author: Jack Holt, Jr., Chief Justice. Robert L. Brown, Justice,

text:
    Mary Francis MASTERSON, Administratrix of the Estate of Archie M. Masterson, Jr., Deceased, et al. v. David M. STAMBUCK, Jr., et al.
    94-1326
    902 S.W.2d 803
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995
    [Rehearing denied October 9, 1995.]

      Walker, Campbell, Ivory & Dunklin, by: Woodson D. Walker and Steven R. Walker; The McMath Law Firm, P.A., by: Paul E. Harrison and James Bruce McMath; and Jones & Tiller Law Firm, by: Marquis E. Jones, for appellants.

      Henry & Henry, by: Robert W. Henry, for appellees.

      Brown, J., would grant. Roaf, J., not participating.

   Jack Holt, Jr., Chief Justice.

This consolidated interlocutory appeal and cross-appeal involves claims for wrongful death arising out of a single incident. On June 6, 1990, Louis D. Macon, a City of Conway sanitation employee, was driving a garbage truck occupied by two other sanitation employees, Archie Masterson and Calvin H. McCray, on Blaney Hill Road, in Faulkner County, Arkansas, when a vehicle driven by separate defendant David M. Stambuck crossed the center line and struck the truck head on. The truck went off the road, striking a utility pole on the right-of-way which broke and fell on the cab of the truck. The pole was owned, installed, and maintained by appellee and cross-appellant Conway Corporation. Messrs. Masterson, Macon and McCray received fatal injuries as a result of the accident.

The Estates of Messrs. Macon, Masterson, and McCray brought separate suits for wrongful death, which included claims against Conway Corporation on the grounds that it was negligent in maintaining its utility pole too close to the highway in violation of standards allegedly recommended by American Association of State Highway and Transportation officials. Conway Corporation responded by filing motions on the pleadings and motions to be dismissed as a party defendant claiming both governmental and charitable immunity. Thereafter, the Estate of Louis Macon amended its complaint, asserting an alternative argument that Conway Corporation had violated the Arkansas Civil Rights Act of 1993, codified at Ark. Code Ann. § Í6-123- 105(a) (Supp. 1993), by depriving Mr. Macon of his life, to which Conway Corporation responded by filing a separate motion to dismiss.

All three cases were consolidated and submitted on affidavits and other documentary evidence to the trial court, who ordered that Conway Corporation be dismissed as a party defendant on the grounds that it was an arm of the City of Conway and acted in a governmental capacity, and was therefore immune from tort liability. In doing so, the trial court made further findings that Conway Corporation was not immune from liability in tort as a qualified charitable corporation and that the Arkansas Civil Rights Act was inapplicable to the matters at hand.

The court designated its order as final and appealable pursuant to Ark. R. Civ. P. 54(b), specifically finding that the parties and the courts would be subjected to two lengthy jury trials should its order be reversed on appeal, which would cause great hardship in time and expense and thus a great injustice upon all parties concerned. The appellants filed separate notices of appeal and Conway Corporation filed a notice of cross-appeal; thereafter, this court granted Conway Corporation’s motion to consolidate the cases for purposes of appeal.

The appellants’ arguments are as follows: (1) that the trial court erred in granting Conway Corporation’s motion to dismiss, as Conway Corporation is not entitled to governmental immunity under Ark. Code Ann. § 21-9-301 (1987) as an arm of the City of Conway; (2) that the trial court erred in granting Conway Corporation’s motion to dismiss on the grounds that Conway Corporation has governmental immunity under Ark. Code Ann. § 21-9-301, as such an application of the statute violates Article 2, section 13 of the Arkansas Constitution, which provides that there should be no wrong without a remedy; (3) that governmental immunity contravenes the rights guaranteed by the Fifth Amendment to the United States Constitution; (4) that Conway Corporation waived its proported governmental immunity; and (5) that the trial court erred in dismissing the claim for relief against Conway Corporation based on Arkansas’s Civil Rights Act of 1993. On cross-appeal, Conway Corporation asserts that the trial court erroneously ruled that it is not immune from liability for tort as a qualified charitable organization. We reverse the trial court’s finding on the first issue, as the facts reflect that Conway Corporation is not entitled to governmental immunity under Ark. Code Ann. § 21-9-301 (1987), and affirm its ruling on cross-appeal that Conway Corporation is not entitled to charitable immunity. In so holding, it is unnecessary to address the remaining arguments of the parties.

I. Direct appeal governmental immunity

The Estates of Archie Masterson, Louis Macon, and Calvin McCray assert that the trial court erred in granting Conway Corporation’s motion to be dismissed as a party defendant inasmuch as it was an arm of the City of Conway, and thus immune from liability for actions in tort pursuant to Ark. Code Ann. § 21-9-301 (1987). Before addressing the merits of this argument, we note that the trial court considered matters outside of the parties’ complaints to reach its conclusions, and for this reason, we treat the trial court’s ruling as the granting of summary judgment. If matters outside the pleadings are presented and not excluded by the court, the motion to dismiss will be treated as one for summary judgment. Rankin v. Farmers Tractor & Equip. Co., 319 Ark. 26, 888 S.W.2d 657 (1994). See also Ark. R. Civ. P. 12(b) and (c).

We review motions for summary judgment as follows: (1) summary judgment is a remedy that should be granted only when it is clear that there is no genuine issue of material fact to be litigated; (2) the burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion; (3) any doubts and inferences must be resolved against the moving party; (4) the burden in a summary judgment proceeding is on the moving party and cannot be shifted when there is no offer of proof on a controverted issue; and (5) when the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing genuine issue as to a material fact. Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995).

The question before us is whether the trial court properly granted Conway Corporation’s motion to dismiss, which we treat as a motion to grant summary judgment, in favor of Conway Corporation on the grounds that it was entitled to immunity under Act 165 of 1969, codified at Ark. Code Ann. § 21-9-301 (1987). On cross-appeal, the issue presented to us is whether the trial court erred in ruling that Conway Corporation was not immune from liability for tort as a qualified charitable organization.

Arkansas Code Annotated § 21-9-301 (1987) reads as follows:

It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state shall be immune from liability for damages. No tort action shall lie against any subdivision because of the acts of their agents and employees.

(Emphasis added.) In an answer to requests for admissions, Conway Corporation admitted that it is not a political subdivision, yet it maintains that it is entitled to governmental immunity under this statute on the basis that it is an “arm” of the City of Conway. Obviously, we find no language in this statute which provides that a municipal corporation may extend its tort immunity to its so-called “arm.” The basic rule of statutory construction is to give effect to the intent of the legislature, and when a statute is clear, it is given its plain meaning; the legislative intent is gathered from the plain meaning of the language used. Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995), citing Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994). The statute provides for tort immunity for “all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions.” Conway Corporation does not fall within any of these enumerated categories, nor does the statute provide immunity for “arms” of municipal corporations or the other named entities.

We disagree with Conway Corporation that we have previously resolved this issue in its favor in Conway Corp. v. Construction Eng’rs, Inc., 300 Ark. 225, 782 S.W.2d 36 (1989). In fact, we specifically declined the invitation to decide whether Conway Corporation was entitled to governmental immunity under section 21-9-301, while holding that contracts let by Conway Corporation were exempt from requirements that public improvement contracts be awarded to the lowest bonded bidder pursuant to Ark. Code Ann. § 19-11-403 and 404 (1987). We stated, in dicta, as follows:

Although the Conway Corporation is not, strictly in name, a utility commission, that is what it is; it performs the same duties as a commission in managing and operating a municipal waterworks.

300 Ark. at 230.

Following our comments in Conway Corp. v. Construction Eng’rs, Inc., supra, we recognize that Conway Corporation performs the same duties as a utility commission. Yet, when we look at the Corporation’s articles of incorporation, we note that it was “organized for benevolent purposes and especially for the promotion of education and aiding educational institutions in the City of Conway,” and that it was authorized to adopt laws and regulations for the corporation not inconsistent with its articles. Thereafter, the City of Conway granted Conway Corporation a franchise to operate an electrical plant facility within the City of Conway. By its own admission, Conway Corporation was created to operate Conway’s electrical system for the stated purpose of providing financial assistance to Hendrix College, a college owned and operated by the United Methodist Church, and Central Baptist College, so that they would not leave the City. To this end, the Corporation issued $215,000 in bonds against its earnings, and distributed the proceeds as follows: (1) $150,000 to Hendrix College; (2) $43,000 to Central Baptist College; (3) $2000 to Arkansas State Teachers College; and (4) and (5) $10,000 each to Conway Public Schools and St. Joseph’s Parochial School. Specifically, the $150,000 was given to Hendrix College to meet a contract made between the college and the Chamber of Commerce to cause the college to remain within the City, and the $43,000 was given to Central Baptist College to pay off that school’s indebtedness.

According to the affidavit of William H. Hegeman, General Manager of Conway Corporation, the current lease and franchise to the corporation were adopted by the City of Conway in Ordinances 79-24 and 79-25, respectively, for a term beginning June 1, 1979, and ending May 31, 2009. The lease provides for an annual rental of $120,000 and requires the Corporation to maintain, free of charge, all street lights, the City Hall, and all other public buildings. It also requires that the Corporation provide an adequate supply of electric power to the city, and to expand the system as the City’s needs increase. The franchise grants the Corporation the exclusive right to operate an electric system in the city.

Pursuant to City Ordinance 86-11, the Corporation now operates Conway’s waterworks system and sanitary sewer or waste water disposal system, for which it is paid $8000 per year by the City, and $2500 per year, respectively. Also, the City has granted the Corporation, similar to the electric system, a franchise to operate a cable television system, for which the City is repaying the loan from the Corporation for its construction. In return, according to the affidavit of Mr. Hegeman, from 1987 to 1991, the Corporation made various contributions to education in Conway which included a $45,000 contribution to Central Baptist College to aid in its building program.

As an aside, we note that in 1945, the Internal Revenue Service declared that the Corporation was exempt from taxation “as an organization not organized for profit but operated for the promotion of social welfare.” In 1965, the IRS clarified that the Corporation was exempt as “an integral part of an instrumentality of the State of Arkansas, specifically the municipality of Conway.” The Corporation is also exempt from the payment of state income tax.

Be this as it may, we disagree that Conway Corporation is entitled to governmental immunity. Its articles of incorporation and the general manager’s testimony reflect that the original purpose of the Corporation was to provide money to Hendrix College and Central Baptist College to keep these institutions from leaving the City of Conway. Yet the present relationship between the City of Conway and the Corporation as franchisor-franchisee rebuts the contention that the Corporation is entitled to immunity.

The dissent acknowledges that in Conway Corporation v. Construction Engineers, Inc., supra, we declined to reach the issue of whether the Corporation was exempt from liability under section 21-9-301, yet it takes solace in the language of emergency clause found in Act 165 of 1969, by noting that it was the General Assembly’s intent to afford immunity to “municipalities and all units of local government.” The dissent bolsters its position by making reference to the fact that in Adams v. Bryant, 236 Ark. 859, 370 S.W.2d 432 (1963), we stated that the Clarksville Light and Water Commission was an agent of the City, and that later, in Paragould Cablevision, Inc. v. City of Paragould, 305 Ark. 476, 809 S.W.2d 688 (1991), we held that the Paragould Light and Water Commission was an agent of the City, and was endowed with the authority to acquire and operate a cable television system. We further noted in Adams that the City had the power to operate and maintain certain utilities by statute (now codified as Ark. Code Ann. § 14-91-401 (1987)), and that the City could designate its agent to carry out executive and administrative functions with respect to these utilities. From a reading of the emergency clause and the reference to the respective Commissions as being “agents” in their respective cities, the dissent wrongly claims that the status of Conway Corporation is clear, and that it falls within the umbrella exemption from tort action set out in section 21-9-301.

The dissent overlooks that, unlike Conway Corporation, both agencies in Adams and Paragould Cablevision were creatures of statute. In Adams, Clarksville’s Light and Water Commission was created pursuant to section 14-91-402, which gives cities the express statutory power to own and operate a public utility. Similarly, in Paragould Cablevision, the Paragould Light and Water Commission was created pursuant to Act 70 of 1941, and later reestablished under Act 562 of 1953, codified at Ark. Code Ann. § 14-201-201 et seq. (1987). In sharp contrast, Conway Corporation was formed and incorporated as a not-for-profit corporation for benevolent purposes, and, particularly, to aid the educational institutions located in the City of Conway.

In the first place, the Corporation pays the City an annual $120,000 rental fee for the franchise. It is also evident, when examining the statutory requirements for the structure of a utility commission set forth in section § 14-201-105, that Conway Corporation does not satisfy these criteria. For example, the terms of the directors are not staggered for two years; new members are not required to be appointed by the mayor; and new directors may be approved by a simple majority of the city council rather than by the two-thirds majority required by the statute. See Ark. Code Ann. §§ 14-201-105(b), (d), (e), and (f).

Conway Corporation was not created pursuant to statute; in fact, it has operated and continues to operate outside of the statutory boundaries of a utility commission as permitted by our Code. More importantly, the statute itself does not provide immunity for “arms” of a city or municipal corporation. Thus, it cannot be said that the Conway Corporation is entitled to immunity under Act 165 of 1969. Under these circumstances, we hold that the trial court erred in granting summary judgment on the grounds that Conway Corporation had governmental immunity from actions in tort.

V7. Cross-appeal charitable immunity

On cross-appeal, Conway Corporation asserts that the trial court erroneously ruled that it is not immune from liability for tort as a qualified charitable organization. Although we have not abolished the doctrine of charitable immunity, we give the doctrine a very narrow construction. See Williams v. Jefferson Hospital, 246 Ark. 1231, 442 S.W.2d 243 (1969). While we have not previously announced particular guidelines for considering whether an organization is entitled to charitable immunity, and recognize that cases in this regard are limited in number, we find the following list of factors considered in Davidson v. Colo nial Williamsburg Foundation, 817 F. Supp. 611, 614 (E.D. Va. 1993), instructive and proper for adoption: (1) whether the organization’s charter limits it to charitable or eleemosynary purposes; (2) whether the organization’s charter contains a “not-for-profit” limitation; (3) whether the organization’s goal is to break even; (4) whether the organization earned a profit; (5) whether any profit or surplus must be used for charitable or eleemosynary purposes; (6) whether the organization depends on contributions and donations for its existence; (7) whether the organization provides its services free of charge to those unable to pay; and (8) whether the directors and officers receive compensation. In adopting this list of factors, we recognize, as did the Virginia district court in Davidson, that this list is “illustrative, not exhaustive, and no one factor is dispositive.” Id.

Considering Conway Corporation in light of these factors, we agree with the trial court’s ruling that the Corporation is not entitled to charitable immunity. Granted, it is true that the Corporation articulated a charitable purpose in its articles of incorporation, as it stated that it was formed to aid educational institutions in the City of Conway, for which it was granted an exemption from both federal and state income taxation. Yet when measured against the aforementioned factors, Conway Corporation simply cannot be characterized as “charitable.”

First, while Conway Corporation was created for charitable purposes, its directors have the authority to amend its articles of incorporation. Granted, the Corporation has in fact aided the City’s educational institutions in accordance with the terms of its articles of incorporation. However, it has purchased fire trucks and the land for a city park in contravention to the articles. Other expenditures of the Corporation not authorized in the articles have included funds to purchase lands on which the Conway Human Development Center is located. In this vein, we recognize and adopt the position taken by the Arkansas Court of Appeals that, unless an entity performs as its articles state, it will not be entitled to charitable immunity. J. W. Resort, Inc. v. First American National Bank, 3 Ark. App. 290, 625 S.W.2d 557 (1981).

Second, the articles of incorporation do not contain a “not-for-profit” limitation; rather, the articles state that any profits must pass directly to the City as a cost of operation. In looking to whether the Corporation earned a profit, Conway Corporation’s financial records from 1987 to 1991 indicate that the percentage of revenues it donated was less than one half of one percent in two of those years, and never exceeded 2.65 percent during that time period. Moreover, the Corporation’s average revenues for this time period was well over 20 million dollars per year, with net income for 1988 and 1989 being $1,885,358 and $1,759,780, respectively.

It is also significant that, when looking at the fifth factor as to whether the Corporation’s profits must be used to charitable purposes, the articles of incorporation do not require that the City use the money for a benevolent purpose. We have considered this factor as probative in Burgess v. Four States Memorial Hospital, 250 Ark. 485, 465 S.W.2d 693 (1971), where we stated that an organization is entitled to charitable status if its receipts are held in trust for the furtherance of its charitable purposes.

While it is true that Conway Corporation’s directors and officers do not receive compensation, it appears that the Corporation depends on rates from customers for electric service, rather than contributions and donations, for its existence, and that it does not provide free service to customers who are unable to pay for electric and other services that the Corporation provides.

A simple overview reveals that Conway Corporation was formed to advance the economy of the City by keeping two parochial colleges within its limits. From there, it has grown into a commercial enterprise with a yearly net income near two million dollars, with omnibus “donations” to non-benevolent city concerns such as fire trucks, a city park, and the like. Under the totality of the relevant facts and circumstances, the trial court did not err in concluding that Conway Corporation was not entitled to charitable immunity.

Reversed and remanded on direct appeal; affirmed on cross-appeal.

Brown, J., dissents.

Roaf, J., not participating.

Robert L. Brown, Justice,

dissenting. In 1969, in the aftermath of Parrish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), the General Assembly enacted Act 165 of 1969, now codified at Ark. Code Ann. § 21-9-301 (Supp. 1993). That Act was later amended by Act 542 of 1991 and Act 292 of 1993. It now reads:

It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state shall be immune from liability and from suit for damages, except to the extent that they may be covered by liability insurance. No tort action shall lie against any such political subdivision because of the acts of its agents and employees. (Emphasis added.)

The reasoning behind Act 165 was expressed in its Emergency Clause in 1969:

SECTION 4. It is hereby found and determined by the General Assembly that because of the decision of the Arkansas Supreme Court in Parish v. Pitts, 244 Ark. 1239, municipalities and all units of local government are in imminent danger of bankruptcy because of tort lawsuits and vital public services are in danger of being discontinued. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary to protect the public peace, health and safety, shall take effect immediately on its passage and approval.

The pivotal question in the case at hand is whether the Conway Corporation, with the exclusive franchise to operate the City’s electric system, was an agent of the municipal corporation so to be exempt from a tort action under § 21-9-301. I conclude, to the extent it operates as a utility commission, it is an agent of the City.

In a case decided by this court in 1989, we stated with regard to the same Conway Corporation:

Although the Conway Corporation is not, strictly in name, a utility commission, that is what it is; it performs the same duties as a commission in managing and operating a municipal waterworks. See Ark. Code Ann. § 14-234-306 (1987).

Conway Corp. v. Construction Engineers, Inc., 300 Ark. 225, 230, 782 S.W.2d 36, 39 (1989). We declined in that case to reach the issue of whether it was exempt from liability under § 21-9-301.

In Paragould Cablevision, Inc. v. City of Paragould, 305 Ark. 476, 809 S.W.2d 688 (1991), we acknowledged that the Paragould Water and Light Commission which was endowed by the City of Paragould with the authority to acquire and operate a cable television system was an agent of the City. In an earlier case, Adams v. Bryant, 236 Ark. 859, 370 S.W.2d 432 (1963)), we stated that the City Light and Water Commission was an agent of the City of Clarksville. We noted that the City had the power to operate and maintain certain utilities by statute [now codified at Ark. Code Ann. § 14-91-402 (1987)] and that the City could designate its agent to carry out executive and administrative functions with respect to those utilities. Here, Conway Corporation is vested by the City of Conway with the authority to provide electrical service to the residents of that City. Operating in that capacity, it is no less an agent of the City than the Paragould Water and Light Commission or the City Light and Water Corporation in Clarksville.

Act 165, as amended, is clear and the status of Conway Corporation is clear. As an agent of the City, I would hold that Conway Corporation falls under the umbrella exemption from tort action set out in § 21-9-301.

I respectfully dissent.

      We do not address the subissue presented by the appellants as to whether providing such funds would be a permissible activity for the City under the Establishment Clause of the First Amendment, as the appellants have not provided us with sufficient evidence to show the extent to which these colleges are church related. As the United States Supreme Court stated in Tilton v. Richardson, 403 U.S. 672 (1971), formal denominational control over a liberal arts college does not render all aid to the institution a violation of the Establishment Clause. Moreover, the burden rests on appellants to show the extent to which Hendrix College and Central Baptist College are church related, and since they have failed to show more that a formalistic church relationship, we cannot base our holding on appellants’ subissue. Board of Education v. Allen, 392 U.S. 236 (1968).

      These factors are similar to those applied by the Arkansas Court of Appeals in determining whether a particular hospital is an institution maintained and wholly operated for charity:
      (1) Do the articles of incorporation provide that the purpose of the hospital is charitable in nature?
      (2) Is the corporation maintained for the private gain, profit or advantage of its organizers, officers or owners whether directly or indirectly?
      (3) Does the hospital have capital stock or does it have provisions for distributing dividends or making a profit?
      (4) Does the hospital derive its funds from public and private charity as well as those who are able to pay?
      (5) Do all “profits” go toward maintaining the hospital and extending and enlarging its charity?
      (6) Is the hospital open to all who are not pecuniarily able?
      (7) Are those patients who are unable to pay received into the hospital without charge, without discrimination on account of race, creed or color and are they given the same care as those who are able to pay?
      (8) Is the hospital exempt from the payment of both state and federal taxes?

        Marion Hospital Ass’n v. Lanphier, 15 Ark, App. 14, 688 S.W.2d 322 (1985).


source: Caselaw Access Project

author: Robert H. Dudley, Justice. Andree Layton Roaf, Justice,

license: Public Domain

text:
    F.G. “Buddy” VILLINES, Pulaski County Judge, et al. v. Linda H. LEE, et al.
    94-1244
    902 S.W.2d 233
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995
    [Rehearing denied September 18, 1995.]

      Nelwyn Davis, Pulaski County Attorney, and Karla Burnett, Staff Attorney, for appellants.

      The Perroni Law Firm, P.A., by: Samuel A. Perroni and J. Nicole Graham, for appellees.

      Brown and Roaf, JJ., would grant.

   Robert H. Dudley, Justice.

Circuit Judge Marion Humphrey granted administrative leave to the court’s secretary, case coordinator, bailiff, assistant bailiff, probation officer, and law clerk from May 24th to June 4, 1993, while the court’s chambers and courtroom were being relocated in the Pulaski County Courthouse. County Judge F.G. “Buddy” Villines later learned that the circuit court employees had not worked during the two-week period and advised Judge Humphrey that he had been without authority to grant administrative leave to the court employees because Pulaski County’s personnel policy, adopted by ordinance, provides that a county employee must work forty hours to receive a full week’s pay. The statutes creating the circuit court positions provide, “The employees covered by this subsection shall be treated by Pulaski County in the same manner as other Pulaski County employees for all other purposes.” Ark. Code Ann. §§16-13-1409(d)(4), -1410(d)(4), -1411(d)(4), -1412(d)(4), -1413(d)(2), and -1414(d)(4) (Repl. 1994). The Circuit Judge apparently did not agree that the statutes could constitutionally provide that circuit court employees are county employees, and the two judges were unable to resolve the matter. The County Judge subsequently contacted each of the circuit court employees and asked whether the employee wanted to forfeit part of his or her vacation time or have his or her compensation adjusted to make up for the unauthorized leave. Each refused to agree to forfeiting either vacation time or compensation. The County Judge, acting in his executive capacity, directed the County Comptroller, Jean Rolfs Fulwider, to deduct either vacation time or compensation from each of the employees. The Comptroller prepared an accounting that reflects the amount of vacation time or compensation, or combination of both, that is to be deducted from each court employee.

The circuit court employees, apparently assuming that the deductions set out in the accounting were about to be implemented, filed this suit in chancery court against the County Judge and the County Comptroller, and sought a temporary restraining order and permanent injunction against economic losses that “will result” or “have resulted” to them. The chancellor entered a temporary restraining order and then a permanent injunction preventing the County Judge and the County Comptroller from deducting the employees’ vacation or compensation time.

We reverse the ruling because the chancery court was without subject-matter jurisdiction to enjoin the County Judge and County Comptroller from acting in their executive capacities. Subject-matter jurisdiction is determined from the pleadings. McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992). When subject-matter jurisdiction is lacking, we raise the issue on our own motion. Mertz v. States, 318 Ark. 390, 885 S.W.2d 853 (1994). Here, there is no pleading giving chancery court subject-matter jurisdiction. The general rule is that a court of chancery is without jurisdiction to judicially review the discretionary functions of the executive branch of government. Bryant v. Mathis, 310 Ark. 737, 839 S.W.2d 528 (1992). If the general rule were otherwise, it would violate the separation of powers as the judicial branch could then direct the discretionary functions of the executive branch. However, there are limited exceptions to the general rule. A court of chancery is empowered to prevent a member of the executive branch from acting ultra vires, in bad faith, or arbitrarily. Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984); Toan v. Falbo, 268 Ark. 337, 595 S.W.2d 936 (1980). In addition, 42 U.S.C. § 1983 gives a court of equity the power to enjoin governmental agencies and officials from depriving people of constitutional rights. Arkansas State Medical Bd. v. Leipzig, 299 Ark. 71, 770 S.W.2d 661 (1989). There is no allegation in this case that the County Judge and County Comptroller are about to act ultra vires, in bad faith, or arbitrarily, or to deprive the employees of constitutional rights.

In Toan v. Falbo, 268 Ark. 337, 595 S.W.2d 936 (1980) we wrote:

We have recognized that equity has jurisdiction to enjoin or restrain officers of state agencies from acts which are ultra vires or beyond the scope of their authority. Harkey v. Matthews, 243 Ark. 775, 422 S.W.2d 410 (1967). Arkansas State Game and Fish Commission v. Eubank, 256 Ark. 930, 512 S.W.2d 540 (1974). We have also held an agency may be enjoined if it is about to do an act in bad faith, arbitrarily, capriciously, wantonly, or injuriously. Gray v. Ouachita Creek Watershed District, 234 Ark. 181, 351 S.W.2d 142 (1961).
On the other hand, we have held a court of equity is without jurisdiction to issue an injunction preventing a board or commission from hearing a case where the board or commission had jurisdiction. Eclectic State Medical Board v. Beatty, 203 Ark. 294, 156 S.W.2d 246 (1941). We held that proper procedure was for persons affected to seek court review of the commissioner’s ruling if the person felt the proceeding was arbitrary or otherwise illegal. The chancery court was held without jurisdiction to prohibit a coroner from performing his statutory duties of investigating a death under circumstances that indicated foul play. Potter v. Citty, 257 Ark. 276, 516 S.W.2d 597 (1974). The chancery court was without jurisdiction to enjoin a landowner from interfering with the Game and Fish Commission surveying land for a proposed project. Robinson v. Arkansas Game & Fish Commission, 263 Ark. 462, 565 S.W.2d 433 (1978).

Id. at 338-39, 595 S.W.2d at 937-38. Thus, chancery court is not empowered to issue an injunction against the County Judge and County Comptroller in this case.

The more difficult question is whether to dismiss or to remand for the chancery court to transfer to circuit court because the pleadings do not set out enough detail for us to determine whether the matter should have been in county court or circuit court originally. The proof in the case does not show that the County Judge and County Comptroller have actually deducted any compensation from the employees and have not yet refused to allow them to take paid vacations: rather, it indicates that they will do so in the future. If the compensation of the employees were already deducted, and if they were seeking to claim it, they would be required to file a claim in county court. Ark. Const, art. VII, § 28, amend. 55. In implementation of the Constitution, Ark. Code Ann. § 14-14-1203 (1987) provides:

All compensation, including salary, hourly compensation, expense allowances, and other remuneration, allowed to any county or township officer, or employee thereof, shall be made only upon claim or voucher presented to the county judge and approved by him in the manner prescribed by law for disbursement of county funds.

Id. § 14- 14-1203(b).

An appeal from county court would be to circuit court. Ark. Const, art VII, § 33; Sharp County v. Northeast Arkansas Planning & Consulting Co., 275 Ark. 172, 628 S.W.2d 559 (1982).

However, if, as it appears, the Comptroller prepared an accounting that shows the amounts that will be deducted from the employees’ compensation and leave time in the future, the County Judge intends to enforce that document in the future, and this suit is to prevent the County Judge and Comptroller from performing that act, then this amounts to an action for mandamus. Mandamus will not lie in chancery court as it is exclusively within the subject-matter jurisdiction of circuit court. Arkansas State Police Comm’n v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1972). A petition praying that a County Judge be compelled to do an act is a petition for a writ of mandamus to be heard in circuit court, and chancery court is wholly without subject-matter jurisdiction to hear such a case. Parker v. Saline County, 288 Ark. 108, 702 S.W.2d 7 (1986).

Since it appears that subject-matter jurisdiction is in circuit court rather than county court, we do not dismiss this case. Rather, we remand to the chancery court with directions to transfer the case to circuit court. Davidson, 252 Ark. at 142, 477 S.W.2d at 855; Ark. Code Ann. § 16-57-104 (1987).

Reversed and remanded for transfer to circuit court.

Holt, C.J., not participating.

Brown and Roaf, JJ., dissent.

Glaze, J., concurs.

Andree Layton Roaf, Justice,

dissenting. Once again we have litigants caught short in the morass of subject-matter jurisdiction between our chancery and circuit courts. And once again this has occurred after trial on the merits, without either party or the trial court detecting that there might be a problem with jurisdiction; the parties do not even raise the issue on appeal.

Of course, we have repeatedly addressed this issue. We have said that it is well established that subject-matter jurisdiction is determined from the pleadings. Maroney v. City of Malvern, 320 Ark. 671, 899 S.W.2d 476 (1995). Further, subject-matter jurisdiction is given to a particular court by the Arkansas Constitution. Id. Finally, it is settled law that subject-matter jurisdiction, if lacking, cannot be induced simply because there is no objection. J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 836 S.W.2d 853 (1992). However, that general rule applies only where jurisdiction could not “under any circumstances” exist or where chancery court is “wholly incompetent to grant the relief sought.” Id.

In Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), we noted that our cases demonstrate that we have come to the position that unless the chancery court has no tenable nexus whatever to the claim in question we will consider the matter of whether the claim should have been heard there to be one of propriety rather than one of subject matter jurisdiction. We will not raise the issue ourselves, and we will not permit a party to raise it here unless it was raised in the trial court. Id. Thus, unless the chancery court has no tenable nexus whatever to the claim in question, we will consider the matter of whether the claim should have been heard there to be one of propriety rather than subject matter jurisdiction. McCoy v. Munson, 294 Ark. 488, 744 S.W.2d 708 (1988).

In the instant case, the appellees sought an injunction to prevent the appellants from docking their accrued vacation and compensatory time for 56 hours that appellees allegedly “did not work.” An injunction is a command by a court to a person to do or refrain from doing a particular act; it is mandatory when it commands a person to do a specific act, and prohibitory when it commands him/her to refrain from doing a specific act. Butler v. State, 311 Ark. 334, 842 S.W.2d 434 (1992). Further, an injunction is an equitable remedy of which a chancery court has jurisdiction. Manitowoc Remfg., Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991). In addition, the appellees asserted they had no adequate remedy at law. The appellees also asserted that appellant Villines should be estopped from denying the appellees’ compensation because of his delegation of authority to Judge Humphrey to supervise and direct appellees in the performance of their duties. Estoppel in pais is the doctrine by which a person may be precluded by his acts or conduct or by failure to act or speak under circumstances where he should do so, from asserting a right which he otherwise would have had. Daves v. Hartford Accident & Indem. Co., 302 Ark. 242, 788 S.W.2d 733 (1990). Our case law is quite clear that estoppel in pais or equitable estoppel may be pled in both courts of equity and courts of law. Northwestern Nat’l Life Ins. Co. v. Heslip, 302 Ark. 310, 790 S.W.2d 152 (1990). Where subject-matter jurisdiction is concurrent, the issue is one of propriety, not one of subject-matter jurisdiction, and unless the propriety of filing the action is raised by the parties, we will not consider it. See Liles, supra.

The majority characterizes appellees’ suit as an action for mandamus. A party seeking a writ of mandamus must show a specific legal right and the absence of any other adequate remedy. State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995). Mandamus is an appropriate remedy when a public officer is called upon to do a plain and specific duty, which is required by law, and which requires no exercise of discretion or official judgment. Sanders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995). The fact that an injunction may be, in effect, equivalent to a writ of mandamus should not be relied upon to defeat subject-matter jurisdiction in this instance.

We did not do so in Venhaus v. Adams, 295 Ark. 606, 752 S.W.2d 20 (1988), a case which involved an appeal from a judgment of the Pulaski County Chancery Court granting judgment for overtime pay to employees of the county sheriff’s office. Appellants were the county judge and Pulaski County. This case was decided on the merits and reversed and dismissed, without any discussion of the jurisdiction of the chancellor to hear this matter. Nor did we raise the issue in Venhaus v. Bd. of Education of Pulaski Co., 280 Ark. 441, 659 S.W.2d 179 (1983), in which the appellee sought and obtained an injunction against the county for office rent charged against school tax monies collected. The chancellor’s decision to issue the injunction and order the monies refunded was upheld by this court.

Finally, although it states that as a general rule, equity does not undertake the revision or supervision of governmental action lawfully exercised through the legislative or executive or administration departments, 42 Am. Jur. 2d Injunctions § 176 (1969) also provides that injunction may lie under special circumstances, and when necessary to the protection of property or other rights of individuals or the public against irreparable injury. For the foregoing reasons, I do not agree that the chancellor in this case was “wholly incompetent” to grant the relief sought and would reach the merits of this case.

I respectfully dissent.

Brown, J., joins in this dissent.


author: Tom Glaze, Justice. Robert H. Dudley, Justice, David Newbern, Justice, Andree Layton Roaf, Justice,

text:
    Elizabeth Gammon BROWN v. STATE of Arkansas
    CR 94-1430
    903 S.W.2d 160
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995
    [Rehearing denied September 11, 1995.]

      John H. Bradley, for appellant.

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

On February 2, 1994, the Arkansas State Police, Osceola Police Department and Blytheville Police Department worked together with confidential informant Barbara Williams to make a cocaine buy. On that night, between 6:00 and 6:30 p.m., State Trooper Dwight Lee accompanied Williams, who was wired with a body mike, as she drove her vehicle to 122 E. Seemes in Osceola. Williams pulled up to the front of the residence, exited the vehicle and knocked on the door. Williams and Trooper Lee later described the person who answered the door to be a black female, approximately five feet, one inch, 195 pounds, and known as the appellant Elizabeth Brown. Williams entered the house, but left the door open. The porch light was on and Trooper Lee, sitting in the vehicle only ten to fifteen feet away, witnessed the two women talking. Lee saw an exchange take place whereby Williams gave money to Brown, and Brown gave something in return. Williams then walked directly back to Trooper Lee and gave him two rocks of crack cocaine. Williams had known Brown prior to this drug transaction and later described Brown as the one who sold her the cocaine. In describing the sale, Williams testified, “I don’t think the door was open where Officer Lee could see this. I can’t say.” In this one respect, Williams’s version differed from Trooper Lee’s, who said he had seen the sale.

The state later charged Brown with having unlawfully delivered cocaine in exchange for $60.00. Brown was also charged with being a habitual offender.

At trial, the state presented Williams’s and Trooper Lee’s testimonies, supporting their respective views of Brown’s sale and delivery of cocaine to Williams. In addition, Officer Mike Marshall was allowed, over Brown’s objections, to testify that he had recorded the February 2, 1994 sale as it was broadcast over Williams’s body microphone. Marshall also related that he had known Brown for five years and was able to identify her voice. Brown objected, arguing that the tape was unintelligible and that Marshall was not qualified to identify Brown’s voice patterns.

Brown then presented her case-in-chief and her entire defense was one of alibi. She and other witnesses testified that she was working at a cafe at the time the state alleged she sold the cocaine to Williams. At the end of her case, Brown offered instructions AMCI 2d 301 and 302 on the lesser included offense of possession of cocaine, and the trial judge denied them. The jury subsequently returned a verdict of guilty and sentenced Brown as a habitual offender to fifty years imprisonment. On appeal, Brown contends the trial court erred in denying her lesser-included instructions and allowing Officer Marshall’s testimony. We affirm.

In her first argument, Brown cites Whitner v. State, 311 Ark. 377, 843 S.W.2d 853 (1992), for the proposition that the offense of delivery of a controlled substance includes the lesser-included offense of possession and that being so, a simple possession instruction should have been given the jury. While she recognizes that Whitner and other precedent permit a trial court to reject such lesser-included instructions where no rational basis is presented, Brown argues a rational basis existed here. In sum, Brown says that a glaring conflict exists between Williams’ and Trooper Lee’s testimonies bearing on whether Lee actually saw the drug sale — Lee said he saw it and Williams testified no one else could have seen it. Brown concludes that, without the lesser-included instructions, the jury was prevented the opportunity to believe that there was no transfer of money or anything of value as required by the charge of delivery of a controlled substance.

Brown’s argument ignores the fact that all of the state’s witnesses placed Brown at the crime scene on February 2, 1994, although Williams gave testimony that, in her view of what happened, no one else could have seen the drug sale except her. Regardless of Williams’s statement in this respect, we conclude that, under any objective review of the state’s case, Brown was clearly described as the person making the drug sale on February 2. Even more significant, Brown’s entire defense was based upon alibi and her contention that she was innocent of selling cocaine to Williams because she was elsewhere at the time of the crime and could not have been the woman Williams claimed sold her the cocaine.

The case of Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984), is an alibi case which supports the trial judge’s ruling here. In Roberts, the defendant was charged with theft, but he asked for the lesser-included offense of theft by receiving. This court held that Roberts’ instruction request was inconsistent with his own proof and that, because his alibi witnesses were offered to establish he had committed no theft, his request for the lesser-included offense of theft by receiving was not rational. Here, likewise, because Brown’s proof established she was elsewhere and innocent of participating in the cocaine transaction with Williams, it defies common sense to give the jury the possession of cocaine instruction she requested. In other words, if Brown was not present when the drug sale occurred, she logically could not be present and participate in a lesser offense. Such a proffered instruction could do nothing but confuse a jury. Thus, we hold the trial court was correct in refusing it.

In sustaining the trial court’s ruling, we continue to hold that it is not error for the court to refuse or fail to instruct on the lower offense, where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Over the past century, Arkansas cases have wisely and consistently applied this legal principle. See Mitchell v. State, 314 Ark. 343, 862 S.W.2d 254 (1993); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992); Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992); Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986); Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984); Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982); Lovelace v. State, 276 Ark. 463, 637 S.W.2d 548 (1982); Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977); Parker v. State, 258 Ark. 880, 529 S.W.2d 860 (1975); Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972); Clark v. State, 169 Ark. 717, 276 S.W. 849 (1925); Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918); Crenshaw v. State, 271 Ark. 484, 609 S.W.2d 120 (Ark. App. 1980). While dissenting opinions in Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), and now this case suggest this rule of law be overruled, we simply fail to find good reason to do so. Even in cases where arguments are closely balanced — which is not conceded here — this court has held that the advantage of certainty in the law should tip the scales in favor of the rule of stare decisis. Comer v. State, 222 Ark. 156, 257 S.W.2d 564 (1953). Sound reason undergirds the established legal principle in issue here, and stare decisis dictates our continued application of it.

We next turn to Brown’s second argument that the trial court erred in admitting Officer Marshall’s testimony identifying her voice as the one heard and recorded at the time of the drug sale. She also claims the tape was inadmissible because it was substantially inaudible. The trial court admitted the recording only for the purpose of refuting her alibi. Brown does not challenge the tape’s authenticity.

Rule 901 of the Arkansas Rules of Evidence sets out the foundation that must be laid prior to voice identification testimony and provides as follows:

Requirement of authentication or identification.
(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
* * ‡
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

In Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981), we reversed the conviction because there was insufficient foundation for a witness to testify concerning the identity of Roleson’s voice during a telephone conversation. The witness opined that the caller was Roleson although he had not met or talked with him and did not know what his voice sounded like. Under those circumstances, the witness was not qualified to offer an opinion concerning the identity of the voice on the telephone. The evidence here contrasts significantly, given Officer Marshall’s asserted familiarity with Ms. Brown’s voice.

The trial court found that the inaudible and unintelligible portions of the recording affected the weight of the evidence rather than admissibility in view of the limitation of its admission of voice identification. Indeed, the jury had an opportunity to listen to the tape, and they were in a position to assess Officer Marshall’s ability to identify the voice.

As to the general matter of audibility, we have held that tape recordings are admissible “unless the inaudible portions are so substantial as to render the recording as a whole untrustworthy.” Loy v. State, 310 Ark. 33, 832 S.W.2d 499 (1992); Ham v. State, 301 Ark. 154, 782 S.W.2d 577 (1990). We will not, however, reverse a decision to admit a recording absent an abuse of discretion. Id.

The trial court admitted the recording for the purpose of identifying Ms. Brown’s voice, and not for content. That the jury might not have been able to discern what was being said was of little consequence. We cannot say the trial court abused its discretion in allowing the admission of the recording.

Affirmed.

Dudley, J., concurs; Newbern, Brown and Roaf, JJ., dissent.

Robert H. Dudley, Justice,

concurring. I concur in the result of the majority opinion. In Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), this court held that when a defendant asserts that he is entirely innocent of any crime, no rational basis exists to instruct the jury on a lesser included offense, as the only issue for the jury is whether the defendant is guilty as charged. In so holding, this court overruled Holloway v. State, 18 Ark. App. 136, 711 S.W.2d 484 (1986), and Flurry v. State, 18 Ark. App. 64, 711 S.W.2d 163 (1986). We also discussed, but did not overrule, Fike v. State, 255 Ark. 956, 504 S.W.2d 363 (1974), where the defendant was convicted of assault with intent to rape after the trial court refused to instruct the jury on the lesser included offense of assault. Reversing in Fike, we said:

In the case at bar, it is not questioned that the prosecutrix’s testimony is sufficient to sustain. The verdict of assault with intent to rape. However, the jury has the sole prerogative to accept all or any part of a witness’ testimony whether controverted or not. Therefore, the jury had the absolute right, as trier of facts, to evaluate the evidence and consider whether only an unlawful assault was committed upon her by appellant or even acquit him.

255 Ark. at 959, 504 S.W.2d at 365 (emphasis added).

I joined the dissenting opinion in Doby, but it was just that, a dissenting opinion. The law became that set out in the majority opinion in Doby. Since that time we have had a number of cases that are best described as perplexing.

In Fladung v. State, 292 Ark. 510, 730 S.W.2d 901 (1987), the trial court denied appellant’s motion that the jury be instructed on the lesser included offenses of aggravated assault and first degree assault. Id. at 511. 730 S.W.2d at 902. On appeal we agreed with appellant and reversed, holding that the testimony of appellant and the Trooper were much the same until appellant turned in the seat with the pistol, after which their stories diverged. Id. at 515, 730 S.W.2d at 903. We held that the jury could have believed all of either version of the events or parts of each version. Id. at 513-14, 730 S.W.2d at 903. Justice Hickman dissented without opinion. Id. at 515, 730 S.W.2d at 904.

We distinguished the circumstances of Fladung from those of Doby by pointing out that in Fladung the appellant never denied that he produced a pistol and that his defense was based upon his purpose in producing the pistol. Id. at 513, 730 S.W.2d at 903. Nonetheless, if appellant’s purpose is a question of fact the same as possession of a pistol or drugs, then it is difficult to distinguish Fladung from Doby in principle. See 1983 Supplementary Comments to Ark. Code Ann. § 5-1-110 (1993 Commentaries).

The most recent decision in this perplexing line of cases was Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1988), where the we reversed appellant’s conviction of aggravated robbery on grounds that the trial court erred by not giving the requested instruction on the lesser included offense of robbery. Appellant pleaded not guilty and did not testify. The evidence showed that he put his hand in his pocket after he was surprised in the act of emptying a safe. The victim retreated, thinking appellant was reaching for a gun. Holding that the facts were susceptible to more than one interpretation, we held that the trial court should have instructed on robbery as a lesser included offense. Id. at 473, 757 S.W.2d at 560-61.

Doby has now been our interpretation of Ark. Code Ann. § 5-1-110(c) for nine yeai», and the statute has not been amended. We struggled to decide the case, and then expressly overruled two cases to make the holding. The trial court in this case followed the reasoning of Doby and refused to give AMCI 2d 301 and 302. Thus, the trial court correctly followed our law. Under these conditions, it seems wrong to again reverse ourselves, and to again change directions by overruling Doby without a clear warning to the bench and bar. At the same time, our holdings under the rationale of Doby have been perplexing, and the reasoning expressed in the dissenting is unassailable. Thus, I concur in the majority opinion in this case, but in cases tried after this date, I will join the reasoning expressed in today’s dissenting opinion.

David Newbern, Justice,

dissenting. In State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995), which is being released this date, the State argued eloquently, correctly, and effectively that the function of a jury in our society is to ascertain the truth. Therefore, the State argued, a criminal defendant should not be allowed to gamble by having a jury instructed only on the offense charged without instructions on lesser included offenses in the hope that the jury will find the proof lacking and acquit. The point so well made was that, if the State’s evidence supports a finding that a lesser offense was committed by the defendant, the jury should be allowed to convict of that offense and not be limited to acquittal or conviction of the offense charged, so long as the lesser offense is, by definition, included in the offense charged. In State v. Jones we declare error because the Trial Court declined to instruct on lesser offenses included in the murder offense charged.

In this case, the shoe is on the other foot. Elizabeth Gammon Brown was charged with delivery of cocaine. To prove the offense, the State was required to prove “the actual, construetive, or attempted transfer from one person to another of a controlled substance or counterfeit substance in exchange for money or anything of value whether or not there is an agency relationship.” Ark. Code Ann. § 5-64-101(f) (Repl. 1993). Possession of a controlled substance is a lesser offense included in the offense of delivery. Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992). Ms. Brown was not allowed to have the jury instructed on the lesser included offense of possession because she had presented an alibi defense. She thus was placed in an “all or nothing” position just as was the State at the trial in the Jones case.

Having agreed that the State should not have been placed in that position, the majority of the members of this Court turn on Ms. Brown and say her request for instruction on a lesser included offense was properly denied because she presented an alibi defense. That illogically and improperly ignores the fact that the State’s evidence presents a rational basis for instructing on possession as well as sale. It places Ms. Brown in the “all or nothing” position we say today was incorrect when applied to the State in the Jones case. The decision is unfair and nonsensical. If there was a rational basis for the jury to be instructed on the lesser included offense of possession, Ark. Code Ann. § 5-1-110(c) (Repl. 1993), then the jury should have been allowed to consider a lesser included offense so that it could fulfill its function as the finder of truth.

The evidence affecting the decision not to instruct on the lesser included offense was as follows. A drug transaction was arranged between Ms. Brown and Barbara Williams, a confidential police informant. Ms. Williams drove her car to the location where she was to meet Ms. Brown. Officer Lee of the State Police sat on the passenger side of the car, and Officers Robinson and Marshall were nearby in a separate vehicle listening and recording what was said through a body microphone worn by Ms. Williams. Officer Lee testified he gave Ms. Williams $60 in the form of three $20 bills which she carried in her hand as she drove the car without putting the money in her pocket or purse.

Officer Lee testified that Ms. Williams parked her car in front of a residence in Osceola, which was allegedly the home of one of Ms. Brown’s friends. Ms. Williams knocked on the door. A woman answered and allowed Ms. Williams to step inside the house. Officer Lee testified that, although they were inside, only the screen door had been shut, and the larger, wooden door had been left open. A porch light was on. He testified he could see the transaction as it was taking place. Officer Lee stated he saw Ms. Williams hand the other woman money in exchange for something. Ms. Williams then returned directly to the car and handed Officer Lee two rocks of crack cocaine.

Barbara Williams’ version was consistent with Officer Lee’s testimony except she first said she put the money in her pocket, and then that she was not certain of that. She also testified, “I don’t think the door was open where Officer Lee could see this. I can’t say.” She testified she gave the money to Ms. Brown. No testimony was offered to show that Officer Lee or anyone else ascertained that Ms. Williams was not in possession of the money when she returned to the car.

On these facts, it is apparent that the jury, assessing the State’s evidence could easily have decided that the State had not proved beyond a reasonable doubt that Ms. Williams gave Ms. Brown money. Yet the majority of this Court says that, because Ms. Brown presented alibi evidence, the jury has to believe all of the State’s evidence or none of it. It is wrong to say that Ms. Brown’s alibi evidence is in any way relevant to the State’s burden of proof.

Our position on the matter of instructing on lesser included offenses was thoroughly exposed in Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972), as follows:

This court has zealously protected the right of an accused to have the jury instructed on lesser offenses included in a greater offense charged. We have consistently held that a trial court commits reversible error when it refuses to give a correct instruction defining a lesser included offense and its punishment when there is testimony on which the defendant might be found guilty of the lesser rather than the greater offense. Walker v. State, 239 Ark. 172, 388 S.W.2d 13; Bailey v. State, 206 Ark. 121, 173 S.W.2d 1010; Smith v. State, 150 Ark. 193, 233 S.W. 1081; Allison v. State, 74 Ark. 444, 86 S.W. 409; Davis v. State, 72 Ark. 569, 82 S.W. 167. We have been so careful to see that a jury has an opportunity to pass upon lesser offenses as well as the greater one charged that we have held that it is not prejudicial error to give an instruction which permits the jury to find a defendant guilty of a lower offense than that charged, even when the defendant objects, because the evidence shows him to be guilty of the higher offense or of nothing at all. Kurck v. State, 235 Ark. 688, 362 S.W.2d 713, cert. denied, 373 U.S. 910, 83 S.Ct. 1299, 10 L.Ed.2d 412. Still, it is not error for the court to fail to instruct on the lower offense, where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Gilchrist v. State, 241 Ark. 561, 409 S.W.2d 329; Sims v. State, 203 Ark. 976, 159 S.W.2d 753; Clark v. State, 169 Ark. 717, 276 S.W. 849; Rogers v. State, 136 Ark. 161, 206 S.W. 152. And we have held that where the higher offense charged included a lower offense and there was evidence sufficient to present a question of fact as to the defendant’s guilt of either, the trial judge’s instruction over defendant’s objection, that the defendant could not under the testimony be convicted of a lower offense than that charged in the indictment, was reversible error. Bryant v. State, 41 Ark. 359.

In Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980), we stated, “We have held that where there is the slightest evidence to warrant such [a lesser included offense] instruction, it was error to refuse to give it.”

In a subsequent decision in which we were sharply divided (4-3), Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), we said there is no basis for any lesser included offense instruction when the defendant simply denies the offense charged occurred. Doby was charged with possession of a controlled substance with intent to deliver. He denied the offense and testified it simply did not occur, thus contradicting the testimony of an officer who said Doby orally admitted to him that Doby had large amounts of controlled substances and that he had been selling them. That holding has been cited and specifically followed in a number of cases. See e.g., Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992); Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992); Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986).

The Doby decision and the ones which have followed it were incorrect.

The problem with the Doby decision, as expressed in the dissenting opinion in that case, and as the State asserted in the Jones case released today, although the State did not discuss the Doby opinion, was that it foreclosed the jury from avenues it might follow in its search for the truth. The dissenting opinion in the Doby case made that same point and stated:

Rather than making the “rational basis” determination by evaluating the state’s evidence against the accused, as had the previous cases, the [majority] opinion subtly shifted the emphasis to the evidence presented by the accused. The result of this kind of thinking is that a plea of not guilty obviates the necessity of giving a lesser included offense instruction. The response to that assertion may be that we will only decline to require it when the accused testifies or presents other evidence denying his guilt. Again, this has the effect of denying the jury an opportunity to evaluate the state’s evidence except to say it is all true or all false.

That is precisely the argument made by the State and approved by this Court in the Jones case we release today.

The majority opinion cites a long string of cases it purports to be in agreement with the Doby decision and its progeny. The list is impressive until the cases are examined. Here is an examination of those cases.

In Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918), Rogers was convicted of murder in the second degree. He was charged with murder in the first degree. There was circumstantial evidence that Rogers had intentionally drowned his infant daughter. An instruction was given on the lesser included offense of murder in the second degree. On appeal he contended it was error to have given the lesser included offense instruction. We said “Where the indictment charges murder in the first degree, and the undisputed evidence shows that the accused, if guilty at all is guilty of murder in the first degree, then it is not error for the court to refuse to give instructions authorizing the jury to return a verdict of guilty of one of the lower degrees of homicide.” Although we stated that “The proof warranted the jury in returning a verdict only for murder in the first degree ....,” the holding of the case was that “... it is not prejudicial error for the court to give an instruction on the lower degree in such a case, because the error is one that results to the defendant’s advantage.” Unlike this case, there was nothing in the State’s evidence suggesting Mr. Rogers might have been guilty of an offense less than first degree murder. It could be said there was no “rational basis” for anything other than the first degree murder instruction. Although Mr. Rogers testified and mounted an alibi defense, the evidence he presented was not stated by us as a reason for the obiter dictum that it was error to have instructed on second degree murder.

In Clark v. State, 169 Ark. 717, 276 S.W. 849 (1925), Mr. Clark was accused of felony first degree murder. He was convicted of that offense and sentenced to death. The murder occurred at the conclusion of a bank robbery in which Mr. Clark’s role was that of driver of the getaway car. The evidence was that Mr. Clark shot the deceased, a businessman whose business was down the street from the bank, who was trying to apprehend Mr. Clark and his confederates. Mr. Clark’s defense was that he participated in the robbery without any intent to shoot anyone. Seeming to concede that he was a participant in the bank robbery, the underlying felony, he argued on appeal that it was error for the Trial Court to refuse to give an instruction on second degree murder. Obviously, and unlike the evidence now before us, there was no basis for the lesser included offense instruction, and we said so. The case had nothing to do with an alibi defense.

In Caton v. State, supra, from which language is quoted above, an issue was whether the accused was entitled to an instruction on shoplifting as a lesser offense included in grand larceny. We held that the offense of grand larceny charged did not include all the elements of shoplifting, and thus there was no error in failure to instruct on shoplifting. There was nothing about an alibi defense. In the case now before us, we have no doubt that possession of a controlled substance is a lesser offense included in the offense of sale of a controlled substance.

In Parker v. State, 258 Ark. 880, 529 S.W.2d 860 (1975), all of the evidence showed that the victim of a robbery had been physically accosted and the element of force was present. Mr. Parker contended it was error to fail to instruct on larceny. We said “. . . it is not error to refuse such an instruction when the evidence clearly shows that the defendant is either guilty of the greater charge or innocent.” Again, there was nothing in the evidence to suggest the lesser included offense of larceny and there was no alibi defense.

In Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977), Mr. Barksdale contended it was error to have refused an instruction on breaking and entering as a lesser included offense of burglary. The dispute was apparently over whether a student union building at the University of Arkansas at Pine Bluff was an occupiable structure. We held that there was no basis for the breaking and entering instruction because the evidence was that the building was occupiable. There was nothing to the contrary. No alibi defense was presented.

In Crenshaw v. State, 271 Ark. 487, 609 S.W.2d 111 (Ark. App. 1980), Ms. Crenshaw was convicted of second degree battery. The Court of Appeals simply refused to entertain Ms. Crenshaw’s contention that she was entitled to a verdict form on battery in the third degree. The Trial Court had instructed on battery in the third degree but had withdrawn the instruction and submitted verdict forms only for second degree battery and not guilty. The Court of Appeals affirmed on the ground that the abstract contained no evidence of an objection either to the instructions or to the verdict forms.

In Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980), Mr. Beed was accused of a number of offenses, including rape. He sought an instruction on sexual abuse in the first degree as a lesser offense included in rape. The victim testified she was certain there had been penetration. Mr. Beed contended her testimony had been confused about whether he desisted in his sexual attack before or during intercourse. We found no basis whatever for that contention and held, looking solely to the State’s evidence, that it was not error to have refused the instruction on sexual abuse in the first degree where the evidence showed the defendant guilty or not guilty of the offense charged and not of a lesser offense. The fact that Mr. Beed had presented alibi testimony was not mentioned in the discussion of the alleged error with respect to the failure to instruct on the lesser included offense.

In Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981), Mr. Sargent was convicted of first degree murder in the killing of his father. The evidence presented by his siblings who were his accomplices was that Mr. Sargent had planned the offense thinking the family would get money, presumably insurance money, if his father were killed in his truck, so he shot him four times and attempted to burn the body while his father was still alive. Mr. Sargent wanted an instruction on the lesser included offense of manslaughter which would have been appropriate upon a showing thar he had caused the death “under the influence of extreme emotional disturbance for which there [was] no reasonable excuse.” We held there was no evidence to support any finding of “extreme emotional disturbance.” Alibi was not in question.

In Lovelace v. State, 276 Ark. 463, 637 S.W.2d 548 (1982), Mr. Lovelace was charged with aggravated robbery. Mr. Parker testified that Mr. Lovelace held a gun to him while robbing the convenience store where Mr. Parker was employed. A hidden camera photographed the robber holding a small revolver. Mr. Lovelace contended on appeal that the Trial Court should have instructed on the lesser included offense of robbery. The evidence was clear that the robbery had been conducted at gunpoint. There was no indication whatever in the evidence that the robbery was accomplished other than with the use of a gun. We held there was no rational basis for the lesser included offense instruction. There was no alibi evidence.

In Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982), Mr. Smith denied any knowledge of or complicity in the aggravated robbery with which he was charged. Mr. Smith contended on appeal that the Trial Court erred in failing to instruct on the lesser included offense of robbery. An officer who chased and apprehended Mr. Smith after the robbery testified Mr. Smith was armed. There was no evidence to the contrary. We held there was no rational basis for the giving of the lesser included offense instruction. Again, the holding was based on the State’s evidence rather than on the fact that Mr. Smith denied participation in the offense.

In Roberts v. State, 281 Ark. 218, 663 S.W.2d 180 (1984), Mr. Roberts was charged with burglary and theft of property. His fingerprint was found on a window which had been pried at the residence where a theft had occurred, and he was found in possession of one of a matched pair of earrings, the other one of which was left at the residence. Mr. Roberts presented three alibi witnesses and then sought an instruction on the lesser included offense of theft by receiving. We noted that “Since appellant’s position was that he was innocent of any theft, his request for the lesser-included offense of theft by receiving was not rational. Under the facts of this case, we conclude the trial court was not obligated to charge the jury with respect to the lesser offense.” While that statement supports the majority opinion in the case now before us, it must again be noted that nothing in the State’s evidence suggested anything other than burglary. Discussing the Roberts case in the Doby opinion we said “According to the appellant [Roberts], he had received the allegedly stolen goods several years before they were stolen.” The opinion in the Roberts case does not, however, refer to any such testimony. Reading that opinion, one simply cannot say there was any evidence presented by the State or by Mr. Roberts from which jurors could rationally conclude theft by receiving had occurred. While I disagree with the statement connecting the alibi evidence with the necessity for the lesser included offense instruction, it is clear to me that the holding of the case, limited to its facts, is that there is no way the jurors could have concluded on the basis of the State’s evidence that anything other than burglary had occurred.

In Mitchell v. State, 314 Ark. 343, 862 S.W.2d 254 (1993), Mr. Mitchell was charged with capital felony murder. He admitted hitting the victim with a tire tool and absconding with the victim’s truck. He was convicted of first degree murder. On appeal he contended the evidence was insufficient to support the conviction and the evidence had not warranted an instruction on capital felony murder. We held the evidence was sufficient to sustain the first degree murder conviction and that it had not been error to instruct on capital felony murder. There was nothing in the case about alibi, and I am at a loss to say why the case is cited in the majority opinion.

While we went too far in what we said in the Roberts case, that has not created the problem in view of the fact that the holding there was not far reaching. The mistake was made in the Doby case and in Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986), which was decided the same day. It came about because of reasoning based on the Roberts case. “According to the appellant [Roberts], he had received the allegedly stolen goods several years before they were stolen. The appellant’s [Roberts’s] own testimony was inconsistent with such a charge. So it made no sense to confuse the jury.”

We should not have made that connection. The State has the burden of proving each element of a criminal offense beyond a reasonable doubt. In a situation where (1) there is separable evidence about those elements, and (2) there is evidence from which a jury could conclude, based on credibility of the witnesses or conflicts in their testimony, that not all of the elements have been proven beyond a reasonable doubt, and (3) the failure with respect to one of the elements could result in conviction of a lesser included offense, there should be an instruction on the lesser included offense. A plea of not guilty, evidence of denial by the defendant, or alibi evidence presented by the defendant has nothing to do with the strength or weakness of the State’s evidence.

In United States v. Thornton, 746 F.2d 39 (D.C. Cir. 1984), the Court of Appeals pointed out that the appellant’s argument that a lesser included offense instruction should have been given had overlooked the point that his exculpatory defense gave no basis for it and there must be a rational basis for the instruction. The Court of Appeals then said:

At the same time, we recognize that even where the defendant presents a totally exculpatory defense, the instruction should nonetheless be given if the evidence presented by the prosecution provides a rational basis for the jury’s finding the defendant guilty of a lesser included offense. [United States v.] Sinclair, 444 F.2d 888 (D.C. Cir. 1971) [emphasis in original].

See also United States v. Payne, 805 F.2d 1062 (D.C. Cir. 1986); United States v. Canova, 638 F.Supp. 1055 (S.D.N.Y. 1986).

As we said in Fike v. State, 255 Ark. 956, 504 S.W.2d 363 (1974), “. . .the jury has the sole prerogative to accept all or any part of a witness’ testimony whether controverted or not. .. .” The State understandably wants a jury to have the prerogative of believing its witnesses in part or accepting part of its evidence if it fails to prove all it alleges. Obviously, in determining the guilt or innocence of an accused the jury must look first to the State’s proof, for the State has the burden of proving guilt beyond a reasonable doubt. If the jury believes a part of the State’s proof, enough to sustain a lesser included offense but not enough to sustain the original charge, should the jury be limited to choices of conviction on the original charge or acquittal just because the defendant has denied his or her guilt or offered an alibi defense? Limiting the jury to such a choice would result in a clearly untruthful decision for no good reason. If the State charges, for example, capital felony murder and the defendant testifies he was not at the scene of the crime when it was committed, should the trial court refuse an instruction on a lesser degree of homicide if the State presents no evidence of any underlying felony? I suggest the refusal to instruct on the lesser included offense in that instance would be preposterous; yet that is just the sort of situation to which the majority opinion could lead.

As we have held today in the Jones case, if the State’s evidence is such that a jury could believe part of it and thus render a conviction of a lesser included offense, then there is a rational basis for instructing on such an offense. There is no less a rational basis for the instruction if the defense is a denial of either the defendant’s participation in the offense or its occurrence. The defense is no less entitled to the instruction than the State, and I take it we should favor truthful verdicts rather than the untruthful ones which will surely result in some cases from the playing of a legalistic game.

I respectfully dissent.

Brown and Roaf, JJ., join in this dissent.

Andree Layton Roaf, Justice,

dissenting. The majority states that it “defies common sense” to give the jury instruction on the lesser included offense where defendant’s proof established she was elsewhere and innocent of participation in the cocaine transaction, in other words, where an alibi defense was put forth. It defies neither common sense nor does it defy a most basic premise of our system of criminal justice — that the state must prove beyond a reasonable doubt, every element of its case. The discrepancy in the testimony of the state’s only two witnesses to the drug transaction in question can be said to have injected at least the element of doubt in this case — unless it also defies common sense that policemen can be untruthful or in error, or that drug informants — most often recruited from the seamier elements of our society — can be the same. In this case, one or the other, or perhaps both of these witnesses either fabricated or were mistaken about an aspect of the drug transaction. In any case, the requested instruction should have been given and the jury allowed to weigh all the evidence including the issue of credibility presented by this conflict in testimony.

As to the line of cases cited by the majority in general, and Doby v. State, 290 Ark. 408, 720 S.W.2d 695 (1986), in particular, if they stood only for the proposition that a lesser included instruction should not be given absent a rational basis, I would be in complete agreement. However, the majority interprets Doby as holding that a defendant who presents a complete denial or an alibi defense is in an “all or nothing” situation, and can never receive a lesser included instruction, regardless of any weakness in the evidence or in the credibility of the witnesses in the state’s presentation of its case. It is “never” that makes this interpretation illogical because an unsuccessful alibi defense in no way establishes the credibility of the state’s witnesses or the elements of the greater offense charged. Even so sacrosanct a concept as stare decisis should not stand in the way of correcting such a clear mistake.

I respectfully dissent.

       A dissenting opinion refers to State v. Jones, CR94-717, and suggests that case is inconsistent with the holding here. Jones is clearly different, since there, Jones never denied shooting the victim. Here, on the other hand, Brown defended, stating she not only did not commit the crime, but she was elsewhere when the offense was committed.


author:
Tom Glaze, Justice.
      Robert L. Brown,

text:
    Cora MARTIN v. BLACK & WHITE CAB COMPANY
    94-224
    901 S.W.2d 17
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995

      The Law Offices of Peter Miller, by; Lynn D. List, for appellant.

      John Wesley Hall, Jr., P.C., for appellee.
   Tom Glaze, Justice.

On July 21, 1992, appellant Cora Martin was a passenger in a taxicab owned by appellee Black & White Cab Co., Inc. when the cab was rearended by another vehicle driven by Carolyn Washington. Martin filed a petition for declaratory judgment claiming, among other things, that Washington was uninsured, and therefore, Martin’s claims were uncovered if Washington was ultimately found at fault. Martin further alleged that Black & White Cab had no uninsured motorist coverage as required under Ark. Code Ann. § 23-16-302 (Supp. 1993). Instead, the cab company, she alleged, had placed a certificate of deposit as collateral in the sum of $50,000 with the state pursuant to the terms of a licensing statute, Ark. Code Ann. § 27-14-1501(c) (Repl. 1994). Martin further averred that, under § 27-14-1501(c)(2), Black & White Cab was permitted to post such a certificate for all claims against its fleet of vehicles in lieu of obtaining liability insurance. Under her interpretation of these statutory laws, Martin asserted she was entitled to have her claim paid out of the cab company’s collateral deposit in the event uninsured motorist Washington was found to be at fault. In sum, Martin contended below, and now in this appeal, that, under a reading of the foregoing statutory laws, Black & White Cab, as a common carrier, was required to provide coverage to protect passengers, like herself, against accidents involving an uninsured motorist.

Black & White Cab answered Martin’s petition by denying any fault for Martin’s alleged injuries. It further denied that Washington was uninsured, and in fact, the cab company rejoined that Washington had produced proof of insurance to the officer who investigated the collision. In addition, the cab company asserted that proof Washington was uninsured was a prerequisite to Martin’s request for declaratory relief, and without such proof, any declaration of law made by the trial court in interpreting §§ 23-16-302 and 27-14-1501(c) would be advisory.

At a hearing on November 18, 1993, counsel for Martin and Black & White appeared and Martin’s attorney, Lynn Lisk, explained Martin sought declaratory relief, requesting the trial court to declare that the statutory law requires Black & White to pay uninsured motorist benefits. Lisk said that he hoped Black & White’s counsel, Mark Jesse and John Wesley Hall, Jr., would stipulate that the accident happened, and, at least for purposes of the hearing, hoped they would agree that fault rested with Washington and that Washington was uninsured. Hall responded that he was not comfortable with stipulating to Washington being uninsured.

Following the foregoing initial remarks, respective counsel discussed their views concerning the statutory law raised in Martin’s complaint and argument, and during the discourse between counsel, the trial court appeared to side with Black & White’s position that the cab company was not liable for uninsured claims under its certificate of deposit. Then, the court and counsel returned to their earlier discussion of the facts, particularly whether Washington was uninsured. The record reflects the relevant following colloquy on this point:

MR. LISK: Your Honor, if I could briefly, I would just — I mean, that was the whole issue we were here for. If they could just stipulate that the other driver, for the purposes of this hearing, was uninsured, then I would say that you have —
THE COURT: Well, as I understand, he’s not —
MR. LISK: — made a finding on the merits as to the argument and it’s ready for a final judgment for appeal.
THE COURT: I don’t think he’s ready to concede that, though, are you?
MR. HALL: If that’ll make your order today final and dispose of the case, we would stipulate to that for purposes of this.
THE COURT: Okay, yeah.
MR. LISK: Right.
MR. HALL: If we ever get to the liability part, we wouldn’t want to be held to our stipulation in this case.
MR. LISK: And we would certainly agree to that.
THE COURT: Okay.
MR. LISK: We will certainly agree that we’re just seeking a final judgment from this Court to raise the appeal
THE COURT: Sure. Include that in the order, that stipulation.
MR. JESSE: All right.
THE COURT: And that way maybe this will be all of it and maybe not. We’ll see. Okay?
MR. LISK: All right. Thank you, Your Honor.
THE COURT: All right. Thank you all for being here.

(Emphasis added.)

The parties and the trial court obviously were trying to word a precedent to make it final and therefore appealable. Clearly, the parties were aware the appeal was interlocutory in nature, and if this court on appeal reversed the trial court’s decision, they agreed Black & White Cab Company retained the right to litigate, on retrial, whether the third party, Washington, was insured at the time of the collision. Washington was not made a party to this litigation, and at this stage, at least, we do not know what her (or her insurance company’s) testimony will be on the coverage issue; nor could the parties here by factual stipulations bind Washington on that issue. In any event, this court will not countenance “conditional” stipulations by parties designed to obtain interlocutory appeals on issues or matters which are not final or fall within the context of Ark. R. App. P. 2.

In conclusion, we note that the trial court’s order reflects the parties entered into stipulations and one of those provides that Washington’s vehicle was uninsured at the time of the accident. As previously discussed, that stipulation was entered into for the sole purpose of entering a final order from which an appeal could be made; however, there is nothing in the record which supports the view that either party intended to preclude Black & White from trying this third-party uninsured coverage issue at a later time, and it would be unfair to read the order to permit such a preclusion. It is this very significant factual issue which remains pending below between the parties and causes this appeal to be interlocutory and advisory in nature.

For these reasons, we dismiss the appeal.

Newbern, Brown and Roaf, JJ., dissent.

Robert L. Brown,

dissenting. Today’s opinion by the majority undercuts the conclusiveness of final judgments and orders. The opinion goes behind the final order in this case to determine what the parties “really meant,” even though that interpretation is at odds with the express language of the order.

Counsel for Black & White Cab prepared the judgment. There is no hint in it that the order is conditional in any respect, even though the trial court admonished counsel to include the conditional language. Indeed, the order states just the opposite. It finds that the third party tortfeasor was uninsured.

Why counsel for Black & White Cab changed his mind and prepared a final order rather than a conditional order can only be the subject of speculation. But he did, and Black & White Cab raised no argument that the judgment was anything but final in its brief on appeal. This court raised the issue for the first time in oral argument.

This court has often discussed the finality of orders and judgments. For example, we have stated:

For a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Jackson v. Yowell, 307 Ark. 222, 818 S.W.2d 950 (1991). To be final, an order must be of such a nature as to not only decide the rights of the parties, but to put the court’s directive into execution, ending the litigation or a separable part of it. Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987). See also Bonner v. Sikes, 20 Ark. App. 209, 727 S.W.2d 144 (1987).

Kelly v. Kelly, 310 Ark. 244, 245, 835 S.W.2d 869, 870-871 (1992); see also Estate of Hastings v. Planters and Stockmen Bank, 296 Ark. 409, 757 S.W.2d 546 (1988).

Black & White Cab was bound by the final order in this case which included (a) an express finding that the third party had no liability insurance, (b) a declaration that uninsured motorist coverage was not required by Black & White Cab, and (c) a dismissal of the case. Had Black & White Cab desired to retain any rights in the order or to limit the order’s finality, it could easily have done so. It did not, and any conditional stipulation by the company’s attorney at the hearing was superseded by the terms of the later order.

Our law is clear that a declaratory judgment, whether affirmative or negative in form and effect, shall have the force and effect of a final judgment. Ark. Code Ann. § 16-111-103 (1987). Moreover, assuming that the order was in error in not restricting its finality with regard to the tortfeasor’s insurance status, counsel for Black & White Cab should have resorted to a post-judgment remedy before the circuit court. See Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995). Counsel also failed to pursue this avenue of relief. Martin had no choice but to appeal the order. The order was devoid of ambiguity, and in it the circuit court ruled against her on the statutory conflict and dismissed her petition.

In going behind the final order in this case, we open the door to considerable uncertainty concerning judgments, decrees and orders. I would adhere to longstanding precedent and reach the merits of this case.

I respectfully dissent.

Newbern and Roaf, JJ., join in this dissent.

       Section 23-16-302 provides as follows:
      Every common carrier, as defined by § 23-16-301, shall carry uninsured motorist liability insurance or shall become a self-insurer, in not less than the limits described in § 27-19-605, for the protection of passengers and operators of the common carrier who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease including death, resulting therefrom.