author: W.H. “Dub” Arnold, Chief Justice. Annabelle Clinton Imber, Justice,

text:
    INTERSTATE OIL AND SUPPLY COMPANY and R.J. Yelenich v. TROUTMAN OIL COMPANY
    97-1414
    972 S.W.2d 941
    Supreme Court of Arkansas
    Opinion delivered July 2, 1998
    [Petition for rehearing denied September 17, 1998.]

      Harrill & Sutter, PLLC, by: Raymond Harrill, for appellants.

      Cook, Elmore & Associates, by: Larry Cook, for appellees.
   W.H. “Dub” Arnold, Chief Justice.

This is a breach-of-contract case. The appellants, Interstate Oil and Supply Company and its owner, R. J. Yelenich (“Interstate”), appeal from a $187,289.57 judgment entered in favor of appellee, Troutman Oil Company (“Troutman”), following a jury trial in the First Division of Pulaski County Circuit Court. Interstate seeks a new trial, raising the following issues: that the trial court erred in (1) refusing to limit Troutman’s proof of damages to $50,000.00 under Ark. R. Civ. P. 8(a); (2) failing to exclude testimony regarding Trout-man’s claim for lost profits; and (3) rejecting its argument that Troutman’s construction of the parties’ contract was illegal as violative of federal antitrust laws. Because we conclude that none of Interstate’s arguments has merit, we affirm the trial court’s judgment.

This case has its genesis in a 1993 contract entered into between the parties, which are gasoline and diesel-fuel distributors that service gas stations and convenience stores in central Arkansas. According to the contract, Troutman purchased Interstate’s inventory, rolling equipment, and the right to supply twelve listed service stations that Interstate had been supplying. Interstate, which owned some of the service stations it supplied but leased them to independent operators, agreed, as part of the contract, to cooperate and assist Troutman in retaining business of its former customers. It further agreed not to compete with Troutman within a thirty-mile radius for a period of ten years. Troutman agreed to rent Interstate’s warehouse and to pay Interstate a commission for gas sold at the service stations. The purchase price under the contract was $300,000.00, half of which Troutman paid Interstate at closing, with the remaining half to be financed over a ten-year period.

Subsequently, Jerry Butler, the operator of the Baseline and Chicot Road station fisted in the contract at issue, refused to purchase his gasoline from Troutman. As a result, Troutman sued Interstate for breach of contract, contending that Interstate was obligated under the agreement to require Mr. Butler to purchase his gas from Troutman. Troutman later amended its complaint, stating that it was unable to supply three additional enumerated gas stations in the contract. Interstate filed a counterclaim against Troutman. Following a jury trial, the jury awarded Troutman $187,289.57 on its claim and Interstate $144,000.00 on its counterclaim. The trial court entered its judgment accordingly, providing that Troutman was to recover $43,400.57 from Interstate. Interstate filed a motion for new trial, which the trial court denied. This appeal followed.

I Ark. R. Civ. P. 8(a)

For its first allegation of error, Interstate contends that the trial court erred in refusing to limit Troutman’s proof of damages to $50,000.00 because neither the complaint nor amended complaint contained a demand for an amount in excess than that required for federal court jurisdiction in diversity-of-citizenship cases. This is an issue of first impression for this court and requires us to interpret our rules of civil procedure. See Ark. Sup. Ct. R. 1-2(b)(1) and (6). The rule at issue, Ark. R. Civ. P. 8(a), reads in pertinent part:

Claims for Relief. A pleading which sets forth a claim for relief, whether a complaint, counterclaim, crossclaim, or third party claim, shall contain (1) a statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the pleader is entitled to relief, and (2) a demand for the relief to which the pleader considers himself entitled. In claims for unliquidated damage, a demand containing no specified amount of money shall limit recovery to an amount less than required for federal court jurisdiction in diversity of citizenship cases, unless language of the demand indicates that the recovery sought is in excess of such amount. Relief in the alternative may be demanded. (Emphasis added.)

In the present case, Troutman’s claim for damages in its complaint and amended complaint was “undetermined but exceed[s] $10,000.00.” There was no language in the complaint or amended complaint that indicated that Troutman sought more than $50,000.00. Because Troutman’s claim was for unliquidated damages, Interstate asserts that the plain language of Rule 8(a) limited Troutman’s recovery to $50,000.00. Accordingly, Interstate claims, Troutman’s proof of damages should have been limited to this amount.

While we have not previously interpreted the demand requirement, the Reporter’s Notes to Rule 8 state that “ [t]he obvious purpose of this section is to prevent a plaintiff from using unliquidated demands to avoid removal of diversity of citizenship cases to federal court.” Rule 8(a), which determines jurisdiction only, must be read together with Ark. R. Civ. P. 15(b), which provides that, when issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. In the present case, Troutman responded to Interstate’s first set of interrogatories on August 23, 1996, and produced a chart indicating that it was demanding $184,950.00 in damages. At this point, which was well before the April 10, 1997, trial, Interstate could have sought removal of Troutman’s claim to federal court pursuant to 28 U.S.C. § 1446. It chose not to do so. Accordingly, Interstate’s argument is meritless.

II. Lost profits

Next, Interstate claims that the trial court should have excluded Troutman’s evidence of lost profits because Trout-man failed to include the cost of overhead in its calculation. We reviewed our guidelines in reviewing damage awards that include lost profits in Little Rock Wastewater Util. v. Larry Moyer Trkg., 321 Ark. 303, 312, 902 S.W.2d 760 (1995):

When a party seeks to recover anticipated profits under a contract, he must present a reasonably complete set of figures to the jury and should not leave the jury to speculate as to whether there could have been any profits. American Fidelity Fire Ins. Co. v. Kennedy Bros. Constr. Co., Inc., 282 Ark. 545, 670 S.W.2d 798 (1984). Lost profits must be proven by evidence showing that it was reasonably certain the profits would have been made had the other party carried out its contract. Id. at 546, 670 S.W.2d at 799; Reed v. Williams, 247 Ark. 314, 775 S.W.2d 90 (1969). Such proof is speculative when based upon such factors as projected sales when there are too many variables to make an accurate projection. See Sumlin v. Woodson, 211 Ark. 214, 199 S.W.2d 936 (1947).

We further explained in Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985), the rule that uncertain or contingent damages cannot be recovered:

The rule that damages which are uncertain or contingent cannot be recovered does not apply to uncertainty as to the value of the benefits to be derived from performance, but to uncertainty as to whether any benefit would be derived at all. If it is reasonably certain that profits would have resulted had the contract been carried out, then the complaining party is entitled to recover.

Jim Halsey Co., 284 Ark. at 467-468; Crow v. Russell, 226 Ark. 121, 289 S.W.2d 195 (1956) (quoting Black v. Hogsett, 145 Ark. 178, 224 S.W. 439 (1920)). The fact that a party can state the amount of damages he suffered only approximately, we said, is not a sufficient reason for disallowing damages if from the approximate estimates a satisfactory conclusion can be reached. Id. at 468.

According to one commentator, the weight of authority holds that fixed overhead expenses need not be deducted from gross income to arrive at the net profit properly recoverable. 2 Robert L. Dunn, Recovery of Damages for Lost Profits, § 6.5 at 366 (4th ed. 1992). The rationale behind this rule is that overhead continues whether or not the contract in question has been breached. Id. at 373. If overhead is deducted, thereby reducing recoverable damages, the effect is to reduce the profitability of other contracts by forcing them to bear a disproportionate share of fixed costs. Id. Conversely, all applicable variable expenses should be deducted when arriving at lost profits. Id. We agree that this is the better rule.

Troutman offered the following evidence as to lost profits. Toby Troutman, one of Troutman’s owners, testified that he would have received a profit of $187,289.57 if Interstate had honored the contract and required Mr. Butler to purchase his gas from Troutman. This figure was based on the gross profit for the fourteen months his company supplied the Baseline and Chicot service station. From this $35,865.24 gross-profit figure, he deducted the $9,923.50 commission payed to Mr. Butler and the $1,514.31 commission paid to Interstate. He took this $24,427.73 figure and divided it by fourteen months, equaling $1,744.82, representing Iris monthly net profit. He multiplied his monthly net profit by the remaining 106 months left on the parties’ contract, equaling $184,950.92. To this amount, he added $2,338.65 in branding costs that Fina billed him for the Baseline and Chicot station. The total equaled $187,289.57.

Mr. Troutman admitted that he had other costs including drivers’ costs, truck and equipment costs, labor costs for maintaining and servicing pumps, insurance costs, secretarial salaries, and office rent. However, he described these costs as fixed costs, contending that he would have had to pay these expenses whether or not he sold gasoline to the Baseline and Chicot station. He further stated that the station operators paid their own utilities. Interstate did not challenge this testimony, nor did it present contrary evidence indicating that Troutman’s expenses were variable rather than fixed overhead expenses. Under these circumstances, we cannot say that the trial court erred in admitting Troutman’s evidence relating to lost profits.

III. Illegality

Finally, Interstate claims that the trial court should have dismissed Troutman’s complaint as a matter of law because “the result obtained by Troutman’s construction of the contract” was illegal under federal antitrust laws. Troutman responds that Interstate was required to plead illegality as an affirmative defense. See Ark. R. Civ. P. 8(c). The abstract reveals that Interstate did in fact plead this defense in its amended answer.

At trial, Troutman claimed that Interstate was obligated to require its lessees to buy from Troutman and breached this obligation. Interstate objected to this construction of the contract, maintaining that if it were forced to compel its lessees to buy gas from Troutman, it would be taking part in an unlawful tying arrangement. The trial court rejected Interstate’s argument, and the jury ultimately returned a verdict for Troutman on its claim for breach of contract.

The Federal Trade Commission Act prohibits unfair methods of competition in commerce and unfair acts or practices in commerce. Atlantic Refining. Co. v. Federal Trade Commission, 381 U.S. 357 (1965); 15 U.S.C. § 45. The majority of antitrust claims are analyzed under a “rule of reason,” under which the finder of fact must decide whether the questioned practice imposes an unreasonable restraint on competition. Double D Spotting Service, Inc. v. Supervalu, 136 F.3d 554 (8th Cir. 1998) (citing State Oil Co. v. Khan, 118 S.Ct. 275 (1997)). This rule-of-reason analysis involves an inquiry into the market structure and the defendant’s market power in order to assess the actual effect of the restraint. Id. (citing Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768 (1984)). Particularly, an unlawful tying arrangement involves the sale or lease of one item, the tying product, on the condition that the buyer or lessee purchase a second item, the tied product, from the same source. Id. (citing Marts v. Xerox, Inc., 11 F.3d 1109, 1112 (8th Cir. 1996) and Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483 (8th Cir. 1992), cert. denied, 506 U.S. 1080 (1993)).

In the present case, Interstate did not proffer evidence that it had sufficient market power in the tying product or service market to restrain competition. It was Interstate’s burden to define the relevant market, including a product market and a geographic market. See Double D, 136 F.3d at 560 (citing Bathke v. Casey’s Gen. Stores, Inc., 64 F.3d 340 (8th Cir. 1995)). This it did not do. Under these circumstances, we cannot say, as a matter of law, that the contract as construed in the present case constituted an unlawful tying arrangement and was illegal as violative of federal antitrust laws. Based on the foregoing, we affirm the trial court’s decision to deny Interstate’s motion for new trial.

Affirmed.

Newbern and Imber, JJ., dissent.

Annabelle Clinton Imber, Justice,

dissenting. I must respectfully dissent because I cannot agree with the majority’s holding that Troutman was properly allowed to prove damages in excess of $50,000.

In its original and amended complaints, Troutman alleged that its damages were “undetermined” but “exceed[ed] $10,000.” The majority acknowledges that Ark. R. Civ. P. 8(a), a general rule of pleading that applies to all claims for relief, determines jurisdiction and provides in relevant part that:

In claims for unliquidated damage, a demand containing no specified amount of money shall limit recovery to an amount less than required for federal court jurisdiction in diversity of citizenship cases, unless language of the demand indicates that the recovery sought is in excess of such amount.

(Emphasis added.) By using the word “shall,” it is clear that the rule is mandatory and not discretionary. King v. State, 322 Ark. 51, 907 S.W.2d 127 (1995); Menard v. City of Carlisle, 309 Ark. 522, 834 S.W.2d 632 (1992). Hence, pursuant to the mandatory language of Rule 8(a), I conclude that Troutman should have been limited to proving damages less than $50,000, which was the amount required for federal diversity jurisdiction at the time of this case.

The majority circumvents this result by holding that Rule 8(a) “must be read together with Ark. R. Civ. P. 15(b).” Rule 15(b) provides that:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion. The court may grant a continuance to enable the objecting party to meet such evidence.

I read Rule 15(b) to allow the pleadings to be amended to conform to the evidence in three instances.

First, the pleadings may be amended upon a motion. Trout-man made no such motion in this case. Second, the pleadings may be amended by express or implied consent. Interstate did not expressly or impliedly consent to Troutman amending its complaint to assert damages in excess of $50,000. In fact, Interstate expressly objected to such amendment by filing a motion in hmine, renewing the motion at the conclusion of the trial, and by filing a motion for a new trial. Finally, it appears that Rule 15(b) allows the pleadings to be amended upon a court ruling in response to an evidentiary objection. I can only assume that the majority concludes that the trial court’s denial of Interstate’s motion in limine was such a ruling.

The majority reasons that this is an equitable result because Troutman asserted in its August 12, 1996 answer to Interstate’s first set of interrogatories that it was demanding $184,950 in damages. I disagree with this conclusion for two reasons.

First, on September 10, 1996, only one month after it filed its answers to Interstate’s interrogatories, Troutman filed an amended complaint in which it continued to assert that its damages were undetermined but in excess of $10,000. I do not see how such contradictory assertions can sufficiently put a defendant on notice of the possibility of federal diversity jurisdiction.

Second, and more importantly, the majority ignores the broad implications of their holding. In future cases, plaintiffs may wait until the final stages of discovery or possibly well into trial before they assert damages sufficient to invoke federal diversity jurisdiction. At this point in the litigation, it would be highly improbable that a defendant would be willing to assert its right to have the case removed to federal court. Such a result would completely abrogate the policy behind Rule 8(a), which the majority admits is to “prevent a plaintiff from using unliquidated demands to avoid removal of diversity of citizenship cases to federal court.”

In sum, the majority’s holding that Rule 8(a) “must be read together with Ark. R. Civ. P. 15(b)” is the death knell of the requirement in Rule 8(a) that jurisdictional issues involving a claim for an unspecified amount of unliquidated damages be promptly determined, i.e., long before trial. Accordingly, I must respectfully dissent.

Newbern, J., joins this dissent.

       Troutman does not cross-appeal the judgment on interstate’s counterclaim.

       The minimum amount required for federal court jurisdiction in diversity-of-citizenship cases has since been raised to $75,000.00. See 28 U.S.C. § 1332.


source: Caselaw Access Project

license: Public Domain

text:
    Laurie VanWAGONER v. BEVERLY ENTERPRISES
    97-1355
    970 S.W.2d 810
    Supreme Court of Arkansas
    Opinion delivered July 2, 1998

      Walker, Shock & Harp, P.L.L.C., by: Eddie H. Walker, Jr., for appellant.

      Hardin, Dawson & Terry, by: J. Rodney Mills and J. Gregory Magness, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellant Laurie VanWagoner appeals the judgment of the Fort Smith District of Sebastian County Circuit Court dismissing with prejudice her complaint against appellee Beverly Enterprises. The circuit court dismissed her tort action on the ground that it was barred by the exclusive-remedy provision of the Workers’ Compensation Act, Ark. Code Ann. § 11-9-105(a) (Repl. 1996). Thereafter, she filed an appeal with the Arkansas Court of Appeals, which certified the case to this court under Ark. Sup. Ct. R. 1-2(d)(2), as involving an issue of significant public interest or a legal principle of major importance. Particularly, we are asked to resolve the question of whether the circuit court or the Workers’ Compensation Commission has jurisdiction to determine whether the Act applies. We hold that the commission has exclusive, original jurisdiction to determine the fact issues establishing its jurisdiction. Accordingly, for the reasons set forth below, we affirm the circuit court’s decision as modified.

Ms. VanWagoner was employed as an administrative assistant at Beverly on February 15, 1995, when she tripped and fell on a rug while walking down a hallway at her place of employment. She filed a notice of injury according to Ark. Code Ann. § 11-9-701 (Repl. 1996) on February 29, 1996. On October 15, 1996, Ms. VanWagoner filed a claim for benefits with the commission, claiming that the injuries to her hip resulted from a work-related injury. Thereafter, Beverly controverted the claim, alleging that Ms. Van Wagoner’s injuries were the result of a noncomp ensable preexisting condition caused by a prior slip-and-fall accident and a subsequent automobile accident. Beverly further alleged that Ms. VanWagoner’s claim was not compensable because she was not performing employment services at the time of the alleged fall under Ark. Code Ann. § 11-9-102(5)(B)(iii) (Repl. 1996). Particularly, Beverly contended that Ms. VanWagoner was not engaged in employment services because she was on her way to the break room when the fall occurred.

After a claim representative determined that Ms. VanWagoner’s claim was not compensable, a hearing before the Workers’ Compensation Commission on the issue of compensability was scheduled for April 9, 1997. On April 3, 1997, Ms. VanWagoner’s counsel requested that the commission cancel the hearing. On May 15, 1997, Ms. VanWagoner filed suit against Beverly in circuit court, alleging that Beverly’s negligence in fading to maintain its premises was the proximate cause of her injuries. Beverly moved to dismiss the complaint on the ground that the jurisdiction resided exclusively in the commission. The circuit court agreed and dismissed the complaint. Ms.VanWagoner appeals.

The Court of Appeals has asked us to decide whether the commission or the circuit court should determine the applicability of the Workers’ Compensation Act. Along with the majority of appellate courts that have addressed this issue, we have previously adhered to the rule that the circuit courts and the commission have concurrent jurisdiction to determine the applicability of workers’ compensation laws to a given case. See, e.g. Craig v. Taylor, 323 Ark. 363, 915 S.W.2d 257 (1996); Lively v. Libbey Memorial Physical Medical Ctr., Inc., 317 Ark. 5, 875 S.W.2d 507 (1994). This approach, however, is fraught with weaknesses. One practical result of this rule is that the party that acts first inevitably decides which tribunal will resolve the jurisdictional question. Conceivably, if every employee decided to file his or her claim in circuit court, under our current rule, the commission might never decide whether the rights and remedies of the Workers’ Compensation Act applied, despite the fact that our legislature has chosen to entrust questions of compensation to its expertise:

(a) The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer. . . .

Ark. Code Ann. § 11-9-105(a) (Repl. 1996) (emphasis added). See also Cherry v. Tanda, 327 Ark. 600, 616, 940 S.W.2d 457, 462 (1997), quoting Helms v. Southern Farm Bureau Casualty, 281 Ark. 450, 664 S.W.2d 870 (1984) (“[O]ther statutes must yield to the Workers’ Compensation Act because it is in the interest of the public policy to give that act priority as an exclusive remedy.”).

In addition to creating a race to file, the concurrent-jurisdiction approach can lead to duplicative litigation, that is, the simultaneous pursuit of claims in both the commission and in circuit court. See, e.g. Riverside Furniture Corp. v. Rogers, 295 Ark. 452, 749 S.W.2d 664 (1988). According to one commentator, an even more fundamental problem with this rule is that “it may lead to nonuniform decisions in employee injury cases involving similar facts.” Daniel Keating, Employee Injury Cases: Should Courts or Boards Decide Whether Workers’ Compensation Laws Apply?, 53 U. Chi. L. Rev. 258, 271 (1986). Because juries are more likely than commission officials to be sympathetic to injured plaintiffs in resolving factual issues pivotal to the jurisdictional question, the commentator explains, similar cases may lead to different results. Id.

We believe that the better rule is to recognize the administrative law rule of primary jurisdiction and to allow the Workers’ Compensation Commission to decide whether an employee’s injuries are covered by the Workers’ Compensation Act. This rule is consistent with the purpose of the Act, and is supported by the teachings of Professor Larson:

The soundest result in these cases, both as a matter of law and as a matter of practical experience would be a simple recognition of board priority in all cases, except those in which the facts are so one-sided that the issue is no longer one of fact but one of law.
The legal rationale goes back to the fundamental administrative law rule of primary jurisdiction, enunciated by the Supreme Court in [Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426 (1907)]. In the particular area of workers’ compensation, this broad principle is strongly reenforced by the legislative intent to entrust questions of compensation coverage to an expert commission. . . .
When it is remembered that one of the primary original reasons for adoption of the workers’ compensation system was to achieve simplicity and speed in the disposition of cases, it is obvious that this objective is best served by a straightforward policy of primary jurisdiction.

6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 67.60, at 12-205 (1997 and Cum. Supp. 1998). See generally Daniel Keating, Employee Injury Cases: Should Courts or Boards Decide Whether Workers’ Compensation Laws Apply?, 53 U. Chi. L. Rev. 258, 274-278 (1986) (advocating the primary jurisdiction approach as advancing the interests of applying the workers’ compensation laws uniformly, taking advantage of agency expertise, and eliminating wasteful duplicative litigation). See also Hannah v. Mallinckrodt, Inc., 633 S.W.2d 723 (Mo.banc. 1982); and Grillo v. National Bank of Washington, 540 A.2d 743 (D.C.App. 1988) (adhering to the primary-jurisdiction rule in workers’ compensation cases).

We hold that the exclusive remedy of an employee or her representative on account of injury or death arising out of and in the course of her employment is a claim for compensation under § 11-9-105, and that the commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort. See Angle v. Alexander, 328 Ark. 714, 719, 945 S.W.2d 933 (1997)(citing Miller v. Ensco, Inc., 286 Ark. 458, 461, 692 S.W.2d 615 (1985) (explaining that, before an employee is free to bring a tort action for damages against an employer, the facts must show that the employer had a “desire” to bring about the consequences of the acts, or that the acts were premeditated with the specific intent to injure the employee). In so holding, we overrule all prior decisions to the extent that they are inconsistent with this opinion.

Affirmed as modified.

Newbern and Imber, JJ., concur.

Annabelle Clinton Imber, Justice,

concurring. The majority has forged new ground by holding that a circuit court no longer has jurisdiction to determine whether it or the Workers’ Compensation Commission has jurisdiction to hear a case. Because I concur with the result but not this departure from our well-established law, I must write separately.

As we recently acknowledged in Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998), pursuant to Article 5, Section 32, of the Arkansas Constitution, the Workers’ Compensation Commission has jurisdiction only when there is an employment relationship between the litigants. In other words, an employment relationship is a condition precedent to the Commission’s jurisdiction.

Thus, we have consistently held throughout the last thirty-six years that the circuit court has concurrent jurisdiction with the Commission to make the threshold determination as to whether an employment relationship exists between the parties such that the merits of the case must be resolved by the Workers’ Compensation Commission. Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996); Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996); Rankin v. Farmers Tractor & Equip. Co., 319 Ark. 26, 888 S.W.2d 657 (1994); Nucor-Yamato Steel Co. v. Circuit Court of Mississippi County, 317 Ark. 493, 878 S.W.2d 745 (1994); Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), overruled on other grounds, 315 Ark. 333, 869 S.W.2d 6 (1994); Campbell v. Waggoner, 235 Ark. 374, 360 S.W.2d 124 (1962); Co-Ark. Const. Co. v. Amsler, 234 Ark. 200, 352 S.W.2d 74 (1961).

The distinction between jurisdiction to determine jurisdiction and jurisdiction to hear the merits of the case cannot be overemphasized. In the cases mentioned above, we have upheld the circuit court’s concurrent jurisdiction to determine whether an employment relationship exists, upon either a motion to dismiss or a motion for summary judgment when the facts are undisputed or there is no material issue of fact, or at trial when there are material issues of fact regarding the employment relationship. If the circuit court decides that an employment relationship exists between the litigants, then it must dismiss the case because resolution of the merits of the case belongs within the exclusive jurisdiction of the Workers’ Compensation Commission. In none of these cases have we held, as the majority concludes, that the circuit court does not have jurisdiction to make the initial jurisdictional determination regarding the existence of an employment relationship.

In this case, it was undisputed that an employment relationship existed between Ms. VanWagoner and Beverly Enterprises. The only disputes were whether her injury occurred during the scope of her employment, and whether a preexisting condition contributed to her injuries. Similarly, in Rankin v. Farmers Tractor & Equip. Co., supra, the employee argued that he was entitled to seek damages in circuit court because the employer controverted his claim for workers’ compensation by asserting that his injury did not occur in the course and scope of his employment. We held such an argument to be without merit because an “employer is immune from liability for damages in a tort action brought by an injured employee.” Id. (citing Fore v. Circuit Court of Izard County, supra). Thus, according to our well-established precedent, the circuit court correctly dismissed Ms. VanWagoner’s tort claim because it was clear that the merits of the case (whether she was acting within the scope of her employment and whether she had a preexisting condition) fell within the exclusive jurisdiction of the Workers’ Compensation Commission.

Hence, I agree with the majority’s decision to affirm the trial court’s dismissal, but not with its reasoning. Specifically, I disagree with the majority’s decision to abandon our well-established rule of concurrent jurisdiction to determine jurisdiction in favor of Professor Larson’s rule that the Workers’ Compensation Commission has “exclusive, original jurisdiction to determine the facts that establish jurisdiction . . . unless the facts are so one-sided that the issue is no longer one of fact but one of law.” I cannot agree with the majority’s decision in this respect for several reasons.

First, the majority claims that we must discard our prior rule of concurrent jurisdiction because it is “fraught with weakness.” No such weakness is present in this case. Ms. VanWagoner tried to circumvent the Commission’s jurisdiction by filing her action in the circuit court. Once the circuit court determined that there was an employment relationship between Ms. VanWagoner and Beverly Enterprises, it correctly ruled that the complaint fell within the Commission’s jurisdiction and dismissed the complaint. In other words, the circuit court correctly retained jurisdiction only to the extent necessary to determine that it did not have jurisdiction over the merits of Ms. VanWagoner’s claim. There simply is no reason in this case to abandon our well-established precedent in favor of a different jurisdictional rule.

Second, we refused to adopt Larson’s approach only two years ago in Craig v. Traylor, supra. Nothing has changed in the last two years that would require us to reconsider that holding.

Third, the majority claims that we must abandon our prior jurisdictional rule because concurrent jurisdiction is unworkable. Yet, the new rule adopted by the majority retains concurrent jurisdiction when “the facts are so one-sided that the issue is no longer one of fact but one of law.” The new rule does not abolish concurrent jurisdiction, and the alleged weaknesses associated with it, but merely changes the basis on which it exists.

Finally, we have consistently held that an employee may file before the Commission or the circuit court a claim for damages arising out of injuries caused by the employer’s deliberate and intentional conduct. Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993); Sontag v. Orbit Valve, Co., 283 Ark. 191, 672 S.W.2d 50 (1984); Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350, 230 S.W.2d 28 (1950). As I understand the majority opinion, the circuit court still has jurisdiction to determine whether the facts in an intentional-tort case are “so one-sided that the issue is no longer one of fact but one of law.” In sum, the new rule adopted by the majority creates more questions than answers.

For these reasons, I agree with the majority’s decision to affirm the dismissal of VanWagoner’s tort claim, but would do so based on our established precedent instead of the new rule adopted by the majority.

Newbern, J., joins this concurrence.


author: David Newbern, Justice.

text:
    STATE of Arkansas OFFICE of CHILD SUPPORT ENFORCEMENT v. Vicki Rene SECREST
    98-245
    970 S.W.2d 814
    Supreme Court of Arkansas
    Opinion delivered July 2, 1998

      Kennedy, Phillips & Douthit, by: John C. Riedel, for appellant.

      William F. Smith, for appellee.
   David Newbern, Justice.

Appellee Vicki Rene Secrest was awarded a divorce in the Washington County Chancery Court and child support of $74.00 per month to be paid by her ex-husband, Hal Secrest. Venue was changed to Pope County where the Chancellor entered an order on June 9, 1997, finding Mr. Secrest delinquent in child-support payments in the amount of $998.00. Mr. Secrest was ordered to pay $81.40 thereafter. Earlier payments had been made through the Office of Child Support Enforcement clearinghouse. At Ms. Secrest’s request, after hearing her complaint that she had difficulty obtaining earlier payments made through the clearinghouse, the Chancellor ordered that the payments he made to the registry of the court.

On September 11, 1997, which was ninety-four days after the entry of the June 9, 1997 order, OCSE moved to intervene, asserting that Ms. Secrest had assigned her rights to it. The following month, OCSE moved to modify the order to require that the payments be made though the clearinghouse. The motion was denied. OCSE appeals, contending that in accordance with Ark. Code Ann. § 9-14-803(b)(1)(A) (Supp. 1997), all child-support payments must be made through the clearing house. We accepted the case upon certification by the Court of Appeals because we had not previously interpreted the statute, but we must affirm the order because the motion to modify it was untimely and the Chancellor thus lacked jurisdiction to do so.

In accordance with Ark. R. Civ. P. 60(b); an order may be modified within ninety days of its having been filed with the clerk. Absent circumstances stated in Rule 60(c), which do not apply in this case, a court loses jurisdiction to modify its order after the passage of ninety days. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); Griggs v. Cook, 315 Ark. 74, 864 S.W.2d 832 (1993).

Affirmed.


author: Donald L. Corbin, Justice.

text:
    Steven Wayne EUBANKS v. The Honorable Marion HUMPHREY
    CR 98-210
    972 S.W.2d 234
    Supreme Court of Arkansas
    Opinion delivered July 2, 1998

      The Blagg Law Firm, by: Ralph J. Blagg, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Petitioner Steven Wayne Eubanks seeks a writ of prohibition against Respondent Honorable Marion Humphrey and the Pulaski County Circuit Court to prevent a trial for the offenses of driving while intoxicated (DWI), fourth offense, an unclassified felony, and driving with a suspended driver’s license. Respondent trial court denied Eubanks’s motion to dismiss the charges on speedy-trial grounds, and he now seeks a writ of prohibition in this court pursuant to A.R.Cr.P. Rule 28.1(d). We have jurisdiction to hear this petition pursuant to Ark. Sup. Ct. R. 1-2(a)(3). We grant the writ.

A criminal defendant’s constitutional right to a speedy trial is protected by Rules 27-30 of the Arkansas Rules of Criminal Procedure. Archer v. Benton County Circuit Court, 316 Ark. 477, 872 S.W.2d 397 (1994). Rules 28.1(c) and 28.2(a) require the State to bring a defendant to trial within twelve months from the date a charge is filed in circuit court. If, however, prior to that time, the defendant has been arrested and is lawfully set at liberty, the defendant must be brought to trial within twelve months from the date of arrest. Rule 30.1 provides that if a defendant is not brought to trial within the requisite time, he or she will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that offense. Rule 28.1(d) provides that a defendant shall make a motion for dismissal to the trial court for violation of Rule 28.1, and, if the motion is denied, the defendant may petition this court for a writ of prohibition.

The relevant facts of this case are not in dispute. Eubanks was arrested for DWI and driving with a suspended driver’s license on April 8, 1995, and was subsequently released on bond; hence, Rule 28.2 mandates that the twelve-month period commenced running on the date of his arrest. The case was set for trial numerous times, with the last trial date being December 10, 1997. Thus, the relevant time for calculation of the twelve-month period is from April 8, 1995 to December 10, 1997, a total of 977 days.

On November 4, 1997, Eubanks filed a motion to dismiss for violation of his right to a speedy trial. A hearing was conducted on December 8, 1997, wherein the Respondent trial court denied the motion, ruling that Eubanks had waived his right to speedy trial without limitation on November 19, 1996. The trial court found that a total of 686 days were excludable from the calculation of the twelve-month period: (1) one day, July 18, 1995, was excludable due to Eubanks’s failure to appear for his arraignment; (2) 224 days, from October 3, 1995 through May 14, 1996, were excludable because the case was twice continued on Eubanks’s motions; (3) 75 days, from June 20, 1996 through September 3, 1996, were also excludable due to Eubanks’s motion to continue the case; and (4) 386 days, from November 19, 1996 through December 10, 1997, were excludable as a result of Eubanks’s waiver of speedy trial.

The record of the November 19, 1996 hearing reflects that Eubanks’s trial was set for that date; however, another trial was already in progress in the same court. As a result of the scheduling conflict, the trial court indicated that Eubanks’s case would be tried the following day. This was not, however, agreeable to Eubanks. The colloquy is as follows:

The Court: Let’s pass this one until tomorrow.
[Prosecutor]: Your Honor, one concern I have is I know that I have an expert. The defense has an expert. And I haven’t spoken with my expert to see if she’ll be available tomorrow.
[Defense]: My expert’s not available tomorrow, Judge. We had a date certain today. We talked about it earlier. We will waive speedy trial. I know there’s a speedy-trial problem with that. Reset this case and maybe something else can be worked out about maybe trying it before the Court.
The Court: Well, pass on the Court’s motion.
[Defense]: Your Honor, I will need my expert witness. I want to make sure that he’s available, Judge.
The Court: You waive speedy trial?
[Defense]: Yes, sir.

The case was then reset for January 22, 1997. On that date, Eubanks again indicated that he was waiving speedy trial. The record reflects the following exchange:

[Prosecutor] : Your Honor, this is a DWI fourth. He was arrested on the eighth of April of Ninety-five. There’s been several periods of tollable times. It looks like the defendant waived speedy trial the last court date. I calculated it to find approximately one hundred days to try this case. It’s my understanding that the defense is going to waive speedy trial.
[Defense]: That’s correct, your Honor. I provided the Court with a letter from Mr. Blagg about days he and his expert witness are unavailable so that the Court doesn’t have to reschedule it again. And would just ask the trial be set any day other than those.
[Prosecutor]: And, your Honor, we would ask that speedy trial be tolled during that time period.
The Court: I show speedy trial waived.

The trial court reset the trial for May 21, 1997. During the hearing on that date, Eubanks’s counsel explained that the reason he had agreed to waive speedy trial on November 19, 1996, was to secure a trial date that was convenient for his expert witness.

It is well settled that a defendant does not have a duty to bring himself to trial; rather, the burden is on the court and the prosecutor to see that the trial is held in a timely fashion. Tanner v. State, 324 Ark. 37, 918 S.W.2d 166 (1996) (citing Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987)). Once it is shown by the defendant that a trial is or will be held outside the applicable speedy-trial period, the State has the burden of showing that the delay was the result of the defendant’s conduct or was otherwise justified. Id. Delays resulting from continuances given at the request of the defendant are excludable in calculating the time for a speedy trial. Rhodes v. Capehart, 313 Ark. 16, 852 S.W.2d 118 (1993); Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). As Eubanks has shown that his trial was scheduled to take place 977 days after his arrest, the burden rests with the State to show that the delay was the result of Eubanks’s actions or was otherwise justified.

Eubanks does not contest the trial court’s exclusion of those periods of time that resulted from his requested continuances and his failure to appear for arraignment. Nor does he contest the trial court’s ruling excluding the time from November 19, 1996 to May 21, 1997. Eubanks does, however, argue that the remaining time, from May 22, 1997 to December 10, 1997, should not have been excluded from the computation of the twelve-month period. Eubanks argues further that he did not unconditionally waive his right to speedy trial on November 19, 1996, or on January 22, 1997; rather, he claims that he merely agreed that the twelvemonth period would be temporarily tolled to May 21, 1997. Thus, he contends that the time for speedy trial began to run again on May 22, 1997. He argues further that our rules of criminal procedure do not recognize such a waiver. The question then is whether the trial court erred in finding that Eubanks unconditionally waived his right to speedy trial on November 19, 1996.

Eubanks relies on language from this court’s decision in Tanner, 324 Ark. 37, 918 S.W.2d 166, to support his argument that our rules of criminal procedure do not provide for the waiver of the right to a speedy trial. There, this court held that “the Rules of Criminal Procedure do not mention waiver of the right to a speedy trial unless the defendant fails to move for dismissal prior to a plea of guilty or a trial.” Id. at 42, 918 S.W.2d at 168.6 Eubanks’s reliance on that holding is misplaced, as Tanner did not address the issue of whether a defendant may affirmatively waive his constitutional right to a speedy trial; rather, that case concerned an alleged waiver resulting from the defendant’s inaction.

The United States Supreme Court recognized in Barker v. Wingo, 407 U.S. 514 (1972), that the constitutional right to a speedy trial, like other fundamental constitutional rights, may be waived by a defendant. This court has not directly addressed the issue of an express waiver of the right to speedy trial. This court has, however, declined to hold that trial counsel was ineffective for failing to assert the defendant’s speedy-trial right, where the record reflected that there was an explicit agreement to waive speedy trial and continue the defendant’s case until after the trial of the codefendant. Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). This court noted that the waiver agreement was for Cox’s benefit, as it “gave him an opportunity to ‘dry run’ the case by having the prosecution first present its evidence in the co-defendant’s trial.” Id. at 317, 772 S.W.2d at 338.

The trial court here relied on Goston v. State, 55 Ark. App. 17, 930 S.W.2d 387 (1996), in which the Arkansas Court of Appeals discussed the express waiver of the right to speedy trial. Although the decision focused primarily on the insufficient abstract submitted by the appellant, the court of appeals nonetheless observed:

It is undisputed that Mr. Goston’s attorneys waived his right to a speedy trial both on February 17, 1993, and April 7, 1993. The abstract does not reveal that these waivers contained any conditions or limitations. Therefore, all of the time that elapsed between February i 1, 1993, and the date of the trial appears to be excludable for speedy-trial purposes.

Id. at 20, 930 S.W.2d at 389 (emphasis added).

Similarly, in Garrison v. State, 270 Ark. 426, 605 S.W.2d 467 (Ark. App. 1980), the court of appeals discussed a defendant’s waiver of the right to speedy trial. Relying on the California case of Gregory v. Justice Ct., So. Sacramento Jud. Dist., 336 P.2d 584 (Cal. Dist. Ct. App. 3d 1959), the court of appeals agreed that a defendant may waive his or her constitutional right to a speedy trial, provided that the waiver takes place prior to the expiration of the speedy-trial period. This court later relied on the reasoning from Garrison in support of its holding that the defendant’s motions for continuances made after the time for speedy trial had run did not constitute an acquiescence in the delay. Duncan v. State, 294 Ark. 105, 740 S.W.2d 923 (1987).

Here, the waiver made by Eubanks on November 19, 1996, was well within the twelve-month period for speedy trial. Eubanks was arrested on April 8, 1995; hence, the time for speedy trial would have run, provided there were no excludable time periods, on April 8, 1996. There were 225 days from April 8, 1996 to November 19, 1996, but there were 300 days of excludable time as of the latter date due to Eubanks’s delays. Thus, at the time that Eubanks waived speedy trial, the twelve-month period had not expired. Moreover, it is apparent from the record that Eubanks did not attach any conditions or limitations to the waiver at the time it was given on November 19, 1996, or on January 22, 1997, when the waiver was ratified. It is further apparent that the waiver was of benefit to Eubanks, as it allowed him to secure a trial date that was more convenient for his expert witness. Accordingly, we conclude that Eubanks effectively waived his right to speedy trial. Our inquiry does not, however, end there.

The next issue we must decide is whether the waiver remained without conditions or limitations until the date of the last trial setting, December 10, 1997. The State contends that in order to withdraw or limit his waiver, Eubanks was required to make a motion to the trial court, and that until such a motion was made, the waiver remained without conditions. The State contends further that Eubanks did not make such a motion until November 4, 1997, when he filed his motion to dismiss pursuant to Rule 28.1(d). The State relies on our holding in Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997), in support of this argument. We reject the State’s argument and hold that Eubanks effectively withdrew or limited his waiver on August 19, 1997.

The record of the August 19, 1997 hearing, before Special Judge Leon Johnson, reflects that the trial set for that date, was going to be rescheduled for December 10, 1997, as Respondent was unavailable due to a death in his family. During that hearing, the following exchange took place:

[Defense]: I understand that the Judge can’t be here today because of illness in his family.
The Court: Bight. Death in his family.
[Defense]: Bight.
The Court: That’s correct. And, so, today we’re going to reschedule this matter.
[Defense]: That’s my understanding. It’s to be rescheduled.
The Court: Okay. I just wanted to make sure we’re all on the same page.
[Prosecutor] : Your Honor, will speedy trial be tolled?
The Court: That’s my understanding.
[Defense] : I’m not agreeing to toll speedy trial, your Honor.
The Court: Okay.
[Prosecutor]: Your Honor, the rule specifically states if the Court finds circumstances to toll speedy trial it will.
The Court: Bight. That’s my understanding also.
[Defense]: Well, I’m not agreeing, Judge.
The Court: I understand.
[Defense]: For the record, I want it clear that I’m not agreeing that speedy trial be tolled.
The Court: I understand that.

From the foregoing discussion, it is readily apparent that defense counsel apprised the trial court that Eubanks no longer wished to waive his right to speedy trial. The fact that counsel did not convey this message through a formal motion does not change the character of the message itself. We thus conclude that the time for speedy trial commenced running again on August 19, 1997. It follows then that the time from August 20, 1997 to December 10, 1997, a total of 113 days, is not excludable from the computation of the twelve-month period for speedy trial. As such, the excludable time of 686 days found by the trial court is reduced to 573 days, which must be subtracted from the total elapsed time of 977 days. Using those figures, it is evident that a total of 404 days has passed, which clearly exceeds the twelve-month period provided by Rules 28.1(c) and 28.2(a).

Additionally, we reject the State’s argument that the delay from August 19, 1997 to December 10, 1997, was for good cause pursuant to Rule 28.3(h). The State has not met its burden of proving that a death in the Respondent’s family constituted good cause to delay Eubanks’s trial for 113 days. This court has previously held that absence by the trial judge due to illness was not good cause for delaying the trial. Novak, 294 Ark. 120, 741 S.W.2d 243. See also Campbell v. State, 26 Ark. App. 133, 761 S.W.2d 613 (1988). We see no valid reason for retreating from that holding where the absence is the result of a death in the trial judge’s family. Moreover, even if we held that such an absence was good cause for delay, we would not go so far as to hold that the delay was warranted until December 10, 1997, over three and one-half months later. Accordingly, we hold that the charges against Eubanks must be dismissed, and that such dismissal constitutes an absolute bar to his prosecution for the same offenses.

Writ granted.


author: Annabelle Clinton Imber, Justice.

text:
    Billy Leon GRAHAM v. TURNAGE EMPLOYMENT GROUP and Wausau Insurance Companies
    98-147
    970 S.W.2d 808
    Supreme Court of Arkansas
    Opinion delivered July 2, 1998

      The Cortinez Law Firm, P.L.L.C., by: Robert Cortinez, for appellant.

      Anderson & Kilpatrick, by: Randy Murphy, for appellees.
   Annabelle Clinton Imber, Justice.

The appellant, Billy Leon Graham, appeals from the decision of the Workers’ Compensation Commission denying him benefits for injuries he sustained in a work-related accident. We initially granted Graham’s petition for review of the Court of Appeals’ decision affirming the Commission. Upon further examination, we have determined that review was improvidently granted. Accordingly, the petition is denied, and the Court of Appeals’ decision in Graham v. Turnage Employment Group, 60 Ark. App. 150, 960 S.W.2d 453 (1998), remains the binding ruling in this case.

On June 13, 1995, Billy Graham fell from a roof while he was working as a construction laborer for Turnage Employment Group. While being treated for his injuries at a nearby hospital, Graham submitted to a urine drug screen. An analysis performed the next day revealed that Graham’s urine contained marijuana metabolites. Graham subsequently filed a claim for workers’ compensation benefits. Turnage and its workers’ compensation carrier, Wausau Insurance, contended that Graham’s injuries were not compensable because they were “substantially occasioned by the use of. . . illegal drugs” pursuant to Ark. Code Ann. § 11—9—102(5)(B)(iv) (Supp. 1997).

During a hearing before the administrative law judge (ALJ), Graham testified that he did not smoke marijuana or use any type of illegal drugs on the day of the accident, but he admitted that he had taken “a couple of puffs” of marijuana approximately three weeks prior to the accident. Graham, however, made several contradictory statements about his prior drug use in his deposition and to a representative from Wausau Insurance. Dr. Henry F. Simmons, Jr., a toxicologist and medical doctor retained by Graham, explained that the presence of metabolites in a person’s urine is both consistent and inconsistent with being under the influence of marijuana, and thus, the lab report did not prove that Graham used marijuana on the day of the accident. Dr. Simmons then testified that “under some circumstances, a urine specimen could [test] positive for weeks, if not in excess of a month” after the use of marijuana. Finally, Dr. Simmons explained that the effects of marijuana could last four to six hours.

The ALJ awarded Graham benefits because he had presented sufficient evidence to rebut the statutory presumption that his injuries were substantially occasioned by the use of illegal drugs. After conducting a de novo review of the record, the Workers’ Compensation Commission concluded that Graham failed to rebut the statutory presumption because his testimony was “replete with contradictions and inconsistencies,” and “[h]e is not able to tell the same story twice.” Accordingly, the Commission reversed the ALJ’s ruling and denied Graham’s request for benefits. In a split decision, the Court of Appeals affirmed the Commission’s decision. Graham v. Turnage Employment Group, 60 Ark. App. 150, 960 S.W.2d 453 (1998).

We initially granted Graham’s petition for review because we thought this case presented an opportunity to address when the statutory presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv) may be invoked. As acknowledged by Judge Roaf, Graham’s arguments on appeal, however, “miss the mark.” Graham, supra (Roaf, J., concurring). Instead of questioning whether a urine analysis, which can only detect the presence of non-psychoactive metabolites of marijuana, is sufficient to invoke the statutory presumption, Graham made the evidentiary arguments that the lab result was hearsay, and that the proper chain of custody had not been established. Graham also argued that the urine analysis could not detect “impairment.” This argument is also misplaced because the statute only requires the “the use” of illegal drugs and not impairment. Finally, Graham argued in passing that the statutory presumption was unconstitutional. We, however, cannot address this constitutional challenge because Graham failed to raise it before the Workers’ Compensation Commission. Jefferson v. Munsey Products, Inc., 55 Ark. App. 105, 930 S.W.2d 396 (1996); Green v. Smith & Scott Logging, 54 Ark. App. 53, 922 S.W.2d 746 (1996).

For these reasons, we conclude that the petition for review was improvidently granted. Accordingly, we deny Graham’s petition for review, and the Court of Appeals’ decision in Graham v. Turnage Employment Group, 60 Ark. App. 150, 960 S.W.2d 453 (1998), remains the binding decision in this matter.

Petition for review denied.

Corbin, J., not participating.


author: Ray Thornton, Justice.

text:
    Everette J. BROWN v. ALABAMA ELECTRIC COMPANY and Wausau Insurance Company
    98-148
    970 S.W.2d 807
    Supreme Court of Arkansas
    Opinion delivered July 2, 1998

      The Cortinez Law Firm, P.L.L.C., by: Bob Cortinez, for appellant.

      Kilpatrick, Aud & Willaims, L.L.P., by: A. Gene Williams, for appellees.
   Ray Thornton, Justice.

Appellant Everett J. Brown appeals from the decision of the Workers’ Compensation Commission denying him benefits for his injuries that resulted from a work-related accident. We initially granted Brown’s petition for review of the court of appeals’ decision affirming the Commission. Upon further examination of Brown’s argument on review, we have determined that review was improvidently granted.

Brown was injured on July 12, 1994, when the truck that he was driving for appellee Alabama Electric Company left the road during a severe rainstorm and struck a tree. Brown sustained a fractured right femur in the accident. A urinalysis revealed the presence of marijuana metabolites in the specimen, and when Brown filed a workers’ compensation claim for loss of earning during his period of impairment and hospital and medical bills, appellees Alabama Electric and Wausau Insurance Company denied benefits.

At a hearing before an administrative law judge (ALJ), Brown testified that he had not smoked marijuana after July 1, keeping a wedding promise to his wife. Two medical experts, Dr. H.H. Miller, PhD., a pharmacologist and director of toxicology for the laboratory that tested the specimen, and Dr. Henry F. Simmons, Jr., a toxicologist and medical doctor retained by Brown, agreed that the presence of marijuana metabolites in the urine did not prove or disprove the presence of marijuana in the system at the time of the accident, and that the laboratory test of the urine specimen could not reveal the last time that Brown had used marijuana.

The ALJ found that Brown had proved that he sustained his injury arising out of and in the course of his employment, and he awarded benefits to Brown. On appeal to the full Commission, the Commission determined that Brown had not met his burden of overcoming the statutory presumption that his injury was substantially caused by his use of illegal drugs. In a two-to-one decision, the Commission found that the presence of marijuana metabolites was sufficient to allow it to begin with the “assumption” that the accident was substantially caused by an illegal drug, and denied benefits to Brown.

Brown appealed to the Arkansas Court of Appeals, and a six-member panel of the court reviewed the case. Two members affirmed the Commission’s decision on the merits, while two members concurred with the result because the issues of the interpretation and constitutional validity of the statute were not properly raised before the Commission. One member of the court reached the merits and dissented, and another member concurred for other reasons. The plurality decision of the court of appeals affirmed the Commission’s decision.

We granted Brown’s petition for review. However, we have concluded that the abstract of the proceedings before the Commission does not show that the important issues of statutory construction or constitutional validity were ever presented to the Commission for its determination. Accordingly, we find that the petition for review was improvidently granted. The court of appeals’ decision in Brown v. Alabama Electric Company, 60 Ark. App. 138, 959 S.W.2d 753 (1998), remains the binding rule in this case.

Review denied.

Corbin, J., not participating.


author: Per Curiam.

text:
    Ronita Faith BELL v. STATE of Arkansas
    97-1004
    970 S.W.2d 806
    Supreme Court of Arkansas
    Opinion delivered July 2, 1998

      Steve Kirk, for appellant.
    No response.
   Per Curiam.

The facts of this matter, which concern the late filing of appellant’s brief by counsel, Steve Kirk, are set out in our per curiam opinion issued on March 26, 1998. See Bell v. State, 332 Ark. 432, 961 S.W.2d 36 (1998) (per curiam). We stated in that opinion that appellant’s counsel had asked for a final extension for filing his brief, been granted a final extension, and then missed the extension deadline, which was February 27, 1998. We ordered Mr. Kirk to appear before this court on April 9, 1998, to show cause why he should not be held in contempt of court due to the late filing.

At his appearance before this court on April 9, 1998, Mr. Kirk pled not guilty to contempt, and we appointed the Hon. Jack Lessenberry as master to make findings of fact and file them with this court. See Bell v. State, 332 Ark. 613, 962 S.W.2d 814 (1998) (per curiam). On May 26, 1998, the master filed his Report and Findings of Fact, the salient findings being:

The Clerk of the Supreme Court, by a letter dated January 15, 1998, informed Mr. Kirk of the ruling. The inside address of the letter was identical to the address used by Kirk in his motion.
At the hearing Kirk introduced an envelope of the Clerk addressed to Kirk bearing the case number of Ms. Bell and postmarked January 15, 1998. The address on the envelope was 701 Fifth Avenue, Suite 5000, Seattle, WA 98104-7078. Handwritten on the envelope was the message:
“Please have this address corrected — We are receiving a fair number of pieces of your mail.”
This envelope was received in evidence as Exhibit 2.
Mr. Kirk identified Exhibit 1 as the envelope in which Exhibit 2 was found. That envelope was postmarked January 21, 1998. Mr. Kirk did not testify to the date he received the exhibits. Perhaps it was not believed to be remarkable at that time.
By assuming that the letter from Washington took as much time as the Clerk’s letter to reach the Seattle law firm, Mr. Kirk may have received the Clerk’s letter on January 27, 1998.
The appeal record was supplemented on February 13, 1998.
It may be worthwhile to note that Michael L. Allison, Kirk’s co-counsel, was copied by the Clerk. However, in view of the exhibits this is not taken as proof that the letter to Mr. Allison was properly addressed or that Mr. Allison received the letter.
In short, the defense of Mr. Kirk was the fact that he was not timely made aware that the Supreme Court had ordered on January 15 that no additional extensions would be considered.

Mr. Kirk filed an Objection to the master’s Report and Findings of Fact on June 15, 1998, in which he said that he never received the letter from the Supreme Court Clerk stating that a final deadline had been set for his brief. He said in his Objection that he received only the opened envelope from the Washington State law firm. He also said that when he called the Supreme Court Clerk’s office for the deadline for his brief, he was not told that it was a final deadline.

In short, Mr. Kirk’s defense is that he never received the Clerk’s letter and was not advised orally that the deadline for his brief was final.

The facts, as developed by the master, concerning notice of a final extension are indefinite and not clear-cut. We hold, accordingly, that Mr. Kirk is not in contempt of court, and we dismiss the matter.


text:
    George Mitchell MOORE v. STATE of Arkansas
    CR 98-478
    970 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered July 2, 1998

      John R. Irwin, for appellant.
    No response.
   Per Curiam.

George Mitchell Moore, by his attorney, has filed a motion to file belated appeal.

His attorney, John R. Irwin, admits in his motion that the record was tendered late due to a mistake on his part.

We find an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion, which we shall treat as a motion for rule on the clerk. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

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


text:
    Alan WILLETT v. STATE of Arkansas
    CR 97-341
    970 S.W.2d 804
    Supreme Court of Arkansas
    Opinion delivered July 2, 1998

      Willaim M. Pearson and James S. Dunham, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   Per Curiam.

Alan Willett has appealed from a judgment of conviction of capital murder and sentence of death. Mr. Willett’s attorneys have moved to admit, pro hac vice, J. Thomas Sullivan, an attorney licensed in Texas, for the purpose of participating in the oral argument of the case before this Court. We deny the motion.

The motion recites that Mr. Sullivan has filed a reply brief in the case but does not state that he was admitted to the Arkansas bar for the purpose of doing so. The motion further recites that Mr. Sullivan is an attorney in good standing from another jurisdiction. It incorporates an affidavit of Mr. Sullivan and a certificate of good standing issued April 16, 1998, by the General Counsel of the State Bar of Texas.

In his affidavit, Mr. Sullivan states that he currently teaches at the University of Arkansas at Little Rock School of Law. The affidavit outlines Mr. Sullivan’s considerable practice experience in representing death-penalty defendants in courts of the United States, Texas, and New Mexico. It recites Mr. Sullivan’s familiarity with the rules of this Court and states that Mr. Sullivan agrees to be bound by this Court’s disciplinary rules if admitted pro hac vice.

Although neither Mr. Willett’s motion nor Mr. Sullivan’s affidavit mentions the concept of admission to practice through comity, we must presume that comity with the State of Texas is the basis of the motion, as we can think of no other. Our rule on practice by comity, which also is not mentioned in the motion or affidavit, is Rule XIV of the Rules Governing Admission to the Bar. It provides:

A lawyer residing outside the State of Arkansas who has been admitted to practice law in the Supreme Court of the United States or in the United States Court of Appeals for the circuit in which the attorney resides or in the Supreme Court or the highest appellate court of the state of the attorney’s residence, and who is in good standing in the court of the attorney’s admission, will be permitted by comity and by courtesy to appear, file pleadings and conduct the trial of cases in all courts of the State of Arkansas. However, any trial court may require such nonresident attorney to associate a lawyer residing and admitted to practice in the State of Arkansas upon whom notices may be served and may also require that the Arkansas lawyer associated be responsible to the court in which the case is pending for the progress of the case, insofar as the interest represented by the Arkansas lawyer and the nonresident lawyer is concerned.
Unless the State in which the said nonresident lawyer resides likewise accords similar comity and courtesy to Arkansas lawyers who may desire to appear and conduct cases in the courts of that State, this privilege will not be extended to such nonresident lawyer.
A nonresident lawyer will not be permitted to engage in any case in an Arkansas court unless a written statement is filed with the court in which the nonresident lawyer submits to all disciplinary procedures applicable to Arkansas lawyers.
This rule shall supersede Act 222 of the General Assembly of 1911, as amended ....

Although Rule XIV was apparently drafted to apply primarily in trial proceedings, we have applied it to govern appearances of counsel in appeals. Walker v. State, 274 Ark. 124, 622 S.W.2d 193 (1981); Walker v. State, 274 Ark. 325, 624 S.W.2d 439 (1981). When those cases were decided, the rule appeared in the Rules of Court Appendix to 3A Ark. Stat. Ann (Repl. 1979), and it read as it does now in every relevant respect. We recently mentioned the rule in connection with the appellate appearance of a nonresident attorney in Hicks v. State, 324 Ark. 450, 921 S.W.2d 604 (1996).

The motion to admit Mr. Sullivan is denied because it is deficient in two respects. First, the rule permits the admission pro hac vice of nonresident attorneys licensed in states that grant comity to Arkansas attorneys, but neither the motion nor the affidavit mentions whether Texas courts would allow Arkansas attorneys to appear by comity in an instance similar to this one. Second, the motion and affidavit do not state that Mr. Sullivan is “[a] lawyer residing outside the State of Arkansas,” and that is the rule’s initial requirement. Mr. Sullivan’s statement that he is a teacher at the UALR School of Law suggests that he resides in this State.

The reason that attorneys seeking to be admitted pro hac vice, based upon comity, must be nonresidents is to prevent attorneys who are not Hcensed in Arkansas from practicing law here ad hoc. If residents Hcensed elsewhere were permitted to practice in that manner, the exception could easily swaUow the rule.

While there is Httle doubt that Mr. SulHvan is qualified to represent Mr. Willett, it is equally apparent that there is a lack of compfiance with Rule XIV, and we have before us neither argument nor citation to authority suggesting that there is or should be an exception in this case.