text:
    Theophilus COBBS, Jr. v. STATE of Arkansas
    CR 87-9
    728 S.W.2d 957
    Supreme Court of Arkansas
    Opinion delivered May 11, 1987

      William R. Simpson, Jr., Public Defender, and Donald K. Campbell, III, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Robert H. Ginnaven, III, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals his convictions for rape, aggravated robbery and kidnapping for which he was sentenced, as a habitual offender, to two life terms and one forty-year term, respectively, sentences to run consecutively. For reversal, he contends the trial court erred in refusing to grant a mistrial. Appellant further argues that prejudicial error was committed in the sentencing phase, and, as a result, his sentences should be reduced. We affirm.

The State’s case established that appellant’s victim left work and walked to her car which was parked in a lot. As she started to unlock her car, a man, carrying a gun, accosted her and demanded her money. He then forced her into her car and, after driving around awhile, put her in the trunk of the car. Later, he let her out of the trunk, placed her in the back seat and raped her. Afterwards, appellant drove around some more and, eventually, he left his victim with her car. She drove home and called the police. Her ordeal with the assailant lasted about three hours.

The victim testified her attacker’s face was concealed by a hat and scarf, and that he threatened her, telling her not to look at him. She said her assailant talked throughout the episode, which enabled her to identify appellant on the basis of a voice lineup conducted at the police station. The State also introduced expert testimony that a more forceful than normal sexual intercourse had occurred, and that fingerprints, hair, sperm and blood samples matched appellant’s.

On appeal, appellant argues the court should have granted a mistrial when a detective, on direct examination by the State, made the following statement:

Q: Briefly, what was your occasion of coming into contact with Mr. Cobbs?
A: Sir, he was brought into me at the detective bureau by members of the street crime unit as a suspect in the sexual assaults that ... an assault in Little Rock. (Emphasis supplied.)

Appellant’s attorney objected, and the prosecutor continued:

Q: A sexual assault?
A: A sexual assault in Little Rock. Yes, sir.

At the bench, appellant urged the witness’s reference to “assaults” prejudiced him because it indicated he had committed other crimes. The court denied appellant’s motion for mistrial, and appellant requested no admonition to the jury.

The detective’s reference was obviously inadvertent, and upon the prompt follow-up questioning by the prosecutor, the witness immediately corrected himself. In addition, the record reflects some degree of doubt concerning whether the jurors even heard the offensive word.

We have stated on many occasions that the granting of a mistrial is an extreme and drastic remedy and must be left to the discretion of the trial judge. A mistrial should be avoided except where fundamental fairness of the trial itself is at stake. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). Furthermore, as was reiterated in Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985), we have upheld denials of mistrials where, by chance remarks, it was brought out that the defendant had had prior arrests, even prior convictions, where the comment was inadvertent. See McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985); Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984); Sanders v. State, 277 Ark. 159, 639 S.W.2d 733 (1982); Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982). Based on the record before us, we are unable to say the trial court abused its discretion in denying appellant’s request for a mistrial.

For his second point, appellant contends his sentence should be reduced because of comments the prosecutor made in his closing argument during the sentencing phase. Those pertinent remarks appear as follows:

and maybe in this case, with the defendant’s background, the third concern and purpose of the criminal justice system may be more important. We have you citizens who are not violating the law, and you citizens who are going to walk from here to your car, whenever it may be. . .

At this point of the prosecutor’s closing argument, appellant’s counsel objected, stating, “I didn’t get into this area and I don’t think Mr.. . .” Before counsel could complete his objection, the trial court overruled it. As a consequence, the nature of appellant’s objection below is unclear. Because appellant’s objection was not sufficiently specific to apprise the trial court concerning the particular error complained of, he failed to properly preserve the right to appellate review. Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983).

We note that appellant’s argument on appeal is that the prosecutor’s closing comments were prejudicial because they appealed to the jury’s fears and prejudices. Even if this point had been preserved on appeal, we would find no prejudicial error. The trial court has a wide latitude of discretion in controlling the arguments of counsel, and its rulings in that regard are not overturned in the absence of clear abuse. Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986).

In Midwest Buslines, Inc. v. Johnson, 291 Ark. 304, 724 S.W.2d 453 (1987), we reiterated the standard of review in cases involving improper arguments to the jury. Quoting Missouri Pacific Railroad Co. v. McDaniel, 252 Ark. 586, 589, 483 S.W.2d 569, 571 (1972), we said

it is the duty of the appellate court to look to the remarks, and weigh their probable effect upon the issues; then to the action of the trial court in dealing with them; and if the trial court has not properly eliminated their sinister effect, and they seem to have created prejudice, and likely produced a verdict not otherwise obtainable, then the appellate court should reverse. However, a wide range of discretion must be allowed the circuit judges in dealing with the subject, for they can best determine at the time the effect of unwarranted argument; . . .

See also Gustafson v. State, 267 Ark. 830, 593 S.W.2d 187 (Ark. App. 1979) (comments made during sentencing phase held not unduly prejudicial; trial court has the opportunity to observe prejudicial impact upon jury).

For the reasons stated above, we find no reversible error and, therefore, affirm.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Robert TROUTT v. STATE of Arkansas
    CR 84-162
    729 S.W.2d 139
    Supreme Court of Arkansas
    Opinion delivered May 11, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Robert Troutt was found guilty by a jury of battery in the first degree and sentenced to twelve years imprisonment and a fine of $15,000. The Court of Appeals affirmed. Troutt v. State, CA CR 83-182 (Sept. 15, 1984),reh’g denied (Oct. 3, 1984), review denied (Oct. 15, 1984). Petitioner subsequently filed a pro se petition for writ of error coram nobis in this court which was denied. Troutt v. State, CR 84-612 (May 12, 1986). He has now filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37, alleging that errors were committed in his trial and that he was afforded ineffective assistance of counsel both at trial and on appeal. We find no basis on which to grant the petition.

Much of the instant petition is taken up with assertions that the trial court erred when it denied petitioner’s motion for new trial. The issue is clearly one which could have been raised on appeal. When an issue could have been raised on appeal in accordance with the controlling rules of procedure, it is not a basis for collateral attack, on the conviction under Rule 37, unless it presents a question so fundamental as to render the judgment of conviction absolutely void. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981). A ground sufficient to void a conviction is one so basic that the judgment is a complete nullity. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985). Here, the trial court’s decision to deny appellant’s motion for new trial does not present an issue sufficient to render his conviction void.

Petitioner contends that there was misconduct on the part of the prosecution in that the prosecutor did not provide the defense with an address for witness Sieburn McArthur so that counsel could interview McArthur before trial. In a related allegation, petitioner contends that counsel was ineffective for failure to locate and interview McArthur.

Petitioner alludes to no proof that the prosecution deliberately concealed McArthur’s whereabouts and fails to offer any facts to demonstrate that he suffered any actual prejudice by the lack of a pretrial interview with McArthur. To establish that counsel was ineffective, a petitioner must show that counsel’s performance was deficient in that counsel made an error so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment. In addition, the deficient performance must have resulted in prejudice so pronounced as to have deprived petitioner of a fair trial whose outcome cannot be relied on as just. Both showings are necessary before it can be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668 (1984). There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, supra; Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985). Petitioner has not shown that the outcome of his trial was affected by counsel’s failure to interview Sieburn McArthur.

Petitioner next alleges that the attorneys who represented him at trial did not appear at the hearing on his motion for new trial but rather permitted William Wharton, one of their associates, to appear in their behalf. He goes on to allege that it could have been established at the hearing that Sieburn McArthur was mentally incompetent to testify at trial. It is not clear whether petitioner is alleging that Wharton was ineffective or that the trial court should have been persuaded by the evidence to grant a new trial. In any event, the court heard testimony at the hearing on whether McArthur was under the care of a psychiatrist and incompetent to testify. The court concluded that there was no ground to grant a new trial, and petitioner has not demonstrated that there was any evidence which could have been presented to the court which would have affected the outcome of the proceeding. If petitioner is alleging that he was somehow prejudiced by the absence of the two attorneys who represented him at trial, he has offered no factual basis for the conclusion. The purpose of Rule 37 is not to debate the possible effect of counsel’s conduct but to provide a remedy when a petitioner has suffered actual prejudice. Brents v. State, 285 Ark. 199, 686 S.W.2d 395 (1985). The burden is on the petitioner to provide facts to support his claims of prejudice. Jones v. State, 283 Ark. 363, 767 S.W.2d 738 (1984).

Petitioner’s final allegations concern counsel’s representation of him on appeal. Initially, he states that counsel did not follow through on the appeal. Petitioner apparently has reference to the fact that counsel had to obtain permission from this court to lodge the record late. But since the record was ultimately lodged and petitioner had his appeal, he could have suffered no prejudice from counsel’s action.

The sole point for reversal raised by counsel on appeal was whether the trial court erred in refusing to declare Sieburn McArthur an accomplice as a matter of law. The court found no error and cited the case of Robinson v. State, 11 Ark. App. 18, 665 S.W.2d 890 (1984), as a case which stated the law applicable to the point raised by petitioner. Petitioner states that his attorney was ineffective because he did not inform him that the Court of Appeals in the Robinson case had already ruled against his only point for reversal. Of course, while the Robinson case stated the applicable law, that law had not been applied to the facts in petitioner’s case. How petitioner could have been prejudiced by counsel’s failure to inform him of the Robinson ruling is neither stated nor apparent.

Petitioner also contends that counsel on appeal should have argued that petitioner was denied effective assistance of counsel at trial and that the trial court erred in not granting a motion for change of venue. While the sixth amendment guarantee of effective assistance of counsel extends to a first appeal, Evitts v. Lucey, 469 U.S. 387 (1985), the United States Supreme Court has not yet stated the criteria for determining the effectiveness of an attorney on appeal. The court has held, however, that counsel is not required to raise every nonfrivolous issue possible. Jones v. Barnes, 463 U.S. 745 (1983). The hallmark of effective appellate advocacy is the process of assessing arguments and focusing on those likely to prevail. Jones v. Barnes, supra; see also Smith v. Murray, 477 U.S__, 106 S. Ct. 2661 (1986). When assessing whether a particular issue should be advanced on appeal, counsel must weigh the strength of the legal basis for it and the factual support for the legal argument which was entered into evidence in the trial court. If counsel elects to omit an issue which could have been raised on appeal and the convicted defendant later claims under Rule 37 that the attorney was ineffective for failing to argue it, the petitioner must demonstrate that counsel’s decision amounted to an error of such magnitude that it rendered counsel’s performance constitutionally deficient under the test of Strickland v. Washington, supra. The burden is on the petitioner to state facts in the Rule 37 petition to establish that counsel’s performance was deficient. In determining whether counsel was effective on appeal, we consider only what was included in the record and the prevailing legal authority at the time counsel made his decision about whether to argue the particular point on appeal. If a petitioner under Rule 37 contends that counsel should have raised an issue which turns on factual evidence, he is responsible for citing in his petition the facts contained in the record which would have supported the argument on appeal.

Petitioner here makes general claims without supporting facts. He alleges that the county sheriff had made prejudicial statements linking him to organized crime, called him vile names and said he was “criminally associated” with two supreme court justices. He also contends that publicity surrounding the proceedings against Eugene Hall and Mary Orsini created a “hostile public atmosphere.” He does not state what statements made by the sheriff created ill-will towards him or when the statements were made. He also fails to allude to any evidence that the Hall or Orsini proceedings engendered hostility against him. In short, petitioner has provided no facts in the petition before us to demonstrate that the trial court abused its discretion by denying a

change of venue. This court will not go behind the petition filed and search the record for support for allegations raised in it. Brents v. State, supra; see also Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

Petition denied.


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

text:
    BUTLER MANUFACTURING CO. v. Robert M. HUGHES and Patsy HUGHES, his wife
    86-243
    729 S.W.2d 142
    Supreme Court of Arkansas
    Opinion delivered May 18, 1987
    [Supplemental Opinion on Denial of Rehearing June 29, 1987.]

      Friday, Eldredge & Clark, by: James M. Simpson and H. Charles Gschwend, Jr., for appellant.

      Spencer, Spencer, Depper & Guthrie, for appellees.
   Jack Holt, Jr., Chief Justice.

The appellee, Robert M. Hughes, a construction worker, was shocked while using a piece of equipment called a “roof runner” and fell from the roof where he was working, receiving numerous injuries. Hughes and his wife sued the appellant, Butler Manufacturing Co., (Butler) from whom the machine was leased, under both products liability and negligence theories. The jury awarded the Hugheses $919,163.25 in damages. It is from a judgment based on that verdict that Butler brings this appeal. We find no merit to its arguments and affirm the judgment.

The accident occurred on September 21, 1981, while Hughes was working for Hampton & Crain Construction Co. The products liability theory asserted by Hughes was based on the contention that Butler leased the roof runner to Hampton & Crain in a defective condition, in that the restraining device, a rubber grommet, designed to relieve strain on the individual wires inside the machine, was missing when the roof runner was received. The negligence theory was that Butler was negligent in its choice of a quality control system, since their system permitted the roof runner to leave the company in this allegedly defective condition. Butler moved for directed verdicts on both theories which were denied. Butler’s motion for a judgment notwithstanding the verdict was also denied.

On appeal, Butler challenges two comments made by the Hugheses’ attorney during closing arguments; claims there was no substantial evidence of a product defect or of negligence; and objects to the court’s jury instruction as to the measure of damages to be awarded for scars and disfigurement suffered by Hughes and to a jury instruction on concurring proximate cause.

1. CLOSING ARGUMENT.

The Hugheses offered the testimony of Thomas H. Collard, Jr., a consulting engineer, as an expert witness about quality control engineering. Collard’s testimony was limited by the judge to a discussion of quality control in a theoretical vein. The court instructed him not to testify specifically about Butler’s quality control system. After this ruling, the following colloquy occurred:

Hugheses’ Attorney: Based on your understanding of the quality control system that existed at Butler, based on your reading Mr. Martin’s deposition, do you have an opinion as to the likelihood of a piece of equipment leaving that operation in a defective condition?
Butler’s Attorney: Your Honor, excuse me. There’s just no way—
Court: I’m going to sustain that objection. I think he’s gone about as far as an expert can go with looking at those documents. He’s now testifying specifically at Butler and I’ll sustain that.

During the Hugheses’ closing argument, their attorney made the following comments:

Mr. Collard also tells us, very importantly, that a system of quality control, such as that Butler had, i.e., virtually nonexistent—with such a system it was very likely that a machine might get out of that plant in a defective condition. Okay?
The possibility is that they have no quality control procedures at Butler Manufacturing, none of any significance, according to Mr. Collard. I’ve already gone over Mr. Collard’s testimony as to what they should have done, should have had that checklist, should have had some sampling. If they had done that, they possibly would have prevented that device from getting out of Butler Manufacturing in a defective condition, but lacking such quality control, it’s very possible, it’s likely, according to Mr. Collard, that the machine might have left the factory in a defective condition.

No objection was made to these statements by Butler’s attorney during the closing arguments. After closing arguments, in a proceeding out of the hearing of the jury, the court heard Butler’s motion for mistrial based on these statements by the Hugheses’ attorney. The court denied the motion, stating:

Well, under the circumstances, the motion having been made at recess out of the presence of the jury, the Court considered the motion, felt that it was not prejudicial, that I had instructed them that comments of counsel not consistent with the evidence should be disregarded and, therefore, overrule the motion for mistrial.

A trial judge has wide discretion to control counsel’s argument and to deal with a motion for mistrial, and we do not reverse either decision absent a manifest abuse of that discretion. Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1984); Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). Likewise, it is settled law that for the trial court to have committed reversible error, timely and accurate objection must have been made, so that the trial court was given the opportunity to correct such error. Gustafson v. State, 267 Ark. 830, 593 S.W.2d 187 (1980). Here, by waiting until after closing arguments when they were out of the presence of the jury to make a motion for mistrial, Butler’s attorney did not give the trial court the opportunity to correct any error committed during the closing argument. By this action, they waived the objection.

Butler cites an Eighth Circuit Court of Appeals holding that counsel may make his objection to closing argument at the end of the argument, before the case is submitted to the jury. Lange v. Schultz, 627 F.2d 122 (8th Cir. 1980). We decline to follow the Eighth Circuit’s position and instead require a timely objection, made at the time the alleged error occurs, so that the trial judge may take such action as is necessary to alleviate any prejudicial effect on the jury.

2. SUBSTANTIAL EVIDENCE.

Butler next contends that the trial court erred by failing to grant its motion for judgment n.o.v. or its motion for a new trial, since no substantial evidence existed from which a jury could properly find that Butler’s negligence or a defect in the roof runner proximately caused the injuries or damages to the Hugheses.

When the trial court denies a motion for a new trial, this court determines only if the verdict is supported by substantial evidence. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). Likewise, the trial court may enter a judgment n.o.v. if there is no substantial evidence to support the verdict. In testing whether there is any substantial evidence, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is sought. If there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict. Westside Motors v. Curtis, 256 Ark. 237, 506 S.W.2d 563 (1974); Haseman v. Union Bank of Mena et al., 268 Ark. 318, 597 S.W.2d 67 (1980).

Where there is a conflict in the evidence, the determination by the jury of the issues is conclusive. The fact that this court would have reached a different conclusion will not warrant the setting aside of a verdict based upon conflicting evidence. Stamper v. Aluminum & Zinc Die Cast Co., 283 Ark. 92, 671 S.W.2d 170 (1984). Furthermore, the jury is authorized to believe or disbelieve any testimony and the weight and value to be given to the testimony of expert witnesses is the exclusive province of the jury. Id. On appeal, this court will not disturb the jury’s conclusion unless we can say there is no reasonable probability in favor of appellee’s version, and then only after giving legitimate effect to the presumption in favor of the jury findings. Love v. H.F. Const. Co., 261 Ark. 831, 552 S.W.2d 125 (1977).

Looking at the evidence in the light most favorable to the Hugheses, testimony as to the allegedly defective condition of the roof runner was as follows. James Crain, a general contractor and owner of Hampton & Crain, testified that they ordered the roof runner when they were “about ready to put the roof on” the gymnasium they were building. He stated the machine was sent by bus and arrived packed in a molded plastic box with two plastic bands around it. Caldwell Webster, Hampton & Crain’s supervisor on the gymnasium project, testified that Butler representatives never told him not to use the roof runner if the restraining device was missing; that the roof runner was stored in a locked tool shed at night; and that Hughes was shocked twice by the machine. After the first time, Webster testified he noticed that the restraining device was missing. Hughes fell after he received the second shock. Webster then had an electrician check the machine and he found a loose wire. Mike Vail, an employee for Hampton & Crain at the time of the accident, testified that when he was picked up to go to the job site, he saw the roof runner box in the truck and noticed it was still banded the way it was the previous Friday in the shop. He said he noticed when Hughes was shocked the first time that the cord on the machine was wrapped with black electrician’s tape and that the bracket that holds the cord in place was missing. He also testified the wires were loose without the restraining device. Hughes testified he was present when the roof runner was uncrated and at that time he noticed the rubber grommet was missing that holds the cord coming out of the machine in place.

As to the cause of the accident, the Hugheses offered the testimony of Robert Newell, an electrical engineer, that if a restraining device is missing on a piece of equipment which is metal-enclosed, an unreasonably dangerous situation exists. Newell stated that in his opinion, the most likely cause of the accident was that the black or hot wire in the roof runner broke and contacted the metal housing of the roof runner and shocked Hughes. Newell said the hot wire apparently broke because the restraining device was missing. Collard further testified that Butler’s quality control system was “a little lax.”

Butler offered testimony that the circuit breaker used was too high and that if a lower amp fuse had been used, the chance of Hughes being shocked would have been greatly reduced. Newell disagreed with this conclusion, however, and said the circuit breaker did not have any direct effect on the shock Hughes received.

Although there were conflicts in testimony, these were properly resolved by the jury. The foregoing testimony offered substantial evidence so as to justify the verdict and the denial of Butler’s motion for new trial.

3. JURY INSTRUCTION ON DAMAGES.

Butler contends that the court erred by instructing the jury as follows:

If you decide for Robert Hughes and/or Patsy Hughes on the question of liability . . . you must then fix the amount of money which will. . . compensate [them] . . .for any of the following seven elements of damages sustained which you find were proximately caused by the fault of Butler Manufacturing Company, Sixth, any scars, disfigurement, and visible results of his injuries.

Butler argues there was no showing of any scars, disfigurement or visible results of the injury in the evidence which would allow the jury to be so instructed.

We disagree with Butler’s contention and find that there is sufficient evidence of disfigurement to justify the instruction. Dr. Harold Chakales, the orthopedic surgeon who treated Hughes, testified that Hughes suffered bilateral wrist fractures, which means the “wrist is actually cracked here and knocked upwards and deformed.” Dr. Chakales explained that Hughes had evidence “of healed fractures of his left and right wrist with some collapse of the fractures. And this caused his wrists to be radial deviated and to have some prominence over the distal portion of the wrist.” The doctor also testified that after surgery, cosmetically the wrists looked better because the “bump that sticks out of there following this type of collapse” was gone.

The doctor’s explanation that Hughes’s wrists were “deformed” is sufficient proof of disfigurement and visible results of the injury. Although the wrists were evidently improved cosmetically by the surgery, the doctor did not testify that their appearance was now normal.

Butler argues that in Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976), this court found scars were not compensable where the testimony did not indicate the scars were disfiguring, discomforting, humiliating, disabling, or normally visible. Butler argues this is the standard by which to judge Hughes’s injuries. In Welter, however, the plaintiffs alleged in their complaint that disfiguring scars had been suffered that would cause that plaintiff humiliation and embarrassment. There was no similar allegation in this complaint and accordingly Hughes did not have to prove his injuries were humiliating. The instruction did require the jury to find disfigurement and visible results of the injury. No error was committed.

4. JURY INSTRUCTION ON CONCURRING PROXIMATE CAUSE.

Finally, Butler contends it was error to instruct the jury on concurring proximate cause, AMI Civil 501, in conjunction with instructing them on AMI Civil 503, because it had a tendency to confuse the jurors on the question of whether Hampton & Crain’s negligence could bar the Hugheses’ recovery.

AMI 502, as read to the jury, stated:

When the negligent acts or omissions of two or more persons work together as proximate causes of damage to another, each of those persons may be found to be liable. This is true regardless of the relative degree of fault between them. If you find that negligence of the defendant proximately caused damage to the plaintiff, it is not a defense that some other person may also have been to blame.

AMI 503 read:

If, following any act or omission of a party, an event intervened which in itself caused any damage, completely independent of the conduct of that party, then his act or omission was not a proximate cause of the damage.

These two instructions state the applicable rules of law. This court has explained that negligence of a third party is no defense unless it is the sole proximate cause of the injury, and a plaintiff may recover from the original defendant if that defendant’s negligence was a contributing factor to the injury. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982); Gatlin v. Cooper Tire & Rubber Co., 252 Ark. 839, 481 S.W.2d 338 (1972). Under these instructions, the jury could have found Butler and Hampton & Crain negligent, and still returned a verdict for the Hugheses against Butler; they could have found only Butler to be negligent; or they could have found Butler not negligent. AMI 502 states that it is not a defense that some other person may “also” have been to blame. The word “also” indicates that it is no defense for Butler that Hampton & Crain may have been negligent if Butler too was negligent. If the jury felt that Hampton & Crain was solely to blame, AMI 502 did not instruct them to find against Butler. Accordingly, the instructions did not have a tendency to confuse the jurors and there is no merit to Butler’s contention.

Affirmed.

Supplemental Opinion on Denial of Rehearing

June 29, 1987

731 S.W.2d 214

1. Trial — failure to make timely objection to closing argument. — By not objecting when the statements were made during plaintiff’s closing argument and waiting until after plaintiff’s closing argument to make a motion for mistrial, appellant failed to make a timely objection that would have given the trial court the opportunity to correct any error committed during the closing argument.

2. Appeal & error — repetition of argument made on appeal IS AN INAPPROPRIATE SUBJECT FOR PETITION FOR REHEARING. — A repetition of an argument made on appeal is an inappropriate subject for a petition for rehearing. [Sup. Ct. R. 20(g).]

Petition for Rehearing; denied.

Jack Holt, Jr., Chief Justice.

The appellant, Butler Manufacturing Co., has filed a petition for rehearing based on an alleged error of law and fact in this court’s opinion handed down May 18, 1987. 292 Ark. 198, 729 S.W.2d 142 (1987). In that opinion we explained that Butler had waived its objection to certain statements made during closing argument because they did not make a timely objection. Specifically, we stated: “No objection was made to these statements by Butler’s attorney during the closing arguments.” Actually, the record reveals that an objection in the form of a motion for mistrial was apparently made after the plaintiff’s closing argument and before Butler’s argument, in a proceeding out of the presence of the jury. This proceeding was not part of the record, but the judge referred to its having taken place elsewhere in the transcript. This error in the opinion does not affect the outcome of Butler’s appeal inasmuch as, by not objecting when the statements were made during plaintiff’s closing argument, Butler still failed to make a timely objection that would have given the trial court the opportunity to correct any error committed during the closing argument.

Butler’s other argument involves the law governing the granting of a new trial and is essentially a repetition of his original argument. It is therefore an inappropriate subject for a petition for rehearing. Sup. Ct. R. 20(g).

Accordingly, the petition for rehearing is denied.


author: Darrell Hickman, Justice.

text:
    James DEMPSEY & Jan TAYLOR d/b/a J & J PLUMBING COMPANY v. MERCHANTS NATIONAL BANK OF FORT SMITH, ARKANSAS
    86-208
    729 S.W.2d 150
    Supreme Court of Arkansas
    Opinion delivered May 18, 1987

      Phillip J. Taylor, for appellant.

      Taylor & Vandergriff, by: David B. Vandergriff, for appellee.
   Darrell Hickman, Justice.

This case presents a question of priority between a materialman’s lien and a mortgage. The mortgage was filed before work commenced on the building site, but it was filed on the wrong property. A corrected deed and mortgage were later filed on the right property. The trial judge held the mortgage had priority. We disagree and reverse the decree.

The facts are that the landowners, Pat and Charlotte McGowan, obtained a deed to a small tract of land in Fort Smith containing .23 acres and recorded it on May 24, 1984. A construction money mortgage was filed the same day. The McGowans intended to build a duplex on the property. However, the deed and mortgage described the wrong property. The tract they intended to buy was actually located 260.2 feet west of the tract described in the deed and mortgage. Both tracts described were located on a larger parcel of land being developed called the Georgetown Park Condominium Project. Work was commenced on the tract in question on May 29, 1984. The land description error was discovered, and a new deed and mortgage were prepared and filed for record on July 16, 1984. These documents described the intended tract and the place where work had commenced. The owners went bankrupt. Suits were filed to foreclose the mortgage and foreclose the materialmen’s liens. All claims were consolidated in this case.

The question is: who comes first, the materialmen or the mortgagee? The chancellor held the mortgagee, Merchants National Bank of Fort Smith, had priority over the materialmen. Only one materialman appeals, the J & J Plumbing Company. The chancellor should have held the plumbing company had priority, and the decree is accordingly reversed. Because of our decision on priority, we do not reach the question of the language of the construction money mortgage. Other questions raised will be answered after our discussion of the priority question.

Priority is generally determined by the maxim “prior in time, prior in right.” Comment, Priority of Liens on Real Property in Arkansas: Mortgages, and Mechanics’ and Materialmen’s Liens, 12 Ark. L. Rev. 170 (1958). The rights of a materialman are set by statute. Ark. Stat. Ann. §§ 51-601—51-642 (Repl. 1971). This being a case of new construction, any lien a materialman has relates back to the time when work commences. Wiggins v. Searcy Fed. S & L, 253 Ark. 407, 486 S.W.2d 900 (1972). Consequently, such a lien takes priority over any claims perfected after that time. It is settled law that a mortgage filed after work commences will be subordinate to any liens based on the commenced work. Dempsey v. McGowan, 291 Ark. 147, 722 S.W.2d 848 (1987); Lyman Lamb Co. v. Union Bank of Benton, 237 Ark. 629, 374 S.W.2d 820 (1964); Planters Lumber Co. v. Jack Collier East Co., 234 Ark. 1091, 356 S.W.2d 631 (1962). A mortgage becomes a lien at the time it is recorded and not before. Comment, 12 Ark. L. Rev. 170 supra.

It was undisputed that the owners and the mortgagee made a mutual mistake in describing the property in the first instruments. The property the McGowans bought and mortgaged was correctly described in the second instruments.

It was stipulated that the appellant materialman did not know of the first mortgage for this construction. In other words the appellant materialman had no actual notice of the mortgage. In such a case, according to American Jurisprudence, the materialman’s lien has priority. That treatise reads:

Where a mortgage, by mutual mistake, is made on a different tract of land from that intended, and subsequently an improvement is made on the land intended to be mortgaged without notice of the intended mortgage thereon, a lien for the improvement takes priority. 53 Am. Jur. 2d, Mechanics’ Liens, § 274.

This statement is based on the case of Gaines v. Childers, 38 Or. 200, 63 P. 487 (1901), which has similar facts to the case before us. In Gaines the mortgage was filed on the wrong property. Work commenced and eventually a materialman’s lien was perfected on the property intended to be mortgaged. The materialman was successful in its foreclosure suit. A year later, the mortgagee filed suit to reform the mortgage so it would apply to the land intended. Foreclosure of the mortgage was sought as well as a ruling that the mortgagee had priority over the rights acquired by the materialman. The court held the materialman’s lien had priority.

Some assistance in answering the question can be gained from examining cases involving mortgages with “after acquired property” clauses; that is, mortgages which provide they will also cover any property a mortgagor later acquires. Do such mortgages on the newly acquired property relate back to the time the mortgages were executed and filed, or merely become effective against third persons on the date the new property is acquired? What about existing liens? In U.S. v. Westmoreland Manganese Corp., 134 F. Supp. 898 (E.D. Ark. 1955), the court said:

There can be no question that, as a general rule, in cases of mortgages containing after acquired property clauses the liens of such mortgages attach to after acquired property at the time that title thereto vests in the mortgagor; where, however, if the property at the time it comes into the possession or ownership of the mortgagor is burdened with a mechanics or miners’ lien, that lien takes priority over the mortgage lien, although actually subsequent thereto in point of time.

The appellee concedes in this case that the second mortgage cannot relate back to the time the first mortgage was filed, and no effort was made to reform the mortgage.

The appellee makes two central arguments for priority of its mortgage. First, it argues that the materialman’s lien could not attach when work commenced because the McGowans did not have title to the land until the correction deed and mortgage were filed on July 16,1984. Their argument is that Donoho Properties Limited Partnership, the grantor in the two deeds, owned the land at the time work commenced. As authority for the proposition that a materialman’s lien cannot attach unless the owner of the land contracts for the work, Sebastian Bldg. & Loan Assn. v. Minten, 181 Ark. 700, 27 S.W.2d 1011 (1930), and Katterjohn Concrete Products v. Coffman, 264 Ark. 503, 573 S.W.2d 306 (1978), are cited. Neither case is controlling. In Sebastian Bldg., the “owner” of the land simply had an unenforceable oral contract to buy it when work commenced. In Katterjohn the facts were undisputed. First, a mortgage was filed by the bank. Second, the work was commenced. Third, the deed was filed. We upheld the trial court’s decision that the mortgage had priority for two reasons: the law of after-acquired title applied; that is, title later acquired related back to the time the mortgage was filed, and the owner had no title when work commenced. No mention is made in Katterjohn of what agreement the “owner” had about the land, and we only know title was not acquired until the deed was filed. The other difference in Katterjohn is obvious. The mortgage was filed first on the land in question before work commenced, and title could relate back to the date of the mortgage. The mortgage was notice to any materialman that a prior claim existed on that land. In this case there was no such notice to the materialman; there was no mortgage recorded on the land in question when work commenced. The materialman got there first according to the record. In this case ownership was in the McGowans when they filed the first deed.

In a case directly in point, Mason v. Jarrett, 218 Ark. 147, 234 S.W.2d 771 (1950), we held that a correction deed related back to the date of the first deed with an incorrect description. We quoted with approval:

. . . \ . . the second deed, with its particular description of the land, conveyed, as between the parties thereto, related back and became effective as of the date of the first deed. A second deed can be looked to in aid of a description given in a prior deed.’
So, in the case at bar, the plaintiff actually owned the lands involved—though under an incorrect description—before he filed this action; and the correction deed, when executed, related back to the plaintiffs original deed of March 13, 1943, and was not a new or after-acquired title within the rule stated in Percifull v. Platt (supra) and Dickinson v. Thornton (supra). . . .

That is precisely the case before us regarding the question of ownership, as between the McGowans and Donoho Properties. The owners of the property in this case were the McGowans when the first deed was filed.

The appellee’s other argument rests on cases which, in our judgment, do not apply—those that involve legal descriptions which are ambiguous or defective, yet are held to be notice to third persons. For example, in Caraway Bank v. U.S.A., 258 Ark. 858, 529 S.W.2d 351 (1975), a mortgage containing a metes and bounds description of property located in a subdivision called Hidden Valley incorrectly identified the property as being located in Township 18 North, when in fact the property was located in Township 19 North. We found the mortgage good for two reasons. The Hidden Valley subdivision, properly identified on the record, was located in Township 19. The metes and bounds description indicated the property was in Hidden Valley. Also, a plat of lots was made part of the description. The mortgage itself furnished a key to the error; therefore, the description was held good against a bona fide purchaser or a third person without notice.

In Johnson v. Grissard, 51 Ark. 410, 11 S.W. 585 (1888), we found a general description of property to be constructive notice to a third party. The description simply read “all my crop of corn, cotton, or other produce that I may raise, or in which I may have in any manner an interest, for the year 1884, in Faulkner County, Arkansas.” In U.S. v. Westmoreland Manganese Corp., supra, the court analyzed our decision in Johnson this way:

. . . that the record of the mortgage was constructive notice, and that all persons buying any cotton from the mortgagor in Faulkner County were bound to inquire whether it was covered by the mortgage to Grissard.

The first deed and mortgage in this case appeared to be a perfectly legitimate transaction. There were no errors in the description which would place one on notice that an error was made; there was no key to the fact that the wrong property had been described.

The appellee argues, however, that the materialman could have or should have known the description was wrong because the only construction taking place in the Georgetown development at that time was on the intended plot of land. Essentially, that was the reason the trial judge found the description good. The trial judge simply changed the deed and mortgage to read the way it was corrected. Extrinsic or outside evidence is admissible to explain an ambiguity in a deed but not to change it. 23 Am. Jur. 2d, Deeds, § 310. According to American Jurisprudence, “[w]here the description of premises conveyed in a deed is definite, certain, and unambiguous, extrinsic evidence cannot be introduced to show that it was the intention of the grantor to convey a different tract or that he did not intend to convey all of the land described.” 23 Am. Jur. 2d, Deeds, § 312.

In Caraway Bank v. U.S.A., supra, this statement is quoted from U.S. v. Westmoreland Manganese Corp., supra:

It is a well settled principle of Arkansas law that a mortgage will not be held void for uncertainty, even as to third persons, whereby any reasonable construction it can be sustained; and where the description used furnishes a key whereby a person, aided by extrinsic evidence, can ascertain what property is covered, such description is sufficient.

Extrinsic evidence may be used in cases when the description gives a key to the mistake or there is an ambiguity. For example, in Johnson the key was “all my . . . cotton.” That placed a third person on notice to make certain any cotton bought from the mortgagor was not mortgaged. In this case the trial court held that the materialmen could know the description was wrong by seeing that no other construction was in progress and that a mistake was made in the description. But how was the appellant to know it was the wrong property? There was no key in the first deed and mortgage; there was no ambiguity to be cured by extrinsic evidence. The extrinsic evidence—seeing the state of construction—was used to simply change a description that was definite and certain.

This Georgetown area was a development area, and from all one could gather, the owners had more than one transaction or development underway. Indeed, the owners did later build two more units on this part of the development.

A materialman should not be placed on notice by simply looking at construction work. The materialman is bound by the record and ought to be able to rely on it. In Jack Collier East Company v. Barton, 228 Ark. 300, 307 S.W.2d 863 (1957), we said:

... It would place a great burden on materialmen and, in particular, laborers not to be able to rely on public records for protection. Otherwise they would have to rely on hearsay and oral agreements, and would have to make extensive investigations for which they are ill equipped.

See also Comment, 12 Ark. L. Rev. 170, supra. There was no actual, legal, or constructive notice that the appellee had a mortgage on this land when work commenced.

The bank made a mistake when it filed its mortgage. It was filed on the wrong land. Whether the bank relied on the McGowans, a lawyer, a realtor, or its own officers when it prepared the mortgage is immaterial. The materialmen made no mistake and had a right to rely on the record. Between these parties, the bank must suffer the consequences of its error.

There was some dispute as to whether other work was going on in the area before the second mortgage was filed, but no one disputed that the appellant commenced its work before the second mortgage was filed. Therefore, the decree regarding priority is reversed, and the appellant’s lien has priority over the mortgage.

The appellee purchased the land and improvements for $10,000 at the foreclosure sale. The appellant’s lien is in the sum of $4,532; however, interest on this sum was denied by the chancellor. This was error which the appellee concedes. In Advance Const. Co. v. Delta Asphalt and Concrete Company, 263 Ark. 232, 563 S.W.2d 888 (1978), we held that materialmen were entitled to prejudgment interest at six- percent, based on Ark. Const, art. 19, § 13. Therefore, the appellant is entitled to prejudgment interest at the rate of six percent from the time the complaint was filed. In this case that was November 9, 1984.

The appellant was also allowed attorney’s fees. The appellee cross-appeals from this decision and is right—attorney’s fees are not proper in such a case. Millsap v. Lane, 288 Ark. 439, 706 S.W.2d 378 (1986). But that argument is made too late. The record reflects that the appellant prayed for attorney’s fees in its complaint; that the appellee failed to specifically object to that prayer; that the chancellor, at the conclusion of trial, asked for all attorneys of record to submit worksheets for fees; and that the appellee again failed to object. The appellee had the opportunity to object at trial and did not; instead, it argues this point for the first time on appeal. We have repeatedly held that objections not made at trial cannot be raised for the first time on appeal. Merriman v. Yutterman, 291 Ark. 207, 723 S.W.2d 823 (1987). Therefore we affirm the chancellor’s award of attorney’s fees.

The appellee also argues on cross-appeal that the chancellor erred in awarding a lien for labor when only material was furnished by the appellant. Christy v. Nabholz Supply Co., 261 Ark. 127, 546 S.W.2d 425 (1977). The amount of the lien was stipulated to by the parties, which in our judgment precludes arguing this question on appeal.

Reversed and remanded with directions to enter a consistent decree.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I could agree with the majority if J & J Plumbing Company was adversely affected by the substitution of the lot correctly described for the lot incorrectly described. But it was not. In fact the correction benefitted J & J Plumbing because it, like the other materialmen, was placing materials on the lot to which the McGowans had no legal title and, but for the correction, its lien would have been worthless. Katterjohn Concrete Products v. Coffman, 264 Ark. 503, 573 S.W.2d 306 (1978). The erroneous description, by metes and bounds, described the property as:

Commencing at the Southeast corner of said NE/4, NW/ 4; thence West 603.5 feet; along the South line of said Northeast Quarter, Northwest Quarter; thence North 25 feet to the point on the Northerly Right-of-Way line of South O Street; thence North 10° 04 minutes West, 301.00 feet to the point and place of beginning; thence North 10° 04 minutes West, 109 feet; thence East 90.4 feet; thence South 10° degrees 04 minutes East 109.0 feet; thence West 90.4 feet to the point and place of beginning containing 0.23 acres more or less. . .

In fact the description should have been 863.07 feet rather than 603.5 feet. Thus, the tract intended to be conveyed was identical to the property actually conveyed except that it lay 260.02 feet to the west.

I concede the parties stipulated that J «fe J Plumbing had no actual knowledge of the mortgage. But that is not controlling. There was no stipulation that it had no legal notice and the chancellor made a specific finding that the materialmen were on notice that the property being improved by them was subject to the mortgage to Merchants National Bank.

The important thing is whether J «fe J Plumbing was misled by the error in the description. There was no stipulation that J «fe J Plumbing thought the property was unencumbered by a construction money mortgage so that its lien for materials would be a first lien. Significantly, J «fe J Plumbing does not argue here or below that it was under the impression it would have a first lien. Therefore, the correction deed altered its position only for the better.

What is controlling under our cases is whether materialmen could reasonably have been alerted to the fact that the construction was not occurring on the incorrectly described property, but on adjacent property, in this case immediately to the west. The chancellor found J «fe J Plumbing was on notice of the discrepancy because the only construction in the pertinent subdivision, Georgetown Park, was on the lot which was later correctly described, whereas there was no construction on the lot incorrectly described, or anywhere else in the area. That finding was sustained by the proof and those factors are sufficient under our cases. In Caraway Bank v. United States of America, 258 Ark. 858, 529 S.W.2d 351 (1975), where the wrong township was used in the mortgage, we held that a third party lien claimant could have located the correct property by extrinsic evidence and by the mortgage itself. Thus a mortgage with a deficient description had priority over intervening claimants without actual notice. In Caraway Bank we quoted with approval language from United States v. Westmoreland Manganese Corp., 134 F. Supp. 898 (E.D. Ark. 1955):

It is a well settled principal of Arkansas law that a mortgage will not be held void for uncertainty, even as to third persons, whereby any reasonable construction can be sustained; and where the description used furnishes a key whereby a person, aided by extrinsic evidence can ascertain what property is covered, such description is sufficient.

The majority cites Gaines v. Childers, 38 Or. 200, 63 P. 487 (1901). But there is a material difference in the facts. In Gaines, the trial court found the materialman had neither knowledge nor notice of the year-old claim of the mortgagee, whereas here the correction occurred within days and to the detriment of no one. Moreover the chancellor in this case reached a contrary finding and that finding was supported by the proof.

The majority relies essentially on cases which follow the rule, “first in time, first in right.” However, in many of those cases the interests of innocent third paties had intervened. Where those are lacking, as here, the equities of the case have governed. Thus, in Allen v. McGaughey, et al., 31 Ark. 252 (1876), Kimberly executed a deed of trust to Allen which erroneously described one quarter-section of a 1,200 acre tract as southeast instead of southwest. It was undisputed that Kimberly intended to convey the southwest quarter to Allen but only after a foreclosure and sale to Allen did the error come to light. By that time McGaughey had acquired a judgment against Kimberly and his judgment lien was prior to Allen’s claim. This court held the judgment lien was subject to Allen’s right to reform his deed to make it conform to the contract. In Ft. Smith Milling Co. v. Mikles, 61 Ark. 123 (1895) the same result was reached:

That courts of equity can correct mistakes in contracts of all descriptions by reforming them so as to carry out the intention of the parties is beyond question. In the absence of a statute, they will interfere to correct mistakes between the original parties, even against a judgment lien, or purchasers at sheriff’s sales under executions with notice of the facts, notwithstanding the judgment under which the lien was acquired, or upon which the executions were issued, were rendered subsequent to the execution of the contracts, but prior to the reformation. In such cases the equities are dehors the contracts, and the judgment liens attach subject to them; and parties purchasing with notice cannot defeat them.

I believe the chancellor should be affirmed.


author: Darrell Hickman, Justice. David Newbern, Justice,

text:
    Bob FRANCE d/b/a BOB FRANCE TRAILER PARK v. George O. NELSON d/b/a E-Z TV
    86-248
    729 S.W.2d 161
    Supreme Court of Arkansas
    Opinion delivered May 18, 1987
    [Rehearing denied June 22, 1987.]

      Jeff Duty, for appellant.

      Matthews, Campbell & Rhoads, P.A., by: Craig A. Campbell, for appellee.
   Darrell Hickman, Justice.

This is a replevin and conversion case which was transferred to us by the court of appeals.

Bob France, the appellant, owns a trailer park in Rogers, Arkansas. The appellee, George Nelson, rents appliances, televisions, and stereos. Nelson rented a washer and dryer, a television set, and a stereo system by the week to Danny and Lena Adams. The Adamses rented a mobile home in France’s mobile home park. When the Adamses failed to pay the weekly rent on the appliances, Nelson tried to recover the rented items. The Adamses had vacated the premises, and France refused to release the items until the rent due him by the Adamses was paid. Ultimately, Nelson filed a replevin suit to obtain the items. He also sued France for conversion, asking for damages.

The circuit judge signed a replevin order before trial, and the items were taken from the trailer park by court order and delivered to Nelson. All of the items were returned except the television set, which was not there. (Apparently, the Adamses took it.) Sitting as a jury, the trial judge found that France had no lawful right to keep possession of the property, and he awarded Nelson compensatory damages in the amount of $510. This amount is equal to the weekly rental Nelson charged for the items, $30 for the 17 weeks France converted the property. Punitive damages in the sum of $200 were also awarded.

France makes three arguments on appeal. First, the judgment was contrary to the law and evidence; second, punitive damages were not justified; and third, the court applied the wrong measure of damages. We do not agree and affirm.

The last argument can be easily disposed of. Both parties argue the law of damages relating to a replevin action, quoting extensively from White v. Gladden, 6 Ark. App. 299, 641 S.W.2d 738 (1982). In that case the court split three to three on this issue of damages. (See Note, White v. Gladden: A Change in Law of Damages or a Change in Evidentiary Burden?, 37 Ark. L. Rev. 718 [1983]). We declined to review that decision on a petition for writ of certiorari. An affirmance by an equally divided court is not entitled to precedential weight. Arkansas Writers’ Project, Inc. v. Ragland, No. 85-1370, slip op. at 11 n.7 (U.S. April 22, 1987); Neil v. Biggers, 409 U.S. 188 (1972).

Both parties miss the point entirely. The trial judge did not award incidental damages for a replevin judgment pursuant to Ark. Stat. Ann. § 34-2116 (Repl. 1962). He awarded damages for the conversion of the property. A replevin action is to recover property. Conversion is a common law tort action for the wrongful possession or disposition of another’s property. See 18 Am. Jur. 2d, Conversion, §§ 1-6 (1985). They are separate causes of action. The measure of damages in a conversion action is different from that in a replevin suit. See First Nat’l Bank of Brinkley, Ark. v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984). The complaint asking for replevin also specifically alleged conversion and sought damages for that wrong. In his order, the judge found “ [t] hat the Plaintiff is hereby awarded. . . compensatory damages for the conversion . . .” and “. . . hereby awarded punitive damages ... in the sum of Two Hundred Dollars.” No objection was made below to the claim for conversion, and the argument on appeal does not address what the judge found. Since it does not deal with the finding and judgment, we do not address it. Cf. Garst v. Cullum, 291 Ark. 512, 726 S.W.2d 271 (1987).

The remaining arguments are simply disagreements over the facts. The trial judge summarized his finding from the bench:

. . . [T]he perception I have from hearing everybody is Mr. France made it clear Mr. France took the position he had the right to hold on to that property until his rent was paid. That position in my opinion is wrong. He didn’t have the right to hold on to somebody else’s property until the rent was paid. I think he left Mr. Webb clearly with that idea that there wasn’t anymore use to do anything else because he was going to hold it until the rent was paid. Mr. Webb didn’t have any way of getting the rent paid and had no duty to pay the rent, nor did Mr. Nelson. It seems to me Mr. France got mistreated by Mr. Adams because Mr. Adams didn’t pay his rent, but that’s not a good reason for Mr. France to then mistreat Mr. Nelson or the rental business. I think there is a conversion here . . . (Italics supplied.)

The appellant disagrees with those findings, essentially rearguing his case to us. On appeal we view the evidence in a light most favorable to the appellee, and all inferences are resolved in favor of the appellee. Sipes v. Munro, 287 Ark. 244, 697 S.W.2d 905 (1985). The findings of the trial judge are affirmed unless we find them clearly wrong. Sipes v. Munro, supra.

The appellant’s testimony was that he had a right to hold the property until his rent was paid, and Nelson never showed him any evidence of ownership until the sheriff came out. (No legal justification was given below or argued on appeal as to why the appellant had a right to hold the property.) The trial judge did not accept the appellant’s version of what happened, because he began his summary by saying “[n]ow I certainly wouldn’t say Mr. France is not telling me the truth when he says he told Mr. Webb he wanted to know who owned it . . .”

The testimony offered by the appellee was in a different vein. Nelson called the trailer park two or three times about his property. He was told “you cannot have those until someone pays the rent. . .” He got a refusal each time he called. Nelson sent his employee, Lester Webb, to get the property. He made three trips on his own to the trailer court. On the first trip, he left a note for France to call him. To his knowledge, no one ever did. A week later he returned and spoke to Mrs. France. She said her husband had the keys to the trailer. He asked if she would let him know when he could come out; Again, no word from the appellant. He returned the third time and finally talked to France. France told him someone had to pay the trailer rent before he would let the items go. A replevin suit was filed. A deputy sheriff made three trips to the trailer court. Finally, France was there to reluctantly open the trailer. France took the papers and found the serial numbers of the items a few digits off and refused to deliver the items. The deputy called his sergeant and was told to arrest France if he refused to deliver the items. Finally, France saw the items were marked “E-Z TV Rental” in ink and released them to the deputy.

Disputed facts and the credibility of witnesses are within the province of the factfinder to resolve—not ours. Merriman v. Yutterman, 291 Ark. 207, 723 S.W.2d 823 (1987). We cannot say that the trial judge was clearly wrong in finding France wrongly refused to return the items to Nelson and converted them to his own use. No doubt, France’s obstinance was a basis for the small award forpunitive damages, as well as the repeated good faith efforts of the owner to get his goods without success. Nelson was wrongfully deprived of his property for four months. There is the fact that France changed the lock on the trailer and refused to comply with the sheriffs order, at least until threatened with arrest. The trial judge was entitled to conclude that France wrongfully and willfully deprived the owner of his property.

The appellant has failed to demonstrate any error that would warrant setting aside this judgment.

Affirmed.

Purtle and Newbern, JJ., concur.

David Newbern, Justice,

concurring. The trial court, as the majority opinion notes, ordered the return of the property to the appellee and then awarded incidental damages based on the loss of use of the items replevied. However, the court stated in its order that it was awarding damages for “conversion.” The majority opinion has seized on that mistaken terminology to duck the issue of whether the damages were correctly calculated.

I see nothing wrong with the trial court’s calculation of damages. The appellant’s argument is that no evidence of the value of the replevied items was presented. Therefore, he says, the court had no basis for determining whether the compensatory damages awarded for loss of use were disproportionate to the market value of the items.

In my opinion, if the appellant had wished to challenge the appellee’s evidence of rental rates under the Adams contract as a basis for damages, he could have done so by presentation of evidence of the value of the items. However, he did not.

My primary objection to the majority opinion is that it leaves the impression that this court fails to understand that conversion damages and incidental damages accompanying replevin are wholly inconsistent remedies. The distinguishing feature of an action for conversion is an interference with property so serious as to justify a forced judicial sale to the wrongdoer. See W. Prosser and W. Keeton, Law of Torts, § 15 (5th Ed. 1984). The property owner is compensated by an award for value of the property at the time and place of the conversion.

On the other hand, the primary object of a replevin action is the actual recovery of possession of the property. The owner cannot be required to accept the value of the item in lieu of return of possession. Pettit v. Kilby, 232 Ark. 993, 342 S.W.2d 93 (1961). By statute, the property owner may, in addition to return of the item, recover damages for loss of use while it was out of his possession. Ark. Stat. Ann. § 34-2116 (Repl. 1962).

It is generally recognized that the value of the use of the property converted is not recoverable in a conversion action. Ford Motor Credit Co. v. Henry, 267 Ark. 201, 584 S.W.2d 584 (1979) (measure of damages for conversion is the market value at the time and place of conversion, not the purchase, rental, or replacement cost); Hardin v. Marshall, 176 Ark. 977, 5 S.W.2d 325 (1928) (instruction allowing jury to assess as damages rental value of property converted in addition to value of property was error in a conversion cause of action).

Rather than emphasize the trial court’s mistaken reference to conversion, I believe we can and should ignore the form of his order and look to its substance. The compensatory damage awards were so clearly the ones contemplated by Ark. Stat. Ann. § 34-2116 (Repl. 1962) that the court’s ruling should be treated as such.

My second objection is that the majority opinion suggests we are somehow bound by the United States Supreme Court’s estimate of the precedential value of appellate decisions which result from a tie vote. This court is not bound by the way the federal courts choose to handle this situation. The question of what weight to accord decisions from an equally divided court has not been directly addressed in Arkansas, and the issue is far from settled. See R. Laurence, A Very Short Article on the Precedential Value of the Opinions from an Equally Divided Court, 37 Ark. L. Rev. 418 (1983).

While White v. Gladden, 6 Ark. App. 299, 641 S.W.2d 738 (1982), is in my view, no more than a tempest in a teapot in the context of this case, I do not believe we should imply that it lacks precedential value in our court of appeals.

While there is a temptation to remand this case to the trial court because of the mistaken terminology used in the judgment, I believe the judgment is clear enough in stating the damages and the means used to calculate them as incidental replevin damages that the judgment should be affirmed.

Purtle, J., joins in this concurrence.


text:
    Robert E. LOOPER and ENTROPHY SYSTEMS, INC. v. MADISON GUARANTY SAVINGS & LOAN ASSOCIATION, et al.
    86-242
    729 S.W.2d 156
    Supreme Court of Arkansas
    Opinion delivered May 18, 1987

      Eichenbaum, Scott, Miller, Crockett, Liles & Heister, P.A., by: Leonard L. Scott and C. Richard Crockett, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Darrell Hickman, Justice.

In a foreclosure proceeding, the chancellor refused to confirm the sale of a residence. The reasons given were because the purchase price shocked her conscience and other circumstances existed which justified the refusal. The question presented involves the law concerning the confirmation of judicial sales when an inadequate price is paid.

The appellants argue there is no Arkansas case holding that a sale can be set aside simply because the sale price is inadequate. Conceding that we have said a sale may be set aside because it “shocks the conscience of the court,” the argument is that this is only dictum: the law is or should be that some other circumstances must exist, which amount to a fraud brought about by the buyer. It is further argued that since the buyers in this case, the appellants, were faultless, the sale should not have been set aside.

The appellees argue that our decisions state a sale can be set aside solely because it shocks the conscience of the court, and even if that were not so, there were other circumstances present which justified the chancellor’s actions.

Both parties are right in a sense. We have not held that a sale can be set aside simply because of an inadequate sales price. But we have said on four separate occasions that a sale may be set aside if it shocks the conscience of the court. We have never had a case before in which a trial judge set aside a sale solely because it shocked the conscience of the court. Essentially, we have that in this case and affirm the chancellor’s decision as being discretionary, permitted by law, and not arbitrary.

The sale price was $ 1,900, and the market value was found to be $42,500; that is, the property sold for 4.4% of its value according to the chancellor’s finding.

A price that “shocks the conscience” of a judge can never be reduced to a mathematical formula. It depends on a variety of circumstances: the value of the property, the circumstances surrounding the sale, the price, the rights of the parties participating in the sale, and the harm that may result if the sale is confirmed, to name a few. Nevertheless, the decision is one for the chancellor to make, using sound discretion. Summars v. Wilson, 205 Ark. 923, 171 S.W.2d 944 (1943). While no fixed formula exists or can exist for what is a shocking sale price, fixed rules do exist for us to review such a case. First, we are an appellate court; we do not retry cases. We cannot sit as jurors who determine facts in law cases, nor chancellors who do the same in chancery courts. Merriman v. Yutterman, 291 Ark. 207, 723 S.W.2d 823 (1987); Black & Black Oil Co. v. Guy R. Smith Drilling Co., 289 Ark. 487, 712 S.W.2d 901 (1986). Factual determinations of chancellors must be upheld unless clearly erroneous. ARCP Rule 52.

When we examine a discretionary decision made by a chancellor, the question is not what we would have done, but whether, as a matter of law, discretion was abused—was the judgment call arbitrary or groundless? Keirs v. Mt. Comfort Enterprises et al., 266 Ark. 523, 587 S.W.2d 8 (1979); Robbins v. Guy, 244 Ark. 590, 426 S.W.2d 393 (1968).

Other principles also apply when we review a case, sometimes omitted from our opinions, but nonetheless applicable to all our decisions. The appellant, the party losing at the trial level, has the burden of demonstrating error. Baldwin Co. v. Ceco Corp., 280 Ark. 519, 659 S.W.2d 941 (1983). The evidence on appeal and all reasonable inferences from that evidence, and the findings of fact by a judge must be reviewed in a light most favorable to the appellee, the party that won at the trial level. Sipes v. Munro, 287 Ark. 244, 697 S.W.2d 905 (1985); Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983). With these principles in mind, we review the chancellor’s finding.

Nathan Graham purchased a residence, and Madison Guaranty Savings & Loan Association took a mortgage on it for $38,400. Graham made no payments, and Madison sued to foreclose the loan. Foreclosure and judgment were granted. The property was ordered sold at a judicial sale to the highest bidder on June 5, 1986. Madison’s attorney, Charles Ward, intended to be there to bid in or near the amount owed Madison. That amount, which was reduced to judgment, was $46,470.61. Graham testified that he did not attend the sale because the lawyer, Ward, had told him that he, Ward, would attend the sale and bid in for Madison the amount of the judgment. Graham concluded he would not need to be there to protect his interests, because such a bid would not result in a deficiency judgment against him. Ward was late to the sale, a few minutes according to him. Two different secretaries had reminded Ward of the noon sale late that morning.

Robert Looper, acting alone, and Imran Bohra, acting on behalf of Entrophy Systems, Inc., joined forces and bid on the property. According to the testimony, the opening price bid was one dollar, and the bidding increased competitively to the sale price of $1,900.

An expert testified that the property had a market value of $42,500. Looper said he drove by the property and decided not to bid more than $10,000 or $12,000. He said its value was diminished because a youth home was across the street, and he did not know the condition of the interior of the house. Also, he knew the property was heavily mortgaged.

After a hearing the chancellor refused to confirm the sale and ordered a new sale. The chancellor made these findings of fact:

1. A lawfully advertised judicial sale of the subject property was held on June 5, 1986. At this sale Robert E. Looper and Entrophy Systems, Inc. were the successful bidders at the price of $1,900.00. The total amount of the judgment, interest and costs against the property was $46,470.61.
2. If this sale price is confirmed, the defendant will be personally liable for a deficiency judgment for the remaining balance of $44,570.61.
3. The fair market value of the subject property is $42,500.00. The bid price is therefore 4.4% of the fair market price.
4. As a result of a conversation between plaintiffs counsel and defendant, the defendant received the impression that plaintiff would bid in the property at the total amount of judgment, interest and costs. While the court finds no actual representation was made by plaintiffs counsel that such a bid would be made, it is clear that the defendant believed this would occur and relied upon that belief, whether this reliance was reasonable or not.
5. Through inadvertance, the plaintiffs counsel failed to attend the sale on time and therefore missed the opportunity to bid in accordance with plaintiffs instructions. This occurred because plaintiff’s counsel was scheduled to attend a hearing in Hot Springs the morning of the sale and had requested another attorney to cover the sale. He returned to the Little Rock office in time to attend the sale, but became involved in a telephone conversation, and was reminded of the sale by a secretary. After running to the courthouse, counsel arrived a few minutes late to find that the property had already been sold.
6. Plaintiff had instructed counsel to bid the property at the amount of the judgment, interest and costs, and stands ready, willing, and able to so bid in the event of a resale.
* * *
The price bid at this sale is indeed so grossly inadequate as to shock the conscience of this court. The confirmation of this sale at such a price would result in serious harm to the defendant, Graham, who would suffer a large deficiency judgment and be subject to execution, garnishment, and other post-judgment remedies. The law is such that inadequacy of price when so gross, need only be coupled with slight circumstances to justify setting aside the sale. This is a court of equity, and foreclosure is historically an equitable proceeding intended to protect the debtor. Confirmation is within the sound discretion of the chancellor. This chancellor does not believe an order of resale to be an abuse of that discretion, where the price received is only 4.4% of the fair market value, and the defendant would otherwise suffer a substantial deficiency judgment. . . .

The appellants do not directly challenge these findings but do argue about their significance. While conceding the chancellor had the right to determine the market value of the property, the appellants really disagree that the fair market value of the property is $42,500. They point to Looper’s testimony that he was prepared to bid only $10,000 or $12,000 based on the nearby youth home and the lack of knowledge concerning the condition of the house. Bohra’s testimony was that after the sale he discovered the house was sub-standard to neighboring houses and in need of painting and cleaning. However, the appellants concede that the court may not be clearly wrong in finding the value of the property to be $42,500 and, therefore, the price was grossly inadequate. They do not challenge the fact that the price shocked the chancellor’s conscience.

The appellants argue that they had nothing to do with the apparent representation made by Ward to Graham. If Graham’s belief was reasonable, then Madison Guaranty was at fault; if Graham’s belief was not reasonable, then it was Graham’s fault—in neither case was it the fault of the appellants.

The appellants do not think Ward was guilty of excusable “inadvertance” when he did not arrive at the sale on time. He was negligent. Ward was in town, in time, to attend the sale; he was twice reminded of the sale by secretaries; he had attended sales before and knew they started at noon; and he conceded he was late simply because he forgot.

In four separate decisions we have said that a judicial sale cannot be set aside for an inadequate price unless it shocks the conscience of the court. In Mulkey v. White, 219 Ark. 441, 242 S.W.2d 836 (1951), the chancellor refused to confirm a sale of property for $975. The value of it was $2,000. Other circumstances did exist which prompted the chancellor to set aside the sale. We upheld the chancellor stating:

At the outset, certain well established holdings may be stated as applicable:
(1) Mere inadequacy of price, unless so great as to shock the conscience or amount to evidence of fraud, will not justify the Court in refusing to approve the sale. . . .
(2) When great inadequacy of price is shown, the Courts will seize upon slight circumstances to go along with the inadequacy of price and justify a refusal to approve the sale ....
(3) In judicial sales the Court is the vendor, and, in the exercise of a sound judicial discretion, it may confirm or refuse to confirm a sale made under its order. The Courts will not reject a sale and refuse a confirmation for captious reasons, but only in the exercise of sound discretion. The trial court is vested with sound judicial discretion in these matters; and the appellate court, in reviewing the action of a trial court to see if there has been an abuse of discretion, does not substitute its own decision for that of the trial court, but merely reviews the case to see whether the decision was within the latitude of decisions which a judge or court could make in a case like the one being reviewed. . . . [Italics supplied.]

In three prior cases we have recited almost the exact language regarding an inadequate price. We first stated that principle in George v. Norwood, 77 Ark. 216, 91 S.W. 557 (1905):

It is equally well settled, here and elsewhere, that a judicial sale will not be set aside on account of mere inadequacy of price, unless the inadequacy be so gross as to shock the conscience or raise a presumption of fraud or unfairness. . . . [Italics supplied.]

Next, in Stevenson v. Gault, 131 Ark. 397, 199 S.W. 112 (1917), we stated:

. . . It is the settled rule of this court that mere inadequacy of price will not justify a court in refusing to approve a sale and depriving the purchaser of the benefit of his purchase unless the inadequacy is so great as to shock the conscience or amount to evidence of fraud. [Italics supplied.]

Then in Doyle v. Maxwell, 155 Ark. 477, 244 S.W. 732 (1922), we said:

. . . It is the settled rule of this court that mere inadequacy of price will not justify a court in refusing to approve a sale and in depriving the purchaser of the benefit of his purchase, unless the inadequacy is so great as to shock the conscience of the court or to amount to evidence of fraud. [Italics supplied.]

That principle is a well established principle of law. The two general legal encyclopedias recite it. 47 Am. Jur. 2d, Judicial Sales, § 359 states it this way:

If the inadequacy is so glaring and grossly disproportionate to the real value of the property as to shock the understanding and conscience of an honest and just man, or, as it is sometimes expressed, the judicial conscience, it may be sufficient to create a presumption of fraud.

50 C.J.S. Judicial Sales § 59 states it this way:

Although there is some authority to the contrary, ordinarily a judicial sale will not be set aside, even though the price is grossly inadequate, unless the inadequacy is so great as in itself to raise a presumption of fraud, unfairness, or mistake, or to shock the conscience of the court
It has also been held that it is not the purpose of the law to protect one who seeks to procure valuable property for little or no outlay.

When we have overruled a chancellor’s order setting aside a sale, it has been clearly warranted by the facts.

In Doyle v. Maxwell, supra, the property was sold for $ 150, and its value was probably $300. We held such a price was not so grossly inadequate as to indicate fraud or shock the conscience of the court. The same was true in George v. Norwood, supra, where the price was $4,000 and its value was near that.

Conversely, we have reversed chancellors who confirmed sales that should have been set aside. In Moore v. McJudkins, 136 Ark. 292, 206 S.W. 445 (1918), the chancellor confirmed a sale he should not have confirmed. The sale price was $200, the value at least $ 1,000. More importantly, the appellants were not notified of the sale. We have emphasized the importance of judicial sales when we have reversed a chancellor who sets aside a sale. In Doyle v. Maxwell, supra, we said:

This court has uniformly recognized that it is essential to the interest of those whose property is sold at a judicial sale that prospective purchasers should have full confidence in the safety of the purchase, and that they will not be disturbed for mere inadequacy of price.

We have emphasized the discretion of the chancellor when we have upheld his decision. In Summars v. Wilson, supra, we said:

. . . [I]n reviewing the exercise of discretion, the test is whether the ordinary, reasonable, prudent judge, under all the facts and circumstances before him, would have reached the conclusion that was reached. Viewed in the light of the facts herein, we cannot say that the trial court abused its discretion in refusing to allow Summars to complete his purchase.

Other states and circuits have readily affirmed a trial judge who sets aside a sale because it “shocks the conscience” of the court. First Nat. Bank v. M/V Lightning Power, 776 F.2d 1258 (5th Cir. 1985); McCartney v. Frost, 386 A.2d 784 (Md. 1978); Homecraft Corp. v. Fimbres, 580 P.2d 760 (Ariz. App. 1978); Johnson v. Jefferson Standard Life Insurance Co., 429 P.2d 474 (Ariz. App. 1967); Capozzi v. Antonoplos, 201 A.2d 420 (Pa. 1964). These cases hold a sale may be set aside if the price shocks the conscience of the court. The Arizona decision of Johnson v. Jefferson Standard Life Insurance Co., supra, is particularly persuasive since the facts and arguments are similar to those in this case. A trial court’s order setting aside the sale was upheld. The court said:

Appellant initially contends that under general equity law, the trial court was powerless to grant relief to appellee because its lawyer was unexcusably negligent in arriving late at the execution sale, and appellant, who did nothing to bring about this condition, was perfectly justified in bidding $5,000.
The power of a court to set aside an execution sale arises from its inherent power to control its own process. [Citations omitted.] A motion to set aside is addressed to the sound discretion of the court. [Citations omitted.]
While ‘mere inadequacy’ of price is generally not sufficient to set aside an execution sale, * * * when the inadequacy is so great as to ‘* * * shock the conscience of the court,’ this is sufficient to authorize the court to set aside the sale and order a new sale. [Citations omitted.] This law has been enunciated by our Supreme Court:
‘* * * inadequacy of price, when unconscionable, will justify the setting aside of a sheriffs sale on motion.’ [Citations omitted.]
When there is an inadequacy of price which in itself might not be grounds for setting aside the sale, ‘ * * * slight additional circumstances or matters of equity * * *’ justify the court in setting aside the sale.

There were other circumstances in this case which the chancellor recited as reasons for her action, e.g., the fact that Madison, a creditor, would suffer a severe loss, the lawyer that was “inadvertently late,” and the owner was not there to protect his interests. While these are not substantial reasons, they, no doubt, influenced her decision. The appellants argue these are not the kind of circumstances that may be considered. They were not entirely irrelevant, and the chancellor did not abuse her discretion in using these circumstances, together with the shockingly low price, to arrive at her decision. Essentially, the appellants want us to adopt an inflexible rule regarding judicial sales, a rule more suitable to law courts than courts of equity. We decline to overrule the language in our cases and cannot say in this case the chancellor abused her discretion.

Affirmed.


text:
    B.J. McNAIR, et ux v. OZARK GAS TRANSMISSION SYSTEM and H.B. ZACHRY COMPANY
    86-261
    729 S.W.2d 165
    Supreme Court of Arkansas
    Opinion delivered May 18, 1987

      Clark & Adkisson, for appellant.

      Laws, Swain & Murdock, P.A., by: Ike Allen Laws, Jr. and Timothy W. Murdock, for appellee.
   Darrell Hickman, Justice.

This case was referred to us by the court of appeals.

The appellants, B. J. and Kitty McNair, sued the Ozark Gas Transmission System and a pipeline construction company, H. B. Zachry Company, for damages to their land resulting from construction of a pipeline across their land. The jury returned a verdict for the McNairs for $ 1,000. The McNairs appeal and the appellees cross-appeal. We find no merit in either appeal, the record being void of any prejudicial error and the arguments being simply disputes over the facts.

The McNairs argue that one of the jury instructions was wrong because it allowed the jury to deduct from any damages awarded the sums already paid by Ozark. The argument is that the instruction was not supported by any evidence. We disagree. There was evidence and arguments made that the McNairs were prepaid for damages claimed and that the McNairs released fully or partially any claims against Ozark.

The McNairs argue the trial judge was wrong in ruling that a letter addressed to Ozark was inadmissible. The judge had the discretion to admit or deny the letter offered during the rebuttal testimony of an Ozark witness; there was evidence that the letter was not properly addressed and concerned a collateral matter. No error was committed.

Ozark argues on cross-appeal that the judge should have found the releases discharged it completely from liability for damages within the right-of-way. But there was a dispute whether the releases only covered damages to the land within the right-of-way or also damages outside it. This issue of fact was properly submitted to the jury. Abbott v. Parker, 103 Ark. 425, 147 S.W. 70 (1912).

Ozark also complains that the judge should not have instructed the jury on trespass because the matter was completely contractual between the parties. The jury found no trespass damages, so the appellees could not have been prejudiced. We will not reverse where no prejudice is shown. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1987).

Affirmed.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Jimmy L. SUMMERS v. STATE of Arkansas
    CR 86-200
    729 S.W.2d 147
    Supreme Court of Arkansas
    Opinion delivered May 18, 1987

      Jim Petty, Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The trial court revoked the appellant’s probationary sentence. After the parties concluded their presentation of evidence at the revocation hearing, Summers orally moved to dismiss the petition for revocation because the hearing was not held within 60 days of his arrest. The trial court took that motion and another oral motion under advisement and the next day ruled the hearing was timely held. He should have ruled the motion was made too late.

Summers pleaded guilty to writing hot checks in August, 1985, and was placed on probation for five years. A petition to revoke his sentence was filed March 7, 1986, alleging several violations of his probation conditions: Summers had failed to keep monthly appointments with his probation officer, failed to pay his monthly probation fee and failed to make payments on his fine and restitution. A warrant was issued for Summers’ arrest on March 7, 1986, and served on April 29, 1986.

Counsel was appointed and a pretrial hearing was held in May, 1986, and a hearing on the petition was held June 4,1986. The state only called one witness, the probation officer. He testified about the conditions of probation and Summers’ breach of those conditions. Summers testified that he was arrested in Arizona on March 24 or 25 for “probation violations.” He said he was in jail in Arizona for five weeks before he was returned to Arkansas.

After the parties had concluded the presentation of evidence, the appellant moved orally to dismiss the petition because the hearing was not held within the 60 day time period as required by Ark. Stat. Ann. § 41-1209(2) (Repl. 1977), which provides:

A suspension or probation shall not be revoked except after a revocation hearing. Such hearing shall be conducted by the court that suspended imposition of sentence on defendant or placed him on probation within a reasonable period of time, not to exceed 60 days, after the defendant’s arrest.

The attorneys briefly argued the matter to the trial judge. Summers argued his arrest in Arizona began the running of the 60 day period. The state argued the arrest in Arkansas began the running of the time for the hearing because the record only reflected that arrest. The trial judge took the matter under advisement and the next day he ruled that Summers was arrested on April 29, 1987, and the hearing was held within the statutory time period.

On appeal Summers argues the 60 day limitation requires the petition be dismissed. The state argues the motion was untimely. We agree with the state because the state was never placed on notice before the hearing that this objection would be raised. There was no good reason given why the motion was not filed before the hearing. In both Lark v. State, 276 Ark. 441, 637 S.W.2d 529 (1982), and Cheshire v. State, 16 Ark. App. 34, 696 S.W.2d 322 (1985), a motion to dismiss a revocation petition was filed before the hearing. The state was on notice the 60 day statutory period would be invoked.

I n this case the state had no such notice. The state was prejudiced by this lack of notice because it did not have the opportunity to present any evidence regarding whether there was a delay in returning Summers to Arkansas and whether he was unavailable during that time period. The state had a right to assume that would not be an issue. This court has referred to the speedy trial rules to determine if a defendant received a speedy revocation hearing. Lark v. State, supra; Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980); Cheshire v. State, supra. Those same rules govern when that question can be raised. A.R.Cr.P. Rule 28.1(f) provides the defendant’s failure to move for the dismissal of a charge for lack of speedy trial prior to trial constitutes a waiver of his rights under these rules. See Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986). Since Summers did not raise his motion to dismiss the revocation petition for lack of a speedy hearing before the hearing, he waived his rights. We do not reverse a judgment because a trial judge uses the wrong reason to reach the right result. Marchant v. State, 286 Ark. 24, 688 S.W.2d 744 (1985).

Affirmed.

Purtle and Newbern, JJ., dissent.

John I. Purtle, Justice,

dissenting. I vigorously disagree with the majority opinion. The statute, Ark. Stat. Ann. §41-1209(2) (Repl. 1977), is set out in the majority opinion and so clearly states the law that I will set it out again at this point:

A suspension or probation shall not be revoked except after a revocation hearing. Such hearing shall be conducted by the court that suspended imposition of sentence on defendant or placed him on probation within a reasonable period of time, not to exceed 60 days, after the defendant’s arrest. [Emphasis added.]

The law clearly and unequivocally requires the court to conduct a revocation hearing not more than 60 days after the defendant’s arrest on the alleged violation.

In the case now being considered by this Court the trial court accepted appellant’s guilty plea in 1985. The court sentenced the appellant to five (5) years and placed him on probation. The petition to revoke probation was filed on March 7, 1986. A warrant was issued and the appellant was arrested in Arizona on March 26,1986. He did not fight extradition nor did he delay the hearing in any manner. The appellant remained in the jail in Arizona from the day of his arrest on the violation warrant until he was returned to Arkansas, a period of about five weeks. By the date of the revocation hearing, June 4, 1986, the appellant had spent an additional five weeks in the county jail in White County, Arkansas. The way I figure it that’s over seventy days in anybody’s book. No person would argue that the hearing was held within 60 days of the appellant’s arrest pursuant to the warrant.

This Court obviously sought some reason not to apply the plain words and obvious meaning of the statute. The majority opinion holds that the appellant waived his rights under the statute because he did not raise his motion to dismiss the revocation petition for lack of a speedy hearing before the hearing. The majority accomplishes this result by analogy to the speedy trial rules. Other than the statement of the court on June 5, 1986, that the appellant appeared before the court on May 6 and that counsel was appointed, I find no evidence in the record that the appellant was afforded any opportunity to request any type of action until June 4,1986. Moreover, I am unaware of any precedent for the proposition that a defendant waives his rights under the revocation statute unless he moves for dismissal of the petition prior to the hearing. The whole purpose of the law is to safeguard the rights of individuals. In the present case the same result could have been accomplished without damage to the law by simply filing another petition on the continuing violation of the appellant’s probation, which required payments of restitution, and then acting timely upon it.

The warrant itself may not have been served until April 29th, but that is not the trigger under the statute which starts the calendar rolling. It is clearly the arrest of the appellant which triggers the running of the 60-day limitation. The majority opinion cites the cases of Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986); Lark v. State, 276 Ark. 441, 637 S.W.2d 529 (1982); and Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980). None of them hit the point.

Walker dealt with the speedy trial issue and is somewhat analogous to the present case. In neither case were there any excludable periods. Walker’s attorney failed to move for dismissal although the speedy trial period had run prior to trial. A.R.Cr.P. Rule 28.1 provides that failure to invoke the speedy trial rule constitutes a waiver. The Walker case came to us by way of a Rule 37 request for relief based upon ineffective assistance of counsel. We reversed and dismissed and in doing so stated: “The appellant clearly was not holding up the trial during that time.” Neither was the appellant in the present case. He merely invoked the 60-day period at the first hearing, which was held more than 70 days after his arrest.

I agree with the majority opinion that the Lark decision involved the very same statute as we are considering in this case. Lark had been committed to the state hospital, upon his own motion, subsequent to his arrest on a petition for revocation. Lark was arrested on February 27, 1981. He petitioned for a mental examination, which petition was granted on March 31 and resulted in a commitment to the state hospital. On June 11,1981 he was returned to the county jail from the state hospital. The revocation hearing was conducted on July 20,1981, at which time Lark moved to dismiss because of failure to bring him to a hearing within 60 days. The court continued the hearing until August 25, 1981, on the grounds that the defendant had not been properly served with the petition for revocation. However, the state then refiled the same petition and at a hearing on July 22, 1981, the court revoked the suspended sentence. On appeal we reversed and dismissed because the revocation hearing was not conducted within the 60-day limit, excluding the period of delay caused by the appellant.

In Boone the trial court revoked a suspended sentence. However, the appellant was never arrested because he was serving a sentence on an unrelated charge when the petition to revoke was filed. Boone argued the 60 day period should run from the date of the filing of the petition to revoke. He argued that he was “constructively arrested” on the date the petition was filed. Neither the trial court nor this Court agreed with Boone’s theory to establish a “constructive arrest” date. However, we modified the sentence in order to give credit for jail time served. In my opinion Boone is inapposite.

I believe we should continue to give this 60-day limitation provision a rational and reasonable interpretation in accordance with our past decisions. To depart from the plain and clear language used in our past decisions upholding the statute results only in confusion and uncertainty in the law relating to revocation of probation.

Newbern, J., joins in this dissent.