Equifax, this court has made it clear that it will not put the judgment debtor, to the expense or trouble of applying for such extraordinary relief for protection. Here, the Bank was subject to a writ of garnishment by Paine Webber and also Bowman’s levy of execution on Bowman’s judgment against the Bank. Under these circumstances, the Bank was subject to the hazard of being liable for the same debt twice.

Furthermore, the Bank posted the $435,000 cash bond with the clerk of the district court to release its assets and perfect its appeal. At this point, Paine Webber, assuming it was aware of this bond, could have garnished the federal district court clerk in keeping with Ark. Code Ann. § 16-110-112(a) (1987). Paine Webber failed to do so. The garnishment of the funds in custody of the district court would have put all the claims for this money before the district court. However, since the district court clerk was not garnished, the clerk properly paid the money to Bowman according to the settlement reached between him and the Bank.

The payment of the agreed amount to Bowman by the clerk of the court released the Bank from its liability under the judgment. To hold the Bank liable now under Paine Webber’s writ of garnishment for the same debt would be contrary to the holdings of Trowbridge, Tunstall, Fowler, and McIlroy. There is a strong presumption of the validity of prior decisions. Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984). Although we do have the power to overrule previous decisions, it is necessary as a matter of public policy to uphold prior decisions unless great injury or injustice would result. Id. We have not been given any convincing authority or reason why these cases should be overruled.

For the reasons stated above, we reverse.

Dudley and Price, JJ., not participating.

       We note that there were other defendants besides the Bank involved, however, since the other defendants are not involved in this appeal, we will only discuss the Bank’s actions.

       Under the general provisions, Ark. Code Ann. § 16-110-102(a)(1) (1987) mirrors this provision.

       In Equifax, the writs of garnishment were actually served on the clerk of the district court.


author: Per Curiam.

text:
    FIRST AMERICAN CARRIERS, INC. and David Newman v. THE KROGER COMPANY
    89-220
    788 S.W.2d 742
    Supreme Court of Arkansas
    Opinion delivered May 21, 1990
    [Rehearing denied June 18, 1990.]

      Wright, Lindsey <£ Jennings, by: Roger A. Glasgow and Roger D. Rowe, for appellants.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: GailK. Ponder, for appellee.

      Sp. J. Bill Bristow would grant rehearing.

   Per Curiam.

In our per curiam order of May 15, 1989, entitled, In re: Amendments to the Arkansas Rules of Civil Procedure, The Arkansas Rules of Appellate Procedure, The Arkansas Supreme Court Administrative Orders, The Rules of the Arkansas Supreme Court and Court of Appeals, and the Inferior Court Rules, we inadvertently omitted from our revision of Rule 20(e) of The Rules of the Arkansas Supreme Court and Court of Appeals the requirement that petitions for rehearing be limited to ten pages. As revised, the subsection of the rule provides merely that petitions for rehearing comply with the formal requirements for briefs set out in Rule 8. First American Carriers, Inc., and David Newman contend, therefore, that their petition for rehearing may include up to 25 typewritten, double-spaced pages, and they move to be allowed to submit a petition and supporting brief consisting of 16 pages.

The motion is denied. It was not our intention to expand the number of pages in a petition for rehearing, and we do not believe we did so in stating that the form of the petition shall be as provided in Rule 8. We grant the request for clarification of the revised version of Rule 20(e) as it appeared in the per curiam order referred to above. A separate order is issued this date containing the clarification.

Hays, Glaze, and Price, JJ., not participating.


author: Per Curiam. Steele Hays, Justice, Tom Glaze, Justice,

text:
    JUDICIAL DISCIPLINE AND DISABILITY COMMISSION and James Badami, Its Director v. Tom DIGBY, Circuit Judge
    90-143
    789 S.W.2d 731
    Supreme Court of Arkansas
    Opinion delivered May 25, 1990

      Steve Clark, Att’y Gen., by: Tom Gay, Deputy Att’y Gen., for appellant.

      Rose Law Firm, A Professional Association, by: Phillip Carroll, for appellee.
   Per Curiam.

Petition for writ of prohibition and motion to expedite. Temporary stay granted. Expedited briefing schedule ordered. Petitioners brief due ten (10) days from today. Respondents will then have ten (10) days to respond and petitioners will have two (2) days for reply. The parties will brief the following issues:

1. Can the commission be sued.
2. If the commission can be sued, what is the procedure.

Hays and Glaze, JJ., would deny the issuance of a writ of prohibition.

Steele Hays, Justice,

dissenting. I can see no basis on which Ark. Code Ann. § 16-10-406 (Supp. 1989) can be rationally interpreted as bestowing immunity from suit on the Judicial Discipline and Disability Commission and its Director the purpose of which is to determine simply whether the commission is proceeding in accordance with applicable law and rules of procedure. The immunity statute clearly applies to the members of the commission, not the commission itself:

Members of the commission, referees, commission counsel and staff shall be absolutely immune from suit for all conduct in the course of their official duties.

If the commission is immune from what is nothing more than suit for a declaratory judgment, then how is the law in this area to be resolved or shaped?

I would deny the writ and permit the hearing in the trial court, leaving the parties free to appeal. In that fashion the issues can be decided on a record which permits full development of the issues and includes a ruling by the trial court. That, I respectfully suggest, is how this case ought to proceed and all I can see resulting from a temporary stay is delay.

Glaze, J., joins this dissent.

Tom Glaze, Justice,

dissenting. The majority apparently believes there is a genuine issue concerning whether the Arkansas Judicial Discipline and Disability Commission has immunity from suit. If it is immune, what control or review is there regarding the Commission’s actions? Unless you can say this court has general superintending authority over the Commission, then no one reviews the Commission’s actions.

No law has been cited indicating this court has general superintending authority over the commission and I know of none. Petitioner, citing Walker v. Supreme Court Committee on Professional Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982), claims the Commission, like this court’s Committee on Professional Conduct, is an administrative arm of the Arkansas Supreme Court. Such an comparison is wrong. Unlike our various committees, the Commission is an independent body created by amendment 66 to the Arkansas Constitution by vote of the people.

Our court’s sole authority regarding the Commission is limited to providing procedural rules for that body. In my view, it has not been shown that the Pulaski Circuit Court is without jurisdiction under the facts asserted by petitioner, therefore I would not grant a stay of the proceedings below or grant petitioner’s request for a writ of prohibition.

The parties should properly develop this case below and bring it up on appeal. At trial and on appeal, there are safeguards the parties can invoke so as to protect their respective rights, including any claims of confidentiality.

For the reasons above, I dissent. Justice Hays joins in this dissent.


author: Jack Holt, Jr., Chief Justice.

text:
    ALLSTATE INSURANCE COMPANY v. REDMAN HOMES, INC.
    90-103
    789 S.W.2d 454
    Supreme Court of Arkansas
    Opinion delivered May 29, 1990

      Huckaby, Munson, Rowlett & Tilley, P.A., by: Jim Tilley and Elizabeth Ann Fletcher, for appellant.

      Friday, Eldredge & Clark, by: James C. Baker, Jr., for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves the interpretation of Ark. R. Civ. P. 12(b)(8), which is a defense to an action based on the pendency of another action between the same parties arising out of the same transaction or occurrence.

The appellant, Allstate Insurance Company (Allstate), insured the mobile home of Kenneth and Cheryl Bankston and its contents. The appellee, Redman Homes, Inc. (Redman), manufactured and distributed the Bankstons’ mobile home, which was destroyed by fire on January 23,1986. Allstate subsequently paid $25,195.00 to the Bankstons for their loss.

On June 14,1988, Allstate filed a complaint in the names of its insureds under its rights of subrogation. Allstate attempted to intervene in this suit on December 22, 1988. On December 28, 1988, Allstate initiated a second suit in its own name against Redman for the damages arising from the Bankstons’ loss.

The first suit and Allstate’s motion to intervene were dismissed with prejudice on June 27,1989. On October 24,1989, the second suit was also dismissed with prejudice on the basis that it had been filed in violation of rule 12(b)(8) and because Ark. Code Ann. § 16-56-105 (1987), the applicable statute of limitation, prohibited Allstate from refiling its lawsuit.

Allstate appeals from the dismissal with prejudice of its second lawsuit and alleges that the trial court erred in granting Redman’s motion to dismiss the second suit because there was no other action pending at the time that Redman filed its motion to dismiss and that, consequently, rule 12(b)(8) did not apply.

We agree and reverse and remand.

Rule 12(b)(8) provides in pertinent part as follows:

Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: ... (8) pendency of another action between the same parties arising out of the same transaction or occurrence. . . .

As early as 1877, this court adopted in Grider v. Apperson & Co., 32 Ark. 332 (1877), the following approach to the issue of dismissals when other actions are pending:

When considering the question thus presented, Judge Drummond said [in Chamberlain v. Echart, 2 Bissell’s Rep., 124]: ‘There is an opinion given by Chief Justice Parsons, proceeding on the ground, that a suit pending at the time of the commencement of the first suit, is a good plea; but this, I think, is not the present doctrine. At any rate, it is not the doctrine of this State; and I think it ought not to be, because when a suit is once commenced, and is dismissed, the fact that it was pending at the time the second suit was brought, is no reason why the court in which the second suit is commenced would not go on and adjudicate on the rights of the parties, because though there was a difficulty once, it is removed. When the suit was commenced there was an obstacle in the way, when the plea was pleaded there was the same obstacle in the way; but now, when the replication is filed, the obstacle is removed.’

Grider v. Apperson & Co., supra, was followed in Flannagan v. Citizens’ State Bank, 153 Ark. 216, 240 S.W.2d 14 (1922), where it was sufficient that a pending suit in Oklahoma, which involved the same note secured by a mortgage sought to be foreclosed upon in the Arkansas suit, was dismissed before the decree was rendered. The court explained:

In bar of this action it is alleged that there is a suit pending in Oklahoma on the note secured by the mortgage here sought to be foreclosed. And so there was at the time of the institution of this suit. But before the rendition of the decree here appealed from the suit in Oklahoma was dismissed; and that suffices.

In Sims v. Miller, 151 Ark. 377, 236 S.W. 828 (1922) (citing Rush v. Frost, 49 Iowa 183 (1878)), we also noted:

. . . that where there are two actions pending between the same parties upon the same cause of action, and there is a plea filed on that ground in one of the actions, an abatement may be prevented by dismissal of the other action before the court has determined the sufficiency of the plea.

Of course the old forms of pleading, such as pleas in abatement, are no longer viable, but the rationale of the above cases applies equally well to their counterpart, motions to dismiss.

In Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984) (quoting Jernigan v. Rainer Mercantile, 211 Ala. 220, 100 So.2d 142 (1924)), we noted that:

The plea of the pendency of a former suit rests upon the principle of discouraging multiplicity of suits and protecting the defendant from double vexation from the same cause. Such a plea does not involve the inquiry as to whether the prior suit is capable of being prosecuted to a successful issue if resisted by the defendant .... The considerations which underlie the doctrine . . . take no account of the puissance of, or the want of it in the former action . . . . It is the pendency of two suits for the same cause . . . the law deems vexatious and discountenances.

In this case, the Bankstons’ suit and Allstate’s motion to intervene in that suit were dismissed with prejudice on June 27, 1989. Although Allstate had initiated a second suit, in its own name and pertaining to the same underlying cause of action as the first suit, prior to the dismissal of the first suit, the subsequent dismissal of the first suit before the trial court determined the sufficiency of Redman’s motion to dismiss the second suit precluded the application of rule 12(b)(8) to this case because there was no other action pending.

Therefore, we reverse and remand.


text:
    Marvin V. CARMICAL and Margaret E. CARMICAL v. CITY OF BEEBE, et al.
    89-308
    789 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered May 29, 1990

      Paul D. Groce, for appellants.

      Mills and Patterson, by: John Patterson; and Boyett, Morgan & Millar, by: Comer B. Boyett, Jr., for appellee.
   Jack Holt, Jr., Chief Justice.

This is an action challenging the granting by the trial court of the appellee’s motion to dismiss. We find that the order appealed from is not final and dismiss the appeal.

On September 22, 1988, the appellants, Marvin and Margaret Carmical, filed suit against the appellees, City of Beebe, Arkansas; Philip Petray, Mayor of the City of Beebe; Roy E. Simmons, former Mayor of the City of Beebe, individually and in his former official capacity; and Jessie R. Lay, individually and in his former capacity as Code Enforcement Officer of the City of Beebe, for damages arising out of the City’s rescission of a building permit issued to the Carmicals. An affirmative defense of res judicata was raised by all of the appellees in their answers. The appellees also claimed monetary damages on the basis of extreme mental anguish, emotional suffering, and harassment due to the wilfull, wanton, malicious, and intentional conduct of the Carmicals in filing a frivolous lawsuit, as well as sanctions under Ark. R. Civ. P. 11.

In an order filed January 23, 1989, the trial court granted the appellees’ motion to dismiss but made no mention of the appellees’ claims for damages against the Carmicals and deferred action on the parties’ claims for sanctions. The attorney for the Carmicals conceded in oral argument that the appellees had made “counterclaims” that were not denied by the trial court.

In order to be final and appealable under Ark. R. App. P. 2 and Ark. R. Civ. P. 54(b), a trial court’s order must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988).

Rule 54(b) provides as follows:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

The trial court’s order simply granted the appellees’ motion to dismiss. Therefore, under Rule 54(b), the order does not terminate the action because 1) counterclaims are still pending, and 2) the court did not direct the entry of a final judgment as to fewer than all the claims upon an express determination that there was no just reason for delay and upon express direction for the entry of judgment.

We will not reach the merits of an appeal if the order appealed from is not final. Wilburn v. Keenan Cos., 297 Ark. 74, 759 S.W.2d 554 (1988) (citing Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987)).

Appeal dismissed.


author: Robert H. Dudley, Justice.

text:
    Melvin HALL and Sandra HALL v. STATE of Arkansas
    CR 90-77
    789 S.W.2d 456
    Supreme Court of Arkansas
    Opinion delivered May 29, 1990

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

      Steve Clark, Att’y Gen., by: John D. Harris, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellants were charged with a felony. Both moved to suppress the evidence against them. The trial court denied the motion. They entered conditional pleas of guilty and appeal. See A.R.Cr.P. Rule 24.3(b). We reverse.

At 6:00 p.m., on February 26,1987, a confidential informant told Saline County Deputy Sheriff Tim Ryals that appellants were selling drugs illegally at their residence, and that the confidential informant had purchased marijuana from them within the last seventy-two hours. An affidavit and a search warrant were prepared by a deputy sheriff. Officer Ryals and another deputy took the informant to the municipal judge’s home at 11:00 p.m. The judge swore the informant to tell the truth. Her testimony was not recorded. She made two written corrections in the typed affidavit and signed it. Officer Ryals made some statements to the judge, but he apparently was not sworn. His statements are not recorded. There is nothing in the affidavit to indicate that a nighttime search was necessary. The judge signed the warrant and made a handwritten notation on the margin that it could be served anytime day or night. Officer Ryals and other members of the sheriffs department executed the warrant at appellants’ home between 1:00 a.m. and 3:00 a.m. that same night. They seized evidence and gave the appellants a copy of the affidavit, which was signed by the confidential informant, and gave them a copy of the warrant. The next day officer Ryals took the affidavit back, and eradicated the affiant’s name.

Appellants filed their motions to suppress. The trial judge acknowledged that the affidavit and warrant did not give reasons for a nighttime search, but, considering all of the circumstances, held that a good faith exception should be applied. Thus, the motion to suppress was denied.

A.R.Cr.P. Rule 13.1(c) requires the recordation of oral testimony. When testimony is not recorded we do not consider it. Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987); see also Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977). The considerations for such a rule “are particularly appropriate for the review of ex parte proceedings involving the valued right of privacy. They also serve to minimize the necessity of calling magistrates to prove what can easily be documented.” Jackson v. State, supra. Thus, we only consider the information contained in the affidavit.

The affidavit recited that illegal drugs were at the appellants’ residence and that the confidential informant had purchased marijuana there within the last seventy-two hours.

We have consistently held that the affidavit must set out facts showing reasonable cause to believe that circumstances exist which justify a nighttime search. State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980); Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977). Our rules provide that, before a nighttime warrant is issued, the issuing judicial officer must have reasonable cause to believe that:

(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;

The affidavit in this case does not set out probable cause for the issuing magistrate to find any of the three circumstances set out above. It simply provides that illegal drugs are located at the residence and that the informant purchased marijuana there within the last three days. There is nothing to give reasonable cause to believe the drugs would be disposed of, removed, or hidden before the next morning. Thus, the issuance of the nighttime search warrant was in error. Our holding is in accord with State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980), a case with very similar facts.

Even though the issuance of the search warrant was in violation of Rule 13.2(c), a motion to suppress will not be granted unless the violation is “substantial.” A.R.Cr.P. Rule 16.2(e). In State v. Broadway, supra, we held the violation was substantial. We also do so in this case. The nighttime intrusion into a private home is the violation of an important interest, and from the record before us there is nothing to indicate that the evidence would not still have been there the next morning.

We do not limit the good faith exception, first articulated in Leon v. United States, 468 U.S. 897 (1984), to violations of the Constitution. In the appropriate case we will apply the exception to our Rules. The first issue then is whether the search warrant is so facially deficient that a reasonably well trained officer would have known that the search was illegal despite the issuing judge’s authorization. The second issue is whether the magistrate abandoned his neutral and detached status and became a mere rubberstamp for the police. Because we answer the first question affirmatively, we do not reach the second.

The issue is whether the officers had knowledge that the search violated our rules of criminal procedure. See United States v. Leon, supra. The standard for deciding this issue is an objective one. It is not based upon the subjective good faith of individual officers. This objective standard requires officers to have a reasonable knowledge of what our rules prohibit. Here, neither the affidavit which was attached to the warrant, nor the search warrant, stated a need for a nighttime search. We have no doubt that an officer with reasonable knowledge of our rules of criminal procedure would know that a search made at night without a supporting showing is illegal. Accordingly, we decline to apply a good faith exception to the violation of our rules of criminal procedure.

Reversed and remanded for the appellants to be allowed to withdraw their conditional pleas of guilty.